July 2008 Archives

Immigration Update: H-2B Visa Applications

Posted by Teresa A. CheekOn July 30, 2008In: Immigration

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Do the immigration laws governing H-2B category visas need to be reformed? The U.S. Chamber of Commerce says, "yes."  USCIS logo According to the Chamber, H-2B workers are employed mostly in landscaping, seasonal hospitality, and seasonal construction businesses, as well as in manufacturing, food packaging and processing, fisheries, and retail.

The United States Citizenship and Immigration Service (USCIS) announced today that yesterday was the “final receipt date” for applications for new H-2B worker petitions for work start dates before April 1, 2009. H-2B visas are for non-agricultural temporary and seasonal workers. Such workers need not possess any special skills.

Congress imposed a cap of 33,000 workers on the number of petitions that may be granted for the first half of 2009. The USCIS will make a random selection from among the petitions that are subject to the cap that were received before July 29, 2008, and will reject all new applications for workers with requested start dates before April 1, 2009. Petitions that are not among those randomly selected will be returned and the associated fees will be refunded.

The cap has been met for the last two years in a row, which the Chamber says is an indication that the current immigration law needs reform. The cap has not been increased since the law creating the H-2B visa category was enacted in 1990.

Promises to Working Women in the U.S. from a Presidential Hopeful

Posted by Adria B. MartinelliOn July 30, 2008In: Leaves of Absence, Newsworthy, Women In (and Out of) the Workplace

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Working families, especially women who work outside the home, want to know what the presidential candidates have on their respective agendas that will affect the workplace.  Barack Obama has begun to address some of the employment-related portions of his campaign platform.

On July 28, 2008, Barack Obama unveiled the blueprint for his Plan to Support Working Women and Families. In it, Barack promises many changes to improve the lives of working women in America – among them include:

  • Expand FMLA coverage to cover employers with 25 or more employees (currently it only covers employers with 50 or more employees) and to cover additional purposes including participation in children’s school-related activities
  • Encourage states to adopt paid leave with fund to assist states with start-up costs
  • Protect against caregiver discrimination by enforcing the recently enacted guidelines on Caregiver Discrimination
  • Expand flexible work arrangements with the federal government leading by example on flexible work arrangements and telecommuting.

If Barack wins the presidency, it will be interesting to see how many of these agenda items he follows through with. Obviously, it could mean big changes for American employers. Stay tuned!

Job Seeking Skills: What NOT to Write In a Resume

Posted by Molly DiBiancaOn July 30, 2008In: Hiring, Just for Fun

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Anyone involved in hiring knows that there are some candidates who just don't seem to get it.  There are the applicants who "fluff" their resumes to the point of fantasy.  There are the candidates who ask totally inappropriate questions, or give positively unimaginable answers, during an interview.  And there are the ones who submit resumes that are so outlandish that you have to bite your hand to refrain from sending a copy to every person in the office. 

But now, thanks to Robert Half International's website, Resumania.com, you don't have to share the candidate's resume with the office.  Everyone can get a laugh that's not on the expense of the potential co-worker.

On the site, the global recruiting agency shares some of the best worst lines from resumes, accompanied by a little cartoon businessman who provides witty commentary.  Here are just a few from the site:Favourites

Resume Section:  SKILLS

Applicant's Statement:  Committed to meeting deadline

Commentary:  Just one?



FavouritesResume Section:  HOBBIES

Applicant's Statement:  Sit on my computer for hours

Commentary:  That must be uncomfortable


FavouritesResume Section: SKILLS

Applicant's Statement: Eager to learn innate abilities

Commentary:  That might be difficult


FavouritesResume Section:  COVER LETTER

Applicant's Statement: I would appreciate the opportunity to review my qualifications

Commentary:  Go right ahead


FavouritesResume Section:  OBJECTIVE

Applicant's Statement: To obtain a position that will allow me to utilize my strengths and reinforce my weaknesses

Commentary:  Are you sure that's a good idea?

Three Days of the Bar Exam and the Next Great Wellness Benefit

Posted by Molly DiBiancaOn July 30, 2008In: Just for Fun, Wellness, Health, and Safety

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Workplace wellness benefits are almost as common as retirement-plan benefits or life-insurance benefits.  I have a suggestion that I'd like to make regarding a potential addition to the wellness package offered by employers.  But before I make the suggestion, let me explain the circumstances that led to the idea.

