Friday, November 25, 2011

Corporations Have The Right Of Free Speech But No Right To Eavesdrop


Please contact Keith Paul Bishop at Allen Matkins for more information kbishop@allenmatkins.com http://www.calcorporatelaw.com/ 

Corporations Have The Right Of Free Speech But No Right To Eavesdrop 
By Keith Paul Bishop on November 22, 2011 

In 1967, the California legislature enacted Penal Code § 632 as part of the “California Invasion of Privacy Act”. The statute imposes liability on “Every person who, intentionally and without the consent of all parties to a confidential conversation, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication . . . . .” (emphasis added). 
Does § 632 apply when a corporation’s supervisory employees secretly monitor conversations between a customer and other corporate employees? San Diego Superior Court Judge William R. Nevitt, Jr. thought not, reasoning that the statute does not apply because it requires a third party and in this case there are only two parties – the corporation and the customer. 

In an opinion issued yesterday, however, the California Court of Appeal disagreed. Kight v. CashCall, Inc. involved phone conversations that were monitored, but not recorded, by a corporation’s supervisors for quality control purposes. The Court of Appeal found that while the statute defines “person” to include a corporation, the corporation is not a single unit and all participants to the conversation must give their consent. In doing so, the court had to distinguish Black v. Bank of America, 30 Cal. App. 4th 1 (1994) which held that for purposes of tort law there can be no conspiracy between a corporation and its employees because a corporations cannot conspire with itself. The court did so based on what it perceived to be the legislative purpose underlying § 632. 

Although the Court of Appeal ruled against the corporation, it is too early for the plaintiffs to break open the champagne. They still must prove that they had an objectively reasonable expectation that their conversations were not being overheard or recorded. In this regard, the corporation argued there could be no reasonable expectation when the plaintiffs knew that the information provided to one corporate employee would be disclosed to others. The Court of Appeal concluded, however, that this knowledge does not change the confidential character of a communication for purposes of the statute. 
Kight has implications for all corporations who communicate with their customers, including broker-dealers, investment advisers, and lenders. Please contact Keith Paul Bishop at Allen Matkins for more information kbishop@allenmatkins.com http://www.calcorporatelaw.com/ 

Although Kight involved telephone calls, there is nothing new about eavesdropping. The term actually is derived from the Old English word, yfesdrype, referring to the place where rainwater drips from the eaves of a house. Old English was the language of England from shortly after the departure of the Romans in 410 CE until shortly after the invasion of the Normans in 1066 CE. The fact that an Old English term survives in a modern statute testifies to the fact that eavesdropping is not a creature of technology but of human nature. PRESENTED BY: Executive Leadership, LLC SPECIALIZING IN: Human Capital Transition and Executive Coaching - (908) 822-9655 WEBSITE: http://www.exec-leadershipLLC.com


If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.

CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).

EEOC Receives Record Number of Charges of Discrimination and Secures Highest Amount of Damages in FY 2011

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EEOC Receives Record Number of Charges of Discrimination and Secures Highest Amount of Damages in FY 2011 
November 21, 2011 
By Jeff Nowak 

Charges of employment discrimination filed with the Equal Employment Opportunity Commission (EEOC) hit another record level in 2011. According to the EEOC’s recently released annual Performance and Accountability Report, the EEOC received 99,947 charges of employment discrimination in fiscal year 2011 (Oct. 1, 2010, through Sept. 30, 2011), which is the largest number of charges ever filed in a fiscal year with the EEOC. Last fiscal year, 99,922 charges were filed with the agency. 
EEOC also revealed that it secured a record 10 percent reduction in its backlog of pending cases and $364.6 million in back pay and penalties paid to alleged victims of workplace discrimination. Notably, the EEOC’s mediation program also collected more than $170 million and resolved 9,831 cases, which is another record. 

What Can Employers Take From This Data? At a minimum, employers must grow accustomed to the EEOC’s continued emphasis on systemic discrimination as well as the EEOC’s approach to investigating charges of discrimination, many of which will result in constant pressure to timely respond to charges and information requests. 

Continued Spotlight on Systemic Discrimination 
For several years, one of the EEOC’s top priorities has been expanding the investigation of systemic discrimination, which has been defined as a “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.” The EEOC has reemphasized this priority in 2011. At the end of FY 2011, the EEOC was involved in 580 systemic investigations (over 100 more than a year ago), involving more than 2,000 separate charges. There also has been a steady increase in the number of Commissioner charges (47 this year; 39 last year), which are charges initiated by the EEOC, rather than a individual, to investigate discrimination by an employer. 
EEOC also continues to litigate according to its stated priorities. In FY 2011, the EEOC filed 261 lawsuits, which totals 11 more lawsuits than the previous year. This included a total of 177 individual lawsuits, 84 “multiple victim” lawsuits (i.e., under 20 charging parties) and 23 systemic discrimination lawsuits. Clearly, the EEOC’s interest in the Americans with Disabilities Act continues, as 80 of these lawsuits alleged violations of the ADA. The EEOC also reported that the remaining lawsuits included 162 Title VII claims, 26 Age Discrimination in Employment Act claims and 2 Equal Pay Act claims 

Continued Pressure to Respond to Discrimination Charges in Timely Manner 
Based on the EEOC’s own performance standards, it was expected to resolve 54% of its charges within 180 days. However, at the end of FY 2010, the EEOC had only processed 40.7% of its charges within 180 days. The EEOC blamed the delay on the pending backlog of charges, the increased number of charges and shortage of front line staff. Notably, FY 2011 ended with a pending inventory of 78,136 charges, which is a decrease of 8,202 charges from the year before. This is a marked shift in charge resolution, since decreased EEOC staffing in previous years contributed to significant levels of backlogged cases. According to the EEOC, backlogged cases increased steadily from 2000 to 2008 as the agency’s staffing level dropped nearly 30 percent during that period. Since 2009, however, the agency has added more than 200 employees to its staff. 
As a result of the EEOC’s own performance standards, employers should expect that the agency will exert even more pressure on employers to respond quickly to information requests. Likewise, the agency is unlikely to entertain requests for extensions of time to respond to a charge. Indeed, some EEOC offices have a longstanding policy of not granting extensions for the employer’s response to a charge. 

