Are you doing enough to prevent breaches of protected health information?

HIPAA violations can have serious legal consequences.

Case in point: A federal grand jury has indicted a former employee at the University of Pittsburgh Medical Center for allegedly stealing patient data. The defendant disclosed to other people the names, birth dates and Social Security numbers of patients – information later used to file false tax returns. The law carries of maximum sentence of 80 years in prison, a fine of more than $4.7 million, or both.

In another case, a former researcher at the UCLA School of Medicine has been sentenced to four months in federal prison for HIPAA violations. Upon learning that he was being dismissed from his job, the UCLA employee accessed the medical records of his superior and coworkers, as well as more than 320 patient records (many of them celebrities) during the following four weeks. Charges were filed in 2009 and the defendant pleaded guilty in early 2010 to four misdemeanor counts of illegally reading private and confidential medical records.

Not only do these cases demonstrate the long reach of HIPAA enforcement, but also the importance of bumping up security and other safeguards to prevent these types of medical data breaches.

What is a breach?

A breach occurs when 1) there has been “unauthorized” access, use or disclosure of “unsecured” PHI that violates the HIPAA Privacy Rule, and 2) the disclosure “compromises the security or privacy” of the PHI, which means that it “poses a significant risk of financial, reputational or other harm to the individual.”

What is “unsecured” PHI?

The rules define “unsecured” PHI as any information that has not been rendered unusable, unreadable or indecipherable to unauthorized individuals through the application of a technology such as encryption and destruction.

Encryption - Proper encryption should use an algorithmic process to transform data into a form that is meaningless without a confidential process or key (which also must be protected).

Destruction - Hard copy PHI, such as paper or film, needs to be thoroughly shredded or destroyed so that it cannot be read or reconstructed.

How do I protect my business?

To steer clear of HIPAA violations and breaches, you should:

Establish breach notification procedures and update policies - Develop guidelines for determining when a breach has occurred, who will prepare individual notifications, and when a breach will trigger a requirement for notice to the media or immediate notice to HHS. Amend your HIPAA privacy and security policies, too, to cover the security breach notification rules.

Maintain a breach incident log - Set up a system to log security breaches affecting fewer than 500 individuals, which you must file with HHS within 60 days after the end of the year.

Revise business associate agreements - Discuss with your business associates (and put in writing) when they should notify you of a breach by their organization, what information should be reported, and which party will issue the required notifications.

Train employees on proper procedures - Employees should understand when they have encountered a breach and how to report it. A successful training program will provide formal instruction on HIPAA-related policies and procedures, as well as build awareness through workplace postings and other employee materials.

Are you doing enough to prevent breaches of protected health information?

Operation "Email cleanup" - Purging the profanity before you hit 'Send'

Got a potty mouth? If you work for Goldman Sachs Group Inc., you’ll need to clean it up and edit out the expletives in your email exchanges.

After an embarrassing slip of the tongue received national attention in recent Congressional hearings, Goldman Sachs is now prohibiting employees from swearing in emails.

For the New York company, this means 34,000 traders, investment bankers and other employees must now avoid a vast vocabulary of dirty words often uttered on Wall Street. Goldman Sachs’ disinfected communications policy will be carried out by screening software, which detects and flags common swear words and acronyms.

Goldman Sachs’ no-swearing policy extends to instant messages and texts from company-issued cellphones and emails. Inappropriate emails could make their way to the compliance department, while others might be blocked completely, depending on the severity of the language.

A Goldman spokeswoman said: "Of course we have policies about the use of appropriate language and we are always looking for ways to ensure that they are enforced." WSJ.com

Goldman Sachs is not the only employer taking a stand against off-color communications. This past June, Citigroup told employees in a memo that "recent headlines involving inappropriate emails are an important reminder to 'think before writing, read before sending'. Citigroup doesn’t enforce any formal discipline, but chronic swearers may be approached by their managers and asked to clean up their language.

Another company concerned about profanity-peppered communications is New York-based media company Bloomberg LP. It claims to have monitored emails for more than 10 years with an application that scans messages for 70 profane words and phrase - in English and several other languages.

What about your company? Do you have a formal policy prohibiting swearing in email communications? Do you worry about looking less professional if employees send emails that contain profanity?

Operation "Email cleanup" - Purging the profanity before you hit 'Send'

Medical marijuana: Deal or no deal in a drug-free workplace?

Boardrooms and courtrooms are getting fired up about whether doctor-prescribed marijuana has a place in corporate America. So far, the answer is “no.”

In cases where employees have challenged the boundaries surrounding the use of medical marijuana, the courts have sided with the employers. Although medical marijuana is legal as a prescription painkiller in 14 states, it is illegal under federal law. Plus, there’s the bigger issue of employees coming to work impaired and posing a safety risk.

This position is getting a rise out of medical marijuana advocacy groups, however. They view an employee’s marijuana-based treatment as a private medical matter, and any adverse action against the employee as discrimination.

Several lawsuits are still pending, so the issue is far from being settled. In the meantime, employers operating in states where medical marijuana is legal would be wise to monitor future court rulings and, if necessary, tailor their drug policies accordingly.

