May 2008 Archives

Where's the Brotherly Love, Philly? Employment Discrimination & Civil Rights Suits Making Headlines

Posted by Molly DiBiancaOn May 31, 2008In: Discrimination & Harassment, EEOC Suits & Settlements, Fair Labor Standards Act (FLSA), Newsworthy

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The City of Philadelphia seems to have had more than its fair share of civil rights lawsuits in the last several weeks. The EEOC has had a number of significant successes against employers in Philadelphia and the surrounding areas.

philadelphia skyline

The month of May started on a difficult note for the city. First, there was the backlash when 15 city officers were videotaped beating a suspect just days after a fellow officer was killed in the line of duty.  4 of the officers were later fired for their involvement.

Moore v. City of Philadelphia

Then came the $10m jury verdict in favor of three former Philadelphia police officers.  The officers alleged that they were subject to unlawful retaliation when they opposed racial discrimination and harassment of African-American police officers in their squad.   

Lawrence vs. City of Philadelphia

Then, on May 29, 2008, The Third Circuit reversed and remanded a class action case brought by more than 250 "fire-service paramedics."  The plaintiffs allege that the city's fire department unlawfully withheld overtime pay by misclassifying them as exempt employees under the "fire-service exemption."  A case of indebtedness at the trial court level of the Appellate Court reversed finding that the exemption did not apply.  This narrow reading of FLSA exemption could have broad implications for the City of Brotherly Love.

EEOC vs. NutriSystem Inc.

Not to be outdone by its urban neighbor, Horsham, Pa. has had its own bit of discrimination news.  On May 21, 2008, the EEOC announced that NutriSystem, Inc., had agreed to settle a lawsuit filed by the Commission on behalf of the woman it allegedly fired because she was pregnant.  The pregnancy discrimination settlement cost NutriSystem $82,500.  The employee with initially hired as the temporary recruiter in the company's human resources department and would need a fulltime employee a year later.  One month after she was placed in a leadership training program and three weeks after she announced that she was pregnant, the employee was fired.

NutriSystem, again

The Horsham company saw more problems last week when a former employee and Philadelphia resident filed suit in Federal Court in a class action suit estimated to include that least 400 current and former employees.  The lawsuit alleges that the company violated The Fair Labor Standards Act by underpaying their call center employees.  The company responded that the employees had been properly classified as exempt.

Of course, the first case in this string of settlements was in early May, when Conectiv agree to pay $1.65m to Black workers after the EEOC filed suit against the energy company and its subcontractors for race discrimination.  (See my earlier post, Delaware-based Conectiv Settles Race Discrimination Suit with Philadelphia EEOC for $1.65m.)

New Employer & Workplace Study on Flexible Schedules

Posted by Adria B. MartinelliOn May 31, 2008In: Family Responsibilities (FRD), Flextime, Women In (and Out of) the Workplace

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Family Responsibility discrimination (FRD) and gender discrimination are the targets of many advocacy groups who work to promote family-friendly workplaces.  WorkLife Law, 9to5, and Families and Work Institute are just some of them. Families & Work Institute released a study on May 21, the 2008 National Study of Employers, which followed ten-year trends in U.S. workplace policies and benefits. The results were mixed.



Employer Study on Flextime & Alternative Work Schedules

The study revealed good news and bad news for employees seeking flexible working conditions. 79% of employers now allow at least some employees to periodically change their arrival and departure time, up 10% from 10 years ago.

But off-ramping, which allows employees to move from full- to part-time work and back again while remaining in the same position or level is down 10%.  In 1998, 57% employers reported that they permitted off-ramping. Today, only 47% answered this question affirmatively. This may well be attributable to a failing economy and employers looking to cut the bottom line.

Not surprisingly, the study found that the presence of women in senior positions correlated with a more flexible workplace. It makes sense that if the people in charge require flexible schedules, they might be more likely to provide them for their employees.

What, if anything, do these findings mean for employers? There is no law that requires employers to allow flexible work schedules.  (Well, not yet anyway. This may change if the above advocacy groups have any say about it!)   So why would you make these special accommodations, especially when it appears that their popularity is on the decline?

1.  Workplace Flexibility Increases Profits

The first and most important reason is increased profitability.  It makes good dollars and cents sense when you look at the economics related to the advancement and retention of women and minorities. It is an undeniable fact of the modern workplace: women are a significant part of your potential workforce. Particularly in professional fields, employers have spent lots of time and money training female employees.

Often, any costs involved in permitting flexible work arrangements are far outweighed by the cost of hiring and training someone else to do the job. Therefore, many employers have decided it’s well worth the investment to provide a flexible schedule in order to retain an employee for the long haul.

2.  Flex-Time Translates to Risk Avoidance

A second reason is the potential for litigation surrounding the flex-time issue. Right now there is nothing illegal or improper about denying flex-time if its denied across-the-board for male and female employees. However, many of the advocacy groups have threatened to file a disparate treatment case with regard to flex-time denial, arguing that it unfairly impacts female employees.

When the right case comes along with compelling facts, you can be assured that such a case will be filed and employers everywhere will start to jump on the flex-time bandwagon.

3.  Retention Linked to Flexible Work Schedules

Put yourself ahead of the pack and make your workplace an “employer of choice” by considering these flex-time schedules and off-ramping options now. These alternative work schedules are run-of-the-mill options among the companies ranked in the top 100 Places to Work.

Additional Resources:

Family Responsibility Discrimination (includes free summary of FRD)

Mommy Bias- Truth or Fiction?

Pregnancy Discrimination Claims on the Rise

Pregnancy Discrimination FAQ

Maternal Profiling

Testing Your Pregnancy Discrimination I.Q.

DOJ Long-time Employee Sues For Race Discrimination

Posted by Molly DiBiancaOn May 30, 2008In: Harassment, Sexual, Newsworthy, Public Sector, Race (Title VII)

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The Department of Justice has been sued by an employee who alleges racial discrimination and sexual and race-based harassment. 


A 13-year veteran paralegal in the Civil Rights Division of the Department of Justice (DOJ) has filed suit claiming she was discriminated against and harassed by managers who repeatedly passed her over for advancement because she is African-American. Joi Hyatte alleges that the DOJ "actively" sought only white and Hispanic candidates for higher-paying analyst positions.

The complaint also says that the section chiefs failed to rein in or discipline three white male lawyers who "behaved in a racially and sexually offensive manner" toward two female analysts -- one white, the other black. 

The attorneys mocked the Caucasian analyst for displaying pictures of prominent African-American civil rights activists and leaders on the walls of her office. They also commented that she had a 'tight ass' and referred to both women as 'lesbians' and 'carpet munchers.'

David Vladeck, a professor at Georgetown University's law school, is representing Hyatte.  He says at least six other African-Americans in the voting section have complained of similar treatment, filing internal complaints with the DOJ's EEO Office.

Hyatte does not seek the normal damages.  She wants to be promoted to analyst and seeks back pay for the period that she had been performing analyst work without receiving the title or the pay that goes with it. has complete coverage of this developing story, Civil Rights Division Employee Sues DOJ, Alleges Discrimination.

It's not very common, but it does occasionally happen that a government agency is charged with committing the very same offenses that it is charged with eradicating.  See my earlier post, Some Might Consider It Ironic:  EEOC Charged With Violating the Overtime Exemption of the Fair Labor Standards Act.

You Know You're a Bad Manager When. . . Mutiny at the Post Office

Posted by Molly DiBiancaOn May 29, 2008In: Employee Engagement, Jerks at Work, Newsworthy

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Good management is learned.  No one is born a good manager.  But we learn as we go. Well, at least some of us do. Others maybe haven't gotten that far.  And how do you know which one of the two categories you're in?  For one Post Office manager, the signs are pretty clear.SF Postal workers picket bc bully boss

Earlier this month, about 100 postal workers put up a lively picket line that stretched half a block long.  And what were they protesting?  Their boss.

That's right, the employees had established an informational picket demanding that an abusive supervisor be removed.  Their signs read, "Ron Malig Is Hostile and Cruel," "It's Impossible to Work With Ron Malig."

A press release issued by the picketers read: "His behavior there was chronically abusive and resulted in numerous grievances and EEO complaints and a petition to Congressional representatives."

I think it's safe to say that Mr. Malig could use some additional training. 

Source: San Francisco, "San Francisco Postal Workers Call for Removal of Abusive Boss."

U.S.S.C. Is Hardly Anti-Employee: Supreme Court Expands Retaliation Claims

Posted by Barry M. WilloughbyOn May 28, 2008In: Public Sector, Race (Title VII), Retaliation, U.S. Supreme Court Decisions

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The United States Supreme Court is anything but anti-employee.  The Supreme Court's decisions in Cracker Barrel and Gomez-Perez, filed yesterday, continue to broaden the limits of Section 1981 in favor of employees.

Recently, employee-advocate groups have made great sport out of attacking the Supreme Court’s employment-discrimination decisions--using them to raise the hue and cry for legislative reform. This week's rulings in CBOCS West, Inc v. Humphries (the “Cracker Barrel” case), and Gomez-Perez v. Potter show that employee advocates and plaintiffs’ lawyers have little to complain about.

The Background of Section 1981U.S.S.C. Building

The Court's 7-to-2 ruling in the Cracker Barrel case addressed a novel question of law: Whether there can be a claim of unlawful retaliation based on Section 1981. Section 1983, originally known as the Ku Klux Klan Act, was passed in 1871 during Reconstruction following the civil war.  The law was intended to provide a federal remedy for private conspiracies such as those being committed by the KKK, which the Southern state courts had been unsuccessful in prosecuting. In short, the law prohibits discrimination based on race in all aspects of contractual relationships, including written and unwritten employment contracts.

But Section 1981 contains no anti-retaliation language at all. What’s more, when Congress amended the law in 1991, it did not add an anti-retaliation provision.  By that time, many other anti-discrimination statutes had been enacted to explicitly included anti-relation provisions. Nevertheless, in yesterday's Supreme Court opinion by Justice Breyer, the Court concluded that retaliation claims may brought under the statute and are “well embedded in the law.”

The Significance of the Cracker Barrel Decision

The ruling is significant in at least two ways. First, unlike the perhaps more familiar racial discrimination claim under Title VII, damage awards under Section 1981 do not include monetary caps. Employers are therefore exposed to substantially higher damage claims.

Second, Section 1981 claims do not require an administrative filing with the EEOC. The statute of limitations for such claims is much longer for these claims as compared to Title VII.  The statute of limitations in a Section 1981 claim is borrowed from state law.  The limitations period from the analogous intentional tort claim is applied unless the limitations periods vary for different intentional torts.  In that case, the state's general personal injury statute of limitations should apply.

For Delaware employers, that means that, whereas a Title VII employee-plaintiff has 300 days to file a Charge of Discrimination, a Section 1981 plaintiff has more than twice as long, four years, to file a complaint in federal court. Further, since no administrative filing requirement exists under Section 1981, the employer may be unaware of a potential claim for a lengthy period of time.

The Significance of the Gomez Ruling

The Gomez decision is less significant in that it only applies to federal employees. In Gomez, the U.S. Supreme Court, in a 6 to 3 ruling, found that a cause of action for retaliation existed for claims brought pursuant to the Age Discrimination in Employment Act (“ADEA”). The ADEA has an explicit anti-retaliation provision applicable to private sector employees but no anti-retaliation provision applicable to federal workers. The High Court, nevertheless, concluded that Congress “intended” that retaliation be considered another form of “intentional discrimination” under the law.

Cracker Barrel and Gomez continue the Supreme Court trend that began with the Burlington and Faragher decisions, issued in 1998.  Since those rulings, the Court has taken an expansive view of anti-retaliation claims.  It will be interesting to see whether pro-employee groups and Plaintiffs' lawyers will be satisfied by these decisions in light of the decidedly expansive view of employee-retaliation rights that the Court has adopted.


Additional Resources:

The Legal Information Institute (LII) at Cornell has an excellent summary of the Cracker Barrel decision, as well as links to the actual decision and the numerous briefs.  The Gomez decision is also posted at the LII website.

HR Hero is an excellent resource for more information on the broader topics that were addressed in these cases, including Section 1981, Employment Retaliation, and Age Discrimination in Employment (ADEA).


[Update May 29, 2008:  SCOTUS Blog also has an in-depth analysis of both cases from the plaintiff-employee perspective.]

Employees, Prepare to Get Healthy, Like It Or Not!

Posted by Molly DiBiancaOn May 28, 2008In: Legislative Update, Wellness, Health, and Safety

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Wellness programs have sprung up all over Corporate America.  Employer-sponsored, these programs are based on the idea that healthy employees are happy employees and happy employees are productive employees.  Although they continue to be popular with businesses, recent studies seem to indicate that they are not very successful in helping employees make long-term improvements to their overall health.  See my prior post, Are Today's Wellness Programs Running Out of Steam?

Wellness Programs Haven't Kicked the Bucket Yet

But just when it seems that perhaps the trend towards regulating employees' weight, cholesterol levels, and cardiovascular health, might be fading, here comes the public sector, bringing up the rear.  woman healthy streching for a run reports that at least two states have moved towards mandatory wellness programs:

A California Assembly committee passed a bill this month that would require employers contracting with the state to offer one or more wellness programs to their employees. A bill introduced in Michigan would require that the state give preference to employers that offer wellness programs in awarding contracts.

California Assembly Bill 2360, introduced by Assemblyman Lloyd Levine, D-Van Nuys, in February, would apply to employers with 10 or more employees bidding on state contracts worth more than $1 million. Businesses could comply in a variety of ways, such as subsidizing memberships to fitness clubs, setting up their own fitness facilities, sponsoring amateur sports teams composed of employees, or providing employees with health information.

Levine’s bill was introduced after state legislators rejected a sweeping health care reform proposal by Republican Gov. Arnold Schwarzenegger that, among other things, would have provided incentives to plan members such as gym memberships; weight management programs; and reductions in health insurance premiums to promote prevention, wellness and healthy lifestyles.

A.B. 2360 has been referred to the Assembly Appropriations Committee, where it will be considered along with all other bills that could have a financial impact on the state, according to a spokesman for Assemblyman Levine.

Michigan’s wellness measure would require the state’s Department of Management and Budget to give preference to business entities that have wellness programs in place for their employees in awarding a contract for services and items needed by state agencies. The bill does not define wellness beyond "a health promotion program offered by an employer to his or her employees."

A report by the Senate Fiscal Agency for the state of Michigan found that the bill, which was introduced in February 2007 by state Sen. Roger Kahn, R-Lansing, would have no fiscal impact on state or local government. The bill has been referred to the Michigan Senate Committee on Health Policy.

A California Assembly committee passed a bill this month that would require employers contracting with the state to offer one or more wellness programs to their employees. A bill introduced in Michigan would require that the state give preference to employers that offer wellness programs in awarding contracts. Delaware's health-management program for public sector employees, DelaWELL, was recently awarded the National NASPE award.  I'll be curious to see whether mandatory healthiness (if there is such a thing) will be more effective than voluntary, reward-based wellness programs.

Summer Seminars: The Advanced Employment Issues Symposium

Posted by E-LawOn May 27, 2008In: Seminars, Past

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As is the usual Young Conaway Stargatt and Taylor practice, the Employment Law Department has several upcoming seminars on the agenda in Delaware and across the country. To keep you in the loop, here's a quick run-down of the basic info for each:


William W. Bowser will be one of the panelists during the Opening Keynote at this year's annual Advanced Employment Issues Symposium (AEIS).  The topic for this year's Keynote is "New Year, New President, and the Outlook for Employers." This is AEIS's 13th year and it continues to get better.  The first program dates are September 25-26 in Las Vegas.  Bill will be speaking at the keynote in Las Vegas and in Nashville, TN on October (16-17).  The Symposium was held in Nashville a few back to phenomenal success, which we expect will be repeated again this year.


Bill and Scott A. Holt will speak together in Nashville for the preconference workshop "Avoiding e-Danger Zones: How to Reduce the Legal Risks of E-Mail, IM, Employee Blogging, Social Media, and Other Workplace Technologies."  You may already know that Bill is a local legend for his always up-to-date knowledge of the most cutting-edge technology. And Scott, of course, is no stranger to technology either.  And both of them can certainly speak from experience when it comes to blogging in the workplace!  


The duo also spoke recently at the May meeting of the Delaware chapter of Society of Human Resource Management (SHRM).  There were over 100 human resource professionals in attendance, anxious to learn about the newly proposed FMLA regulations.