More Information 
Jeffrey S. Nowak jsn@franczek.com 312.786.6164 Franczek Radelet P.C. 300 S. Wacker Drive | Suite 3400 | Chicago, IL 60606 312.986.0300 | franczek.com

Related Practices 
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Copyright © Franczek Radelet P.C. All Rights Reserved. Disclaimer: Attorney Advertising. This is a publication of Franczek Radelet P.C. This publication is intended for general informational purposes only and should not be construed as legal advice




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If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.

CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).

When Employees Steal, The SEC May Punish The Company And The CEO

Please contact Keith Paul Bishop at Allen Matkins for more information kbishop@allenmatkins.com http://www.calcorporatelaw.com/ 

When Employees Steal, The SEC May Punish The Company And The CEO 
By Keith Paul Bishop on November 23, 2011

In this week’s issue of Compliance Week, Tammy Whitehouse writes about the SEC’s recent enforcement action against Koss Corporation and Michael J. Koss, its Chief Executive Officer and former Chief Financial Officer. According to the SEC’s complaint, Koss Corporation’s former Principal Accounting Officer and its former Senior Accountant, engaged in a wide-ranging accounting fraud to cover up the PAO’s embezzlement of over $30 million from the company. No one should be surprised to learn that the PAO has already pleaded guilty to six counts of wire fraud. The court ordered her to pay $34 million in restitution and sentenced her to 11 years in prison. The SEC also filed this complaint against the two employees. 

After discovering the embezzlement, Koss Corporation reported the occurrence to its shareholders and enforcement authorities. The company also amended and restated its financial statements for fiscal years 2008 and 2009 and the first three quarters of fiscal year 2010. The company is clearly the victim of a crime. It reported the crime and corrected its financial statements. According to the SEC, they also cooperated. Yet, the SEC filed a lawsuit against the company and its CEO. So why did the SEC feel compelled to punish the victims? 

The SEC charged Koss Corporation with filing materially false financial statements and failure to keep proper books and records. Mr. Koss was charged with aiding and abetting Koss Corporation (not the embezzlers). While apparently no one disputes that the books and records were wrong, the fault ultimately was with the two employees. For confirmation of this fact, one need look no farther than the SEC’s complaint which states: “The inaccurate financial statements, in turn, were based on inaccurate accounting records prepared by Sachdeva [the PAO] and Mulvaney [the Senior Accountant].” 

At its heart, the SEC is punishing Koss Corporation for not adequately maintaining internal controls to reasonably assure the accuracy and reliability of financial reporting. While the complaint details many deficiencies, it also makes it clear that the embezzlement required the involvement of two people and multiple methods to escape detection. Moreover, what is required is reasonable, not absolute, assurance. After a crash has occurred, one can almost always opine with confidence that more could have been done to prevent it. The cost-benefit calculus is decidedly more difficult before a crash when you don’t even know whether there will be a crash. 

The SEC also charged Mr. Koss with a violation of Rule 13a-14 for certifying the company’s Form 10-K and 10-Qs. The SEC alleged that Mr. Koss received certifications from the PAO but “did not conduct an adequate review of Koss’s accounting in connection with these certifications”. CEOs and CFOs should take note. 

This enforcement action is also noteworthy because the SEC forced Mr. Koss to reimburse Koss $242,419 in cash and 160,000 of options pursuant to Section 304 of the Sarbanes-Oxley Act. This bonus reimbursement, together with his previous voluntary reimbursement of $208,895 in bonuses to Koss Corporation represents his entire fiscal year 2008, 2009 and 2010 incentive bonuses. 
The SEC’s decision to prosecute this case is troubling. Surely, neither Koss Corporation nor Mr. Koss intended or wanted to be the victim of a criminal embezzlement. It is also hard to see how the shareholders’ benefited from the company incurring the legal costs associated with defending and settling the SEC investigation. While the SEC did force the return of bonus compensation, the injunctive relief ordering the company and Mr. Koss not to do this again strikes me as silly. Does it really make sense for the court to order a company not to be the victim of a theft? 

Not surprisingly, the company has disclosed in its annual report on Form 10-K that both a class action and derivative suits were filed against it. Koss Corporation has also sued its auditor and its bank. 
If you would like to own a piece of the PAO’s fraud, the U.S. Marshals Service has announced an on-line auction of the designer shoes, purses, and clothing that she purchased, including this Judith Leiber clutch handbag.


PRESENTED BY: Executive Leadership, LLC SPECIALIZING IN: Human Capital Transition and Executive Coaching - (908) 822-9655 WEBSITE: http://www.exec-leadershipLLC.com
If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.

CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).

A cornucopia of random employment law issues for your long weekend

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Employment Law Cornucopia - Happy Thanksgiving!
By Robin E. Shea on November 23, 2011

A cornucopia of random employment law issues for your long weekend


Lessons for employers from the Natalie Wood investigation. (OK, I admit this is a shameless tie-in designed to get you to read a legal blog over a holiday weekend.) But the reopening of the Natalie Wood drowning investigation after 30 years does contain a good lesson for employers -- to wit, that no matter how much time has passed, it's a good idea to go ahead and conduct whatever investigation is warranted, and even to re-investigate if appropriate. For example, suppose you learn about some workplace harassment but the accuser or the alleged "perp" is no longer with the company. Frequently the employer's reaction is, "What's the point? S/he's not even here any more." Contrary to this gut reaction, it is always a good idea to investigate allegations of wrongdoing even if one or both of the parties are no longer employed, and even if a lot of time has passed. For one thing, there may be other victims who are still working for you. It's also a good idea to reopen an investigation if you find that the original one was sloppy or otherwise flawed in some important way. At the very least, investigating the allegations whenever you learn of them will show your employees, plaintiff's lawyers, the EEOC, and the courts that you take allegations of misconduct seriously.

Dirty old men don't get love.
The U.S. Court of Appeals for the Third Circuit (Delaware, New Jersey, and Pennsylvania) has affirmed summary judgment for a steel company that fired some older workers for sending pornographic emails through the company system. Even though the workers alleged that management had made some age-related comments, the court found that they were "stray remarks" that were not tied to the termination decisions. Although some younger workers had not been terminated for misuse of the company email system, the court found that their circumstances were different -- for the most part, they had been passive recipients of dirty emails but didn't send them to others. In the case of one younger worker, he sent a single dirty email from his home computer. By contrast, the plaintiffs were sending each other dirty emails using the company system on a daily basis, the court said.

