Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Technology blunder lands ex-employee in court

Posted in Non-Competes

From the annals of “Oh, no – I didn’t -“ . . .

The Winston-Salem Journal (my hometown paper – yay!) reports that a company is suing a former employee in the North Carolina Business Court for breach of his confidentiality and non-compete agreements.*

*The article ran in the Winston-Salem Journal but was written by a reporter from the Greensboro News & Record.

Douglas Poling was fired by Evo Corporation (it’s not clear why, but it is possible that Evo learned that Mr. Poling might be getting ready to go to work for a competitor).

Anyway, when Mr. Poling was fired, Evo asked him to return his company-issued iPhone, which Mr. Poling did. However, Mr. Poling didn’t disable the link between his phone and his cloud account. As a result, his text messages continued to “sync” on the phone that was now in the possession of his former employer.

You probably know where this is going.

Evo was able to see text message exchanges between Mr. Poling and his former administrative assistant on the day of termination, such as this:

POLING: Well, they’re getting ready to get [expletive deleted in news article], cause I’m coming straight to them.

He also was caught on text asking his assistant to send him his list of customer contacts and rate sheets for two clients, one of whom was Evo’s largest.

The litigation is still going on, and Mr. Poling has countersued for violation of state privacy and federal wiretapping laws.

The article is funny in a “there-but-for-the-grace-of-God-go-I” sort of way, but the advice is pretty much limited to how employees can cover their tracks: (1) perform a factory reset before turning in your phone, (2) disable your cloud account, (3) “use the cloud judiciously,” (4) don’t sync, and (5) don’t mix business and personal on your accounts.

Maybe another should be, “Don’t violate your non-compete and confidentiality agreements.” I didn’t see that one anywhere.

Can an employee be fired for having too many kids?

Posted in Discrimination, Work-Life Balance

This is my “Labor Day” post. (hehe)

Maternity Ward.flickrCC.MikeKline

You see, she’s in labor . . . and she’s laboring . . . do I have to draw a picture?

Yahoo’s CEO Marissa Mayer announced this week that she is expecting twin girls, and Yahoo’s stock reportedly took an immediate dive. (H8rs!) Mayer said that she plans to take only two weeks off, and she can probably manage that because she has a nice nursery right off her CEO office. (You may recall that she had it built at the same time that she outlawed telecommuting by Yahoo employees. In her defense, I think she’s mellowed a bit since those days.)

Meanwhile, did Hillary Clinton allow her employees to have lives while she was Secretary of State? After all, she did reportedly let them telecommute a couple of times when it snowed. (Thank you ever so much, Mr. Scrooge!)

And why is work-life balance never an issue for male CEOs? Oh.

All of which brings me to this week’s topic: Yes, an employer can fire an employee for having too many kids. Well, not for having the kids, per se, but for not being able to do the job because she (or he) has too many kids.

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Yes, employers may have to accommodate even “crazy” religious beliefs.

Posted in Discrimination

Bless their hearts.

Employers, it is a losing battle to debate theology with your employees who request religious accommodation. If you don’t believe me, ask Consolidated Coal Company and its parent, CONSOL Energy, which have been ordered to pay more than half a million dollars to an employee who retired rather than have his hand scanned by a biometric screener, which he believed was imprinting “the Mark of the Beast” described in the New Testament Book of Revelation. The lawsuit was brought, and won, by the Equal Employment Opportunity Commission. The Defendants have said that they will appeal.

Our own Tommy Eden reported on this case way back in 2013.

Does that “Mark of the Beast” stuff sound crazy to you? It wasn’t crazy to the 35-year employee, Beverly Butcher.

Rte 666.flickrCC.RobLee

“Get your kicks . . . on Route 666 . . .”

The employer started using biometric hand screening to track attendance and hours worked. It accommodated two employees who had fingers missing from their hands, thus proving that accommodation was possible. Mr. Butcher provided a written explanation for his religious belief and offered some non-biometric ways for the company to monitor his comings and goings.

Should the judge have sent Rowan County, Kentucky, court clerk Kim Davis to jail for refusing to issue same-sex marriage licenses? Should her religious beliefs have been accommodated? (Note: Ms. Davis’s situation is different from that of the typical employee because she is an elected official.) Tell us what you think in the comments.

When hell freezes over No dice, said the company. Its biometric screening vendor apparently had faced this question before and had a prepared document explaining that it was not, in fact, placing “the Mark of the Beast” on employees’ hands. The document even purported to interpret Scripture.

Mr. Butcher, reasonably, elected not to take his Bible lessons from a vendor of biometric screening devices, and he retired instead. Then he filed an EEOC charge. Then the EEOC sued on his behalf. Then the company got clobbered in court.

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The on-air shootings at WDBJ-TV: When bad things happen to good employees

Posted in Background Checks, Violence

Alison and Adam, rest in peace.

What could WDBJ7-TV have done to prevent Wednesday morning’s tragic on-air murders? Unfortunately, probably not a thing.

I’m a second-guesser, and I have spent much of the last 48 hours racking my brain about what the CBS affiliate in Roanoke, Virginia, could have done differently. Based on what I’ve been able to discern, the station did everything right.

(I see that Eric Meyer of The Employer Handbook agrees, more or less.)