Get the facts on legal drug testing, and reinforce your company’s drug-free position with eye-catching posters and drug-screening tests.

Medical marijuana: Deal or no deal in a drug-free workplace?

Breaks for breastfeeding workers under the health care reform act

Due to the exhaustive coverage in the past week and a half, most of us are well aware of the key changes that will occur under the recently signed Patient Protection and Affordable Care Act. But with all the attention the sweeping changes are getting, some of the smaller, less controversial, developments are flying under the radar.

Take breaks for breastfeeding mothers, for example. Under the new health care reform bill, employers covered by the Fair Labor Standards Act (FLSA), must provide “reasonable” breaks to mothers to express milk for their infants up to one year old.

The FLSA amendment also requires employers to furnish a private space, other than a restroom, for mothers to express milk. (Employers with fewer than 50 employees, however, may be excused from this requirement if it would “impose an undue hardship by causing the employer significant difficulty or expense.”)

While many states already require unpaid breaks and private areas for breastfeeding mothers, the health care reform bill will make it a federal requirement for employers.

For advocacy groups like the National Women’s Law Center, this is an important development for working women. As Kelli Garcia, a Fellow with NWLC and contributor to its blog, shares:

Not all mothers are able or want to breastfeed. Sometimes, it’s because there are too many barriers that make breastfeeding challenging for new mothers. Thanks to this law, fear of losing your job because you need to take a break to pump or fear of exposing yourself to your co-workers because you cannot find a private place to express breast milk will no longer be among those barriers.

Garcia adds that although it would be even better if employers were required to provide paid breaks for mothers to pump, the law is a step in the right direction.

In the meantime, lawmakers are working to define what is “reasonable” break time and appropriate private space, as well as the penalties for violating the requirements.

What about your company? Are you in a state that already requires this benefit to breastfeeding mothers? And if so, what have you done regarding scheduling and space to make these requirements a win-win for you and your employees?

Breaks for breastfeeding workers under the health care reform act

COBRA subsidy extended once again

It keeps going … and going ... and going.

The House recently passed legislation to extend the 15-month, 65% COBRA premium subsidy another month, until April 30, as well as emergency unemployment insurance benefits until May 5. (In early March, President Obama signed the Temporary Extension Act of 2010, which extended the COBRA subsidy until March 31 and unemployment insurance benefits until April 5.)

In the meantime, the Senate has passed a more comprehensive bill – the Tax Extender Act of 2009 - that would push these benefits out to year’s end, which the House is expected to pass. But if the vote comes after these latest deadlines have passed, another “stopgap” extender bill may be necessary.

Are you keeping your involuntarily terminated employees informed of these extensions, and their possible eligibility?

The Department of Labor (DOL) has released recommended language for communicating the COBRA extension to your employees. To keep things simple (and legally compliant!), check out our COBRA poster, employee notices and other recordkeeping resources.

COBRA subsidy extended once again

Under new proposal, COBRA premium subsidy would be extended again

As part of its proposed federal budget for fiscal year 2011, the Obama administration is recommending another extension to the COBRA health insurance premium subsidy – a move that Congress will most likely support.

If approved, employees laid off from March 1 through December 31, 2010, would be eligible for the 65% premium subsidy for up to 12 months. (Currently, employees who are involuntarily terminated from September 1, 2008, through February 28, 2010, can receive the premium subsidy for up to 15 months.)

“As long as unemployment remains at high levels and access to health insurance coverage remains spotty, the willingness to extend COBRA assistance will remain strong and persistent,” says Frank McArdle, a consultant with Hewitt Associates Inc. in Washington. workforce.com

More and more employees are opting for COBRA as a result of the 65 percent premium subsidy – part of a broad economic stimulus package Congress approved nearly one year ago. In fact, Hewitt discovered in a survey of 200 large employers that the number of employees choosing COBRA more than doubled to 39 percent during a nine-month period last year.

According to the Society for Human Resource Management (SHRM), only laid-of workers who could not get coverage under another group health plan (such as a spouse’s plan or Medicare) would be eligible for the subsidy. In addition, premium assistance is only available for individuals with incomes under $145,000 and families filing jointly with incomes under $290,000.

If you’re a little bewildered about the various extensions and how to communicate them to employees, you’re not alone.

"… as originally passed, the subsidy was provided for a period up to nine months. In December 2009, the period was extended to a total of 15 months, and under the latest proposal it would be 12 months," says Karen Frost, health and productivity solutions leaders at Hewitt Associates in Chicago. "That's three different time frames and three different provisions." shrm.org

As far as what this means to you as an employer, Frost suggests that the hardest part – adjusting to the original subsidy – is over.

"For the first extension, we just had to modify what we were already doing in terms of the subsidy. And the efforts around a second extension would be very similar. It's a modification; it's not a brand new game."

Until a possible second extension is approved, G.Neil recommends that you display a poster informing employees of their COBRA subsidy benefits to date.

