How to Apologize At Work

Posted by Molly DiBiancaOn September 15, 2014In: Jerks at Work

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Humility is a virtue.  And, for most of us, it doesn’t come easily.  Particularly for those of us who want to be good at our jobs and to please to whom we report, owning up to a mistake at work can be a difficult task.  Management professor Robert Sutton offers advice about how to deliver a truly effective apology in his book, Good Boss, Bad Boss.  A recent article about Sutton’s advice summarizes it in three steps.  I'm sorry

1. Own It

When you make a mistake at work, own your actions.  And own them completely.  Don’t combine your apology with an excuse.  Omit the word “but” from every apology.  For example:

Do:  “I apologize.  I sent the shipment sooner than I should have.”

Don’t:  “I apologize.  I thought you said to send it out yesterday.”

The second example sounds more like blame shifting than an apology.  Own up to the error fully.

2.  Don’t Overdo It

The apology should be commensurate with the mistake.  If you miss a big meeting, you should make your apology in person.  If you are 15 minutes late to the meeting, a less formal face-to-face is probably required. 

3.  Offer a Solution

Employees who offer a solution for the problem that they’ve caused come out looking like problem solvers—a positive attribute in any workplace.  Can’t solve the problem?  Then explain what steps you’ve taken to try to solve it.  Just dumping the problem onto another person (particularly your boss) is not a good idea.  At the same time, make it clear that you intend to ensure that the problem not occur again.  Be clear that you won’t make the same mistake twice.

Traveling for Work and Late-Night Emails

Posted by Molly DiBiancaOn September 10, 2014In: Women, Wellness, & Work-Life Balance

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Traveling for work has its pros and cons.  I spent the last two weeks in sunny Santa Monica, California.  I was there to take multiple depositions in an expedited proceeding, which meant that I escaped my hotel room / conference room for a combined total of approximately 4 hours over a 14-day period.  In fact, I didn’t leave my hotel room or the conference room from which we were working at all until Day 4, when I took the extreme liberty of walking to the beach and back.  (Picture below).  I was out of the room for about 10 minutes—I didn’t even put my toes in the sand for fear that I’d never return to the room.

Two weeks felt like a long time to be away from home.  But it also felt like a long time to be away from my regular work routine.  In particular, my email Inbox expanded beyond my normal comfort level, as I prioritized the case that required my attention the most. Sunny Santa Monica

It wasn’t until late in the evening that I was able to make meager headway in responding to emails I’d received for other matters.  But, had it not been for those late-night (and, sometimes, very early morning) email binges, I would never have been able to get caught up upon my return.  I also would have had some very unhappy clients, who require their lawyer’s prompt attention to deal with emergency issues as they arise. 

So I have to question the premise of a recent opinion piece in the NYT, titled, End the Tyranny of 24/7 Email.  The piece features companies, such as Daimler, the German automaker, that sets limits on when employees can send and receive emails.  According to the article, “limiting workplace email seems radical, but it’s a trend in Germany,” where some companies have “adopted policies that limit work-related email to some employees on evenings and weekends.”

On the one hand, putting technical barriers and/or policies in place that restrict certain employees can have its benefits.  In particular, it limits the risks associated with non-exempt employees who send emails during off-hours and who must be paid for that time as time worked.  But it also seems to have some less-than-ideal outcomes.  Specifically, as we move more and more towards a flexible work schedule in an increasingly mobile society, the ability to respond to emails when and where we want can be very important.  And limitations on that ability may not be all its cracked up to be. 

Alas, the work-life balance continues to be more of a juggling act than a graceful performance on a balancing bar. Either way, it’s good to be home. 

Understanding Gender-Identity Discrimination

Posted by Molly DiBiancaOn August 26, 2014In: Gender (Title VII)

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This article was written by Lauren Moak Russell. I’m in California for two weeks, taking depositions, and am very thankful for the contribution in my absence.

This has been a month of major changes in the employment law landscape in Delaware. In addition to the Supreme Court’s three major decisions affecting employment law (addressing retaliation and harassment under Title VII, and the constitutionality of the federal Defense of Marriage Act) and the legalization of gay marriage, Delaware also passed a law prohibiting employment and other types of discrimination on the basis of an individual’s gender identity. Here is what Delaware employers need to know about the new statute.