Favoritism ain't necessarily discrimination.
At least, not unlawful discrimination. We all have a tendency to think that any bias or unfairness in employment must be against the law. But as a recent case teaches, not all "bias" is illegal. For example, if the CEO hires his incompetent nephew to be your supervisor even though you are smarter, handsomer, and a much nicer guy than he is, the CEO has almost certainly acted legally. There is no law against that type of bias.

Have you hugged your evangelical Christian today?
There were two religious discrimination cases in the news this week, both involving evangelical Christians. The cases are a good lesson that
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the religious discrimination and accommodation laws apply to all -- even those who are considered by some to be part of the "majority."
Couldn't they have waited until day 667? In one case, an employee has alleged that he was terminated for refusing to wear a sticker touting the employer's 666 days without a lost-time accident. The employee considered the number "666" to be the "mark of the beast" described in the book of Revelations in the New Testament of the Bible and that he would be faced with eternal damnation if he wore it. (If that's not a sincerely held religious belief worthy of a reasonable accommodation, then I don't know what is.) Nonetheless, the employer -- an overzealous safety manager? -- fired him for refusing to wear it. Right now, all we have is the employee's lawsuit, and we have not heard the employer's side of the story. But if it's true, the employer has clearly violated its religious accommodation obligations under Title VII.

"Evolution mama, don't you make a monkey out of me." (Yes, that is a real song, and you can download an MP3 of it for only 69 cents!) Another evangelical Christian, an IT guy for NASA, is going to be allowed to go to trial on his claim that he was disciplined and demoted because he advocated the "intelligent design" theory of the origins of the universe. "Intelligent design" holds that the universe came about, not at random, but through an "intelligent force." The plaintiff is claiming that NASA took action against him because he discussed his views with his co-workers, and a California judge found that he had enough evidence to go to trial on his religious discrimination claims under the state Fair Employment and Housing Act.

Have a safe and happy Thanksgiving, everyone!
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 130 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.


PRESENTED BY: Executive Leadership, LLC SPECIALIZING IN: Human Capital Transition and Executive Coaching - (908) 822-9655 WEBSITE: http://www.exec-leadershipLLC.com
If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.

CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).