Adria B. Martinelli will be attending the both sessions of the AEIS conference prepared to answer tough questions from attendees as a panelist for the session, "Bring it On! Your Toughest FMLA Questions Answered."  She will also be the speaker for a break-out session, "When FMLA and Pregnancy Leave Collide: How to Avoid Costly Discrimination Claims."

In August, Bill will team up with Molly DiBianca to conduct a live webinar on the ins and outs of technology in the workplace. 

All of the attorneys in the Employment Law Group teach seminar "on-site" at the employer organization's facility. The variety of topics is expansive.  For example, this month alone, Molly will conduct in-house seminars this month on Internal Investigations, as well as Age Discrimination training, and Adria is assisting a client prepare drug-and-alcohol education training.  Contact any of the attorneys in the section for more information about customized training at your facility.

For more information on the AEIS conferences, visit HR Hero's website.  The Delaware Chapter of SHRM hosts events frequently, which are listed at their website.  When more information on the August webinar, we'll be sure to give you an update and, of course, you can always check the Young Conaway Employment Law Group's webpage, as well. 

Advanced Employers Issue Symposium, September 25-26, Las Vegas, NV and October 16-17, Nashville, TN

What to Do If Your Employees' Confidential Data Is Stolen

Posted by Molly DiBiancaOn May 27, 2008In: Delaware Specific, Privacy Rights of Employees

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Employers, do you know what to do if your employees' confidential data is stolen or lost? There are ways employers can prepare to act quickly and effectively in the event of a data security breach. Delaware employers in particular have a wealth of resources made available by the State. But don't wait until it's too late to learn about the necessary steps to take to help your employees in a time of crisis as well as to protect against liability. 


Notify Your Employees Immediately

Once you learn that there has been a potential data breach, you should notify every potentially affected IDTheftemployee.  Do so immediately.  Every minute counts when this confidential information has been obtained by someone with the wrong intentions.

Exactly how you give notice may differ based on the state where your business is located.  Delaware employers are guided by a state law, the Delaware Credit and Identity Theft Protection Act.  The Act instructs employers to provide written notice to employees that the security of their data may have been breached.  The Act also contains sample language for the notice.  In essence, the Act explains that employees should consider placing a "security freeze" on their credit report.

A security freeze is a permanent hold on your credit information. It costs nothing to have the security freeze put in place and it takes no more than three days from the time of the request. 

If someone wants to use your credit to get a loan, extend a line of credit, or finance a big purchase, the lender will need to contact a credit reporting agency to determine your credit rating.  If a freeze is in place, no information will be provided.  But you will be alerted and can, in turn, alert the authorities. 

And unlike a fraud alert, a security freeze will stay in place until you ask to have it removed permanently or lifted temporarily.

Monitor Your Credit Report

Another important step to take is to request a copy of your credit report and continue to do so periodically and cautiously monitor it for any inaccuracies.  By law, Delaware residents are entitled to one free credit per year from each of the three credit agencies.  The website that has been created for this purpose is  Or you can download the free credit request form (pdf) and mail the completed copy to:  Annual Credit Report Request Service, P.O. Box 105281, Atlanta, GA   30348-5281.

There is no penalty for Delaware residents who request their credit report or who put a security freeze on their credit.

Delaware Employers Should Utilize the Resources Offered by the State

Employers should know that the State of Delaware also offers several helpful resources.  It's a great idea to order some of these now to have on hand in the event that a theft does occur.  The new brochure, "Identity Theft Hurts"  has answers to many of the questions residents have about credit reports including what is in your credit report and what to do if you find an error in your credit report. The brochure also covers the issue of identity theft and steps you must take if you are a victim of identity theft.

The Office of the State Bank Commissioner also distributes a new brochure from the Federal Trade Commission entitled Stop Think and Click (also available as Stop Think and Click in Spanish), which highlights seven practices for safe computing.  The brochure also focuses on a new web site called, which provides practical tips from the federal government and the technology industry to help you be on guard against internet fraud.  The Office of the State Bank Commissioner recently released links to the top five web sites consumers can use to fight identity theft. 

The Office is partnering with the Delaware Money School and has scheduled over a dozen meetings in the spring of 2006 across the state on identity theft and free credit reports. Residents can register on line or call the money school for information about how to set up a presentation in your neighborhood or school.

Survey Says: Employers' Policies on Technology in the Workplace

Posted by Molly DiBiancaOn May 26, 2008In: Electronic Monitoring

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Employers know that e-mail between employees can be dangerous.  Employers know that the Internet can all but eliminate the productivity of their employees.  But what do employers know about Instant Messaging, weblogs, chat rooms, and wikis?  And, more importantly, what are they doing about it? HR Hero's survey gives some insight into the answers to these questions.

Survey Says . . .

HR Hero has released the results an interesting survey on policies (or lack thereof) for workplace technology.  There is a link to the full survey below but here are some highlights:

Policies for Technology Use.  Not surprisingly, most employers (89%) have policies both on employees' internet and e-mail usage.  What was surprising, to me anyway, is that there are still employers (5%) with essentially no policies on workplace technology.


E-mail Usage Policies.  Only a fraction of respondents (3%), did not put any limits on employees' use of the company's e-mail  systems.  Nearly all (80%) have policies expressly prohibiting inappropriate e-mails.  And more than half (61%) permit personal e-mail so long as it is not excessive.  A surprisingly large number (34%), of employers do not permit employees to send any personal e-mails.


Internet Usage Policies.  Like e-mail policies, nearly all employers (82%) prohibit employees from visiting websites.  28% of employers limit employees' internet access to approved websites only.  A small number of employers had either no internet usage policy at all (3%) or put no limitations on usage (3%).


Internet & E-Mail Monitoring Policies.  Just over half (58%) of employers that responded monitor internet use but only if they suspect abuse.  Almost the same amount (61%) did the same for e-mail.  Less than one-fifth of respondents regularly monitor e-mail use (19%) but internet monitoring seems to be more common (27%).



Blogging.  Most employers have not started to use blogs as part of their business activity.  Of those who have (12%), approximately equal numbers are putting blogs to work as part of their marketing (4%), and public relations (3%), efforts.  Others are blogging to communicate both internally within the company (3%), and externally with clients (1%).  image

The entire survey, Technology and HR 2008, can be seen at the HR Hero website.

Special Note for Delaware Employers

Delaware employers should be aware that state law mandates that notice be given before monitoring employees' internet or e-mail usage. The law is specific in the way that notice must be given.  Although there are alternatives, the most common way is with a written consent form signed by each employee.

For more information on how to comply with Delaware's internet and e-mail monitoring law, contact any of the attorneys in YCST's Employment Law Department.

U.S. Employers Consider Obesity Discrimination-In France, Not So Much

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

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We've posted before about the "next big thing" in employment discrimination: obesity-based bias.  (See Is Obesity the Next Protected Class? and U.S. Businesses Recognize the High Cost of Obesity–Should Delaware Employers Do the Same?)


It has been speculated that, as the cost of health care continues to rise, employers will continue to charge employees higher premiums based on certain health-related factors.  Today, it's employees who smoke.  Tomorrow will it be employees who are overweight?  French employees don't have to worry about this potential problem.

The French parliament has been working on a law that would make it a crime to promote extreme thinness.  Fashion industry experts have opposed the efforts, claiming that there should not be a legal boundary on beauty standards.

Source:  Fox

NLRB's General Counsel Issues Register-Guard Memo, Raising Further Questions on E-Mail Policies

Posted by Molly DiBiancaOn May 26, 2008In: Union and Labor Issues

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E-mail has become the modern-day medium for union solicitation. Employers who restrict employees' use of company e-mail must do so in a way that does not violate Section 7 of the National Labor Relations Act (NLRA).  The National Labor Relations Board (NLRB) was asked to determine the limits of these restrictions in a case decided in December 2007, The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (Dec. 16, 2007) (Register-Guard). But the decision may have raised more questions than it answered.

The NLRB's Decision

In Register-Guard, the Board was asked to rule on the circumstances under which an employer may discipline an employee for personal use of the business' e-mail account. Restrictions, the union argued, constituted an unfair labor practice based on its discriminatory effect on union solicitation.


The Board determined that an employer who restricted the use of its e-mail system to work-related business did not violate section 8(a)(1) of the NLRA when it applied this rule to Section 7 activity. The Board majority held that an employers email system is company property that employees have no statutory right to use. Although the decision offered some insight into the limits of e-mail usage policies, it was not the definitive resolution many had hoped for.

The Application of Register-Guard to the Unionized Workplace

Then, on May 15, 2008, NLRB General Counsel Ronald Meisburg issued a memorandum describing the Boards application of the holding in Register-Guard. Since the Register-Guard decision, Regional Officers have submitted discrimination cases involving company property to the Division of Advice. Labor and employment law blog, the Washington Labor & Employment Wire reports on the determinations reached by the Division of Advice:

  1. An employer did not violate the Act by enforcing a rule that barred union officials from sending e-mails to company managers outside of the facility. The union used the company's e-mail system to send broadly distributed messages to company managers outside the facility. The Division determined that the company' rule was lawful because it concerned how the union was permitted to use the employer's e-mail system and did not otherwise prohibit the union from engaging in protected communications.
  2. An employer's rule that prohibits solicitation for any purpose during work hours was unlawful when applied to union activity.  The employer inconsistently enforced this policy by permitting non-union-related solicitation activity including institutional and individual commercial solicitations, school fundraising solicitations, and personal solicitations. The Division reasoned that an employer may not discriminatorily enforce a facially valid no-e-mail-solicitation rule.
  3. A rule that was re-promulgated after union organizing activities began at the employer's site was a violation of the Act. After an employee sent emails about a union meeting, the employee was disciplined for misusing the employer's email system. Prior to sending the email, the employee checked with the employer's IT director to determine what was considered abuse of the employer's computer system. The IT director did not inform the employee that personal email or email solicitation was against employer policy.     The case initially settled after an investigation revealed that the employee was disciplined because of union activity. Subsequently, the employer again disciplined the same employee for sending another email with union-related content. The Division concluded that the employer re-promulgated its email rule for anti-union reasons, and discriminatorily enforced the rule against union activity.
  4. An employer violated the Act when it discriminatorily enforced its electronic communications policy against an employee. The employer terminated the employment of an employee after the employer learned that the employee was the author of an email sent to the employer's Board of Directors that listed concerns that employees had about working conditions. The employer alleged that the employee was terminated for inappropriately using the employer's computers in violation of its policy.           The Division found that the employer unlawfully discharged the employee for engaging in protected activities. The Division noted that the employer's email policy allowed reasonable personal use of the employer's computer and the employer permitted employees' use of the Internet, email, and other company equipment for personal purposes. Thus, the Division concluded that the employer disparately enforced its email policy.
  5. An employer violated the Act when it discriminatorily prohibited use of its employee bulletin board. A union organization event was held at one of the employer's stores during which union material was placed on a bulletin board within the store designated for employees. The bulletin board was used for personal and general non-work related matters. The union material was taken down and the employer later turned the bulletin board into a management-only posting site. The Division concluded that the facts established an anti-union motive because the timing of the employer's conduct and the actions themselves were directly in response to the union activity.

These decisions reinforce the presumptive rule: an employer may not use facially neutral rules to effectuate anti-union animus nor may an employer discriminatorily enforce rules to prohibit protected collective activity.

What Other Employment-Law Blogs Are Saying

Since the General Counsel's memo was released, several employment-law bloggers have given additional discussion to the limits of workplace policies on personal e-mail usage. Some of the most informative posts include The Manpower Employment Law Blog's post, "Everything You Ever Wanted to Know About the New Union Email Rules," which was subsequently picked up by The Laconic Law Blog. The Ohio Employers' Law Blog tells us "How to Apply the New E-Mail Solicitation Rules."   And, earlier in the month, the Workplace Profs Blog posted about the General Counsel's Memo.

Employees Turn to Moonlighting to Combat the Financial Downturn

Posted by Molly DiBiancaOn May 26, 2008In: Employee Handbooks

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Delaware busineses, like the rest of the country, have felt the pinch of a slowed economy. Delaware employees are no exception. Secondary employment or moonlighting has become common as a result.

The continually increasing and record-high price of gas has made it difficult for some to make ends meet. The Department of Labor (DOL) reports that the number of workers working two jobs has increased 5% since last year. Some workers have resorted to a second job in an effort to protect themselves from financial devastation. Others want to maintain a certain lifestyle and have taken additional employment to ensure they are able to make nonessential purchases. Despite how commonplace moonlighting may become, the practice has real consequences for employers, especially for the business where the employee works full-time.

Employers should consider implementing a moonlighting policy if they don't have one already in place. Some policies prohibit moonlighting outright. Of course, the risk of this is that your employees may be forced to find a full-time job that doesn't have sucha restriction--especially if the employee's financial state is particularly serious.

Other policies permit secondary employment but require the employee to obtain approval in advance. This enables the employer to addres any potential conflict of interest in advance if, for example, the employee wanted to work part-time for a competitor. Another benefit of pre-approval disclosure is that it gives the employer the opportunity to offer additional overtime hours or even a wage increase to keep the employee working only at the primary job.

There are two main concerns for employers when their workers seek additional employment. First, by adding more working time to their already difficult schedules, employees are more likely to experience high levels of stress or burnout. That is why some policies permit moonlighting but warn that, if the employee's performance suffers as a result, he may be required to resign from his second job.

Another, less prevalent concern is the type of work the employee may take. For example, some businesses in the professional services industries, such as law, medicine, and finance, may be uncomfortable with the idea of a female employee working as a cocktail waitress at the local pub.

A different set of problems can occur if the employee takes part-time work with a competitor. In that case, the employer risks losing what may be a highly valued worker to the secondary employer. But you also risk the possibility that confidential information or trade secrets may be disclosed, whether inadvertently or intentionally.

If you do permit employees to moonlight, be sure you have a policy in place that clearly communicates the conditions and consequences, if any, that come with secondary employment.

Any of the employment lawyers in our Wilmington, Delaware office can assist you in drafting your moonlighting policy.

Free e-Book on Employee Engagement (Delaware Managers, this means you!)

Posted by Molly DiBiancaOn May 25, 2008In: Employee Engagement

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Human Resource specialist, management professionals, and leadership consultants and coaches make up the nearly 300 members of the Employee Engagement Network. The network was started in January 2008 by David Zinger, the author of the popular leadership blog, Slacker Manager. 

If you are interested in management and leadership topics, the art of employee retention, or general principles of productivity, there is a good chance that you’ll find something worth a read at the EEN website. And now, thanks to Zinger and 11 co-authors, there is another reason to visit.  Zinger et al. have published an e-book containing 300 ideas for employee engagement. It’s been so popular that it was featured on the front pages of the New York Times and BNet's web-based newsletter. It’s a rare treat to find a learning tool with such practical, real-world advice.  But it gets even better--the book is free! Oh, the wondrous world wide web.

Visit the Slacker Manager blog to download the Employee Engagement in pdf and, while you're there, thank David for yet another great contribution.

New Tool for Employers Interested in What's Being Said About Them on the Web

Posted by Molly DiBiancaOn May 24, 2008In: Electronic Monitoring, Social Media in the Workplace

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Among Delaware employers and in the world of employment law nationally, there has been much talk about Web 2.0 and the power of social networking tools.  Delaware businesses, like employers across the country, are worried about what is being said about them online.  They should be.

Many of you already know about the impact weblogs and online social networks can have on a business.  Of course, these impacts can be both good and bad. If it were all bad, I wouldn't be blogging on our department's firm-sponsored blog.  Many businesses have begun to embrace these new mediums to reach a broader audience. They've turned to social networking to communicate with a broader audience in an effort to maximize exposure to their products, their message, or their brand.

Other businesses have felt first-hand the negative impact of Web 2.0 communications.  For example, some companies felt massive financial reverberations because a popular blogger posted about his or her negative experience with the company's product or services.  The comments can spread uncontrollably on the web and employers are left without any real recourse. 

Another common scenario involves blogging employees.  With the explosion of the blogosphere, employees have taken to the web to share their personal stories of triumph and tragedy.  Sometimes their stories include not-so-nice commentary about their workplace. The employer is put into a very difficult situation.  If they terminate the blogger, they may be able to at least cut off the blogger's supply of "material" that can be put online.  But termination is not without risk. The terminated employee may respond with more hostile posts than ever before.  And, as newly unemployed, the blogger has plenty of time on his hands to post, and post, and post.