What Is Gender Identity?

Gender identity is a concept that many individuals outside the transgender community struggle to understand. Gender identity is not the same as sexual orientation (being gay or straight) and it is not simply a matter of wearing clothes commonly associated with the opposite sex. Instead, an individual’s gender identity relates to his or her internal sense of self as male or female, as well as an outward presentation and behavior related to that internal sense of self. Developing from that concept, an individual may be described as transgender when his or her gender identity does not match his or her biological sex at birth. Because gender identity is based on what an individual feels inside, when addressing transgender employees, employers should be guided by the employee’s description of his or her gender, not outward appearance.

Protection Against Gender-Identity Discrimination

On June 19, 2013, the Delaware Discrimination in Employment Act (“DDEA”) was amended to prohibit employment discrimination on the basis of gender identity. The statute defines “gender identity” to mean “a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.” The statute further provides that “[g]ender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity; provided, however, that gender identity shall not be asserted for any improper purpose.”

The DDEA provides the same protection from discrimination based on gender identity as it does for all other protected classifications. In other words, it is unlawful for an employer to discriminate against an employee in any term or condition of employment on the basis of the employee’s gender identity. Only employers with four or more employees are subject to the provisions of the DDEA.

How to Prepare for the Change in Law

In light of the amendments to the DDEA, which are currently in effect, employers should begin educating employees about gender identity, and their non-discrimination obligations. While more than fifteen states currently have laws that prohibit gender-identity discrimination, it is still a concept that is frequently misunderstood. Outlining for employees and managers the differences between sex, gender, and sexual orientation will help individuals to better understand their workplace obligations with respect to the new law.

Employers should also be alert to workplace conduct that may implicate this new protected classification. Common issues implicating gender-identity include “joking” about an individual’s external appearance (e.g. dress, facial hair, or physical build; the use of proper gender pronouns to refer to a transgender individual; and the use of communal bathrooms that are designated for use by gender. While there are no hard and fast rules in addressing these issues, employers should be guided by the transgender employee’s personal preferences, whenever possible.

Bottom Line

Delaware law now protects employees from discrimination on the basis of their gender identity. When preparing for this change, employers should make sure that their employees (managers and subordinates, alike) have a basic understanding of the concept of gender identity, and that they following basic workplace standards of respect. If conflicts or misunderstandings arise, employers should take their lead from the transgender employee—wherever reasonable—in how best to treat the employee with respect.

Delaware Employers Have New Recordkeeping Obligations

Posted by Molly DiBiancaOn August 18, 2014In: Privacy Rights of Employees

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Delaware’s Governor has signed legislation related to the safe destruction of documents containing personal identifying information. The bill is effective January 1, 2015, and requires that commercial entities take all reasonable steps to destroy a consumer’s personal identifying information within the business’s custody and control, when the information is no longer to be retained. Destruction includes shredding, erasing, or otherwise destroying or modifying the personal identifying information to make it entirely unreadable or indecipherable through any means.crumbled paper trash

Personal identifying information includes, but is not limited to, a consumer’s first name or first initial and last name in combination with any one of the following: a signature; date of birth; social security number; passport number; driver’s license number, insurance policy number; or financial information (such as a credit card number).

There are exceptions for federally regulated financial institutions, healthcare organizations subject to HIPAA, consumer reporting agencies subject to the FCRA, and governmental bodies.

Violation of the statute carries stiff penalties, including treble damages.

The legislation is not a model of clarity, and leaves a lot of questions as to how it will be applied to Delaware businesses. Until the courts provide additional guidance, Delaware businesses are well advised to carefully review their document security.

Rebranding Employee Communications, Courtesy of Delta Airlines

Posted by Molly DiBiancaOn August 1, 2014In: Just for Fun

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Communication is key to success. The better employees understand the objective and the rules for achieving the objective, the more productive they are and the more likely it is that the objective will be achieved.  But communication isn’t easy.  In fact, I’d venture to guess that most of us have been in a workplace where the communication was kept to an inner circle,  where the message seemed to be ever-changing, or where the higher-ups didn’t seem to understand how important communication really is.

