June 2008 Archives

Employers Should Know that Cancer Screening Saves Lives . . . And Money

Posted by William W. BowserOn June 30, 2008In: Benefits, Wellness, Health, and Safety

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Employers interested in maintaining health-care costs, including hard costs like rising premiums as well as soft costs such as decreased productivity and absenteeism, have looked to wellness programs as a way to manage their employees' current health and prevent illness in the future.  Cancer screening is another way to achieve each of those objectives. 

Cancer is the second leading cause of death in the U.S.  This year, 1.5 million Americans will be diagnosed with cancer.  Nearly 600,000 will die from cancer and its effects.  With numbers this large, virtually every employer will eventually have to deal with the effect of cancer in the workplace.

One huge impact of cancer is the high cost of treatment.  According to a recent white paper by C-Change, encouraging and paying for cancer screening for employees is an effective way to reduce cancer-related costs, and to save lives in doing so.

The white paper reviews the cost-cost benefits of breast, colo-rectal, and cervical cancer on a business' bottom line.  A fact sheet also is available and makes for great support for providing employees with paid cancer screening.

Family Responsibility Discrimination Update

Posted by Adria B. MartinelliOn June 30, 2008In: Family Responsibilities (FRD), Leaves of Absence, Legislative Update

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Federal Employees Paid Parental Leave Act (H.R. 5781) Passes the House

The FMLA mandates that employers of a certain size give parents 12 weeks’ leave, and allow them to return to the same or substantially similar position. But with the exception of a few states who have enacted states requiring that some amount of this leave be paid, employers have no obligation to pay for any parental leave.

That may soon change for the nation’s largest employer. On June 19, 2008, the House passed the Federal Employees Paid Parental Leave Act (H.R. 5781) by a 278-146 vote. H.R. 5781 provides federal employees with four weeks of paid parental leave after the birth or adoption of a child. A bipartisan companion bill has been introduced in the Senate. Stay tuned until after the November elections to see what kind of momentum this one builds!

WorkLife Law Center

Workplace Flexibility Across Borders

The Institute for Women’s Policy Research in conjunction with the Center for WorkLife Law recently released “Statutory Routes to Workplace Flexibility in Cross-National Perspective.” The report presents an interesting statutory overview of what 21 high income countries, including the U.S., are doing or not doing in the area of workplace flexibility. Many of these countries have some form of “flexible working statutes,” which put the burden on the employer to defend why it will not allow a flexible working schedule.

The report notes U.S. legislation—the U.S. Working Families Flexibility Act—which was introduced by Sen. Ted Kennedy and Congresswoman Carolyn Maloney and modeled after the United Kingdom and New Zealand laws. Intrigued? You can read the whole report on WorkLife Law’s website.

How Considering a Candidate's Arrest Records Could Land You In EEOC Jail

Posted by Molly DiBiancaOn June 29, 2008In: Background Checks

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Background checks are commonplace today. The law requires them for some employees, such as child-care providers, nurses, bank employees, and teachers. But there are a variety of reasons for employers to perform background checks even when not required by law. The reasons range from avoiding increased insurance costs to preventing a negligent hiring suit to averting workplace theft and violence.  Background checks provide the information needed to effectuate those objectives. But sometimes the information generated by a background check creates more questions than answers. Smart employers ask questions. Here are some answers.*

criminal background. handcuffs
Stop in the name of lawful hiring, before you break the law
The Equal Employment Opportunity Commission (EEOC) has taken a formal position against the use of arrest records as an absolute bar to employment, and the federal courts have followed. If you want to comply with the EEOC's standards ― and who doesn't? ― don't disqualify candidates who have been arrested. The EEOC has explained that the use of arrest records to disqualify candidates at the outset would disproportionately affect African-American and Hispanic candidates.
That results in unlawful disparate impact discrimination. Unlike disparate treatment discrimination, disparate impact doesn't involve any particular animus by the employer. The policy looks neutral on its face and seems to affect all candidates equally. But the real effect is felt by only a certain protected class. So to avoid facing a disparate impact discrimination suit, don't adopt a policy of refusing to hire an applicant because of an earlier arrest.

Let's be honest, this standard is pretty fair. You may have heard of something called "the presumption of innocence." In our nation's judicial system, we accept that a person who is arrested is presumed innocent until proven guilty.

You've got something to talk about ― an arrest record to figure out
While employers may not rule out every candidate with an arrest record, in most states, including Delaware, there are circumstances under which an arrest record may be considered. If the results of a background check reveal an arrest history, you should follow a specific course of action when considering the information.

As a first step, the EEOC tells employers to provide the candidate with a "meaningful opportunity to explain." In short, that means that you should meet with the candidate, provide him with the information you have received, and give him a chance to provide you with more information that he feels may be relevant in making your decision. The key is not only to let the employee talk, but also for you to actually listen. Hence, the phrase "meaningful opportunity."
The EEOC intends the process to yield meaningful results and, in turn, expects employers to take more than a passive role. If you could likely verify the candidate's explanation with a phone call to his previous employer, the EEOC wants you to do just that. If the circumstances and explanation offered by the potential employee don't allay your concerns, the EEOC still suggests that you proceed with caution before disqualifying him for the job.

What's an arrest record got to do with it?
Next you should consider whether the circumstances of the arrest are "job-related." The usual response from employers is "How can an arrest not be related to the job?" Certainly there is an element of truth to that question. But in reality, and especially in the world of the EEOC, it doesn't represent the whole truth. To accept that all persons with an arrest record are unfit to hold a job would be a quick return to disparate impact discrimination ― do not pass "Go," do not collect $200.

So when is an arrest history truly "job-related"? The EEOC gives us three things to consider: (1) the nature and gravity of the offense, (2) the time that has passed since it occurred, and (3) the nature of the job sought. Certainly, some jobs will necessarily require a higher standard, and more candidates may be excluded as a result. Law enforcement or other safety-sensitive positions, jobs that give the employee easy access to the possessions of others, and any position that imposes a responsibility on the employer for the safety or well-being of others are three common examples.
Although this may seem like a difficult question, it can be easier to answer if you ask the inverse ― when is a candidate's arrest history not related to his ability to succeed in the available job? A person applying to be a pharmaceutical sales representative is unlikely to be disqualified because he was once arrested for spray painting a vacant building. Graffiti skills aren't related to the medical knowledge and self-starter personality trait needed in the sales position. And the arrest seems even more irrelevant if it occurred when the applicant, who is now in his 40s, was a teenager.

You've been hit by . . . a smooth criminal
But there are situations that tread a bit closer to the line. For example, would a previous arrest for making terrorist-like threats be related to the skills required of executive assistant? Any crime that involves violence or the potential for violence will require closer attention than, for example, a crime limited to property damage.

This may be where the "meaningful opportunity" saves the day. If you told the candidate that the results of her background check included the arrest, could she offer you any reasonable explanation that would render the arrest unrelated to the job? Maybe she could.
Maybe she would explain that the arrest had occurred when she tried to intervene in a domestic dispute in a neighboring apartment. Once the smoke cleared, she was released and no charges were pressed. And let us suppose that she offered you the name of the arresting officer, who verified her story. You just might end up hiring a new executive assistant, arrest record and all.

Also see: The EEOC published an informal discussion letter in March on the use of conviction records in hiring.

*originally published in the Delaware Employment Law Letter by M. Lee Smith Publishers, reprinted here with permission.

Former Ohio AG Is Accused of Fostering a Hostile Environment (Again)

Posted by Molly DiBiancaOn June 29, 2008In: Age (ADEA), Harassment, Other (Title VII), Public Sector

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As layoffs increase, so do claims of age discrimination. Age-based harassment, though, is less common.  A 49-year-old aide to former Ohio AG Marc Dann claims that Dann's managers used profanity and called him a "dinosaur," resulting in what he claims was harassment and age-discrimination.  This claim comes in the middle of an already scandalous period for the former AG, who has been accused of fostering an unlawfully hostile work environment.

Ohio AG Dann

This story comes from the Zanesville Times Recorder's article, "Complaint: AG's office discriminated and harassed."

Dann (pictured) and some of his aides have been in the middle of a sexual-harassment scandal, resulting in the AG's departure from office.  David Kessler, who has filed a complaint with the EEOC against the AG's Office, said that the scandal supports his allegations of abusive behavior. 

Kessler was hired in 1999 and investigated crimes against the elderly.  Kessler claims that, when he took office in January 2007, Dann installed new aides and things went downhill from there.  He claims that he was targeted because he had been hired during the prior administration, which Dann had defeated to take office.  Kessler says that he was told that he could either quit or be fired, so, in January 2008, he quit.

Then, in April 2008, Dann admitted to having an extramarital affair with a staffer and resigned amid allegations of a sexually hostile work environment.  Two female employees claimed that their supervisor had made sexual advances and comments toward them.  Those allegations triggered an investigation leading to other unsavory discoveries.

From a legal perspective, this recent claim is quite different than the original claims of sexual harassment.  Those claims were based on the allegation that the women were being treated less favorably because of their gender.  Here, Kessler seems to really be claiming that he was treated less favorably because of his political affiliation with the prior administration.  Unfortunately for Kessler, such discrimination in politics is often legal, depending on the nature of the position.  If Kessler was a top aide, in a position of trust and authority, then the AG likely did have the right to "discriminate" against him if the AG believed that Kessler's political affiliations prevented him from giving his full loyalty to his new boss. 

And that is where the age-discrimination claim comes in.  If Kessler's claim for political association (a constitutional claim brought pursuant to the First Amendment's Right to Freedom of Association), is tossed by the EEOC or the courts, he'll have the age claim to fall back on.  However, given his actual age (49), the "back-up" argument may be hard to swallow.  Especially if the alleged harassers were older than Kessler.  If an employer really does harbor an age-based bias against employees aged 49 and above, it will soon run out of people to employ.

Then again, the allegation of direct evidence of age-based hostility, i.e., the "dinosaur comment" might be enough for the age-discrimination claim to survive, for now.

See also:  Delaware District Court Awards Summary Judgment to Employer in EEOC Suit for Age Discrimination

Potential Delaware Judge's Criminal Record Raises Questions for State Senate

Posted by Molly DiBiancaOn June 29, 2008In: Background Checks, Delaware Specific, Newsworthy

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Delaware Governor Ruth Ann Minner's recent judicial nomination triggered an avalanche of employment-law issues.  The man she'd nominated as a Delaware Family Court Commissioner was convicted of selling cocaine to an undercover officer when he was 17 years old. Since then, he'd led an honorable life, going to college, then law school, and, most recently, holding the position of deputy counsel to the Governor. But the state legislators raised questions about whether his criminal record prevented him from sitting on the bench.

The Governor asked the Delaware Supreme Court to issue an opinion answering this question.  The current law states that persons cannot hold state office if convicted of an "infamous crime."  The term has never been defined. 

The state Supreme Court held that the offense, which was committed as a juvenile, should be treated as a "civil delinquency, not [a] crime at all," and certainly not as an "infamous crime."

The juvenile conviction was pardoned in 1999 shortly before he was admitted to practice law in Delaware and New Jersey.  Since then, he has worked as a deputy attorney general and a defender prior to working as legal counsel for the Governor.   His community contributions include being a member of the Metropolitan Wilmington Urban League, and serving in positions on the Delaware Law Related Education Center and the Delaware State Bar Association's Committee on Professional Ethics.

This story serves as an excellent example of the seriousness with which employers should consider an applicant's criminal history.  Employers who do conduct background checks that include criminal records should not presume that a conviction is an automatic bar to employment.  In accordance with EEOC Guidelines, the candidate should be given a full and fair opportunity to explain the conditions of the crime and conviction, as well as how he or she has contributed to the community and society at large as factors for employment. 

See full coverage of this story by Esteban Parra at the Wilmington News Journal's website.

Another important source of information is the EEOC's Fact Sheet on Employment Tests and Screening, which addresses Criminal Background Checks.

More Employers Giving the Gift of Wellness--via gift cards

Posted by Molly DiBiancaOn June 28, 2008In: Wellness, Health, and Safety

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Wellness programs, which are commonplace in corporate America, come in every variety. Some focus on certain unhealthy lifestyle choices, like smoking or lack of exercise.  Others target a certain rrsult, like lowering cholesterol or reducing blood pressure. And there are different ways to achieve these objectives--there are carrot programs that use reward-based incentives, stick programs that use punishment-based incentives, and programs that use a combination of both. A recent study of America's large employers show that wellness programs that use reward-based incentives are on the rise. 

 carrot_and_stick Here are some of the statistics from the survey:

  • 75% of large employers offer formal health and wellness programs
  • 50% have disease-management programs
  • $100-$300 in incentives is awarded per employee each year
  • Top 3 incentives: Gift cards, cash bonuses, and health-care-premium reductions
  • 28% of these employers give give cards as incentives (up from 17% last year)
  • 25% have successfully measured their ROI (up from 14% last year)
  • 83% came out ahead of even (up from 66% last year)
  • Maintaining employee motivation and measuring ROI were the two biggest challenges employers faced

When it comes to employee-wellness programs,for now, the carrot takes the day.

Other Posts on Wellness Programs:

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

DelaWELL Wellness Programs Wins Award

DOL Offers Compliance Checklist for Wellness Programs

Are Wellness Programs on the Decline?

Suit Raises Tough Questions About Privacy Rights of Former Employees

Posted by Molly DiBiancaOn June 28, 2008In: Electronic Monitoring

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Employer monitoring of employees' e-mail and internet usage is on the minds of many.  In order to monitor lawfully, employers must notify employees of their intent to monitor so that the employee does not have a legitimate expectation of privacy when sending e-mails and browsing the web at work.

Delaware employers must give such notice by law. But the N.Y. Times reports about a suit that raises a tougher question--a case in which a former employee alleging that his former employer read his private Yahoo! e-mails after the employee had been terminated.

This case, recently filed in federal district court in Connecticut, raises two fairly novel issues: (1) can employers lawfully read their employees' personal e-mails if the e-mail accounts were accessed on company time on a company computer; and (2) assuming they can, are employers able to do so after an employee has left the company--in other words, how far will that notification protect employers?

Web-based email, like Yahoo! and G-Mail, are not controlled directly by the employer.  But the employer does own the computer used to access the internet, which weighs in favor of the right to monitor personal accounts.

Perhaps the bigger question in this case is how the employer accessed the former employee's account?  They claim that he used a company computer without authorization after he was fired to send trade secrets and confidential information to his Yahoo e-mail account.  The information, according to the company's lawyer, included customer contact lists, terms of deals, brokers who'd sent business to the company, and personal employee data.  All of which, says the company, would be in violation of his employment agreement. 

It seems that there are multiple possible claims that could arise from these facts:

  1. Employee vs. Employer for breach of privacy;
  2. Employer vs. Employee for breach of contract (his employment agreement);
  3. Employer vs. Employee for trade secret violations
  4. Employer vs. Employee for violation of the Computer Fraud and Abuse Act, which has been used when employees wrongfully access their company's computer network and cause harm as a result;

3 for the Employer and 1 for the Employee, according to my count.  Of course, I could be missing some, so let me know if you think of others and I'll include them in the tally.

We'll keep you posted on what could be an important decision in the new legal territory of employees' privacy rights.

Other Posts on Electronic Monitoring in the Workplace:

Survey Says:  Employers' Policies on Technology in the Workplace

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

Blogs In the Workplace

Somebody's Watching You:  New Data on Electronic Monitoring by Employers

Off-Duty Conduct Lands Shaq In Hot Water

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

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Employers can (and do) consider employees' off-duty conduct when making employment decisions--in most cases. For example, in most states, it is not unlawful for an employer to refuse to hire job applicants who smoke during non-working time. 

And, as we've seen with former TV news anchor, Alycia Lane, off-duty activities such as sending bikini-clad photos of yourself to a married man, yelling a homophobic slur, or slapping an undercover police officer ended up getting Lane fired.  Now another famous name is making news with his off-duty antics.

Shaquille O'Neal made the news this week not because of his on-court moves but for his freestyle rap performed off the clock.  Shaq was seen in a video rapping about former teammate, Kobe Bryant. (The censored version of the video is below). He raps that Kobe couldn't have won three straight NBA titles without Shaq on his side.