So what to do? We counsel our employment-law clients to institute a blogging policy if they haven't done so already. This is not to say that, as employment lawyers, we advocate for a flat-out ban on employee blogging.  But, at the very least, there should be a policy in place providing that any employee whose blog posts include the company's confidential information or trade secrets, will be subject to discipline, up to and including termination.

A different approach used by some employers could be described as the, "If you can't beat 'em, join 'em policy."  Some companies may go so far as to hire a Chief Blogger In Residence.  The CBR's job is to post like crazy about the positive aspects of the company, its employees, or its products. The Chief Blogger also scans the web to monitor what others are saying and provide an appropriate response. 

Given the cost, CBRs are not exactly commonplace.,  As an alternative, an employer can use online notification tools like Google Alerts, which will search the web for your company's name. When new "hits" are discovered, you recieve an e-mail alert with a link to the site where the company's name was found.  Searching for yourself or your company is known as a "reputation search."

There is now a new product designed to do conduct "professional" reputation searches.  Trackur promotes itself as an "online reputation monitoring and brand tracking tool.  It has been described as "Google Alerts on steroids," according to the Trackur website.  And what makes this pay-for-play, subscription-based tool better than the free Google one?   Having not tried it myself, I'll leave it up to you to decide. 

The plans are not cheap.  A monthly subscription to have just one search saved and run twice daily is $18 per month.  Jump to 5 saved searches and you're up to $88 per month.  I have no experience with Trackur so I can't say what value it actually has.  But even if Trackur isn't met with fabulous success, I'd be willing to wager that similar monitoring tools are not far behind.  Any employer concerned with what its employees are saying about the company, and any business concerned with its online reputation would have good reason to consider an "online reputation-monitoring tool."

***Prior posts on blogging include: Blogs In the Workplace and Somebody's Watching You: New Data on Employers' Electronic Monitoring

Consistent Customer Service: The Employer's Holy Grail of Success in Business

Posted by William W. BowserOn May 24, 2008In: Newsworthy

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All employers know that consistently stellar customer service is the holy grail of business.  At times,  it seems to be just within reach and, without so much as a minute's notice, it appears completely unattainable.

holy grail

I had the opportunity to travel to Chicago this week.  Yes, I had a great steak dinner. And, yes, I had some deep dish pizza. I also shopped for a belt. A simple black dress belt.  But this post is not about the belt.  It's about the place where I bought it--Nordstrom's. How is it that Nordstrom's consistently can offer good customer service when other companies cannot?

Three articles in today's New York Times focus on the issue of customer service and are worth the read.  The first article, titled Far From Always Being Right, the Customer Is on Hold, deals with the maddening devolution of telephone customer service. 

The second article Shoe Seller's Secret of Success focuses on almost fanatical emphasis on serving the customer. In fact, Zappos offers its newly trained employee $1,000 to quit as a way of testing their commitment to the company.

The third article focuses on the annual meeting of Southwest Airlines, a company whose customer service is legendary, and it's beloved co-founder, Herbert D. Kelleher.

The series of articles reinforces the idea that customer service remains an unrequited desire for consumers across the country.


[Editor's Note: Laurie Ruettimann, at Team Building Is for Suckers, posted yesterday about abandoning interviews in lieu of a "practice" day on the job.  In the post, she discusses Zappos' hiring strategy and concludes that it is an ideal model in many respects.  The New York Times featured the fun-loving corporate culture of Southwest Airlines earlier this year in an article titled, "Southwest.  Way Southwest." The headline was followed by a picture of the airline's chief executive, Gary Kelly, dressed as Edna Turnblad, the mom in Broadway musical, "Hairspray."  In the photo, Mr. Kelly is wearing a pink sequined dress and a bee-hive styled wig.]

Georgia Takes One Step Backwards in the Fight Against Workplace Violence

Posted by Molly DiBiancaOn May 24, 2008In: Legislative Update, Workplace Violence

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Workplace violence is a modern-day reality.  Conscientious employers take every precaution possible to prevent on-the-job injuries as well as to plan in advance for the unpreventable.  The new Georgia law, known as the "Parking Lot Law,"  makes it much more difficult to be a conscientious employer.


Exemptions for Property Owners

Georgia Governor Sonny Perdue signed the "Business Security and Employee Privacy Act" on May 14. This Act expands the areas in which holders of firearm licenses may legally carry concealed weapons – and places some limitations on employers' rights.  Similar to the recently passed Florida law, the Act prohibits employers from banning concealed weapons on company property.  It also puts significant limits on an employer's right to search vehicles parked on site.

There is one major difference between the Parking Lot Law and the Florida law, the Preservation & Protection of the Right to Keep & Bear Arms in Motor Vehicle Act of 2008, which was signed into effect on April 14, 2008.  The Georgia law does not apply to employer that own the employee parking lot property.  It preserves the rights of the employer as a property owner, to restrict access by prohibiting concealed weapons.  The Florida law is broader and applies even to businesses that own the property. 

Apparently Not-So-Obvious Exceptions

Employers who do not own the property where employees are permitted to park is given some protection under the law. Some of the exceptions seem so fundamentally necessary that it's ironic to have them be specially carved out of the law. 

For example, one of the most significant is a discipline-based exception.  If an employee is subject to disciplinary action, employers may revoke his or her right to bring concealed weapons onto the property.  This certainly sounds like an important carve out. 

Yet, how effective can it really be?  You would expect that an employee who is already subject to discipline and then chooses to violate another policy by bringing a gun to work would be the person most likely to carry out an act of violence in the workplace.  At that point, what difference does a policy violation make?

Another, seemingly obvious exception is company-owned vehicles.  In other words, the employer may prohibit employees from carrying a concealed weapon while driving a company-owned vehicle.  Really, is it necessary to explicitly exempt vehicles owned by the employer? 

When Can an Employer Search the Vehicle?

The law does not permit employers to search employees' vehicles even if parked at the employer's place of business.  There is one very important exception to this prohibition. The prohibition on searches is lifted if there is reason to believe that the employer might prevent an immediate threat to the health, life, or safety of others. 

The Act also permits employers to search an employee's locked vehicle in the case of theft--sort of.   There are limits on this exception that make its application very limited.  First, the theft has to be detected by a private security officer.  Obviously, this means that most small businesses cannot utilize this exception.  Second, the employee must consent to the search.  Sort of defeats the purpose, doesn't it?  If the employee consents, is the exception even needed at all? 

Employer Liability

The law includes limits on potential employer liability from injuries arising from weapons brought to work by employees.  Although the intention of the legislature is a valued one, it does not seem to reconcile with the purpose of banning guns at work. 

By prohibiting employees from carrying concealed weapons at work, employers don't just want to limit their legal exposure.  I feel confident saying that the purpose of such a policy is to prevent violence at work.  The safety of employees, customers, and other invited guests is the object of this type of policy.

Limiting liability on paper will not prevent the violence from occurring in the first place.  Nor will it effectively prevent employers from being named in a resulting lawsuit.  Despite the fact that they might not be on the hook for damages, they will inevitably be forced to incur the expense of litigation. 

With all due respect to the Georgia legislature, it seems that this bill takes several steps backwards in the necessary effort by employers to protect the safety of their workforce.

See also our prior post on the Florida "Guns at Work" bill, Florida Law Permits Guns at Work; Delaware Initiates an Anti-Workplace Violence Training Program

Top 5 Lessons to Be Learned from the Jerk at Work

Posted by Molly DiBiancaOn May 23, 2008In: Jerks at Work

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The Jerk at Work.  We all know him.  We all avoid him.  And we really hope we never end up like him.  Instead of hoping, here are the Top 5 Lessons to Be Learned from the Jerk at Work.

 anger-1a says that there are at least seven lessons employees can learn from a bad boss. 

It just so happens that I agree.  Each of the lessons can be learned from watching a mean boss, a/k/a The Jerk at Work.  All of the lessons can be boiled into one fundamental principle of management:  Know who it is that you want to be and know who it is that you don't. 

Any employee who has had to endure the nightmare of the Jerk Boss surely will attest that, after having that experience, they never treated others in the same way.  Witnesses of jerk behavior, if removed from the environment before becoming jerks themselves, appreciate the value of kindness, courtesy, and gratitude.  They were starved for it and have no desire to starve others.

Adapting the seven lessons, here are my Top 5 lessons to be learned from the Jerk at Work.

  • Being a jerk is a lot of work.  Extra work.  Nice people get their way with much less effort. 


  • Coping mechanisms can be lethal.  When a targeted employee realizes that it's not this fault, he gets mad.  Unable or unwilling to engage in a true showdown with the Jerk, he resorts to secret plots of sabotage. All the while feigning the smile of the loyal employee.  Being hated is not beneficial to your career. But being hated so much that others in the workplace actually look for ways to harm you--that is more like career suicide.


  • Once a liar, always a liar.  Jerk bosses tell lies to get their way.  Fool me once, shame on me, fool me twice, well, you know how it goes.  After being duped a few times, an employee will withdraw her trust permanently. No matter what the Jerk says or pleads, he will not be trusted.  Don't tell lies.  And definitely don't tell them to the people upon whom you rely.


  • Jerks at Work are bad for productivity.  Jerks cause decreased creativity and innovation, the near elimination of successful team collaboration, increased sick time and overall, disengaged employees.  None of these are good for business.  And, what's worse is that these problems will expand over time. 


  • Stubborn self-perceptions lead to failure. It is indisputable that innovation, which leads to change, is the way success is born.  It is not until you do something different than everyone else that you can get noticed or begin to break away from the pack.  Jerks are always right.  And when you are always right, change is the enemy.  No change, no growth. 

And one bonus:

  • Just look at him (or her).  The Jerk is just plain awful looking.  Face it, they're not getting a whole lot of time at the beach this summer.  If they left the office they'd have no one to pick on and, [gasp!] someone might just pick on them.  The life of the Jerk is no life at all. 

Heading to the Shore . . . Or Maybe the Beach

Posted by Molly DiBiancaOn May 23, 2008In: Dress & Attire, Employee Handbooks

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Don't know the difference?  Residents of Delaware, Maryland, New Jersey, and Pennsylvania sure do.  "The Shore" refers to the New Jersey Shore and all of the wonderful towns that it includes.  "The Beach," on the other hand, refers to the Maryland and Delaware Beaches, including Ocean City, Maryland (not to be confused with Ocean City, NJ, of course), Rehobeth, and Lewis, Delaware, to name a few. 

beach chairs and ocean

Any self-respecting East-Coast native knows that Memorial Day weekend is synonymous with the start of the summer.  And with the summer comes the shore or beach, depending on your current geography. 

And what, you ask, does this have to do with employment law?  Lots, actually.  Just ask the blogosphere.

Dan Schwartz, at the Connecticut Employment Law Blog, for one, can point to three e-law items with strong ties to the beach season.  All three are right on target.  He reminds employers to take a refresher course in vacation and paid-time-off policies.  Because, let's face it, the major highways aren't log jammed on Fridays at 1 p.m. by mere coincidence. 

Dan also points out the need to be aware of the very common summer parties where interns may bring a bit more casual approach.  Hey, let's face it, once August comes around, it's not their problem anymore.  Permanent employees, though, must carry with them the effects of their conduct at the end-of-summer BBQ. 

In fact, the only difference between the pool party or the Margaritaville fiesta and the office holiday party is that one involves, in fact, expects, there to be a lot fewer layers of clothing. 

Just looking at this combination alone, you can derive several potential concerns. 

  1. Young summer interns.  Remember, the EEOC is watching over them and watching you in the meantime.
  2. Summer parties that start at 8 p.m. instead of the holiday party, which starts at 4 p.m.  No one can leave the office early during the summer workweek (Monday - Thursday) because they need to get enough done not to feel guilty when they take a half day on Fridays.
  3. Margaritas, Daiquiris, and other fruity concoctions go down easy all year round but most especially when it's 85 degrees and 89% humidity.

Of course, I love summer as much as the rest of the East Coast summer junkies and, by no means, am I trying to spoil anyone's fun in the sun.  But employers beware.  The cocktail above serves up a legitimate legal liability.

Have a great holiday weekend!

Maryland Makes Important Changes to Its Wage & Hour Law

Posted by Molly DiBiancaOn May 23, 2008In: Wages and Benefits

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Delaware's neighbor to the south has amended its state wage law, clarifying that accrued but unused leave is payable upon termination only if provided by written policy, which was communicated to the employee at the time of hire. 


This had been the long-standing position of the Maryland Division of Labor & Industry.  But then came Catapult Technology, Ltd. v. Wolfe, a 2007 decision by the Maryland appellate court, which held that accrued but unpaid leave is a "wage" under the state's wage and hour law.  As a result of unreported decision, the Division of Labor changed its position and announced that employees could file a claim for unpaid vacation or sick time upon discharge or resignation.  The new state law provides an important statutory defense to employers--but only employers that have written vacation-payout policybeach reading



Delaware employers do not a similar statutory defense but it is well established that vacation payouts are not required unless the employer and employee had an arrangement to the contrary. 


To avoid any potential dispute regarding what was or was not agreed to at the time of hire, employers should take the following steps:

  1. Determine exactly what your vacation policy will be.  Will employees be able to roll time over from year to year?  If so, is there any limit on the amount of time that can be accrued?  And, finally, what happens to any accrued but unused time when the employee leaves the company?  Payout can also depend on whether the employee was voluntarily or involuntarily discharged. 
  2. Next, put your policy in writing and communicate it to all employees.
  3. Finally, do not make exceptions to the policy unless there truly are extenuating circumstances and, even then, document the reasons for breaking from the norm.

February 19 - 21: ALA Extraordinary Law Firm Conference

Posted by Molly DiBiancaOn May 23, 2008In: Seminars, Past

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Law firms rely on their Legal Administrators. Legal Administrators have oversight of the general management of their firms from the business end of the operations. I have been honored with an invitation to speak at the Association of Legal Administrator's (ALA), Extraordinary Law Firm Conference in February 2009. The Extraordinary Law Firm Conference is designed for Legal Administrators who put value on the quality of the workplace.

The weekend-long program is targeted towards Executive Directors, Principal Administrators, Human Resource Directors, and Managing Partners in law firms of all sizes who are looking to create an extraordinary place to work. Using an innovative, hands-on workshop format, participants will examine the elements that make a law firm extraordinary, and have an opportunity to create a customized implementation strategy to enhance your place of work.

I will be speaking on employee engagement in law firms--i.e., how to get lawyers and staff to take real ownership in their work. Employee engagement, at least as I define it, is a combination of loyalty to the organization and sustained enthusiasm and passion for one's work. It is, really, the Holy Grail of our modern culture--to really and truly love your job so much that it doesn't seem like a job at all.

The ALA has a website for the Extraordinary Law Firm Conference that will be updated as the speakers and schedule is finalized.

Bringing Buddha to Work

Posted by Molly DiBiancaOn May 22, 2008In: Employee Engagement

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Leaders and those who are charged with leadership development can consider this informative comparison.  Harvard Business contributor and coach, Marshall Goldsmith posted a compelling article titled, Management Advice from Buddha.  The premise of his article is that the fundamental principles of good leadership are largely parallel to the Buddhist principle of non-attachment. 

Non-attachment, at its heart, is the practice of letting go.  People who have a permanent hunger for personal learning are people who welcome change; in fact, they embrace change.  And those who look forward to seeing a new practice or idea have an easier time letting go. 

Leaders must be comfortable with the idea of change.  Those who are threatened by it cannot successfully manage.

According to Goldsmith:marshall goldsmith

Buddha suggested that his followers only do what he taught if it worked in the context of their own lives. He encouraged people to listen to his ideas, think about his suggestions, try out what made sense – keep doing what worked – and to just "let go" of what did not work.

Similarly, I teach my clients to ask their key stakeholders for suggestions on they can become more effective leaders then listen to these ideas, think about the suggestions, try out what makes sense – keep doing what works – and let go of what does not.

When our stakeholders give us suggestions on how we can become more effective, we can look at these suggestions as gifts – and treat our stakeholders as gift-givers. When someone gives you a gift you wouldn’t say, “Stinky gift!” “Bad gift!” or “I already have this stupid gift!” You would say, “Thank you.”

If you can use the gift – use it. If you don’t want to use the gift, put it in the closet and "let it go."

You would not insult the person who is trying to be nice by giving you a gift. In the same way, when our stakeholders give us ideas, we don’t want to insult them or their ideas. We can just learn to say, “Thank you.”