Take 5 - Views You Can Use - Labor & Employment - November 2011

FIRM:16886026v1
This issue of "Take 5" was written by Michael F. McGahan, a Member of the Firm in Epstein Becker Green's New York office.
Michael F. McGahan Member of the Firm New York mmcgahan@ebglaw.com 212-351-3768
The use by employees of communications media (including Facebook, blogs, and other social media, and employer-owned email systems) and traditional media (including television) continues to raise concerns for employers. In general, employers should keep in mind that, although a technology may be new, the old rules still apply. Here are five recent examples:
1. Facebook Posts by Employees Critical of Employer May Be Protected Activity Under NLRA
The National Labor Relations Board (“Board”) has generated a lot of publicity over its intent to issue complaints concerning the discipline of employees for their use of social media when that use constitutes concerted activity protected by the National Labor Relations Act (“NLRA”). Now, two Board administrative law judges (“ALJs”) have issued the first decisions on such complaints.
In the first case, Hispanics United of Buffalo, Inc., NLRB No. 3-CA-27872 (Sept. 2, 2011), the ALJ held that an employer had violated the NLRA by terminating five employees for posting on Facebook complaints about a co-worker’s criticism of their job performance. Even though the case arose in a non-union workplace, the ALJ found that the posting by an employee of her concern about the co-worker’s criticism, in which she solicited other employees to comment and which four employees did, constituted protected concerted activity. The ALJ emphasized that under the NLRA, employees have, in addition to the right to form or join labor organizations, the right to “. . . engage in other concerted activity for the purpose of collective bargaining or other mutual aid and protection.” As a result, the employer’s decision to terminate the five employees for that posting, which the employer admitted was the sole reason for the termination, violated the NLRA. The ALJ recommended that the Board order reinstatement with full back pay for the terminated
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employees. The ALJ rejected the employer’s defense that the Facebook posting violated the company’s anti-harassment policy.
In a separate case, Karl Knauz Motors Inc., NLRB No. 13-CA-46452 (Sept. 28, 2011), the ALJ found that a posting by an auto salesperson about an accident at a dealership at which he was not employed, but was owned by his employer, was not protected activity because it did not involve a discussion with other employees and had no connection with any of the employee’s terms and conditions of employment. Thus, the ALJ found that the employer’s decision to fire the salesperson for this posting did not violate the NLRA.
These two cases highlight the careful analysis that employers must now make before disciplining or discharging employees for what they post on the ever-multiplying forms of social media. Specifically, employers should determine the following:
a) Are the employees involved protected by the NLRA? (“Supervisors and managerial employees,” as defined by the Board, are not protected.)
b) Does the content of the posting involve terms and conditions of employment (such as wages, hours, benefits, or working conditions) or supervisors?
c) Does the posting involve co-workers, such as by soliciting their comments and/or support?
If the answer to all of these questions is “yes,” such postings may well be protected activity under the NLRA and any discipline imposed for the positions taken may be subject to challenge before the Board.
2. “New” Board Finds That Employer Violated NLRA by Disciplining Employee for Sending Union-Related Emails Through Company’s Email System
In this case, the employer maintained a policy prohibiting the use of its internal communications system to solicit or proselytize for commercial ventures, religious, or political causes or outside organizations or other non-job related solicitations. The employer knew that employees were sending and receiving personal emails, such as party invitations, baby announcements, offers of sports tickets, and the like, on the company’s email system, but it did not reprimand them for doing so. However, the employer disciplined one of its employees, who also was the president of the union representing its employees, for violating the policy by sending a union-related email to coworkers over the company’s email system.
In its initial decision in December 2007 (The Guard Publishing Co., 357 NLRB 1110 (2007)), the Board found that the employer did not violate the NLRA and had not discriminatorily enforced the policy. The Board held that in order to prove unlawful discrimination, the employer’s actions must involve the disparate treatment of activities or communications of a similar character because of their union or other protected status. The Board concluded that the fact that the employer had allowed employees to use its email system for purely personal purposes did not require it to allow employees to use it for union purposes.
On review, the U.S. Court of Appeals for the DC Circuit found that the employer had inconsistently enforced the company’s policy by disciplining the union official for using the company’s email system for union solicitation, while allowing employees to email non-union related messages of a personal nature. The DC Circuit Court noted that the company’s policy did not itself draw a distinction between personal and organizational solicitation. See
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Guard Publishing Co. v. NLRB, 571 F.3d 53 (DC Cir. 2009).
On remand, a “new” Board – one with a majority of three liberal democrats – accepted the ruling of the DC Circuit Court and held that the company violated the NLRA by discriminatorily enforcing the policy. See The Guard Publishing Co., 357 NLRB No. 27 (July 26, 2011).
Going forward, employers can expect that this Board will measure whether an employer has discriminatorily enforced email policies against union-related solicitations by examining whether a company has permitted the use of its email system for personal messages and solicitation, beyond the Board’s recognized exception for charitable solicitations under its “isolated beneficent acts” rule.
Of particular concern will be whether an employer can prohibit the use of its email system by employees to circulate pro-union solicitations during union-organizing campaigns. The new Board is likely to take the position that employers will violate the NLRA if they prohibit employees from using company email systems to circulate pro-union materials or discipline employees who do so while allowing the company email system to be used for personal messages. To avoid such a result, employers need to carefully draft email policies to prohibit the personal use of company email systems and to regularly and consistently enforce the policy. Some employers may determine that such a rule is undesirable or impossible to enforce. As an alternative, employers may consider implementing rules governing the use of company email systems that prohibit or limit the number of attachments to personal emails or that limit the number of addressees on personal emails. Of course, the employers will need to regularly and consistently enforce such rules.
3. Discussion of Wage Dispute in TV Interview Found to Be Protected Activity
The Board has found that an employer violated the NLRA by firing 26 employees after they appeared on a local TV broadcast during which they made statements that their employer believed misrepresented its products and pay practices. See MasTec Advanced Technologies, 357 NLRB No. 17 (July 21, 2011).
The Board found that the employees’ appearance on the TV program grew out of their opposition to a new compensation program implemented by their employer. The employees had protested to management, and, after they were unable to convince their employer to change the new policy, they decided to make their complaint public and contacted a local TV station. In the broadcast, the employees complained about the losses that the new pay system was causing them, and they alleged that they had been told to lie to customers to avoid charge backs to their pay under the system. The company terminated these employees after the interview was aired.
The Board found that there was no dispute that the employees’ conduct, involving a collective protest of a wage dispute, was activity protected by the NLRA. It is important to note that there was no union involved in the dispute. The issue before the Board was whether the statements were so disparaging of the employer that they lost the protection of the NLRA. The Board followed its longstanding rule that employee communications made to a third party in an effort to obtain his or her support are protected when the communication indicates that it is related to an ongoing labor dispute with the employer. However, the Board recognized that such statements lose the protection of the NLRA if they are disloyal, reckless, or maliciously untrue. In the Board’s view, statements are “maliciously untrue” if they are made with knowledge of their falsity or with reckless
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disregard for their truth or falsity.
In this case, the Board found that the employees’ statements to the media were accurate representations of what they had been told to tell customers and fairly represented their experiences with the new pay system. The Board concluded that the employer had violated the NLRA by terminating the 26 employees and ordered that they be offered reinstatement and given back pay.
It is easy to see the new Board applying the rule of this case to situations in which employees use any of the many forums available in social media to garner support for their complaints about their workplace. Employers faced with such use of social media by their employees will need to examine whether the posting constitutes activity protected by the NLRA before taking disciplinary action, and whether the nature of the posting, including the pictures and language used, are so egregiously disloyal, reckless, or malicious that the posting has then lost the protection of the NLRA.
4. The Workplace Is Still for Working: Employers May Promulgate and Enforce Rules Limiting Personal Use of Social Media During Working Time
Faced with a boom in the use of social media through increasingly smaller and more powerful personal devices (such as smart phones and iPads) and the personal use by employees of company-owned communication systems to access both the Internet and social networking sites, employers should update their policies to control such uses and ensure that their employees are spending their working time productively.
Two recent arbitrator’s rulings support employer actions in enforcing social media policies. In one case, the arbitrator ruled that the employer had “just cause” to terminate an electrician who tapped into the company’s Internet service to download first run-movies onto his own laptop while at work. The arbitrator found that the employee’s use of the company’s Internet system had violated company rules prohibiting theft or misappropriation of company property, the misuse of company property because the downloading of the movies was illegal, and the unauthorized entry into company property. Hayes International, 129 LA 559 (2011). In a second case, an arbitrator ruled that a federal agency had just cause to discipline an employee for playing computer games during working time, in violation of the agency’s policy. Federal Bureau of Prisons, 127 LA 686 (2011).
Although both of these cases involved labor arbitrations under union contracts, all employers should consider drafting and implementing policies specifically addressing the limits on employee use of the employer’s electronic communication systems. While specific provisions will vary from company to company, a social media policy should normally include the following:
• A written policy
• A signed acknowledgement form, including consent to monitoring and access to stored communications
• Definitions, e.g., “social media,” confidential and/or proprietary information, working time, Company-issued equipment/devices
• Fair, consistent monitoring and enforcement
• The scope of monitoring, e.g., viewing Facebook profiles of existing employees, monitoring use of social media on Company-issued equipment/devices
• Possible disciplinary actions
• Periodic redistribution
• Training
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• A clear process for reporting complaints/non-compliance
• A clear communication of prohibited activities
5. EEOC Cautions Employers on Using Social Media in Hiring Decisions
Surveys now reflect the tremendous increase in the use of social media to perform pre-hire background checks on employees. A survey cited in The New York Times reported that 75 percent of recruiters research candidates online, and 70 percent of recruiters report that they have rejected candidates on the basis of online information. BNA reports that, at an EEOC training workshop, Edward Loughlin, a trial attorney with the EEOC’s Washington, D.C., Field Office, noted that employers can access through social media a great deal of information that they could not access before and that social media might reveal information showing membership in protected classes. He cautioned that, in reviewing adverse actions in an employment claim, the EEOC will apply the same rules that are applied under traditional Title VII analysis, whether the information was obtained through social media or more traditional means.
Employers need to set guidelines for their HR staff on the use of social media in the hiring process. The guidelines should make clear that recruiters should not search online for information that they could not seek on an application or in an interview, such as race, age, religion, disability, union support, and any other class or activity protected by law. Since online searches may inevitably produce such information, guidelines and procedures that exclude such information from the decision-making process should be put in place. Employers may want to consider delaying such screenings to the post-offer stage.
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This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.


