Each week, we post a thought-provoking question for your consideration.  Our theme the past few weeks has been technology and the law.

Here’s last week’s question, along with your responses:

I want to spice up a PowerPoint presentation.  Which of the following are OK legally?

a.  Kicking off the presentation by playing BTO’s Takin’ Care of Business from my iTunes playlist (0%)
b.  Embedding a YouTube video of the SNL “more cowbell” skit to illustrate effective teamwork (0%)
c.  Inserting a photo of Donald Trump into a section about how not to fire employees (6%)
d.  Showing the opening sequence of my Office Space DVD to demonstrate the advantages of telecommuting (0%)
e.  Passing out copies of a Harvard Business Review article on business ethics, including respecting copyright laws (4%)
f.   Linking to one of the deeply inspirational videos on the Blawg (19%)
g.  All of the above (40%)
h.  None of the above (32%)

The correct answer is “f.”  All the other choices could land you in legal hot water.

Copyright is one of the most misunderstood (and frequently violated) areas of the law.  That is especially true as technology continues to morph and the law tries to play catch-up. 

The basic principle is pretty simple:  If you own it, you can use it.  If you don’t, you can’t (unless you pay for it).

While some of the items may be somewhat debatable, the advice we generally get from our technology law gurus is that the only semi-safe choice among the above is linking.  That is particularly true if the site owner clearly owns the rights to the material and encourages linking.  That’s why “f” is the right choice.  (In fact, I’ll go on record right now as saying that you have my permission to link to any of the deeply inspirational and potentially life-changing videos on this site.)

Generally, to use the other items, you’d have to have the copyright owners’ permission.  The problem with that is that (a) it’s a time-consuming pain and (b) expensive.  For example, to get the rights to show an SNL skit, you have to obtain a license from the show’s owners, the individual actors and others.  The cost can be upwards of $5,000.

Some companies opt to obtain general music licenses to allow them to pay music are workplace gatherings.  Click here or here if you’re interested in exploring that option.

The Bottom Line?  Get permission or get creative.

Our readers are now batting a somewhat respectable .462 (12 right, 14 wrong) on our Questions of the Week.  The next one will be coming your way soon.

Thanks for your participation!

Last week, I reported on a pair of topics that have been generating quite a bit of buzz:  babies and guns.

On the baby front, it appears that more and more employers are allowing employees to bring infants into the workplace.  Proponents say that doing so under certain well defined guidelines increases overall productivity and morale.  Time Magazine ran a story on the phenomenon, including this rather pithy quote from a business owner:  “I don’t think a  baby is more distracting than talk about Dancing with the Stars or your weekend.” 

On the gun front, most of the debate centers around a recently enacted Florida statute that will make it unlawful for employers to prohibit employees from bringing guns to work beginning July 1.

We wanted to get your thoughts on the subject, so we asked the following question:

Which should employees be allowed to bring to work?

a.  Babies
b.  Guns
c.  Babies and guns
d.  Neither babies nor guns

The clear winner, with 57% of the votes was “d” — neither babies nor guns.

The runner-up with 31% was “a” — babies.  A somewhat concerning 7% voted for ”c” — babies and guns and 5% voted for ”b” — guns.

I have to say that I echo the sentiments of our voters.  As the father of twins, I hereby heartily applaud employers and employees who can make the “bring the kids to the office” thing workable.  But I can’t even imagine the havoc my two little bundles o’ joy would have wreaked had they been allowed in my workplace on a regular basis.  I once brought them in on a weekend for a total of about 37 seconds and in that time they managed to (a) knock over an entire supply cabinet, (b) spill their juice-filled tippy cups a couple dozen times apiece, (c) get some sort of unidentified gooey/stinky substance all over my keyboard and monitor, (d) make approximately 98 visits to the bathroom and (e) toddle in and out of various cubicles leaving behind creative post-it note displays and a rather impressive wake of destruction everywhere they went.  Just imagine what they could have done had they been heavily armed.

