April 2008 Archives

Fraudulent Sexual Harassment Claim Prompts Law Firm to File Preemptive Suit Against Sordid Secretary

Posted by Molly DiBiancaOn April 30, 2008In: Delaware Specific, Newsworthy

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An employer sues an employee before the employee sues first. To some employers who have endured the bitter pill of meritless litigation filed by an ex-employee, this sounds like a dream come true. To most employment law attorneys, this sounds like a dream world.

The New York Law Journal published a fascinating, if sordid, story last week titled, NY Law Firm Preemptively Sues Secretary Who Threatened Rape Suit Against Partner. The story involves a complaint filed by a law firm, Bivona & Cohen, against a secretary, Windy Richards. According to the complaint, Ms. Richards had performance problems and decided to try to hang onto her job in an, well, an unusual way.

Allegedly, she targeted a partner who she knew had a drinking problem. The opportune moment arrived. While the partner was impaired by alcohol, Richards performed a lap dance for him. Next, she obtained "evidence" on a towel, demonstrating at least some kind of sexual encounter (think Monica). Then she hired a lawyer, who demanded $9 million to settle her claim that the partner in question had sexually harassed and ultimately raped her.

But the law firm beat her to the courthouse, filing a preemptive suit againt the sordid secretary. The suit asserts claims of defamation, tortious interference and intentional infliction of emotional distress. In addition, the suit seeks a declaratory judgment that the secretary was not harassed or harmed by the partner. Additionally, the firm seeks a judgment declaring that the firm may lawfully fire her for providing a false social security number to conceal a 1991 drug-related criminal conviction.

The partner has been disciplined in a manner not disclosed in the lawsuit (although the filing of the lawsuit publicizing the alleged drinking problem and lap dance incident may be viewed as significant disciplinary action all by itself). The secretary is on paid leave. No doubt the secretary's answer to the complaint will include counterclaims for sexual harassment and retaliation.

The law firm's strategy is highly unusual, but not unprecedented. A few years ago, Fox News host Bill O'Reilly did the same thing, and was represented by the same attorney, Ronald Green of Epstein, Becker & Green. In that case, O'Reilly accused his accuser, who had been trying to negotiate a settlement of a sexual harassment claim, of attempted extortion. Trouble is, as pointed out by The National Law Journal, currently, attempted extortion is a crime, not a basis for a civil lawsuit.

The Link Between Race & Obesity: Disparate Impact Waiting to Happen?

Posted by Molly DiBiancaOn April 29, 2008In: Off-Duty Conduct, Race (Title VII)

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Employers face another obesity obstacle.

As everyone knows, Americans have been gaining more and more weight over the past forty years or so, as confirmed by the National Institute of Health’s website. Reading the recent post in this blog about obesity policies made me wonder whether the Americans with Disabilities Act is the only law that such a policy might conflict with. What about Title VII of the Civil Rights Act of 1964?

One of the lesser-known ways of getting into trouble under Title VII is through unintentional discrimination, also known as “disparate impact.” That’s where an employer adopts what appears to be a race-neutral, gender-neutral rule for making selection decisions such as hiring, promoting or terminating employees.

If the policy adversely affects one race or gender more than another, the employer will have to show that the rule is “job related for the position in question and consistent with business necessity.” If the employer can make this showing, the plaintiff is must point to an available alternative practice that does not have a discriminatory effect.

So my question is, would an anti-obesity policy have an adverse impact on any protected group? Here’s what the NIH website says:

Q: What is the prevalence of overweight or obesity in minorities?
A: Among women, the age-adjusted prevalence of overweight or obesity (BMI > 25) in racial and ethnic minorities is higher among non-Hispanic Black and Mexican-American women than among non-Hispanic White women. Among men, there is little difference in prevalence among these three groups [6]. Sufficient data for other racial and ethnic minorities has not yet been collected.

    Non-Hispanic Black Women: 79.6 percent Mexican-American Women: 73 percent Non-Hispanic White Women: 57.6 percent

    Non-Hispanic Black Men: 67 percent
    Mexican-American Men: 74.6 percent
    Non-Hispanic White Men: 71 percent

(Statistics are for populations age 20 and older.)

Studies using this definition of overweight and obesity provide ethnicity-specific data only for these three racial and ethnic groups. Studies using different BMI cutoff points derived from NHANES II data to define overweight and obesity have reported a high prevalence of overweight and obesity among Hispanics and American Indians. The prevalence of overweight and obesity in Asian Americans is lower than in the population as a whole.

A study published in the Epidemiologic Review similarly reports that “[m]inority and low-socioeconomic-status groups are disproportionately affected at all ages” by obesity. The prevalence of obesity also increases with age, according to the same study.

It’s food for thought, and perhaps more fodder for creative plaintiffs’ attorneys or the EEOC.

U.S. Businesses Recognize the High Cost of Obesity--Should Delaware Employers Do the Same?

Posted by Molly DiBiancaOn April 29, 2008In: Off-Duty Conduct

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Delaware businesses, if you worry about obesity and its effects on your workforce, you are not alone. Across the country, there has been a sharp turn in focus by major businesses and commercial organizations. The focus shift has been towards obesity as a costly characteristic of our modern workforce.
Obesity & Employers

As discussed in earlier posts, many observers worry that the current trend in refusing to hire smokers will spill over to other areas of employees' health. Obesity is commonly cited as the next likely target.

There is, certainly, some logic behind the argument. One place to find support for the idea of regulating employee's waistlines can be found in the report by The Conference Board, Weights and Measures: What Employers Should Know about Obesity. In its report, the Conference Board examines the financial and ethical questions surrounding whether, and how, U.S. companies should address the obesity epidemic. The report was featured on April 9th's episode of Marketplace, public radio's popular business program.

Some of the findings from the study include:

      ~Obesity is associated with a 36-percent increase in spending on healthcare services, more than smoking or problem drinking.

      ~More than 40 percent of U.S. companies have implemented obesity-reduction programs, and 24 percent more said they plan to do so in 2008.

      ~Estimates of ROI for wellness programs range from zero to $5 per $1 invested.

      ~ROI aside, these programs may give companies an edge in recruiting and retaining desirable employees.

      ~Meanwhile, some say it may be more effective just to award employees cash and prizes for weight loss rather than devote resources to long-term wellness programs.

      ~Employers need to weigh the risks of being too intrusive in managing obese employees against the risks of not managing them

But NPR isn't the only organization tuned in to the obesity debate. Bloomberg.com also featured the Conference Board's findings this month, as did Forbes.com. Human Resources professionals are also turning towards the issue, as demonstrated by the articles at Society for Human Resource Management ("SHRM"), The Salary Reporter, and this article by Larry J. Rector from the West Virginia Employment Law Letter, which can be found through the H.R. Hero website.

If these big-name players have turned their focus to the "obesity crisis," should Delaware employers do the same?

For previous posts about the increasingly close involvement employers have in the private health matters of their employees:

Off-Duty Conduct in the News

There's No Hiding From Your Own Bad Habits

Are Today's Wellness Programs Running Out of Steam?

DOL Offers Compliance Tool for Wellness Programs

Is Obesity the Next Protected Class?

The Link Between Race & Obesity

"No Jerks Allowed". . . Catchy, Isn't It?

Posted by Molly DiBiancaOn April 29, 2008In: Jerks at Work

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Robert Sutton's book, The No A**hole Rule, has been an eye-opener to many, myself included. In his book, Sanford Professor Bob Sutton (pictured below) addresses a message sure to resonate with every employee who has ever worked with or for a toxic coworker or boss.

Robert Sutton at Sanford

Michael P. Masklanka, managing partner of Ford & Harrison in Dallas, has written a top-rate article for the April 2008 edition of In-House Texas titled, No Jerks Allowed: How and Why to Stop Angry, Rude and Demeaning Workplace Behavior.

The piece is heavy on the human-touch element that is essential for an effective work environment. But for each antecdote, Maslanka follows up with a hard-hitting statistic, many of which derived from Robert Sutton's book (or, as I like to call it, "The HR Bible"), The No A**hole Rule.

Mike has been kind enough to share the article with our readers up North. Here's an excerpt to whet the appetitie. Mike is discussing the revealing results of a "jerk experiment":

41 employees carried a palm-sized computer for two to three weeks. Researchers prompted the employees at random intervals to answer questions about their interactions with co-workers and then to rate their resulting feelings as positive, negative or neutral. Here's the expected: 30 percent were positive interactions, 10 percent negative, the rest neutral. Here's the unexpected: The negative interactions had a fivefold stronger effect on mood than the positive ones and thus took much longer to get over. Talk about radioactive.

For those of you who, like myself, are strongly "anti-jerk,"this article is a must-read. Thanks, Mike!

For prior posts on Bullying and Jerks in the Workplace, see:

Are Bullies Beating Up Your Employees' Health?

The Cost of Bully Legislation

Bullying in the Workplace is Water Cooler Talk on Good Morning America

Bullying Gets Physical, . . . But Torture?

Is Obesity the Next Protected Class?

Posted by Molly DiBiancaOn April 28, 2008In: Off-Duty Conduct

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Employers and smokers have been making headlines. Just last week, Whirlpool made the news when it terminated 39 employees after they were caught smoking, despite having signed statements when they were hired swearing that they were non-smokers.
Girl Scout Cookies

Over the past several years, it has become more and more common for employers to have stopped hiring smokers or to require smokers to pay higher premiums for health insurance. But not everyone agrees with the idea of punishing employees based on health-related factors. Some cite privacy concerns and paternalism as reasons why employers should not become involved in what employees do off the job. And others worry about what will come next. Currently, it is socially acceptable to ostracize smokers. And, in most states, including Delaware, there's nothing unlawful about it.

But what about other health factors, like obesity? Will employers next target overweight and obese employees with higher health care premiums? Will businesses refuse to hire applicants who are over a certain body mass index (BMI)?

Some employers, like Westgate Resorts, a vacation-properties company based in Orlando, Florida, are trying to push employees into healthy lifestyles, which includes reducing obestity. At Westgate, employees aren't penalized to lose weight but those who do are rewarded with a variety of incentives. Michigan is the only state, in addition to the District of Columbia, to prohibit discrimination based on weight. But, in other states like Delaware, where obesity is not a protected class, there would be little legal risk to implementing a weight-reduction policy. Of course, as my mother would say, "Just because you can, doesn't mean you should."

Employers should consider non-legal implications of such a policy. For example, how to define "obese." If BMI is the only determining factor, you might not have many employees--more than two-thirds of Americans qualify under this definition. Or what about the woman who gained 60 lbs during pregnancy and isn't in a real rush to get lose it right away? And how do you handle an employee who states that his obesity is related to another medical condition. This would sound the alarms of both HIPPA and the Americans With Disabilities Act (ADA). And would gastric bypass or other bariatric surgeries be pushed on employees as a "solution" to weight struggles? How will they regulate weight on a more organic level?

For example, will there be a ban on the sale of Girl Scout cookies?

That announcement would make headlines, for sure.

Want Engaged Employees? A Good Reward Goes A Long Way

Posted by Molly DiBiancaOn April 28, 2008In: Employee Engagement

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A downward economy is the perfect time to motivate employees and reward worker bees.

Calling-Off Worker Bee

With the slowed financial landscape, not all companies can raise salaries and offer big bonuses this year. In a recent report by msn.com, employees stated that their biggest concerns included the price of fuel, and they've sacrificed going out to dinner and the movies in order to make ends meet.

Employers, this is your big opening. Instead of waiting until the end of your fiscal year to boost morale, why not get a jump on it now? Although a gift card cannot replace cold, hard, cash, keep in mind that one of a company's most important resources are its people. If you can keep your talented employees happy during less-than-steller economic times, you can certainly keep them during an economic boon.

Here are some suggestions to reward your best performers:

(1) Time. Employees increasingly complain that they cannot balance life and work. Here's your opportunity to improve the balance. When an employee has just finished an overtime project (perhaps without the overtime pay?) give them flex-time off. This gesture accomplishes several goals: your employee feels like their hard work has been acknowledged, they realize that "the man" remembers employees have lives outside of work, and you can promote how your company favors a work-life balance.

(2) Cake. Yes, Marie, let them eat cake. This one is simple. Each month, purchase cake to recognize employment anniversaries, birthdays, whatever. Just let your employees take a break for a piece of cake. Trust me, if you get a good baker, everyone will look forward to this month's "cake day."

(3) Gift cards. Who said there was no free lunch? An easy way to recognize an employee's performance is with an inexpensive gift card to the movies, dinner, or your local gas station. Remember, these were on the list of things employees were most concerned about- the cost of fuel and giving up entertainment to make ends meet.

Now, not everyone will appreciate your efforts. National Public Radio recently reported on the growing number of "happiness committees" cropping up at large companies. The committee's purpose was to surprise employees (a.k.a. worker bees) with unexpected milkshakes and cookies to entice employees to work late that day, or to reward them for working late the day before. Not all of the bees appreciated the effort, and some said they would rather the company take the Happiness Committee's budget, divide it among the bees, and send a check appropriate for people. In any event, working towards keeping employees happy is never bad for business.

Delaware Employers & Smoking Employees--Part 4

Posted by William W. BowserOn April 27, 2008In: Off-Duty Conduct

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Hiring Smokers
[Not] Hiring & Firing Smokers

Of the four posts in this series on Smokers & the Workplace, the common action we have seen Delaware employers take is simply not hiring applicants who smoke. Many who implement this type of policy permit current employees to be grandfathered into the new program and do not require them to quit smoking as a condition of continued employment. But that, also, is a viable alternative.