Yet, the quest for better internal communication seems to be never ending.  Sometimes, the way to tackle a difficult problem is to start over.  Taking a fresh look at an old problem can remind us that simpler is better.  Speak a language that people understand.  Corporate-speak is just plain alienating to most humans. 

Delta offers a great example of the idea that speaking the language of your intended audience is the key to successful communications.  As a tribute to Delta’s first safety video, which premiered in the 1980s, Delta released an 80s-themed safety videos.  The video’s description explains the idea behind a truly entertaining safety video—”to reward even the most frequent of frequent flyers for paying attention.”

Take a look at the video and ask yourself how you can rebrand your message so that your intended audience actually pays attention. 

Have a terrific weekend and happy August!

How NOT to Produce Facebook Evidence

Posted by Molly DiBiancaOn July 23, 2014In: Purely Legal, Social Media in the Workplace

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Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is. ESI Discovery

There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it.  I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it.  Ummmm, no. 

My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply.  Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.

A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI).  In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in “native format.”  (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).

The plaintiffs apparently had attempted to produce the requested items but, instead of producing the responsive material in native format, they . . . [wait for it, wait for it] . . . :

printed out responsive emails and provided photocopies of certain portions of those emails to defendants. Additionally, [one plaintiff] provided the content of several text message exchanges and Facebook posts by transcribing those messages on loose-leaf paper.

The Court granted the motion to compel. 

Initially, I assumed that the producing parties must have been acting pro se (without counsel) because there is just no way that a lawyer would produce text messages and Facebook posts that were “transcribed” on “loose-leaf paper.”  Upon closer review of the opinion, though, it appears that all parties were represented.  Clearly, I am missing something about the course of events that led a party to produce ESI in this “format” (is loose-leaf paper even considered a “format”?). 

What matters, though, is that employers and their counsel be diligent in their efforts to preserve all potentially relevant evidence, including text messages and social-media content, and to preserve it in its original form (native format).  Preservation is the first step.  Maybe we can work on our production skills after that.  I’ll keep my fingers crossed.

Wellin v. Wellin, No. 2:13-cv-1831-DCN, 2014 U.S. Dist. LEXIS 95027 (D.S.C. July 14, 2014).

A Reminder About Comp Time

Posted by Molly DiBiancaOn July 15, 2014In: Fair Labor Standards Act (FLSA), Wages and Benefits

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It’s summer and that means it’s time for summer vacations.  Some employers are unaware of the law regarding when an employee may be paid “comp time” instead of wages.  So here’s a brief recap of what you should know. Comp Time Recap

Rule #1

Absent an exemption (see below), all employees must be paid at an overtime rate of 1.5 times the normal hourly rate for all hours worked in excess of 40.

This means that an employee who earns $20/hr. must be paid $30/hr for each hour worked over 40.

If the employee works 40 hours, he is paid $20 x 40 = $800.  If he works 42 hours, he is paid $20 x 40 ($800) plus $30 x 2 ($60) as overtime compensation.

But he may not be paid his regular rate for the first 40 hours ($800) plus 2 hours of “comp time.”  No, no, no.  All time in excess of 40 must be paid (money in an amount equal to) 1.5 times the normal hourly rate. 

Rule #2

Provided the employer complies with Rule #1, the employer may offer comp time as a supplemental form of wages.

One common example of this is paying comp time for hours 35-40.  So, in addition to his regular wage of $800, the employee may also be paid 5 hours in comp time as an incentive or reward for working those last five hours.  Similarly, some employers offer comp time for premium shifts. 

Both scenarios are totally kosher, so long as the employee is receiving his regular wage.  Comp time is a supplement not a substitute.

Rule #3

As with any rule, there are exceptions.

But, with comp time, the exceptions are few.  An employer may pay an employee comp time in lieu of  wages in certain situations.  First, exempt employees (those who are not entitled to overtime in the first instance) can be paid comp time for time worked in excess of 40 in a week.

