Gruntled Employees

Who owns an employee's LinkedIn contacts?

Or Facebook friends? Or Twitter tweeps? If an employee is using these social-media sites in his or her professional capacity, does the employer have the right to take the contacts away once the employee leaves?

The correct answer is: shut up.

Seriously. If you're an employer or a manager and you're seriously asking these questions, you just don't get it when it comes to social media. You're missing the whole point of these social-networking sites.

Now pause for a minute before you go ballistic on me in the comments below. Remember: I'm a management lawyer. I'm on your side.

But the whole point of having your employees on these sites is to broaden the reach of the company's brand. Making connections with other people — customers, prospects, vendors, referral sources — by combining the employees' personalities with your company's brand identity is what it's all about.

And there's a trade-off here. Your company's brand reputation (ideally) helps your employees raise their own personal stature online. But if they leave your company, voluntarily or not, they have that stature to take with them. And there's nothing you can do about it. That's the implicit bargain you make with your employees when you use them as ambassadors for your brand.

That's why it drives me batspit crazy when I see other employment lawyers sounding alarms of doom and drafting small-minded policies about retaining social-media contacts for the company after the employee's departure. See, for example, "Who owns the salesperson's LinkedIn accounts?" Or a similar article here. There's even a discussion on this at LinkedIn itself.

Seriously, cut it out. If employees put themselves out there in cyberspace, even on the company's behalf, they can take their online connections with them when they leave. If you can't abide that, then maybe you do need a policy barring social media. Just don't come to me for that, because you're not my kind of employer.

On the other hand, if you're the kind of enlightened employer who sees the real value in having your employees connect with people who might lead to more business, and you understand that there's always a risk that those contacts will leave with your departing employees, then definitely give me a call. We're kindred spirits, and I can help you.

One more thing: Much of my legal work involves noncompetes and trade secrets. And one of my favorite tools for investigating whether a departed employee is violating agreements or stealing trade secrets is searching through social-media sites. Just because I sound all "Kumbaya" about social media doesn't mean that I won't use it like a hammer to win a lawsuit. (Just sayin'.)

What do you think? Does your company have LinkedIn policies about whose contacts are whose? Do you think you need them? Sound off in the comments.

500,000 reasons to worry about retaliation claims

Good news, you're thinking. Your company's just been sued for sex discrimination, but your lawyer tells you that her discrimination claim stinks. You're almost certainly going to beat it. W00t! Squee!

Not so fast with your w00ts and your squees. As employment lawyers, we see this scenario play out far too often. Company gets hit with a weak discrimination claim. Turns out something bad happened to the plaintiff after he or she complained about the bogus discrimination. Wa-bamm! Now the company's stuck defending a much stronger retaliatory-discrimination claim.

This happened the other day here in Boston. The state's Probation Department faced a sex-discrimination claim (among other things) from an assistant chief probation officer. The case went all the way to a jury trial, which is unusual (less then one percent of these cases try). The Suffolk County jury found in the Department's favor on the sex-discrimination claims, but ruled for the plaintiff in her retaliation claim. It awarded her $6,000 in compensatory damages, and … wait for it … half a million dollars in punitive damages. Plus, now she's entitled to her attorneys' fees.

Now to be fair, the Probation Department has been having a bad year as the subject of daily newspaper stories about corruption and patronage. (For The Boston Globe's extensive coverage, click here.) But the lesson is still an apt one. In this case, after the employee complained of sex discrimination, she was stripped of supervisory duties and reassigned to cover the front desk. In its defense, the Department said that her performance had declined. Maybe it had. But that's a weak defense in a retaliation claim. (For more coverage of the case, see Marcella Bombadieri's piece in the Globe.)

Employers: When you're facing a potential discrimination lawsuit, you have to be extra careful to avoid doing something that could end up giving the employee a much stronger retaliation claim. It's a delicate situation to be in, but the wrong actions by the employer can be just the thing that the plaintiff needs to end up with a windfall.