So maybe this is a poor display of team spirit but that's not all.  He also uses a racially derogatory word and other foul language, which has been the real center of the controversy.  Critics have condemned the performance, saying that the use of such language crossed the line from bad taste to bad morals. 

It's unclear where the video was shot but it seems to have been at a private function.  Another example of the recent push to hold employees accountable for what they do on and off the clock.

This version of the video has been censored to bleep out the inappropriate words but not the bad lyrical style--sorry, but there wouldn't have been any video left. 



Also, the hat tip for this post goes to Felicia B., William W. Bowser's delightful Legal Administrative Assistant.  Felicia forwarded me an article about the pushback Shaq's rap has gotten and suggested that it was a good topic for an article about off-duty conduct.  Kudos to Felicia!  It never occurred to me that to put the two together! 

Other Posts About Off-Duty Conduct:

Starring Alycia Lane (and, recently, Larry Mendte):

Prying Eyes: What is "Private" Becomes Even Fuzzier for Employees Who Snoop

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Off-Duty Conduct & Newsmakers:  The Role of Morals Clauses in Employment Contracts

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

Off-Duty Conduct, Generally:

Off-Duty Conduct In the News

There's No Hiding Your Own Bad Habits

Employees' Privacy Rights:

Employers’ [Private] Eyes Are Watching You

Calling All Students, School Is Now In Session! ADA 101

Posted by Molly DiBiancaOn June 27, 2008In: Disabilities (ADA)

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HR Summer School has officially begun.  As promised, over the next several weeks, we'll be reviewing the three employment laws that are the most difficult to apply--the Americans With Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), and the Family Medical Leave Act (FMLA).  For details on the topics to be covered, see the Course Catalog

ADA 101, part of the HR Summer School's Back-to-Basics Program, reviews who is covered by the Americans With Disabilities Act.  Course materials are attached for your reference.  composition notebook



Part 1. Employers Covered By the ADA. 

The easiest way to put it is this:  every employer is subject to the ADA's regulations except the federal government, federal contractors, and corporations owned by the United States; Indian tribes; and bona fide membership clubs.  The federal government agencies are covered, instead, by the Rehabilitation Act of 1973.


Part 2. Employees Covered by the ADA.

A qualified individual with a disability is protected under the ADA. 


A. Qualified. A disabled individual is Qualified where she can:

1. "Perform the essential functions of the job."

· The essential functions of the job are the fundamental duties actually performed by incumbents.

· The first step in determining whether a job requirement is essential is whether the employer actually requires all employees in that position to perform the allegedly essential function.

· To be considered qualified, a disabled individual must meet the requisite skill, education, experience, and other job-related requirements of the position.

· Job descriptions are relevant but not conclusive in determining the essential functions of the job.


2. "with or without a reasonable accommodation" 

· To be covered in ADA 103


B. "With a Disability.” A disability is:

1. A physical or mental impairment

A mental impairment under the ADA is "any mental or psychological disorder, such as emotional or mental illness."  Major depression, bipolar disorder, schizophrenia, and personality disorders are covered conditions.  Most mental disorders contained in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders are covered.  Certain anxiety disorders also may constitute an impairment. Job stress generally is not considered to constitute a mental impairment under the ADA. 

A disability does not include: (1) The current use of illegal drugs or alcohol at the workplace; (2) Homosexuality, Bisexuality, Transvestitism; or Pedophilia; (3) Compulsive gambling; or (4) Kleptomania

2. that substantially limits

Whether an individual is substantially limited in a major life activity turns on the nature, severity, and duration of the impairment. The individual must be significantly restricted in a class or broad range of jobs. 

Temporary impairments are not covered.  If a mental impairment is only temporary and non-chronic is not considered to "substantially limit" a major life activity.  But chronic or episodic conditions that are substantially limiting during their recurrence may qualify for coverage

The courts must consider whether the individual can correct or "mitigate" the disability.  For example, the Supreme Court held that the plaintiff's vision disorder treated with corrective lenses was not a disability under the ADA.

3. one or more major life activities.

A major life activity is a function such as "caring for oneself, performing manual tasks, walking, seeing hearing, speaking, breathing, learning, and working.  Mental and emotional processes such as thinking, concentrating, and interacting with others are major life activities."

4. A disability is also said to exist when an employee has a record of such an impairment.

Here, the individual does not have a disability as it is defined above. Instead, they have a history of having a disability and, because of that history, the employer considers him or her to be disabled.

An example of this would include an individual who has a history of cancer but the cancer is in remission. If her employer does not promote her because he’s worried that her cancer may return, she would be covered under the ADA even though she is not “disabled” in the traditional sense.

5. And a disability is also said to exist when an employee is regarded as having such an impairment.

Another non-traditional disability—the employee is not actually disabled at all. Unlike in the “record of” disability case, the employee may never have had a disability. But, for some reason, the employer mistakenly believes the employee is disabled and makes an employment decision based on that mistaken belief.

An example of this would be a job applicant with a broken leg who comes to the interview in a wheelchair. Usually, a broken leg is too temporary to qualify as a disability. But the interviewer assumes (wrongly) that the candidate is permanently wheelchair-bound. If the candidate isn’t hired because of that incorrect assumption, he would be covered under the ADA. 


C. Factors that Disqualify Individuals from Employment

1. Attendance.  Regular and consistent attendance is often an essential function of a job. [This is why job descriptions should reference attendance requirements where appropriate].

2. Employee Misconduct.  An employer may discipline or terminate an employee for misconduct, even if that misconduct was the result of a disability.

3. Direct Threat.  An employer can lawfully exclude an employee from employment if he or she poses a significant risk of substantial harm to health or safety that cannot be eliminated or reduced by a reasonable accommodation.  Significant risk must be high, not just a slightly increased, risk. A direct threat is not posed automatically because he or she operates machinery and takes medication that may decrease concentration. This must be determined on a case-by-case basis. 

Friday Funnies: The "People Connection" & HR Pros, Are They Born With It?

Posted by Molly DiBiancaOn June 26, 2008In: Just for Fun

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Courtesy of The Evil HR Lady:

Evil HR Lady Baby


Does Your Employees' Credit History Affect Their Job Performance?

Posted by Molly DiBiancaOn June 26, 2008In: Background Checks, Hiring

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Would you hire an applicant with a poor credit history?  And what if you hired a candidate who became an all-star employee who, you later learn, has a credit score of 550?  Would that make you think less of her as an employee?  Would you question her judgment or consider her high-risk?  Good Morning America asked all of these questions earlier this week.  And, according to the responses they received, credit history and credit ratings may have a greater impact on a person's ability to find work than you'd think. 

Are Credit Checks Really Being Used to Weed Out Potential Employees?

You bet.  Credit history is a standard part of many background checks, along with motor vehicle data, and drug testing.  Why?  Well, for some, there is no reason why.

Often, I'll review an employee handbook and come across boilerplate language providing for far-reaching background checks.  When I ask the employer what they're seeking to gain with this knowledge, it's very common for them not to have an answer.  They may have wanted to institute a pre-employment drug-testing policy and, when they located a vendor to handle the testing, for an additional small fee, the same vendor would also do background checks.

So, what the heck; a bargain is a hard thing to pass up.  And that's how their background-check policy came to be.


Why Employers Should Ditch the Credit Check

Putting aside the relatively low costs that could be saved, there are a number of reasons why credit checks aren't necessarily the best idea for your organization.  But here are two that come to mind immediately:  The FACT Act and the EEOC.

The Fair and Accurate Credit Transactions Act (also known as "FACTA"), was an amendment to the Fair Credit Reporting Act (FCRA), passed in 2003, primarily to help consumers fight the growing crime of identity theft.  Accuracy, privacy, limits on information sharing, and consumer rights to disclosure are all key elements of FACTA.

And, with FACTA, what you don't know can hurt you.  Employers are bound by a very detailed list of requirements when using credit checks as part of the hiring process.  For example, there are specific disclosures that must be made before and after the credit check is performed.  There are even rules on how an employer must go about destroying related documents.  And, no, these rules are not satisfied by tossing the records in the trash can.

The EEOC has long-maintained that criminal histories can be reviewed as part of the hiring process but cannot be a per se bar to employment.  Instead, if a background check reveals a criminal record, employers must engage in a "meaningful discussion" with the candidate and provide him or her with an opportunity to explain the circumstances of the instances involved and how he or she has changed, etc.

The same is true for credit checks. To avoid a claim of disparate impact, employers who do perform credit checks should remember that a negative credit history should not be an automatic bar to employment. Instead, they should give the potential hire a meaningful opportunity to explain the circumstances of the debt and how he or she has gone about making changes towards a more fiscally responsible future.

Then consider this explanation, coupled with how important or relevant credit might be to the specific job for which he or she has applied.  Weigh all of this before concluding that the credit history has a negative impact on the candidate's ability to perform the duties of the position.

Why Employers Should Keep Doing Credit Checks

Legal liability is real.  Negligent hiring lawsuits are very real.  An employer can be held liable for negligently hiring an employee the employer should have known was likely to violate the rights of another.  For example, if your organization employs technicians who drive from job site to job site, you really must do a motor vehicle's check.  If a technician gets into an accident because of reckless driving and seriously wounds or kills another driver, you may be held liable for his conduct if he'd been involved in numerous instances of reckless driving, which you did not know because you didn't do a background check.

The same idea applies in the context of credit checks. If you hire an employee who, it turns out, was embezzling company funds to finance a gambling habit, you may be on the hook if her actions caused harm to customers who, for example, bounced checks because of the embezzlement.  Had you done a credit check, it would have shown that, right before being hired, she had an erratic payment history, tending to show fiscal instability.  If an employee's actions hurt someone, the employer may be liable. The threat of liability gives employers reason to be cautious in checking an applicant's past. A bad decision can wreck havoc on a company's budget and reputation as well as ruin the career of the hiring official. Employers no longer feel secure in relying on their instinct as a basis to hire.

Start with honesty.  Studies estimate that anywhere from 30% to as much as 60% of employees lie on their job applications.  (This gives me an excellent opportunity to advocate, again, for the importance of having every employee fill out a job application).  Think of credit and background checks as a little test to see whether your candidates fit within that group. 

The law might require it.  For certain positions, federal and state laws require employers to complete certain background checks on employees after extending a contingent job offer.  FDIC-regulated banks, for example, have to comply with an extensive set of regulations during their hiring process.


My final piece of advice is this: 

Try to remember that the cobbler's children have no shoes. The reality is that, just because an employee can't manage her own credit does not mean that she can't manage yours.  Often, people who are very devoted to their work let their personal lives go untended.  So do not assume that a bad credit score equals a poor performance rating.


Related Resources

See GMA's original story, How Bad Credit Can Affect Job Prospects, by Tory Johnson.

And HR Hero has helpful resources on FACTA, as well.

John Phillips will be co-presenting a webinar on this very issue on July 17, Background Checks: Follow the Rules, Know the Risks, Reap the Rewards.

Construction-Industry Employers Are Targeted in Several States

Posted by Molly DiBiancaOn June 26, 2008In: Fair Labor Standards Act (FLSA), Legislative Update

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The construction industry should be aware already that the state and federal legislatures, as well as several agencies, have focused (unwanted) attention its way.  The recent wave of immigration reform has targeted construction, especially.  And, because the construction industry is generally considered to have a high rate of misclassified employees working as independent contractors, it has been singled out in a new piece of legislation that has been sweeping silently through state legislatures.  We've written here before about these proposed laws: Pennsylvania House Passes Construction Industry Independent Contractor Act, as well as Construction-Industry Employers Face Criminal Penalties and Increased Fines Under Proposed Law.

stanley tape measure

Bill Bowser and I spoke yesterday about Construction-Industry Employers Should Be Aware of Proposed Legislation at a seminar for the Delaware Contractors Association. It was clear from the discussion that the Delaware bill proposes a serious risk for employers in the construction industry and beyond.  The Department of Labor reports that the top 4 industries for misclassification are (1) landscaping; (2) nail salons; (3) dental assistants; and (4) construction.  It's likely that the law, if passed, and especially if it starts to generate the revenues advocates claim it will, that similar laws will be passed for other industries, or state-wide generally. 

With potentially criminal penalties and extraordinary fines, this piece of legislation would have a major impact on employers in the construction industry with widespread effects across the other industries, as well.

Dan Schwartz, at the Connecticut Employment Law Blog reported that his State is facing a similar proposal.  Obviously, this is a catchy idea.  Or, more likely, it has some organized supporters who have been lobbying quietly for such a bill. 

PowerPoint Slides and Materials from Seminar Are Now Available

Posted by Molly DiBiancaOn June 26, 2008In: YCST

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Materials from the employment-law seminar held at Delaware Contractors' Association yesterday are now available.  The topics of yesterday's seminar, presented by Bill Bowser and Molly DiBianca, included a legislative update on three labor initiatives, the Employees' Free Choice Act, the RESPECT Act, and the Delaware Construction Industry Independent Contractor Act; a review of the E0Verify program; and an outline of the National Defense Authorization Act (NDAA), the recent amendment to the FMLA.

Thank You Sign

Thank you again to all of the attendees.  Bill and I look forward to seeing you at another Young Conaway seminar sometime soon!!

Employee Claimed He Was Fired for Complaining About Racist Rap Music

Posted by Molly DiBiancaOn June 26, 2008In: EEOC Suits & Settlements, Harassment, Other (Title VII), Race (Title VII)

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Music may be an art form to some.  But some music may be a form of harassment.  The EEOC has reach an agreement with Novellus Systems wherein the San-Jose based employer will pay $168,000 to a former employee for race-based harassment.  The claim alleges that the employee was terminated after he complained about racially offensive music played by a co-worker.

Gangsta' Rap Coloring Book

Michael Cooke worked at Novellus Systems for more than ten years. Cooke, an assembly technician, claimed that he was terminated after he complained about racially offensive music played at work by a co-worker.  The suit alleged that a 27-year-old co-worker would play rap music and rap along, using lyrics that included derogatory racial slurs, including the "N-word."

Cooke complained to the co-worker, a Vietnamese-American, and to his supervisors about the language in the songs.  But the co-worker continued to sing along using racial slurs within hearing distance of Cooke.  After a year and a half of the co-worker singing and Cooke complaining, the suit alleges, Cooke was dismissed in retaliation for his complaints.

A lesson for employers:  As part of the settlement agreement, the company has agreed to modify its anti-harassment policy to exclude playing racially derogatory music in the workplace. 

Does your anti-harassment policy include this type of prohibition?  Are your employees permitted to play music at their work stations?  If the answer is "yes," maybe you should consider a policy review to make sure you're covered.

P.S.  The Gangsta Rap Coloring Book pictured above is, indeed, a real coloring book, available for sale at Amazon.com for $8.95.

Prying Eyes: What is "Private" Becomes Even Fuzzier for Employees Who Snoop

Posted by Molly DiBiancaOn June 25, 2008In: Electronic Monitoring, Locally Speaking, Newsworthy, Privacy In the Workplace

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Employees' privacy rights.  They're everywhere.  Lately, they've been in the KYW-3 TV Newsroom.  Two former Philadelphia co-anchors have put e-mail privacy in the spotlight.  Larry Mendte, who is accused of reading and leaking Alycia Lane's private e-mail account, was fired today.  His termination comes in the middle of a federal investigation, which involved a raid of Mendte's home and office and the removal of "computer equipment," and follows just days after Lane filed her long-threatened suit against their shared former employer.

mendte & lane in happier times

This scandal is a big deal in the Philadelphia local news.  And perhaps that has something to do with the fact that Lane had lost her sugary-sweet charm after the third or fourth scandal.  Or maybe it's because Philly is known equally just as much for relentlessly jeering unpopular sports figures as it is for brotherly love.  But maybe it's because this is a story that so many people already know.  They've lived it themselves.

Mendte is suspected of accessing Lane's account "possibly hundreds of times" and then leaking the information to their boss, the news station, or the press.

So what happens to Mendte if it's later found out that he did secretly sabotage his former partner at the news desk?  Not much.  Mendte isn't a supervisor so, unless the station is found to have known about the snooping or somehow endorsing it, the station will not be held responsible for the acts of Mendte.  Obviously, losing his long-time job, where he spent many years enjoying the favor of Philadelphians, is a big deal and probably one of the most severe consequences he could face.

