As promised, here’s the PPT from my keynote at the 2012 Alabama State Conference earlier today.

Thanks again for all the absolutely fantastic participation today — hope you enjoyed it and learned a few things!

As promised, below is the Blawg’s new and improved 2012 Employment Law Tool Box. Open it up and you’ll find loads of helpful (and free) tools to help you avoid court and/or jail, including:

• a glossary to help decode the alphabet soup of employment laws;
• cheat sheets on every major employment law;
• an overview of the interplay among the ADA, FMLA and WC;
• an investigation checklist;
• termination tools;
• an overview of wage and hour basics;
• tips on avoiding retaliation;
• a sample social media policy; and
• tools for reducing legal fees.

If you’d prefer the Tool Box in a pdf format, click here. And, as always, please keep our official disclaimer in mind.

On Monday, a federal court rejected the NLRB’s new expedited union election rules on the grounds that the Board lacked a quorum when they were passed.

Yesterday, the NLRB announced that it has “temporarily suspended” the rules, which had taken effect on April 30.

Two Out of Three Ain’t Enough

The court’s decision began with a rather interesting quote:

According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.

The court found that only two of three sitting Board members actually cast a vote to adopt the rule in December 2011. Republican member Brian Hayes voted against a prior version of the rules but refused to participate in the final vote.  As such, the NLRB lacked the authority to act.

What’s Next?

For now, union elections will proceed under the old rules. The court noted, however, that nothing prevents the NLRB from voting on the rules again.

Board Chair Mark Pearce said the NLRB is reviewing the decision and considering its next move. “We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” he said. “We are determined to move forward.”

Stay tuned.

Thanks again to all the fine folks at SHRM for the invite!

If you’d like the Blawg Tour to consider swinging by your town, please email Mary Ann Lasky at maryann.lasky@manpowergroup.com.

Yesterday, we discussed the very latest on employers demanding Facebook passwords as part of the hiring process. Last week, we provided a real-life example illustrating why employers should never use social media for nefarious purposes.

Today, we’ll tell you everything else you need to know.

Who’s Doing What?

Let’s start with who’s actually doing what out there.

Here are some rather eye-popping stats on how employers are REALLY using SM:

• 73% of employers do absolutely no SM training
• 56% block access to some SM sites
• 45% use SM to screen candidates
• 25% discipline for excessive SM use
• 19% ban SM entirely

What SM are employers actually using for all of this activity? LinkedIn is king:

• LinkedIn 95%
• Facebook 58%
• Twitter 42%
• Professional Sites 29%
• MySpace 3%
• Foursquare 1%
• Second Life 1%
• Others 6%

And what are employers finding? Bad stuff outweighs good stuff by nearly a 2-1 margin:

• Bad Stuff (35%)
• 53% inappropriate photos/info
• 44% drugs/alcohol
• 35% disparaging comments
• 29% bad communication skills
• 26% discriminatory comments
• 24% lies about experience
• Good Stuff (18%)
• 50% good personality
• 39% strong qualifications
• 38% creativity
• 35% good communication skills
• 19% valid references
• 15% awards/accolades

(Sources: SHRM, Clearswift, DLA Piper, Cisco, Mindflash)

Same Old Laws

So, there’s clearly a lot of activity out there. Here’s a question …

True or False? None of the laws that apply in the real world apply in the social media universe and therefore I can completely lose my mind and absolutely anything goes.

Umm, false. But, unfortunately, that’s the way lots of managers and employees act when it comes to cyberspace.

• Discrimination
• NLRA
• FCRA
• GINA
• Negligent Hiring
• Off-duty Conduct
• Arrest & Conviction Record
• Everything Else

Same Old Test

People want to over-complicate the above laws as they apply to SM. Basically, though, it’s the same old boring test. Here it is:

JOB-RELATED
JOB-RELATED
JOB-RELATED

In other words, if you’re using SM as part of the hiring process, pick the best qualified candidate based on the job’s essential functions.

If you’re using SM to discipline or fire someone, rely only on factors that are actually relevant to an individual’s job performance.