Weyco Inc. stopped hiring smokers in 2003 and prohibited smoking anywhere on company property in 2004. Then, citing evidence on how smokers drive up its health-care insurance costs, Weyco informed its 200 employees that smokers would have fifteen months, until January 1, 2005, to quit smoking. If they didn't (or couldn't), they would lose their jobs. Four employees left rather than be tested for the presence of nicotine in their system.

Since Delaware, like Michigan, is one of the states without a "smokers' rights" law, an applicant who is not hired or an employee who is terminated for smoking would have to look to other statutes for protection. The most likely law would be the Americans with Disabilities Act ("ADA").

While no Delaware court has addressed the issue, smokers have had little success in other jurisdictions using the ADA to attack their termination. Under the ADA, an employee must show that they have an impairment that substantially limits a "major life activity" like walking, talking, speaking, breathing, etc. While a smoker who develops cancer or mphysema or heart disease from smoking might be protected under the ADA because of the symptoms of those diseases, it is unlikely that smoking alone will be sufficient to invoke ADA protection. As a result, a Michigan state court ruled that an employee's "addiction to nicotine" was not a disability because it did not substantially limit any major life activity.

Indeed, the U.S. Supreme Court refused to hear a case involving smokers who were rejected from jobs because they had used tobacco within the last year. That refusal let stand a Florida state court ruling that the rejections were lawful because they were based on evidence concerning worker productivity, absenteeism, and public health objectives.

It is unlikely that this hot issue will be tamped out. It pits the right of individuals to engage in a lawful activity off the job against an employer's right to hire who it wants. In the absence of a smokers' rights bill in Delaware, it seems that the employer's rights will prevail in most instances.

Other Posts on Smoking in the Workplace:

A Whirlpool of Excitement about Rights of Employees Who Smoke

Delaware Employers & Smoking Employees (Part 1) Smoking Breaks

Delaware Employers & Smoking Employees (Part 2) Charging Smokers Higher Health Care Premiums

Delaware Employers & Employees Who Smoke (Part 3) Employee Incentive Programs Targeted to Smokers

Are Today's Wellness Programs Running Out of Steam?

DOL Offers Compliance Checklist for Wellness Programs, which discusses the Wellness Program Analysis.

Genetic Information Nondiscrimination Act (GINA) Passes the Senate But Is Old News In Delaware

Posted by Molly DiBiancaOn April 27, 2008In: Delaware Specific, Genetic Information (GINA), Legislative Update, Privacy Rights of Employees, Purely Legal

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Genetic TestingGenetic testing is a key advance in preventative health care. But opponents of DNA testing worry about privacy issues--that employers may use genetic data in making employment decisions. The Genetic Nondiscrimination Act of 2007 (GINA) is intended to prevent that.

The Act was unanimously accepted by the Senate with a vote of 95-0. After final approval from the House, it will go to the President's desk for signature. It could be signed into law as early as next week. The act will protect individuals against discrimination based on their genetic information when it comes to health insurance and employment. These protections are intended to encourage Americans to take advantage of genetic testing as part of their medical care. The purpose of GINA is to ensure that anyone who gets genetic screening tests will be protected from having that information shared with health insurers or employers. Up until now, individuals who tested positive for a certain type of cancer gene could be denied insurance coverage or employment based on his or predisposition to developing cancer years down the road.

"It means that people whose genetic profiles put them at risk of cancer and other serious conditions can get tested and seek treatment without fear of losing their privacy, their jobs, and their health insurance,"

said Ted Kennedy (D-Mass.).

The debate is not a new one--the bill was rejected more than 10 times before it passed. And during those 10+ years, Delaware passed its own genetic antidiscrimination law. Delaware is one of 35 states to prohibit genetic discrimination in employment. State laws typically protect "genetic information." A number of states, including Delaware, have passed or are considering bills that expressly include and requests for genetic services. The Delaware law also makes it unlawful for an employer to "intentionally collect" genetic information unless it can be demonstrated that the information is job-related and consistent with business necessity or is sought in connection with a bona fide employee welfare or benefit plan.

Of the 35 states with these laws, though, there has not been a single suit filed on the grounds of "genetic descrimination," although the EEOC did settle a genetic-discrimination claim that was filed under the Americans With Disabilities Act. In that case, the employer, Burlington Northern Santa Fe Railroad, was alleged to have obtained blood samples from employees that would later be used for genetic testing, unbeknownst to the employees. The employer ceased the conduct within days of receiving the EEOC's complaint and eventually settled the suit.

Additional Resources:
The National Conference of State Legislatures maintains a comprehensive website on laws dealing with genetics and genetic testing if you're interested in where your state currently stands.

But the most detailed resource, by far is that of the National Human Genome Research Institute, (NHGRI) at genome.gov. The NHGRI's site inlcudes dozens of helpful explanations about just about everything genetic--including the legal, social, and ethical implications of genetic testing.

To review GINA's passage through the House and Senate, visit thomas.loc.gov.

From a women's health perspective, U.S. News & World Report's Deborah Kotz's article is a worthy read.

And, as always, our friends at HR Hero has a whole cache of easy-to-read and to-the-point articles on the Genetic Testing page of their website.

Take Your Daughter to Work Day Makes for an Insightful Moment for this Attorney

Posted by Molly DiBiancaOn April 27, 2008In: YCST

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Take Your Daughter to Work Day is held on the third Thursday of April each year. This year, that meant that the average age in your workplace probably took a sharp dive last Thursday, April 24. Like other participating organizations, our office hosted approximately 25 youngsters for a "day in the law." Our Human Resources Director does a fanastic job with these events, and, in usual form, had a well-organized series of activities planned.

One of the morning events, following a "light breakfast" of donut holes, etc., was for an attorney from each Practice Group to talk briefly about the kind of work they do. I was asked to speak on behalf of the Employment Law Group and was happy to do so. But a little back-up never hurt anyone, so I asked my colleague, Michael Stafford, to join me.

On a side note for the event organizers, don't pass over the males in the group when it comes to kids' events! Mike was about the most enthusiastic speaker I've seen and a real natural with the children. He told them (in kid-speak) that we represent employers and businesses; that we get involved if someone is going to get fired or if someone doesn't get paid like they should. He also talked about School Law, which makes up a large part of Mike's practice.

Then, suddenly, it was my turn. Mike, was, by this time, in the middle of the "U" part of the U-shaped conference table, surrounded by a sea of children glued to his every word. Meanwhile, I hadn't left the shore and was still standing at the front of the room, mystified by Mike's ability to captivate.

Mike whips around towards the front of the room and extends his hand like a magician's assistant trying to draw the crowd's attention to the stage for the big finale. He says, "Molly, Why don't you go ahead and tell them some more about what we do."


I love public speaking. No, really, it's true. I love teaching and giving seminars and presenting to groups of every size. But for this, I was not prepared. I had no idea how to explain employment discrimination to a room of 9-12 year olds. Admittedly, I stumbled for a minute, at a total loss for words. But what I finally did say, though, was probably more insightful to me than to the audience members. It was from-the-heart and unrehearsed:

What we do in the Employment Law Group is to make sure that the workplace is a good place to be. Our job, at the end of the day, is to make sure that everyone plays nice. We try to show people how to respect each other and be nice to one another, even though we are all different in a lot of ways. We want people to learn how to respect those differences so the workplace can be a great place to go every day. That's what we do.

After I finished, some of the other lawyers who had come to speak nodded their heads in agreement. I thought, yeah, that really is exactly what I do. We guide our clients to make the workplace free of discrimination. We counsel clients on how to pay employees properly and fairly. And we're called when an employee is doing more harm than good and the client wants our advice on the best way to proceed. You might say that we work hard to prevent our clients from being sued. Or, you might say, we try to make sure that the workplace is a good place to be. That seems to sum it up pretty well.

Florida Law Permits Guns at Work; Delaware Initiates an Anti-Workplace Violence Training Program

Posted by Molly DiBiancaOn April 27, 2008In: Legislative Update, Newsworthy, Workplace Violence

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The new Florida Gun Law would prevent employers from banning workers from bringing guns to work. To describe the legislation a "controversial" would be a gross understatement.

Workplace Violence

Advocates say the intent of the bill is to ensure that citizens' constitutional right to keep and bear legally owned firearms within their vehicles. Opponents have raised concerns about the increased incidents of workplace violence (and the liability that goes with it). They also argue that they should have the right to set rules on their property. Some workplaces are exempt from the law, such as nuclear power plants, prisons, schools, and homeland security businesses.

The law puts Florida employers in a seemingly unwinnable situation. On one hand, all employers have an obligation to protect the health and safety of their workers under the Occupational Safety and Health Act (OSHA). Yet, they cannot prevent or eliminate a serious safety risk by banning guns in the workplace.

A study by the American Journal of Public Health found that workplaces that allow guns on the premises are roughly five times more likely to have a homicide than those who are not. It is easy to imagine how an angry employee would be more likely to commit an act of violence in the workplace if he simply had to go out to his car to get a gun. So it's understandable that many Florida employers are staunchly opposed to the bill.

Although the law passed through both houses of the state legislature and was signed by the Governor, it will likely face a difficult challenge in court. Oklahoma passed a similar bill, which was promptly injoined by a federal judge on the ground that it violated federal OSHA laws.

And, while Florida businesses are concerned about the risks that the law may cause, Delaware employers are using the resources offered by the State to prevent workplace violence.

Delaware state government has reached out to Delaware employers to provide guidance in preventing and addressing violence in the workplace. The Delaware Corporate Citizen Initiative, in collaboration with the National Workplace Resource Center on Domestic Violence, published a Model Policy on Domestic Violence in the Workplace. The Model Policy covers all aspects of how domestic violence can impact businesses--from the employee-aggressor whose intimidation tactics spill over into the workplace, to the employee-target who experiences peformance problems as a result of domestic violence.

The Delaware Capital Police have also begun a recent community initiative relating to workplace violence. The Delaware Capitol Police Department is a statewide law enforcement agency responsible for the security of all three banches of state government throughout the state. The Department's central responsibility is the safety and security of the various state buildings, including the Governor's Mansion, the Caravel Building, Legislative Hall, the state courts, and more than 80 other buildings in all three counties.

Responding to the current trend in policing, the Delaware Division of Capitol Police has undertaken a community-policing initiative. While the division does not service a traditional community, it does have a similar responsibility to State employees. The Division created a training program on "Violence in the Workplace." The seminar provides state government employees with an explanation as to what workplace violence is, statistics, reporting, and what to expect of workplace managers and members of law enforcement when these actions are carried out by employees, co-workers, managers, or customers. It also incorporates the Delaware Workplace Violence Policy, giving emloyees a detailed explanation of the purposes of the policy and how it is intended to be applied.

Delaware businesses don't look far for examples of local workplace violence. I wrote an article on workplace violence for the Delaware Employment Law Letter following last year's shooting on the campus of Delaware State University. The article, titled Lessons Learned from Local Tragedies, is available at HR Hero.com.

Delaware Employers & Smoking Employees--Part 3

Posted by Molly DiBiancaOn April 26, 2008In: Off-Duty Conduct

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Employee Incentive Programs Targeted to SmokersCarrot and Stick Incentive for Smoking Cessation

In Part 2 of this series of posts, we talked about employers who charge higher health care premiums to employees who smoke. These types of programs are commonly lumped together under the broader term of "Wellness Programs."

But, in fairness, a true Wellness Program involves more than a financial penalty. The modern workforce expects more rewards than punishments from a wellness program. And most employers have answered that call to action by using positive reinforcement strategies--either alone or in conjunction with higher premiums.

Employers may offer special discounts, rebates, and incentives in return for employees' adherence to certain wellness initiatives, such as smoking cessation. In order to offer these benefits to non-smokers, employers must comply with additional HIPAA regulations. The incentive program must be reasonably structured to promote health; the rewards must be proportionate to the employer's gain; and the incentives must be strictly based on the employees' compliance with the program.

Other Posts on Smoking in the Workplace:

A Whirlpool of Excitement about Rights of Employees Who Smoke

Delaware Employers & Smoking Employees (Part 1) Smoking Breaks

Delaware Employers & Smoking Employees (Part 2) Charging Smokers Higher Health Care Premiums

Are Today's Wellness Programs Running Out of Steam?

DOL Offers Compliance Checklist for Wellness Programs, which discusses the Wellness Program Analysis.

Delaware Employers & Smoking Employees--Part 2

Posted by William W. BowserOn April 26, 2008In: Off-Duty Conduct

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Charging Smokers Higher Health Care Premiums.

It seems settled that smoking poses a substantial health threat to those who smoke. The federal Centers for Disease Control and Prevention lists smokiHealth Care Premiums for Smokersng as the leading cause of preventable death in the country, resulting in 400,000 deaths a year. The risk of dying from lung cancer is more than 22 times higher among men who smoke and about 12 times higher among women who smoke compared with nonsmokers. Cigarette smokers are 2-4 times more likely to develop coronary heart disease than nonsmoker.

Of course, smokers' health problems show up in medical expenses. Men who smoke incur $15,800 and women who smoke incur $17,500 in additional lifetime medical expenses. These additional costs inevitably affect an employer's health care costs. As a result, employers across the country are now attempting to shift some of these additional costs back to smokers. Some are charging smokers a higher co-pay for their health insurance benefits. Is this practice legal in Delaware? The answer is probably yes.

Currently, approximately thirty states, including New Jersey, have implemented some form of "lifestyle discrimination" statutes. These statutes make it illegal to discriminate on the basis of legal activities. More specifically, some states have "Smoker's Rights" statutes which prohibit employers from discriminating against smokers in the workforce. Under these statutes, employers may not terminate employees because they are smokers or refuse to hire applicants who smoke. Some of these laws do permit employers, however, to charge higher health care premiums to employees who smoke. Delaware does not have any such law.