Thanks for your participation!  Our next Question of the Week will be coming your way soon.

Each week, we post a thought-provoking question for your consideration.  Here’s last week’s question, along with your responses:

1 out of every ___ employees has forwarded a sex-related email at work.

a.  50 (12% of the votes)
b.  25 (14% of the votes)
c.  10 (21% of the votes)
d.  5 (35% of the votes)
e.  2 (18% of the votes)
f.   1 (0% of the votes)

The correct answer is “e” – a rather shocking 1 out of every 2 employees, according to a recent Harris Interactive poll.

As anyone who watches NBC’s The Office can attest, ”email forwards” are one of the quickest ways a company can get itself in hot legal water.  That topic was the theme of at least two shows — one in which regional manager Michael Scott inadvertently emailed semi-nude pictures of his boss to virtually the entire company and another in which he declared himself the “king of email forwards” and sent out lots of potential class action material to subordinate employees.  In real life, both instances could have resulted in big $$$ lawsuits.

The lesson?  All it takes is one wayward manager with an itchy “send” finger and –presto – you’ve got lots of potential plaintiffs each of whom has his or her own easily printable piece of documented evidence.

When I was in private practice, sex-related joking was the #1 trigger for most of the sex harassment cases I handled.  People say lots of things in “jest” that they would never say for real.  The problem is that things that seem funny in the context of an office chat may not be so funny when they’re read back to you during a deposition.

So, what should employers do?  Similar to what we’ve discussed the past few weeks, employers should (a) have a policy in place banning inappropriate use of company email and (b) consistently enforce it.  Virtually all employers have the former but, unfortunately, too few practice the latter.  I also heartily recommend that — given the prevalence of sex-related emails — that this topic be specifically addressed in all sex harassment training.

Don’t let this happen to you.  Allow me to repeat what I said the last couple of weeks, with a slightly different twist.  Too often (prior to joining Manpower, of course), I had conversations that went something like this:

HR Person:  We want to fire Joe Sleazebucket.  We caught him sending sex-related emails.

Me:  Do you have a policy that prohibits inappropriate use of the company’s computer systems?

HR Person:  You bet.

Me:  Is it consistently enforced?

HR Person:  Um . . . define “consistently.”

Me:  Well, tell me about recent instances in which you’ve taken action against employees under the policy.

HR Person:  (Long pause)  Umm . . . uhh . . . ehh . . . well . . .

Me:  OK, maybe it’ll be easier to tell me about recent incidents where you DIDN’T enforce the policy.

HR Person:  Well, we didn’t exactly do anything when our CEO forwarded an email to the whole company entitled “The Top Ten Dirtiest Jokes Of All Time.”  Or when our top salesperson got caught downloading naked pictures of himself.  Or when our head of legal “accidentally” visited 287 different porn sites.  Or when (continues to reel off another 12,000 or so examples).

Want more?  For even more discussion on this topic, check out this or this article from Business Week.

Our readers are now batting .480 (12 right, 13 wrong) on our weekly questions.  The next one will be coming your way soon.

Thanks for your participation!

Each week, we post a thought-provoking question for your consideration.

Here’s last week’s question, along with your responses:

Can an employer monitor email and Internet usage and take action based on that monitoring?

a.  Yes (43%)
b.  Yes, if the employee signed a consent form consistent with the model language provided in the NRPA (National Right to Privacy Act) (16%)
c.  It depends on whether the company has a policy deflating any expectation of privacy and whether it’s consistently enforced (41%)
d.  No (0%)

The correct answer is “c.”  Employers need two things here:  (1) a policy deflating any expectation of privacy when using the company’s computer system and (2) consistent enforcement of that policy.  Virtually all employers have the former but, unfortunately, few do the latter.  Inconsistent enforcement can lead to discrimination claims and make it more difficult for you to go after employees who use company property for nefarious purposes.