And Lane could certainly sue Mendte, as well as the station.  It's unlikely that she will, though, given the low value of any possible recovery for privacy claims brought against an individual, as opposed to an employer.

But the real question is not who will be victorious in the media or in the courtroom.  The real question is whether your organization faces similar risks to the potential espionage of trade secrets and confidential information or to a Jerks-at-Work campaign where a bully secretly accesses a target-coworkers' emails with bad intentions.

What safeguards do you have in place to automatically monitor technology use of company computers?

What policies do you utilize to ensure employees' data is protected with regular password changes and by communicating that an employee who shares her password with another may be subject to serious discipline?

What about the specifics of what an employee may and may not take from the workplace, which includes sending it out of the organization and into the world wide web?  Have you expressly told employees about the consequences of such action?  Do you know what the consequences are?

Take the Mendte-Lane debacle as a cue for you to review your policies, practices, and how those messages are communicated to employees.


Michael Klein and John Shiffman at the Philadelphia Inquirer, have more on this story.


Prior Related Posts:

More Drama at the News Desk

Employee Embarrasses Employer, Who Fires Employee, Who Sues Employer

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

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

E-Verify Employer Dos & Don'ts

Posted by Molly DiBiancaOn June 25, 2008In: E-Verify, Hiring

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William W. Bowser and Molly DiBianca (that's me!) presented to the Delaware Contractors' Association's HR Committee today.  We spoke about the Employers' Free Choice Act, the RESPECT Act, the Delaware Construction Industry Independent Contractors' Act, E-Verify, and the recent FMLA amendment, the National Defense Authorization Act.  As promised, I'll post a link to the slides and the handouts for members of the DCA and anyone else who may be interested to view and download. 


Thanks to all of the attendees for participating.  The Human Resources Group, not surprisingly, was attentive, insightful and inquisitive with lots of great questions and comments.  Of the various topics discussed, though, it was clear that E-Verify was the show-stealer.  This, I think, is especially interesting, given that none of the participants are covered by the President's recent executive order, which made use of the E-Verify program mandatory for federal contractors.  The reaction tells me that the construction industry is either (1) looking forward to utilizing the electronic verification system; (2) dreading it as a worst-case scenario; or (3) are curious about just what E-Verify really is and how they might potentially be affected. 


So, in follow-up, here are some helpful "Dos" and "Don'ts" for using E-Verify, published by the Office of Special Counsel for Immigration-Related Unfair Employment Practices ("OSC"):




Use program to verify employment of all new hires regardless of national origin or citizenship Use program selectively based on a "suspicion" that new employee or current employee may not be authorized to work in the U.S. or based on national origin.
Use program for new employees after they have completed the I-9 form Use program to pre-screen employment applicants
Provide employee with notice of tentative nonconfirmation promptly Influence or coerce an employee's decision whether to contest a tentative nonconfirmation
Provide employee who chooses to contest a tentative nonconfirmation promptly with a referral notice to SSA or DHS Terminate or take adverse action against an employee who is contesting a tentative nonconfirmation unless and until receiving a final nonconfirmation
Allow an employee who is contesting a tentative nonconfirmation to continue to work during that period As an employee to obtain a printout or other written verification from SSA or DHS when referring that employee to either agency
Post required notices of the employer's participation E-Verify and the antidiscrimination notice issued by OSC Ask an employee to provide additional documentation of his or her employment eligibility after obtaining a tentative nonconfirmation for that employee
Secure the privacy of employees' personal information and the password used for access to the program Request specific documents in order to use E-Verify's photo tool feature.

*available at usdoj.gov/crt/osc

And don't forget to check back tomorrow for the PowerPoint slides and handouts.

Prior Related Posts about E-Verify: 

Attention Government Contractors!! You Are Being Ordered to Use E-Verify!

GAO Says Universal Mandatory E-Verify Will Be A Challenge

Supreme Court Grants Cert in Pregnancy Discrimination Case

Posted by Adria B. MartinelliOn June 24, 2008In: Cases of Note, Discrimination & Harassment, Pregnancy (Title VII), U.S. Supreme Court Decisions

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Pregnancy Discrimination is back in the news, courtesy of the U.S. Supreme Court's grant of certiorari in the case of AT&T v. Hulteen, No. 07-543.  Employees who took maternity leave, pursuant to the company's decades-old policy, were not given the same credit towards their pension as employees who took other kinds of disability leave.


The Pregnancy Discrimination Act (PDA) was not enacted until 1979 and, since then, AT&T’s maternity leave has been credited toward retirement, in compliance with the law. At issue is whether AT&T must now give female retirees credit for maternity leave taken from 1968-1976, preceding enactment of the PDA.

The Ninth Circuit held that the benefits system violated the PDA.  AT&T appealed and the Solicitor General recommended that cert be granted.  The SCOTUS Blog covers AT&T v. Hulteen and provides more details as well as links to the previous filings.

A ruling against AT&T would seem to be contrary to the Court’s recent ruling in Ledbetter v. Goodyear, related to the timeliness of discrimination claims whose effects may not be apparent for many years later. Further, it is generally held that statutes are not retroactive absent statutory language otherwise. In light of these precedents, a ruling in favor of the employees in this case may signal a real interest in this type of discrimination. Stay tuned!

Recent EEOC Developments

Posted by Molly DiBiancaOn June 24, 2008In: EEOC Suits & Settlements

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The EEOC has been as busy as ever. Below are two recent discrimination settlements.


EEOC Settlement:  Race Discrimination at Construction Site

The EEOC has settled a case brought against yet another construction company.  The racial harassment case filed against Washington Group International, Inc. was settled for $1.5m.  The suit alleged that WGI created a racially hostile work environment for black employees and failed to take appropriate action to remedy the harassment.  $1.3m of the settlement will be distributed among 6 black former employees and $200,000 will be shared among 11 similarly situated individuals.  The alleged conduct is said to have occurred on a construction job site in Massachusetts.

Delaware-Based Conectiv Settles Race-Discrimination Claim with Philadelphia EEOC for $1.65m.


EEOC Settlement:  Age Discrimination Class Action Against Lockheed Martin

Lockheed Martin Global Telecommunications settled an age discrimination class action for $773,000.  The Maryland-based employer was sued for allegedly discriminating against eight employees ages 47 to 65.  The workers were fired during a reduction in force in October 2000.  The former employees had been paid severance packages, so the settlement amount constitutes only back-pay remedies.

HR Summer School to Cover Top 3 Toughest Topics in Employment Law

Posted by Molly DiBiancaOn June 24, 2008In: Disabilities (ADA), Fair Labor Standards Act (FLSA), Family Medical Leave

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The Delaware Employment Law Blog will be posting a series of "Back-to-Basics" articles over the next couple of months.  Each class in the series will focus on the basics of the covered topic.  The posts can be printed and assembled for a handy reference.

After much thought, we've selected the topics that we'll cover.  We've decided to tackle what we think are the Top 3 Toughest Topics in Employment Law, the ADA, the FMLA, and the FLSA.  These are the statutes that give our clients the biggest headaches but we're going to try to reduce the agony with the Back-to-Basic series. 

There will be several mini-topics in each course.  Generally, we expect the "schedule" to look something like this:

ADA 101

    • 101  Who Is Covered?
    • 102  What Does the ADA Require?
    • 103  What Is a "Reasonable Accommodation"?
    • 104  What Certification Can I Require?
    • 105  Special Disciplinary Problems and Abuses

FMLA 101

    • 101  Who Is Covered?
    • 102  What Is a "Serious Medical Condition"?
    • 103  Do I Have to Act If I Think an Employee May Qualify for FMLA Leave?
    • 104  How Do I Handle Intermittent Leave?
    • 105  Special Disciplinary Problems and Abuses

FLSA 101

    • 101  What Does the FLSA Actually Cover?
    • 102  What Is the Difference Between Exempt and Nonexempt?
    • 103  What Types of Exemptions Are There?
    • 104  How Do I Determine If My Employees Are Exempt?
    • 105  Special Disciplinary Problems and Abuses

Get those pencils sharpened and we'll see you in class!

I'm Too Sexy For This Job: The Beginnings of a Failure-to-Hire Lawsuit

Posted by Molly DiBiancaOn June 23, 2008In: Hiring

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Employers see confidence as a positive attribute in employees.  Confident employees make decisions without having their hands held.  They're not scared of change and innovation.  They don't involve themselves in petty workplace gossip--they don't need to--they have enough confidence that putting others down just doesn't do it for them.  But what some employees don't understand is that confident is different, entirely different, from egotistical. 

Some examples of the difference have been buzzing around the blogosphere lately.  This one is too priceless not to mention.  The following question was posed to J.T. & Dale, of "J.T. & Dale Talk Jobs":I'm too sexy for these glasses

I have been actively searching for a job for five months now, and can’t figure out why I get interviews but no offers. I have even contemplated the idea that I can’t get hired because I happen to be a very attractive, younger-looking 32-year-old. Am I crazy for even thinking that?

Umm, wow.  Ok, before I comment, here is Dale's response: 

A day or two before you go into a company for a job interview, park outside the office at lunchtime or after work and see how people dress and act. You aren’t dressing to look your best, you’re dressing to make potential co-workers comfortable around you.

I think this is great advice, especially the second sentence.  But I think that there is another lesson to be learned for employers, as well.  This is an excellent example of the "It Can't Be Me" response to rejection.  When a job candidate is not selected for the position, the automatic response is not,

"Well, there must have been another, more qualified, or better connected, or more educated candidate than me." 

Oh no, that would be totally unnatural. 

Instead, what they think is,

"What happened?  I was perfect for that job.  They really screwed this up.  They must have based their hiring decision on a clearly irrelevant factor such as [race/age/gender/religion/national origin/beauty]." 

And, clients and colleagues, thus begins a failure-to-hire lawsuit. 

Now, let's say that it was a man who interviewed her and, let's just say that, during the interview, he commended her for being so "put together" and noted the difficulties that women face in balancing home and work responsibilities.  If this young woman could conclude that she wasn't hired because of her extraordinary beauty, you can imagine how easy it would be for her to conclude that she wasn't hired because of her gender.  Again, thus begins a failure-to-hire lawsuit.

Source:  Am I Too Good Looking to Get Hired?  at J.T. & Dale Talk Jobs.  (Who score extra credit for not laughing hysterically at this question.)

Just Put Down the Brown Bag and Slowly Step Away From the Lunch

Posted by Molly DiBiancaOn June 23, 2008In: Just for Fun

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Employees in cubicles across the U.S. take lunch very seriously.  Especially when it's their lunch.  And especially when their lunch is swiped from the fridge in the lunchroom.  Nearly 98% of employees surveyed said that eating someone else's food from the office fridge was unacceptable. 

brown bag lunch no food

When asked what was the most offensive breach of office etiquette, respondents were nearly unanimous in their agreement.  The "fridge raid" took the first-place prize for the Number 1 worst office behavior. 

Taking second place at 96% is bad hygiene.   And a variety of bad-manner conduct made up the rest of the most cited offenses.  The bad habits that are most likely to get you fired include:

  1. Drinking on the job;
  2. Wastefulness with paper;
  3. Swearing in the office;
  4. Cooking smelly food in the office microwave; and
  5. Using Blackberry devices at meetings.

I was surprised to see #2, wasting paper, on the list.  I wouldn't have guessed that coworkers paid that much attention to others' paper usage.  But I think it's a positive sign.  Yes, really.   I'd dare to say that the fact that wastefulness with paper appears on this list is actually a strong indication of engaged employees

What's the connection?

Wasting paper is wasting company resources.  If employees are getting angry with their coworkers who waste company resources, it seems to me that they are invested in the company's fiscal health. Conversely, when employees flip over to the dark side and become disengaged and bitter, there's almost a satisfaction in wasting company resources.  It's a silent, albeit relatively small, way to "get back" at their employer.  So take it as a positive sign if employees take offense when others engage in miniature assaults against the organization.

Employee Must’ve Been Smoking Crack If He Thought He’d Win Lawsuit

Posted by Molly DiBiancaOn June 22, 2008In: Cases of Note, Drug Testing

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A disgruntled airplane pilot sued the Federal Aviation Agency (FAA) seeking to have his pilot’s license reinstated. The FAA terminated his license after the pilot failed a drug test. The pilot claimed that there was insufficient evidence to support his termination. The suit made its way to a federal appeals court after an administrative hearing and the National Transportation Safety Board affirmed the FAA’s decision.  The federal court, I'm glad to say, upheld the termination decision, marking a sad day for crack-smoking employees in highly safety-sensitive jobs.

 pilot's hat

Mark Toth of the Manpower Employment Blog has a great summary of the case in his post, Court Upholds Termination of Crack-Smoking Pilot:

  • February 15:  Pilot Charles Gabbard smoked crack cocaine.
  • February 16:  Gabbard submitted to a random drug test.
  • February 17:  Gabbard piloted a chartered jet.
  • February 21: Gabbard’s test results show a cocaine metabolite level seven times higher than the regulatory limit. (Cocaine takes 24-48 hours to clear the system.)

In April 2007, the FAA terminated Gabbard’s pilot’s license based on the positive drug test and the agency’s conclusion that he had piloted the February 17 flight “while having a prohibited drug, cocaine in [his] system.”

Drug-Free Friendly Skies: Too Much to Ask?

The Sixth Circuit concluded that there was sufficient evidence to find that Gabbard indeed had taken drugs prior to flying.  Given the window of time for the drug test to show a positive result, he had smoked crack no more than 42-44 hours before takeoff. 

Mark Toth points out Gabbard's creative (i.e., ludicrous) arguments:

(1) he may have smoked a cigarette that, unbeknownst to him, was laced with crack;

(2)  the cocaine may have gotten into his system due to plastic surgery; or

(3) perhaps he inhaled the fumes of crack cocaine that just happened to waft by.

But the Sixth Circuit didn't buy it.  What mattered was that, regardless of how he intentionally or accidentally ingested the drug, he should have notified his employer immediately, rather than preparing for takeoff as usual.

One final note about the case.  Gabbard also tried to argue that he'd been a victim of incompetent representation by his lawyer at the administrative hearing.  Needless to say, the court disregarded the contention, holding that adequate representation is an issue for the criminal courts.  Since that's the case, given the circumstances, Mr. Gabbard may be able to reuse that argument sometime in the not-so-distant future when he likely finds himself before a criminal court.  And, hopefully for him, his lawyer will not have "accidentally" ingested an illegal narcotic prior before representing Gabbard in any legal proceedings, criminal or otherwise.

Other Recent Cases Involving Terminations for Illegal Conduct and Drug Testing

EEOC Sues Pittsburgh Drug Clinic for Terminating Recovering-Addict Employee for Failing Random Drug Test

One More Reason Every Employee Should Be Required to Complete a Job Application: School Is Ordered to Reinstate Convicted Killer to Teaching Position


Construction-Industry Employers Should Be Aware of Proposed Legislation

Posted by Molly DiBiancaOn June 22, 2008In: Independent Contractors, Legislative Update, Public Sector, Purely Legal

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Employers should be aware of several employment and labor law initiatives in the state and federal legislatures.  Congress currently is considering the Employee Free Choice Act (EFCA), and the RESPECT Act, for starters. And the Construction Industry Independent Contractor Act, which was quietly passed by the Delaware and Pennsylvania Houses poses serious risks to employers in the construction trade.

Union Pin

Employee Free Choice Act

The EFCA could be a silent killer.  It has managed to keep a very low profile during its months-long visit to Capital Hill.  In short, it would eliminate the secret-ballot vote and would require employers to recognize a labor union without an election.  The long-unchanged law currently requires employers to choose between recognizing the union and a secret-ballot election if more than 50% of employees in a bargaining unit sign a union authorization card. 

If passed, the EFCA would change this procedure entirely.  Employers would have to recognize the labor union immediately if more than half of the workforce signs union cards.  And, to make it worse, there's not much an employer can do about it.  Union campaigns can be fully underway before the employer even learns about it.  And interference in card-gathering activities would subject the employer to civil penalties.