While no Delaware law prohibits employers from charging smokers higher health insurance premiums, HIPAA regulations should be consulted before beginning to impose such a surcharge. HIPAA prohibits employers who offer health insurance from charging an employee a higher premium than required of a similarly situated employee, on the basis of any health-related factor unless that surcharge is based on participation in a "bona fide wellness program."

Wellness programs vary widely, and the features of such programs will determine whether they are subject to the HIPPA regulations. In order to lawfully implement a wellness program, employers should ensure that the reward is limited to a specified percentage (e.g. 10-20% of the cost of contributions for the employee's health care); the program is available to all similarly situated individuals and offers written notice of an alternative for employees with physical limitations to meeting the program's standards (e.g., by attending a smoking cessation program).

Consider the following example. An employer circulates a form to all employees to sign, which would certify that they have not used tobacco products in the past twelve months. Individuals who do not complete the form are assessed a surcharge equal to 20% of the total cost of the employee's coverage. Employees who are unable to meet the standard due to a medical condition (addiction to nicotine) are not assessed the surcharge so long as they participate in a smoking cessation program. This is an example of a bona fide wellness program that satisfies HIPPA's non-discrimination regulations.

The Department of Labor has a helpful online checklist employers can use to determine whether their wellness program is HIPPA-compliant. The link is below.

Other Posts on Smoking in the Workplace:

A Whirlpool of Excitement about Rights of Employees Who Smoke

Delaware Employers & Smoking Employees (Part 1) Smoking Breaks

Are Today's Wellness Programs Running Out of Steam?

DOL Offers Compliance Checklist for Wellness Programs, which discusses the Wellness Program Analysis.

Delaware Employers & Smoking Employees--Part 1

Posted by Molly DiBiancaOn April 25, 2008In: Off-Duty Conduct

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Smoking breakSmoking Breaks

YCST Partner William W. Bowser posted earlier about the controversy over employees who smoke at Whirlpool, where 38 employees have been suspended after caught smoking. We often get questions from Delaware employers about what they can and cannot do to respond to the various effects of employees who smoke.

In this series of posts, we'll address some of the most common questions Delaware businesses have about smokers' rights.

Smoking Breaks

The most often asked question is whether an employer has to facilitate a smoker's habit by giving smoking breaks. The answer is no. There is no state or federal law that requires smoking breaks.

Delaware employers must, however, provide most employees with a meal break of at least 30 consecutive minutes if the employee is scheduled to work seven-and-one-half or more hours per day. Meal breaks must be given sometime after the first two hours of work and before the last two hours of work in a workday. Of course, smokers could use this meal break to smoke.

If an employer chooses to allow its employees to take smoking breaks, it probably has to pay them for the time. According to an opinion letter issued by the Wage and Hour Division of the U.S. Department of Labor, short smoke breaks are to be included in the calculation of an employee's "hours worked." Specifically, smoke breaks of 3-4 minutes at a time, the total of which do not exceed 15 minutes a day, may not be excluded from "hours worked" under the Fair Labor Standards Act.

Thus, the ability to smoke during work hours is largely under an employer's control. Smoking breaks aren't required; but, if they are allowed, the employees must be compensated for that time.

Other posts on Smoking in the Workplace:

Whirlpool of Excitement About Employees Who Smoke

A Whirlpool of Excitement about Rights of Employees Who Smoke

Posted by William W. BowserOn April 25, 2008In: Off-Duty Conduct

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No Smoking for Whirlpool Employees

Employers who charge higher health premiums to employees who smoker has been a heated issue for several years. The trend first took the national spotlight in 2003 when Weyco, Inc. stopped hiring smokers and gave current employees 1 year to quit [smoking] or be fired.

The issue of charging smokers more for health care has flared up again this week when it was reported that Whirlpool has suspended 38 smokers who claimed they were non-smokers to get a lower health care premium. According to press reports, the workers were seen smoking or chewing tobacco at the company's smoking huts even though they signed paperwork claiming they did not use tobacco.

Whirlpool charges smokers an additional $500 per year in health premiums. According to a 2007 survey of employer-sponsored health plans by consulting firm Mercer, 16 percent of large employers vary employee premiums based on smoking status. Among small and midsize employers, 5 percent vary premiums.

Whirlpool, like most employers, uses an honor system requesting employees to honestly fill out paperwork regarding their smoking status. It remains to be seen as this case will lead to mandatory nicotine testing as at least one article has suggested.

Our friend, John Phillips at The Word on Employment Law, also has a timely post about this news called, Smoke 'Em If You Got 'Em?

Equal Pay: Fair Pay Restoration Act Voted Down in Senate

Posted by Teresa A. CheekOn April 24, 2008In: Equal Pay, Legislative Update

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The Lilly Ledbetter Fair Pay Act was proposed as a measure to increase the length of time in which employees could file claims for unequal pay based on discrimination. Currently, under Title VII of the Civil Rights Act of 1964, employees have up to 300 days to file a claim from the date of the discriminatory act. Under the Equal Pay Act, claims of pay discrimination based on gender can be filed up to two years after the discriminatory act.

The Lilly Ledbetter proposal generated signficant debate. Opponents saw the bill as preventing employers from closing the door on equal-pay claims because employees would no longer have a hard and fast deadline for filing claims. Advocates saw the bill as a safeguard to ensure that those who were subject to unequal pay but who had no way of learning of the discrimination would not lose their claims on a technicality.

Senate Republicans killed the bill in a 56-42 vote on Wednesday, April 23. Senator John McCain, who stated that he opposed the bill but favors fair pay for women, was campaigning in New Orleans, so he was not present for the vote. Senators Barack Obama and Hillary Clinton both voted in favor of the bill.

Delaware Courts Ranked 1st by U.S. Chamber of Commerce

Posted by Scott A. HoltOn April 24, 2008In: Delaware Specific

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Lawsuit Climate REport 2007
Delaware has been ranked first among all fifty states in the quality and fairness of its litigation environment, according to an annual study titled "Lawsuit Climate" published by the U.S. Chamber of Commerce's Institute for Legal Reform. Delaware has been awarded this honor for six straight years.

The survey polled approximately 1000 corporate attorneys at the nation's largest employers and took into consideration factors such as judge competence and impartiality, jury fairness, quality of attorneys, and timeliness for trial. Along with Delaware, Nebraska, Maine, Indiana and Utah were ranked in the top-five. Rounding out the bottom five were Louisiana, Mississippi, Alabama, Illinois and West Virginia.

Delaware Courts Named Best in the Country: Democracy at Work

Posted by Sheldon N. SandlerOn April 24, 2008In: Delaware Specific

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Delaware State SealDelaware's state courts have been named the best in the country for tort and contract litigation. This is the sixth consecutive year the First State has been awarded this honor. In our experience, the same result holds true for employment litigation.

Not surprisingly, Delaware and the other four states that ranked highest, Nebraska, Maine, Indiana and Utah, appoint their judges, and the three states that ranked at the bottom, West Virginia, Louisiana and Mississippi, all elect their judges.

So maybe democracy isn't what its cracked up to be?
Or maybe it's a bit more complicated.

Unlike the other branches of government, the courts are not supposed to simply reflect the will of the people. Judges are required to apply the law, whether "the people" like it or not. And that's where it gets messy for elected judges. As we can easily glean from what goes on in our neighboring state of Pennsylvania, judges have to spend large sums of money to get elected, and they get most of that money from interested constituencies like trial lawyers and unions. So when a large donor, in the form of an attorney as advocate, or a union as litigant, appears before the judge, . . .

. . . Will the judge "bite the hand that feeds him?"
Human nature has the answer.

That is not to say that Delaware and other states that appoint judges do so free of politics. But the politician in Delaware who appoint the judges, Delaware's governor, has for many years recognized that Delaware stands to gain from maintaining its preeminent position as a quality court system, and governors of both parties have made a point of appointing capable jurists rather than political hacks. What that means is that all parties in a lawsuit get a fair shake based on the merits of the case, rather than money talking to tip the scales in favor of the largest contributors.

And that is how a real democracy should work.

Bullying Can Be Physical . . . But Torture?

Posted by Molly DiBiancaOn April 24, 2008In: Jerks at Work, Newsworthy, Workplace Violence

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Team-building or torture? A sales rep in Provo, Utah has filed suit over what appears to be an extreme case of workplace bullying. The young man claims, and his employer doesn't particularly deny, that he was waterboarded by his supervisor as part of a "team-building exercise." He claims that he volunteered when his boss asked for participants for a "new motivational exercise." But the 26-year-old says that he had no idea that the "exercise" would involve his supervisor pouring water out of a gallon jug over his nose and mouth, while his coworkers held him down. The last time the team had done an exercise outside, it was an egg toss.

His supervisor remarked immediately afterwards, "You saw how hard Chad fought for air right there. I want you to go back inside and fight that hard to make sales."

It seems that the supervisor truly believed that causing your reports to feel the near-death experience of forced drowning is actually a motivational tool. The employee has filed suit for assault and battery, intentional infliction of emotional distress, and wrongful termination.

Another of the supervisor's "motivational tools" was to remove all chairs, forcing employees to stand for the entire shift. This was his response to a day without sales. He kept a "motivational 2 x 4" wooden "paddle" on his desk on stand-by.

Normally, this is where we would provide sage advice on preventative measures, "be proactive with an anti-bullying policy," and reparative tactics, such as follow-up training for all employees. This case, though, is so extreme those normal reactions seem inappropriate. Instead, my recommendation is to to take a very close look at the supervisors in your workplace. Keep your eyes open for physically aggressive behavior, even if it's couched as "positive reinforcement."

This will definitely be a case to keep our eyes on.

Trade Secret Litigation Rises as Economy Tanks

Posted by Scott A. HoltOn April 22, 2008In: Newsworthy

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Recession seems imminent, leading to layoffs and downturn in business. But the looming recession also means more activity in other areas. Employment360 cites experts who believe the current recession will increase the amount of intellectual property legal work, including enforcement of noncompetition and nondisclosure agreements. The view is that companies are more likely to pursue former employees who violate their noncompete and confidentiality agreements during economic downturns as companies increase efforts to protect their assets.

For employers, now is the time to be reviewing what measures you need to institute to protect their business interests. Key employees should have enforceable noncompete and confidentiality agreements in place to prevent them from posing a threat should they leave employment. To better ensure enforcement of the agreements, multi-state employers also should include a requirement that the case be litigated in a state that enforces these types of agreements. Some states such as California will not enforce noncompete agreements, while other states such as Georgia, Texas and Illinois are reluctant to uphold the agreements in their entirety. Delaware continues to be a favorite forum for enforcement of noncompete and confidentiality agreements because of its business friendly environment and accessibility to the courts.

Employers also must implement proper screening measures to make certain that new hires are not subject to noncompete agreements that will ensnare them in trade secret litigation. All applicants should be asked whether they had confidentiality or noncompete agreements with their former employer so that preventative steps can be taken before they commence employment.

Pregnancy Discrimination FAQ

Posted by Adria B. MartinelliOn April 22, 2008In: Disabilities (ADA), Family Medical Leave, Pregnancy (Title VII)

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Pregnant Defense Minister
Pregnant Spanish Defense Minister Carme Chacon reviews troops in Madrid

* * * *
Pregnancy discrimination is making international headlines. Our friend and fellow Employers Counsel Network editor, John Phillips, posted an interesting article today on his blog, titled, "Questions About Pregnancy," regarding pregnancy discrimination and Spain's pregnant defense minister.

He poses some interesting questions about balancing an employer's interests versus those of a pregnant woman in the workplace.

See my earlier post, "More Than Hollywood Noticing Baby Bump" regarding the alarming increase in pregnancy discrimination claims.

What exactly are your obligations to a pregnant employee?

Under the Pregnancy Discrimination Act (PDA), you're prohibited from treating pregnant employees differently than other employees with temporary restrictions. For example, if a pregnant employee is restricted from lifting more than 20 pounds during her last trimester, you must treat her the same as a male employee who suffered a back injury and was temporarily unable to lift the same amount.

The PDA does not require you to make special accommodations like the Americans with Disabilities Act does. It only requires you to treat pregnant employees the same as you would treat nonpregnant employees with temporary restrictions.

What can you do to avoid violating the PDA?

Here are some basic guidelines:

• Don't discuss an applicant's pregnancy with her at the employment interview or base your hiring decisions on her pregnancy or absences that may be caused by pregnancy.

• When an employee informs you that she's pregnant, congratulate her. Don't start interrogating her about the leave she will need or make any other comments about how her pregnancy might affect her job.

• Provide optional alternative jobs if the pregnant employee's current position could be harmful to her fetus. Be aware, however, that the decision to change duties is hers, not yours.

• If a pregnant employee is unable to perform her job or requests light duty, treat her like you would any other employee in a similar situation.

• If you take any performance-related disciplinary actions during an employee's pregnancy or maternity leave, do so cautiously! Make sure to document your actions, providing legitimate non-discriminatory reasons for the action.

Of course, dealing with pregnant employees may implicate other employment laws, including the Americans with Disabilities Act, and the Family and Medical Leave Act. I will be presenting When FMLA and Pregnancy Leave Collide: How to Avoid Costly Discrimination Claims in Las Vegas and Nashville, TN at the upcoming Advanced Employment Issues Symposium. Click here for more details about the Symposiums.

Earth Day: A Green Workplace

Posted by William W. BowserOn April 22, 2008In: Going Green

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Employers, today is Earth Day. It would be hard not to notice. It seems that every media outlet is “going green.” NBC, for example has an entire website on the topic of environmental friendly options. The latest issue of Time magazine cover reads, "How to Win the War on Global Warming."