About Epstein Becker Green
Epstein Becker & Green, P.C., founded in 1973, is a national law firm with approximately 300 lawyers practicing in 10 offices, in Atlanta, Boston, Chicago, Houston, Los Angeles, New York, Newark, San Francisco, Stamford, and Washington, D.C. The Firm is uncompromising in its pursuit of legal excellence and client service in its areas of practice: Health Care and Life Sciences, Labor and Employment, Litigation, Corporate Services, and Employee Benefits. Epstein Becker Green was founded to serve the health care industry and has been at the forefront of health care legal developments since 1973. The Firm is also proud to be a trusted advisor to clients in the financial services and hospitality industries, among others, representing entities from startups to Fortune 100 companies. Our commitment to these practices and industries reflects the founders' belief in focused proficiency paired with seasoned experience.
© 2011 Epstein Becker & Green, P.C.


 PRESENTED BY: Executive Leadership, LLC SPECIALIZING IN: Human Capital Transition and Executive Coaching - (908) 822-9655 WEBSITE: http://www.exec-leadershipLLC.com
If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.

CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).

Thursday, November 24, 2011

Association of Corporate Executive Coaches (ACEC)

Association of Corporate Executive Coaches (ACEC) HR Human Resources

PRESENTED BY: Executive Leadership, LLCSPECIALIZING IN: Human Capital Transition and Executive Coaching - (908) 822-9655WEBSITE: http://www.exec-leadershipLLC.com
If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.
CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).
Among mid to senior level professionals Executive leadership LLC is the go to company for individuals and companies seeking human capital repositioning, development and/or growth through coaching, counseling, and strategic advice.
With her Fortune 500 business background, laser like precision, and a take no prisoners approach she swiftly narrows in on the issue, and unlike others, she presents financially sound, creative and action oriented solutions with infinite possibilities

The 22 Do’s and Don’ts for Successful Negotiations

The 22 Do’s and Don’ts for Successful Negotiations

PRESENTED BY: Executive Leadership, LLCSPECIALIZING IN: Human Capital Transition and Executive Coaching - (908) 822-9655WEBSITE: http://www.exec-leadershipLLC.com

If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.

CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).

Among mid to senior level professionals Executive leadership LLC is the go to company for individuals and companies seeking human capital repositioning, development and/or growth through coaching, counseling, and strategic advice.

With her Fortune 500 business background, laser like precision, and a take no prisoners approach she swiftly narrows in on the issue, and unlike others, she presents financially sound, creative and action oriented solutions with infinite possibilities

How social technologies are extending the organization

http://www.mckinseyquarterly.com/How_social_technologies_are_extending_the_organization_2888

How social technologies are extending the organization

Our fifth annual survey on the way organizations use social tools and technologies finds that they continue to seep into many organizations, transforming business processes and raising performance.

Companies are improving their mastery of social technologies, using them to enhance operations and exploit new market opportunities—key findings of our fifth annual survey on these tools and technologies, in which we asked more than 4,200 global executives how organizations deploy them and the benefits they confer.1 When adopted at scale across an emerging type of networked enterprise and integrated into the work processes of employees, social technologies can boost a company’s financial performance and market share, respondents say, confirming last year’s survey results.
But this is a very dynamic environment, where the gains from using social technologies sometimes do not persist, perhaps because it takes so much effort to achieve them at scale. Some companies, respondents indicate, reaped fewer benefits and thus became less networked, while a smaller percentage learned how to deploy these technologies to become even more networked. Executives say that their companies are using them to increase their agility and to manage organizational complexity. Many believe that if organizational barriers to the use of social technologies diminish, they could form the core of entirely new business processes that may radically improve performance.

Usage at scale and continued benefits
Social technologies as a group have reached critical scale at the organizations represented in our survey. Seventy-two percent of the respondents report that their companies are deploying at least one technology, and more than 40 percent say that social networking and blogs are now in use (Exhibit 1). These technologies are being deployed across sectors, at the high level of 86 percent of the respondents’ companies in high tech and telecommunications, but at 62 percent of companies even in the energy industry (Exhibit 2). Levels of reported benefits not only remain high when respondents’ organizations use social tools for internal purposes but have also increased among those that use them for communicating with customers or for integration with partners and suppliers (Exhibit 3).
The performance edge of networked enterprises
Last year, we identified a small group of respondents who indicated that their companies had experienced superior performance from the use of social technologies across key stakeholder groups. We repeated the analysis this year, looking at the average level of improvements in business benefits that executives reported. Four clusters emerge from our analysis. Executives at internally networked organizations note the highest improvement in benefits from interactions with employees; those at externally networked organizations, from interactions with customers, partners, and suppliers. Executives at fully networked organizations report greater benefits fromboth internal and external interactions. In the fourth and by far the largest group, developing organizations, respondents report lower-than-average improvements across all interactions at their organizations.2
As we found last year, the number of fully networked organizations is small. But the percentage of externally networked organizations is higher and that of internally networked ones lower (Exhibit 4),3 reflecting the fact that the gains from the use of social technologies are not static (see discussion below). We call the companies in the fully and externally networked groups extended enterprises, since their use of social technologies in customer and partner outreach blurs the boundaries of the organization.We found statistically significant correlations between self-reported corporate-performance metrics and certain business processes that networked enterprises use (Exhibit 5). The market share gains respondents report are correlated with two such processes. First, these organizations use social tools to scan external environments. Second, they use them to match employees to tasks: internal wikis and social networks help project leaders to identify employees with the most appropriate skills and to assign these employees to the projects for which they are best suited.
Another key performance measure, self-reported operating-margin improvements, correlated positively with the reported percentage of employees whose use of social technologies was integrated into their day-to-day work. Among the companies of respondents who took the survey in previous years, these improvements also correlated positively with gains in the reported percentage of employees whose work is highly integrated with social media. Market share leadership in an industry, the final self-reported performance measure, correlated positively with the integration of social tools in employees’ day-to-day work, as well. Consistent with last year’s analysis, we found that market leadership correlates negatively with fully networked and externally networked organizations. While market leaders may use social technologies within the organization, they might be less inclined than market challengers to push for a full range of benefits.
Notes2 As we did last year, we sorted the respondents into four clusters based on the average mean improvement reported across the different benefits when Web 2.0 is used in interacting with employees, customers, and external partners or any combination thereof. Fully networked enterprises are defined as those with an average improvement greater than 10 percent when Web 2.0 is used to interact with employees, customers, and external partners. Externally networked enterprises are those with a greater than 10 percent average improvement when Web 2.0 is used to interact with customers and external partners. Internally networked enterprises are those with an average improvement greater than 10 percent when Web 2.0 is used to interact with employees. The remainder of respondents work for what we classify as developing enterprises. 3 See Jacques Bughin and Michael Chui, “The rise of the networked enterprise: Web 2.0 finds its payday,” mckinseyquarterly.com, December 2010.