We cannot promise to do everything that people suggest we should do. We can promise to listen to our key stakeholders, think about their ideas, and do what we can. This is all that we can promise – and this is all that they expect.

Dr.Goldsmith is the author of the New York Times best seller, What Got You Here Won't Get You There. He has worked with more than 80 CEOs and their management teams and been recognized as one of the world's leading executive educators and coaches in Forbes, Business Week, and The Economist, among others.

Dr. Goldsmith has a fabulous website, which he calls a "Library" filled with videos, lots of free resources, and other articles.

The 5 Medical Conditions That Employers Don't Want to See in a Candidate

Posted by Molly DiBiancaOn May 22, 2008In: Genetic Information (GINA), Newsworthy, Off-Duty Conduct

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Employees who smoke are currently unpopular with the nation's employers.  But they are not alone.  The Philadelphia e-zine, Philly Burbs, writes that there are five other "conditions" that employers will avoid in a potential job candidate.  You can decide for yourself whether there is any truth in this claim.

medical health sign

The article quotes the president of an L.A.-based wellness company who says that there are five medical conditions in particular that no employer wants to see. The five he cites include: obesity, depression, hypertension, high cholesterol and musculoskeletal disorders such as low back pain.


The article goes on to say:

“Obesity is quickly replacing smoking as the number one expensive liability for a potential employer,” says Thomas B. Gilliam, president, Industrial Physical Capability Services (IPCS), Inc., Hudson, Ohio. He says that IPCS research indicates that costs related to obese employees have grown from 29 percent of the new hire pool in 2001 to 39 percent in 2007. “The obese worker will cost a company about $2,000 more per year in added health care claims and another $500 per year in lost productivity.”

I've posted before about the [very real] possibility that employers will soon target obese employees as the workplace becomes ever more focused on "wellness."  A combination of factors makes this result likely.


Primarily, he number of smokers will continue to decline.  Smokers receive harsh treatment and ostracism from society in large and, certainly, from mainstream corporate America.  In addition to the social pressures to abandon tobacco use, the country's employers have proclaimed smoking as an enemy to business--both from a productivity and expense perspective. 


For nearly 10 years, employers increasingly have used employees' tobacco use as a hiring qualification ("We don't hire smokers") and as a basis for higher health insurance premiums.  But eliminating smokers from the workplace will not create the ideal productive environment nor will it prevent the cost of health insurance from continuing to increase.  So what, then?  It seems logical that, once the "problem" (smoking) is eliminated, but the effects of the problem remain (productivity and high insurance costs), employers will simply elect a new "problem" to target. 


Obesity as a "problem" is not a far-flung idea.  Already we have seen fast-food chains change their offering to include healthier options, such as salads and fruit.  Even the addition of wellness programs promotes the idea of weight loss and a healthy body size.


Further support of this argument can be seen in the recent announcement of American Airlines that it will charge passengers $15 for the 1st checked bag and additional, higher premiums for the 2nd, and 3d bags.  The airline has defended this tremendously unpopular idea by citing the high cost of fuel.  Luggage weighs more.  The heavier the plane, the more fuel that is required to operate it.  Does it seem like a natural extension of this proposition that passengers will be charged extra if they "bring" extra weight on board, thereby causing the plane to use more fuel?


Of course, you may think this is absurd.  And, I admit, so did I.  But as outrageous as the thought may be, the local news today featured an "expert" on the airline industry who said, affirmatively and convincingly, that he believed that the next step would be to charge travelers for "extra weight" the next time they fly the friendly skies. 

Again, wow.

Senator Ted Kennedy's Workplace Initiatives: Top 5

Posted by Molly DiBiancaOn May 21, 2008In: Fair Labor Standards Act (FLSA), Immigration, Legislative Update, Wages and Benefits

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After being diagnosed with a malignant brain tumor, long-time advocate of the American worker, U.S. Senator Ted Kennedy, will be released from the hospital today.  Kennedy was hospitalized Saturday morning after suffering a seizure at his family's compound at Hyannisport, Massachusetts.  Following the news of his sudden illness, politicians from both parties spoke highly of the Democratic Senator, including both democratic presidential candidates, Senators Barack Obama and Hilary Clinton. As Washington regulars reflect on Kennedy's contributions during his more than 40 years in public service, U.S. employers may be interested in the initiatives that would have the greatest impact on the American workplace. 

Ted Kennedy

Kennedy's Current Workforce Initiatives


Senator Kennedy is a major employee advocate and many of his initiatives are focused on this goal.  This passage from his senatorial website demonstrates Kennedy's perspective:

The minimum wage is at an all-time low, the Family and Medical Leave Act is under attack, and workers are being stripped of their overtime pay, unemployment insurance, and pensions. The United States must recommit itself to supporting working families to ensure a strong and prosperous America for future generations.

Specifically, Kennedy seeks to achieve these objectives through various proposals.  Here are five of Kennedy's proposals that would have the greatest impact on employers. 

1.   Union Rights

Senator Kennedy is a long-time union supporter.  On the agenda just this month was the Public Employer-Employee Cooperation Act, which focuses on collective bargaining rights for public safety employees.  Currently, 26 states permit public employees to form bargaining unions.  The Cooperation Act would require the other 24 states to do the same. 

2.   Minimum Wage

Kennedy is one of the Senate's most vocal advocates for an increased federal minimum wage. This subject is a sensitive one for most U.S. employers.  If the national minimum wage did increase, it would likely trigger at least some changes in the way employers look at immigration reform, which is also on the Senator's list of proposals.

3.   Immigration Reform:  Illegal Immigrants

Another one of Senator Kennedy's major initiatives is targeting immigration.  Last year, immigration-reform legislation was passed but, according to Kennedy, fell short of achieving the goals it was intended to address. Kennedy has continued to advocate for revisions to the legislation, focusing on these main points:

  1. Tougher Border Enforcement.  These changes would include border-enforcement patrols double the current size.  It would also target illegal immigrants currently in the U.S.  Employers who hire illegal workers would be subject to increased enforcement, as well.
  2. Earned Legalization.  This initiative would target illegal aliens already in the U.S., giving them opportunities to earn citizenship.  This effort is based on the argument that massive deportation would be seriously disruptive to communities and business in the States.

4.  Immigration Reform:  The Future for Foreign Workers

Temporary-Worker Program.  As many employers are fully aware, getting specialty workers from other countries is a daunting task.  This third prong of Senator Kennedy's proposal is forward looking.  In the future,temporary employees from abroad would be given easier access to come to the U.S. for temporary work with the goal of working towards permanent employment and citizenship. 

5.  IDEA Reform

Another initiative on Kennedy's agenda has been increased funding for the Individuals with Disabilities Education Act (IDEA).  The Senator's position is that, although the goals and purposes of the IDEA are on-track, the lack of federal funding has prevented it from being fully utilized by the states.

Information about these and other initiatives can be found on the Senator's official website.

Employers' [Private] Eyes Are Watching You

Posted by Molly DiBiancaOn May 20, 2008In: Electronic Monitoring, Off-Duty Conduct, Privacy Rights of Employees

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Workplace privacy concerns aren't limited to technology.  There's been lots of buzz about GPS tracking of employees, use of biometric data in time and attendance programs, and, of course, electronic monitoring of employees' e-mails, and Internet usage. As the case below demonstrates, privacy concerns don't require hi-tech equipment or software.  Just a whole lot of nosey.

private investigator

A Sordid Affair

The story centers around a Wal-Mart supervisor who had engaged in an improper affair with a co-worker.  Not only was the affair illicit but it also violated Wal-Mart's anti-fraternization policy.  The supervisor was terminated when the company discovered the relationship.  Now, the termination alone might raise a few eyebrows.  But, policy is policy, and the supervisor's relationship was in violation of policy (as well as really bad managerial skills), the company can and should take disciplinary action. 

I Spy (well, Wal-Mart spied, actually)

Where the story becomes truly noteworthy, though, is exactly how Wal-Mart came to first learn about the "violation."  It hired a private investigator to track the couple.  The investigator did just that; following them all the way to a rendezvous hideaway in Central America.

And Then Came the Lawsuit

The romantic and unemployed supervisor filed suit in Arkansas state court alleging violation of contract and wrongful termination based on public policy.  The contract claim was swiftly rejected.  The termination claim, based on the allegation that he was fired in retaliation for reporting Wal-Mart's failure to comply with it's own internal policies regarding factory certification, was equally unpersuasive.  Summary judgment was granted in favor of Wal-Mart, which was subsequently affirmed by the Arkansas Court of Appeals. 

The legal claims asserted in the lawsuit were pretty blasé when compared with the sordid facts that got him terminated in the first place.  Based on the appellate court's decision, the claims seem doomed from the start.  I have to wonder whether the plaintiff wouldn't have been better off asserting a state-law privacy claim. 


The case is Lynn v. Wal-Mart Stores, Inc., No. 07-384 (Ark. App. Ct. Mar. 19, 2008), and a hat tip to the Workplace Profs Blog, who spotted this one back in April.

How to Retain Your Millennial Asset -- Part 4

Posted by Maribeth L. MinellaOn May 20, 2008In: Generations: Boomers, Xers, and Millennials

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You’ve recruited top-notch Millennials and are actively managing them in your organization. Now you must retain and develop your Millennial talent. In the final post in this series, we list four tips for retaining your Millennial talent, some of which demystify the Millennial mystique.

retain emplolyees

1. Millennials have a solid work ethic.

Because Millennials are more peer-oriented and seek instant gratification, their work ethic can be self-centered. They ask, “what is my job?” and figure out the most efficient way to accomplish it. The result is that Millennials respond well to organizations that offer paid time off, as opposed to a year-end bonus, in their reward structure. This also plays into the Millennials’ need for work-life balance. The more your organization can offer mechanisms to achieve a balance between work and personal life, the more likely Millennials will be to stay with you.

2. Have a plan for Millennial advancement.

Although Millennials tend to think shorter-term than their Baby Boomer or Gen X counterparts, that’s not to say that they don’t need a plan. They just need a shorter plan. Millennials will not stay with an organization that has long advancement tracks, and Millennials loose interest in organizations that promise quick advancement opportunities and fail to follow through on such promises. Consider offering small rewards along the way, stringing the accomplishments together, and laying the groundwork for a Millennial to develop seniority.

3. Millennials don’t value “face time.”

Recently Millennials have garnered a poor reputation because they don’t put in the face time like their predecessors, which may not be a bad thing. Employees are indeed more satisfied if they feel valued, which for employers can mean acknowledging that your employees have a life outside of work. A difference between Millennials and their predecessors is that they want to accomplish a task as efficiently as possible (which usually means implementing their significant ability to multi-task) and build their reputation on substantive accomplishments rather than long work hours. For employers, this means that your reward structure needs to match the Millennials’ expectation that if they perform well, they will advance, regardless of how long it took them to finish a project.

4. Provide challenges and opportunities quickly.

Now that you’ve painted your organization as a challenging, satisfying place to work, you need to make sure your Millennial talent does not loose interest quickly. Instead, find ways for your Millennial talent to have a meaningful role in their projects and with their team and encourage Millennials to contribute new ideas. The notion that Millennials are valued for their contributions fits well with their perspective that each Millennial is special and unique. Foster an environment that allows new hires to take on increasing responsibilities as their performance improves.

Retention that works.

The key to retaining Millennial talent is to understand how Millennials view the world and their role in your organization. If you’ve done your homework recruiting Millennials, then you should have a good understanding of what Millennials want from their employers. Millennials often leave their jobs because it is not challenging, rewarding, or both. Millennials will, however, stay with organizations that value their professional growth and provide personal satisfaction.

Prior Posts in this Series, What HR Needs to Know About Your Company's Millennial Assets; include Recruiting Gen Y; and Managing Gen Y.

How to Manage Your Millennial Asset-Part 3

Posted by Maribeth L. MinellaOn May 19, 2008In: Generations: Boomers, Xers, and Millennials

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Okay, you’ve recruited talented Millennials.  Now you actually have to manage them!  Knowing that Millennials’ values and goals are different from those held by Baby Boomers or Gen Xers means that managing and mentoring Millennials is also different.


Here are some tips for managing your Millennial talent:


1. Provide a structured, supportive work environment.

Because Millennials are team oriented, they work well in a hierarchy. This is a significant upside, because Millennials are also easily “teachable;” they like to know how the team works and who’s in charge. Keep in mind, however, that this needs to be balanced with their need for instant gratification. A Millennial will quickly loose job satisfaction if they are a part of a team which fails to acknowledge each member’s contributions. Similarly, Millennials will loose interest if there is no payoff for accomplishing mundane tasks.

2. Create interactive relationships.

This is not your old mentoring relationship. When your organization selects mentors for Millennials, you need mentors who are willing to actually mentor – they must be willing to take the time to teach, advise, and contribute to a Millennial’s work experience. Lunching with your Millennial just before an annual review is not enough.

3. Be prepared for high demands and high expectations.

The tables have turned a little bit here. Whereas Baby Boomers and Gen Xers were willing to put in their time and ask few questions about their future, Millennials are likely to ask about how they can advance in your organization sooner rather than later. This means that your organization needs to be prepared to answer such questions, or risk loosing your Millennial talent. This does not mean, however, that you need to promote Millennials before they are ready. Instead, be prepare to reasonably manage Millennials’ expectations so that they have answers to their questions regarding rewards and promotions. One of the keys to managing Millennial talent is to develop and communicate multiple career paths.

Managing your Millennial talent is imperative to your organization’s success. With respect to Millennials, management means more than making sure your new hires are showing up for work and meeting deadlines. Much like your recruiting practices, your organization will need to commit to creative and strategic ways to manage your Millennial talent. Don’t spend time wishing that the Millennials fit into the same management mold as your Baby Boomer or Gen X employees. Instead, remember that flexibility and change can bring new successes to your workforce.

Other posts in this series:

Recruiting Millennials

Why Millennials Should Matter

Mommy Bias - Truth or Fiction?

Posted by Adria B. MartinelliOn May 19, 2008In: Family Responsibilities (FRD), Gender (Title VII), Pregnancy (Title VII)

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The so-called “anti-Mommy bias” has garnered a lot of attention recently. A type of workplace discrimination, “anti-Mommy bias” is also known as maternal profiling, or family responsibility discrimination. (See this recent article in the Cincinnati Enquirer and my earlier post on Family Responsibility Discrimination).

Sketch of woman balancing baby and briefcase

Groups such as the Center for WorkLife Law and 9to5, National Organization of Working Women, have reported alarming statistics regarding the increase in this type of discrimination. Kohl’s was recently hit with a multi-million dollar verdict (for allegedly discriminating against one of its managers because she was a mother.

Nevertheless, a recent survey suggests that the mommy bias may be more fiction than reality. According to the survey, only 15% of mothers say that becoming a mother has had a negative impact on their career, while 65% say that it has had no impact on their career path. If these survey results are correct, the problem may not be as widespread as it seems.

Nonetheless, given the national attention to this topic, and the EEOC’s focus on it (see EEOC’s Guidance on Caregiver Discrimination), I expect we will continue to see a rise in these types of claims. For tips on avoiding this type of claim, see the free corresponding handout, which can be downloaded from my prior post.

[H/T to Ohio Employer’s Law Blog]

Top 5 FLSA Topics

Posted by Molly DiBiancaOn May 18, 2008In: Fair Labor Standards Act (FLSA), Wages and Benefits

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Employers in Delaware and beyond have at least a small obsession with the Fair Labor Standard Act (FLSA). And rightly so, given the current litigation climate. The posts in the employment and human resources blogospheres reflect the interest in everything related to compensable time.  There were so many great posts over the weekend, in fact, that it's safe to say we'll never get around to devoting an entire post to each one.  Instead, here are the Top 5 issues we think are most important for employers to have on their radars.

Compensatory TimeTop 5

The Employers' Law Blog and the Washington Labor & Employment Wire both have posts on the new comp-time bill proposed in the House last week.  The Employers' Law Blog has a short post alerting employers of a proposed amendment to the Fair Labor Standards Act (FLSA).  The Family-Friendly Workplace Act was introduced on May 14, 2008.  The Act would permit private employers to "pay" employees in compensatory time for overtime hours worked.  Traditionally this option has been available primarily to public sector employees.  The post, Comp Time in the Private Sector?, is a quick read to ensure your up to speed on the current state of law as well as the potential changes.  The Washington L&E Wire's post offers more comprehensive coverage for those who want the full scoop.