Stay Out of Court Basics

Here are five basic things employers can do right now to avoid legal hot water:

1. Know the Law. Most of the employment laws were passed decades ago in a world where Twitter would have been absolutely unimaginable. There’s a lot of catching up to do. It’s now more important than ever to stay on top of the law — it changes approximately every 0.3 seconds. My suggestion: read this Blawg at least every 0.2 seconds to keep up.
2. Adopt a Reasonable Policy. Lots of employers have no SM policy. Most policies that are in place are out-of-date. Next week, we’ll do an entire post on how to craft the perfect SM policy. Until then, here’s our handy SM starter kit.
3. Consistently Enforce the Policy. Of those few employers with up-do-date policies, verrrrrrrry few actually enforce it consistently. Failure to do so could result in discrimination claims, lead to lose of trade secrets, clients and all kinds of other bad stuff.
4. Don’t Intercept, Steal or Deceive. Employers continually get themselves in trouble by being deceptive in cyberspace, as we discussed here. The government, judges and juries hate that. Please never use SM for nefarious means. That includes intercepting employee communications while they’re being made, stealing employee passwords and paying a blogger to hawk your goods or services but failing to disclose it.
5. Train Train Train. Let’s repeat the very first stat discussed above. A whopping 73% of employers do absolutely no SM training. If you take nothing else away from this post, please please please train your managers and anyone else who uses SM on what your now-up-to-date policy says. Educate your peeps BEFORE there are issues.

More To Come

Stay tuned to the Blawg for more SMishness, including a step-by-step guide to how to use SM in the hiring process and how to build the perfect SM policy.

Last week, I was interviewed by our local CBS affiliate to discuss whether this is a practice employers should consider. Here’s my one-word answer:

NO*

It’s hard enough to find talent these days without giving candidates the impression right off the bat that your company is Big Brother-esque. Believe it or not, candidates might not think too highly of a prospective employer that demands access to their social media accounts in order to dig around in hidden photos, emails and other private info.

*The only exception I can think of would be for certain government agencies that protect the public (e.g., police, Secret Service, etc.).

Facebook Takes a Stand

Facebook itself is getting involved. It issued a warning to employers who demand passwords: “We’ll take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action.”

It also warned users: “You shouldn’t be forced to share your private information and communications just to get a job. And as the friend of a user, you shouldn’t have to worry that your private information or communications will be revealed to someone you don’t know and didn’t intend to share with just because that user is looking for a job.”

But Is It Illegal?

Technically speaking, probably not in most states. However, Maryland recently passed a new law forbidding the practice. The federal government and several other states are considering similar legislation. Also, a pair of U.S. Senators have asked the Department of Justice to investigate whether it violates federal law. You can bet the recent fury will only fuel those efforts.

Employees Share Too Much Anyway

Eric Meyer of The Employer Handbook recently posted a batch of interesting data culled from a Consumer Reports study indicating that employers don’t really need Facebook passwords — employees already share waaaaaaay too much. Two startling stats:

• 13 million Facebook users have never bothered to use its privacy tools
• 28% share virtually everything on their wall with an audience wider than their friends

Further complicating things is the fact that 4.7 million Facebook users “liked” a Facebook page related to health conditions. As Eric points out, stumbling across such info could open up employers to ADA or GINA issues. Plus, a whole lot of what employers might find on Facebook is flat-out fake. 25% of Facebook users admit they falsify info they put in their profiles.

The Bottom Line

My advice? It’s simple: Just don’t do it.

Tune in tomorrow when I’ll post our latest and greatest tips for recruiting in the social media universe.

As promised, here’s our official list of the 50 errors made by the HR “professional” in the video. Anyone who spotted an error that doesn’t appear on this rather exhaustive list will win a valuable prize. Just leave a comment below.