While the green movement has certainly taken center stage in the popular press, has your workplace started to change? Are you or your coworkers stuck in a “why bother” mood? I suggest that you read Michael Pollan’s article, which asks the same question, "Why Bother?" Pollan's article was featured in this past Sunday’s New York Time magazine, which, by the way, was titled, "The Green Issue." Pollan tries to answer just that question. In the article, he addresses why we should all look for and make small changes, even if the environmental problems facing us and our planet seem so incredibly large. He argues, among other things, that one of the best reasons for each of us to change is that we will influence others to make similar changes which together can truly make a difference.

In honor of Earth Day, I added a small gizmo on my shower which cuts off the water when it gets warm. The device, called Evolve, was needed to combat my family’s habit of starting the shower running and then leaving the bathroom, allowing gallons of water to go wasted down the drain. I know that there are other ways to address the situation, including simply putting our hand under the water, but this approach will prevent me from becoming the shower police.

While this is just the latest effort I have taken at home, I still remain, as I have said before, a “paler shade of green” at work. Earth Day has gotten me thinking as to how to get changes started in the office. While I can replace my Styrofoam cup with a ceramic one, how can I get others to go along? Well according to Pollan, they might just do it because I did it.

That sounds ok but there must be more, right? Another way might be to get co-workers to start brainstorming on ideas to green up our workplace. I am very impressed by the list developed by the Employees of the State of Kentucky with their list of Earth Day Suggestions for Office Workers.

I would appreciate your ideas.

Delaware Earth Day Events: Employers, Make Earth Day Events Team Events

Posted by Molly DiBiancaOn April 22, 2008In: Delaware Specific, Going Green

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Make Earth Day a Team Event

Delaware employers, you can celebrate Earth Day today by passing along the following list of State-wide activities to your employees. Or, for the innovative employer, why not turn one of the many environmentally friendly activities into a (voluntary) corporate outing. It's a great opportunity for a little team building and a chance to feel good about giving back. Plus, it's a beautiful day in the First State today, so get outside while you can!

Here in Delaware, Delaware State Parks, along with the Department of Natural Resources and Environmental Control (DENREC) will celebrate Earth Day 2008 with events throughout Delaware. Residents of the First State can do their part to help conserve Delaware's precious resources by participating in any one of the nearly 20 activities happening across the State this week. There are events in New Castle County at Bellevue State Park in Wilmington, Brandywine Creek State Park, also in Wilmington, and White Clary Creek State Park in Newark, as well as at the Brandywine Zoo. Kent Count and Sussex County have events at Cape Henlopen State Park in Lewes, Delaware, Delaware Seashore State Park in Rehoboth Beach and Killens Pond in Felton.

Another helpful resources for Delaware employers looking to "go green" is the Environmental Protection Agency's (EPA) website, which has a page for Earth Day At Work. The EPA identifies workplace-specific suggestions for being more engery efficient, managing electronic equipment replacement, and other tips to help protect the environment.

Will Delaware Go For Family Leave? New Jersey Is the First in the Tri-State

Posted by Teresa A. CheekOn April 21, 2008In: Family Medical Leave, Leaves of Absence, Purely Legal

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Family and Medical Leave has hit New Jersey employers. The N.J. Senate passed legislation that would make the Garden State only the third state (after California and Washington) with state-sponsored paid family and medical leave. Governor Corzine said he intends to sign the bill, so employers should start preparing now.

The New Jersey Division of Civil Rights, the state agency charged with enforcing the bill, has posted a helpful Q&A on the NJ FMLA on its website.

The criteria for employee coverage will be the same as for coverage under the state’s unemployment compensation law. Employers are covered if they are covered under the New Jersey Temporary Disability Benefits law, that is, if they have one or more employees who earned at least $1,000 in the current or preceding calendar year. Employees will be entitled to benefits in the amount of two-thirds of their weekly pay, up to $524 per week, for up to six weeks in any 12-month period.

Benefits are payable for time off taken to care for a seriously ill family member, or in connection with childbirth or adoption. Benefits will be funded by an additional tax on employees of about $.48 per employee per week, beginning on January 1, 2009. Benefits will begin to be available on July 1, 2009.

The law does not include any job restoration guarantees, and provides that employers with fewer than 50 employees (who are not covered by the federal FMLA) will not be liable to a discharged employee.

Federal Contractors Must List Job Openings: OFCCP Issues Final Rule

Posted by Teresa A. CheekOn April 21, 2008In: Diversity

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The Office of Federal Contract Compliance Programs (OFCCP) issued a final rule on mandatory job listing by federal contracts. The rule is equired by the Vietnam Era Veterans' Readjustment Assistance Act,* (“VEVRAA”) and the Jobs for Veterans Act of 2002 (“JVA”). Federal contractors are required to list almost all job openings with “the state workforce agency job bank where the opening occurs or with the local employment service delivery system where the opening occurs.” The exceptions to this rule include openings for executive and top management positions, positions that are to be filled internally, and positions that will last three days or less.

You can read the new rule and the OFCCP’s discussion of the rationale for the rule, titled, "Nondiscrimination and Affirmative Action Obligations of Contractors and Subcontractors Regarding Protected Veterans" in the Federal Register.

*38 U.S.C. 4212

Race Discrimination Class Action Denied by Third Circuit Court of Appeals

Posted by Maribeth L. MinellaOn April 20, 2008In: Cases of Note, Disabilities (ADA), Purely Legal, Race (Title VII)

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The Third Circuit, which governs Delaware, New Jersey, and Pennsylvania, applied a strict interpretation of Rule 23(f) and affirmed dismissal of a class action against Johnson & Johnson. The case, Gutierrez v. Johnson & Johnson, was filed by African-American and Hispanic former J&J employees alleging race discrimination--8,600 employees in all.

The federal District Court in New Jersey declined to certify the group as a class. Notably, the court found that the group had failed to identify any J&J policy that was discriminatory. The court also cited the diversity and size of the group as factors weighing against class certification.

Now, hang in there, this is where it starts to get complicated.

The potential class could have filed an appeal with the Third Circuit after the District Court issued its decision denying certification. But, instead, they wanted to file a motion for reconsideration. J&J agreed to an extension of time for the employee to file their motion. The court granted the requested extension but eventually denied the motion for reconsideration, upholding its denial of class status.

The employee-petitioners sought permission tofile an interlocutory appeal with the Third Circuit. The petition was filed within ten days of the District Court’s denial of their motion for reconsideration but 125 days after the original decision denying class certification.

A petition to appeal must be filed within 10 days. When a motion for reconsideration is timely filed, though, the 10 day-clock stops running until the motion is decided. Here, the employee-petitioners filed their motion within the deadline set by the District Court's scheduling order. That was not enough for the Third Circuit. Instead, the court found that the 10-day requirement was mandatory--within 10 days of the decision denying class certification, the party has 10, and only 10, days within which to file an appeal.

The fact that the motion for reconsideration was timely for purposes of the District Court’s scheduling order did not matter. According to the Third Circuit, much to Johnson & Johnson's relief, Rule 23(f) of the Federal Rules of Civil Procedure is strict and mandatory.

Glass Ceilings Aren't Broken With Anger: Study Shows Angry Women Lose Respect at Work

Posted by Molly DiBiancaOn April 20, 2008In: Jerks at Work, Women In (and Out of) the Workplace

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Women don't win by playing the anger card, according to a new study from Yale University psychologist Victoria Brescoll.

Brescoll and Eric Uhlmann at Northwestern University recently completed three separate studies to explore a phenomenon that is all-too-familiar to many women in leadership positions: Anger is not a pretty thing. The studies conclude that men who get angry are accepted and even rewarded but women who lose their temper are perceived to be less competent.

The studies, published in the March issue of Psychological Science, provide women with recommendations for navigating emotional hazards of the workplace. Brescoll says it pays to stay emotionally neutral and, if you can't, at least explain what ticked you off in the first place.

One method employed by the studies was to show both men and women scenes of men and women (actually actors) who were ostensibly applying for a job. The study participants were then asked to rate the applicants on (1) how much responsibility they should be given; (2) their perceived competence; (3) whether they should be hired; and (4) how much they should get paid.

Male and female participants reached the same conclusions:

Angry men deserved more status, a higher salary, and were expected to be better at the job than angry women.

The study participants provided the same responses regardless of the type of job for which the candidate was applying. Executive- and entry-level candidates were ranked equally.

Emotions, however, had a much greater impact. When the actor-applicants expressed anger, the men were selected as the preferred candidates. And when the actors expressed sadness, the bias seemed to lessen, and women applicants were ranked equally to men in status and competence. Emotions did not have any impact on the participant's opinions about salary--in both scenarios, the viewers awarded male applicants a higher salary.

A final study showed another way bias against female anger could be mitigated. When women actors explained why they were angry, observers tended to cut them more slack. Men, on the other hand, could actually be hurt when they explained why they were angry - perhaps, says the Yale psychologist, because observers tend to see this as a sign of weakness.

The study seems to lend some credence to the saying, "Kill 'em with kindness."

The Wrong Way to Break Through the Glass Ceiling: Study Says Women Can't Afford to Be Angry

Posted by Molly DiBiancaOn April 20, 2008In: Jerks at Work, Women In (and Out of) the Workplace

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Yale psychologist Victoria Brescoll and Eric Uhlmann at Northwestern University recently completed three separate studies to explore a phenomenon that is all-too-familiar to many women in leadership positions: Anger is not a pretty thing. The studies conclude that men who get angry are accepted and even rewarded but women who lose their temper are perceived to be less competent.

The studies, published in the March issue of Psychological Science, provide women with recommendations for navigating emotional hazards of the workplace. Brescoll says it pays to stay emotionally neutral and, if you can't, at least explain what ticked you off in the first place.

One method employed by the studies was to show both men and women scenes of men and women (actually actors) who were ostensibly applying for a job. The study participants were then asked to rate the applicants on (1) how much responsibility they should be given; (2) their perceived competence; (3) whether they should be hired; and (4) how much they should get paid.

Male and female participants reached the same conclusions:

Angry men deserved more status, a higher salary, and were expected to be better at the job than angry women.

The study participants provided the same responses regardless of the type of job for which the candidate was applying. Executive- and entry-level candidates were ranked equally.

Emotions, however, had a much greater impact. When the actor-applicants expressed anger, the men were selected as the preferred candidates. And when the actors expressed sadness, the bias seemed to lessen, and women applicants were ranked equally to men in status and competence. Emotions did not have any impact on the participant's opinions about salary--in both scenarios, the viewers awarded male applicants a higher salary.

A final study showed another way bias against female anger could be mitigated. When women actors explained why they were angry, observers tended to cut them more slack. Men, on the other hand, could actually be hurt when they explained why they were angry - perhaps, says the Yale psychologist, because observers tend to see this as a sign of weakness.

The study seems to lend some credence to the saying, "Kill 'em with kindness."

Workplace Privacy: Biometrics May Be Coming to a Workplace Near You

Posted by Molly DiBiancaOn April 20, 2008In: Electronic Monitoring, Privacy In the Workplace, Privacy Rights of Employees

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Employee-privacy advocates are not in favor of biometrics in the workplace. But many employers do not share the concern. Biometrics are being used in workplaces across the country for purposes ranging from security to timekeeping and attendance.


What are Biometrics?

You may not know it, but you have probably seen biometrics in use numerous times. Catch any modern spy movie and there is sure to be a scene where the main character accesses the inevitable Restricted Area using the fingerprint of a dead man via a "borrowed" digit. Or maybe the triple-secret bank vault can be opened only via a a retina scan of the bank's Very Important President. You get the idea.

Biometrics run the gamut from simple to NASA-level technology. Biometrics on the most basic level could include simple ID badges with the employee's mug-shot style photograph. Signatures are even included in biometrics that are used as a security measure. Today, employers utilize password-management systems that require employees to regularly change their personal passwords in order to access the company's network.

The term "biometrics" refers to a method of authenticating the identity of an individual using enduring physical or behavioural characteristics. Any system that utilizes biometrics relies on the use of biometric identifiers. Also known as "BIs," biometric identifiers are select pieces of information that relay an encrypted picture of some unique feature of the person's biological makeup. Common BIs include fingerprints, retinal scans and voice scans.

Other identifiers that have been suggested and used include: hands, feet, faces, ears, teeth, veins, voices, signatures, typing styles (keystroke), gaits and odors.

How Effective Are Biometrics?

In the employment context, biometrics are used as an authentication tool. The BI is compared to the authenticated BI, which is stored in a database. Used this way, biometrics offer a nearly infallible security system. Unlike traditional security measures, like passwords or security badges, biometrics cannot be shared, lost, forgotten, stolen, or recreated.

But there are security risks for the user. For example, the authenticating, or original, data must be kept as secure as possible, which usually means not being sent wirelessly. And, if it is sent across a network, encryption should be at a maximum. As a compromise, systems often provide for a larger margin of error. And, unlike passwords and security questions, biometrics cannot be changed or revoked when the employment relationship ends.

What Else Could Go Wrong?

Well, lots, actually. Unauthorized access to highly sensitive personal information raises very legitimate concerns about identity theft--a problem that already has employers on high alert for potential liability. And, without any regulatory system in place, what about the potential privacy implications? Surely, employees will want to know what other information can be obtained should the wrong person have access to the database.

Delaware Employment Law Blog featured on Inter Alia as the Blawg of the Day!