Here is a rough recreation of my own internal dialogue:

That lawsuit against the station in Tallahassee should have been a big red flag. Yes, we know that Vester Lee Flanagan, II, aka Bryce Williams, filed a discrimination lawsuit (reportedly settled) against his previous employer, a television station in Tallahassee. That was in the year 2000. But Mr. Flanagan wasn’t hired at WDBJ until 2012. Even if WDBJ had done a civil records check before hiring Mr. Flanagan (not likely for a TV job – at most, all they would have done was a criminal check, which it appears would have been clean), they probably wouldn’t have looked back more than 10 years and therefore would have missed the lawsuit.

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4 thoughts on the Ashley Madison hack

Posted in Harassment, Social media

Four quick thoughts on the Ashley Madison hack:

1. Should you post anything on the internet that you wouldn’t want to see on the front page of the New York Times? “No” used to be standard advice, but that isn’t practical any more. I do online banking, but that doesn’t mean I want my financial information all over the internet. Nor my credit card information, which is stored with various online retailers who shall remain nameless but I wrote about one of my favorites last week. It’s unrealistic to expect people to go “all-analog” at this point in our technological development.

2. That having been said, a credit card can be cancelled, and a bank account can be closed and reopened elsewhere. But once your spouse or significant other finds out you’ve been cheating, there isn’t a whole lot you can do to remedy that except grovel and beg for mercy. (Or claim you were hacked. Yeah, that’s the ticket.)

3. If an employer were to call for advice about an employee who was “exposed” in the hack, would I recommend termination? Not unless the employee is in a position in which Continue Reading

Can employees trust Human Resources?

Posted in Corporate Culture

Are Human Resources representatives advocates for employees, or shills for the corporate bigwigs?


“Come share your workplace concerns with me,” said the spider to the fly.

I suppose you’ve been following the story about how Amazon (1) is the worst place in the world to work, (2) no it isn’t, (3) anyway, the New York Times didn’t do good research and based its story on too many anecdotes, and (4) yes, it did do good research, and anyway how are you supposed to do a story like that without anecdotes?

That controversy is not what I’m writing about today – at least, not directly.

After the initial NYT story ran, saying the workplace at Amazon is cutthroat — still uses “forced rankings” and even encourages employees to secretly bad-mouth each other to their bosses, has employees who break down in tears on a daily basis, and put one woman on a Performance Improvement Plan the day after she returned to work after her child was stillborn, among other horrors — CEO Jeff Bezos sent a communication to employees. He said that this did not describe the Amazon he knew, and he told employees to come to him or to Human Resources if they experienced anything like it.

Now, here’s the part that I found interesting: the reaction in the internet comment boxes to Mr. Bezos’ invitation to employees to go to HR. Pretty much, the commenters said “Everybody knows HR is in the can for the corporate bigwigs,” “HR doesn’t give a hoot about the employees,” “If I were having a problem at work, the last place I would go is HR.” OK, those are not actual quotes, but here are a few real ones, and be sure to look at the upvotes they got (all from Daily Mail Online):

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ABA Blawg 100: Only a few days left to vote!

Posted in Uncategorized

And then I’ll shut up. (Until next year.)

Voting for the ABA Blawg 100 will close at 11:59 p.m. Central Time Sunday, August 16. If you have not already done so and are inclined, we would very much appreciate your going over and giving Employment & Labor Insider your vote. You don’t have to be a lawyer, and it won’t take but a minute. Thank you!

Is protected activity part of your job? You may still be protected.

Posted in Retaliation
Woman Indignant.flickrCC.DavidJohns

“Doing your job? The NERVE!”

If you try to prevent or end workplace discrimination as part of your job, is it legal for your employer retaliate against you?

Inquiring HR professionals, in-house lawyers, and counselors want to know!

The U.S. Court of Appeals for the Third Fourth Circuit says no – Title VII’s anti-retaliation protections apply to you, too.

In a very significant decision that all employers should read, a panel of Third Circuit judges sitting by designation for the Fourth Circuit*, said that Title VII protects even “compliance” employees who may be “opposing” discrimination as part of their regular job duties.

*According to the decision, every Fourth Circuit judge had to be recused from hearing the case. I assume this means that the defendants provide health care for Fourth Circuit judges and employees. The Fourth Circuit hears appeals from federal courts in Maryland, the Carolinas, Virginia, and West Virginia.

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Seems like this should be an excused absence.

Posted in Corporate Culture

According to the New York Post, the City of New York fired an employee for missing too much work. Turns out that he had a very good reason for his no-call/no-show: he was dead.

Geoffrey Tolliver, a Medicaid eligibility specialist for the City, went out on a medical leave of absence for cancer in November 2013, and he passed away in December 2014. The City recently moved to terminate his employment because he hadn’t been to work in 18 months. Mr. Tolliver (understandably) did not show up for the hearing, so an administrative law judge approved the termination.

The City says it had been trying to contact Mr. Tolliver for more than a year with no response. Now that it is aware of his death, the City says it will not take any further action.

A friend of Mr. Tolliver was quoted as saying, “He deserves better. The agency itself should have known.”

Indeed. RIP, Mr. Tolliver.