Second, certain public-sector employees may be paid comp time, including state and local government employers.  In the public sector, under certain conditions, employees may receive compensatory time off at a rate of 1.5 hours for each overtime worked, instead of cash overtime pay. 

Law enforcement, fire protection, and emergency response personnel and employees engaged in seasonal activities may accrue up to 480 hours of comp time; all other state and local government employees may accrue up to 240 hours.

Recap

There are exceptions to every rule.  For example, some states do not permit the use of comp time or limit accrual to a lesser number than provided by federal law.  Before you implement a comp-time system in your workplace, you should consider having it reviewed with legal counsel.  And, if you have a comp-time system in place for non-exempt employees as a substitute for overtime pay, you should consider consulting with your employment lawyer to determine whether the system violates state or federal wage payment laws.

See also U.S. DOL Fact Sheet #7 State & Local Governments Under the FLSA

Other FLSA posts

Waiver of Attorney-Client Privilege Via Facebook

Posted by Molly DiBiancaOn July 10, 2014In: Purely Legal, Social Media in the Workplace

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Breaches of confidentiality via Facebook and other social media are more common than most of us would like to think.  Employees post information about customers, clients, and patients on Facebook, in violation of internal company policies and privacy laws, such as HIPAA, for example.  I recently wrote about a plaintiff who could not collect a sizeable settlement payment because his daughter posted about the settlement on Facebook, which served to demonstrate that her father had breached the confidentiality provision in the settlement agreement.  Waiver of Privilege via Facebook

There’s another reason to be concerned about what employees say on social-networking sites—waiver of the attorney-client privilege.  The general rule is that confidential communications between an attorney and her client are subject to the privilege and are not subject to discovery by the opposing side.  Privilege can be waived, however.  And one way for a client to waive privilege is to have the communication in the presence of a third party.  Another way is for the client to tell a third party about the communication between himself and his lawyer. 

For example, Lawyer and Client meet to discuss strategy regarding litigation.  This conversation would be privileged.  If Client brings his friend to the meeting, the conversation would not be privileged.  And, if Client did not bring his friend but reported the conversation to his friend after the meeting was over, the privilege would be lost. 

Communicating an otherwise privileged conversation via Facebook is no different than if done via telephone or in person.  A case decided earlier this week in a federal court in Nebraska reminds us of this risk.  In Kaiser v. Gallup, Inc., the employee-plaintiff filed suit under the ADA against her former employer.  During discovery, the employer learned that the plaintiff had communicated with her cousin, who was a lawyer, about events leading up to the plaintiff’s termination.  The employer also discovered that the plaintiff had discussed the  communications with her cousin (the lawyer) via Facebook. 

The employer sought to compel the plaintiff to produce those communications.  In response, the plaintiff contended that they were protected by the attorney-client privilege because, at the time the communications were made, her cousin represented her as counsel in her unemployment-benefits claim.  The employer argued that, even if the privilege had once applied, the plaintiff waived it when she discussed the communications with third parties.  The plaintiff failed to show that she hadn’t waived the privilege and the court granted the employer’s motion. 

This case, and others like it, serve as a good reminder that confidential information should not be shared through any medium, including social media.  Posting it to Facebook is, contrary to popular belief, the equivalent to sharing it on the phone, in an email, or in person.  If it’s a secret—it doesn’t belong on Facebook. 

Kaiser v. Gallup, Inc., No. 8:13CV218, 2014 U.S. Dist. LEXIS 92588 (D. Neb. July 8, 2014).

Delaware Gov. to Sign Law Expanding Retaliation Protection for Whistleblowers

Posted by Molly DiBiancaOn July 2, 2014In: Delaware Specific, Legislative Update, Retaliation

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Delaware Gov. Jack Markell signed into law legislation that expands the protections provided to employee-whistleblowers.  H.B. 300 extends whistleblower protections to employees who report noncompliance with the State’s campaign-contribution laws,who participate in an investigation or hearing regarding an alleged violation of the campaign-contribution laws, or who refuses to violate the campaign-contribution laws. Whistleblower

The practical effect of this new protection is limited, as it applies to a fairly narrow group of employees—those whose employer has some involvement in political fundraising.  But it serves as an excellent reminder about the importance of preventing unlawful retaliation.