Networked organizations: Not a steady state
We also analyzed the responses of executives who participated in both the 2010 and 2011 surveys for changes in our defined enterprise clusters. According to these responses, a surprising number of organizations made the transition from one type of enterprise to another. Roughly half of the internally and externally networked enterprises slid back into the category of developing organizations; that is, they did not maintain the benefits of using social technologies that they had achieved earlier. Less than 15 percent of the companies in any given category moved up to the next tier—in other words, from a developing to a networked enterprise or from an internally or externally networked enterprise to a fully networked one (Exhibit 6). It appears that it is easier to lose the benefits of social technologies than to become a more networked enterprise, which suggests that significant effort is required to achieve gains at scale. We also found initial indications that if the percentage of employees who integrated social technologies into their day-to-day work declined, their companies were more likely to backslide.
Changing processes
We asked respondents about current and future uses of social technologies for a range of business processes and found that the greatest number say their companies use these tools to scan the external environment for new ideas. Respondents also report that different technologies are better suited to specific types of business processes, as the accompanying heat map shows (Exhibit 7). Social networking and blogs, in particular, are used most heavily in externally focused processes that gather competitive intelligence and support marketing efforts.
Respondents expect social technologies to modify many of their organizations’ current processes. In addition, many believe that entirely new processes could arise if barriers to use—cultural obstacles, for example—fall (Exhibit 8). The respondents affiliated with fully networked organizations are the likeliest to believe that greater process change will occur in their own organizations. In larger numbers than respondents in other clusters, they think that social technologies will lead their companies to adopt entirely new processes under current conditions and to do so even more aggressively if all constraints were removed. This optimistic view may reflect the fact that these respondents are seeing the greatest level of benefits across the board.
Peering ahead three to five years, many respondents expect still more profound organizational changes (Exhibit 9). They say that with fewer constraints on social technologies at their companies, boundaries among employees, vendors, and customers will blur; that more employee teams will be able to organize themselves; and that data-driven decision making will rise in importance.
Looking ahead
  • Our research shows that respondents affiliated with fully networked organizations say that they continue to realize competitive gains and performance improvements. Senior executives should think strategically about how social technologies can support business processes by helping organizations to navigate the external environment and to forge stronger links with customers and vendors. Integrating social technologies into the workflow and using them to optimize internal processes will, these results suggest, provide additional competitive benefits.
  • Don’t rest on your laurels: competition will increase as the adoption of social tools and technologies continues to rise and as progressive companies use them to improve their processes. Indeed, many companies we categorized as networked organizations last year slipped to a lower rung this year as the benefits their executives reported fell. Integrating Web technologies into the daily workflow, our results suggest, is the most effective way to maintain competitive position or become more networked.
  • Companies should prepare for more substantial disruptions. Since many executives believe that significant changes will occur as (or if) constraints on social tools and technologies are lifted, companies that can create change themselves—instead of reacting to it—are likely to benefit the most.
  • About the Authors
Jacques Bughin is a director in McKinsey’s Brussels office; Michael Chui is a senior fellow of the McKinsey Global Institute and is based in the San Francisco office.
The authors would like to thank Angela Hung Byers for her contribution to the development of this article.


PRESENTED BY: Executive Leadership, LLC SPECIALIZING IN: Human Capital Transition and Executive Coaching - (908) 822-9655 WEBSITE: http://www.exec-leadershipLLC.com. 
If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.
CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).

Wednesday, November 23, 2011

We're Hiring Many business schools have trouble filling faculty positions

By BETH GARDINER
Reprint from the WSJ: http://online.wsj.com/article/SB10001424052970204224604577032232809553166.html?mod=WSJ_Careers_CareerJournal_4&_nocache=1322107548493&user=welcome&mg=id-wsj

When it comes to hiring, business schools are running up against one of their most basic classroom lessons—the law of supply and demand.

While thousands of new schools have opened around the world in recent years, the number of new Ph.D.s in business subjects has held relatively steady, and many schools are now facing a serious shortage of well-qualified faculty.

For top institutions in the U.S. and Western Europe, it has mostly meant a jump in the salaries that professors with strong research records can command. But some less-wealthy schools in the West, and many B-schools in the developing world, are having real trouble filling teaching posts. Often, the jobs remain vacant or are filled by visiting or part-time faculty, or by moonlighting businesspeople without doctorates.

"Every year we have about eight to 10 posts to fill in accounting and finance," two areas where the shortage is most severe, says Sue Cox, dean of Lancaster University Management School in England. Three senior posts have been vacant for years, she adds. "It seems to me that we're perpetually advertising" to fill top positions. "It's always the first thing on your mind."

Visiting schools around the world in work for two of the big accreditation bodies, Ms. Cox says she hears about the dearth of academically trained teachers constantly. "It's a universal problem," she says.

At Brunel Business School in London, about 10 faculty posts are empty at any given time, says Zahir Irani, the school's head. Those with the right qualifications know their value, and often pit potential employers against one another.