It's that time of year.  High-school students are looking for summer work.  College students are looking for internships. Ah, interns.  Students seek experience and hands-on-training.  Employers seek enthusiastic, eager, and inexpensive additions to the workforce.  Over the past two or three weeks, I've received several questions about intern compensation and this comprehensive article covers the whole spectrum of issues. The article, How to Protect Yourself From the Hidden Dangers of Unpaid Internships, posted on the Labor and Employment Law Blog, is  a good post for those who want a bit more detail.


The (Non-)Compensable Commute

Another hot topic this week was the decision from the Second Circuit, Singh v. City of New York, which addressed whether carrying documents to and from work was compensable commuting time.  Thankfully, the answer is "No."  Some of the blogs to discuss this important decision include, The California Wage Law Blog, Wait a Second!, the 2d Circuit Civil Rights Blog, The Connecticut Employment Law Blog, and the New York Public Personnel Blog.


Administrative Exemption to Overtime

The U.S. Department of Labor (DOL) issued a new Administrator-signed opinion letter that addresses the administrative exemption.  The letter is discussed at The Laconic Law Blog and back at The Washington Labor & Employment Wire.



Although technically, this isn't an FLSA topic, it's still worthy of the Top 5.  This blog regularly posts on current FLSA issues so it's almost guaranteed that a Top 5 topic will show up sooner or later at the Fair Labor Standards Act Blog.


And Don't Forget . . .

Of course, I can't leave our own Scott A. Holt off the list. Scott blogged on two really interesting FLSA issues this week, "Keeping Your Employees In the Loop Via Blackberry May Lead to Overtime Litigation," and "Overtime Lawyer Champion of the Middle-Class Worker."

Do Executives Have a Duty to Disclose Serious Medical Conditions?

Posted by Molly DiBiancaOn May 18, 2008In: Newsworthy, Privacy Rights of Employees

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Privacy rights of employees are a common topic.  But privacy rights of executives is a less frequent employment-law issue. The recent demand for presumptive Republic party candidate John McCain's medical records, as well as the small flurry of excitement about Apple CEO Steve Jobs' cancer diagnosis has put the topic in the headlines. 

The Trouble with steve jobs

There has been much talk in the news about Senator McCain's health.    The talk centers around a melanoma McCain had removed in 2000.  So much attention has been devoted to the topic that the Senator has agreed to release his medical records.

The push for disclosure seems to be based on the argument that the electorate has a right to know the condition of a candidate's health.  On one hand, the demand seems like a crude request to inspect the goods prior to purchase.  But, on the other hand, maybe inspection of health care records is the best we can get short of a warranty.

Employers are permitted to require a fitness-for-duty certification before allowing an employee to return to work following leave for medical reasons.  I can't say I'm convinced but I can see the parallel.

The public demand for McCain's health records raises interesting questions for employers.  Should CEOs and other top executives at large companies disclose to their organization that they have a serious illness?    

A Human Resources Executive Online discussed this question in the context of Apple CEO Steve Jobs' recently disclosed condition of pancreatic cancer.   Jobs told the board of directors and top leadership soon after being diagnosed in 2004.  After consulting with attorneys, the company decided against further release of the diagnosis. 

Jobs tried a variety of dietary and alternative medicine treatment options for nine months before turning to surgery.  It was only after he had undergone surgery successfully that he told employees about his illness.

CNN criticized Jobs' decision not to disclose his condition, claiming that it put his company and his investors at risk.  And the story made the cover of the April 2008 edition of Fortune Magazine (pictured above).  But during the mid-1990's, Intel CEO Andy Grove did not disclose his cancer diagnosis for a year without controversy. 

It raises an interesting question about the privacy rights of senior executives.  It also makes me wonder whether the news about Steve Jobs will trigger companies to include medical-condition disclosure provisions in executive employment agreements.

Pardon Me? Anchorwoman's Cursing Caught on Live TV

Posted by Molly DiBiancaOn May 18, 2008In: Just for Fun, Newsworthy, Off-Duty Conduct

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Office etiquette can define corporate culture.  Employers should be aware of etiquette violations.  Some, like office gossip, require swift and serious action.  Others, like personal grooming (or lack thereof), can require a more delicate reaction by management.  A recent study shows that one of the most serious violations is the use of four-letter words at work.  Bad timing, it seems, for New York City anchorwoman, Sue Simmons.

Sue Simmons and Chuck Scarborough, long-time co-anchors on WNBC/Ch. 4 in New York

New York anchor Sue Simmons made a major faux pas on live television last week.  Simmons threw out the F-bomb during what she thought was an off-air moment.  But, unfortunately for Simmons, the show was very much live.  Oops.

Interestingly, viewers have been very supportive, citing her long history as an anchorwoman with NBC.  And what about NBC?  Apparently, her employer has been equally supportive. 

What makes this even more interesting is the recent study by, which showed that 36% of bosses have issued a formal warning for swearing.  6% have actually fired an employee for use of foul language.  The survey of more than two thousand executives earning $100k+ also found that 81.2% of senior executives find cursing to be unacceptable in the workplace. 

Lucky for Sue Simmons, it seems that NBC's top executives aren't included in that 81.2%.  Philadelphia news anchor, Alycia Lane, wasn't so lucky.  The CBS anchorwoman was fired when she was criminally charged after allegedly assaulting a New York police officer and calling the female officer a very unlady-like four-letter word.   For more on that story, see my prior post, "Bad Boys, Bad Boys, Whatch' Gonna' Do When They Work for You?"

For those of you who just have to see it to believe it, a clip of the news program can be seen below.  But remember to turn your volume down if you play the video at work--your boss may very well be included in that 81.2%


Keeping Your Employees In the Loop via Blackberry May Lead to Overtime Litigation

Posted by Scott A. HoltOn May 17, 2008In: Fair Labor Standards Act (FLSA)

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Employees' Blackberry usage may prompt lawsuits. Claims for unpaid overtime wages have swept the country and put the nation's biggest employers on high alert as the class-action craze shows no signs of slowing.

Blackberry Means FLSA Woes for Employers

The rapid growth of the PDA and Blackberry usage among employees may hit employers in the pocket book more than they think. These devices used to be just for lawyers, doctors, and executives. But, in today's techno climate, even rank-and-file employees are using PDAs.

A great deal of this usage occurs after hours and on weekends. Is the time spent by an employee when checking and responding to e-mails and messages is compensable under the Fair Labor Standards Act (FLSA) and state wage laws.

The general rule is that non-exempt employees must be paid for all hours worked. The standard used to determine whether time is actually "hours worked" is whether the employee is "suffered or permitted to work." An non-exempt employee who receives a company-provided PDA and uses it to respond or send work-related e-mails my have an argument that he or she should be paid for that time.

While some employers may balk at the notion of paying an employee for time responding to a few e-mails after hours, all of the time spent texting away may add up. Generally, an employee can claim up to two, and in many cases three, years of back overtime or wages. In addition, the FLSA provides a fairly easy mechanism to bring a class action lawsuit for overtime on behalf of similarly situated employees.

So far, there have been no wage-and-hour suits involving PDAs, but employers would be wise to review their policies regarding use of PDAs by non-exempt personnel. In particular, non-exempt employees should be instructed to report any work time spent using PDAs. And employers may even want to place limitations on when PDAs can be used after hours.

The Wall Street Journal Law Blog has a great post on this topic, "Are Blackberrys the Next Battleground in Wage-and-Hour Litigation"

How to Tap Into the Millennial Market--Part 2

Posted by Maribeth L. MinellaOn May 16, 2008In: Generations: Boomers, Xers, and Millennials, Hiring

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Recruiting has never been easy. It's not getting easier. Organizations across the country are facing a double dose of hiring difficulty. The workforce is facing a brain drain as Baby Boomers near retirement. And, as one generation prepares for its exit, another is preparing its entrance. The challenges that this generation brings are novel. Smart recruiters are using creative solutions to manage these new challenges.

  1. Get to Know Them. Recruiting to Millennials means you have to get to know who they are, what they like, and what they are looking for in a career. Before you recruit Millennials, go out and meet some Millennials. Find out what they want from an employer, how they think they would get it, and what makes an organization appealing to them. Remember, Millennials are not motivated by the same things as either Baby Boomers or Gen-X-ers, so before you set out to recruit some Millennials you need to know what your organization has or does to make it attractive to the best Millennial talent.

  2. Think Digital. There is no doubt that Millennials are wired into all things digital. In order to reach the best candidates, you need to adapt your recruiting practices to their digital world. That's not to say that you need to launch text-messaging recruiting; however, you do need to seriously consider the best way to attract Millennials to your organization. You also need to promote how tech savvy your organization is, otherwise, Millennials will not consider your organization at all.

  3. They are Team-Oriented. Millennials are peer-oriented and are accustomed to working in teams. Instead of trying to recruit a Millennial to your whole organization, consider recruiting Millennials to more discreet areas of your business which already work as a team. Also, make sure when you promote your organization's atmosphere, you emphasize group dynamics rather than individual performance. Millennials don't necessarily like to "go it alone."

  4. They are Civic-Minded. Millennials are likely to grow up like their civic-minded Baby Boomer elders, which means that recruiting Millennials is a great way to boost your company's community profile. If your business is already involved with charitable organizations, make sure you highlight those efforts when you recruit a Millennial. If your organization is not involved with charitable efforts, consider allowing employees to create opportunities for your organization to do so. The result may be that your new hires are quickly folded into your organization's culture and they have an immediate attachment with their peers and their new boss. Plus, your organization gets the PR benefit.

  5. They are the Future. Finally, your organization's leadership must understand how important Millennials are to your business's future. Despite the bad rap Millennials seem to be collecting (i.e., the new MBA who won't travel without advance notice or the new hire who won't look at his Blackberry on the weekends), they are unavoidable. Employee recruiting, management, and retention will absolutely change as a result of the infusion of Millennials into the workforce. HR experts predict that more employees will seek out companies that allow flexible schedules, reward creativity (rather than long hours), and provide meaningful challenges (rather than merely putting in time to climb the corporate ladder). The consequence is employers may need to re-vamp their culture and commit to some of the changes Millennials demand. In short, your organization's leadership needs to buy into the idea that in order to recruit the most talented new hires, you may need to emphasize different aspects of your organization's culture and reward structure.

The bottom line is Millennials remain a largely untapped asset and your organization will benefit from their talent. As long as you remain creative and strategic, your company has the opportunity to recruit the most talented Millennials.

Maryland Restaurant Group Settles Harassment Suit Filed by EEOC

Posted by Molly DiBiancaOn May 16, 2008In: EEOC Suits & Settlements, Harassment, Sexual

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Several EEOC settlements have made the news lately. Here's another one to add to that list.

Three Baltimore-area Kobe Japanese Steak Houses have agreed to pay $80,000 and implement anti-harassment policies to settle a discrimination lawsuit filed this month by the EEOC. The suit accused managers at the White Marsh and Largo locations, along with a Virginia restaurant, of sexual and racial discrimination toward Hispanic female workers. The settlement, which includes cash payments to four employees as well as anti-harassment rules and training at the restaurants, does not include an admission of any wrongdoing by the restaurant group.

Since June 2003, Marta Yolanda Elias Garcia, Francisca Elizabeth Carrillos Lopez and other Hispanic women were subjected to “unwelcome and highly offensive sexual advances, including groping, touching and constant taunts about their sex, race and nation origin,” according to the lawsuit filed in U.S. District Court in Baltimore City.

Garcia and Lopez were fired in retaliation for opposing these illegal actions, the Commision said.

Go to source web page:

Is It Time to Update Your Electronic Communications Policy? If you're the Mayor of Detroit, the answer is "Yes"

Posted by Molly DiBiancaOn May 16, 2008In: Electronic Monitoring, Employee Handbooks, Newsworthy

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Delaware businesses must have a written electronic-monitoring policy if they want to monitor phone, e-mail, or computer usage by employees. Delaware law requires employers to get either a signed consent from employees or to have a message conveying the policy that is shown to the employee each time he logs on to the computer. And even in states without such laws, unless you have a written policy that communicated to employees, you stand to risk a privacy claim. The key is to ensure that your employees do not have a "legitimate expectation of privacy" in their use of your electronic systems.

And that's where your policy comes in. Current is the key. The modern trend in electronic-communications policies has been to include provisions specific to blogging, cell-phones, and text messaging. We often counsel clients to improve their policies to reflect the state of technology. It seems that we have a lot in common with the Mayor of Detroit, Maybe Kwame Kilkpatrick.

Mayor Kilpatrick has implemented a new policy that text messages sent on city-owned devices are considered private. As you may recall, Kilpatrick and his ex-top aide face perjury charges for testimony they gave during a whistleblowers' trial that they didn't have a romantic relationship. Sexually explicit text messages have contradicted that testimony. Kilpatrick's lawyers say federal law protects the release of such communications. The policy began Thursday, April 16, 2008.

Past policy had been that electronic communications were public. The mayor's office said in a statement Thursday that city policies are always subject to change. Hmmm. I suppose that employers might want to ensure privacy in electronic communications is preserved instead of eliminated Especially if they have something to keep very private.

Go to source web page: Crain's Detroit Business

3d Circuit Denies Attorney-Parents Request for Fees in IDEA Case

Posted by Michael P. StaffordOn May 15, 2008In: Cases of Note, Public Sector

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The Third Circuit has ruled that attorney-parents cannot recover fees for legal services performed on behalf of their children in administrative hearings or judicial proceedings under the Individuals with Disabilities Education Act ("IDEA") .  Although the IDEA contains a fee-shifting provision for parents who are "prevailing parties," it does not apply to fees for parents representing their children in legal proceedings.  Previously, in Woodside v. School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129 (3d Cir. 2001), the Third Circuit had held that parents serving as an attorney cannot recover fees for administrative proceedings under the IDEA.  The Pardini decision clarifies that the bar to fee recovery is equally applicable in judicial proceedings.

How to Tap Into the Millennial Market - Part 1

Posted by Maribeth L. MinellaOn May 15, 2008In: Generations: Boomers, Xers, and Millennials

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Recruiting, Managing, and Retaining Millennials

The HR world has been abuzz with discussion about the generational dynamic between the aging baby boomers and the Web 2.0 world of Millennials. This five-part series is designed to give the rest of us some perspective.

A "Millennial," demographically speaking, is a person born after 1980. They are the youngest members of today's workforce. Experts estimate that by 2010, Millennials will outnumber both Baby Boomers and Gen Xers. Millennials (a/k/a "Gen Y") are our society's "digital residents," which means that they have enjoyed the luxuries of digital technology their entire lives, including the massive world of video games. Their digital residence has given their generation characteristics employers never seen before.

Some sociologists believe that as a result of their residence in the digital world (think instant messaging, Facebook, and MySpace), Millennials are significantly peer-oriented and constantly seek instant gratification. The bottom line: Millennials don't necessarily buy into the idea that in order to succeed at work, you need to get in early, stay late, and consistently work hard.

These characteristics can make it difficult for employers to adapt how and who they recruit, and how they manage and retain their new human resource. In short, Millennials are changing the way employers do the business of, well, employment. The next three installments provide tips on how your organization can tap into Millennial talent.

For more insight on Millennials and how they fit into your organization, consider the text "Millennials Incorporated" by Lisa Orrell. Ms. Orrell hosts the blog "Lisa's Generation Relations Blog." And, on May 20, 2008, will host Dr. Diane Gayeski, contributor to the Wall Street Journal and consultant to some of America's top employers, in an audio conference titled "Are you ready for the Millennials? What HR Needs to Know to Recruit and Manage the IPod Workers."

The focus of the next post in this series is Recruiting Strategies for the Next Generation.

DelaWELL, Delaware's Health-Management Program for Public Sector Employees, Wins National NASPE Award

Posted by William W. BowserOn May 14, 2008In: Delaware Specific, Wellness, Health, and Safety

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Congratulations to the State of Delaware for winning the 2008 National Association of State Personnel Executives (NASPE) Eugene H. Rooney Jr. Award for its DelaWELL program.

DelaWELL is the State government's comprehensive health-management program for all full-time state, school district, charter school, and higher-education employees and pre-65 retirees. Spouses and dependents over the age of 18 who are covered under the state group health plan are eligible also.