Another tip:  Any time a lawyer’s answer starts with “it depends,” chances are that’s the correct answer.  Also, there’s no such thing as the NRPA (National Right to Privacy Act).  We made that up.

Allow me to repeat what I said last week.  When I was in private practice before joining Manpower, too often I had conversations like this:

HR Person:  We want to fire Joe Sleaze.  We caught him visiting porn sites at work.

Me:  Do you have a policy that prohibits that?

HR Person:  You bet.

Me:  Is it consistently enforced?

HR Person:  Um . . . define “consistently.”

Me:  Well, tell me about recent instances in which you’ve taken action against employees under the policy.

HR Person:  (Long pause)  Umm . . . uhh . . . ehh . . . well . . .

Me:  OK, maybe it’ll be easier to tell me about recent incidents where you DIDN’T enforce the policy.

HR Person:  Well, we didn’t exactly do anything when our CEO forwarded a racy email to the whole company.  Or when our top salesperson got caught downloading naked pictures of himself.  Or when (continues to reel off another 12,000 or so examples).

Don’t let that be you.  A policy that isn’t enforced isn’t really a policy.

Our readers are now batting an even .500 (12 right, 12 wrong) on our weekly questions.  The next one will be coming your way soon.

Thanks for your participation!

Each week, we post a thought-provoking question for your consideration.  Here’s last week’s question:

What percentage of male employees say they have viewed Internet porn at work?

Here are your responses . . .

a.  .07% (9% of the votes)
b.  9% (6% of the votes)
c.  14% (20% of the votes)
d.  25% (17% of the votes)
e.  33% (33% of the votes)
f.  118% (6% of the votes)

The correct answer is “d”.  According to a recent survey by Harris Interactive, a shocking one out of four male employees say they have viewed Internet porn in the workplace. 

Take a look around you.  If you have 100 male employees, this means that 25 of ‘em have probably gone trolling for porn right there in the office.

So, what should you do?  It’s simple:  (1) have a policy in place that prohibits inappropriate use of company property, including computer systems and (2) consistently and fairly enforce it.  Unfortunately, most companies have #1 covered but utterly fail #2. 

When I was in private practice, too often I had conversations that went something like this:

HR Person:  We want to fire Joe Sleaze.  We caught him visiting porn sites at work.

Me:  Do you have a policy in place that prohibits that?

HR Person:  You bet.

Me:  Is it consistently enforced?

HR Person:  Um . . . define “consistently.”

Me:  Well, tell me about recent instances in which you’ve taken action against employees under the policy.

HR Person:  (Long pause)  Umm . . . uhh . . . ehh . . . well . . .

Me:  OK, maybe it’ll be easier to tell me about recent incidents where you DIDN’T enforce the policy.

HR Person:  Well, we didn’t exactly do anything when our CEO forwarded a racy email to the whole company.  Or when our top salesperson got caught downloading naked pictures of himself.  Or when . . . (HR Person continues to reel off another 12,000 or so examples).

Don’t let that be you.  A policy that isn’t enforced isn’t really a policy.

Our readers are now batting a respectable .522 (12 right, 11 wrong) on our weekly questions.  The next one will be coming your way soon.

Thanks for your participation!

As part of our never-ending quest to give you the finest in employment law tools and tips, we want to make sure that we’re meeting your needs.  Our latest poll was designed to find out exactly what you want.

Here’s what we asked you . . .

What would you like more information about?

In short, your answer was everything.  Each category received at least a couple of votes.

Here are all your responses, ranked in order of popularity:

1. Managing performance (18%)
2. Discipline/termination (17%)
3. Hiring (15%)
4. FLSA (11%)
5. FMLA (10%)
6. Litigation (8%)
7. Investigations (7%)
8. Employment agreements (6%)
9. Harassment (4%)
10. ADA (3%)

We’ll keep these results in mind as we design future Blawg content (as well as content for our seminars and webinars).

Thanks for your participation!  The next Question of the Week will be coming your way soon.