The unfortunately named RESPECT Act poses another labor-related threat to employers in the construction industry.  The "Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act" would amend the National Labor Relations Act (NLRA) by redefining the definition of "supervisor."  If passed, the RESPECT Act would eliminate the current requirement to obtain supervisor-classification that the employee must posses the authority to assign work to others and to responsibly direct employees.  Instead, the definition of supervisor would be much more difficult to satisfy.  The proposed definition would require the employee to exercise authority over employees for a majority of his or her working time.

There is a giant leap from possessing authority and exercising that authority for a majority of working time. 

We've posted about the state-level initiatives that would criminalize misclassification of employees as independent contractors that have passed the House both in Delaware and in Pennsylvania.  It may be that the definition of "independent contractor" becomes key in avoiding a criminal conviction.  The EEOC provides a non-exclusive list of 17 factors, as well as examples of the factors in use, for use in making that determination.

Helpful Resources

Kris Dunn at The HR Capitalist has a persuasive post about the Employee Free Choice Act and the potential catastrophe it could cause if passed.

The American Nurses Association, which is very pro-RESPECT Act, has a current list of the legislators who support the bill--check to see if your state's legislator is one of the them.  If he or she is on the list, put pen to paper and tell your elected officials what you and the entire industry stand to lose if the RESPECT Act is passed.

EEOC Sues Pittsburgh Drug Clinic for Terminating Employee for Positive Drug Test

Posted by Molly DiBiancaOn June 21, 2008In: Cases of Note, Disabilities (ADA), Drug Testing, EEOC Suits & Settlements

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The Equal Employment Opportunity Commission (EEOC) has filed suit under the ADA against a Pittsburgh drug-treatment center.  The suit, which is brought on behalf of a former clinic employee under the Americans With Disabilities Act, alleges disability-based discrimination.  The employee, a recovering drug addict, worked full-time as a counselor at the clinic when was terminated when she tested positive for methadone in a random drug test.  

The Greenbriar Treatment Center in New Kensington, is alleged to have fired the employee despite EEOC Sues on Behalf of Methadone Userher claim that she had a legal prescription for the methadone, which she'd been receiving through a treatment program since 2002.  She was later berated by her former boss, who told her that she "should be ashamed of herself."  The EEOC contends that the termination was unlawful discrimination against a person with a disability. 


The Americans With Disabilities Act & Illegal Drug Use

The Americans With Disabilities Act (ADA) does not protect current drug users.  But it does protect those who are in recovery for drug or alcohol abuse. 

The EEOC's Technical Assistance Manual for the ADA has the following to say about the use of illegal drugs as a disability:

Regarding Persons Currently In Recovery:

Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.

For example

An addict who is currently in a drug rehabilitation program and has not used drugs illegally for some time is not excluded from the protection of the ADA. This person will be protected by the ADA because s/he has a history of addiction, or if s/he is "regarded as" being addicted. Similarly, an addict who is rehabilitated or who has successfully completed a supervised rehabilitation program and is no longer illegally using drugs is not excluded from the ADA.

Regarding Persons Currently Using:

However, a person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be "substantially limited" because of drug use, s/he must be addicted to the drug.

To ensure that drug use is not recurring, an employer may request evidence that an individual is participating in a drug rehabilitation program or may request the results of a drug test.

Not having seen the complaint, I'm at a bit of a loss as to what type of facts may be alleged to support the EEOC's claim.  To present a viable claim, the EEOC has to allege that the employee (1) is disabled, presumably because of her drug addiction; and (2) she suffered some adverse action, presumably the termination; and (3) Number 1 was the reason for Number 2; i.e., that she was fired because of her drug addiction. 

My initial reactions to this scenario:  What was the clinic's drug policy? I'd think it would be more comprehensive than most.  Did it address methadone?  What was the clinic's position, if any, on methadone programs as a recovery treatment?  And, of course, wasn't there a pre-employment drug test?  If so, did she test positive for methadone?  If she did, well, it seems like clinic could be in a bad spot.  If she didn't, was she still using illegal drugs?  Would that have been a piece of after-acquired evidence (i.e., falsifying drug test results, etc.) upon which the employer could have terminated her?  That would be a reason other than a "disability."

The merits of the case may also depend on how the court defines a "recovery program" as that term is used in the EEOC's Guidance, above.  It isn't clear from the EEOC's own definition whether the methadone program would qualify.

A "rehabilitation program" may include in-patient, out-patient, or employee assistance programs, or recognized self-help programs such as Narcotics Anonymous.

Source:  Post Gazette at http://www.post-gazette.com/pg/08166/889903-56.stm

HR Summer School: The Back-to-Basic Series

Posted by Molly DiBiancaOn June 21, 2008In: Internet Resources, YCST

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The Delaware Employment Law Blog will be posting a series of articles on the fundamentals of employment law.  The Back-to-Basic Series is intended to be a refresher course of sorts for employers and human resource professionals on the topics and laws that generate the most questions from clients and seminar attendees.  Man, older bookworm


Think of it like summer reading, only better. 


If there are topics that are of a particular interest, please post it in the comments or drop me a line and let me know.  But jump in soon because we're in the midst of finalizing the course schedule.   HR Summer School will be a regular feature until Labor Day. 

Employee Embarrasses Employer, Who Fires Employee, Who Sues Employer

Posted by Molly DiBiancaOn June 20, 2008In: Locally Speaking, Newsworthy, Off-Duty Conduct

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Managers, be thankful that you don't work in news television.  Apparently, news anchors aren't the easiest employees to manage.  Local news celebrities just might have the market cornered on employee off-duty conduct that causes employers the biggest headaches.  And now, employees' off-duty conduct is at the heart of an employee-versus-employer lawsuit.

Oh, those crazy news anchors!  Always making news of their own! You may recall from earlier posts the saga involving the once anchorwoman for KYW-TV Philadelphia.  Hmmm. Scandals, actually, would be more accurate. 

Let's start with Alycia, seeing as she's the trophy-holder in the scandal department.  First there was the "Dr. Phil episode." She spilled her heart (and lots of tears) on national television during an appearance on the Dr. Phil Show and discussed in detail her failed marriage and the prospect of dating.  Then she was busted sending pictures of herself clad in a skimpy bikini to NFL Network sports anchor Rich Eisen. Eisen's wife was the so-called busting party. 

Alycia Lane

Then, in December 2007, Lane was arrested in New York and charged with assaulting a police officer.  There also were allegations that she'd verbally attacked the female officer with degrading and homophobic slurs. 

The officer was in plainclothes when the incident occurred.  Oops.

KYW terminated her a month later and issued a fairly quiet (and gentle) press release. 

Then, last month, after the story trail had gone cold, Lane was back in the news.  But this time, it was her former co-anchor, Larry Mendte, who had the spotlight.  In May, FBI officials searched Mendte's home and office computers triggering speculation that Lane may have pointed the finger at Mendte for leaking the Eisen email.  It hasn't been confirmed by Lane, Mendte, or the FBI that the search may have been the result of suspicion that he'd secretly read Lane's emails or otherwise accessed her computer.

The latest?  Lane has filed suit in Philadelphia against KYW.  The lawsuit against her employer alleges that the station's management had a pattern of "deep-seated gender-discriminatory animus" towards women in the workplace. 

Today's Wilmington News Journal reports:

The lawsuit says the station told Lane to interview TV psychologist Phil McGraw in 2004 and suggested that she talk about some of her past relationships. She said she understood that inappropriate personal elements would be removed and was mortified when footage of her crying about her divorce was included in a heavily promoted KYW newscast.

The suit says that because of those decisions, Lane "was branded in the press as someone who sought to make herself the news, rather than to merely report the news.

The defamation suit alleges that the station invaded her privacy and spread malicious gossip that eventually caused her to lose career opportunities and destroying her reputation. 

Stay tuned, viewers, I feel that it's safe to say there's more to come in this drama suited for prime-time TV.

Will Bunch of the Philadelphia Daily News at Philly.com:  Alycia Tells Her Side In Suit

(AP) The Wilmington News Journal:  Alycia Lane Sues Former Reporter

Related Posts:

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

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

Friday Funnies: How a Cup of Joe Can Solve Conflicts at Work

Posted by Molly DiBiancaOn June 20, 2008In: Just for Fun, Workplace Violence

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As employment lawyers, we often counsel managers on how to resolve interpersonal conflicts in the workplace.  It is hard to imagine a workplace where disputes don't arise amongst coworkers at least occasionally.  Sometimes these conflicts can boil over and end up in heated arguments in the office. 

When employees get emotional, management should step in to prevent the situation from getting further out of hand.  Most of us have experienced a dispute with a colleague that made us so mad we could almost scream!

And some of us may have been in a situation where they could almost knock the block off of a coworker.

Of course, we counsel against workplace Jerks and Bullies.

But there may be a workplace where this coffee cup could be helpful.  Well, maybe just in our imaginations.


From Coolest Gadgets:  Punch Mug for Office-Rumbles. 

"While corporate honchos might not walk around with big metal chains and sharpened shanks as their weapon of choice, they certainly find ways to hold their own in the inter-office rumbles. This Punch mug not only delivers the kick of caffeine you so desperately need, but also provides an excellent alternative to brass knuckles for any snotty PR employees."

"Sure, it might look like just another fragile ceramic drinking apparatus, but the specially designed handle provides a truly epic amount of grip and force behind your best left hook. The Punch is designed in both white and silver colors.

We have to say, the silver version just looks more hardcore. You should only have to use the Punch Mug once before every other bad mouthing white-collar gets the hint. You are not a coffee drinker to be messed with."

Delaware Employment Law Blog Gets a Makeover & Wants Your Links!

Posted by Molly DiBiancaOn June 20, 2008In: YCST

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The Delaware E-Law Blog has a whole new look!  If you have been wondering where we've been the last few days, now you know.  We're now hosted by [the wonderful] Justia, as in Justia Blawg Search and Justia Federal District Court Filings and Dockets, which is a great tool for searching up-to-the-minute listings of the latest filings in federal court.

One of the features we've added to the blog is an all new "Resources" page, which contains links to about 160 Blogs of interest on the topics of Employment Law, Human Resources, and the like.  There are also about 100 links to helpful internet websites and resources.  Please check out the lists and let me know of any valuable additions, including if you have a blog that might be of interest to our readers.  We're big fans of sharing.

Thanks for your patience during the switch.  We promise to have a bunch of posts up soon!!

Have a great weekend and happy reading!


Send your links of interest to mdibianca at ycst dot com

Language from the Land of the Cubicles

Posted by Michael P. StaffordOn June 17, 2008In: Just for Fun

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Employees in corporate America know exactly what I'm talking about.  The increasingly Orwellian nature of corporate lingo.  Workplaces across the country have been infiltrated by this pervasive dialect.

If you've grown tired of the self-imposed language of workers across the country, then the BBC is here to help.  The BBC has compiled a "50 office-speak phrases you love to hate" list that includes such linguistic gems as "conversate" and "granularity." 


Sadly, my own personal favorite does not appear on the list. I learned from a friend who worked as a store manager for a national retailer that his company does not have "problems" or "challenges" anymore.  Instead, everything is an "opportunity."  After learning this, naturally, when I got pulled over for speeding on my way to work, I informed my wife that "I had an opportunity on my way to work this morning."  I don't think she saw it that way.


[Editor's Note:  Our friend and blogger extraordinaire, John Phillips, at The Word on Employment Law, posts the definitions from the Dictionary of Corporate Bull**!@.  I happen to have the Dictionary as a daily desk calendar and I can personally attest that the definitions give us a daily laugh.  As a sampler, and not to spoil any of John's fun, but today's definition is "nastygram:  an e-mail that is punitive in tone; a petty and irritating bitch-slap, sent with the ulterior motive of defending the author's ridiculously small territory and authority and venting otherwise unexpressed frustration and anger; frequently sent by middle managers who must daily fight off the reality of their own insignificance; a common tool of the micromanager."  md.]

Perdue Farms Settles Failure-to-Hire Lawsuit and Laments Failure to Document

Posted by Molly DiBiancaOn June 17, 2008In: Discrimination & Harassment, Hiring, Interviewing, Purely Legal, Race (Title VII)

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Good documentation practices during the hiring process can help employers avoid a failure-to-hire claim.  And that's a good thing, considering that failure-to-hire claims are costly. Just ask Perdue.  The poultry company has agreed to a pay out of more than $800k to settle a claim of disparate impact arising from what the DOL concluded to be systematic discrimination against non-Hispanic job applicants. 


Disparate Impact Claim

A Labor Department news release states an evaluation in 2005 and 2006 by the Office of Federal Contract Compliance Programs (OFCCP) found the Salisbury-based company failed to comply with federal employment laws at its poultry processing plants in Rockingham, N.C., Dillon, S.C., and Monterey, Tenn. (The OFCCP has jurisdiction because Perdue supplies poultry under a federal contract to the U.S. Department of Agriculture.)

The settlement agreement will require Perdue to pay $800,000 in back wages and interest to 750 women and minorities who were not hired during the relevant time period.  The company also will make employment offers to some of those who were not hired but who are still interested in employment with Perdue.  In those cases, the employees will receive retroactive company service dates for purposes of benefits and promotion rights. 


Documentation Regrets

Perdue officials denied the allegations on the basis that many applicants were unqualified for employment or withdrew from consideration for employment.  They stated that the company agreed to a settlement only to avoid protracted litigation, according to the company. The VP of HR said in a company statement:

Perdue is committed to treating all job applicants fairly. We regret we did not more carefully document our hiring process for production associates, which led to these concerns by the OFCCP and, ultimately, to this settlement.

Perdue has implemented new procedures to ensure it retains all relevant documentation of its selection processes and is also conducting training of its human resources staff to assure appropriate implementation of Perdue's hiring and employment practices, according to the company statement.

Interviewing Best Practices

Interviewing is one of the most neglected areas in employment law.  When I teach seminars on lawful interviewing, I will inevitably see faces filled with shock and despair as they realize just how many of the best practices have not been implemented in their organization. 

Documentation is key in hiring.  If you keep notes and records only on the people you hired, you will have nothing to refer to in a failure-to-hire claim.  And let's be honest, the ones you didn't hire are likely the ones who were the least memorable.  Can you remember candidates you interviewed and rejected in 2005 and 2006? 

Without an established and consistent documentation and record-retention policy for the hiring policy, a failure-to-hire claim can be nearly impossible to defend.  Just ask Perdue.


Source:  Delaware News Journal, Gwenn Garland

Employment Law Seminars: Summer Update

Posted by Molly DiBiancaOn June 17, 2008In: Locally Speaking, Seminars, Past, YCST

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In addition to the Advanced Employment Issues Symposium (AEIS), where Adria Martinelli, William W. Bowser, and Scott A. Holt, will be presenting on several employment law topics, attorneys in the Employment Law Group has several seminars on the calendar this summer.  To keep you in the loop, here's a short recap. For more information, just give us a call or use the links below.


Delaware Contractors Association, June 25

William W. Bowser and Molly DiBianca will be presenting a breakfast seminar to the Delaware Contractors Association (DCA) on June 25, 2008 on Hot Topics In Employment Law.  The recent amendment to the Family Medical Leave Act, the National Defense Authorization Act (NDAA), which imposes new leave requirements for employees with servicemembers in the family who are called to active duty or who are returning from active duty and who require medical care.  The recent (and sudden) passage of the Construction Industry Independent Contract Act through the Delaware House of Representatives will also surely be on the agenda.

Developing Your Employee Handbook, October 23 & 30

Molly DiBianca will be presenting this seminar, which is sponsored by Lyons Companies Insurance, twice in October.  The first seminar is scheduled for October 23, 2008, from 1-3 p.m. and will be held in Georgetown, Delaware. The second is set for October 30, 2008, from 9 - 11 a.m. and will be hosted by Young Conaway Stargatt and Taylor in the firm's Wilmington, Delaware offices.  The seminar is free to clients of Lyons Companies but limited spaces are available for non-clients.  Just be sure to contact Molly DiBianca or Lyons Companies representative Jenn Miller early because Lyons' seminars are always well attended and fill up quickly. 