I've spent three days proctoring the state bar exam, watching as a class of hopeful attorneys-to-be stagger down the halls.  Some have the blank stare frequently associated with zombies risen from the grave.  Others are in a cold sweat, hands trembling, tugging the jacket sleeve of another proctor in a panic because she doesn't know to what room she's been assigned.  The scene is one of quiet hysteria.  

For those of you lucky enough to not know much about the bar examination process, either personally or vicariously through a loved one's experience, let me set the stage.  Law students finish their third year of law school and, within days of graduation (if not sooner), begin what is known as the "bar review."  For two months, they make the daily trek into the nearest city to watch videos and receive lectures about a predetermined list of topics.  They may have studied these topics in their first, second, or third year of school--or not at all. 

When the day's lecture is over, the entire class marches en masse back out to the parking lot and return home--where they are encouraged to study for several more hours.  In the morning, everyone discusses how many practice questions they did the night before, how terrible they scored, and how certain they are that failure is inevitable.

The two-month ordeal is rooted in terror.  Three years of school while your college friends went on to the "real world" where they worked "real jobs" and earned very real paychecks, while you incurred three more years of very real school-loan debt. Then, suddenly, the moment that everyone has avoided for three years arrives--the bar exam. 

Should you somehow fail, which you are convinced you will certainly do, how will you earn a living?  How could you face your friends and family, nevertheless your new colleagues who expect that, surely, you will pass.  For those with enough determination to attempt a state bar exam like California, Delaware, or New York, where the pass rate usually grazes 50% of takers, these fears are at least statistically supportable. 

By the time this week finally arrives, the exam takers look, well, strung out.  They have the eyes of a crazy person and the wavering voice signaling instability.  They are just short of crossing over the line into unrecognizable despair but still clawing desperately to maintain clarity of thought long enough to write the dreaded essays.  In all, it's more than a little creepy. 

Some of the same creepiness pops up in the post-bar "real world."  Occasionally, you'll catch a glimmer of the creepiness in the eye of a colleague or adversary who, undoubtedly, has been working on a case for more consecutive days than he can recall.  He's been sleeping in 2-hour blocks on the couch in a partner's office.  But he continues to push onward, likely driven by a deeply rooted sense of terror similar to the emotions he felt during the bar exam. 

If you've ever seen the look, you know exactly what I mean. 

Now, let me try to connect this to my wellness suggestion.  I propose that businesses offer their employees . . . [drum roll, please]. . . a nap.  That's right, a nap.  Looking out at the sea of students-turned-zombies as they burn through massive amounts of Number 2 pencils, I can say with confidence that there are just times when a nap would be more appreciated than a coupon redeemable for cholesterol screening or a rebate on an annual gym membership. 

The cost is, well, nothing.  I suppose if you wanted to put a little glamour into it, you could build a "nap room" with a simple mattress, a few fluffy pillows and no windows or clocks.  Otherwise, those with offices could simply shut their door, put their head on their desks and zonk out without worry.  For anyone who recruits students before, during, or after the bar examination, you should give this a try.  Mention the nap idea and see what kind of changes you see in the candidate's expression.  I bet the creepiness disappears almost immediately.

For those employers who may need a bit more convincing, here's a video about the serious consequences faced by employees who aren't permitted to nap safely at work:

Legal Update: New I-9 Form . . . Oh, Never Mind

Posted by Molly DiBiancaOn July 28, 2008In: Hiring, Immigration

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The U.S. Citizenship and Immigration Services ("USCIS") released the new I-9 form in the end of June.  There weren't any changes to the form other than the expiration date.  Why bother, you ask?  Good question.  Initially, the Paperwork Reduction Act required it.  Under the Act, all government forms must carry an expiration date.  And the I-9 expired on June 30, 2008. 

But then, last week, it was announced that the "new" form was being retracted.  So, in case you are now twice as confused, here's the bottom line:  Any I-9 form with a publication date of 06/05/07 or later is acceptable.  Even if the expiration date has passed.  In other words, the expiration dates don't matter (for now, anyway).  But the publication date does. 

You can download the

You can also download it from the USCIS website (uscis.gov). 

The USCIS site also provides an I-9 form in Spanish.