DelaWELL encourages participants to live a healthy lifestyle as a way of controlling health-care costs. The program offerings are quite impressive:

  • Confidential, online or paper-based Health Risk Assessment
  • Onsite Biometric Health Screenings to include blood pressure, cholesterol, and glucose testing with review of personal results with a Health Coach
  • Weight Watchers® offerings to assist employees in their weight management efforts
  • Cardio Health Assessments available to employees only, first-come basis, 600 slots available
  • Personalized Lifestyle & Disease Management Coaching Programs- delivery options include phone based, mail and online programs.
  • Online Health Resources (Health and Safety Education Centers, Self-Care Resources, Wellness Library, Drug Database, Health Quizzes and Calculators, Recipes, Daily Health News, Quarterly Newsletter and Much More)
  • Onsite Health Seminars, Events & Activities
  • Health Education Campaigns/Communications/Incentives
  • Unlimited Access to a HelpLine

Delaware will receive the award during the awards banquet on Tuesday evening, July 15, during NASPE's 2008 annual meeting. in Oklahoma City.

Information on the DelaWELL is available here.

[H/T to the Capital Comment Blog]

For previous posts on Wellness at Work, use this link.

Overtime Lawyer Champion for the Middle-Class Worker?

Posted by Scott A. HoltOn May 14, 2008In: Cases of Note, Fair Labor Standards Act (FLSA), Wages and Benefits

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Overtime lawsuits are the hottest employment lawsuit trend.  Nevada lawyer Mark R. Thierman is a demigod in this corner of the legal world.  Thierman has won hundreds of millions of dollars from companies in unpaid wages.   Beginning in the mid-1990's, Thierman filed the first in a series of lawsuits against California employer after having spent most of his career as a management-side employment attorney. 

The federal Fair Labor Standards Act (FLSA) requires the payment of overtime and minimum wage for most workers. About 115 million employees—86% of the workforce—are covered by federal overtime rules, according to the U.S. Department of Labor (DOL). Plenty of wage and hour lawsuits are filed on behalf of the traditional working class, be they truckers, construction laborers, poultry processors, or restaurant workers. In fact, some would say that wage and hour suits have generated a cottage industry for plaintiffs' lawyers.  But no one has been more successful than Thierman in collecting overtime for employees who are far from the factory floor or fast-food kitchen.

His biggest settlements over the last two years have been on behalf of stockbrokers, many of whom earn well into the six figures. Thierman has teamed up with other lawyers to extract settlements totaling about a half-billion dollars from brokerage firms, including $98 million from Citigroup's Smith Barney and $87 million from UBS Financial Services Inc. (As is typical in settlements, the companies do not admit liability.) With those cases drawing to a close, he and other attorneys already are pursuing new claims on behalf of computer workers, pharmaceutical sales reps, and accounting firm staff. has a great article titled, "Wage Wars," detailing Thierman's Robin-Hood style ventures and the wave of overtime litigation sweeping major corporations across the country.  Since 2000, overtime litigation has exploded nationwide. The U.S. Chamber of Commerce decried the "FLSA litigation explosion" and its having become the "claim du jour" for plaintiffs' attorneys.

Thierman shrugs at such concerns. The alternative, in his view, would be to have the laws enforced by a government bureaucracy.  Thierman professes to be helping the little guy: "I'm interested in the middle class—those are my folks."


[H/T to George's Employment Blawg and the Ohio Employment Law Blog]

Four Justices Recuse Themselves: Justice denied is justice denied

Posted by Sheldon N. SandlerOn May 14, 2008In: Delaware Specific, U.S. Supreme Court Decisions

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Yesterday four members of the Supreme Court had to recuse themselves from a case, and as a result, no decision could be made. Apparently the Justices have not heard of the “rule of necessity.” That rule of thumb says, in essence, that if a court is unable to decide a case because the justices have conflicts, it is more equitable to have a judge with a conflict rule on the case, rather than leaving it undecided. A Supreme Court Justice should be able to render an objective decision even though he or she has some stock in one of the litigants. While not the optimum situation, that is far preferable to saying to the adversaries that the lower court decision is unreviewable.

Restaurant Chain Dishes Out $1 Million in Settlement of EEOC Claims of Gender Discrimination

Posted by Teresa A. CheekOn May 13, 2008In: EEOC Suits & Settlements, Gender (Title VII)

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Restaurants and hospitality organizations, beware--news of another seven-figure EEOC settlement with casual-dining franchise, Razoo's Cajun Cafe restaurants.

Male Bartenders Given Preference by

The EEOC announced on May 7, 2008 that it had settled a class-wide discrimination case filed against Razzoo's, a chain of Cajun restaurants, with 11 locations in the Dallas/Ft. Worth and Houston areas.

According to the EEOC, Razzoo's had a policy favoring women for bartender positions. The EEOC alleged that the restaurant sent managers a plan calling for an 80-20 ratio of women versus men bartenders. The Commission also cited an informal policy that did not allow male bartenders were to work "girls-only" events.

Razzoo's agreed to split $775,000 among a class of affected male servers, bartenders and applicants, and to spend the other $225,000 either to hire a human resources consultant or to set up an in-house human resources department.

Good idea.

Bad Employees Risk Being Blacklisted in Britain

Posted by Teresa A. CheekOn May 13, 2008In: Background Checks, Hiring

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Delaware employers are immune from being sued for providing (honest) information to a reference request. The State law gives employers extra incentive to actually respond to such checks with more than name, rank, and serial number. And that's a good thing.

Reference checks are an essential hiring tool for most employers. Hiring managers often complain about the lack of disclosure they receive in response to their reference requests. And it's estimated that up to one-third of all resumes contain inaccurate information. One British organization has found their own solution to often-restricted access to information about job applicants.

Blacklisted Employees.

In Britain, an employer association has taken some creative steps to address what most be some serious headaches in the reference-check system. The organization is creating a National Staff Dismissal Register that will consist of an encrypted list of high-risk employees, identifying employees who were discharged for dishonesty or for damaging their employer's property, for example.

Member companies will be able to search the list by name, address, birth date, previous employer and national insurance number. The list is expected to be usable by the end of the month.

Employee and human rights organization advocates worry that employees may find themselves unable to obtain work because, unbeknownst to them, they are on the list because of false accusations or errors, with no way to be certain and no appeal. Employers, on the other hand, look forward to the possibility of reducing losses due to employee theft and negligence.

If they were in Delaware, of course, they might find that such extremes are unnecessary. The full text of the Delaware statute (19 Del. C. Sec. 709) is available on the State of Delaware's website.

[H/T: Workplace Prof Blog]

More at BBC News

Termination Because of Interracial Marriage Found to Constitute Race Discrimination

Posted by Molly DiBiancaOn May 13, 2008In: Delaware Specific, Purely Legal, Race (Title VII)

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Racial discrimination comes in many forms and, following a recent opinion from the Second Circuit, discrimination due to an employee's interracial relationship is one of them.


Employment discrimination laws prohibit employers from making decisions based on race, gender, religion, disability, and certain other characteristics.  Since the passage of the Civil Rights Act of 1964, these laws have addressed discrimination based on the characteristic of the employee.  But lately there has been an increase in cases of "associational discrimination." 

Associational Discrimination 101

In this new genre of discrimination law, the focus is not on the characteristic of the employee, but on a person or persons with whom the employee associates.  In other words, let's say that your parents were Jewish and all of their friends were Jewish but you had converted to were Christianity in college. 

And let's say that your employer fired you--not because he thought you were Jewish, but because of your association with your Jewish friends and family.  That is an example of associational discrimination.  The discrimination stemmed not from your religion but from the religion of the people with whom you associate. 

A recent case from the Second Circuit--the first of its kind--held that associational violation occurs when an employee is fired for his interracial marriage.

Holcomb v. Iona College (2nd Cir.)

Facts of the Case

The case is Holcomb v. Iona College, decided on April 1.  Holcomb was a basketball coach at Iona College in New York. He claimed that a college official, Brennan, tried to prevent Holcom's wife, who was Black, from attending public alumni functions , and that Brennan had made racially derogatory comments about some of the Black players. 

Another college official, Petriccone, also made offensive racial comments about Black players in the basketball program.  As the Second Circuit put it, "Colleagues at Iona testified to Petriccione’s record of what might, charitably, be called racial insensitivity. Egregiously in this respect, Petriccione is said to have referred to a Nigerian employee at the Alumni Giving Office as a 'jungle bunny' and an 'African princess.'  When that member of staff applied to his office for the position of Assistant Director of Annual Giving, he remarked:  '[W]hat does she think she is coming from a hut in Africa and thinking she could apply for this job?'”

In addition, when Petriccione found out that Holcomb was marrying an African-American woman, he allegedly made a comment so offensive comments that it won't be posted here. 

Iona College eventually fired Holcomb, explaining that his termination had to do with his poor job performance. After the district court granted summary judgment to the college,the Second Circuit remanded on appeal.

The Court's Decision

The court's discussion set forth the associational-discrimination analysis. Here is the play-by-play:

  1. Protected Class. The Court held that Holcomb was a member of a "protected class" under Title VII.  Although Holcomb was not Black, his wife was, and there was evidence that his interracial marriage was the reason for his termination. 
  2. Interracial Association.  The Court reasoned that, "where an employee is subjected to an adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race." All the district judges in this circuit to consider the question, including the district court in this case, have reached that conclusion."
  3.  Pretext Evidence.  As noted above, there was plenty of evidence from which the Court could conclude that the reasons given for Holcomb's termination were a mere pretext for race-based discrimination.  Another piece of evidence to support Holcomb's claim was that O'Driscoll, the white staff member who replaced Holcomb, was the only white member of the staff without a Black girlfriend or wife. 


This decision from the Second Circuit does not necessarily address a novel issue of law.  Associational discrimination had previously been addressed by district courts within the Circuit.  But the clarity of the Court's opinion in Holcomb very clearly sets the groundwork for similar future claims.

"Are You My Lawyer or the Janitor?" The lawyer's dress-code pendulum swings back.

Posted by Sheldon N. SandlerOn May 12, 2008In: Delaware Specific, Dress & Attire

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Some recent reports about law firms trying to persuade associates to dress better, and even hiring coaches for them, are a reminder that the pendulum seems to have swung back from the days when even old timers were "dressing down" to try and "connect" with the wealthy young techie entrepreneurs.

I, for one, am pleased to see a move toward more moderate dress.

Dress Code in Moderation

There has been silliness on both sides of the continuum. Some years ago, the Delaware Supreme Court, in its infinite wisdom, issued an edict that lawyers appearing before it had to wear white shirts. So much for sartorial creativity.

But if I were seeing a lawyer, I'd feel more confident if he or she were wearing a white shirt than jeans or running pants. While I don't think we need to force associates to pore over "Dress For Success," I think that dressing up a bit is a step in the right direction, both for the lawyer's self-image and the clients' confidence in the attorney. Maybe ties can be optional, especially in the summer, but there's nothing like a suit or at least a sport jacket to establish a tone of authority (deserved or not).

Don't Get Schooled: Summer's the time for a refresher on Delaware child labor laws

Posted by William W. BowserOn May 12, 2008In:

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Teen job applicants are coming to a workplace near you. As the school year winds down, here is a refresher on the legal limits Delaware employers should understand when hiring youths. Delaware employers must abide by both state and federal child labor laws. In addition, unlike most civil rights statutes, almost all employers, regardless of size, must comply with these laws - even family businesses, with some limited exceptions.

Dunce's Cap

Limitations on scope of work performed

Federal and state laws and regulations operate together to impose a complex set of limitations on employing minors (children under 18 years of age). There are prohibitions on the type of work minors may perform as well as the number of permissible hours they may work. Permissible work for employees between the ages of 14 and 18 encompasses work in retail, food service, and gasoline stations (as long as they don't have a significant repair facility).

Hours of work

Minors under the age of 16 cannot work more than 4hours per day when school is in session, 8 hours per day when school is not in session, 18 hours per week when school is in session for a full week, or six days per week.

In addition, they cannot work before 7 a.m. or after 7 p.m., with the exception that they may work until 9 p.m. from June 1 to Labor Day. Minors under the age of 18 must have at least 8 consecutive hours of nonwork time per day and cannot spend more than 12 hours in a combination of school and work hours per day.

No minor may work more than 5 hours continuously without a half-hour break.

Employment certificate

Every employee under the age of 18 must have an employment certificate. The certificates are issued by the Delaware Department of Labor (DDOL) and the superintendent or authorized designee of each school district. You must keep such certificates on file and make them accessible to the DDOL on request. The DDOL offers a sample certificate

Workers' compensation may not protect you

It's also worth noting that illegally employed minors who are injured on the job are not necessarily limited to their workers' compensation remedies. A minor or his or her estate may elect to sue under a theory of negligence and/or wrongful death in the event of a serious or fatal injury rather than pursue workers' compensation remedies. Accordingly, the risk of employing a minor illegally lies not only in incurring civil penalties and damage to reputation, but also in significant increases for potential personal injury liability.

Don't Get Schooled

Many employers find out about child labor laws the hard way: They get sued for thousands of dollars in civil fines. Don't be one of them. Conduct your own child labor audit and contact the DDOL or your legal counsel if you have any questions about compliance.

Hiring Teens for Summer Jobs: Safety & Compliance Tips from the DOL

Posted by Teresa A. CheekOn May 12, 2008In: Harassment, Sexual

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Summer means an influx of teen workers for many employers. Teen employees bring with them a unique set of legal issues of which businesses should be aware. Here are some ways to get ready for this year's youth initiative.

Teens in the Workplace

Department of Labor

The U.S. Department of Labor (DOL) has published a web page that's loaded with information and suggestions to help employers keep their teen-aged workers safe and to keep themselves in compliance with child labor laws this summer. Not all employers are aware of state and federal restrictions on the activities in which teens are permitted to engage at work. Alert employers will want to review this page, click on the links, and plan the steps they will take to decrease the risk that their teen employees will be injured at work.

The Delaware Department of Labor (DDOL) also has information about state child labor laws available in booklet form. A brief summary is available on the DDOL's website.

Sexual Harassment Awareness

Employers should also take steps to address the special vulnerability of teen workers to sexual harassment. As an item on this blog noted a few weeks ago, an ABA Journal story reported that the number of teen-aged workers filing sexual harassment charges is on the rise. Teen workers are often part-time or seasonal, and may be in the workplace for the first time. They tend to fall between the cracks when it comes to training. Many restaurants, movie theaters and retail stores have teen-age supervisors and managers as well as workers. Teens tend not to realize that the standard of conduct at work is different from what's permissible in a social setting.

Bottom Line

To minimize their risks, employers who hire teen-agers must make a strong effort to educate them (and their supervisors) about harassment, retaliation and workplace safety in a meaningful and understandable way.

How Easy Is It to Ask Off-Limit Interview Questions? As Easy as Buying a Stuffed Toy Schnauzer

Posted by Molly DiBiancaOn May 12, 2008In: Interviewing, Pregnancy (Title VII)

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Interviews are the usual starting line for pregnancy-discrimination suits and, more recently, FRD claims. I often get questions from clients or seminar attendees about the perils of interview questions.  A common theme is why is it that they shouldn't ask candidates about their family, i.e., spouse, kids, etc. 



It seems natural. "Oh, I see you volunteer at the North East community center.  My kids take swimming lessons there.  Do your kids take any classes there?" Heck, I can give you a real-life example that happened to me last week. 

I was at the local greeting-card store.  As I was checking out, the [female] employee looks up and says enthusiastically, "Do you have any little ones at home?" 

I nearly choked on my Lifesaver.  I kid you not.  (No pun intended, really).  I stood there, mouth open, speechless. 

She turned around and grabbed a toy Schnauzer from a counter lined with little stuffed animals.  "You get one of these for free for a purchase of $20 or more."  I lifted my chin off the ground and nodded while she stuffed the toy toy (ok, pun intended) into my shopping bag. 

The employee was probably all of 23 years old.  She had no intention of forming opinions of me based on my answer to to her question.  She was just trying to give me the free toy.  But the question caught me off my guard. 

I can almost guarantee that if you went back to the store and asked her about it, she would have positively no idea who I was--one of many customers she'd seen that night.  She certainly would not recall what she'd said to me. 

It's that easy.  Despite best intentions, it is so easy for an interviewer to ask a question that leads to a lawsuit.

5 Steps Away From a Failure-to-Hire Lawsuit

Posted by Molly DiBiancaOn May 11, 2008In: Interviewing

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Pregnancy Discrimination, Maternal Profiling, Family Responsibilities Discrimination (FRD), and Mother's Day.  A natural combination.  You can add one more to that list.  Off-limit interview questions. 