For tips on how to treat a complaining employee, tweet or direct-message me at @jayshep, or send me an

Uniting two airlines by focusing on culture

Nice interview in today's Wall Street Journal with Jeff Smisek, the new CEO of United Continental Holdings. Smisek was previously the CEO of Continental Airlines, which is merging with United Airlines. The interview (sorry, it's behind Rupert's paywall) by the Journal's Susan Carey, focuses on the challenges he faces merging two huge companies in a moribund industry. Continental, which we've written approvingly about before (see "If you treat me with respect, I'll do more for you"), has a better reputation for employee satisfaction than United does, which is known for having disgruntled employees. United is much larger than Continental.

So what's Smisek's biggest challenge and solution for making this new behemoth work? Fixing the corporate culture:

I am going myself to focus very heavily on the culture. Culture is incredibly important in a service business. I can lecture about service and we can train about service, but the employee is not going to give good service unless the employee wants to. They want to give good service if they enjoy coming to work, trust their co-workers [and] are given the tools they need to do their jobs.

In discussing the turnaround at Continental, Smisek talks about paying attention to the so-called little things, like keeping the plane cabins clean. Not just because it was disrespectful to the customers, but because it was disrespectful to the flight crews, who spent much more time in them.

Over the next two weeks, I'll be flying more than 20,000 miles on United, so I'm hoping to see the early results.

What do you think? Have you seen examples in your workplace where focusing on employee gruntledness translates into improved customer service? Or is it just a lot of happy talk? Share your thoughts in the comments below.

Maybe we're becoming more gruntled

Or maybe our bosses aren't as bad as they used to be. This according to a scientific completely unscientific internet poll conducted by Monster.com. The job-board website surveyed 2,150 visitors to its site and asked questions about their feelings toward their supervisors. According to a press release, 41 percent reported that they would never quit a job because of their boss. Monster took this as reflecting "an increasing tolerance among Americans for 'nightmare' bosses." It then concluded that this change in attitudes — lo and behold — was because of the economy:

In sum, according to Monster’s August poll findings, current economic conditions and an uncertain job market have changed Americans’ perceptions of their supervisors. The perceptions of American workers will be interesting to monitor going forward, as the economy begins to turn around – particularly if workers adopt a more critical view of their bosses and the decisions they make.

Whatever. I'm not going to put any stock in an internet poll, especially one where the self-selected respondents are people looking for jobs. And the too-obvious blame-the-economy-for-everything deal is getting kind of old now. More importantly, managers should not let internet polls make them think for a second that they need to work at keeping their employees gruntled.

What do you think? Are you happier with your boss than you were two years ago? Why? Or why not? Did the economy cause the Patriots to lose to the Jets? I'm thinking so. Sound off in the comments below.

Hat tip to The Boston Globe for the story.

Why employment law is like "Survivor"

Tonight is the premiere of the 21st season of "Survivor," the CBS reality show that has been hugely successful. The show's been on for ten years (they do two seasons a year, unlike most shows), and even now draws 12 million viewers and ranks among the top 25 shows in ratings. To be sure, I'm the only person I actually know who still watches it (my wife gave up years ago). It's my TV guilty pleasure, and the only reality show I watch (I'm done with "Idol").

And for years, I've been telling people that it's very similar to practicing employment law.

Let me explain:

"Survivor" is incredibly formulaic. Every episode of every season (except the season finales) follow the same exact pattern: Two tribes of castaways in an exotic location bond and caper and plot and fight in their respective camps. Then the two tribes have a contest to try to win some minor comfort (the Reward Challenge). More bonding and capering and plotting and fighting, then another challenge (the Immunity Challenge) to figure out who is at risk for going home. The climax of each episode is the Tribal Council, which is even more ritualistic and formulaic. The losing tribe sits around a fire. The host, Emmy-winning Jeff Probst, goads the players into revealing their fears and suspicions and plans. Then the players cast ballots to vote someone off the island. Probst uses many of the same stock phrases every episode, like "The Tribe has spoken. It's time for you to go."

But despite the repetition over a complete decade and 273 episodes, there is still great drama. (OK, maybe not "great," but drama nevertheless.) It's never boring.

As in employment law.