Now, hang in there, this may be a little tricky.  Despite having it linked from its website, the USCIS will not accept the Spanish version. (Unless you live in Puerto Rico). Why bother posting it on the site, you ask?  Again, good question.  The idea is that you can provide any Spanish-speaking employees with the Spanish version of the form for their reference.  But the English version needs to be the one the employer actually retains.

Whew!  Good thing the Paperwork Reduction Act is here to help. 

I Didn't Want to Talk to You, Anyway.

Posted by Molly DiBiancaOn July 28, 2008In: Internet Resources

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Your Gen Y employees will love this--and so will the rest of us.  Gen Y has a notorious aversion to face-to-face interaction. I suppose it's natural, given the role that Instant Messaging and E-mail have played.  And from what I can tell, the phone is the worst.  Don't get me wrong, they'll call their friends and talk for days.  In the workplace, e-mail is the preferred choice and telephone correspondence seems to be a real inconvenience.  Especially if, and I shudder to say it, someone actually picked up when you called.  Horror!  Well now there's a solution for this serious problem.

SMS text marketing

SlyDial lets you call a mobile phone and go directly to voicemail. You'll never again have to worry that a voice on the other end of the line might pick up and expect you to talk.  It's a remarkably easy tool to use.  The only down side is the long-distance call you're required to make. 

Your stealth voicemail is just two steps away:

1. Call Slydial (267-Sly-Dial or 267-759-3425).

2. When prompted, enter the phone number where you want to leave your message.  Remember, it works for mobile lines only.

Two Recent Diversity Initiatives: One Carrot and One Stick

Posted by Molly DiBiancaOn July 28, 2008In: Diversity

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Corporations normally employ both in-house and outside counsel to handle its legal matters.  In recent years, many global companies have begun paying closer attention to j0438842the diverse makeup of the outside firms they hire.  The [logical] thought being that, if the company is going to put an emphasis on a diverse workplace, why shouldn't it hold their contractors to the same standards?  Wal-Mart and Microsoft have recently announced plans to improve diversity in very proactive ways taking very different approaches.  One could say they represent the carrot-and-the-stick approach. 


Microsoft's Carrot

Microsoft's recently announced diversity initiative is the "carrot" approach--designed to reward firms that comply with its requests.  The plan is to award bonuses to outside counsel based on their inclusion of minority and women attorneys.  The plan will apply to the company's 17 "Premier Preferred Provider" law firms, which are said to receive about $150 million a year in fees.

Wal-Mart's Stick

Wal-Mart, the country's largest private-sector employer, has deployed new proprietary software to monitor the diversity in the law firms it hires.  The software will monitor whether the attorneys hired as outside counsel to work on Wal-Mart matters are diverse. Firms that fail to meet the ongoing criteria will be dropped as counsel.

Video Series: What Is a Feed Reader? And why do I care?

Posted by Molly DiBiancaOn July 27, 2008In: Internet Resources

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This is the first video in our new video series, "Making the Most of the Blogosphere."  The first video, called "What Is a Feed Reader?  And why do I care?" is an overview of an absolutely necessary tool for anyone interested in getting the biggest bang for their buck when it comes to surfing the blogosphere.  In the next video, you'll learn how to set up a reader, which you'll surely want to do after watching this video.

Video Series: Making the Best of the Blogosphere

Posted by Molly DiBiancaOn July 27, 2008In: Internet Resources

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I was surprised to learn how many of my friends and colleagues read blogs but don't use a feed reader.  A feed reader is a must!  It's the only way to keep up with lots of blogs without spending all of your time searching the web.  So, to solve that problem, we've made a series of short videos on everything you need to know about what feed readers are, why you want one, and how to set it up. 

The first video, "What Is a Feed Reader" is a 5-minute overview of the basic concept behind a feed reader.  The second video shows you, step by step, exactly how to set up a reader using Google Reader.

Hopefully, these videos will help you maximize your blog-reading experience. 

Will Four-Day School Week Push the Four-Day Work Week Trend?

Posted by Molly DiBiancaOn July 26, 2008In: Alternative Work Schedules

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The four-day work week has been gaining popularity, especially in the public sector, where numerous cities and towns have begun to implement the idea.  Recently, Utah announced that it will be the first state with a mandatory 4-day week for all State government employees.  It now appears that governments are considering the trend, not just for state employment, but for education, as well.  clock

What's Fuel Got to Do With It?  A lot.

