Adapted from

The National Labor Relations Board has done it again — clarified its position on protected social media usage based on cases it’s handled over the past several months. Lafe Solomon, NLRB Acting General Counsel, offers some guidance regarding what is and is not prohibited in employers’ social media use policies.  This guidance applies to both union and non-union companies, so don’t push this aside thinking it doesn’t involve you.  When it comes to the umbrella of “protected concerted activity,” all employees are covered.  Here are several quick case-by-case examples of what is considered to be “protected activity,” per the NLRB.

  • Employee had a dispute about her job performance with her executive director and posted it on Facebook.  She got feedback from her co-workers.
  • EMT was asked by her supervisor to respond to a customer complaint and was denied a request for union representation. She posted negative comments about her supervisor on Facebook and received responses from her co-workers.
  • Car salesman posted on Facebook photos and criticism of food offered by dealership at sales event, saying that food was too chintzy for their clientele and would adversely affect sales commissions. Co-workers commented on their agreement.
  • Multiple restaurant employees posted comments on Facebook about employer’s allegedly improper tax withholding practices, and one employee called employer a bad name.

The common theme in each of these protected cases is that co-workers of the original complainant(s) commented with more than what was deemed to be “just an individual gripe.”  As for the cases that were not protected, the NLRB found the comments to be on an individual basis and not “seeking to prepare for group action.”  In other words, if an employee vents about work via social media and does not seek to involve other co-workers, it is not protected activity and employers may fire them for their inappropriate comments about their workplace. 

Moral of the story? Only fire employees who gripe about your company who are not Facebook friends with any of their coworkers.  Or call your ESG Human Resources Consultant before firing any employee to make sure you’re making the right decision and not setting yourself up for a hefty employment lawsuit.

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Source: PwC Saratoga 2010/2011 US Human Capital Effectiveness Report (Executive Summary),

In review of the Executive Summary for the PricewaterhouseCoopers 2010/2011 US Human Capital Effectiveness Report, employers may find it no surprise to learn that businesses and employees alike continue to feel the economic strain from the Great Recession. “Budgets remain tight from boardrooms to family rooms, with recovery a stubbornly elusive goal.” The impacts are evident in this PwC Saratoga summary report, as follows: 
  • Recession takes a toll on productivity: Workforce productivity decreased, reversing the significant upward swing indicated by the 2009/2010 survey and representing the first year-over-year decrease since 2005.
  • Voluntary turnover drops sharply: Voluntary separations have decreased 30 percent since 2006 and more than 20 percent in the past year.
  • Employee costs increase: Employee healthcare costs continue to rise, but at a slower rate than in the past.
  • Recession improves quality of hire: First-year turnover has decreased from 31.7 percent in 2007 to 23.6 percent in 2009. As the economy improves, historical trends suggest that turnover numbers will increase.
  • Baby boomers bide time: Baby boomers continued to leave organizations at the lowest rate among all demographic groups, with a voluntary turnover rate of just 4.9 percent in 2009.
  • While overall eligibility for retirement increased for employees, it has declined for management: More than one in five employees are eligible for retirement within five years; however, the percentage of managers and executives eligible for retirement has decreased.
  • HR costs increase, while HR headcounts decline: The increasingly strategic role of HR as a business partner is requiring a greater investment in HR labor costs and systems. Results reveal a statistically significant positive correlation between HR Headcount Ratio and Voluntary Turnover. That is, as the size of HR increases, organizations tend to experience lower voluntary turnover. The results in PwC Saratoga’s database show the average headcount at organizations that provided HR cost data result in a per-employee *HR cost of $1,569 in 2009.
*In closer examination of these figures, the HR costs were primarily composed of labor and systems costs, with less than 6% being designated for HR outsourcing. Perhaps the per-employee HR cost could be significantly reduced if more HR processes were outsourced. Learn what significant cost savings and bottom-line profitability ESG can provide your organization by contacting us today at 888-810-8187. Let us show you how our HR expertise can improve your staff and your bottom line.

