December 23, 2011

Social media ranking: how much “Klout” do you have?

Posted in Facebook, Social Media in the Workplace, Social Media Ranking tagged , , , , , , , at 10:09 am by Tom Jacobson

I’m a 29.  I’m not entirely sure what that means, except that on a scale of 1 to 100, Klout says it’s my social media ranking.  I guess I should try to improve that.

We love to rank things.  From David Letterman’s “Top Ten” lists to  Olympic medals and the latest political polls, there is no end to the hierarchies we create. So, I suppose it should come as no surprise that we now have social media rankings.

According to a  WCCO television report, Sites Help You Manage Your Social Networking Imprint (12/22/11), sites such as Klout and Reppify now track how we use sites like Facebook and Twitter, and they then rank us based on our “influence and social network personality.”

From an employment perspective, social media rankings present an interesting dilemma.  On one hand employers need to rank people in order to make decisions ranging from hiring to firing.  According to Carlson School of Management professor Ravi Bapna, who was quoted in WCCO report, your social media ranking “… sort of gives you a measure in how present you are in other people’s minds.” Thus, knowing an employee’s or applicant’s social media ranking may help an employer better understand that person’s potential sphere of influence.  Bapna sees this as useful for employers.

On the other hand, employers who choose to use social media rankings as an HR tool need to be cautious.  As Bapna notes, a person’s social media ranking is “not based on what this person is telling you in an interview, [but is] based [on] how this person is actually behaving in the real world.”  Making decisions based on someone’s “real world” behavior certainly seems like a good idea, but “real world” behavior might have nothing to do with how well the person does his or her job, and in some cases, a person’s “real world” behaviors are protected by law.  Thus, making decisions about an employee or applicant based on social media posts relating to his/her “real world” behaviors can be risky.

To the extent social media rankings paint an objective picture of a person’s social media clout, they may be useful in some workplaces.  An objective ranking, if gathered as a part of an established policy and procedure, is certainly better information than the Facebook post showing Johnny wearing a lampshade.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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December 14, 2011

Diploma requirement may violate the ADA

Posted in Application Process, Diploma requirements, Disability, Discrimination, Interviewing, Job Descriptions tagged , , , , , at 9:47 am by Tom Jacobson

If you search monster.com or  even the “help wanted” section of any newspaper, the odds are pretty good you’ll stumble upon countless ads where “high school diploma or its equivalent” is listed a job requirement.  That may seem like a pretty innocuous requirement; after all, a diploma certainly indicates the applicant has met someone’s established standards of intelligence and ambition.  However, as the Equal Employment Opportunity Commission (EEOC) has recently stressed, a diploma requirement may violate the Americans with Disabilities Act (ADA).

The EEOC’s comments came in the form of an “informal discussion letter,” which responded to a request for public  comment on the issue.  In that letter, the EEOC noted that there are many individuals who, due to various learning disabilities, may be unable to obtain a high school diploma or its equivalent.  Yet, they may have the skills to perform the essential functions of the job to be filled. “Thus,” the EEOC noted, “if an employer adopts a high school diploma requirement for a job, and that requirement ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.”

Although the EEOC’s  informal letter does not constitute the official opinion of the Commission and does not carry the force or effect of a law or regulation, it serves as a reminder to employers that job requirements must be truly job-related and consistent with business necessity.  Artificial requirements which act as barriers that keep otherwise qualified individuals with disabilities out of the workplace will be subject to challenge.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

December 8, 2011

Botched FMLA leave costs MN employer $12K

Posted in Disability, Family and Medical Leave Act (FMLA), Leaves of Absence tagged , , , , , , , at 10:12 am by Tom Jacobson

When Jim failed to return to work at Happy Trails Home* after his FMLA leave expired, Happy Trails fired him. Although this may seem like the proper course of action, this southern Minnesota health care facility ended up paying Jim $12,000.00 to settle his claims arising from Happy Trails’ botched handling of his leave.

The trouble began when Jim needed time off to recover from surgery. Happy Trails granted his request for FMLA leave, but it used a confusing FMLA designation form. The form said that eligible employees could “take up to 12 or 26 weeks of job-protected leave…”. This led Jim to believe that he had up to 26 weeks of leave. In addition, Happy Trails never clarified for Jim the number of hours, days, or weeks that would be counted against his FMLA leave entitlement.

The problems continued during Jim’s leave. He was ready, willing and able to return to work within about a month after his leave started. His doctor cleared him for light duty work, and he gave those clearances to Happy Trails. Rather than allowing Jim to return to work in a light duty capacity (as it had done for other employees), or working with him to figure out how much longer his FMLA leave would last, Happy Trails simply told him that he could not return to work until the light duty restrictions were lifted. Thus, Jim remained off work until his light duty restrictions were lifted slightly more than 12 weeks after his FMLA leave started.  Even though his restrictions were lifted, Happy Trails refused to bring him back to work.

Jim also claimed that Happy Trails’ failure to allow him to return to work in a light duty capacity violated the Americans with Disabilities Act Amendments Act. Assuming that his shoulder problems were a “disability” under the ADAAA, Jim argued that Happy Trails failed to engaged in an interactive process with him to determine a reasonable accommodation such as job restructuring, a modified work schedule, an ADAAA-based leave of absence, etc.

To make matters worse, Happy Trails changed its story after Jim challenged the company’s decision. First, Happy Trails said they were simply replacing him with someone else who had “seniority.” Then, the company suggested that his termination was related to an old scheduling issue. Eventually, Happy Trails said they let him go because he did not return to work before his leave had expired.

Fortunately for Happy Trails, Jim was able to find a new job within a few months after being discharged; this limited the company’s liability for Jim’s lost wages. Nevertheless, rather than face a lawsuit, Happy Trails agreed to pay Jim $12,000.00 to settle his claims.

Happy Trails learned the hard lesson that managing FMLA leaves is challenging. Federal laws impose a myriad of requirements that apply from start to finish, and failing to dot the “i’s” and cross the “t’s” is costly.  Happy Trails also learned how wavering explanations will damage credibility.

*Names have been changed due to confidentiality.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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