Why Your Top Employees Require Your Top Retention Efforts

Posted by Molly DiBiancaOn June 16, 2008In: Employee Engagement

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Employee satisfaction is a complex science. What it takes to retain top talent has been the subject of countless studies, focus groups, and informal discussions.  Julia Kirby, at the Harvard Business Review posted about the importance of Making Sure You're Engaging Your Top Talent.  She writes about two recent studies that show that new employees become jaded after just six months on the job, followed by a decline in morale for the next four years of employment.

These statistics beg the questions, why does this happen and how can it be prevented?

Of course, I wouldn't pretend to offer answers to either question--both surely will be the topic of countless case studies and research projects for years to come.  But here's what I will offer--what I believe to be the most fundamental necessity that any organization must provide in order to retain great employees and to make good employees become great ones--honesty.


You don't hire employees because you think they're particularly dopey.  You hire employees who you believe are the best and brightest, the smartest, and most innovative candidates out there.

Just don't forget it once they start working for you.

Employees are not fooled by empty promises.  So don't pretend that you are going to fix X, Y, or Z problem if you know you'll never take any tangible steps in keeping that promise.  It's very easy to become jaded when you feel that you've been duped by your employer.  Think of the parent who answers every request with "maybe," or "We'll see." 

Everyone knows that what the parent really is saying is "N-O."  So be a straight shooter.  Give employees a valuable answer to their questions and, whenever possible, explain why.  Employees in the know are more likely to be sympathetic to the choices of the organization even if it doesn't give them the result they prefer.

In these difficult economic times, it is not uncommon for an employer to have serious concerns about the financial health of the organization.  So, if the company's annual summer picnic is cut to save money, don't feed employees a bogus story about the reasons for the decision.  It won't be good enough.  They'll resent you for canceling the party and they'll interpret the decision as a negative reflection of management's lack of understanding or appreciation of employees.  They'll secretly suspect that management is trying to give them a not-so-subtle hint that they are not doing a good job.

Instead, be honest.  Explain that the party has been canceled because it is a costly event and, in difficult times, the company has the duty to protect the overall fiscal health of the company and can't risk long-term security in the name of the summer picnic.  Offer specific examples of the cost-benefit analysis you used to reach the decision.  If you spent some time and energy to reach the decision, then you'll be able to articulate that to others. 

And sometimes, that's all it takes.  A little honesty.

Employee Blogs as Part of Corporate Wellness Programs?

Posted by Molly DiBiancaOn June 15, 2008In: Social Media in the Workplace, Wellness, Health, and Safety

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Blogging is good for you.  Wellness programs are intended to improve the overall health and well-being of employees. So why not combine the two?  Seems like a reasonable idea to me. 




Kevin O'Keefe at Real Lawyers Have Blogs posts about an article from Scientific American magazine that explores the therapeutic benefits of blogging.  From the article, written by Jessica Wapner:

Self-medication may be the reason the blogosphere has taken off. Scientists (and writers) have long known about the therapeutic benefits of writing about personal experiences, thoughts and feelings. But besides serving as a stress-coping mechanism, expressive writing produces many physiological benefits. Research shows that it improves memory and sleep, boosts immune cell activity and reduces viral load in AIDS patients, and even speeds healing after surgery.


Scientists now hope to explore the neurological underpinnings at play, especially considering the explosion of blogs. According to Alice Flaherty, a neuroscientist at Harvard University and Massachusetts General Hospital, the placebo theory of suffering is one window through which to view blogging. As social creatures, humans have a range of pain-related behaviors, such as complaining, which acts as a “placebo for getting satisfied,” Flaherty says. Blogging about stressful experiences might work similarly.

The "self-help" implications of blogging seems to be a powerful incentive for Employee Assistance Programs (EAPs) to consider adopting blogs into their repertoires.  Of course, employers should decide in advance whether employees will be permitted to blog about work and implement a blogging policy if one doesn't already exist.

Happy Fathers' Day to the Nation's Stay-At-Home Dads

Posted by Molly DiBiancaOn June 14, 2008In: Leaves of Absence

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Gender stereotyping is a common topic today.  Plenty of ink's been poured on topics like the maternal wall, maternal profiling, and the effect of "off-ramping" by women who take time away from their careers to raise children. But it's not often do we hear about the struggle for a work-life balance faced by men.  So, in celebration of Fathers' Day, here are a few facts and statistics about the challenges faced by the modern stay-at-home dad.


17.4% of children aged 0-4 in the U.S. with an employed mother are cared for full-time by their fathers. As compared to 11% in the U.K.

The Family Medical Leave Act ("FMLA") provides for unpaid leave to care for a newborn or a newly placed adopted child.  The act is gender-neutral and the availability of leave is unrelated to status as "mommy" or "daddy."  But what about employers with less than 50 employees, to which the FMLA does not apply?  Well, dads, good luck.

Paternity leave policies, which offer paid leave in varying amounts to fathers of newborns, are uncommon in any size company. And closer to rare in small businesses, which are less likely to be able to afford paid leave than their big business counterparts. 

If your employer does not offer paid paternity leave, you may be left with accrued vacation or personal time as the only realistic alternative.  And those will likely be very short.  Certainly not close to the 12 weeks of maternity leave that many employers offer.

A 2007 study from recruitment firm Adecco USA found that 59% of U.S. working dads would not take unpaid paternity leave if their employer offered it.  The most commonly cited reason was cost.  Apparently it would put too big a dent in household budget.  Other frequently cited reasons included the fear that it would damage their careers, being too busy to take time off, or the concern that they're too indispensible at work.

Well, there's always flextime.  But given the difficulty women face as they try to get more employers to join the alternative-schedule bandwagon, men may be looking at an uphill battle with this option, too.

No matter whether you're a dad who stays at home or a dad who stays at work, happy fathers' day to all of the hard-working dads!

Employee Handbook Policy #502: Respectful Workplace

Posted by Molly DiBiancaOn June 14, 2008In: Employee Handbooks, Jerks at Work, Policies

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When I do employment law training and seminars, I solicit feedback from participants with a questionnaire.  One of the questions is what other topics are of the most interest to audience members. Recently, I've seen a surge of requests for employment law seminars on How to Create Employee Manuals. Because I aim to please, I'll be conducting a seminar on the topic in October.  But, to hold you over until then, I thought readers might appreciate some posts on specific handbook policies. 

man's fists ready to fight

Given the recent movement against Jerks at Work, we get more and more requests from clients for a Respectful Workplace policy for their employee manuals.  These types of policies have significant flexibility depending on the level of the organization's commitment to eradicating jerks in the workplace. 

Here are some pointers for crafting a Respectful Workplace Policy:

Start Here.

The golden rule for these types of policies is to start with a hard look at the values, both written and unwritten, of your organization.  The worst thing to do is to craft a policy that is totally out of line with your company's everyday practices.

Don't overpromise and don't overhype the company's commitment to a respectful workplace.  Employees aren't fooled that easily and they'll resent you for thinking otherwise.  If you implement a comprehensive policy, be prepared to stand by it and hold employees and management accountable.

Be Specific. 

As easy as it is to create policies in the abstract, a policy needs specifics in order to be effective or enforceable. The word, "respectful" is a start but use words with more concrete meanings.  Better yet, give examples of what is and is not considered respectful behavior. 

As a matter of course, all such policies should include anti-retaliation language that assures employees that there will be no retaliation for reporting incidents that the employee believes are in violation of the policy.

A Respectful Workplace policy often can be incorporated into an anti-harassment policy.  But if you choose to combine the two, be sure to differentiate one from the other.  In other words, harassment is illegal and will not be tolerated.  Disrespect, on the other hand, while not illegal, is destructive to the overall health of the organization and, therefore, will not be tolerated.  Be sure to separate the two.

Carry a Stick. 

Policies of any type are useless unless they include an enforcement mechanism.  Spell out what consequences there are for violations of the policy. And don't limit yourself to disciplinary consequences.  It's a good idea to identify the social consequences that behavior like gossiping, making snide remarks, and purposefully excluding coworkers can have on the team as a whole.

Make it a point to put responsibility on everyone with mandatory reporting.  If one coworker sees another gossiping or otherwise undermining another, make it their responsibility to report the conduct--either by going to HR or management, or by "calling out" the gossiper directly. 

Free Teleconference: Generation Y .... What Do They Really Want

Posted by Molly DiBiancaOn June 14, 2008In: Generations: Boomers, Xers, and Millennials, Women In (and Out of) the Workplace

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The U.S. Department of Labor (DOL), Women's Bureau will offer a free teleconference on June 19 2-3 pm EDT.  The topic of the free teleconference is Flex Options, Generation Y . . . What Do They Really Want. The DOL's website describes the program as a talk from the perspective of large and small businesses – and Generation Y employees – about the roles that workplace culture, flexibility and career development play in recruiting and retaining the best talent.

Flex-Options Logo

The three speakers include Ann Ivey, of Anna Ivey Consulting, a former lawyer and dean of admissions at a top-ten law school, Ivey now focuses on admissions consulting. 

Elizabeth Kennard is a specialist for Starbucks' Emerging Workforce Center of Excellence.  Kennard's responsibilities include the development of workplace flexibility and multigenerational workforce strategies.

Dennis Loney is the Employment Practices Specialist at Recreational Equipment, Inc. (REI), working to ensure that the co-op's practices are cutting-edge and aligned with its values. 

This is a very hot topic right now and seems to be infiltrating more and more areas of the business world.  You can register for teleconference through the following link:

Women's Bureau (WB) - Flex Options Teleconference Call - Generation Y …. What Do They Really Want

Pennsylvania House Passes Construction Industry Independent Contractor Act

Posted by Molly DiBiancaOn June 13, 2008In: Independent Contractors, Legislative Update

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Sheldon Sandler reported earlier this week about a law passed by the Delaware House that would criminalize employment laws.  Pennsylvania has passed a law nearly identical to the Delaware bill.  In case you missed Sheldon's post, here's a recap that includes the details of the laws of both states.

Like Delaware, Pennsylvania's version of the Construction Industry Independent Contractor Act proposes to penalizes employers in the commercial or residential building construction industry for intentionally evading certain state employment laws, such as the Minimum Wage Act, the Wage Payment and Collection Law, the Unemployment Compensation Law, and the Workers’ Compensation Act.

The law sanctions both intentional and negligent misclassifications of workers. An employer that intentionally misclassifies an employee will be charged with a third-degree felony and could face a fine of up to $15,000, imprisonment of up to three and a half years, or both, for a first offense.  Subsequent convictions could result in fines of up to $30,000,  imprisonment of up to seven years, or both.

Negligent misclassification carries penalties of up to $1,000 per offense, and possible administrative fines.

The Attorney General may also issue a stop-work order, which requires the employer to cease all business operations until Pennsylvania’s Secretary of Labor and Industry lifts the order or the employee is properly ­classified. In addition, the employer may be subject to a civil action for damages brought by an employee, or the employee’s union, claiming improper classification.

The Act also  includes an anti-retaliation provision. 

If the bill succeeds with the Pennsylvania Senate and is signed (as is expected) by Governor Rendell, the legislation could become effective as early as January 1, 2009.

Friday Funnies: Say It Like It Is

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

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Did this lawyer have an over-active sense of candor towards the tribunal?  Or was this just his way of venting?


 motion to reschedule




[H/T Above the Law]

Workers' Compensation Claims - A result of bad luck or bad leadership?

Posted by Molly DiBiancaOn June 13, 2008In: Just for Fun, Locally Speaking, Newsworthy, Pregnancy (Title VII)

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Good leaders are difficult to come by.  Good leadership in government, some might say, is even more difficult to find.  I'd guess that some of the citizens of the Illinois town of Cahokia might just feel that way right about now. 

black cat

Cahokia Mayor, Frank Bergman, filed a workers' compensation claim after taking a fall down the stairs while fulfilling his duties as a civil servant. This claim has resulted in payment to Mayor Bergman for more than $20,000. 

And what's wrong with that, you ask?  Certainly, there is nothing un-leader-like about utilizing a government service for its intended purpose. 

But, the trouble here is, Mayor Bergman appears to be an unusually clumsy government official. This was his fourth workers' comp claim since he began working for the small town. In all, the Mayor has collected no less than $145,000 in workers' comp payouts since he came to work for local government in 1986.  The Mayor's annual salary is $40,000. 

Well, maybe the Mayor can try to avoid walking under ladders and crossing paths with black cats in the future.  Surely, bad luck must be to blame for his ongoing series of unfortunate accidents. 

Source: Chicago Tribune:  Small-town mayor gets $20,000 for his 4th workers' compensation claim

One More Reason to Require EVERY Candidate to Complete a Job Application

Posted by Molly DiBiancaOn June 12, 2008In: Hiring

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My professional opinion about job applications is something I have share with my e-law colleagues at Young Conaway Stargatt & Taylor.  Unanimously and persistently, we advocate for employers to require every job candidate to complete a job application.  And if those words seem to cause an employer some mild discomfort, we stand fast and explain that no, it's not too late to require your current employees to complete an application if you don't have one on file.

help wanted2

There are lots of litigation-related reasons for our insistence.  It is not uncommon to find that a former employee, now plaintiff, lied on their application.  The most cunning (read, most dangerous) plaintiffs, though, don't lie about their employment history or education.  Instead, they just omit information.  They skip sections of the applications or, instead of filling in the form as requested, they simply write, "see resume, attached."  Therefore, they avoid the dirty habit of lying to their prospective employer while, at the same time, avoid having to explain those pesky incidents in their past like periods of unemployment, criminal histories or prior terminations. 

Our rigorous devotion to this honorable mission may explain why I take so much pleasure in the following story.  I know that I will get a lot of leverage out of it in future seminars when pressed for an example of what difference it makes whether or not there is a completed job application for each and every employee. 

The Workplace Prof Blog posted about an "unusual arbitration decision" (indeed!) in Quebec.  A unionized teacher was employed by the Commission Scolare de Montreal for several years without incident. 

Until, that was, it was discovered that the teacher had been convicted of manslaughter a number of years earlier.  Not surprisingly, the teacher was fired.  Not surprisingly, the teacher appealed the decision and his grievance went to arbitration. (Ok, maybe it's a little surprising that he appealed). 

But here's where it does get surprising--the arbitrator ruled in favor of the teacher. And, even more surprising, the Quebec Superior Court upheld the decision, as did the Court of Appeal.  An appeal to the Supreme Court of Canada may loom on the horizon. 

So, employers, we plead, we beg, we implore you, please make it a high-priority policy to ensure that you have each and every employee complete a job application and provide all of the information that it requires.  Do so, preferably, prior to the hiring decision.  But, if it's too late for that, don't despair.  Instead, start now by auditing your personnel files and having employees complete applications if they haven't done so already. 

Really, if it means you wouldn't have to continue to employ a convicted killer, wouldn't it be worth the minimal effort?

[H/T: Workplace Prof Blog: Canadian Court Orders School to Rehire Convicted Killer]

Wal-Mart Settles 14-Year Old Disability Lawsuit With Former Pharmacist

Posted by Molly DiBiancaOn June 12, 2008In: Cases of Note, Disabilities (ADA), Purely Legal

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Employers often bemoan the Americans With Disabilities Act (ADA), citing the law's difficult-to-understand compliance requirements. And most employment lawyers and discrimination attorneys would agree that the ADA can be more challenging in its application than, for example, Title VII, which prohibits discrimination based on race, religion, gender, national origin, or other protected characteristics. 

Whereas an employer is in "compliance" with Title VII so long as it does not take adverse employment actions against employees because of a protected characteristic, the ADA requires that employers take affirmative steps towards assisting employees who are able to perform the functions of the job but who may need a reasonable accommodation to do the job as well as other employees without a disability.

But today, most savvy employers understand the tremendous value that the ADA provides to society as a whole and are able to appreciate the law, despite what can seem like a daunting set of requirements and prohibitions that the law entails.


Wal-Mart pharmacist, Glenda Allen, was shot during a robbery at her second job. Doctors estimated her chance of survival as very poor.  But survive she did.  Doctors concluded she may never walk again.  But walk she did.  In the end, she suffered permanent injury to her spinal cord and required the use of a cane as a result of an abnormal gait caused by the shooting.

When she sought to return to work, Wal-Mart fired her.