I've been practicing employment law for 16 years this month. (Paging Molly Ringwald.) I work on the same kinds of cases day in and day out. Noncompetes, discrimination, wage claims, sexual harassment. The usual. Everything I do boils down to people not getting along at work. The lawsuits and agency claims are all basically the same. It's been many years since I've come across a case that was truly novel in any way. I use the same set phrases — "The Tribe has spoken. It's time for you to go. (OK, not really.) — in many of my conversations.

And yet there is still great drama. And it's never boring. To me, practicing employment law and helping companies have gruntled employees and easier workplaces is as interesting to me as it was 16 years ago.

And the reason for that is the same reason that "Survivor" is still interesting:

Because of the people. Every employment-law case or issue or problem, every "Survivor" episode or challenge or Tribal Council is different because of the human variable. It's the people who make it different every time. The different personalities of the players and employees. The different exotic locations, and their effects on the contestants. The different corporate cultures. The people always make it different, and thus interesting.

That's why I still love employment law. And that's why I still watch "Survivor." Wednesday nights at 8 ET on CBS.

What do you think? Is your practice like a particular TV show? Is your tax firm like "True Blood," or your family-law practice like "Glee"? Share your thoughts in the comments below.

On knuckleballs, incentives, and goals

The Red Sox can't manage to stay afloat in a tough division, but they can at least provide us with some useful management lessons.

Last night, veteran knuckleball pitcher Tim Wakefield started against the Tampa Bay Rays. Even though he gave up five runs (four of them earned), he qualified for the win by pitching five innings and having the Sox take the lead for good in the bottom of the fifth. Besides getting the win — only his fourth against ten losses — Wake accomplished a number of other things in the game. First, he became the oldest pitcher (at 44) in Red Sox history (spanning 110 years) to win a game for the team.

Once he got his tenth out in the fourth inning (thus reaching 130 innings for the season), he earned a half-million-dollar bump in his guaranteed salary (to $2 million) for 2011. (He also earned a $75,000 bonus for making his eighteenth start of the season.) So it's fair to say that the game was worth an extra $575,000 to Wakefield on top of the prorated portion of his $3.5 million salary for this season. And Wakefield could certainly look at it that way.

But the team should not conclude that this meaningless, late-season win cost it an extra $575,000. Yes, that was the marginal cost of the game. And last night's game was a spot start; the team could have had someone else pitch to avoid having Wakefield reach the starts and innings milestones that triggered the incentive pay.

But I'm certain that Sox management never considered a financial downside to having Wake pitch. By giving the pitcher various incentives to make more starts and pitch more innings, they encouraged a season-long performance that was plenty valuable to the team. The real cost to the team of last night's game was his pay for the total season divided by the 29 games he's appeared in — a number less than $140,000, which will decrease as he pitches more over the next few weeks.

Too often, employers worry about the marginal cost of someone reaching a threshold that triggers an incentive bonus. That's looking at it the wrong way. The right way is to consider the whole body of work, partially driven by the incentives.

Finally, last night's game marked another milestone for Tim Wakefield: it was his 179th win for the Red Sox. He's currently in 3rd place in team history, behind the immortal Cy Young and the tarnished Roger Clemens, who are tied for 1st at 192 wins. Wakefield has been open about wanting to reach 193 wins and become the winningest Red Sox pitcher of all time. It's a goal that drives him. The Red Sox know this, and I'm sure the team wants to help him achieve that goal.

Sometimes, goals can be even more important than incentive bonuses. A good employer helps its employees identify and reach for those goals.

For more Red Sox management lessons, see "An organizational belief" and "Clubhouse rules." For more reporting on Tim Wakefield, see this post by Boston Globe blogger Peter Abraham (@PeteAbe) and this article by Globe columnist Nick Cafardo (@nickcafardo).

What do you think about incentive bonuses and goals? Are they worth the extra cost? Share your thoughts in the comments below.

Job fair for ex-cons begins Nov. 4, only in Massachusetts

Massachusetts has enacted a new law making it harder for employers to learn whether job applicants have criminal records. On August 6, Governor Deval Patrick signed the new Criminal Offender Records Information Act (CORI), which goes into effect in stages. The law makes Massachusetts the only state to prohibit most employers from asking about criminal records on job applications. Because with the unemployment rate as high as it's been in 20 years, this is what we want the state to focus on. Riiiiight.