"I've had many cases where people will sign the contract and then never turn up" because they've gotten a better offer, he says. "Three weeks before you expect them to arrive, you get an e-mail saying 'Thank you, but I'm not coming.' "

For a school to maintain accreditation with the Association to Advance Collegiate Schools of Business, at least half of its courses must be taught by Ph.D.-holding faculty who are active researchers. Widely publicized rankings also use professors' research output to help measure a school's quality.

While many deans say students can learn much in courses taught by businesspeople without Ph.D.s, advocates of the traditional academic model say that without a critical mass of professors who are pushing forward the boundaries of business thinking, institutions can't give students the intellectual skills to thrive in a fast-changing economy.

In many places, "the balance is out of whack," and B-schools with too few research-minded faculty have become little more than trade schools, says AACSB President John Fernandes.

But he says the mismatch between the dribbling Ph.D. pipeline and the burgeoning hiring needs of new B-schools is so great, particularly in emerging economies, that it will be near impossible for the sector to sustain the old approach of relying on teachers who are deeply engaged in business research.

"Is this model doable in the U.S., never mind the global context?" he asks. "The answer is definitely no."

Instead, he argues, the schools will have to find ways to expose greater numbers of students to each research-oriented professor. That is likely to mean increasing class sizes, using less academically minded teachers as intermediaries between students and Ph.D.-holding faculty, or connecting students and professors electronically.

Increasing the number of business Ph.D.s is also crucial, he says, but it won't be enough.

The AACSB estimates there are now 14,000 business schools in the world, thousands of them new institutions in regions like Asia, Latin America and Eastern Europe. Only a few run doctoral programs, which are expensive and require intensive involvement by senior faculty.

More than half of the 2,000 or so business Ph.D.s who graduate each year come from American schools, and many are hired abroad. Under tough budget pressures, some U.S. universities have reduced their production of Ph.D.s, says Richard Sorensen, dean of the Pamplin College of Business at Virginia Tech. And most business students just don't seem interested in forgoing private-sector salaries to pursue academic careers, many deans say.

A wave of retirements of faculty hired as business schools expanded in the 1970s and '80s is exacerbating the problem, Mr. Sorensen says.

In fast-growing economies like India's, the gap between the need for solid management training and the supply of qualified teachers is particularly large.

The Indian School of Business in Hyderabad, one of the country's top B-schools, relies heavily on visiting faculty from Europe and the U.S. because it is unable to hire enough professors with doctorates, says Senior Associate Dean Sanjay Kallapur.

The school has only been able to attract professors of Indian origin, and that pool is far too small, Mr. Kallapur says. And ISB cannot compete with the salaries offered by B-schools in richer countries.

If it had the faculty, Mr. Kallapur says, his school could easily attract enough students to double in size.

The shortage also limits ISB's research reach. "There are so many problems here waiting to be studied," he says. "There are so many things that people are even willing to fund us to do but we have to say no because we don't have the faculty."

It's international growth that has made the market so tight. The China Europe International Business School in Shanghai wants to expand its faculty by 30 in the next three years, says Dean John Quelch, who himself came from Harvard Business School.

CEIBS hired a London headhunting firm to approach 150 European business professors about applying for jobs, Mr. Quelch says. And this year, the school helped sponsor a professors' conference in Texas, emblazoning its logo on attendees' hotel room card keys to raise its profile. That's led to a surge in job applications.

But most of China's scores of new business schools don't have CEIBS's resources, and they are struggling to hire quality faculty, Mr. Fernandes says.

Working with the AACSB, a handful of American B-schools have begun training professors with degrees in nonbusiness fields like psychology, sociology and economics to teach in business schools.

The effort is producing about 60 new business professors a year, says Mr. Sorensen, whose school trains about 10.

In the meantime, salaries are skyrocketing. For a nine-month-a-year job, Virginia Tech offers between $140,000 and $160,000 to new business Ph.D.s, two to three times what it pays starting professors in other fields, Mr. Sorensen says.

For universities unable to pay that premium, attracting good faculty is a struggle, says Brunel's Mr. Irani. And with the Ph.D. pipeline so small, he sees little hope of things easing. "If you take a long-term view, it's a bleak picture."

Ms. Gardiner is a writer in London. She can be reached at reports@wsj.com.

PRESENTED BY: Executive Leadership, LLC SPECIALIZING IN: Human Capital Transition and Executive Coaching - (908) 822-9655 WEBSITE: http://www.exec-leadershipLLC.com
If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.
CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).
Among mid to senior level professionals Executive leadership LLC is the go to company for individuals and companies seeking human capital repositioning, development and/or growth through coaching, counseling, and strategic advice.
With her Fortune 500 business background, laser like precision, and a take no prisoners approach she swiftly narrows in on the issue, and unlike others, she presents financially sound, creative and action oriented solutions with infinite possibilities

Friday, November 18, 2011

How to Write an Employee Handbook: A Sweeping Novel or a Short Story?

GRAND RAPIDS | HOLLAND | LANSING | MUSKEGON | SOUTHFIELD | STERLING HEIGHTS
wnj.com

How to Write an Employee Handbook: A Sweeping Novel or a Short Story?
11/15/2011 Steven A. Palazzolo

There are as many different types of employee handbooks as there are different types of employers. Some run 70 or 80 pages and have a rule for everything. And then there are the bare-bones handbooks that only contain a few company policies. There is no right or wrong way to write an employee handbook. In fact, there is no law that requires you to have one at all. Still, I think every employer should write one. It is just a good idea and might even help you if you get into legal trouble. Below, I’ve condensed a series of blog postings on writing an employee handbook. I got the idea of blogging on the topic after a client suggested the best way to put together an employee handbook is to write it as if you were writing it for your own company. My company? I never actually thought about writing a handbook that way. Until now. Let’s call my fictitious company Zo’s. And because I’m a lawyer, let’s assume it is a service company rather than a manufacturing company. So, let’s write a handbook. INTRODUCTION The first thing I’ll include is an introduction, which sets the tone for the company. It may be light, like mine is going to be, or more formal if that is your corporate culture. It also gives us a chance right up-front to introduce the at-will concept. That is, you want to be able to let employees go for any reason or for no reason and with or without notice. And you want to tell them this a non-threatening way. Not that you will ever fire someone without a reason, but why give away your right to do so? WORK RULES Page two of my handbook is going to contain “The Rules.” Here are the rules we expect you to live by here at Zo’s:

Rule 1: Be professional.