When I teach seminars about best hiring practices, I usually get at least a few dirty looks when I talk about interview questions that should be avoided.  Employers and HR professionals often comment that interviews should be conversational to put the candidate at ease so the interviewer can get to know the "real" candidate.  Not a good idea.

Here's why:

  1. Every candidate that you interview except one is going to be rejected.  Remember that.  Every candidate except one goes home a loser. 
  2. No one thinks they're a loser.  No candidate who made it as far as the interview thinks that they shouldn't get the job. Of course they should get the job! 
  3. When rejected, blame-shifting is inevitable.  Do the logic.  If they were sure they were hiring-material but they don't get hired, what can be the explanation?  Someone else made a mistake. (Namely, you, The Employer).
  4. The interview becomes the target.  Well, what else is there?  The candidate had only one face-to-face interaction with The Employer--the interview.  Every word, every gesture, every question is analyzed to try to find what went wrong. 
  5. Lawsuit. 

Sure, nobody likes a story with a sad ending.  But "it's for your own good," ok? 

Interviewers (often untrained in employment discrimination) are just trying to make the candidate feel natural and at ease.  They want to know whether the interviewee will be a good fit, whether they have the technical skills needed, whether they understand the job's requirements, etc.  They aren't angling for prohibited information. 

But when a candidate doesn't get hired, every question becomes suspect and the potential starter for a discrimination lawsuit. 

For those of you who want to know how to solve this problem, the best way to find out is to attend one of our seminars, especially those on lawful interviewing.  For now, I'll say this: Every interviewer at every interview for every candidate should (no, must) use a script of pre-prepared questions.  And that script should be the same one used by every other interviewer for every other interview (at least for the same position). 

Autonomy in interviewing is a bad idea.

Mom Always Said You Were Bright, So Prove It: What’s your Pregnancy Discrimination I.Q.?

Posted by Molly DiBiancaOn May 10, 2008In: Pregnancy (Title VII)

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Take the Pregnancy Discrimination Quiz at HR Hero and find out.

The website says this about the quiz:

Pregnant employees and those returning from maternity leave have rights regarding their employment. Check your knowledge of these rights by deciding how you would handle certain scenarios and then choosing the best answer.

The quiz was written by our own Adria Martinelli, who co-edits the Delaware Employment Law Letter with William W. Bowser and Scott A. Holt


Last month, Adria presented an audio conference on pregnancy discrimination, Pregnancy in the Workplace: Managing FMLA, ADA, and PDA Issues.  Adria also co-presented with Bill Bowser another terrific audio conference on pregnancy discrimination, Managing Pregnant Employees.  For more information about the conferences, see

Just In Time for Mother's Day: Maternal Profiling Special

Posted by Molly DiBiancaOn May 10, 2008In: Family Responsibilities (FRD), Interviewing, Pregnancy (Title VII)

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Maternal Profiling (a subset of Family Responsibilities Discrimination, "FRD"), is employment discrimination against a woman who has, or will have, children.  Firing a newly pregnant employee. Interview questions designed to elicit details about child-care arrangements.  Just in time for Mother's Day, here are some key points for employers about this type of workplace discrimination.


Profiles of Maternal Profiling

In late April 2008, ABC News aired a piece on World News With Charles Gibson about Maternal Profiling.  As a follow-up to the piece, the ABCNews website posted an article called, Are You a Victim of Maternal Profiling, featuring women from Pennsylvania who had personally experienced this type of discrimination.

One woman believed that she was having trouble landing a new job because she was the mother of three.  She indicated that interviewers would often ask her outright whether she had any children.  She said that one employer told her that it would cost too much in health care.


Can He Ask That?

Can employers ask candidates whether they have children, or whether they have adequate child-care arrangements?   The answer is "yes," much to the surprise of many, including many of my HR clients.  Some states do have laws that prohibit these questions from being asked during job interviews.  But neither Delaware nor Pennsylvania are included among them.  So the short answer is, Yes, employers may lawfully ask job candidates about their "family status," including questions about whether or not the applicant has children, is married, etc.


Like Mom Always Said, "Just because your friends jump off a cliff doesn't mean you have to!"

We teach a lot of seminars.  We counsel a lot of employers.  We answer a lot of questions.  And I can say with great certainty that we would never, ever, ever, advise our clients to ask something as foolish as "Are you planning to have children?" to anyone, and certainly not to a potential or current employee!

Just because it's legal doesn't mean it's smart, right?  No good can come of these questions.  So don't ask them.  Just don't do it. 

Older Workers Stand to Benefit from Proposed Legislation

Posted by Molly DiBiancaOn May 9, 2008In: Disabilities (ADA), Generations: Boomers, Xers, and Millennials, Legislative Update

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Employers need to plan for the aging workforce—the "gray-haired demographic" is here to stay.

Aging Workforce News (AWN) talks about a newly introduced piece of legislation, the "Incentives for Older Workers Act." The proposed bill is designed to provide incentives and eliminate barriers for older Americans wishing to stay in the workforce longer, and encourage employers to recruit and retain older workers. AWN explains some of the bill's highlights:

The proposed legislation (S. 2933, text not yet available) would, among other things:

  • remove penalties in certain pension plans for workers who phase into retirement by receiving a lower salary while working reduced hours;
  • allow seniors to earn delayed retirement credits for Social Security purposes for an additional two years until age 72, instead of age 70;
  • reduce the amount of Social Security benefits lost to seniors who claim benefits before reaching normal retirement age and while they continue working;
  • require states to include older worker representatives on the state and local workforce investment boards and set aside five percent of the Workforce Investment Act (WIA) funds to assist older individuals.

Given the statistics on Baby Boomers in the workplace, this law could help employers deal with what calls the "Gray-Haired Workforce." By 2010, the number of workers aged 35 to 44--or those typically moving into upper management--will decline by 19%; the number of workers aged 45 to 54 will increase 21%; and the number of workers aged 55 to 64 will increase 52%. These statistic show that the workforce will include more and more employees aged 45 and over for several years to come. And they're not going anywhere—AARP reports that 79% of baby boomers say they have no plans to retire any time soon.

Employee Shooting Results in Unusual Liability for Workplace Violence

Posted by Molly DiBiancaOn May 8, 2008In: Workplace Violence

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A preventative workplace violence strategy can be an important best practice.  As we've previously discussed in a post about what employers can learn when violence hits close to home, employers also should have a real strategy for the "during" and "after" of a workplace violence incident.  One common prevention tool popular among employers today is the Employee-Assistance Provider (EAP).  Considered by many to be an effective way to intervene before little troubles become big problems, EAPs have enjoyed increased popularity over the past several years.

alcohol and violence

The recent settlement by an EAP in a case involving a fatal workplace shooting may shine new light on just how much influence this type of service may have over your employees and how much risk you incur if you don't set clear policies with your EAP. It should put employers on high alert about your EAPs policies on how they address and communicate referrals where violence is an issue.

The shooting in 2003 killed six employees in a Lockheed Martin plant in Meridian, Mississippi.  The suit was filed by Erica Willis, the daughter of one of the six victims.  The shooter worked at the Lockheed facility for 20 years before the shooting, in which he also took his own life. Willis filed suit not against Lockheed, the shooter's employer, but against Lockheed's EAP, NEAS, Inc.

The suit alleged that some of the employees who worked alongside the shooter had been complaining for months that their coworker had threatened them and used racial slurs in the presence of Black employees.  And, a year before the shootings, Lockheed told him that his continued employment would be contingent on completing a counseling program through NEAS. 

NEAS referred him to an affiliate, which cleared him to return to work after just three counseling sessions.  Later that year, he was attending a mandatory diversity training program when he walked out of the class without explanation.  He returned with a shotgun and a rifle. 

The suit claims that NEAS, Inc. (the settling party), failed to provide its affiliate with a full background for the referral.  Instead, NEAS is alleged to have stated only that the employee had "boundary/communication issues."

This case raises several interesting issues relating to violence at work. 

For one, the recent legislation signed into law in Florida, takes on new meaning in this context.  The State of Florida has a new law that prohibits employers from banning guns from their property.  Cautious employers have clear policies on the presence of weapons on company property, including employees' cars in the company's parking lot.  The Florida law that makes such a policy unlawful seems to be an invitation for disaster. 

It is also an unusual example in that the employer did not get sued--the EAP and its affiliates were the named defendants.  (The affiliate was dismissed early in the case).  Usually we counsel clients about workplace violence prevention in the context of suits for negligent hiring, retention, and training, property liability, and even the General Duty Clause of OSHA.  But this story evidences a whole new basis for liability if the employer fails to communicate how its EAP addresses employees with a proclivity for violence.  It's not so far-fetched to imagine the EAP disclaiming all responsibility on the ground that it was simply following orders and pointing the proverbial finger at the employer who hired it.

And yes, it can happen to you.

Perhaps the single biggest error employers make when it comes to workplace violence is the mistaken belief that it "can't happen to them."  Workplace violence is, and has been, in every type of workplace in cities and states across the country.  Fatal and non-fatal incidents occur everywhere and can occur at any time.  On average, 1.7 million workers are injured each year, and more than 800 die as a result of workplace violence.  There are no second chances when it comes to employee safety, so take the initiative to implement preventative practices before it's too late.

Delaware-based Conectiv Settles Race-Discrimination Claim with EEOC in Philadelphia for $1.65m

Posted by Molly DiBiancaOn May 7, 2008In: Disabilities (ADA), EEOC Suits & Settlements, Race (Title VII)

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Racial discrimination is still a grim reality. Just ask Conective Energy, which has settled a suit filed by the EEOC for $1.65 million. Even in our super-modernized, uber-fast, and always-accessible culture, race-based discrimination has managed to stand its ground despite the changed landscape around it. The Conectiv case is a discouraging testament to this often invisible fact.

The Equal Employment Opportunity Commission (EEOC) filed the suit on behalf of four African-American workers against Conectiv and three subcontractors. The claimants worked at the now-defunct Bethlehem Steel site in Bethlehem, Pennsylvania. Connective was the contractor building a gas-fired power plant at the site.

The claims of race discrimination are disturbing. The workers alleged that they were subjected to racially derogatory comments such as "black men can't read or write" and "I think everyone should own one." But the harassment didn't stop with workplace commentary. There was graffiti on the site that included "I love the Ku Klux Klan" and "if u not white u not right." And, in the ultimate display of racial animus, a noose, made of heavy rope, was hung from a beam above on the of the men's work area. The noose was not removed for at least 10 days, according to the Complaint.

Conectiv will carry the heaviest payment in the settlement. It is charged with a $750,000 tab, while the other three defendant-subcontractors, will pay $450,000, $250,000, and $200,000 each. As is standard (and non-negotiable) in settling with the EEOC, the defendants must Revise and edit their anti-discrimination policies, provide anti-discrimination training, and post a notice at all job sites setting forth the basis for the suit and subsequent settlement. The consent decree also provides that it does not constitute an admission of any wrongdoing by any defendant.

Racial harassment cases at the EEOC have surged since the early 1990s from 3,075 in Fiscal Year 1991 to nearly 7,000 in FY 2007. In addition to investigating and voluntarily resolving tens of thousands of race discrimination cases out of court, the EEOC has sued more than three dozen employers this decade in racial harassment cases involving nooses.

Terrence Cook served as the Supervising Trial Attorney and Mary M. Tiernan as Program Analyst on behalf of the EEOC.

Additional Resources:

EEOC's Press Release, May 5, 2008, Forbes, and CNBC are each running the AP story.

As usual, Mark Toth, at the Manpower Employment Blog is on top of the latest headlines.

Controlling and Investigating Theft in the Workplace

Posted by William W. BowserOn May 7, 2008In: Newsworthy

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Workplace Theft requires employers to respond quickly and effectively. Of course, the best tool is prevention. Employers should implement be aware of the best practices for preventing theft in their organization. But, if a theft should occur or a complaint of theft is reported, employers must be prepared to react using predetermined standards and guidelines to ensure consistency and avoid liability.

The Delaware News-Journal is reporting the arrest of a manager of a local Wendy’s restaurant for allegedly taking $1,800 from the till.

Employee theft has been and will probably always be a problem. Recent estimates indicating that it costs U.S. employers anywhere from $4 billion to $40 billion per year.

So what's an employer to do? How do you prevent — or at least control — employee theft? Our friend, John Philips, at The Word on Employment Law Blog, suggests the following:

    1. Watch for telltale signs like an unexplained rise in an employee's living standards.
    2. Hire people you can trust through the use of good background checks.
    3. Make it hard to steal by careful supervision, the use of commonsense procedures and controls, and routine auditing.
    4. Partner with employees to create an environment in which reporting theft is a job responsibility.
    5. Give alternatives to stealing by providing employees with assistance when they get in a real bind with heavy medical expenses and the like.

    6. Establish clear written policies on ethical behavior to be signed by each employee and to be enforced consistently, no matter the employee's position.

Once theft is suspected, John suggests the following to avoid a defamation action by the accused employee:

    • Thoroughly consider the source and validity of any information that alerts you to potential theft.

    • Obtain as much information or evidence as you can find about the alleged theft before you take action.

    • Review all policies that govern this kind of situation to make sure you're following them.

    • Don't speculate about what the facts could be; find out what they are.

    • Consider what you have done with employees in similar situations to be sure that consistency is being applied.

    • Consult legal counsel to make sure you're on solid legal footing before taking action.

Department of Labor's Latest Online Resource: Recordkeeping and Record Retention eLaws Advisor

Posted by Molly DiBiancaOn May 7, 2008In: Internet Resources

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To employers, recordkeeping, record retention, reporting, and notice requirements can seem like a complex algorithm of numbers and dates, precariously aligned against a backdrop of the numerous state and federal employment laws. The U.S. Department of Labor (DOL) has unveiled yet another compliance tool for employers.

The newest "elaws advisor," which was unveiled earlier today, helps employers take the first step in any compliance objective--determining which of the DDOL's recordkeeping, reporting and notice requirements apply to them. The new Recordkeeping, Reporting and Notices elaws Advisor has been integrated into a "FirstStep" suite of advisors. Just like it sounds, the "FirstStep" online tools all focus on providing employers with the right starting point as they work towards implementing best practices throughout the organization. Also included in the suite are the revised and expanded FirstStep Poster Advisor and FirstStep Employment Law Overview Advisor.

"These Internet tools will make it easier for small business employers to learn about and comply with the federal laws that apply to them," said Secretary of Labor Elaine L. Chao.

The elaws advisors are free, Web-based tools, making them easily accessible by employees and employers alike. By asking a series of questions, the advisors simulate a conversation with a Department of Labor expert and guide users to customized information explaining the requirements of each law. For example, by asking questions such as size of business, location and type of industry through multiple choice or yes and no questions, the FirstStep Employment Law Overview Advisor determines which federal employment laws govern the user's business. The advisor then provides information from the Labor Department's Employment Law Guide on the basic provisions of these laws.

The new FirstStep Recordkeeping, Reporting and Notices Advisor summarizes the paperwork requirements for each law. The FirstStep Poster Advisor, which can be used to download and print off Labor Department posters for free, was revised to include information on where the posters must be displayed in the workplace, and what size and language requirements apply to each.

This suite of FirstStep elaws advisors is available at

The DOL offers more than 25 other elaws advisors covering a wide range of employment law topics, such as minimum wage and overtime, child labor, veterans' workplace rights, health and retirement benefits, and workplace safety and health. For more information, visit

Sexual Harassment Claim Survives Dismissal Despite the Absence of Any Conduct “Directed at” Female Employee

Posted by Teresa A. CheekOn May 6, 2008In: Harassment, Sexual, Purely Legal

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Sexual Harassment Claim Based on Raunchy Radio Listening Leads to Liability

A female employee who quit her job when her employer failed to respond to her complaints about the offensive conduct of her male co-workers will see her day in court. A federal appeals court revived the sexual harassment claims, which alleged that the employer permitted the co-workers to enjoy the risqué humor on a daily radio and did nothing to stop the crude derogatory terms often employed when discussing women.

The outcome in Reeves v. C.H. Worldwide Transportation, Inc. (click the link for full-text of the opinon), seems to have surprised some employment law bloggers, including the Ohio Employment Law Blog, one of our favorite e-law blogs.

I think the outcome is consistent with prior cases.