Posted by Molly DiBiancaOn April 18, 2008In: Newsworthy, YCST

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Inter Alia, (a/k/a) the Best Legal Research Blog, features Delaware Employment Law Blog as the Blawg of the Day

Inter Alia is the favorite weblog for legal research and reference (if you didn’t already know). Each day, Tom Mighell, blogger extraordinaire, posts about a legal research “blawg” (law + blog). Today, the Blawg of the Day is the Delaware Employment Law Blog!! Many gracious thanks to Tom for the recognition.

As a side note, for those of you who may still be new to the world of blogging, Inter Alia is the ultimate resource to find blogs of interest as you develop your list of feeds.

But, wait! There’s more! Tom also publishes Internet Legal Research Weekly, an e-newsletter readers can subscribe to for free, that covers anything and everything legal research, and then some. It often contains great information about other resources, such as Web 2.0 and other online tools. The current issue of the ILRW is available online or via subscription, and, when you have something specific in mind, check out the Internet Legal Research Weekly archives.

Really, there's more! Tom and his co-author, Dennis Kennedy, recently published the hottest book in the world of Legal Technology and Law Firm Practice Management, The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together. Published by the ABA, the book is written in plain-English suitable for both the tech savvy and the not-so-tech savvy and provides detailed information on how to effectively collaborate using the multitude of online tools availble in today's internet-driven world.

The book is the talk of the blogosphere at: Between Lawyers, at David Maister's Passion, People, & Principles Blog, and the Illinois Trial Practice Weblog, just to name a few.

And Dennis Kennedy has a comprehensive post on his blog with lots of information about the book.

Equal Pay Becomes Front Runner as Lilly Ledbetter Act Takes Center Stage

Posted by Teresa A. CheekOn April 18, 2008In: Equal Pay, Women In (and Out of) the Workplace

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The National Women’s Law Center is promoting Equal Pay Week with Blog for Fair Pay Day today.

Equal Pay Week marks the point in 2008 when the average woman’s wages catch up with what the average man earned in 2007. Women’s earnings are still on average only 77% of men’s. The site has a compilation of blog postings (and a “vlog” posting) about the equal pay issue, and a link for readers to use to urge their senators to vote in favor of the Lilly Ledbetter Fair Pay Act. That’s the law designed to reverse the Supreme Court’s ruling that imposed a very short statute of limitations on equal pay claims. The vote may be as soon as next Wednesday, April 23.

Senator Ted Kennedy issued a press statement yesterday voicing his opinion in favor of the Act.

Equal pay is a tricky issue, but one in which the EEOC and OFCCP have both taken an interest of late. The OFCCP advises federal contractors to conduct self-audits of their pay practices. I can attest that a self-audit is a difficult task because so many factors can influence pay and most employers do not track information about training, education, starting pay, etc., in their HR information system.

Whether you are for or against the Ledbetter Act, now is the time to make your opinion known.

Increase In Teen Harassment Claims May Result In Higher Burden for Employers to Avoid Liability

Posted by Scott A. HoltOn April 18, 2008In: Harassment, Other (Title VII), Harassment, Sexual

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In this month's edition of the American Bar Association's pulication, the ABA Journal, is an article titled "New Troubles for Teens at Work." The article reviews recent cases that seem to indicate the courts' narrowing definition of what constitutes acceptable workplace behavior.

Restaurants, which tend to be a much more casual workplace enviornment, have been the source of a large percentage of teen harassment claims. In a recent decision by the federal appellate court for the Seventh Circuit, EEOC v. V&J Foods, employers were warned that they will not be excused from liability by the mere fact that they have a policy and reporting mechanism in place. Instead, the court warned the business community that, when it comes to teen harassment, the bar has been raised.

Delaware Governor Ruth Ann Miller Credits Wilmington Attorney William W. Bowser as a Champion in the Fight Against Cancer

Posted by Molly DiBiancaOn April 18, 2008In: Delaware Specific, Newsworthy, YCST

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Delaware's Governor Minner received the Wallace M. Johnson award from the New Castle County Chamber of Commerce in March 2008. The award recognized the Governor's work to reduce cancer incidence and mortality and increase prevention and screening efforts in the First State. On the Governor's blog, she reciprocated the praise by spotlighting some of the groups and individuals who helped change the State's approach to cancer treatment and prevention.

Among those mentioned is our own Bill Bowser, a partner in the Employment Law Department at Young Conaway. Bill is the Chair of the Delaware Cancer Consortium, the group that Governor Minner credits as one of the central reasons for the State's successful initatives.

The Governor writes:

In 2001, we approached a vested group of legislators, business leaders, medical professionals, and concerned Delawareans to form the Delaware Cancer Consortium, which was charged with making recommendations to help reduce our cancer rate. Their recommendations included the Clean Indoor Air Act, the Delaware Cancer Treatment Program, Screening for Life, the Nurse Navigator program, and the Delaware QuitLine, among many others. Because of their help and the leadership of chairman Bill Bowser, we have been able to help families and save lives.

Also worth noting for employers, the Consortium has implemented a workforce/workplace initiative. The Workforce/Workplace Committe is committed to its mission to:

Improve clinical and support services in the workplace to better manage symptoms and rehabilitation and accommodate disabilities associated with the disease. As a result, employers can increase the numbers of cancer survivors who successfully return to work. The dynamics in the workplace—just as in the routine of living—change dramatically for a cancer survivor. Inability to work regular hours can affect finances and health insurance. Social connections may be lost. Professional selfr-espect, self-esteem and satisfaction can suffer. For the employer, productivity may be affected. If there are physical limitations, the employer may alter job assignments, which can enhance employer-employee relations.

Bill's many years of hard work and dedication to the First State's fight against cancer is appreciated by many and the effects of his work have been felt by countless Delaware citizens.

Following Wednesday’s Democratic Debate in Philadelphia, Employment Law Poll Identifies Priorities for the Next U.S. President

Posted by Sheldon N. SandlerOn April 18, 2008In: Delaware Specific, Newsworthy

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With the spotlight of the political world shining on the Delaware Valley today, a new “America at Work” national opinion survey by the non-partisan Employment Law Alliance (ELA) shows that Americans overwhelmingly want their next President to focus more on improving their standard of living, providing universal healthcare, and stemming the outsourcing of jobs overseas than making it easier for immigrants to live and work in the United States.

The poll is based on a sampling of 1,125 working Americans surveyed between April 4 and 9 and is believed to be the only national survey to date focusing exclusively on a wide range of workplace-related issues that will likely confront the next President.*

You can not walk outside today and not hear people talking about Wednesday's debate and the impact of the upcoming elections on jobs and healthcare. Life in the workplace is often the centerpiece of concern for so many Americans getting ready to elect a new president.

While issues such as immigration get much of the press, I believe that the poll shows that what a typical voter is interested in might vary.

A summary of the results reveal:

· 87% of Americans want their next President to focus on increasing the proportion of the workforce earning at least a living wage, closely followed (86%) by making it tougher for companies to outsource U.S. jobs to foreign countries, and (83%) rounding out the Big Three, providing healthcare coverage for all U.S. citizens.

· 76% of Americans are also concerned - but not at the same intensity level - with having the next President work toward increasing workplace safety regulation, 70% support focusing on expanding family leave rules and 69% think beefing up enforcement of workplace discrimination laws should be a priority.

· In sharp contrast, 40% said they are concerned that their next President focuses on immigration issues, ranging from making it easier for professionals to work in the U.S. to granting amnesty for illegal aliens.

· Workers were also significantly split along racial lines regarding both views on workplace issues and immigration reform with, for example, 55% of non-whites supporting relaxing immigration laws for professionals versus 36% among whites.

· Geographically, 46% of workers in Western states thought the President should make increasing legal immigration a priority compared to a low of 25% among Midwestern workers.

· 45% of Americans want to make it easier for unions to organize workers.

ELA members concentrate on labor and employment law issues in every American state and more than 75 countries. The survey was conducted prior to Wednesday's democratic debate at the National Constitution Center in Philadelphia and the Pennsylvania primary on April 22nd.

“The message to the next President is raising the standard of living and getting better healthcare is more of a priority than organizing unions or immigration concerns,” said Sandler.

Dr. Ted Reed, President of Philadelphia-based Reed group and Poll Director for ELA, said the input from ELA's attorneys around the country was invaluable in shaping the questions for the survey. According to Dr. Reed, “This survey is important because of the extent of demographic detail, including gender, race, income, education, and geography. The focus on pocketbook issues across the board as a Presidential priority is unmistakable.”

*The error interval is +/- 2.99% at a 95% level of confidence.

Sheldon N. Sandler, a partner in the Employment Law Department at Young Conaway Stargatt & Taylor in Wilmington, Delaware, members of ELA.

Young Conaway Stargatt & Taylor, LLP, one of Delaware's largest law firms, counsels and represents national, international and local clients, handling sophisticated advisory and litigation matters involving bankruptcy, corporate law and intellectual property. Now in its fifth decade, Young Conaway also guides regional businesses and individuals through a myriad of employment, real estate, tax, estate planning, environmental, and banking issues from the firm's offices in downtown Wilmington.

The Employment Law Alliance is the world's largest integrated, global practice network comprised of premier, independent law firms distinguished for their practice in employment and labor law. Comprised of more than 3,000 lawyers, there are member firms in every jurisdiction in the United States and over 75 countries around the world. For further information, including access to the survey charts and graphs, visit: www.employmentlawalliance.com

Family Responsibility Discrimination. Download of a Short and Sweet Summary of the FRD Now Available (yes, for free!)

Posted by Adria B. MartinelliOn April 17, 2008In: Family Responsibilities (FRD), Seminars, Past

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ADEA, ADA, FMLA, now FRD??? Is FRD (Family Responsibility Discrimination) the latest acronym to add to the growing list of potential employee claims to be concerned about?

At our Annual Employment Law Seminar yesterday, I presented on this subject, which has been a recent “hot topic” in the world of Employment Law. I also prepared a handout for attendees. It's a concise, easy-to-read summary of the "who, what, where, why, and how" of Family Responsibility Discrimination. You can now get a copy of the handout--use the link below to jump to a pdf copy of the materials. The articles might just turn out to be a handy reference when you have a potential FRD issue.

And if two pages (with pictures!) still seems to long for you, here's the conclusion I draw at the end; i.e., The Bottom Line about FRD:

The line where bias turns into an actionable family responsibility claim is not always an easy one to see. But given the EEOC’s focus on this type of discrimination, it is essential you recognize the issues. Review the EEOC’s enforcement guidance carefully and seek advice of counsel if you have any questions about taking employment actions with respect to an employee with caregiving responsibilities.

Just contact me if you need additional guidance on the rights and responsibilities of employers with respect to FRD.

Family Responsibility Discrimination Handout

Author of “Ending the Gauntlet,” Lauren Stiller Rikleen, to Speak on the Retention of Attorneys by Firms

Posted by Teresa A. CheekOn April 17, 2008In: Women In (and Out of) the Workplace

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Our readers with HR responsibilities and interests at law firms may be interested in signing up for an hour-long, CLE-accredited webinar on best practices for retaining your firm’s attorneys. One of the presenters is our friend Lauren Stiller Rikleen, author of Ending the Gauntlet: Removing Barriers to Women’s Success in the Law. I've heard Lauren speak on several occassions and can attest that she is a fantastic speaker. You can read an article by Lauren titled, Women's Initiatives: Seeking Opportunities and my review of her book, as well as other articles about women in law in the Delaware Lawyer magazine. (All editions of the Delaware Lawyer magazine have been archived on its website.)

Be sure to let us know what you think if you decide to participate.

U.S. Immigration & Customs Enforcement Raids Workplaces, Making Numerous Arrests

Posted by Teresa A. CheekOn April 17, 2008In: Immigration, Newsworthy

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U.S. ICE raids Poultry Plants, Doughnut Factory, Mexican Restaurants and Arrests Managers and Hundreds of Workers

I’ve previously posted about the issue of undocumented workers and talked about it a bit at our Annual Employment Law Seminar yesterday, so the AP story in today’s Wilmington News Journal is especially timely. The article
describes the latest raids by the Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security on workplaces with large numbers of illegal alien employees. The raids included arrests of an owner and 10 managers of one company.

As I said yesterday, one reason that business owners and managers should be paying close attention to this issue is to stay out of jail!

ICE arrested 300 workers for identity theft, document fraud and immigration violations at Pilgrim’s Pride chicken processing plants in five states. The company itself reported identity theft issues to ICE and cooperated in the enforcement action. It uses the E-Verify online database to check the documentation of new employees, and fires employees who do not correct documentation problems. But, as a company spokesperson pointed out, that doesn’t help with cases of outright identity theft. This is at least the fourth round of raids and arrests on poultry plants since 2005.

No charges were filed against the company itself. On the other hand, yesterday’s arrests included the owner and 10 managers of a chain of Mexican restaurants located in four states (New York, Pennsylvania, Ohio and West Virginia), who were charged with employing illegal immigrants. Forty-five restaurant workers were also arrested on immigration charges.

30 people were arrested in a raid of a Houston doughnut factory. Many of the individuals who were arrested were housed in a company dormitory. No word yet on whether owners or managers of the factory will face criminal prosecution.

The article concluded with a report that a grand jury in Atlanta had indicted 10 people from employment agencies there for placing illegal aliens at locations in six states. The agencies were charged with developing a network to “recruit and exploit” illegal workers.

My previous posts on this topic include, "The Safe-Harbor Rule for No-Match Letters," Parts 1, 2, and 3, as well as "Get the Jump on No-Match Letters and Suspicious Documents." Those articles provide you with comprehensive explanations of what No-Match Letters are and how they can impact your business.

The moral of this story is that employers must be proactive in protecting themselves from this type of situation.