Under new proposal, COBRA premium subsidy would be extended again

How to steer clear of legal landmines in the new year

Protecting your business and “not getting sued” are topics that come up again and again on this blog. Whether you’re an HR professional, business owner or people manager, you’re all too aware how one legal misstep or compliance lapse can lead to much bigger trouble down the road.

That’s why my interest was piqued when I ran across a spot-on article by Susan K. Lessack, a labor and employment law partner with Pepper Hamilton LLP.

In her “Top Ten Things to Do in 2010,” Lessack discusses some important actions for minimizing the risk of employment-related litigation in the new year. In a nutshell, she suggests that you:

1. Make sure your company has a pandemic plan
2. Check your policies to ensure they’re a friend of GINA
3. Be sure you comply with the regulations issued by the Office of Federal Contract Compliance Programs (OFCCP) if you’re a federal government contractor
4. Ensure that disability leave policies do not contain inflexible provisions
5. Audit your wage-and-hour practices
6. Review relationships with independent contractors to evaluate whether those individuals are classified properly
7. Consider having a policy that advises employees who need a reasonable accommodation to request one
8. Review existing communication systems to ensure that employees have a way of raising concerns, and train manager to be effective in listening to and addressing those concerns
9. Develop a policy concerning employee use of social media, such as blogs, Facebook, MySpace and the like
10. Remember to document and communicate to employees any performance problems

Do yourself a favor and check out Lessack’s article for a quick snapshot of the best tactics for keeping your hands clean of any messy legal snafus. Many of the suggestions have been covered in this blog before, but they’re all points worth repeating. As are Lessack’s final words of advice for the litigation leery: “Remember that employees who feel they are treated fairly and with respect are less likely to bring claims against their employers.”

How to steer clear of legal landmines in the new year

When wicked winter weather grounds your workforce

“Oh the weather outside is frightful/But the fire is so delightful/And since we’ve no place to go/Let it snow! Let it snow! Let it snow!”

No place to go? What about employees trying to get to their jobs! What are they supposed to do when the wind is howling, the snow is drifting and the roads are icing over?

With much of the country dealing with the blustery weather that is so common in the months of January and February, now might be a good time to review your HR rights and responsibilities when crippling snowstorms are in the forecast.

The main issue for most employers is whether or not they must pay employees who don’t - or can’t - come to work because of weather conditions. And if you can charge them with vacation or other PTO for missed work.

Like many pay issues, this depends on the exemption status of the employee. Under FLSA guidelines, employers should use discretion before docking the pay of exempt employees who miss work for weather-related reasons. Basically, if you remain open during bad weather and an employee does not report to work, you may make pay deductions for full-day absences only. (If the employee works any part of the day, you must pay him or her for the entire day.) Yet if you shut down your business, you should pay exempt employees their regular salaries. Keep in mind, however, that you have the right to require employees to use accrued time off to cover the missed work – assuming they have vacation or PTO available to them.

Regarding non-exempt hourly employees, it’s up to you whether to pay them for snow days. Basically, the FLSA doesn’t require you to pay them for hours they would have worked if severe weather wasn’t a factor. But again, you may require non-exempt employees to use vacation or PTO to cover their absence. Also, it’s up to you whether you allow hourly employees to make up any weather-related lost work.

Next order of business: Does your employee handbook contain a severe weather policy? If not, you’ll want to develop one ASAP that covers:

Closing the business – How you’ll determine whether to shut down for severe weather (snowfall more than six inches, local school districts are closed, etc.)

Communication – How you'll communicate a business closure to your employees (call-in number, website with instructions, etc.)

Employees with children - Whether employees who are able to report to work, but who have children whose schools or daycare facilities are closed, may bring their children to work

Telecommuting - Whether employees who are unable to report to work may work from home - and the conditions surrounding this arrangement (such as remaining accessible via computer or telephone)

A final note: While not a policy issue, you may also want to provide a list of cold-weather precautions for your employees, such as how they can protect themselves in frigid temperatures, safe-driving trips (including emergency tools to stow in their vehicle, like a snow scraper, flares and flashlight) and what to do in case of an accident.

When wicked winter weather grounds your workforce

Inappropriate texting on company equipment a privacy issue - or a policy issue?

Earlier this week, the U.S. Supreme Court announced it would hear arguments in a case involving sexually explicit text messages sent by an employee using employer-provided equipment. After an employee of the Ontario, CA, SWAT unit was warned repeatedly for exceeding the number of texts sent per month, his employers reviewed the content of the texts, setting off a whole privacy debate. The court is to determine whether the employer violated privacy rights by reviewing the messages.

My knee-jerk reaction? Privacy shmivacy. When it comes to privacy vs. policy issues where employees don’t follow the rules, it’s hard to comprehend a reasonable defense.

“But judge, I didn’t understand the privacy policy.”

That’s the only possible explanation, in my opinion. As dim-witted as that may sound, it puts the onus completely on the corporation to defend itself. As HR specialists, it becomes your burden to first, create a comprehensive electronic usage policy that covers all the “what ifs” and then, to ensure every employee has reviewed and understood the policy. It only takes a few employees saying the rules and regulations were never explained to them, or that they didn’t understand what was explained, to create a leak in your airtight policy.