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Adapted from --- originally written by Steve Bruce, “The 6 Scary Phrases to Avoid in Documentation”

We’ve all heard the importance of documentation emphasized in our employment practices. The actual words you use in documentation, however, may come back to haunt you, due to the interpreted meaning of those words. Allison West, attorney and principal at Employment Practices Specialists in Pacifica, CA, offered her suggestions at SHRM's recent national conference about which phrases to avoid when documenting.

1. 'Overqualified'
According to West, “overqualified” people are usually over 40, which makes this phrase a red flag for discrimination. Candidates who meet minimum qualifications should not be eliminated at an early stage solely on the basis that they are “overqualified.”

2. 'Overcommitted'
When employers say this, the applicants hear, "Has kids and won't stay late.” This is a lawsuit waiting to happen, particularly if this is said to a woman.

3. 'Lacks skills necessary to do the job'
The employee will think: I'm not the kind of person they want to spend the time and energy training because of my age, race, etc. Better way to say it? Detail exactly why the applicant is not qualified. Comments must be objective and based on job requirements. For example: Mark does not know html.

4. 'Doesn't fit in' or 'Not a culture fit'
Again, this is an invitation to a discrimination charge, especially if you have a predominant race, ethnicity, or religious group at your workplace (all white, all Asian, all Christian, etc).

5. 'Bad attitude'
"Attitude" is a red flag for discrimination. Better way to say it? "We're having problems with your attitude; specifically, when asked to stay late to work on a project and you roll your eyes and sigh."
The same goes for "not a team player." You say, we've worked with you, but you're just not a team player. That's another potential red flag for discrimination. “Hmmm,” the person thinks, “I'm the oldest person, the only minority, the only pregnant woman in the office,” etc.

6. 'Not communicative'
What does the employee think? “I couldn't answer their questions, I'm viewed as a loser, I wasn't given a chance.” The better way to say it is to use specifics. “Was unable to provide answers concerning interactions with boss or did not expand on responses about interactions with manager.”

Documentation is critical for employer protection; just be sure to use your words wisely.  If you’re questioning whether your documentation terms may be ambiguous, think to yourself whether or not somebody could ask, “What exactly did you mean by that?”  If you would then have to explain yourself, perhaps your verbiage needs to be more specific in your documentation practices.

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Source: Immigration Solutions, (adapted)

With a second wave this year of Notices of Inspection (NOI’s) sent to employers across the country, with I-9 administrative audits being ICE’s driving force in determining whether an employer is adhering to employment laws - it is a costly mistake for employers to presume that they can fly under ICE’s radar. An ICE investigation can be triggered at any time by a number of sources: SSA No-Match letters, a tip from a disgruntled employee, a terminated employee, a customer, a competitor, or other “concerned citizens.” So let’s outline exactly what takes place when an employer is served with an NOI.

Employers are allowed (by law) 3-days notice to respond by producing the I-9 records and other requested information. The administrative inspection process is initiated by the service of a Notice of Inspection (NOI) upon an employer compelling the production of Forms I-9. Often, ICE will request the employer provide supporting documentation (an invasive Document Subpoena), which may include requests for a copy of the I-9 Compliance Policy, Employee Roster, copies of Payroll Summaries, I-9 forms for current and terminated employees, Quarterly Wage and Hour Reports, SSA Mismatch correspondence, E-Verify and/or SSNVS documents, Articles of Incorporation, and business licenses.

ICE agents or auditors then conduct an inspection of the Forms I-9 for compliance. When technical or procedural violations are found, an employer is given ten (10) business days to make corrections. An employer may receive a monetary fine for all substantive and uncorrected technical violations. Employers determined to have knowingly hired or continued to employ unauthorized workers will be required to cease the unlawful activity, may be fined, and in certain situations may be prosecuted criminally. Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.

Overall, the best practice is to maintain compliance to help mitigate penalty costs. Employers need an I-9 compliance policy that outlines guidelines for all employees and managers to follow, and must become proactive about establishing good-faith efforts towards compliance. Penalties may be steep for violators (up to $16,000 per violation for knowingly hiring and continuing to employ), although more significant damage oftentimes pertains to the company’s image.