If you know or suspect that your workers are using false documents, don’t just sit on your hands and hope for the best. You should sign up for and start using E-Verify for new hires, and use the Social Security Number Verification System (SSNVS) provided by the Social Security Administration to find out the extent to which your current workers’ social security numbers and names do not match Social Security Administration records. Develop a policy for dealing with this issue, including terminating all employees (whether they "appear" to be illegal immigrants or not) who fail to straighten out no-match issues within a reasonable time.

Employers must tread carefully when creating a policy to avoid discrimination issues. Contact me if you’d like some help.

Delaware Appoquinimink School District Prevails In Related-Services Dispute Under IDEA

Posted by Michael P. StaffordOn April 17, 2008In: Newsworthy, Public Sector

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On appeal from a due process hearing decision, the federal District Court in Wilmington, Delaware ruled in favor of the Appoquinimink School District.

The court was asked to review the decision of a due-process hearing panel involving a parentally placed private-school student. The Panel had previously found that the District was obligated to pay for the student's American Sign Language (ASL) interpreter at a local private school, despite his status as a parentally placed private-school student.

The parents of the student initially alleged in their due process complaint that the student had been denied a free appropriate public education (FAPE), while enrolled at the Sterck School (Delaware School for the Deaf). They also claimed that there was no appropriate public placement available because their son required a small class size in order to access his education through an interpreter.

As a remedy, they sought a private placement at public expense, the provision of an ASL interpreter as a related service, and compensatory education.

The Panel rejected the parent's claims of Fair Appropriate Public Education (FAPE) and least-restrictive-enviornment (LRE). The court held that the student could receive a FAPE in one of several available public placements. However, the Panel determined that the School District's refusal to fund the interpreter as a related service was "an abuse of discretion," because the IDEA and Delaware state law did not expressly prohibit the District from funding the interpreter.

According to the Panel, "[i]n the rational exercise of discretion, [the District] should provide a sign-language interpreter as a related service, and liability continues over the parents' unilateral placement." (The full Panel decision can be found on the Delaware Department of Education's website, linked here: Appoquinimink Sch. Dist., DE DP 06-11).

The District Court gets it right

The School District and the Delaware Department of Education appealed the decision to the federal court, located in Wilmington, Delaware. The Honorable Joseph J. Farnan, Jr. decided the case on appeal. They argued that they were under no obligation to fund the student's interpreter because of the separate, more limited, set of entitlements given to parentally placed private-school students by the Individuals with Disabilities Education Act (IDEA).

Specifically, the IDEA obligates districts to spend a proportional share of their federal Part B funds on the provision of related services to parentally-placed students who attend private schools located with their boundaries. The nature of the related services provided is determined through meaningful consultations with representatives of the private schools, the point of which is to identify the greatest area of need.

The court agreed, concluding that the Panel committed an error of law by ordering the School District to fund the interpreter. "Where, as here, the District has provided the child with a FAPE and the parents elect to place the child in private school, no liability continues on the part of the District for the payment of that child's cost of education, including special education and related services," because parentally placed private-school students have no "individual right to receive to receive some or all of the special education and related services that the child would receive if enrolled in a public school." Judge Farnan's full decision can be found on the District Court's website.

The Court also noted that the costs of the student's interpreter were more than ten times greater then the entire amount of the District's proportional share of Part B funds.

Finally, the Court held that that the Panel exceeded its authority in holding the District responsible for the interpreter once it had determined that the student was parentally placed in the private school, because the IDEA expressly states that complaints concerning the provision of services to parentally placed private-school students are not subject to due process procedures.

This was a notable victory for Appoquinimink School District and will be important precedent for future Delaware cases involving special education and school law.

[Editor's Note: Mike Stafford, the author of this post, is too modest to to note that he and Scott Holt, a partner in the YCS&T Employment Law Department, represented the School District in this case and were instrumental in seeing the case to victory. Well done, Mike and Scott!!]

Do You Wear a Flag Pin?: Keep Political Speech Out of the Office

Posted by Maribeth L. MinellaOn April 17, 2008In: Employee Handbooks, Public Sector

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At the democratic debate held last night at Philadelphia's own Constitution Center, Senator Barack Obama was asked why he did not wear an American flag pin in his lapel. While that may be an appropriate question for a presidential candidate, what happens if the issue sparks a political debate around the water cooler?

Can work and politics mix?

Probably not. That's not to say that talking politics at work is unlawful--it's just not a good idea. Politics bring strong emotions that may have no place in the office. Political debates can be loud, distracting, and offensive to colleagues. Let's face it, if you can't talk about who you're going to vote for at a dinner party with friends without stirring the pot, you should definitely think twice about doing it at work.

In fact, an employee's political actions at work can have harsh consequences. Employees should keep in mind that they could be disciplined - even terminated - for promoting their political views in the workplace.

The bottom line is that private employers have a lot of latitude when it comes to what an employee can and cannot say at work; private-sector employees essentially have no constitutional free-speech rights in the workplace.

This is not to say that employers have free reign to control their employee's viewpoints, or to force their own viewpoints upon employees. For example, a Tennessee state statute makes it unlawful for an employer to require an employee to vote a certain way to keep their employment or to threaten an employee with disciplinary action if he does not vote for a certain candidate or party. Notwithstanding Tennessee's unique law, an employer who discriminates against an employee for his political views can be subject to legal liability.

So what's the bottom line? Employees and employers need to be sensitive this election season. Calling employees together to watch the speech of one candidate shouldn't happen. Taking adverse actions against an employee because he expresses his view in favor of a candidate is certainly ill-advised. And management should not send out a memo or an e-mail in support of a political candidate. In short, pause before you ask your colleague where his flag pin is.

Thank You to Everyone Who Attended the Annual Employment Law Seminar

Posted by Barry M. WilloughbyOn April 16, 2008In: Family Medical Leave, Jerks at Work, National Defense Authorization Act (NDAA), YCST

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Our Annual Seminar for Employers was held today at the Chase Center on the Riverfront in Wilmington, Delaware. The attendance at the seminar was our best ever, with more than 130 of Delaware's best human resource professionals, labor relations specialists, senior managers, and small business owners.

Our many thanks to The Honorable Mary Pat Thynge, who spoke candidly about the federal mediation process. Her comments were direct and insightful for everyone, including for the attorneys!

Another thanks to all of the attendees who completed and submitted a survey at the end of the day. We're looking forward to reviewing your comments. Our objective is to make the seminar as effective and enjoyable as possible. Your opinion really tells us what we can do to better to maximize the client experience. We are especially interested to learn what topics most interest you for future seminars. If you were in attendance today but did not have an opportunity to submit an evaluation, just let us know and we'll send you one that can be completed and returned electronically--no stamp necessary!

Again, thank you to all of our clients, colleagues, and new friends, who gave us your attention and participation for a very full day on a variety of employment-law topics.

For the Chronically Absent: Step-by-Step Guide on How to Call in Sick When You're Not

Posted by Molly DiBiancaOn April 16, 2008In: Absenteeism, Just for Fun

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sick-day-handbook.jpgPosted on wikiHow.com is a comprehensive guide for calling out off work without raising suspicions. wikiHow.com is a reader-authored and -edited website that offers tutorials and instructions for just every topic imaginable. The article is titled, "How to Call in sick When You Just Need a Day Off."

Far be it from me to tell you how to use this, um, "thorough resource." Maybe you envision posting it on your intranet as comic relief. (After all, laughter can improve the workplace).

Or, maybe you want to know the tricks of the trade (the faker trade, that is), so you can spot the fakers when you see them.

Or, for all I know, you may want to take these tips for a test run and use them the next time you need a mental health day.

Who am I to judge?

Regardless of how this "guide" is utilized, it does cover just about everything one needs to know in executing an escapism plan. For example, there is a list of alternative "calling methods." Including, calling your boss early in the morning so your voice is rough, thus giving you additional credibility.

There are also various "things to do and say" while on the phone, such as "make your vomit sound real," and how to give yourself a case of the temporary sniffles by, basically, self-induced water torture.

And, for those of who make it in to work only to decide that the Macy's sale really would be a better use of your time, there are ways to "fake sick at work," thereby enabling you to make a clean escape.

Once you make that escape or that early morning phone call, the article cautions that you should heed certain warnings so as not to foil the plan. A personal favorite from the warnings list:

It's important that your boss thinks you are sick in your bed. Blaring music or a loud TV can destroy that image, as can thousands of screaming fans at a footbal game. If you're out of the house, you might want to call from your car. But be sure the engine and air condititioner are turned off.

The article ends with some sage words of advice:

"All in all, the best thing to do is never pretend to be ill, not only is it dishonest and deceitful, if you are found out you could face disciplinary action and, even worse, you can lose your job."


USCIS Update on H-1B Petitions: Random Selection Process

Posted by Molly DiBiancaOn April 14, 2008In: Immigration

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U.S. Citizenship and Immigration Services (USCIS) today conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If approved these H-1B petitions will be eligible to receive an H-1B visa number.

USCIS conducted two random selections, first on petitions qualifying for the 20,000 "master's or higher degree" (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

The approximately 163,000 petitions received in the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers. USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue with final processing of the petitions associated with those numerical identifiers.

Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to ten weeks.

For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period begins today (April 14), the day of the random selection process.

USCIS has "wait-listed" some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status.

USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks.

~From USCIS Press Release

Some Might Consider It Ironic: EEOC Found to Have Violated the Overtime Exemption of the Fair Labor Standards Act ("FSLA")

Posted by Molly DiBiancaOn April 14, 2008In: EEOC Suits & Settlements, Fair Labor Standards Act (FLSA)

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An arbitrator found that the EEOC violate the FLSA by misclassifying as exempt its investigators and mediators.

The arbitration was a result of a greivance intially filed in February 2003 by the American Federation of Government Employees (AFGE) National Council of EEOC Locals, No. 216 on behalf. EEOC had classified these employees as exempt under the Fair Labor Standards Act (FLSA), thereby excusing itself from having to pay these employees for working overtime.

The Union's post-arbitration brief can be found here.

Delaware District Court Awards Summary Judgment to Employer in Age Discrimination Case Brought by EEOC

Posted by Molly DiBiancaOn April 13, 2008In: Age (ADEA), EEOC Suits & Settlements, Reduction in Force (RIF), YCST

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The U.S. District Court in Wilmington, Delaware awarded summary judgment to BE&K Engingeering Company, finding that the EEOC had failed to show that a 54-year-old engineer, who was laid off during a reduction in force, was replaced by someone significantly younger.

EEOC argued that in a reduction-in-force situation, the ADEA prima facie case analysis should be relaxed. The Commission contended that the EEOC only needs to show that BE&K retained several significantly younger engineers while terminating a member of the protected class.

"The analysis is not that simple," Magistrate Judge Mary Pat Thynge wrote, as she rejected EEOC's argument. She cited a district court decision stating that when considering whether an employer gave preferential treatment to younger employees during a RIF, a court must consider "the terminated employee's 'fungibility' or usefulness to the employer in comparison to other employees."

Here, the six younger engineers that EEOC cited as "similarly situated" to the terminated engineer were all employed on long-term projects at the time of the RIF, the court emphasized. The EEOC argued that all engineers were expected to perform the same tasks and easily could be swapped between projects. Significantly, the court rejected the contention, finding that it "fails to address the adverse business costs and impact on future projects when senior engineers are placed on jobs that require only entry-level qualifications."

This case demonstrates the Court's continued respect for the need of businesses to make decisions based on the economic realities of the workplace.

The full decision, EEOC v. BE&K Eng'g Co., can be found at Magistrate Judge Thygne's website.

Monday Humor: From the Lighter Side of the Cubicle

Posted by Molly DiBiancaOn April 13, 2008In: Just for Fun

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Yes, it's here again. Another Monday. But fear not. We know that a little humor can go a long way to starting the week off right. April is, after all, National Stress Awareness Month, giving you even another reason to lighten up.

One certain source of stress is competition in the workplace. Just ask Katharine Hepburn and Barbara Streisand who, on April 14 ,1968, had to share the Best Actress Award at the Academy Awards following a tie between the two superstars.

Not that this is a reason to celebrate for most of us, but Tuesday brings Tax Day. And if the thought of writing a check to the IRS makes you wax poetic for the days when a dollar went much farther, maybe I should remind you that, the first McDonald's opened on April 15, 1955 in Des Plaines, Illinois. One dollar could buy quite a few hamburgers then, given the going rate per burger was 15 cents!

Then, on Wednesday, start your day with steak and eggs, or, more appropriately, with eggs benedict. This classic choice is particularly appropriate in light of the fact that April 16th is National Eggs Benedict Day.

Thursday, April 17, is the birthday of another classic, the Ford Mustang. If life in the fast lane isn't what you had in mind this week, just hang in there until Friday. Then you can end the week with some in-office entertainment with International Jugglers Day on April 18. The possibilities are endless, really.

Have a great week!

Better Late than Never: EEOC Issues Proposed Amendment to Regs for Disparate Impact Claims of Age Discrimination

Posted by Molly DiBiancaOn April 13, 2008In: Age (ADEA), EEOC Suits & Settlements

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In response to Smith v. City of Jackson, the EEOC has issued proposed regs addressing disparate impact claims brought under the Age Discrimination in Employment Act (ADEA).

It has been three years since the Supreme Court issued its decision in Smith v. City of Jackson, 544 U.S. 228 (2005). In Smith, the Court held that the ADEA authorizes claims of disparate-impact discrimination. The EEOC had taken this position long before the Court's decision.