VIDEO ANSWER KEY

1. Not realizing that she was interviewing a celebrity who’s been dead for more than three decades
2. Unprofessional clutter on the desk
3. Unprofessional attire
4. Not getting up to greet or shake hands with the candidate
5. Offering the candidate food during the interview, thereby rendering many of his answers unintelligible
6. Not reading the resume in advance
7. Mispronouncing the candidate’s name
8. Allowing only five minutes for the interview
9. Asking where the candidate lives
10. Asking him if his residence is a halfway house
11. Ignoring a gap of more than thirty years in employment
12. Invading the candidate’s personal space
13. Bad-mouthing the company
14. Using unprofessional language (“craphole”)
15. Demeaning the company’s production process
16. Asking the candidate if he’s married
17. Flirting with the candidate
18. Exposing an “I’m Single” T-shirt
19. Asking the candidate’s birthdate
20. Making an age-ist comment (“You are remarkably well preserved”)
21. Inquiring about the candidate’s national origin
22. Making an ethnic joke (“Is that why you’re Hung-a-ry all the time?”)
23. Pre-offer drug testing
24. Ignoring the candidate’s suspicious behavior when informed of the drug test
25. Not allowing the candidate to leave when he freaked about the drug test
26. Saying that drug tests are conducted only to scare off “lowlifes”
27. Asking the candidate if he’s “in the reserves”
28. Implying that reservists don’t have regular attendance
29. Ignoring the fact that the candidate’s only reference is dead
30. Failing to check references
31. Unprofessional gum chomping and blowing a bubble
32. Asking about pending arrests
33. Asking about worker’s compensation claims
34. Asking about disabilities
35. Showing displeasure at the candidate’s facial twitch
36. Telling the candidate not to twitch in front of clients
37. Looking for candidates for only a week
38. Finding the candidate to be qualified despite his utter lack of skills and experience
39. Making a demeaning comment about another candidate
40. Discriminatory anti-pregnancy comment (“she looked like she was about ready to pop”)
41. Offering the candidate on the spot
42. Giving the candidate a high-five
43. Not following company policies
44. Insufficient job-related questions and numerous job-unrelated questions
45. Lack of open-ended questions
46. Talking more than the candidate
47. Taking no notes except birthdate
48. Not describing any of the pertinent details of the job
49. Ignoring the candidate’s theft of company property (the donut bowl)
50. Not using ManpowerGroup to help find the right talent the right way

As for the number of donuts I crammed into my mouth during the filming of this video, the correct number is 83. Please don’t try that at home.

To pass on all that accumulated “worst practices” knowledge, we assembled the following educational video. It features an HR “professional” who commits a multitude of mistakes that could get her in legal hot water.

You get to play lawyer. Watch the video, ignore the lame acting (especially mine) and see how many errors you can spot. (Hint: there are at least 50.)

We’ll post the answer key tomorrow. As a bonus, see if you can guess how many donuts I shoved into my mouth during the filming of the video.

Enjoy!

Mark

Facebook Fakery Found False

A high school principal in Clayton, Missouri allegedly set up a fake Facebook account under the name “Suzy Harriston” to help her spy on students. ”Suzy” said she was from Clayton, put up a profile picture featuring a bunch of penguins and started posting status updates and doing other seemingly normal Facebook-ish things.

Suzy quickly attracted more than 300 Facebook “friends,” many of them students. Everything seemed fine.

But then one day a former Clayton High School quarterback posted a rather bold accusation: “Whoever is friends with Suzy Harriston on Facebook needs to drop them. It is the Clayton Principal.”

Suzy immediately disappeared from Facebook. The next day, the school announced that the principal was taking a leave of absence.

It all came to a head last Friday when the school board held a closed session meeting to discuss the issue. Shortly thereafter, the principal resigned. The school said nothing other than a brief statement that it and the principal had a “fundamental dispute concerning the appropriate use of social media.”

Truthfulness and Trust Trump Trickery

It’s never ever a good idea for employers, bosses or anyone else in authority to “spy” or use other subterfuge in the social media (SM) universe. Here are some basic SM rules to help you stay out of trouble:

• Every employer should have a policy that makes it clear what is — and isn’t — OK in the SM world. Here’s our handy SM starter kit, including several sample SM policies and other best practices.
• Few employers know that the following are potentially unlawful: (1) obtaining employee SM passwords using any form of deception and/or theft, (2) intercepting employee communications while they’re being made and (3) failing to disclose that a blogger hawking your products or services is actually paid by you.
• One question that continues to keep popping up in this context is: Should employers demand Facebook passwords as part of the hiring process? My answer: NO. Here’s why.

The bottom line is that using ANY form of deception in the workplace is never a good idea. Be truthful and trustworthy at all times or you just might face termination.

A Different Kind of Webinar

We’re going to do something a bit different with this webinar. Rather than listen to me blah blah blah the entire time, you’ll get a chance to hear what other far-more-interesting experts have to say about the world’s hottest employment law topics. I’ll MC, provide color commentary, conduct contests for valuable prizes and keep things moving at a rapid-fire pace to make sure you stay awake.

We Need YOU

We can’t do it without you. Please let us know what YOU want us to talk about. Leave a comment below, tweet me (@manpowerblawg), text me (414/751-0126) or email me with topics you’d like us to discuss. We’ll pick the very best ones to make sure you get your money’s worth (please keep in mind that our webinars are free).

As always, thanks for your participation!