In an article titled, "Schools eye four-day week to cut fuel costs," Reuters reports that about 100 schools in 16 states have already moved to a four-day week.

The 4-day school week is lauded as a way to save money on transportation, heating, and cooling.  The program is popular especially in "rural school districts where buses may travel 100 miles round-trip each day, there certainly are transportation savings worth considering," said Marc Egan, the director of federal affairs at the National School Boards Association.   With the increasing cost of fuel, the supporters of the 4-day week claim that the cost-savings in fuel and energy will help schools avoid having to eliminate important school programs or cut jobs.

What Do Kids Have to Do With It?  At least something, I hope.

The cost-savings, of course, is a tempting prospect, especially at a time when schools everywhere have seen their budgets wither yearly.  But there isn't any solid evidence as to the impact the change would have on learning. 

One question that comes to mind is what impact this type of program would have on parents?  Although school districts' fuel costs might go down, families' day-care bills would likely go up.  For older students, it could also mean more time at home without supervision.  Would the costs simply be redistributed to families with young children who may be the least able to absorb the increase?

And there are other practical issues.  For example, what about sports and extra-curricular activities?  If kids will be in class until 5, will they attend practice and games until 9 or 10 pm?  And what about the length of the school day? Do we expect our children to suddenly develop longer attention spans?  Will schools need to add programs during the day to give kids' brains a break?  Or would that mean less time overall?  And, let's be honest.  Despite the popularity of the four-day work week, there are lots of adults who are not embarrassed to admit that a 10-hour workday is just too long.  Might children not feel the same?

What About Parents? 

Assuming, though, that this turns out to be a great idea for kids and for schools, I wonder whether it will be the kind of push that would get more private-sector employers to consider a shorter work week?  The four-day week could easily become the battle cry of parents facing the cost of another day of day care. Just look at the scuttlebut when Google raised the price of its day care plan offered to employees

July 29: Guns in the Workplace Webinar

Posted by Molly DiBiancaOn July 26, 2008In: Locally Speaking, Workplace Violence

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Lou Michels and Halima Horton of McGuire Woods will be presenting a free webinar about state gun laws that prohibit employers from outlawing firearms on company property--including employee-owned guns kept in personal vehicles.  This is a topic we've covered here a number of times and are likely to hear more about as incidents of workplace violence continue to occur across the country.  I'd encourage you to take advantage of this free, 1-hour program.  It is scheduled for July 29th at 12:30 EDT and you can register online.

For previous posts on Guns in the Workplace and Workplace Violence, see:

Georgia Takes One Step Backwards in the Fight Against Workplace Violence

Employee Shooting Results in Unusual Liability for Workplace Violence

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

Local Violence & Workplace Violence: Keeping It Safe

Gender Equality . . . In the number of unemployed

Posted by Molly DiBiancaOn July 26, 2008In: Women In (and Out of) the Workplace

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Women and men are leaving the workforce at an equal pace. A new study shows that there is no gender inequality in at least one area of today's workforce--how many are leaving it.  Men and women are leaving the workforce for the same economic reasons: job elimination; salary reduction; or lack of equivalent work.  j0409268

The gender differences appear after an employee leaves the workplace.  Women "stay home with the kids" but men are simply "unemployed."  Women are more inclined than men to say that they have dropped out of the workforce to run the household or stay home to raise children.

As reported by the N.Y. Times, in Women Are Now Equal as Victims of Poor Economy, if pushed from the workforce because of economic factors, women are less likely to return to work.  According to Lawrence Katz, a labor economist at Harvard, wage stagnation causes them to stay away.  The median pay for women in the 25-to-54 age group has fallen by 20 cents in the past three years, bringing women's pay in at just about $2.00 less than men. 

The industry most affected is manufacturing, a sector where women could earn good wages without the educational or professional backgrounds required for equal-paying jobs as knowledge workers.  But women who have been removed from the manufacturing industry--whether by choice or by market changes--will likely face difficulty if they try to return.  Technology advances have caused the manufacturing job segment to shrink, affecting both genders. And the pay has continued to decline.  Women may have to consider retraining to work in other sectors of the economy if they desire to return to to the workplace in the future.

Is Telecommuting a Reasonable Accommodation Under the ADA?