The Court also held that the appropriate standard for determining the lawfulness of a contested practice is whether the practice can be justified by a "reasonable factor other than age" (the "RFOA test"). This was a departure from the more stringent, "business-necessity" requirement maintained by the EEOC. The new proposed regulation would reflect the City of Jackson decision. The proposed regulation also clarifies that the employer has the burden to show that a RFOA actually exists.

The text of the Notice of Proposed Rulemaking can be found in the March 31, 2008, edition of the Federal Register.

USCIS Releases Preliminary Number of FY 2009 H-1B Cap Filings

Posted by Molly DiBiancaOn April 10, 2008In: Immigration

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For background about the quickly developing H-1B events, see our prior posts here and here.

U.S. Citizenship and Immigration Services (USCIS) today made a preliminary estimate that approximately 163,000 H-1B petitions were received during the filing period. More than 31,000 were for the advanced-degree category.

The lottery-based selection process will begin next week with the selection of the 20,000 petitions under the advanced degree exemption. Those petitions not selected from the advanced-degree category will join the random selection process for the cap--subject to the 65,000 limit.

Blogs In the Workplace

Posted by William W. BowserOn April 10, 2008In: Age (ADEA), EEOC Suits & Settlements, Social Media in the Workplace

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It's 2008, do you know where your employees blog? Employers who fail to stay current with the popularity of blogging or who do not have a solid blogging policy in their Employee Handbook put themselves at a great disadvantage. Read on for some key points on the "whys" and the "hows" of a valid and comprehensive blogging policy.

Today’s Wall Street Journal features an article on blogger Heather Armstrong. Heather is most famous for being fired for writing about her co-workers on her blog, www.dooce.com. In fact, a blogger is “dooced” when he or she is terminated for blog comments.

Today, Heather is a full-time blogger writing mostly about her family life. Her blog is incredibly popular, receiving over a thousand hits each month. Her husband even quit his job to work on selling advertising for the blog.

The article causes one to think about just what risks employee run blogs pose for the workplace and how problems can be avoided.

Breach of confidentiality. A blogger may reveal confidential information about your company, including trade secrets. For example, a blogger complaining about a project assignment may, without thinking about the implications, reveal details of a new product that's under development. Or an accounting department blogger complaining about having to work an all-nighter on a big stock deal may inadvertently be revealing insider information.

Defamation. The freewheeling culture of blogging may encourage people to say things online that could defame their employer, management, co-workers, customers, or competitors.

Harassing or otherwise offensive content. Imagine, for example, a situation in which an employee with a disability is being accommodated with a modified work schedule in compliance with the Americans with Disabilities Act. The employer has properly responded to inquiries about the arrangement by saying only that the company is handling the individual's situation in accordance with federal law. A blogger complains that that "slacker" is being allowed to come and go as he pleases while the rest of the department suffers for it and speculates about the person's possible medical condition.

Or imagine a blogger spreading completely speculative rumors that a recently promoted colleague got the job by performing sexual favors for the boss. Conversation that shouldn't go unaddressed in the workplace can be extremely difficult to curb when it occurs anonymously in cyberspace.

Inappropriate content. Such content can range from postings that are disrespectful to your company to those that are completely unrelated to employment but may still reflect on you.

It's important that you cover blogging in your Internet or electronic communications policy. The policy should prohibit disparaging the company or its employees, customers, or competitors either by name or implication. As with your other policies, it should be communicated to employees when they're hired and periodically thereafter. It also should caution them that they must avoid creating the impression that the views expressed on a blog are anything more than personal opinions.

Following are some points you may want to cover in your blogging policy:
1. Persons who broadcast information regarding the company or its employees, customers, or competitors must make clear that views expressed in the blog are theirs alone and don't represent the views of their employer.

2. In blogging, as in any other communication, employees must respect the company's confidentiality and proprietary information. Employees should be reminded of the confidentiality provision in the employee handbook and, if they're required to sign confidentiality agreements, of their commitments under those agreements.

3. Employees who have questions about the blogging guidelines should direct their questions to a designated company official who will serve as the authority on the policy and on helping them understand how it applies to their situations.

4. As with all communications, persons communicating through blogs are expected to treat the company and it employees, customers, and competitors with respect.

5. The company may ask that certain topics not be disclosed for confidentiality or legal compliance reasons, and employees are expected to honor those requests.

6. Employees are responsible for ensuring that their blogging activity doesn't interfere with their work commitments, and they should be familiar with the company's other policies regarding Internet use, which also apply to blogs.
The benefit of a blogging policy is that it puts your employees on notice of the standards of conduct that apply to blog postings. If you then learn that an employee has violated the policy, you can address the situation through the normal disciplinary process. Before imposing discipline, however, remember that state laws differ and certain types of communications may be protected under state and federal law. You might consider consulting counsel before taking any disciplinary action.

New Castle County Reaches Settlement with AFSCME Local 459

Posted by Sheldon N. SandlerOn April 10, 2008In: Union and Labor Issues

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New Castle County’s blue-collar union ratified a three year contract, which provides for no cost-of-living increases in the next two years. The News Journal’s story on the settlement is located here. T

he agreement was reached after over a year of negotiations and reflects the tough economic times faced by New Castle County and other governments in Delaware. See our earlier post.

Bill Bowser and I will be discussing the state of public sector negotiations on April 16 at our Department’s Annual Seminar.

To register, contact Marie Willey at 571-4751. Cost is $95. Lunch is provided.

Young Conaway's John Paschetto Publishes a(nother) Great Legal-Writing Article

Posted by Molly DiBiancaOn April 10, 2008In: YCST

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Young Conaway's own John Paschetto, a partner in our Business Planning Group, received a bit of well-deserved attention in the blogosphere today. John's excellent article about best practices in proofreading was published in The Practical Lawyer. The article, titled Beyond Redlines And Spell-Check: Proofreading Tips From The Dark Ages can be accessed via the firm's website here.

The Legal Writing Profs Blog was the first to post on the quality of the article:

Don't you just hate it when you have e-mailed, filed, or otherwise dispatched some piece of writing, only to spot a glaring error that you overlooked? Or if your job description includes reviewing the work of others (ahem, legal writing profs, I am talking to you), don't you sometimes wonder how those writers could have missed seeing obvious errors?

Either way, you will enjoy reading an article by Delaware attorney John J. Paschetto, published in the February 2008 issue of The Practical Lawyer magazine, Beyond Redlines and Spell-Check: Proofreading Tips from the Dark Ages. Paschetto explains the difference between editing and proofreading, and he identifies many of the common forms of errors that writers tend not to see when reviewing their own work. He explains the advantages of proofing in stages, and he offers several low-tech strategies for catching and correcting such errors, including a checklist that illustrates his suggested method at work.

The (new) legal witer jumped in with a compliment, too.

In it, he explains the difference between editing and proofreading, advocates proofreading in stages, and offers valuable tips to increase the efficiency and effectiveness of your proofreading.

Of course, those of us who have been lucky enough to have their work edited by John, would attest that words like "great" and "excellent" fall far short. John has turned many first-year associates into real, live legal writers! And speaking as one of them, I think "miraculous" is probably the better adjective.

Congratulations to our Writing Guru In Residence!

H-1B Cap Reached After Just 7 Days

Posted by Molly DiBiancaOn April 9, 2008In: Immigration

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As expected, the US Citizenship and Immigration Service (USCIS) announced yesterday that it has received enough H-1B petitions, which are issued to temporary workers, to meet the cap for fiscal year 2009. The cap was reached just one week after the application period opened. The 20,000 H-1B cap for holders of advanced degrees has also been reached.

Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008. Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process. USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate. USCIS will handle duplicate filings in accordance with the interim final rule published on March 24, 2008 in the Federal Register.

The agency will conduct the selection process for “advanced degree” exemption petitions first. All “advanced degree” petitions not selected will be part of the random selection process for the 65,000 limit.

U.S. Citizenship and Immigration Services

Posted by Justia AdminOn April 9, 2008In: Immigration

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Delaware Attorney Barry Willoughby Leads By Example

Posted by Molly DiBiancaOn April 9, 2008In: YCST

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Being a Better Leader

If you have an interest in Leadership and Managment skills, then you've probably tapped into the great resources offered by the Harvard Business Review. In the April edition of HBR, there is an article titled, "Be a Better Leader, Lead a Better Life." The article argues that a good work-life balance is an essential qualification for those who seek to be good leaders.

This concept probably doesn't come as a surprise to most managers. Being locked in an office all day and night will inevitably skew perception of the "real world." And, let's face it, the "real world" is where your staff lives. If you fail to prioritize your life outside of the office, it's easy to see how quickly a divide can develop between you and your reports.

And let's not overlook the obvious--if your work-life balance is in line, you're destined to be a happier person. Everyone likes happy people. And nobody likes a grouchy boss. If you have happiness outside of your work, people will want to work for you.

Really, it's true. Just ask attorney Barry M. Willoughby, Chair of the Emloyment Law Department at YCS&T, who is pictured above. The picture features Barry on a recent fishing business trip to Florida, where he managed to wrestle in a 25 lb. grouper. See how happy he looks? Trust me, his loyal team appreciates a good work-life balance in our leaders.

Another thing that should make you happy: During the month of April, the normally subscription-based Harvard Business and Harvard Business Review are both totally free.

Delaware PERB Executive Director Speaks Out

Posted by William W. BowserOn April 7, 2008In: Union and Labor Issues

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The Delaware Public Employment Relations Board (PERB) is in its twenty-fifth year of operation. It administers public labor relations in much the same way as the NLRB oversees the private sector. On January 1st, Deborah Murray-Sheppard became the PERB's new Executive Director. I recently had the opportunity to speak with her about PERB and the recent changes expanding PERB's responsibilities.Delaware PERB Logo

Q: What's new at the Public Employment Relations Board?

A: It certainly has been a time of change for PERB. First is the retirement on January 1 of my friend and mentor, Charlie Long, as Executive Director. He and I have worked as a team for 24 years. Fortunately, he has been working a couple of days a week to ease us through this transition.

In addition to a change at the top, PERB's responsibility has continued to expand. For example, interest arbitration has been expanded to include virtually all public employers. Also, all State employees now have the right to bargain over wages for the first time.

Q: Can you give us a general breakdown of PERB's workload?

A: PERB handled about 58 cases from April of last year to the present. Eight of those cases involved traditional unfair labor charges. About 29 cases involved the collective bargaining process, including three requests for binding interest arbitration and, 21 cases involved issues of representation.

Q: Binding arbitration has been one of the most important changes in public labor relations in many years. How's it been working?

A: Well, the answer to that probably depends on who you're asking. I can tell you that only a handful of requests actually have gone all the way to a hearing before an arbitrator. Most requests have been resolved through our pre-arbitration facilitation process. Of the three decisions issued by PERB, all three have been in favor of the employer.

Q: What cases are scheduled interest arbitration now?

A: We have only one right now. Certain employees at the Port of Wilmington are scheduled for an interest arbitration hearing in late May. In addition, the state troopers have completed mediation and are participating in our pre-arbitration facilitation process. Recently, two cases were settled by the parties before a hearing. The City of Wilmington was able to reach an agreement with its rank and file police officers and New Castle County was able to reach a tentative agreement with its blue collar workers.

Q: All State employees recently obtained the right to bargain over wages. How has that process been going?

A: We are still working our way through that process. Under the new law, PERB was required to place each state job into one of 12 statewide units. Unrepresented employees are now in a position of requesting that they be represented by a union for purpose of collective bargaining. We now have five such petitions pending. The petitions are in various stages of the process.

Q: What do you see on the horizon for PERB?

A: I think we'll continue to be very busy. Over 50% of the collective bargaining agreements under our jurisdiction have expired or are about to expire. The volume of collective bargaining going on and the tight economic climate suggests that our services will continue to be in demand.

The PERB's official website can be accessed here.

Monday Morning Water Cooler: The Lighter Side of the Cubicle

Posted by Molly DiBiancaOn April 7, 2008In: Just for Fun

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Well, Monday mornings aren't exactly the favorite part of the workweek, at least not for most of us. But they don't have to be that bad, really. Here's a little cubicle humor to start your week off on a positive note.


Happy April!! You've survived the first week of the month of April 2008. And, if you're as seasonally focused as most, this means that you are one week closer to Spring! But wait, there's more to love about April. This week, April 7-11, is "Explore Your Career Options Week"? (Last week was "Laugh at Work" week. I suppose this week's title means you probably weren't laughing.)

And the celebrations and merriment don't stop there.

~Today (7th) is No Housework Day. I'd like to nominate this one to get an entire month. A day just isn't enough.

~Wednesday (9th) is National Cherish An Antique Day. For the Generation Y'ers out there, No, this does not include the senior management team.

~Thursday (10th) is National Sibling Day, which I am happy to celebrate given I have the world's best sibling.

~But Friday (11th), for certain, is the best day of the week this time round. There are two, yes, that's right, two reasons to celebrate on Friday. First, Friday is Barbershop Quartet Day. And, second, Friday is also International "Louie Louie" Day.

With a barbershop quartet and at least one office karaoke version of "Louie Louie" in your future, how could you NOT be glad that it's Monday!


March Madness: No Need to Despair

Posted by Molly DiBiancaOn April 5, 2008In: Policies

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March Madness

That's right, March Madness is here. Again, it's the the time of the year eagerly anticipated by college basketball fans. The entire college basketball season packed into 63 action-packed games.

And what does all of this frenzied excitement have to do with employers? Lots.

$3.7 billion lost to March Madness basketball?

First, there's the cost. March Madness costs employers big bucks. It's estimated that the average American employee spends 13.5 minutes per day surfing the web for college basketball updates, video, and betting forums. I'm sure there are some who would say that estimate is fairly low. But, at even 13.5 minutes per day, 58.5 million college basketball fans times the average American hourly wage equals $1.7 billion, spread out over the 16 basketball tournament days.