As unbelievable as this kind of court case may sound (the employee blatantly used a company phone to send racy messages!), it further demonstrates the importance of creating a thorough privacy policy review process that engages every employee. In the case of the Ontario SWAT unit, their policy allowed for a certain number of texts per month per employee. If employees exceeded the limit, it was their responsibility to pay for the overage amount. That’s a good policy and one that every officer understood. The issue arose when one officer repeatedly violated the limit policy, prompting his manager to audit the messages for personal use.

What was the purpose of the excessive texts and were they a detriment to the officer’s productivity on company time? Which begs another question: How detailed should your privacy policies be? Enough to cover all the bases. The Ontario SWAT unit was very detailed in their policy in some areas, but lacking in others. If the policy had clearly stated that excessive abuse of the monthly limits would lead to a review of the message content, employees would have been aware that their activities could lead to further scrutiny.

While this case seems cut and dried, it isn’t because it forces HR managers from coast to coast to review, revise and reinforce their privacy policy standards. At the very least, you may want to look at your privacy policies when it comes to corporate-supplied equipment to ensure you have an iron-clad and understandable position.

Inappropriate texting on company equipment a privacy issue - or a policy issue?

Snuggies in the workplace? Oh no you didn't!

Do HR pros really need to delve deep into dress code decorum to determine that “the blanket with sleeves” is NOT acceptable in the workplace? Should this even be debatable? It’s as absurd as men wearing pleated shorts that expose their sock garters in summer. You just don’t go there … EVER.

But apparently there are those who want to “fight for their right to Snug-gie!”, based on a lively discussion I encountered in a BLR forum. The responses were pretty hilarious.

Here’s the deal, as “IrisD” explains:

"Our facility manager lowered the thermostat to save money. We don't allow space heaters, so some of the women are wearing those "snuggy" blankets and even going outside with them for their smoking breaks.

This has caused kind of a rift between men and women in the office because the men are wearing sweaters and jackets to keep warm, not blankets. One male supervisor told the snuggy wearers to "wear more clothes, not blankets." Emails are flying.

Can we ban snuggys? Or should we? They really don't come under dress codes."

The general consensus, as you might imagine, was that fleecy robe thingys don’t belong in the workplace. Shocking, right? My favorite response:

"Honestly, if your dress code does not rule out blankets-as-clothing, there’s probably something wrong with your dress code. It’s not like this is a question about a man with makeup or a woman refusing to wear hose, or oxfords vs. polos. This is a person in a fabric zip-lock bag with sleeves."

Then there’s the issue of safety, as someone else pointed out: A long, flowy robe might get caught on objects and be a safety hazard for the wearer.

So what we have here is not only a serious fashion faux pas, but also a potential safety risk. And regarding your company’s dress code, I sincerely hope your employees use a little more common sense than those at Iris’ workplace. I know, I know, there’s always that one employee who will push the envelope with his or her wardrobe, but seriously? A brightly colored, one-size-fits-all, floor-length blanket?!?

So let’s do our best to keep the temperature at a comfortable level this winter - and encourage employees to grab their favorite cardigan, blazer, hoodie, shawl - anything but their Snuggie - to fight the chill.

P.S. Did you know that Snuggie ads also suggest you wear this warm, cuddly garment at sporting events, movie theaters and, my personal favorite, night-time pub crawls? Please, unless you’re a college student in the middle of rush week, stop the madness!

P.S.S. I don't own a Snuggie. But now that I live in the Pacific Northwest, I think I could really use one. Royal blue, please. And I promise you, no one will ever see it except my husband and my two Jack Russell Terriers.

Snuggies in the workplace? Oh no you didn't!

Fast-food giant "burned" for mistreatment of transgender applicant

Although it has a strict policy prohibiting any form of discrimination or harassment in hiring, termination or any other aspect of employment, a McDonald’s in Orlando, Florida, is eating its words due to a former employee who overstepped his bounds.

In a complaint filed by the Transgender Legal Defense and Education Fund (TLDEF) before the Florida Commission on Human Relations, 17-year-old Zikerria Bellamy claims she was not hired by the fast-food restaurant because she was a transgender.

When Bellamy filled out the application at the Orlando location, she did not check off the box that asks whether the applicant is male or female (a voluntary question that states, “failure to respond will not subject you to adverse treatment”). Later, when she went in for an interview, she was forced to check off the box indicating her gender. And then, to make matters worse, she received this damaging voicemail: "You will not get hired. We do not hire (expletive). You lied to me. You told me you were a woman.”

McDonald’s quickly defended its position – and policies - forbidding this type of behavior:

"The behavior of the individual in question is not reflective of the employment policies in the organization. Further, this individual acted outside the scope of his authority and was not responsible for hiring.”

Not surprisingly, the individual in question is no longer employed by the restaurant.

Is your company doing enough?

According to the New York-based TLDEF, nearly 50 percent of transgender people in the United States have been fired or refused a job because of their transgender status.