Retaliation claims continue to top the list of claims filed with the EEOC.  Not only are they popular but they are some of the most successful for plaintiffs.  The reason for its popularity and its success is the same—retaliation happens.

Thankfully, most of us are not targets of workplace discrimination based on our race, gender, or disability.  But I’d challenge anyone to say that they’ve really never been the target of retaliation.  If you made a critical comment about a co-worker in front of your boss, you were probably subject to retaliation by that co-worker.  The retaliation could have been mild—maybe you don’t get invited to lunch that day.  It could be more overt—maybe a flat-out refusal to help the next time you request assistance from the co-worker.  Or it could be more covert—the coworker quietly (but intentionally) sows the seeds of poor performance with your boss, telling your boss every time you don’t make a meeting on time or leave early on a Friday. 

All of these things constitute retaliation.  But they’re not unlawful retaliation because they are not in response to you having engaged in a protected activity, such as reporting workplace discrimination or, now, refusing to violate the campaign-contribution law. 

So, how can employers prevent unlawful retaliation?  The key, in my opinion, is taking a step back.  We’ve all had our feelings hurt when a co-worker points out an error in our work while the boss is standing there.  But, the key is to take a step back, realize that you’re a rational, logical, thinking adult.  And move on.  No grudge holding.  It makes life far more difficult than necessary. 

See also

U.S.S.C. Clarifies the Applicable Standard for Retaliation Claims

Manager's Drunk Facebook Post Leads to Retaliation Claim

3d Cir. Issues a Bitchin' Constructive Discharge Decision

Business Is Booming . . . for the EEOC, Anyway

People First Language: Delaware Legislation Gets It Right

Posted by Molly DiBiancaOn July 1, 2014In: Delaware Specific, Disabilities (ADA), Legislative Update

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Delaware’s General Assembly has passed a law “relating to the removal of insensitive and offensive language.”  When I first saw the title of this Act, I admit, I was alarmed that our State’s legislature was banning profanity in some context.  I was relieved to read the text of the law, though, and learn exactly what it actually does provide.  People First Lanuauge

According to the synopsis, the bill is part of a national movement, known as People First Language (“PFL”) legislation, intended to “promote dignity and inclusion for people with disabilities.”  PFL requires that, when describing an individual, the person come first, and the description of the person come second. 

For example, when using PFL, terms such as “the disabled” would be phrased, “persons with disabilities.”  This language emphasizes that individuals are people first and that their disabilities are secondary.  I think this is an outstanding initiative.

First, it is far easier to do (or say) the right thing when we know what the right thing is.  So legislation like this, which makes clear what is (and is not) the right thing to say, is always helpful.  Second, I think the approach is spot on.  Individuals are people first. The same concept applies to all protected characteristics. 

I have received countless calls from clients seeking advice with regard to a potential termination of an employee.  The call often starts out like this: “We have an employee who is in a protected class and who is always late to work and who constantly undermines her coworkers.”

If the PFL concept were applied, the call would start out, instead, like this: “We have an employee who is always late to work and who constantly undermines her coworkers.” 

What matters is what the employee is doing (or failing to do) with respect to her job—not that she is “in a protected class.”  Start off by addressing what actually matters.  Everything else, including a discussion about potential accommodations, etc., will follow if and when it’s appropriate. 

See also, previous posts regarding Disabilities in the Workplace.

Facebook Post Means No Unemployment Benefits for Nurse

Posted by Molly DiBiancaOn June 22, 2014In: Social Media in the Workplace

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Joseph Talbot worked as a nurse at Desert View Care Center until he was terminated for violating the employer’s social-media policy. In the Facebook post that triggered his termination, Talbot wrote:

Ever have one of those days where you’d like to slap the ever loving bat snot out of a patient who is just being a jerk because they can? Nurses shouldn’t have to take abuse from you just because you are sick. In fact, it makes me less motivated to make sure your call light gets answered every time when I know that the minute I step into the room I’ll be greeted by a deluge of insults.