Wal-Mart's position was that Allen could no longer do her job--with or without reasonable accommodations.  Allen was not paraplegic, though, she had at least limited mobility.

The litigation was unusually protracted--she initially filed suit in 1994.  After losing on summary judgment, Allen persisted until settling with the retail giant yesterday for $250,000. 

This case is a difficult one for me understand, at least strategically.  Granted, in 1994, the Americans With Disabilities Act (ADA), which governs accommodations employers must make for employees with disabilities, was hardly the piece of legislation that it is today. Barely 4 years old at the time, the ADA was not understood by many and feared by most. 

But today, some 14 years later, the amount of the settlement seems a pittance when compared to the legal fees that surely must have been incurred for more than a decade of litigation.  Additionally, Wal-Mart is sophisticated enough to appreciate the true value that the ADA provides to the business world by being able to offer equal employment to the disabled.  It strikes me as odd that the global mega-store would not have settled long ago, even if only to "save face" with the disabled community. 

[H/T Coral & Opal: Wal-Mart Coughs Up $250k in Pharmacy Discrimination Case]

Abusive Bosses Should Watch Their Backs

Posted by Molly DiBiancaOn June 12, 2008In: Jerks at Work

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Supervisors who manipulate employees may just have what's coming to them.  According to a new study, a surprising number of employees commit acts of sabotage against their bosses. 

A study from the University of New Hampshire found that approximately 20% of employees admitted to engaging in underhanded tactics in an effort to make their boss look bad. <b>Traits:</b> Sneaky, stealthy, cowardly

<b>Why They Scare Us:</b> You don’t know when or where this scary co-worker will strike. And often you don’t even know it until some time has passed — and the damage has been done.

<b>How to Deal with Them:</b> Confront them. Anyone who goes behind your back won’t be comfortable in a face-to-face situation and will be disarmed.

Some did it as a way to seek revenge.  Making their supervisors appear to be incompetent, foolish, or oblivious is a way to inflict punishment.  Embarrassment is a technique employed by those who cannot "fight back" outright--or at least not without the risk that they'll be disciplined or fired. 

Others were more calculated, using backstabbing as a way to get around a boss who might otherwise block them from career success. Goal-oriented retribution, you could say. 

To accomplish these "goals," employees reported to spreading false rumors and trying to sabotage their bosses' work. 

The researchers concluded that abusive bosses were the targets of this conduct.  Not surprising, considering the suffering that a Jerk at Work can impose on a colleague, coworker, or direct report.

Related Posts:

You Know You're a Bad Manager When . . .

Top 5 Lessons to Be Learned from the Jerk at Work

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

Bullying Can Be Physical . . . But Torture?

Are Bullies Beating Up Your Employees’ Health?

The Cost of Bully Legislation

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

Source: Abusive bosses invite retribution, Study: Angry workers burn supervisors (The News & Observer)

GAO Says Universal Mandatory E-Verify Will Be A Challenge

Posted by Teresa A. CheekOn June 12, 2008In: E-Verify

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E-Verify is now mandatory for all federal contractors.  Pursuant to the executive order issued yesterday, federal contractors must use the E-Verify program to confirm the work eligibility of all employees currently working on a government contract, as well as all newly hired employees whether they are working on a government contract project or not.  The Executive Branch says that the E-Verify system will be able to handle this increasing demand.

E-Verify Logo RGB MASTER

But the new executive order isn’t the only new wrinkle in this quickly changing landscape. Several states (including Arizona, Mississippi, Idaho, Rhode Island, Minnesota and Oklahoma), have passed laws mandating use of the E-Verify system by some or all employer.  And there is legislation now pending in Congress that would require all U.S. employers to use the system to verify the employment eligibility of their employees.

The Government Accountability Office (GAO), which is the audit, evaluation and investigation arm of Congress, has just published a report, "Employment Verification:  Challenges Exist in Implementing a Mandatory Electronic Employment Verification System" on the issues presented by mandatory universal use of E-Verify. The report includes a very good overview of how E-Verify works and a helpful flow chart showing each step of the process.

The GAO says that a universal mandatory e-verification will present fiscal and practical challenges. The GAO points out that although 61,000 employers have registered to use E-Verify, only about half are actively using the system, and that there are approximately 7.4 million employers in the U.S. now. The U.S. Citizenship and Immigration Service (USCIS) estimates that mandatory E-Verify would result in about 63 million queries per year about newly hired employees. Both the Social Security Administration and the U.S. Citizenship and Immigration Service would have to buy more servers and hire more employees if E-Verify were mandated for all newly hired employees.

Mandatory E-Verify in its current form will not be a complete solution to the unauthorized immigration problem. It can help employers detect the use of fraudulent documents such as fake Social Security number cards, but it does not prevent use of genuine, but stolen, documents. My clients have reported an increase in incidents of apparent identity theft, which I think is probably an unintended consequence of the increased use of E-Verify.

Related Post:

Attention Government Contractors!! You Are Being Ordered to Use E-Verify!

Case Alert: Pregnancy Discrimination Act Extends to Abortion

Posted by Adria B. MartinelliOn June 11, 2008In: Cases of Note, Pregnancy (Title VII), Purely Legal

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The Third Circuit, which covers Delaware, has ruled that the Pregnancy Discrimination Act provides a cause of action to an employee fired for having an abortion.  Although the case involves an unusual set of facts, it serves as an important reminder that compassion provides rewards beyond good karma – it can keep you out of court.


Doe v.  C.A.R.S. Protection Plus, Inc.

After learning that there might be problems with her pregnancy, the plaintiff, “Doe,” shared the information with her employer. Tests showed severe deformities and, at her doctor's recommendation, she had an abortion. On the day of the funeral ceremony, three days after the abortion, Doe was terminated.

The employer asserted that Doe failed to follow company policies with regard to her absence from work during her medical procedure and in the days following.   Doe presented evidence that her husband had called in to arrange the time off. cars protection plus

The employer had what the court called a “somewhat less than compassionate leave policy.” Employees were given no personal or sick leave. After one year on the job, employees were given five days’ paid vacation. Any time taken off during a work day was to be deducted from the employee’s vacation time or be unpaid. When employees were out sick, the employee or spouse had to call in on a daily basis.  But evidence was presented that showed not all employees were treated the same with respect to the daily call-in rule.

An Abortion Is a Protected Activity Under the Pregnancy Discrimination Act

The Pregnancy Discrimination Act (“PDA”) is an amendment to Title VII of the Civil Rights Act of 1964 and states that discrimination on the basis of “sex” includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The PDA does not require preferential treatment for pregnant employees but mandates that employers treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work.

Doe's allegations did not make for a typical pregnancy-discrimination claim. She did not claim, for instance, that she was discriminated against because she was pregnancy or that she had been fired while on maternity leave. Instead, she argued that she was discharged because she underwent a surgical abortion. Whether or not protections generally afforded pregnant women under the PDA also extend to women who elect to terminate their pregnancies was an issue that had not been decided in the Third Circuit.

The EEOC has taken the position that it is an unlawful employment practice to fire a woman because she had an abortion.  This was also the position taken in an early decision in Delaware's federal court.  Referencing both sources, the Third Circuit held that abortion is protected conduct under the PDA.

Evidence of Discriminatory Intent

The Court found enough evidence to refute the employer’s stated non-discriminatory reason for termination and permitted Doe’s claim to proceed to trial.  The evidence persuasive to the Court included: (1) daily call-in rule was not enforced with other employees; (2) another employee stated that Doe’s supervisor (who fired her) stated that Doe “didn’t want to take responsibility,” possibly in reference to her abortion; and (3) Doe was fired only three working days after the abortion.

Lessons for All Employers

Abortion does not often arise as part of a discrimination (or any other) claim against an employer because such a procedure is often kept private by the employee.  An employer cannot discriminate on the basis of conduct that it knows nothing about.  Also, the facts in this case, where the baby was wanted, and the employee had abortion for medical reasons, may be somewhat rare.

Nevertheless, the lessons from this case are applicable to many types of discrimination claims and provide a good reminder for employers. Simple changes to the employer’s policies and decision-making procedure would have resulted in a dramatically different outcome.

1. Make your leave policies reasonable. If humanity is not enough to persuade you on this point, then the risk of litigation should. It is clear that this employer’s draconian leave policy won no favors with the court, and certainly would not have won any points with a jury. Moreover, where leave policies  are so unreasonable that practically no one can abide by them, exceptions will be made routinely. When exceptions are made, subjectivity comes into play and it can be very difficult to defend why exceptions were made in some cases and not others.

2. Disseminate your policies, and enforce them consistently. Inconsistent treatment gets the employee past the first hurdle of any discrimination claim.

3. Never forget to take timing into account with any serious employment action. If you are considering taking an adverse employment action directly following some protected activity, which, in Delaware, now includes an abortion, think twice. Consider giving the employee a second chance and let some time elapse before taking action. Again, if benevolence does not lead you in the right direction here, know that many a discrimination case was moved onto trial because of suggestive timing.


Doe v.  C.A.R.S. Protection Plus, Inc., Nos. 06-3625, 06-4508 (3d Cir. May 20, 2008).

Delaware Legislation Proposes to Criminalize Employment Law

Posted by Sheldon N. SandlerOn June 11, 2008In: Delaware Specific, Independent Contractors, Legislative Update, Newsworthy

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Delaware employers who've not heard of "The Construction Industry Independent Contractor Act" should pay close attention to this post.  Every business with employees working in Delaware should be aware of this bill, HB 468, introduced yesterday in the Delaware General Assembly, and the many repercussions it could cause. 

construction man in hard hat

Proposed Bill Would Target Delaware Employers in the Construction Industry


"The Construction Industry Independent Contractors Act,” apparently is on the fast track for approval at the state legislative level.  Although its name indicates that it reaches construction-industry employers, the proposed bill has potential implications for all employers.

In short, the bill purports to penalize employers who improperly classify construction employees as independent contractors.

In essence, it provides that all construction industry workers are “deemed to be” employees unless:

  1. the workers are “free from control or direction;”
  2. the work is “outside” the employer’s usual business; and
  3. the person is “customarily engaged in an independently established trade, occupation, profession, or business."


Employers Could Face Jail Time for Misclassification


An employer who fails to “properly classify” a person as an employee, even unwittingly, is subject to fines and imprisonment for up to 90 days. If done knowingly, the fine can be as much as $10,000 and the prison term as much as 6 months. In addition, the Secretary of Labor can impose administrative penalties, debar the employer from state projects, and even require the employer to cease operations.  And as if those measures aren't enough, an individual who claims to be the victim of misclassification, or his or her union, can bring a civil action for damages, including a class action.

This draconian legislation, if enacted, would expose construction industry employers to financial ruin. Class action lawsuits are invited, and the language is constructed in such a way that virtually every person who works on a construction project would be viewed as an employee.


The Potential Consequences of the Independent Contractors Act


But why stop with construction employers? The same rationale would seem to be applicable generally to employers, so the next step would seem to be to expand the scope of the legislation to cover all employers. Interested businesses and business associations beware – this bill must be stopped!

The full text of the bill can be seen at the Delaware General Assembly website.

Start Your Engines: NASCAR Faces Harassment Suit

Posted by Molly DiBiancaOn June 11, 2008In: Cases of Note, Gender (Title VII), Harassment, Sexual, Race (Title VII), Sexual Orientation

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NASCAR has been sued for race discrimination, gender discrimination, and sexual harassment.  The plaintiff, a black female former official, seeks $225 million in damages.

NASCAR Discrimination Suit

The plaintiff, Mauricia Grant, worked as a technical inspector in NASCAR's second-tier Nationwide Series until she was fired in October 2007. She'd been with the organization since 2005, when she alleges the harassment and discrimination began. 

Her complaint, filed in federal court in New York, lists 23 specific instances of alleged sexual harassment and 34 specific instances of alleged gender and racial discrimination.

Despite an increasingly female fan base, NASCAR has long been a "man's sport" with women's involvement traditionally limited. 

Grant claims that she was harassed based on her race and her gender, as well as subject to a sexually hostile work environment.  In support of her racial discrimination claim, she alleges that she was referred to as "Nappy Headed Mo" and "Queen Sheba" and was told that she worked on "colored people time. 

One official, Grant alleges, routinely made references to the KKK.  And, while riding with coworkers at Talladega Speedway, she was told to duck as they passed by race fans because, one said, "I don't want to start a riot when these fans see a black woman in my car."

As for the sexual harassment, she says that she was accused of being gay when she ignored advances of co-workers.  She also claims that those same co-workers exposed themselves to her and made graphic and lewd jokes.

Grant also alleges that she routinely complained about the conduct to multiple supervisors, who responded that she should just "deal with it," and dismissed the conduct as attributable to "former military guys" with a rough sense of humor.

Source:   ESPN: Ex-NASCAR worker alleges racial discrimination in lawsuit

Attention Government Contractors!! You Are Being Ordered to Use E-Verify!

Posted by Teresa A. CheekOn June 10, 2008In: E-Verify, Newsworthy

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Federal contractors are now required to use E-Verify, an Internet-based system operated by the Department of Homeland Security (DHS) & the Social Security Administration (SSA) that allows employers to electronically verify the employment eligibility of their newly hired employees.  E-Verify is a free and, until last week, voluntary way to determine the employment eligibility of new hires and the validity of their Social Security Numbers.


E-Verify Logo RGB MASTER

On Friday, June 6, 2008, President Bush signed an executive order amending Executive Order 12989, which is entitled “Economy And Efficiency In Government Procurement Through Compliance With Certain Immigration And Naturalization Act Provisions.”  Sounds important, right? This is in fact very big news for government contractors, who must now revamp another part of their hiring process to ensure that they don’t lose their contracts.

The original Executive Order 12989, "Economy & Efficiency in Government Procurement Through Compliance with Certain Immigration & Naturalization Act Provisions", was signed by President Clinton on February 13, 1996.  It stated that if a government contractor violated the Immigration and Naturalization Act’s prohibition on hiring illegal or undocumented aliens, the contractor could be “debarred.”  Debarment means that the contractor loses its current government contract and is shut out from future contracts for the duration of the debarment period.

The amended E.O. 12989 goes a step further, requiring all government contractors to use the DHS electronic verification system (currently known as “E-Verify”)  to ensure that “all persons hired during the contract term by the contractor to perform employment duties within the United States” are authorized to work in the United States. This requirement apparently extends to all newly hired employees, not just employees hired to work on the government contract. In addition, the Executive Order requires the contractor to use an electronic verification system to verify the employment eligibility of “all persons assigned by the contractor to perform work in the United States.”

The Order instructs the Secretary of Homeland Security to “modify as necessary and appropriate the electronic employment eligibility verification system....” On June 9, 2008, DHS announced that E-Verify is the system designated for use by federal contractors for compliance with E.O. 12989.  According to DHS, “Agencies responsible for federal acquisition regulations (FAR) will send a Notice of Proposed Rulemaking (NPRM) to the Federal Register today soliciting public comment on proposed changes to these regulations. Comments will be accepted for 60 days.”

DHS also assured employers that using E-Verify will not be too painful: “More than 69,000 employers currently rely on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in fiscal year 2008. Of those queries, 99.5 percent of qualified employees are cleared automatically by E-Verify.” E-Verify is a free service that, according to DHS, usually verifies an employee’s work authorization in seconds.

As the DHS E-Verify System is currently designed, it may be used only for newly hired employees but legislation introduced by Senator Chuck Grassley on June 5, 2008, would expand the program to cover current employees also.  You can read more about the E-Verify System on the DHS website as well as in prior posts on this blog.

Contractors must still take care to avoid discriminating against applicants and employees who are simply suspected of being undocumented workers. As Procurement Executive Janice Sposato pointed out in April 1997 after the promulgation of the original E.O. 12989, there are various laws that prohibit discrimination based on citizenship status and national origin discrimination. Accordingly, contractors may not “single out or otherwise treat individuals differently because they are foreign born, ‘foreign-looking,’ have ‘foreign sounding names,’ or have accents. All individuals must be treated in the same way during the part of the hiring process in which work authorization documentation must be provided and inspected.