While federal law clearly protects employees and applicants from discrimination based on race, color, religion, sex and national origin under Title VII of the Civil Rights Act of 1964, it doesn’t offer similar protections on the basis of sexual orientation or gender identity. Protection runs deeper on a state level, however, where almost half the states and the District of Columbia have enacted laws prohibiting sexual orientation discrimination in public and private employment. And earlier this year, Rep. Barney Frank (D-Massachusetts) introduced the Employment Non-Discrimination Act of 2009, a proposed federal law that would prohibit sexual orientation discrimination in the workplace.

Legal requirements aside, many employers recognize that in today’s diverse environment, instituting policies and procedures that prohibit this type of discrimination is smart business.

Preventing sexual orientation discrimination in the workplace starts with understanding current laws, examining your policies and procedures, and training employees to abide by those policies.

For a quick overview of the issues, check out an earlier blog post, Sexual orientation, gender identity discrimination protections gaining legal ground, and the article in our G.Neil library, Sexual Orientation and Gender Identity Protection.

For specific guidance creating gender orientation policies and procedures, read our free whitepaper, Creating a Gender Orientation Policy for Your Workplace (pdf).

Fast-food giant "burned" for mistreatment of transgender applicant

Does your bereavement policy ease their suffering - or add to it?

If you’ve ever experienced the death of a loved one, you know how devastating the loss can be – and how it turns your world upside down. When you’re feeling a new, raw emotion every few minutes, it’s hard to create any sort of normalcy, especially with your job.

That’s why you should take a considerate, compassionate approach to bereavement and do everything you can to ease an employee’s burden.

During this difficult time, an employee will hear these words again and again, “If there’s anything I can do – anything at all - please let me know.” Well, this is your time to show that you, as an employer, are not just talk when it comes to supporting your employees, during the good times and the bad.

Death, stress and struggling to move on

Based on the stress scale created by psychiatrists Thomas Holmes and Richard Rahe in 1967, the death of a spouse is one of life’s most stressful events, with the death of a close family member not far behind.

And the upheaval it creates is considerable. According to the online resource, MedicineNet.com:

“Symptoms of complicated grief include intense emotion and longings for the deceased, severely intrusive thoughts about the lost loved one, extreme feelings of isolation and emptiness, avoiding doing things that bring back memories of the departed, new or worsened sleeping problems, and having no interest in activities that the sufferer used to enjoy.”

As you might imagine, this level of personal turmoil does not bode well in the workplace. An employee who was once upbeat and productive might become forlorn and distracted after a significant loss. What you do during those first few days and weeks can make all the difference to your grieving employees, and help them get back on their feet that much faster.

How your bereavement policies can boost morale

What types of bereavement benefits and resources can you provide to show you’re a company that cares about your employees and their well-being?

=> Funeral leave for a family member – As a matter of policy, most companies extend up to three paid days off for a full-time employee to attend the funeral of an immediate family member. But is it enough?

“Three days is a tragedy,” says Russell Friedman, author of The Grief Recovery Handbook and executive director of the Grief Recovery Institute. “Some companies are extraordinary and have big hearts when it comes to giving time off after a death, but many are stuck in the dark ages.”

He claims that employees need at least a week to deal with the details surrounding a death and funeral, especially since many people don’t live near their families these days. He also recommends extending your funeral leave policy to part-time employees.

Be sensitive to the fact that every situation is different. Managers should be allowed to adjust this policy to meet the needs of their staff. An employee who just lost a spouse of 25 years in a terrible accident might need more time off than an employee whose grandmother died peacefully at age 94.

=> Thoughtful support from management and peers – It’s not always easy knowing what to say to a grieving employee after a loss. But this is one of those critical times when managers need to push through their own discomfort and reach out to the employee. Now, more than ever, managers and supervisors need to be a stable influence, lending a helping hand and an open ear.

If you’re like most companies, you’ll give the employee a sympathy greeting card, send flowers or make a donation to a special charity.

Be sure to notify fellow employees of a death in a coworker’s family, as well. Share the news face to face with those coworkers who will be most affected by the news – and issue a simple e-mail or memo to the rest of the staff.

=> Remind the employee of your employee assistance program (EAP) – An employee’s need for support doesn’t end when the funeral is over. If your company offers counseling services, encourage the grieving employee to take advantage of them. And keep in mind that an employee’s work performance may be inconsistent in the first few weeks back on the job. If the employee was hard-working and dedicated prior to the loss of a loved one, he or she can get back to that place - with the right amount of support and assistance.

Does your bereavement policy ease their suffering - or add to it?

Home Depot employee fired over "politically driven" pin that violated dress-code policy

In yet another real-life reminder of why it’s so important to maintain an employee handbook with crystal-clear workplace policies, a Home Depot employee claims he was fired for expressing his personal beliefs though an American flag button he wore on his apron. The former cashier of the Okeechobee, FL, store says he had the right to wear the “One nation under God, indivisible” button, while his employer argues that he DID NOT – and the reason being the company’s written dress-code policy forbidding it.

Whether you feel the pin and its message was religious, political or just patriotic (and as such, acceptable in the workplace) is a matter of interpretation. And it’s because of this sort of interpretation that employee policies exist.