That's right, $1.7 billion in 16 days.

Other Financial Costs
Lost productivity is obviously a monster-sized problem for employers. But that's not the only cost incurred during the tournament season. With games being broadcast both live and recorded on the internet, employees don't have to worry about the trouble of finding a television within viewing distance. Instead, they've got the whole world wide web of sports action at their fingertips. And, while productivity goes down, so does your network's speed. It doesn't take many employees watching live-streaming video to slow your system to a crawl.

Now, all of the employees who actually aren't watching the games can't do work, even if they wanted to.

Other Employer Considerations

Productivity issues require employers to make (or avoid) decisions about internet usage monitoring. But there are other issues, as well. For one, there's the issue of the office pool. Is gambling at work illegal? Does it put employers at risk legally? Well, it is unlikely that your workplace will be surrounded by a SWAT team in an ambush attack on your illicit gambling ring over an office basketball pool.

Yet, employers should decide what exactly their position actually is. If an employer allows staff to participate in a pool, the company cannot take any of the funds from the pool. The ante should be small, $5 or less. And the pool must be strictly voluntary. Persons who have a religious objection to gambling, for example, should not be made to feel "left out" of the comraderie just because they declined to toss their $5 into the pot.

And there is another, broader legal implication. Someone set up the pool. Someone is collecting money from participants for the pool. Someone is monitoring the status of the pool. And, likely, everyone is e-mailing about the pool. Also likely is that all of this hard work and dedication (towards non-work activities) is happening during working time.

This is where it really doesn't pay to be the nice guy, just this once. This is soliciting at work. Just like employees who sell their daughter's Girl Scout cookies is soliciting. Just like asking for donations to a charity is soliciting. Just like an employee who hands out catalogues and ordering forrms for a "jewelry party" (the modern-day incarnation of the Tupperware party) she is hosting soliciting.

And just like union salters who try to plant the seeds for a union campaign is soliciting.

The reason employers have non-solictitation policies is to avoid all of the above. By permitting employees to solicit at work, even just this one time, you risk liability later when the union representative wants to solicit your employees to go union.

But There is an Up Side

Okay, okay. I know that I've painted such a grim picture of such a fun time but have faith. Here's the upswing. Employers need to know about these risks and consciously decide how to handle each one. But, by "handling it," I don't necessarily mean firing everyone who participates in the pool or scans the web for the latest updates. There are more reasonable alternatives.

For example, get involved. Instead of being on the outside looking in trying to scope out the secret world of workplace spoots pools, companies can consider organizing the pools. Of course, this isn't a free ticket to ignore the rules of the game, as discussed above. But you could put a positive spin on it.

Why not have a portion of the winnings go to a local charity. Maybe one that the company has a history of supporting. Or maybe the pool winner(s) get to decide. Or even assign charitable organizations to each team and, when that team wins, the charity wins.

Another example might be sanctioned viewing. If you are inclined to restrict internet access to sports websites, announce that the restrictions are lifted and employees are free to view the games at certain designated times.

If your workplace has televisions in conference rooms or the cafeteria, make it a company-sponsored social time. Sporting events are as much "team-building" as any nature hike or rock-climbing experience. At Young Conaway, I'm proud to say that we practice what we preach. On Monday evening, before the game, our firm hosts a now annual Alumni event. All of the former attorneys who have gone on to don a black robe, opened their own practice, or went off to any other adventure, are welcomed back to talk sports and law, and eveything in between, and, while they're at it, to catch up with former colleagues. We have a tremendous turn-out for what has become a really great event.

So, the moral of the story is, make a decision, communicate the decision, and, whenever possible, include comraderie in the solution. It's a win-win all around.

Some thoughts from others in the know:

The Baltimore Sun discusses the upside to March Madness and how employers can utilize the basketball season to bring employees together. See the full article here.

The HR Capitalist has some quick-witted insight on the unavoidability of March Madness at http://www.typepad.com/t/trackback/817654/27180064.

The N.Y. Times has an informative Q & A on the office pool here, which Representing Management discusses with a legal focus here.

The Beazley Source tackles the cost of March Madness to productivity and the bottom line here. CNN's Money page does the same here.

Bad Boys, Bad Boys, Whatcha' Gonna Do . . . When They Work for You?

Posted by Molly DiBiancaOn April 4, 2008In: Off-Duty Conduct

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Our friends at H.R. Hero were nice enough to select one of my articles for HR Line, their national e-zine. The e-zine is great . . . except that you can't see it without a subscription. Don't worry, I'm posting a copy of the original article below.

Bad Boys, Bad Boys: Whatcha’ Gonna’ Do When They Work for You?

Every business has an image. Corporate branding is no small thing. Corporations spend lots of money to market to the right audience and promote their products and services with the perfect image. So what happens when corporate image is overshadowed by a news making employee? Employers are faced with tough choices when the off-time antics of an employee results in bad publicity.

Anchorwoman Turns Anger Woman

In December, popular Philadelphia anchorwoman, Alycia Lane, was arrested in New York City and charged with assault. The charges stemmed from an incident where Lane is accused of hitting a female police officer and calling her a homophobic slur. Lane pleaded not guilty to the charges and maintains her innocence. But her employer, a CBS subsidiary, is not in the mood for apologies, it seems. The station terminated Lane’s six-figure contract on January 7, 2008.

This is not the first time Lane has been featured in the gossip columns for her off-the-air conduct. She even “got real” on Dr. Phil Show, after her first marriage ended to discuss the heartache of divorce. And she made news in August after e-mailing pictures of herself in a bikini to NFL Network anchorman Rich Eisen. The e-mail was intercepted by Eisen’s wife.

Exit Lane: When the Newscaster Becomes the News

Lane’s contract likely included a “morals clause.” These provisions are common employment contracts of TV and radio news personalities, sports figures, and other celebrity types. Even Babe Ruth’s contract contained a good-behavior clause. They are standard issue in endorsement contracts.

But famous faces aren’t the only ones bound by this type of provision. Senior-level executives and corporate officers can expect them as standard. And some provisions include powerful enforcement tools. Executives can lose their deferred stock options if they violate the terms of their agreement.

These provisions provide for discretionary termination of an employee whose behavior conflicts with the company’s corporate image. They vary widely in their definition of “bad behavior.” In some contracts, the clause is not triggered until a criminal conviction. In others, the employer has total discretion to determine what constitutes “bad” behavior and what they want to do about it.

Don’t Judge Me!

So do these provisions hold water in the legal arena? Almost always, the answer is “yes.” Certain states have laws that protect employees from termination or other adverse employment action for activities taken during non-working time.

New York and California have the broadest protections for employees. Employers cannot make decisions based on the employee’s “lifestyle,” which includes just about everything they do off the clock. Some states have “Smokers’ Rights” statutes, which prohibit employers from refusing to hire smokers.

But Delaware has no such laws. So long as your decisions aren’t based on protected status, such as race, religion, gender, and age, you can be the judge of what constitutes “bad behavior” severe enough to warrant termination of an employee. Your company’s image will likely dictate the limits of what is “acceptable” employee conduct.

It’s a pretty safe bet, though, that assaulting a law-enforcement officer probably won’t go over so well with corporate management.

H-1B Visa Applicants Catch a 5-Day Break

Posted by Michael P. StaffordOn April 4, 2008In: Immigration

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The United States Citizenship and Immigration Services (USCIS) announced yesterday that all H-1B temporary worker petitions filed between April 1, 2008 and April 7, 2008 "will be subject to a random selection process." Of course, petitions that are not selected and approved through this process will be returned, along with the accompanying filing fees.

USCIS only began accepting H-1B petitions on April 1, 2008 for new employment in fiscal year 2009, which begins on October 1, 2008. The announcement of the random selection process means that employers who were not able to submit their H-1B petition by April 1st still have a chance to secure employment authorization, provided the petitions are submitted by April 7.

It's important to remember that not all H-1B petitions are subject the visa cap. For example, petitions renewing H-1B status, or "porting" a worker currently on an H-1B from one employer to another are, in most instances, not subject to the cap. However, the H-1B visa cap does have a tremendous impact on your ability as an employer to hire foreign students or persons presently in foreign countries for employment in the united States. As such, it should be considered in any recruitment conducted by your organization.

Blog Worthy of Note: Workplace Violence News

Posted by Molly DiBiancaOn April 2, 2008In: Workplace Violence

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I came upon a great blog today worthy of sharing. The bloggers at Workplace Violence News are posting like crazy and have a ton of substantive content. They also have a list of recommended reading and links to other helpful resources.

You can jump to the website from this link.

April 29: Annual Employment Law Seminar

Posted by Molly DiBiancaOn April 1, 2008In: Seminars, Past

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Delaware employers can mark their calendars for April 29, 2009. This is the date of Young Conaway's 2009 Annual Employment Law Seminar.   Here's a brief run-down on the essentials of the event--more details will follow as we get closer to April.  ycst sq.jpeg


Attendees include public and private sector employers, represented by Human Resource professionals, small-business owners, senior executives, and in-house counsel.

The attorneys from Young Conaway's Employment Law Department will be speaking throughout the day.  This year, we are very pleased that Administrator Julie Klein Cutler and Trina Gumbs, of the Delaware Department of Labor's Office of Anti-Discrimination, will be our keynote speakers.  There are no two people in the State administration who are more familiar with the nuances of the process involved in the filing of a Charge of Discrimination. 


One thing that will not be changing this year is the location of the event.  For the second year, the seminar will be held at the Chase Riverfront Center in Wilmington, Delaware.  We moved the event to the Riverfront last year due to the expanding number of participants.  The convenient location, accessible parking, and well-equipped facility earned the spot a return visit. 


This year we'll be conducting the seminar for a full day instead of the half-day seminar we've done in previous years.  The program's expansion was made in response to the comments and evaluations we received from attendees at last year's conference.  The seminar will be held on April 29, 2009, from 9 a.m. to 4:30 p.m.


The topics will be announced and registration will open soon.  Be sure to watch the blog for additional updates and registration information. 

DOL Offers Compliance Checklist for Wellness Programs

Posted by Molly DiBiancaOn April 1, 2008In: Internet Resources, Wellness, Health, and Safety

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Are Healthy Employees Productive Employees?

Last week I posted about a new survey on the lack of commitment by employees to health and wellness programs sponsored by their employers. For those of you who were not deterred by that news, here's a[nother] helpful (and free) online tool from the Department of Labor (DOL).

In February, the DOL issued its Field Assistance Bulletin 2008-02, which is designed to help employers who are attempting to establish a Wellness Program while remaining compliant with HIPPA regulations.

The Wellness Program Analysis can be found here.

Do You Need the Checklist?

In short, the answer is "yes" if you are an employer with any kind of health-promotion or disease prevention programs. Also known as "Wellness Programs," these health-focused initiatives became popular early in the decade. Certainly you've heard of these programs, even if your workplace hasn't yet adopted one.

Wellness programs come in every shape and size. Some of the more benign programs promote cholesterol screenings or even advocate flue shots for employees. Others promote an all-around "healthy lifestyle" by giving employees financial rewards for regular attendance at a fitness club. And, as you may have read in some of my previous posts, smoking is also a very popular target of wellness programs.

So why the need for a government-agency-sponsored "checklist?" As with just about everything in the law, we lawyers just can't hardly stand to let anything be simple. Employers that utilize "wellness programs," as defined by law, must follow certain practices to avoid violating the anti-discrimination provision of the Health Insurance Portability & Accountability Act (HIPAA). (Be honest, did you even know there was such a thing as an anti-discrimination provision in the HIPAA statute? If you said "no," you wouldn't be alone.)

Wellness programs that are subject to the HIPAA regulations must meet either a "benign discrimination" exception or offer a reasonable "alternative standard" in order to be in compliance with the law. Which exception will depend on whether your program is considered a "standard-based" or "participation-based" program.

Standard-Based vs. Participation-Based Programs

Standard-based programs require participating employees to meet the stated objective in order to receive the offered reward. So, for an employee to successfully complete a cholesterol-reduction program, his cholesterol must actually be reduced.

Participation-based programs offer a reward to employees based on their participation, as opposed to their success. The reward cannot be conditioned on achievement of a specific health-related outcome. So, for a smoking-cessation program, employees can receive the reward so long as they complete the program. Whether or not the employee actually quits the habit does not effect their eligibility for the reward.

Discrimination In a Standard-Based Wellness Program

To comply with HIPAA, a standard-based program must satisfy five requirements:

1. The reward offered under the program must be limited to 20% of the applicable cost of coverage.

2. The program must be reasonably designed to promote health or prevent disease.

3. Individuals must be eligible to qualify to participate in the program at least once per year.

4. The reward must be available to all similarly-situated individuals.

5. The wellness program must have a reasonable alternative standard and disclose the alternative standard in all program materials that describe the program.

And what exactly is the "reasonable alternative standard" identified in the fifth prong?

For standard-based wellness programs to avoid a HIPAA violation, it must offer an "alternative standard." This means that an employee must be offered a reasonable alternative to the stated objective and still be able to achieve the reward. In the cholesterol-screening example, the objective is the attainment of a certain cholesterol target. An alternative standard would be nutrition counseling sessions. The standard must be made available to those for whom it is (1) unreasonably difficult due to a medication condition; or (2) medically inadvisable to satisfy the otherwise applicable standard.

A Little "E-Law" Humor for April Fool's Day

Posted by Molly DiBiancaOn April 1, 2008In: Just for Fun

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Yes, lawyers really do have a sense of humor.
Go ahead, have a laugh, it's good for you.

E-card courtesy of someecards.com