Related E-Verify & Immigration Law Posts:

Getting the Jump on No-Match Letters and Suspicious Document Notices

Safe-Harbor Rule for No-Match Letters: Part 1

Safe-Harbor Rule for No-Match Letters: Part 2

Safe-Harbor Rule for No-Match Letters: Part 3

Delaware's City of Wilmington Amends Wage Tax Law

Posted by William W. BowserOn June 10, 2008In: Delaware Specific, Newsworthy

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Wilmington City Council has passed legislation clarifying and updating Wilmington’s Earned Income Tax code, commonly referred to as the City’s "wage tax." This is the first major amendment to the Earned Income Tax code in almost 40 years.

wilmington tax

The new amendments include:

  • taxpayer protest procedures;
  • jeopardy assessments (the right of the City to demand immediate payment if collection of a tax would be jeopardized by a delay);
  • accuracy related penalties (authorizing the City to assess a 25% penalty for substantial underpayment or underreporting of tax); and
  • safe harbor provisions for armed forces personnel actively serving in military combat zones.

Wilmington, the cultural and financial hub of Delaware's New Castle County, has made collection of the wage tax a priority in recent years. Since January of 2006, the City has performed over 3,000 wage tax audits and collected more than $5.5 million in unpaid wage tax. According to City Finance Director Ron Morris, Wilmington expects to conduct approximately 12,000 tax audits over the next few years and add $2.1 million in new revenue in Fiscal Year 09 alone.

The wage tax is currently set at 1.25%.

Any person who works in the City of Wilmington or conducts business in the City from which he derives wages or business income, is subject to the City’s Earned Income Tax, regardless of whether he lives inside the City.

In addition, all residents of the City of Wilmington are subject to the wage tax. City residents must pay the tax on all earned income (whether derived from wages or business income) regardless of where residents work.

More information about the wage tax is available online at www.WilmingtonDE.gov. or by calling the City of Wilmington Finance Department, Earned Income Division, (302) 576-2418.

Bad Reason #29 to Fire an Employee

Posted by Molly DiBiancaOn June 9, 2008In: Newsworthy, Severance Agreements, Terminations & Layoffs

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There are good reasons to terminate an employee.  There are also plenty of bad reasons.  And then there are really bad reasons.  This story is an example of the latter. 

cops for cancer 2

A waitress in Owen Sound, Ontario, was "laid off" after she had her head shaved for a cancer fundraising event.

Stacey Fearnall (pictured) raised more than $2,700 for charity, but when she showed up for work and refused to sport a wig for her shift, her boss told her to take the summer off.

Her employer, Dan Hilliard, says his restaurant has certain standards prohibiting men from wearing earrings and requiring employees to keep their hair at a reasonable length.  Should she agree to wear a wig during her shifts, she's welcome to return.  If not, she should consider herself unemployed until her hair regrows to a "reasonable length."

Hillard acknowledges that his decision to not let Fearnall return to work has been a bit of a public relations disaster. But he stands by it nonetheless, insisting that he has received support from some customers who agree with him and say they would have been "appalled" to have been served at Fearnall's table. 

He also claims that Fearnall, a 27-year-old mother who also works a a plant nursery and as a caterer, was told in advance that the restaurant owners wouldn’t be pleased if she participated in the fundraiser and suggested she find alternative ways to support the cause.

Maybe it's just me but do any of these "reasons" sound legitimate?  This is yet another example of when something can be legally viable and just plain dumb at the same time. 


Source:  TheStar.com

10 Reasons to Work Here? Could You Answer This Question from a Job Candidate?

Posted by Molly DiBiancaOn June 9, 2008In: Hiring

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Employers know that recruiting is tough.  An entire industry is devoted to doing it just so employers won't have to.  But once you get a desirable candidate in front of you, how do you convince her that she should want to work for your company?  In other words, what are the top 10 reasons that the candidate should want to jump on board? 

Insincere Recruiting Does Not Work

Insincerity is the worst approach. 

The candidate sees through it most of the time and, if they don't, they'll feel betrayed the moment they realize you mislead them with a fantasy story about the wonderful workplace your company promotes. Sincerity, on the other hand, is the way to go.

Be honest.  Tell applicants and recruits the truth.  You may even be surprised how many great things there really are about your workplace once you start to list them. 

And the truth will help you avoid generic responses that are sure to turn off the person sitting across from you.  Things like, "Oh, the corporate culture here, it's great." Bleck. Please, you don't really believe that do you?  Or, "We have a great work-life balance."  Again, bleck.  These phrases mean nothing to anyone who actually listens. 

Be Candid With Candidates

How about, "Well, my direct supervisor is a riot.  He has the greatest way of lightening the mood when someone is having a rough day.  It's a huge relief to everyone in our group." 

Or, "We go out sometimes together as a group.  But it's a spontaneous thing--never forced or 'required.' The fact that it's a spur-of-the-moment event means that no one is obligated to go.  Anyone can say, 'I have to pick up my kids before 6,' without feeling guilty about it.  The truth is, though, no one ever does--everyone always goes.  And the fact that we usually start happy hour at 4 or 4:30 helps, too."

Ask Yourself Before a Candidate Asks You First

You should ask yourself this question before you conduct your next interview.  Even better, get the hiring managers together and talk about it.  Likely, you'll hear others' comments that you hadn't thought of but that are really on point for you.  This does not mean you should have a script--remember, sincerity is key.  But you should know what you love about your job so you can communicate that with energy and honesty to a curious candidate. 

Long ago, Google published a "Top 10 Reasons to Work at Google."  And, hey, it's worked.  Google obviously knows its values and priorities when it comes to employee recruiting and retention.  And they've attracted the best of the best by communicating those values and priorities in a heartfelt way. 

Give it a try, you might be pleasantly surprised at your own Top 10 list.

Employers Take Note: A Little "Sorry" Goes a Long Way

Posted by Molly DiBiancaOn June 8, 2008In: Employee Engagement

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Employment litigation involves high-state emotions and personal investment.  Delaware employers who find themselves in employment litigation can utilize the highly successful and very accessible mediation services of our two federal court magistrate judges.  I'm sorry

The success rate of mediation can, in large part, be attributed to the value of a face-to-face meeting of the parties.  Facilitated by two highly regarded judges who have the ability to coax the parties into reasonable positions, it is it not uncommon to reach settlement in a case once the emotions have subsided.  But what if there was a way to cool emotions before litigation ever ensued? 

The Workplace Fairness Blog picked up an article from the N.Y. Times, Doctors Say "I'm Sorry" Before "See You in Court."  According to the article, there is a trend in the medical profession to disclose medical errors more promptly, followed by a sincere apology and fair compensation.  The article indicates positive results with one hospital reporting a decline in existing claims and lawsuits from 262 in 2001 to 83 in 2007.

The post wonders whether this "full disclosure and apology" policy could or should be transferred to the employment context.  In other words, would a heartfelt "I'm sorry" prevent litigation brought by employees?  The concludes that it likely would. 

How to Cut Off Liability With a Face-to-Face Meeting

I concur.  Often, I will get a call from a client worried about an employee who, it is suspected, may be considering a lawsuit.  When I inquire what happened or is happening that would cause the employee to consider suing, there usually is a clear and definable answer.  Maybe the employee was passed over for a promotion that she feels she deserved, for example.

As we flesh it out, there are often good reasons, from the employee's perspective, to feel slighted.  Employees don't get all of the information that go into any given decision.  So, based on the information that they have available to them, the situation very well might seem unfair or biased. 

If that is the case but the employer has legitimate, articulable, and, preferably documented reasons for the decision, then we're off to a good start.  But we're not at the finish line because those legitimate reasons are unknown to the employee.  So what's an employer to do?

The answer is not necessarily to disclose every justification to the employee.  There are plenty of reasons that you may not want to share your decision-making process.  For one, it might lead to a sense of entitlement among direct reports.  And you don't need a line of employees demanding to know "why?" every time a decision is made that they don't like. 

Provide a Meaningful Opportunity to Be Heard

But there are middle grounds.  I counsel employers to, at the least, bring the employee in and ask them what's going on--and then listen to the answer.  Sometimes, just feeling that you are being heard is enough to put the employee back on your team. 

Once they've had an opportunity to say their piece, the manager should acknowledge that the employee's position is a sincere one (though not necessarily correct or justified, but at least sincere).  Then reinforce the employer's commitment to the employee and his or her continued satisfaction.  You hired him because you believed in the valuable contribution he makes to the team and this has not changed. 

I don't know that I'd call this an "apology."  But I would call it confirmation of commitment.  And I think that goes a long way.  Just a confirmation that you are still on the same side. 

Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

Posted by Molly DiBiancaOn June 7, 2008In: Dress & Attire, Gender (Title VII), Policies, Women In (and Out of) the Workplace

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Dress codes prefer males over females.  Ok, maybe not. But it's hard to deny that men who work in jobs that expect traditional, corporate-minded attire, certainly have far fewer choices than women.  And fewer choices can mean fewer mistakes.  Let's face it, a suit is a suit is a suit.  Granted, men can make some pretty bad choices about their tie-shirt combos but it's quite different than selecting accessories like earrings, necklaces, scarves, shoes, and the list goes on.

woman in skirt

I recently read a post by Laurie Ruetimann at Team Building Is for Suckers, which talked about an article in The WSJ  on the issue of women's choice for work wear and the effect it really has on their success.  Her post raised some interesting questions about whether there is a double standard when it comes to fashion choices by men and women. 

Among practicing attorneys, the belief that lawyers should "look like lawyers" remains firmly in place.  Even less conservative attorneys that I know would never consider going to see a client or giving a seminar in anything other than the traditional blue or black suit.  Brown doesn't cut it, for those of you who were wondering.

Personally, I have many times struggled with "what not to wear" as the show's title goes.  I, for one, take my fashion choices pretty seriously.  Ok, maybe even too seriously. But, knowing that I tend to be far more fashion forward than fashion conservative, I try to be especially aware that I don't cross the line--wherever that may be. 

The most grounding experience I've ever had regarding professional attire occurred before I ever was a professional.  The "memorable" and eye-opening encounter occurred during law school when I participated in a intra-school "moot court" competition (think debate team for lawyers in training).  My female teammate and I burned through our competition during the early rounds and suddenly found ourselves, unexpectedly, in the semi-finals. 

Our opponents, two men, were friends of mine.  They were also very good oralists and were taking the competition very seriously. The panel of judges were actually "real" judges, who volunteered their Saturday afternoon to attend the event, fire questions during our arguments, critique the speakers, and, in the end, declare the winners.  Our panel included two male and one female state court judges.  The men ranked significantly higher than the woman in the judicial hierarchy.

Our opponents went first and, without a doubt, were outstanding.  Then, it was our turn.  We gave an equally outstanding performance.  I was thrilled.  My family had come to watch and I was so proud to have made what I knew was a finalist-worthy argument.  I was excited to hear the critique of the judges but, honestly, did not particularly care whether we advanced or not. 

The satisfaction of performing at my best was satisfaction enough.

The judges gave our adversaries their critiques first.  As is the norm, they included both good and bad points.  Hearing the comments, I knew we were going to be declared the winners--all of the points where they had done poorly, we had performed at a top level. 

Finally, it was our turn and my teammate and I walked to the podium to hear from the judges. There was a true audience in attendance, too.  The family and friends of each of the four participants, as well as participants who had been knocked out in earlier rounds, and the hosts and volunteers running the event were seated in the auditorium style seats behind us.  I was beaming with pride.

The male judges spoke first. Each of their points were right on target.  They'd caught us when we'd struggled for answers or tried to evade their questions.  They commented on our demeanors and our use of eye contact. 

The female judge was the last to speak.  She began with my partner and then turned her comments to me.  She made a few, half-hearted introductory points, like, "Overall, your presentation was very competent."  Then the niceties were over.  She glared at me, looking over the rim of her eyeglasses, which sat perched at the end of her nose.  And, without emotion, she announced that we would not be proceeding to the final round. 

Without hesitation, she declared that she had voted for our opponents because I had not worn a skirt. 

A skirt. 

That's right.  I had worn a pants suit to the argument.  For no reason other than, at the time, it was the nicest suit I owned.  The one skirt suit I had was fairly worn and I wanted to make sure that I presented the best appearance possible. 

She explained in an almost angry tone that, if this was the real United States Supreme Court (instead of the mock trial version), would I have really shown up in pants?  She almost shuddered in disgust when she finished the sentence.  

Clearly, she went on, I had not taken this competition seriously.  It was a flagrant act of disrespect for me to make the fashion choice that I had made so flippantly. 

She continued on about the trials that the women before me had been forced to endure so that I could even attend law school today or have any shot at success in my chosen profession. She continued on. 

But, by that point, I was no longer listening.  I was fuming.  It took every ounce of self-control I could muster not to react.  I wanted to cry over the sheer humiliation I felt as she berated me in front of my mother, my father, and an entire room full of strangers.  More than that, though, I wanted to tell her that it was women like her that would force my daughters and granddaughters to continue to fight for true equality in the workplace.  Not the two men who sat beside her--they had been courteous and genuine when they spoke.  It was clear that they believed in each of the participants and felt a kind of true joy to see what would develop into the next generation of lawyers.

It was her, the only woman on the panel, and women like her, that the future generations had to worry about.

And what about now?  Now do I wear a skirt suit or a pants suit when I go before the Court?  I'll be honest and say that it is something I consider each and every time.

Friday Funnies: Go ahead and laugh, it's good for you

Posted by Molly DiBiancaOn June 6, 2008In: Just for Fun

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Ask any self-respecting Human Resources professional and they'll agree--rewards are a necessary part of satisfying work.  In fact, many believe that laughter is an important component of good health.  This becomes especially important on Fridays, when most American workers start the 5:00 countdown.


Here are 10 Tips for Hard Working by George Costanza, from FunBlog:

Never walk down the hall without a document in your hands.

People with documents in their hands look like hardworking employees heading for important meetings. People with nothing in Laughing men at worktheir hands look like they’re heading for the cafeteria. People with a newspaper in their hand look like they’re heading for the toilet. Above all, make sure you carry loads of stuff home with you at night, thus generating the false impression that you work longer hours than you do.

Use computers to look busy.

Any time you use a computer, it looks like “work” to the casual observer. You can send and receive personal e-mail, calculate your finances and generally have a blast without doing anything remotely related to work. These aren’t exactly the societal benefits that the proponents of the computer revolution would like to talk about but they’re not bad either. When you get caught by your boss -and you *will* get caught - your best defense is to claim you’re teaching yourself to use new software, thus saving valuable training dollars.

Messy desk.

Top management can get away with a clean desk. For the rest of us, it looks like you’re not working hard enough. Build huge piles of documents around your workspace. To the observer, last year’s work looks the same as today’s work; it’s volume that counts. Pile them high and wide. If you know somebody is coming to your cubicle, bury the document you’ll need halfway down in an existing stack and rummage for it when he/she arrives.

Voice Mail.

Never answer your phone if you have voice mail. People don’t call you just because they want to give you something for nothing - they call because they want YOU to do work for THEM. That’s no way to live. Screen all your calls through voice mail. If somebody leaves a voice mail message for you and it sounds like impending work, respond during lunch hour when you know they’re not there - it looks like you’re hardworking and conscientious even though you’re being a devious weasel. If you diligently employ the method of screening incoming calls and then returning calls when nobody is there, this will greatly increase the odds that the caller will give up or look for a solution that doesn’t involve you. The sweetest voice mail message you can ever hear is: “Ignore my last message. I took care of it”. If your voice mailbox has a limit on the number of messages it can hold, make sure you reach that limit frequently. One way to do that is to never erase any incoming messages. If that takes too long, send yourself a few messages. Your callers will hear a recorded message that says, “Sorry, this mailbox is full” - a sure sign that you are a hardworking employee in high demand.

Looking Impatient and Annoyed.

According to George Costanza, one should also always try to look impatient and annoyed to give your bosses the impression that you are always busy.

Appear to Work Late.

Always leave the office late, especially when the boss is still around. You could read magazines and storybooks that you always wanted to read but have no time until late before leaving. Make sure you walk past the boss’ room on your way out. Send important emails at unearthly hours (e.g. 9:35pm, 7:05am, etc…) and during public holidays.

Creative Sighing for Effect.

Sigh loudly when there are many people around, giving the impression that you are very hard pressed.