“The issue is not whether or not we agree with the message on the button," says
Craig Fishel, a Home Depot spokesperson. "That's not our place to say, which is
exactly why we have a blanket policy, which is long-standing and
well-communicated to our associates, that only company-provided pins and badges
can be worn on our aprons."

While the employee’s lawyer is suing Home Depot for religious discrimination, the case probably won’t go very far. As Michael Masinter, a civil rights and employment law professor at NOVA Southeastern University in Fort Lauderdale, explains:

"Because it's a private business, not one that's owned and operated by the
government, it doesn't have to operate under the free speech provisions of the
First Amendment."

He clarifies the matter of religious displays and expression, too, for those who feel Home Depot’s pin-banning action was a form of religious discrimination:

“But we're not talking about religious displays here," he said. "This sounds
more like a political message ... Wearing a button of that sort would not easily
be described as a traditional form of religious expression like wearing a cross
or wearing a yarmulke."

As a private business, Home Depot has a right to protect its image by not promoting different employee opinions via pins and badges - opinions that might offend customers who are as diverse as the employees serving them.

Some important details in this case: The employee was first asked to remove the pin. He refused. He was also offered a company-approved pin that said, “United We Stand,” but he declined.

It would appear that Home Depot did everything right, from an HR standpoint, in this situation. They based their actions on company policy, they confronted the employee first (and hopefully documented the exchange) and when all was said and done, the employee refused to cooperate with policy. Thus, the employee was fired.

What do you think? Do you agree with Home Depot’s actions? Please leave a comment - I’d love to hear your thoughts on the matter!

Home Depot employee fired over "politically driven" pin that violated dress-code policy

Texting while driving a big no-no for federal employees - But how will it be enforced?

President Obama signed an executive order Wednesday night banning federal employees from texting while operating government vehicles or driving their own vehicles on government business. State and local governments are encouraged to pass similar laws against “distracted driving”.

We’ve all seen it. People pecking away on their cell phones while sitting at traffic lights or worse, while hurtling down the highway at full speed. And as long as they’re looking at their cell phones, they’re not watching the road.

A Los Angeles Times article shares a startling statistic: Distracted driving delays reaction time as much as a blood alcohol content of 0.08%, according to research by the University of Utah.

In addition, the National Highway Traffic Safety Administration reports that 15% of driver deaths in the U.S. last year were a result of distracted driving. While it’s uncertain how many of these incidents were related to texting while driving, many experts consider it a growing problem - including Transportation Secretary Ray LaHood.

"To put it plainly, distracted driving is a menace to society,” says LaHood.

Now the hard part. While most of would agree that distracted driving is bad and that any efforts to curb it are good, how will the new ban be enforced? Will federal employers develop an official HR policy on the ban and if so, how will they apply it consistently to all employees? And regarding enforcement, how will cops identify someone texting while driving (especially if the person holds the phone below the window line)? Should cops be allowed to peruse a person’s cell phone to see if it was being used at the time of a traffic violation or accident? And what sort of privacy issues could all this raise?

Even if the ban IS just semantics, perhaps it will act as a deterrent. And perhaps it will lead to more people sharing LaHood’s point of view:

"Driving while distracted should just feel wrong - just as driving without a seat belt, or driving while intoxicated, seems wrong to most Americans."

Texting while driving a big no-no for federal employees - But how will it be enforced?

EEOC has beef with meatpacking company that violated civil rights of Muslim workers

The Equal Employment Opportunity Commission has determined that the U.S. unit of Brazilian meatpacking giant JBS SA violated the civil rights of more than 100 Muslim Somali workers in plants in Colorado and Nebraska, unlawfully harassing them and firing them based on their religion.

According to the Reuters article,

"The dispute began last year during the Muslim holy month of Ramadan when the
workers walked off the job after managers denied them a prayer break at sunset.

Supervisors had initially agreed to adjust work schedules to accommodate
the requests by Muslim workers but later reversed their decisions after
non-Muslim workers protested the changes.”

Under Title VII of the Civil Rights Act of 1964 (which prohibits workplace discrimination based on religion, ethnicity, country of origin, race and color), employers must reasonably accommodate the religious practices of an employee or prospective employee, unless doing so would create an undue hardship for the employer. Some reasonable religious accommodations that employers may be required to provide workers include leave for religious observances, time and/or place to pray, and ability to wear religious garb.

Yet in the past 15 years, claims of religious discrimination filed with federal, state and local agencies have doubled – spiking a record 15% in 2007. Perhaps as surprising, these numbers are growing faster than claims based on race or gender.

With workplace disputes over religion on the rise, it’s essential that you include diversity awareness and training in your anti-harassment initiatives. Be certain you’re taking active steps to prevent religious discrimination and harassment in the workplace and when necessary, are accommodating employees’ religious beliefs and practices.

EEOC has beef with meatpacking company that violated civil rights of Muslim workers

USCIS issues User Manual to clarify E-Verify for federal contractors

In the August 3 post, DHS strengthens employment verification, contractors must use E-Verify, we discussed the federal contractor rule that, as of September 8, 2009, requires all covered federal contractors and subcontractors to use E-Verify to verify the work eligibility status of their employees.