One of Talbot’s Facebook friends, a nursing professor, reported the post to the employer, expressing concerns about resident safety. Talbot said he was “just venting.” The employer fired him, citing the company’s social-media policy.

Talbot sought unemployment insurance benefits but his claim was denied b/c he was discharged for violating the company’s policy. Talbot appealed and the Appeals Examiner reversed the initial denial decision, finding that he had not been terminated for employment-related misconduct. The employer appealed and the decision was reversed and Talbot was denied unemployment benefits. Talbot appealed to the Idaho Supreme Court.

The high court upheld the denial of benefits, finding that the employer had satisfied each of the three required elements. Most import was the court’s finding that the employer had an expectation that its nurses would not make threatening statements about a patient on Facebook and that Talbot failed to meet the employer’s expectations. Talbot argued that his post was not a threat—it was merely a “rhetorical statement meant to initiate discussion.”

But this argument misses the point. The employer did not claim that Talbot’s post was an actual threat—only that it was “threatening.” There is a difference, it seems to me. “Threatening” language or comments can cause harm, regardless of intent. Personally, if I had a family member who was a patient at Desert View Care Center, I would have had significant reservations about the quality of care they would receive from Talbot. I wouldn’t necessarily think he had made a “threat”—only that his attitude was less than ideal for a caregiver. And the nursing professor who reported the post, apparently, thought so, too.

This is consistent with the First Amendment case law in the context of social-media and Free Speech. When an employer is faced with potential harms arising from an employee’s social-media post, the employer need not wait until those harms actually occur before taking action. Here, Desert Care was not required to wait until Talbot actually neglected a patient who, in Talbot’s opinion, complained too much. The employer can (and should) take action to ensure that the harms do not occur in the first instance.

Was this a tough break for Talbot? Maybe. But would it have been a really tough break for Desert Care if word got around that its nurses gave less attention to patients they didn’t like? Most definitely. And, especially in the health-care context, it’s not merely the employer’s prerogative to prevent bad outcomes but its duty.

For a different take on this case, see Eric Goldman’s Technology & Marketing Law Blog

Talbot v. Desert View Care Ctr., No. 41208 (Idaho, June 20, 2014).

Jurors Behaving Badly

Posted by Molly DiBiancaOn June 16, 2014In: Purely Legal, Social Media in the Workplace

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Jurors misbehaving have been making a lot of news headlines lately.  And jurors’ online research is one of the most commonly reported problems in this area. Jurors Behaving Badly

In May 2014, for example, a jury awarded the plaintiff, a former police officer, $300,000 in compensatory damages and $7.2 million in punitive damages based on its finding of unlawful sexual harassment and retaliation.  The employer appealed the judgment after a juror acknowledged that, during deliberations, he Googled the phrase, “where do punitive damages go” and, after reading a Wikipedia entry on the subject, told his fellow jurors that the plaintiff would receive some or all of such an award.

Delaware has not been immune from this problem.  In May, the Delaware Supreme Court reversed a final judgment following a jury verdict due to alleged juror misconduct.  In Baird v. Owczark, the plaintiff moved for a new trial on several grounds, including juror misconduct.  In the two weeks after the jury had delivered its verdict, one of the jurors wrote a letter to the trial judge informing him that another juror had conducted online research during deliberations.

The court heard oral argument about the alleged misconduct but did not conduct an investigation.  The Supreme Court reversed and remanded, finding that the Delaware Constitution mandates an investigation following allegations of juror misconduct.  Such an investigation is mandatory even where the trial court gave clear instructions regarding the use of the Internet as a source of extrinsic information.

Baird v. Owczark, No. 504 (Del. May 28, 2014).

See also

Peek-a-Boo, I See You: Juror Contact Via LinkedIn

3d Cir. "Likes" Jury Instructions on Social Media

Auto-Deduct Meal-Break Policies Live to See Another Day

Posted by Molly DiBiancaOn June 11, 2014In: Fair Labor Standards Act (FLSA)

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The number of FLSA lawsuits filed each year continues to rise.  See The Wage & Hour Litigation Epidemic Continues, at Seyfarth Shaw’s Wage & Hour Litigation Blog.  Often, the lawsuits follow certain trends, targeting a particular industry, job type, or claim.  One such trend, which I’ve written about previously, is meal-break claims.  In these suits, the plaintiffs allege that their pay was automatically deducted for meal breaks that they never received. Auto-Deduct Meal Break Policies FLSA

Although this has been a popular claim, it’s not been a very successful one.  And a recent case from the Eastern District of New York gives employers real reason to believe that meal-break claims are all but dead upon arrival.