All Massachusetts employers should now review their forms and procedures, and most will need to make changes to its application and recordkeeping processes. Here are five things you need to know:

1. You can’t ask applicants about criminal history (at first). Until now, Massachusetts had fairly complicated rules on what you could and couldn’t ask applicants about any criminal past. The new law simplifies this: You can’t ask at all on the initial job application. The only exceptions are the rare circumstances where an employer legally can’t hire a convict, or where a convict would be presumptively disqualified by law. This restriction starts November 4, so you have less than two months to change your applications.

2. But you can ask after the initial job application. The thinking here is that applicants with criminal histories won’t be automatically rejected without the employer first considering their qualifications. So you can still ask applicants if they had run-ins with the law — just not on that initial application, which is where most employers do it now. Of course, the new law makes it harder to verify what they tell you, because ...

3. More criminal records will be sealed earlier. Under the new law, misdemeanor convictions will be sealed after only five years (after conviction or release from prison), and felony convictions after ten. (This provision doesn’t go into affect until May 4, 2012.) There are a few exceptions, like certain sex crimes, murder, and manslaughter, as well as subsequent convictions. So while the new law doesn’t allow applicants to lie about older convictions, employers are prevented from learning about them. Oh, wait. The old law already allowed criminals to lie about sealed convictions. If an ex-con has a sealed record, the law allows him or her to answer "no record" when applying for a job. Nice ...

4. And it will be harder to perform CORI checks. Before doing a criminal-record check, an employer needs to verify the applicant’s identity and get his or her written authorization. If the employer then rejects the applicant based on the CORI results, it must first present the applicant with a copy of the results. If an employer conducts more than four CORI checks a year, it must develop a written CORI policy. Call your employment counsel for help with this policy if you think you’ll be doing multiple CORI checks.

5. There are also new recordkeeping requirements. An employer has to keep applicants’ written authorizations for CORI checks for a year afterward. On the other hand, employers can’t keep the results of CORI checks beyond seven years after either the date the applicant was rejected or the date the employee terminates. And there are serious penalties for employers who improperly share the results with third parties. Under most circumstances, an employer cannot share these results at all.

Do your job applications comply? If they look like most applications, they probably don't. You better start thinking about revising your employment application, as well as setting up a CORI policy (if you need one). You've got two months.

Think this is a good rule? Does the benefit of maybe preventing snap judgments by employers outweigh the impropriety of having the state censor otherwise-public information? Share your thoughts in the comments below.

Massachusetts hides antiemployer HR rule in "probusiness" law

Massachusetts law has long required employers to give workers access to their personnel files upon request. Which is fine, I guess. But a new change to the law now requires companies to notify employees about any potentially negative information added to their files. The amendment, which Gov. Deval Patrick signed into law on August 5, was tucked away in an “economic development” bill laden with higher-profile items like the recent sales-tax holiday. (To see how "probusiness" the law is, check out the Governor's press release from the signing. No mention of this provision, natch.) I have no particular opinion on the rest of the law. But this new personnel-records rule is going to lead to more employee lawsuits.

Here are five things you need to know:

1. Employers must tell workers about negative entries. An employer now has to notify an employee when it puts into a personnel record any information that has been or may be used to negatively affect the worker’s job. This must be done within ten days. The law leaves unchanged an employee’s right to review or get a copy of their records within five days of requesting it. The only sop to employers is a limit on these requests to two a year. But that limit does not apply to the notice and review of negative entries.

2. There could be serious penalties for failing to comply. The Attorney General’s Office is charged with enforcing the statute. The amendment does not change the existing penalty, which is a fine of between $500 and $2,500. It’s not yet clear to what extent the AG’s Office will seek to enforce the law. Besides these penalties, the new law could cause problems for employers during other employment litigation. If discovery reveals that the employer failed to comply, this could hurt the employer’s credibility.

3. Employers now face a dilemma about documentation. On the one hand, we’re always warning clients to document employee issues as much as possible, just in case the issues go to litigation. On the other hand, the new law makes putting relatively innocuous information into a personnel file a much more-provocative event. Now a quiet, low-level note in a file carries the risk of unnecessarily agitating the employee. Agitated employees become disgruntled employees, and disgruntled employees sue. Under the new law, employers are damned if they do and damned if they don’t.