Offensive Conduct

The employee, who was the only woman in her work group, was offended by being subjected to her co-workers’ choice of a daily morning radio show that featured sexually explicit content. They ignored her complaints to them and to her supervisor about the program, which included topics graphic enough not to post.

In addition, commercials broadcast during the program featured: “sexual favors; a bikini contest that instructed women to wear their most perverse bikinis; . . . a drug called Proton that promised to increase sexual performance, please a partner, and make the user a “’sexual tyrannosaurus rex.’”

The employee also complained about her male co-workers’ frequent use of the words “whore,” “bitch” and other, more colorful terms to describe women they disliked. And, all the while they continuously usedl sexually explicit “language, phrases, jokes, songs, comments, [and] remarks.”

Trial Court Finds "Not Based on Sex"

The district court granted judgment in favor of the employer, deciding that the harassment was not “based on” sex, since all the workers in the office were subjected to the same working conditions, and since the offensive conduct was not expressly “directed at” Reeves. The Eleventh Circuit Court of Appeals reversed.

Appellate Court Finds the Conduct Did Not Have to Be "Directed At" the Employee

In its decision, the Court of Appeals relied on a prior decision involving racial harassment. In that case, the Court held that racially derogatory language did not have to be “directed at” the complaining employee in order to create a racially hostile workplace. Similarly, said the court in Reeves, found that sexually derogatory language did not have to be directed at the complaining female employee. The degrading nature of the language could be sufficient to satisfy the requirement that the harassment be “based on” sex.

The court also held that Reeves had produced sufficient evidence for a reasonable jury to find that the harassment met the “severe or pervasive” requirement. The court noted that the offensive sex-specific language and the radio program were near daily occurrences for almost three years, (at which point Reeves quit). So the frequency of the conduct favored Reeves’ claim.

On the other hand, while the language was offensive, it was not directed at Reeves herself and therefore the court did not deem the conduct to be especially severe. Further, the conduct was not physically threatening to Reeves. But, it was objectively humiliating to her, particularly in light of evidence that Reeves’ male co-workers knew that their conduct made her uncomfortable but did not stop it.

Finally, there was evidence that the conduct interfered with Reeves’ work. She testified that at times the conduct made it difficult for her to concentrate on her work and she would have to leave the room. She also had to take time away from her work to ask her co-workers and supervisor to stop the offensive conduct, and to make notes for herself about what had happened.

Since Reeves had presented sufficient evidence for a reasonable jury to decide in her favor, the court sent the case back to the trial court for further proceedings.

Some commentators have expressed doubt as to the soundness of the court’s reasoning, especially in light of the possibility that the conduct was not actually “directed at” the lone female employee in the group. As the court noted, Reeves’ co-workers knew that she found their conduct to be offensive. But they continued to engage in it despite that knowledge.

These are the types of activities we routinely counsel our clients not to permit, and this case illustrates why we give that advice.

Maybe Yes, Maybe No. New FMLA Proposed Regulations Try to Address Employers’ Concerns But Do They Succeed?

Posted by William W. BowserOn May 6, 2008In: Family Medical Leave

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The FMLA's newly proposed regulations are a serious attempt to address employer concerns and have already drawn criticism from unions and employee advocates. Through the new regulations, the Department of Labor (DOL), has addressed some of the most complained-of provisions, but not all.

The newly proposed regulations with contain provisions that:

• Fine-tune procedures regarding required notices, medical and fitness-for-duty certifications, and designation of leave

• Clarify the eligibility requirements for employees who are jointly employed

• Clarify when an employee’s inability to work overtime exhausts FMLA leave

• Establish that light duty does not exhaust FMLA leave

• Allow employers to deny bonuses (such as perfect attendance or hours worked awards) to employees who don’t qualify for them because they took FMLA leave

• Allow employers to require employees to comply with the terms and conditions of their paid leave policies in order to substitute paid leave for FMLA leave

• Allow employees and employers to voluntarily settle claims of past FMLA violations

• Provide very minimal clarification of the definition of a "serious health condition"

FMLA Servicemember Leave. “Military-Caregiver” Leave”

Posted by William W. BowserOn May 5, 2008In: Family Medical Leave, National Defense Authorization Act (NDAA)

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This FMLA Update briefly reviews the second new type of FMLA leave offered to servicemembers and their families, Military-Caregiver Leave.

The two new FMLA leave types are designed to protect members of the Armed Forces and their families. Both types of leave enable a family member of a servicemember to take protected leave in two circumstances. The first, Active Duty Leave, was discussed in an earlier post. The second, is known as Military-Caregiver Leave. This new protection grants time off to the family member to care for a related servicemember who is ill or injured due to active duty.

• Employees may take an unprecedented 26 weeks of FMLA leave when a spouse, parent, child, or other blood relative for whom they are "next of kin" incurs a serious injury or illness on active duty in the Armed Forces.

• This 26 week total includes regular FMLA leave.

• Leave may be taken intermittently, but must be completed in a 12-month period.

• This is a one-time leave entitlement.

• "Next of kin" is an entirely new category of family member; it applies only to this specific type of leave.

• "Serious injury or illness" is much broader than the typical serious health condition; it applies only to this specific type of leave. Your speaker will provide a detailed definition.

• As with other FMLA leave, employers may require employees to take this type of leave concurrently with paid leave such as vacation, personal, or sick leave.

• Employers may require certification of servicemember’s health condition.

Office Politics or Politics at the Office: Delaware Employers, Pick Your Poison

Posted by Adria B. MartinelliOn May 5, 2008In: Employee Engagement

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This year’s hot democratic primary has plunged politics into the workplace more than ever. Today’s News Journal ran an article on the subject, “Talking politics at the office: Employers, managers must walk fine line on what to allow”

Our own Sheldon Sandler was quoted on the issue of whether it is advisable to prohibit political discussion in the workplace altogether. Although these discussions poses some risks, Sheldon suggested that banning such discussion outright is not a good idea.

From Obama’s stirring speech on race, to whether or not he wore a flag pin, this year’s election has raised some hot topics for watercooler debate – not likely to slow anytime soon at Delaware workplaces.

Upcoming Seminar Gives Delaware Employers Up-to-the-Minute Update on FMLA

Posted by William W. BowserOn May 5, 2008In: Seminars, Past

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Human Resource professionals see the Family & Medical Leave Act ("FMLA") as a major compliance challenge. And it just never seems to get easier. Lately, the FMLA is back in the news. The Act has seen more legislative and regulatory action in the past few months than it has during the previous ten years.

On January 28, 2007, Congress expanded the scope of the Act to include two new types of military leave for families of servicemembers. Next, on February 11, 2008, the U.S. Department of Labor released its long-awaited proposed revisions to the FMLA regulations.

William W. Bowser and Scott Holt will be addressing these important changes at the May 13 meeting of the Delaware Society of Human Resource Management (SHRM). The meeting will begin at 5:30 p.m. at the Cavalier Country Club. Our presentation will focus on what you need to do now in response to these changes.

Online Registration for the meeting is available here. Directions to the event are available here.

FMLA Servicemember Leave--"Active-Duty" Leave

Posted by William W. BowserOn May 5, 2008In: Family Medical Leave, National Defense Authorization Act (NDAA)

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The FMLA now provides two completely new categories of leave for employees who are related to a servicemember who is called to active duty or injured in the military.

The first type of leave is triggered when the employee's relative is called to active duty. It is designed to enable servicemembers' family to get FMLA time off to make the arrangements necessary for the servicemember's departure. Below is a short summary of the need-to-know points for this first type of new FMLA leave.

Active-Duty Leave:

• Covers employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces. These workers may take up to 12 weeks of FMLA leave when they experience "any qualifying exigency." While “qualifying exigency" is yet to be defined by DOL, but it probably will include -- at a minimum -- covering necessary family and childcare responsibilities of the servicemember when that family member is called to active duty.

• Employees who request this type of leave are subject to most of the same requirements as other forms of FMLA leave, including employee eligibility and notice requirements, maintenance of benefits, and job reinstatement.

• Employers may require certification that the employee’s family member is on active military duty in accordance with guidance to be provided by the Secretary of Labor.

• Employers should grant these leave requests liberally until DOL defines the term "qualifying exigency".

Bowser Featured in the Philadelphia Inquirer’s Coverage of Delaware Cancer Treatment Program

Posted by E-LawOn May 4, 2008In: Locally Speaking, YCST

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William W. Bowser, a partner in our Employment Law Department, is featured in the Philadelphia Inquirer’s coverage (March 31, 2008; Health & Science) of Delaware’s cancer treatment program. Pictured in the article with Delaware Governor Ruth Ann Minner and state Health & Social Services Secretary Vincent Meconi. Bowser is chairman of the 15-member advisory council formed to develop a cancer-care battle plan for residents of the state.

The article highlights Delaware’s high cancer death rate, and the state’s unique program that provides uninsured residents with free cancer treatment for up to two years. “We wanted to do the things that would make a difference and were possible,” panel chairman Bowser is quoted in the article. He received the National Governor’s Association Award for Distinguished Service to State Government in 2007 for his work as chair of the nationally-recognized Delaware Cancer Consortium.

What's the Opposite of Engaged Employees? Passionate Slackers.

Posted by Molly DiBiancaOn May 4, 2008In: Employee Engagement, Just for Fun

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Engaged employee. Engaged workforce. Management and leadership gurus love these words. Employers don't care what you call it--they just want to achieve it. If you're discouraged about your attempts to motivate employees, here's a story to lift your spirits. Hopefully, you have had more success than this young woman's managers.

Employers at the top of the game know the value of a workforce full of engaged employees.--employees who take ownership of their work. Well, if there ever was a story to demonstrate what an engaged employee is not, this is it.

An Iowa Administrative Judge denied unemployment benefits to Emmalee Bauer, 25. Bauer was formerly employed by Sheraton as a sales coordinator. Apparently, she did not do much coordinating, though. Instead, she spent her time at work scribing heart-felt journal entries she hopes may someday be published. But this is not the journal you might picture.

Her journal was devoted entirely to her work-avoidance strategies.

That's right. Every day, throughout her shift, she journaled away. And, by the time the Sheraton gig was over, she'd created a 300-page, single-spaced Manifesto of a Slacker.

I'm only here for the money, and, lately, for the printer access. I haven't really accomplished anything in a long while . . . and I am still getting paid more than at any job I ever had before.

I am going to sit right here and play Elf Bowling or some other nonsense. Once lunch is over, I will come right back to writing to piddle away the rest of the afternoon.

The judge who denied Bauer's unemployment appeal, said that the journal demonstrated Bauer's refusal to work as well as her "amusement of getting away with it."

If there was ever a case where an employer should be able to sue an employee to recoup the money it lost by employing her, this sure seems to be the one. Can you say "refund"?

[Hat tip to the Manpower Employment Blawg]

Employer Quits Its Smoking-Penalty Policy

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

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Off-duty conduct, especially smoking and tobacco use, are often regulated by employers who complain of increasing health-care costs. But not every employer believes that workplace regulations on employee's off-duty conduct is an appropriate solution.

Health Care Premiums for Smokers

The Tribune Company, which owns the Chicago Tribune, came under new ownership in December. Sam Zell, the new chairman and chief executive, recently revoked the company's $100-per-month smoker's penalty. The penalty, says the new owner, "is inconsistent with the new culture."

The CAO and Executive VP, Gerry Spector, told employees in an e-mail, "We'd rather you use your own judgment when it comes to tobacco use, not impose ours upon you."

The company will continue to offer smoking-cessation programs to employees at no cost but will reimburse those employees who had been subject to the penalty.

This certainly a different approach to the way most employers are treating smokers these days. Is this an indication that employers may move towards positive reinforcement instead of penalties to reduce the cost of health insurance?

The relationship between smoking and employability is a familiar topic on this blog. To visit some of our previous posts on the issue, click here.

More on the story can be found at the Chicago Tribune's website.

What do News Anchors, Sports Figures, and Corporate Executives Have in Common? Employment Agreements and Risk-Avoidance Clauses.

Posted by Molly DiBiancaOn May 4, 2008In: Fair Labor Standards Act (FLSA), Off-Duty Conduct

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Risk-Avoidance provisions in employee contracts are more common than you might think. Think of it as insurance on an investment. Employers pay huge sums to retain these "ultimate performers." The employment contract is one way to try to ensure that your precious and irreplaceable commodity (i.e., the all-star employee), doesn't voluntarily put your investment in harm's way.

Waterfall Rafters

The activities subject to risk-avoidance provisions vary greatly. From driving motorcycles to skydiving, the sky's the limit on what types of "dangerous" engagements can be prohibited.

The Human Capitalist has a short post on Why Professional Athletes Have Provisions in their Employee Contracts. We've posted about this topic before in the context of Philly's own ex-newsreporter, Alycia Lane, and the morals clause in her employment agreement that permitted CBS to fire her after being making headlines herself one too many times.

Human Capitalist also posts a great YouTube video demonstrating just why sports figures should have "risk avoidance" provisions in their contracts.

For more on this topic, see our earlier post, Bad Boys, Bad Boys, Whatcha' Gonna Do When They Work for You?, which discusses morals clauses in employment contracts.

Lawyer Who Won’t Play Nice Gets Homework Assignment from Judge

Posted by Molly DiBiancaOn May 4, 2008In: Jerks at Work

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Delaware attorneys are not strangers to civility. In 2003, the Delaware Supreme Court and the Delaware Bar Association promulgated the “Principles of Professionalism for Delaware Lawyers.” The Principles provide insight into the practice of law in the First State. “Civility” is defined in the Principles and is taken seriously by the courts and bar as a whole.

The Principles demonstrate that civility in the workplace is not limited to the cubicles of corporate America. Jerks at Work are not welcome in any workplace, including the lawyer’s workplace—the courtroom. Here's a story about a judge outside of Delaware who is an advocate of civility:

U.S. District Judge Vicki Miles-LaGrange sanctioned lawyer Gerard Pignato for his extraordinarily jerky conduct. Pignato was reprimanded for comments he made in letters to his opposing counsel. As penance, the judge ordered the sharp-tongued Pignato to write an article on civility. He must include why he is writing the article and direct it to new attorneys, so they might avoid a similar embarrassment.

Here are some examples of his noxious and debasing comments:

Your self-serving comments are putting me to sleep. Can you not say anything in a page or less? You're just a broker who refers difficult cases to experienced attorneys. Be like a potted plant and sit quietly in the corner.

{The court's full Opinion can be read here.}

You don’t have to be a lawyer to experience this type of attack from a colleague, vendor, or customer, even. This conduct is very effective—no matter how illogical, it is difficult to jut brush off degrading comments.

I think Judge Miles-LaGrange should be applauded for taking action when she saw what can be described only as unbecoming conduct. And her response is commendable, as well. Unlike a monetary fine, Mr. Pignato is forced to sit down, pen in hand, and mull over his behavior and put into words just how dishonorable his actions were and how embarrassing this type of attitude is for other members of the bar. Plus, if his article deters even a single junior lawyer from scribing a seething note to opposing counsel, he’ll have made a real contribution to the profession.

The Preamble to the Principles of Professionalism states:

The purpose of adopting the Principles is to promote and foster the ideals of professional courtesy, conduct and cooperation. These Principles are fundamental to the functioning of our system of justice and public confidence in that system.

Maybe Mr. Pignato can use the Delaware Principles as a reference as he writes his article for the Oklahoma Bar Journal.

[Hat tip to the Legal Profession Blog]

John Phillips at The Word on Employment Law noted the ABA Journal's post on this story, as well.

Delaware Labor & Employment Attorney Bill Bowser Featured in the Philadelphia Inquirer’s Coverage of Delaware Cancer Treatment Program

Posted by Molly DiBiancaOn May 4, 2008In: Delaware Specific

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William W. Bowser, a partner in our Employment Law Department, is featured in the Philadelphia Inquirer’s coverage (March 31, 2008; Health & Science) of Delaware’s cancer treatment program. Pictured in the article with Delaware Governor Ruth Ann Minner and state Health & Social Services Secretary Vincent Meconi. Bowser is chairman of the 15-member advisory council formed to develop a cancer-care battle plan for residents of the state.

The article highlights Delaware’s high cancer death rate, and the state’s unique program that provides uninsured residents with free cancer treatment for up to two years. “We wanted to do the things that would make a difference and were possible,” panel chairman Bowser is quoted in the article. He received the National Governor’s Association Award for Distinguished Service to State Government in 2007 for his work as chair of the nationally-recognized Delaware Cancer Consortium.