Mark

Each week, we post a thought-provoking question for your consideration.  Here’s last week’s question, along with your answers:

What hit an all-time high in 2007?

a.  Race harassment claims (3%)
b.  Recoveries under the Federal Labor Standards Act (32%)
c.  The number of federal civil trials (5%)
d.  Lies told by elected officials (8%)
e.  Both “a” and “b” (27%)
f.   Both  ”a” and “c” (22%)
g.  None of the above (3%)

The correct answer is “e”:  both racial harassment claims and FLSA recoveries hit an all-time high last year.

According to the EEOC, racial harassment claims have more than doubled since the 1990s and hit a record high of 6,977 last year.  That seems almost unfathomable when you consider that:  (1) the Civil Rights Act has been in place more than forty years; (2) the EEOC has been educating employers and enforcing the law for several decades; (3) virtually all U.S. employers have had anti-harassment and anti-discrimination policies and procedures in place for years; and (4) millions of managers go through diversity and anti-harassment training every year.  What was even more troubling were the allegations in some of the key cases, including racial epithets, death threats and nooses hanging in the workplace.

As for FLSA wage and hour rulings, a study by the law firm of Seyfarth Shaw shows that they have now moved into the #1 overall spot, ahead of even discrimination and ERISA claims.  The DOL alone recovered more than $220 million in back wages in 2007.  At times it seemed there was news of a new multi-million-dollar FLSA class action being filed practically every week.

Our readers are now batting a respectable .545 (12 right, 10 wrong) on our weekly questions.  The next one will be coming your way soon.

Thanks for your participation!

Each week, we post a thought-provoking question for your consideration.  Here’s last week’s question, along with your answers:

What % of employment lawsuits are won by employers?

a.  It is unlawful for employers to win (2% of the votes)
b.  18% (17% of the votes)
c.  30% (24% of the votes)
d.  41% (14% of the votes)
e.  57% (43% of the votes)

The correct answer is “c” — employers only win approximately 30% of all employment lawsuits.

This is another compelling reason why it’s critical for employers to know and follow the law.  Stay up-to-date on the latest developments and make use of the plethora of tools on the Blawg to help reduce your legal risk.

Our readers are now batting .571 (12 right, 9 wrong) on our weekly questions.  The next one will be coming your way soon.

Thanks for your participation!

Each week, we post a thought-provoking question for your consideration. Here’s our last question, along with your answers . . .

What should I do if an employee refuses to sign an evaluation or written warning?

a. Write it the way the employee wants it and ask him/her to sign that. (0%)
b. Fire him/her for insubordination. (2%)
c. Add a statement at the end indicating that the employee disagrees with the contents and ask him/her to sign that. If the employee refuses, indicate that on the document and ask him/her to sign that and then document what transpired in your notes. (97%)
d. Issue the employee a written warning for refusing to sign the written warning and ask him/her to sign that. (1%)

Well done. The correct answer is indeed “c.”

Taking this approach can come in very handy in litigation. It might sound obvious, but on more than one occasion when I was in private practice I had the painful experience of trying to litigate a case where the employee was able to claim that he never saw a key warning or performance because it was unsigned. If you always follow this simple procedure, you’ll never have that problem.

Our viewers are now batting an even .600 (12 right, 8 wrong) on our weekly questions. The next one will be coming your way soon.

Thanks for your participation!

Each week, we post a thought-provoking question for your consideration.  Here’s our last question, along with your answers . . .

In seeking to represent a unit of 100 employees, what is the least number of votes a union could receive and still win an NLRB election?

a.  1 (16%)
b.  30 (20%)
c.  50 (11%)
d.  51 (53%)

The correct answer is “a”:  one is all it takes.  A union only needs to win a simple majority of the votes cast to win an election.  Thus, if only one employee votes — and votes in favor of the union — the union wins.

Our viewers are now batting .579 (11 right, 8 wrong) on our weekly questions.  The next one will be coming your way soon.

Thanks for your participation!