Should you receive an NOI, please contact ESG right away to help you with the inspection process. For questions and/or more information, please contact one of our ESG Human Resources Consultants at 888-810-8187, or visit Immigrations Solutions.

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Verizon recently agreed to settle a nationwide class disability discrimination lawsuit that was filed against 24 named subsidiaries of Verizon Communications. The suit said that the “company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s ‘no fault’ attendance plans,” which violated the Americans With Disabilities Act (ADA) by refusing to make exceptions to accommodate employees with disabilities. The price tag of $20 million is the largest disability discrimination settlement in a singled lawsuit in EEOC history, which will provide monetary relief to hundreds of employees that were terminated or disciplined per the policy.

Under Verizon’s “no fault” attendance policy, an employee could accumulate a designated number of “chargeable absences” and then be placed on a disciplinary track, which could ultimately result in more serious disciplinary consequences (including termination). Employees whose absences were caused by their disabilities were apparently given no exceptions to the policy.

The ADA not only prohibits discrimination based on disability, but it also requires an employer to provide a reasonable accommodation, such as paid or unpaid leave, to an employee with a disability (unless it creates a significant hardship to the employer). Inflexible leave policies have detrimental affects to the economy by denying an otherwise qualified person meaningful employment.

Beyond the $20 million in monetary relief, Verizon must revise its attendance plans and policies to include reasonable accommodations for persons with disabilities, as well as provide periodic ADA training to employees who are responsible for overseeing Verizon’s attendance plans.

The lesson employers should learn from this lawsuit is to consider paid or unpaid leave as a reasonable accommodation for employees with disabilities – and that an “across-the-board” policy is not always the best practice, despite trying to achieve consistency. For more information on acceptable leave policies, please contact one of our ESG Human Resources Consultants at 888-810-8187.

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Adapted from
(James Shea, partner at the Hartford, Connecticut office of Jackson Lewis LLP, provided the following guidance for HR professionals at the firm’s 2011 Labor and Employment Law conference on June 9, 2011)

Using social media in the hiring process can reveal a lot about an applicant, including some things that should not be considered when determining whether to hire an individual. However, there is currently no law prohibiting the use of social media in the hiring process, and there has been no reported increase in failure-to-hire cases based on information the employer obtained from social media. Employers should still proceed with caution by keeping the following items in mind:
  • Remember that the Federal Fair Credit Reporting Act and applicable state laws on background checks likely will apply if using a third party for background checks.
  • Social media sites can reveal the protected characteristics of applicants, such as age, race, and/or gender --- providing an avenue for the applicant to claim discrimination for not being hired.
  • Social media may reveal an applicant’s political beliefs. However, rejecting an applicant because of his or her political activities may violate state constitutional law.
  • Even if the employer relies on nothing unlawful in using social media, the information on the sites may not be reliable.
According to Shea, here are 10 tips to use when utilizing social media in the hiring process:
  1. Develop a policy on whether the employer will search the internet or social media sites in hiring.
  2. If you decide to use social media in hiring, do the searches on applicants consistently and in a uniform manner.
  3. Consider notifying candidates about the company’s use of social media to gather information, e.g., on job applications.
  4. Ensure employment decisions are made based on lawful, verified information.
  5. Designate a non-decision maker to conduct the search. The individual should be properly trained to avoid improper access and to screen out information that cannot be lawfully considered in the decision-making process.
  6. Consider using social media only after the initial interview to cut down on the number of searches and after you already have some information on the candidate.
  7. The non-decision maker should provide “scrubbed” information to the decision maker.
  8. Rely on job-related criteria – preferably from a job description.
  9. Beware of relying on legal, off-duty conduct.
  10. Follow your best practices in identifying a legitimate, nondiscriminatory reason for the hiring decision with the documentation supporting the decision.
For questions regarding your social media practices in employment, please contact one of our ESG Human Resources Consultants at 888-810-8187.

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