To clear up any confusion regarding the specifics, U.S. Citizenship and Immigration Services has released an E-Verify User Manual for Federal Contractors. The 68-page (!) supplemental guide covers:

• applicable regulations
• instructions on verifying new and existing employees via Form I-9
• E-Verify enrollment and participation as a federal contractor
• exemptions and exceptions for qualifying contractors, subcontractors, independent contractors and affiliates
• enrollment instructions for organizations that qualify for exceptions
• enrollment instructions for contractors not yet enrolled in E-Verify
• instructions for contractors already enrolled in E-Verify

According to the Wall Street Journal, about 169,000 federal contractors and subcontractors (who employ approximately 3.8 million workers) will be affected by the new E-Verify federal contractor rule. The WSJ article explains the key steps regarding the program:

1) After an E-Verify provision is put into its contract, a federal contractor or subcontractor will have 30 days to enroll in the E-Verify system
2) Each employer must sign a memorandum of understanding with the government to use E-Verify
3) Contractors will use a secure Web site to check the legal status of workers involved in a government project, except for some who are exempt because of security clearances
4) In about 97% of the cases, contractors will receive an immediate electronic response confirming the employee's eligibility to work
5) In other cases, contactors will receive a "tentative non-confirmation" notice; contractors and employees will then have eight days to try to address any problems with the Social Security Administration or immigration officials

USCIS issues User Manual to clarify E-Verify for federal contractors

Dethroned former Miss California USA sues for religious discrimination

It’s been said that, “Beauty is in the eye of the beholder.” And with former Miss California USA Carrie Prejean suing pageant officials this week, so are claims of religious discrimination. Prejean is suing for libel, slander and religious discrimination, asserting that officials told her to stop mentioning God even before her controversial comments regarding gay marriage.

Prejean was fired from her position as Miss California USA in June, just months after the Miss USA Pageant where she spoke out against same-sex marriage. When asked whether she believes in gay marriage, she replied:

“We live in a land where you can choose same-sex marriage or opposite. And you
know what, I think in my country, in my family, I think that I believe that a
marriage should be between a man and a woman. No offense to anybody out there,
but that's how I was raised."

Was it this response that cost Prejean her crown – and ultimately led to her firing? While pageant co-director Keith Lewis claims Prejean’s termination was due to violation of contract (specifically, unwillingness to make public appearances), Prejean’s attorney, Charles LiMandri, says otherwise. He states:

“Over the past two months we have worked hard to provide overwhelming evidence
that Carrie Prejean did not violate her contract with Miss California USA and
did not deserve to have her title revoked by Keith Lewis. We will make the case
that her title was taken from her solely because of her support of traditional
marriage. Keith Lewis has refused to clear her good name or even to admit any
wrongdoing. Therefore, Carrie Prejean is left with no alternative but to take
her case to court where she expects to be fully vindicated.”

Do you think Prejean has a legitimate case here? Was she truly wronged for expressing her traditional religious beliefs? Or is this a carefully orchestrated publicity stunt that will meet its demise in court?

Regardless of your opinion of the “fallen” beauty queen, when it comes to religion in the workplace, the law is clear: Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. Yet in 2009, EEOC received 3,273 charges of religious discrimination, resolving more than 2,700 of these charges and recovering $7.5 million in damages.

As an employer, you must accommodate an employee’s religious beliefs and take active steps to prevent religious discrimination and harassment in the workplace. Start with a careful review of the current laws and your internal policies and procedures. Then, be sure you’re holding all employees and managers accountable for adhering to these policies.

Dethroned former Miss California USA sues for religious discrimination

Can employees vent their workplace frustrations on personal blogs?

Jane had an awful day at work, butting heads with her manager about how she handled a particular project. Later that evening, still fuming about the run-in, she signs into her personal blog account and lets loose about how much her manager irritates her. And she doesn’t stop there: She continues her blog post by trashing the company and how they treat their employees.


As an employer, can you restrict employees from blogging about workplace concerns – and if you learn of negative or damaging posts, can you act on them?

The answer may depend on whether you’re a private or public employer.

In a 2006 survey co-sponsored by the American Management Association, it was revealed that nearly 2% of employers have fired workers for offensive blog content, including posts on employees’ personal, home-based blogs.

“Employee bloggers, who can be fired, or “dooced” in blog parlance, for blogging at work (and at home on their own computers) face increasing risk of termination by employers struggling to keep a lid on legal claims, regulatory fines, and security breaches. With the blogosphere growing at the rate of one new blog per second, industry experts expect the ranks of dooced employee bloggers to swell.”

And for those employees who feel this type of action is a violation of their rights to free speech under the First Amendment, Nancy Flynn, author of Blog Rules and executive director of The ePolicy Institute, shares:

“Employee bloggers mistakenly believe the First Amendment gives them the right to say whatever they want on their personal blogs. Wrong! The First Amendment only restricts government control of speech; it does not protect jobs. Bloggers who work for private employers in employment-at-will states can be fired for just about any reason—including blogging at home on their own time or at the office during work hours.” (American Management Association)

Ms. Flynn points out an important distinction here and it concerns the actions private employers can take. But what about public employers? Do they have the same right to terminate an employee for improper blogging?