In DeSilva v. North Shore-Long Island Jewish Health System, Inc., the court decertified a collective action of 1,196 plaintiffs who had alleged that they were subject to automatic deduction of meal breaks that they didn’t receive.  In its opinion, the court makes clear that such claims will have a difficult time proceeding as a collective action:

In the time since this action was initially filed, mounting precedent supports the proposition that [the employer’s] timekeeping system and system-wide overtime compensation policies are lawful under the FLSA. 

The court explains that this “mounting precedent” has resolved any doubt about the validity of auto-deduct policies, which require an employee to report a missed break to his supervisor in order to be paid for it.  If no report of a missed break is made, the break period (usually 30 minutes) is automatically deducted from the time worked.  This timekeeping system has the benefit of not requiring that employees clock in and out during their breaks—only at the beginning and end of each shift.  The court reiterated that “automatic meal deduction policies are not per se illegal” and:

[w]ithout more, a legal automatic meal deduction for previously scheduled breaks cannot serve as the common bond around which an FLSA collective action may be formed."

This decision continues to build on the growing body of case law dismissing or decertifying FLSA collective and class actions arising from auto-deduct meal-break policies.  Good news for employers, particularly in health care, where these policies are commonplace.

DeSilva v. N. Shore-Long Island Jewish Health System, Inc., No. 10-CV-1341 (PKC) (WDW), 2014 U.S. Dist. LEXIS 77669 (E.D.N.Y. June 5, 2014). 

 

See also

2d Cir. Drops the FLSA Hammer (Dejesus v. HF Mgmt’s Servs., LLC, No. 12-4565 (2d Cir. Aug. 5, 2013).

Another Auto-Deduct Case Bites the Dust (Raposo v. Garelick Farms, LLC (D. Mass. July 11, 2013)).

8th Cir- FLSA Plaintiffs Must Spell It Out (Carmody v. Kan. City Bd. of Police Comm’rs (8th Cir. Apr. 23, 2013)).

2d Cir- FLSA Does Not Cover Gap Time (Lundy v. Catholic Health Sys. (2d Cir. Mar. 1, 2013)).

Another Employer's Auto-Deduct Policy Is Upheld (Creeley v. HCR ManorCare, Inc., (N.D. Ohio Jan. 31, 2013)).

6th Cir. Affirms Dismissal of FLSA Gotcha Litigation (White v. Baptist Mem'l Health Care Corp. (6th Cir. Nov. 6, 2012)).

The Legality of Automatically Deducting Meal Breaks (Camilotes v. Resurrection Health Care Corp. (N.D. Ill. Oct. 4, 2012)).

E.D. Pa. Dismisses Nurses' Claims for Missed Meal Breaks, Part I and Part II (Lynn v. Jefferson Health Sys., Inc. (E.D. Pa. Aug. 8, 2012)).

FLSA Victory: Class Certification Denied (Pennington v. Integrity Comm’n, LLC (E.D. Mo. Oct. 11, 2012)).

Calling Your Students "Hoes" Can (And Should) Get You Fired

Posted by Molly DiBiancaOn June 5, 2014In: Off-Duty Conduct, Public Sector, Social Media in the Workplace

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During the 2007-2008 school year, Ms. Kimble was employed as a cook and cheerleading coach at a high school.  In December 2007, she took the cheerleaders on an overnight Christmas party held in a cabin located outside the county.  The trip was not approved as was required by district policy.  When administration learned about the trip, Ms. Kimble was instructed that all future out-of-county trips must have prior approval.

The following year, Ms. Kimble worked as a cook at an elementary school and as the cheerleading coach at the same high school at which she had coached the prior year.  In December 2008, Ms. Kimble took the cheerleaders to the same cabin for another overnight Christmas party.  Ms. Kimble and a parent went as "chaperones" but Ms. Kimble did not seek or obtain approval for the trip.