Stacking Strategy.

It is not enough to pile lots of documents on the table. Put lots of books on the floor etc. . Can always borrow from library. Thick computer manuals are the best.

Build Vocabulary.

Read up on some computer magazines and pick out all the jargon and new products. Use it freely when in conversation with bosses. Remember: They don’t have to understand what you say, but you sure sound impressive.

MOST IMPORTANTLY: DON’T forward any of this to your boss by mistake!!!

Have a great weekend!


I Hate To Say "I Told You So"-The 4-Day Workweek Is a Hot Topic

Posted by Molly DiBiancaOn June 6, 2008In: Flextime, Newsworthy

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"The four-day workweek, with 10-hour workdays for the first four days of the week and a fifth day off, could become a popular option for the cost-conscious commuter."  In my post earlier this week, How the Current Economy Could Affect the Future of Flextime, I considered whether the price of fuel might push employers to be more permissive of alternative and flexible schedules.

Well, I hate to say "I told you so," so I'll say instead that, "Great minds think alike." There has been a flurry of similar speculations in the news all week. 


Ohio's Kent State University has already made the switch, permitting custodial employees to elect to work a four-day week.  And municipal governments across the country, from Hollywood, Florida, to the Webster Parish in Louisiana, to St. Lawrence County in N.Y. are considering making the change. 

The N.Y. Times reports that even school districts are moving to a shortened week to help cut fuel costs.

USA Today has the following to report:

In Alabama, the city of Birmingham decided to adopt a four-day week for employees starting July 1.

"We are doing it in an effort to help employees save some money on gasoline," says Deborah Vance, chief of staff to the mayor. "Offices and departments that deal directly with the public will maintain their five-day schedule."

On June 2, road crews in Walworth County in Wisconsin will start working four-day shifts. Shane Crawford, a deputy administrator, said his county experimented with four-day workweeks last summer. Crews spent less time on the road driving to and from work sites, reducing fuel and overtime costs.

Starting June 1, Avondale, Ariz., will move to a four-day workweek at City Hall. That eliminates one day of commuting for about 150 employees. Claudia Whitehead, the town's economic development director, who says her monthly gas costs were starting to rival her car payments, spends about two hours a day commuting. "It'll have a real positive impact," she says.

Among businesses, 26% are offering a flexible schedule to help employees with high gas prices, a May survey by the Society for Human Resource Management (SHRM) found. And nearly half of professionals say higher gas prices have affected their commutes, according to a recent survey by Robert Half International, up from 34% two years ago in a similar survey.

Some employers that can manage it are moving to shut down for one day. For one day a week, vehicles used for work can sit idle, or air conditioning can be kept off.

Not Everyone Is Fired Up About Smoking Ban

Posted by Molly DiBiancaOn June 6, 2008In: Off-Duty Conduct

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Employers who ban smoking in the workplace are commonplace today.  Weyco's ban on employee smoking was the first of many headlines.  In 2006, Scotts Lawn Care's termination of an employee who tested positive for nicotine landed the company not only in the news but also in court when the employee filed suit.  Despite the increasing number of employers adopting anti-smoking policies, they're not so popular with everyone.

 smoking ban

The UAW in particular, is not the biggest fan of smoking bans for its union members.  Effective the first day of June, Caterpillar banned smoking at all of its US facilities.  The United Autoworkers filed a complaint with the NLRB alleging that workers' right to smoke is subject to mandatory bargaining, subject to the sixty-year old bargaining agreement. 


Workplace Prof Blog asks the question that hasn't yet been answered in the world of labor relations:  Does the "right to smoke" at work affect the terms and conditions of employment so that it should be considered a mandatory subject of collective bargaining.


Delaware Employment Law Letter Editors on the Road

Posted by William W. BowserOn June 5, 2008In: Delaware Specific, YCST

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Delaware Employment Law Letter editors, William Bowser, Scott Holt, and Adria Martinelli are in beautiful Charleston, SC representing Young Conaway at the annual meeting of the Employers Counsel Network. The ECN is comprised of top employment law firms for all 50 states and Canada.

ECN membership ensures that Young Conaway is able to provide the highest level of service in jurisdictions beyond Delaware. A list of ECN firms is available here.

One particularly interesting presentation at the meeting was made by Lillian Romano of VisuaLex, LLC, who spoke about the use of technology in the courtroom. Proper use of technology to communicate to jurors is essential to trial success. Lillian's tips and tricks were very helpful.

Supervisor Costs Tavern on the Green $2.2m in EEOC Suit

Posted by Molly DiBiancaOn June 4, 2008In: Cases of Note, EEOC Suits & Settlements, Harassment, Other (Title VII), Harassment, Sexual, Race (Title VII)

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The Equal Employment Opportunity Commission (EEOC) can add another major victory to the scorebooks.   Earlier this week, the Commission settled a discrimination lawsuit for $2.2 million.  The actions at issue are said to trace back to a supervisor who is no longer with the restaurant.  This should be a wake-up call for employers who don't provide employment-law training to supervisors, helping to prevent and eliminate discrimination and harassment in the workplace. 

tavern on the green

Tavern on the Green

The hottest headline for EEOC settlements right now is the agreement reached with the legendary N.Y.C. landmark restaurant, Tavern on the Green. Earlier this week, the New York Times reported that the restaurant, located in Central Park, had agreed to pay $2.2 million to settle a sexual-harassment claim filed by the EEOC last September.

Tavern on the Green is a destination for many Big Apple visitors with discriminating tastes, as well as a regular dinner spot for the who's who of New York's social scene.  The restaurant opened in 1934 and, in the 50+ years since, has become the "highest-grossing independently owned restaurant in the United States with annual revenues in excess of $34 million and over half a million visitors a year."

The Allegations Were Many

The suit alleged a whole host of claims including discrimination, harassment, and retaliation.  The alleged harassment was said to include groping female staff members, the regular use of graphic sexual comments, and demands for sexual favors.

The discrimination allegations involved Hispanic employees, who were allegedly ridiculed and name-calling.  Black employees were alleged to have received similarly hostile treatment. 

As could be expected, the iconic restaurant denied any wrongdoing as part of the settlement. Representatives also claimed that the target of the suit, the managers accused of engaging in severe and pervasive harassment, separated from the restaurant several years ago.

The conduct is said to have stemmed primarily from one long-time manager who has since left the restaurant's employment. 

Take Away

What can employers learn from this case?

Well, for one, even the giant can fall.  The Tavern is legendary--a Goliath in a city of Goliaths.  After nearly 75 very successful years in operation, even the Tavern was not immune from the EEOC's watchful eyes. 

But there's another lesson to be learned here.  The idea that just one supervisor, if left unchecked, can cost your business a lot--a lot of money, a lot of time, and a lot of bad publicity.  Had this supervisor been trained in employment laws, would he have chosen not to engage in such conduct?  Likely not.  But perhaps others would have recognized the serious repercussions of his conduct and put a stop to it before it turned into major liability.

This case is a very good advertisement for harassment and discrimination training for managers.  By setting ground rules for managers to enforce and to follow, employers can take action in preventing this type of detrimental lawsuit.

N.Y. Times: Tavern on the Green to Pay $2.2 Million to Settle Harassment Claim

Work After Cancer: How to Help Employees Transition Back to the Workplace

Posted by William W. BowserOn June 2, 2008In:

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Employers have asked, "How can I help an employee who is returning to work after fighting cancer?"  Most employers know that serious medical conditions and the workplace can make for a dangerous mix but still want to do whatever they can to support their employees during this difficult time.

american cancern society

The American Cancer Society reports that most employees with cancer will return to the workplace during or after their treatment. An article in the New York Times provide some excellent advice on successfully transitioning back to the workplace:  Some suggestions include:

  1. Employees should ease back to work. They might just not be physically able to return full time.  Return to work should be seen as a "process" rather than a "day." 
  2. Communication is key. Open communication will enable a supervisor to hold back less critical assignments while an employee's strength returns.
  3. Keep Co-Workers Involved.  Many co-workers will be concerned about an employee fighting cancer. Concern is good, distraction is not. The article suggests that employees consider using online services to update co-workers about treatment progress so that they are aware of appearance changes and have reasonable expectations about the situation.
  4. Shutdown Uncomfortable Conversations.  One of the most common complaints of cancer survivors is co-workers telling stories about relatives who have or had cancer.  While these employees mean no harm, their stories usually are the last thing a survivor wants to hear.  The article suggests that they tell employees that they are sorry about the relative but their situation is different and they feel good.

N.Y. Times article: Continuing to Heal After Returning to Work.

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Posted by Molly DiBiancaOn June 2, 2008In: Electronic Monitoring, Newsworthy, Privacy Rights of Employees

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Can I read my employees' e-mails? Labor and employment attorneys get this question often. It's not as common, though, that the possible cyber-sleuth is a co-worker rather than a member of management. Recent drama at the news desk of Philadelphia's CBS 3 fits this unusual profile. 


The First of the Fallen Anchors

Long-time CBS news anchor, Larry Mendte, is under federal investigation.  He is suspected of reading the e-mails of former co-anchor, Alycia Lane.  After Lane was involved in several scandals of her own, her employment contract was terminated after she allegedly assaulted a plain-clothes police officer in New York City, and using a homophobic slur. See my earlier post, Bad Boys, Bad Boys, Whatcha’ Gonna Do When They Work for You?, for more details on the Alycia Lane scandal.

The Cyber-Scandal Spreads

And now attention has been turned to Lane's former colleague, Larry Mendte.  Late last week, Mendte and CBS News learned that he was being being investigated for snooping through Lane's e-mail.  Reading others' e-mails without permission or privilege is a federal crime.  (Last week we discussed Delaware's state law, which requires employers to provide written notice of their intent to monitor employees' e-mails.  See Employers' Policies on Technology in the Workplace).

Mendte's home computer was seized by the FBI as part of the probate.  CBS 3 issued the following statement yesterday:

Late last week, CBS 3 became aware of an investigation by the U.S. Attorney's Office regarding anchor Larry Mendte. CBS 3 is cooperating fully with that office in this matter. Mr. Mendte will not be on CBS 3's broadcasts pending further investigation.

While the investigation is ongoing, Mendte has been dethroned. It doesn't seem so positive.  Mendte's lawyer said yesterday, "We hope to work together with CBS 3 to reach a mutually agreeable resolution as to his status." 

That does not sound good.

Get Consent to Monitor Employees' E-Mails or Risk a Mendte-Style Result

Let this be a word of warning to any employer who may be inclined to search their employees' e-mails without complying with state and federal notice requirements.  Cyber-sleuthing has serious consequences.

And if you learn that another employee has been snooping through a co-workers electronic data, including e-mails, act quickly and seriously.  Take a page from CBS 3 and consider suspending the employee until your investigation is complete.

How the Current Economy Could Affect the Future of Flextime

Posted by Molly DiBiancaOn June 2, 2008In: Alternative Work Schedules, Flextime, Women In (and Out of) the Workplace

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Flexible work schedules (aka "alternative work schedules" or "flextime schedules") enable employees to work at varying times instead of the typical 9 to 5, 8-hour workday. This arrangement became popular as more career-women found they need some flexibility to deal with the hectic schedules of their families.  Not inclined to forego either, they forged the frontier of alternative schedules.  The future of flextime remains unclear.

gas prices arm leg both

A few days ago, my colleague, Adria Martinelli, posted on the results of a recent survey (New Employer & Workplace Study on Flexible Schedules), which indicate the decline of flexible work schedules.  The survey reflects statistics from the last 10 years and reflects employers of various sizes located across the country. 

Adria raised an excellent point--is the decline in alternative schedules linked to the sinking economy?  Certainly, one can imagine that, right or wrong, some employers may believe that it is more costly to employ workers on a flextime program. 

Historically, there has been a common theory that it was not profitable to use this model because of the cost of overhead per employee.  In other words, every employee, regardless of whether they work 60 or 28 hours per week still needs an office or workstation and are still entitled to benefits such as health care and employer-sponsored savings plans.  It was thought that the administrative costs incurred in running the business remained flat while the bottom line earnings of the company could decrease as more employees worked less time.

But what if the troubled economic times actually caused an increase in flextime or alternative working schedules?  As the cost of gasoline has risen, so has the cost of living.  The American workforce has had to become more and more cautious about their expenditures, some employees even taking second jobs to stay afloat in the rocky financial waters.

To cut the costs associated with the daily commute, employees have started carpooling, taking public transportation, and increasingly turned to more gas-efficient cars instead of the beloved SUV.  But what if these measures are not enough?  How many more alternatives can there really be for employees overwhelmed by the cost of fuel?

One idea that may surface in the not-so-distant future is an alternative work schedule.  A four-day workweek, where workers pack 10-hour workdays into the first four days of the week and have the fifth day off, could become a popular option for the cost-conscious commuter.

In that case, a flextime schedule would save travel time (as much as 2 hours a week for many employees who drive into a city from the suburbs), gas money, and would give them an opportunity to work on that "work-life balance" they've heard so much about. 

New Leave Laws Sweep State Legislatures

Posted by Molly DiBiancaOn June 1, 2008In: Leaves of Absence, Legislative Update

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Federal employment laws often track state-law trends. And, across the country, proposals for paid and unpaid leave have become frequent visitors in state legislatures.  Employers should be aware of these proposals, even if your state hasn't yet been affected.  Are these new laws a sign of what's to come?


New Jersey Paid Family Leave

In April 2008, New Jersey became the third state in the nation to enact paid gavelfamily leave legislation. The new law, which goes into effect in January 2009, will extend the State's existing temporary disability insurance (TDI) system to provide workers with family leave benefits to care for sick family members or newborn or newly adopted children. The legislation will provide 6 weeks of TDI benefits (two-thirds wage replacement up to maximum of $524 in 2008) for a worker taking leave.  Employees will be subject to an additional payroll deduction to finance the leave.  Workers will be able to take paid leave beginning in July 2009.

Paid Sick Leave In California

On Thursday, May 29, 2008, the California approved a bill that, if successful, would require that state's employers to provide paid sick days.  California would be the first state in the country to mandate paid sick time. 

Who Is Covered?

As drafted, the law would require businesses with more than 10 employees to provide at least 9 days of paid leave.  Businesses with 10 or fewer employees would be required to provide 5 days of paid time off.

An employee would become eligible for leave after 90 days of employment.  Every employee who works in the State for at least 7 days during the calendar year would qualify.

The sick days could be used for personal illness, the illness of a family member, or to recover from domestic violence or sexual assault.

What Are Employers Required to Do?

In addition to providing the paid leave, employers would have to comply with posting, notice and recordkeeping requirements.  And failure to do so could result in state enforcement through the Department of Industrial Relations, but could also serve as the basis for a civil suit.

One thing the law would not require employers to do is to pay employees for accrued but unused time off at the time of separation. 

The bill went to the state Senate on Friday.  Governor Schwarzenegger has not indicated his position on the proposed law.

Domestic Violence Leave in Washington


Effective April 1, 2008, all Washington employers, regardless of size, must provide "reasonable leave" for victims of domestic violence, sexual assault and stalking. 

Who Is Covered?

Eligible employees include victims of domestic violence, sexual assault or stalking.  The law also protects the employee's family members, which is defined by the statute and includes someone with whom the employee has a "dating relationship." 

The leave may be taken for the purpose of participating in legal proceedings, to receive medical treatment and mental health counseling, or obtain support from social services programs. Family members can take leave to help the employee secure help or safety. 

What Must Employers do to Comply?

The law requires employers to provide unpaid job-protected leave, including intermittent leave.  As with the Family Medical Leave Act (FMLA), upon return to work, the employee must be restored to his prior position or its equivalent.  Health insurance coverage must be maintained during the absence, as well.  The statute also contains an anti-retaliation provision.

There are also notice and verification laws very similar to those contained in the FMLA.  The employee must provide notice to the employer no later than the end of the first day of leave.  And employers may require timely verification in the form of a police report, court document, or a statement from a victim's support group, an attorney, clergy, or medical professional.  The statement may also come from the employee directly.  The law requires that the confidentiality of this information be preserved.


The Paid Family Leave Collaborative maintains a website with detailed coverage updating the movement for various types of paid and unpaid leave across the country.