In the paper, Blogging While (Publicly) Employed: Some First Amendment Implications , Paul M. Secunda compares the First Amendment free speech implications for public and private employers – and what the future holds for employees who choose to blog about their workplaces. He explains:

“While private-sector employees do not have First Amendment free speech protection for their blogging activities relating to the workplace, public employees may enjoy some measure of protection depending on the nature of their blogging activity. The essential difference between these types of employment stems from the presence of state action in the public employment context.”

It should be noted that, regardless of whether an employee works for a private or public business, certain speech about unionization or working conditions is protected. For example, it could be a violation of the law for an employer to take action against an employee blogging about an experience with sexual discrimination at work. It could also be a violation to retaliate against an employee for complaining about workplace safety issues. Obviously, an employee would enjoy greater protection under these circumstances if he or she issued a formal complaint with the employer before sharing information on a personal blog.


(Check your state laws, too, since many states prohibit employers from disciplining or firing employees for activities they pursue offsite, on their own time. These “off-duty conduct” statutes often contain language protecting employees who “use legal products” (such as cigarettes) off-duty, as well as protection against any employee conduct that doesn’t break the law. This coverage could apply to employees who keep a personal blog. )

One important step you can take to discourage negative or damaging blogging by your employees is to include a written policy in your employee handbook. With Gradience Handbook Manager Software, you can easily create a comprehensive, legally compliant handbook that addresses, among other things, the issue of blogging. One of the recommended policies, “Use of Company Communication Systems”, covers employee blogging/social networking sites and provides guidelines for employees to follow, such as “(Company) expects that employees will be respectful to the Company, fellow employees, our customers, partners and competitors. Employees must not post materials that violate the privacy or publicity rights of another individual or entity.”

Can employees vent their workplace frustrations on personal blogs?

Advice for HR in the new economy

How will you handle HR in the new economy? Outsourcing, secret identities, improved strategies, joining the circus?

Here's some advice from some of the most promising human resource professionals of the future:

Advice for HR in the new economy

Same-sex harassment complaints growing

Dillard’s, Inc. will pay $110,000 and provide significant remedial relief for a same-sex harassment suit in Florida, according to an announcement from the Equal Employment Opportunity Commission (EEOC) last week.

The EEOC claimed that Dillard’s violated Title VII of the Civil Rights Act by permitting a sexually hostile work environment for men at its Fashion Square Mall store in Orlando, Fla. The EEOC charged that a male sales associate and a young dockworker were verbally and sexually harassed by a male supervisor.

The workers accused their supervisor of exposing himself in front of them, making sexual propositions, and making sexually explicit and derogatory comments. According to the EEOC, Dillard’s store managers ignored complaints made by the workers about the harasser.

Dillard’s argued that the store wasn’t liable because the supervisor had been fired and had an anti-harassment policy in place. The court rejected that argument and “found that Dillard's anti-harassment policy could not absolve it of liability if the policy hadn’t been effectively implemented.” (Business Management Daily)

“The EEOC will hold corporate America accountable for failing to prevent and correct employment discrimination,” said Commission Acting Chairman Stuart J. Ishimaru. “Sexual harassment charge filings by men have trended upward over the past decade. Employers must be more vigilant in ensuring that men are not subjected to sexually hostile workplaces.”

In addition to paying $110,000 to the two male victims, the Dillard’s Fashion Square Mall store must:

• distribute policies to the workforce on preventing sexual harassment and retaliation;
• conduct sexual harassment and anti-discrimination training for all employees;
• train employees who are responsible for investigating sexual harassment complaints;
• submit to monitoring throughout the decree’s three-year duration;
• and post a notice about the resolution of the case.

“Employers must diligently enforce policies to prevent sexual harassment and ensure that managers take same-sex harassment complaints seriously. It is vital to protect both men and women from workplace harassment,” said EEOC Miami Regional Attorney Nora Curtin.

The number of sexual harassment charges filed with the EEOC are up 11% from last year and at the highest rate since 2002. Sexual harassment charges filed by men make up 16% of total charges, a figure that once stood at 12% in the late 1990s.

Sexual harassment is sexual harassment no matter if it’s male-on-female, male-on-male or female-on-female. Even if the harassment doesn’t look exactly like what was taught in the training video, it should still be handled with the same sensitivity and diligence that would be given in any “normal” situation.

According to Mindy Chapman, Esq., of Mindy Chapman & Associates, in a recent Business Management Daily article, companies can learn three major lessons from this case:

1. Train “it.” Anyone designated in your anti-harassment policy’s reporting procedures needs to know they could be tagged “it” with a complaint. Train them so they know “it.”


2. Script “it.” The store manager should have responded by saying, “Thank you for letting me know. You are important to us at Dillard’s. I will help you immediately.” Then he should have, in the next breath, contacted the district manager.


3. Stop “it.” The manager had an obligation that if he saw “it,” heard “it,” or heard about “it,” he should have stopped “it,” but never ignored “it."

Same-sex harassment complaints growing