4. Many employers are required to keep personnel records. If you employ 20 or more workers, then you’re required to keep in personnel records any written information about:

   • identity
   • job title and description
   • pay information
   • start date
   • job application
   • evaluations
   • warnings
   • probationary periods
   • waivers
   • termination notice
   • any documents on discipline

5. The law doesn’t benefit anyone (except lawyers). The amendment snuck in below the radar, without any discussion in the employment-law community. It’s antiemployer, in that it places companies at increased risk for employee lawsuits. While advocates could possibly argue that workers benefit from increased “transparency,” we disagree. There are times when a prudent employer should make a minor note in a file without escalating it to a human-resources event. Employees shouldn’t need to be stressed out by every less-than-positive note made in a file. But the new law makes that unavoidable.

So what do you do now? This is a tricky one. How to handle it depends on your current practice of handling personnel records as well as on your corporate culture. Talk with your employment counsel about devising a strategy for handling employee documentation in light of this new law.

Unfortunately, a paper trail could now take you down the wrong path.

What do you think? Is this going to be a problem for your workplace? Sound off in the comments below.

An organizational belief

As many readers know, I'm a big Red Sox fan. (That might explain my current bad mood, as the possibility of a playoff berth fades away with the end of summer.) Baseball aside, I've often written about the management style and philosophy of the current team. (See "Clubhouse rules.") Here's another example, along with an explanation of the philosophy behind it.

Red Sox first-base coach Ron Johnson has been away from the team for a month. His daughter was in a horrifying accident in Tennessee, where a car hit her while she was horseback riding. Most of the details have been kept out of the media, but the girl ended up losing her leg.

Yesterday, a reporter asked general manager Theo Epstein when he thought Johnson would return. Epstein wouldn't speculate, but his answer gave great insight into how the team treats its employees:

I’ll leave that to RJ or until he lets us make some sort of public disclosure. His priority is with his family, and that’s an organizational belief, that at times of crisis, family comes first. He’s doing a great job supporting his family through this tough time.

My emphasis. The quote's from Sox beat reporter Amalie Benjamin's notebook column in The Boston Globe.

If you're an employer or a manager, ask yourself this: Do you want to be seen as having the kind of workplace where employees' families come first in times of crisis, or do you want to be seen as the kind of workplace that counts days off, demands doctors' notes, and docks pay? I don't know this for sure, but I can pretty much guarantee that the Red Sox are keeping Johnson on salary and not tracking the days he has missed.

If you haven't already, adopt a similar organizational belief. The Red Sox might be destined for third place this season, but they're showing championship-caliber managerial skills here.

Motivating a team by hiding the Benjamins

At the beginning of ESPN's broadcast of last night's Game 1 of the NBA Finals, sideline reporter Doris Burke filed a story about how Boston Celtics head coach Doc Rivers motivated his team to make it to the Finals. Back in February, after the Celtics' only regular-season game at the Staples Center, home of their archrivals and the defending champions Los Angeles Lakers, Rivers got hold of an envelope and took up a collection from his players and staff. Everyone coughed up a hundred dollars — $2,600 in all. Then he told the team he was going to hide the envelope somewhere inside the Staples Center.

Rivers told them: “The only way you’ll get it back is if you come back here and get it.’’ And the only way that was going to happen was by making it to the Finals (assuming, of course, that LA also made it).

On Thursday, Rivers reached up under the drop ceiling in the visitors' locker room and retrieved the dusty envelope — and the $2,600 it contained.

Rivers is known for being a masterful motivator. But did his team of highly paid athletes really need to get their C-notes back? That's not the point. It certainly wasn't the money that motivated the team. By making a dramatic, fun gesture, Rivers got his players to visualize something concrete and real — a bulging envelope — rather than something as intangible as a championship berth four months in the future.

(Of course, the motivation didn't carry into the first game. The Lakers beat the Celts, 102–89.)

Here is the story in the Globe and the Herald.

What about your workplace? Is there some dramatic, fun, and concrete gesture that you could use to motivate your team? Share it in the comments below.