During the party, Ms. Kimble was photographed in the hot tub, surrounded by several female cheerleaders.  Although Ms. Kimble was clothed, most of the girls were topless.  All of the girls were minors. 

Ms. Kimble posted several photos of the party on her MySpace page, although the girls were fully clothed in all of the pictures that she posted.  To one of the photos, in which the girls were wearing Santa Claus hats, Ms. Kimble added the caption:

my girls acting like their self[sic] . . . hoes.

The photos were discovered and reported to the school and Ms. Kimble was suspended without pay.  After a hearing, she was terminated from both her position as cook and as coach based on the determination that she had committed insubordination, immoral conduct, and sexual harassment. 

Ms. Kimble challenged the termination.  An administrative law judge overturned the board's decision to terminate her from her position as cook.  The board appealed and the circuit court affirmed the finding of the ALJ.  The board appealed to the state's highest court, which reversed, siding with the board and finding the termination lawful. 

As the grounds for its opinion, the state's Supreme Court held that Ms. Kimble had been insubordinate by ignoring the directive and policy to first obtain permission from the school prior to taking students on any out-of-county trip.  That was the easy part.

The more difficult part (at least for the ALJ and the lower court), was the finding that Ms. Kimble had, indeed, engaged in immoral conduct by:

sitting in a hot tub surrounded, literally, by several topless female students.

The court also found that calling your minor students "hoes" also is relevant to the immorality question. 

Finally, the court rejected Ms. Kimble's argument that she could not be disciplined for conduct that occurred off duty.  This argument is a favorite among plaintiff-employees everywhere but always a loser.  The conduct was within the scope of Ms. Kimble's employment--she, as cheerleading coach, took cheerleaders on an authorized trip outside the county, was photographed with several of them topless, and then called them "hoes" on her MySpace page. 

The fact that she was not on duty at the time of these acts does not serve as a defense.  This case serves as yet another example of how off-duty conduct can (and should) serve as a basis for discipline and/or termination.  When an employee engages in conduct off-duty that undermines or interferes with his or her ability to effectively carry out his or her job duties, discipline is appropriate . . . and lawful.  The same rule applies when the conduct is carried out in cyberspace, particularly on social-media sites.

On the most basic level, it's difficult to imagine that the parents of the female students would appreciate their daughters being called "hoes" by anyone but especially not by their cheerleading coach. 

Kanawha County Bd. of Ed. v. Kimble, No. 13-0810, 2014 W. Va. LEXIS 584 (W. Va. May 30, 2014).

Are Your Employees Takers or Givers?

Posted by Molly DiBiancaOn May 28, 2014In: Jerks at Work

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Employers should hire nice people.  That’s according to Adam Grant, author of Give and Take, anyway.  Grant writes that there are three types of employees: Takers, Matchers, and Givers.  And he advocates that employers should focus their hiring efforts on the last type—Givers are good, in other words.   image

Takers, as you may have guessed, are people who put their own interests first.  Workplace bullies fall into this category, of course.  Matchers believe in quid pro quo—something for something.  Most employees fall into this category.  Then there are Givers.  Givers do nice things for others with no expectation of reciprocity, writes Seth Stevenson at Slate.com.

The problem with Givers, though, is that they can be too nice.  More often than not, they are so selfless, they spend too much time helping others and, as a result, are overlooked for promotions and other opportunities.

But that is not the case for all Givers, says Grant.  Some Givers make it all of the way to the top.  Takers and Matchers, on the other hand, get stuck in the middle.  Why? According to Grant, Givers will because people like them for all of those selfless acts. 

So, in a sense, what Grant is saying is that success is a type of long-term popularity contest.  He is also saying that employers should hire nice people. What he doesn’t say is that employers should take care to help the Givers avoid getting run over or falling behind because of their commitment to kindness.

Have a nice day. 

See also:

Is Your Boss a Bert or an Ernie?

Workplace Revenge and the Equal Opportunity Jerk

Management Monday: Quit Oversharing