Rule 2: When doing your job or anything else at work, see Rule 1.

That’s it. Two rules that we expect you to follow whenever you are representing the company, dealing with a client or with each other, or just doing your job. By “Be professional” we mean use that good judgment we know you have, always be honest, reliable and committed to doing your best. Be a team player and take personal responsibility for your actions. These two simple rules cover everything you do at work. Thinking of starting a romantic relationship with a coworker? See Rule 1 and think again. Thinking of harassing someone? Is that really professional? See Rule 1. Want to exaggerate the performance of the company’s products in an Internet chat room? Rule 1 again. For the record, I borrowed these rules from the Tribune Company handbook way back in the Spring of 2008. You can see the article here. I defy you to find a situation that Rule 1 and Rule 2 won’t cover. EEO POLICY Page three is our Equal Employment Opportunity (EEO) policy. You need to have a policy like this to provide at least some protection if you have a charge of discrimination filed against you. So this particular policy is going to read a bit more like it was written by a lawyer. Mine reads like this:
It is the policy of Zo’s that no employee or applicant for employment, will be discriminated against based upon age, race, color, creed, religion, sex, sexual orientation, national origin, disability, veteran status or other protected class or characteristic established under applicable federal, state or local statute or ordinance. Zo’s will not condone, permit or tolerate discrimination as described above. Persons who engage in such discrimination will be subject to appropriate discipline up to and including termination of employment. If you feel you have been subjected to discrimination, or have witnessed any discrimination, please report it immediately to your supervisor, HR or straight to Zo. Any complaint of alleged discrimination will be carefully investigated. Should there be any violation of this policy, appropriate actions will be taken to correct the matter. Zo’s will not tolerate retaliation against anyone who in good faith lodges a complaint under this policy.
Here are a couple of additional things you should know. First, sexual orientation, which is included in the list of things we won’t discriminate against, is not a protected category under Michigan or federal law. But we include it anyway at Zo’s because we think it is the right thing to do. Second, you don’t need to allow people to report directly to the owner of the company, but you do need to give employees at least a couple of options.
ANTI-HARASSMENT POLICY While there is no statute that specifically requires you to have an anti-harassment policy, the U.S. Supreme Court says that if you want to take advantage of a certain defense to a sexual harassment charge, you have to have a policy. And when the Supreme Court says we think it is a good idea that you have a policy, we lawyers tend to agree. One more thing to keep in mind is the title. I like something like “Policy Against Harassment.” Do not call it a “Harassment Policy.” The former makes if clear you won’t condone harassment, the latter makes it sound like you allow harassment as long as you do it by the rules. It is also a good idea to make sure employees know you won’t tolerate harassment based on any protected category, not just sex or gender. The kind of harassment we are talking about in this policy is harassment based on one of the protected categories. What about a boss who continually and forcefully reminds employees to do their jobs? That doesn’t count as harassment. TECHNOLOGY POLICY At Zo’s, everyone has a computer, e-mail account and unlimited access to the Internet. And that, as you know, can cause some problems. We need a computer use policy. And at Zo’s, “computer use” includes how you use your e-mail account, the Internet and social media. So our computer use policy is going to say that Zo’s can monitor use of company-provided computers and computer systems, including e-mail. In addition, my policy will contain a reference to Section 7 of the National Labor Relations Act – even though Zo’s is a non-union employer. Basically, the National Labor Relations Board says a social medial policy that broadly prohibits employees from doing things like making disparaging remarks about the company is a violation of Section 8(a)(1) of the NLRA. And that is true if you are a union employer or not. SOCIAL SECURITY PRIVACY At Zo’s we also have a Social Security number privacy policy because Michigan has a SSN privacy policy law. So here is what it says:
Zo’s understands the importance of protecting the confidentiality of its employees’ Social Security numbers and those collected in the ordinary course of Zo’s business. Neither Zo’s nor any of its employees will unlawfully disclose Social Security numbers obtained during the ordinary course of business. Zo’s will limit access to information or documents containing Social Security numbers to those employees who need the information to do their jobs. In addition, Zo’s will shield Social Security numbers displayed on computer monitors or printed documents from being easily viewed by others. Unless required to do so, Zo’s will not use Social Security numbers as personal identifiers, permit numbers, license numbers, primary account numbers or other similar uses Zo’s may use a Social Security number to perform an administrative duty related to employment, including, for example, to verify the identity of an individual; to detect or prevent identity theft; to investigate claims; to perform a credit check, criminal background check or driving history check; to enforce legal rights; or to administer benefits programs. All provisions of this policy are subject to the language of the Social Security Number Privacy Act of the State of Michigan.
MISC. POLICIES I also would include a policy on solicitation and distribution of literature. We could argue about this one way or another, but I think it is a good idea to say that we want to keep these sort of non-work disruptions to a minimum. If you want to sell Girl Scout cookies for your daughter, do it on your breaks and make sure the people you are pestering are on break, too. And that is it for my small company. Zo’s isn’t big enough for a Family Medical Leave Act policy, but your company may be. How about leaves of absence? We will deal with them as they come along. Other types of policies that larger companies might want to consider deal with time off, personal relationships, attendance policies, drug testing and holiday pay. If you employ hundreds of people, you also might want to consider a workplace violence policy. But if you need to tell people they can’t hit or threaten co-workers or bring a weapon to work, you might want to rethink your hiring practices. I think we can always fall back on Rule 1: Be professional.

Steven A. Palazzolo is a labor lawyer with the Michigan law firm of Warner Norcross & Judd LLP. You can contact him at spalazzolo@wnj.com or 616.752.2191. Read Steve’s blog at http://zomichiganemploymentlaw.wnj.com.


PRESENTED BY: Executive Leadership, LLC SPECIALIZING IN: Human Capital Transition and Executive Coaching - (908) 822-9655 WEBSITE: http://www.exec-leadershipLLC.com

If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.

CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).

Among mid to senior level professionals Executive leadership LLC is the go to company for individuals and companies seeking human capital repositioning, development and/or growth through coaching, counseling, and strategic advice.

With her Fortune 500 business background, laser like precision, and a take no prisoners approach she swiftly narrows in on the issue, and unlike others, she presents financially sound, creative and action oriented solutions with infinite possibilities