Posted by Molly DiBiancaOn July 25, 2008In: Alternative Work Schedules, Disabilities (ADA), Telecommuting

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With all the buzz about alternative work schedules, four-day work weeks, flextime, and the like, the following Q & A on telecommuting as a reasonable accommodation under the Americans With Disabilities Act ("ADA") might be relevant as these types of requests increase.

Is telecommuting a reasonable accommodation under the ADA?

Q: One of our employees has asked that we allow him to work from home as an accommodation for a medical condition. He does suffer from a medical condition covered by the ADA but are we required to allow him to work from home as a possible accommodation?kirk-telephone-lg

Your question involves certain "assumptions" that are relevant to our response. For example, you said the employee does in fact have a medical condition that qualifies as a "disability" under the ADA. Our response is based on that assumption being true.

Can telework be an accommodation under the ADA?  Telework — that is, allowing employees to work from home — may qualify as a reasonable accommodation under the ADA.  Although the law doesn't require you to offer telework to your employees, you may provide it as an accommodation if it's appropriate for this employee, regardless of whether other employees without disabilities have the opportunity to work from home.
Is telework appropriate in this case?  You and your employee should discuss the appropriateness of telecommuting as an accommodation.  Generally, that interactive process begins when the employee communicates that he has a condition requiring a change in the way he performs his job. It's important to note that he doesn't have to use words like "accommodation" or even "disability" for the ADA to come into play. He merely needs to provide information that gives you a reasonable basis for making further inquiries about necessary accommodations.

After the employee provides you with notice of his need for accommodation and telecommuting becomes an option, he needs to explain why telework is an accommodation that makes sense in his situation. During that discussion, you may request information about his medical condition, including documentation that substantiates his need for an accommodation.
Is it reasonable to allow telecommuting? The possibility of telecommuting is really no different from other accommodations. You should evaluate the employee's job and review all of its essential functions. If some of those functions can be performed from home, it may be reasonable to permit telecommuting as an accommodation. If none of the job functions can be successfully completed from home, then you are not obligated to allow the employee to telecommute.

Factors you might look at when making your decision include whether:

  • face-to-face interaction and coordination of work with other employees is essential;

  • in-person interaction with outside colleagues, clients, or customers is necessary; and

  • the job requires the employee to have immediate access to documents or other information that's located only at the workplace.

If the legitimate answer to these questions is "yes," telecommuting may not be appropriate as an accommodation.  But if elements of the job can be performed at home and don't require the type of interaction that occurs only in the workplace,  you should consider telework as a form of reasonable accommodation under the ADA.

Recent posts that may be similarly helpful include:

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

ADA 102: What Does the ADA Require

New Employer & Workplace Study on Flexible Schedules

Alternative Work Arrangement May Soon Become Mandatory

Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.

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

What the "Mismatch Problem" Means to HR

Posted by Molly DiBiancaOn July 24, 2008In: Hiring

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Recruiting and hiring is difficult.  In fact, it's so challenging that there exists an entire cottage industry to service HR professionals who are glad to outsource the process.  Regardless of whether it is done in-house, by an outside organization, or some mix of both, no one has quite figured out why it is such a formidable challenge.  Until now, some say. 


If you haven't heard of him already, Malcolm Gladwell is, quite likely, the smartest man alive.  Certainly in my personal opinion.  A journalist by trade, Gladwell began writing for the New Yorker magazine in 1996.  He's known, among other reasons, for his two books: "The Tipping Point: How Little Things Make a Big Difference," (2000) and "Blink: The Power of Thinking Without Thinking" (2005), both of which were number one New York Times bestsellers.  He was also named as one of Time's Most Influential People in 2005.  And that should come as no surprise to anyone who has read his powerfully insightful books.

At the New Yorker Conference in May of this year, Gladwell was the opening speaker, much to my delight.  He addressed the problem of hiring and why we just don't seem to be getting it right. Very broadly speaking, he theorizes that no interview process, no personality test, and no skills assessment will ever give us the insight or "human element" that must be present to choose the right candidate. 

This idea is based on research he conducted involving recruiting in professional sports.  He details the various ways in which recruiters test athletes to assess every micro-function.  He then describes the horrific inefficiency of that process.  The test results are unreliable and, generally, predictive of nothing. 

The only way to really know if the candidate is a true "match" for your organization, he says, is to bring the candidate in, sit him or her down at a desk or behind a register, or on the sales floor, whatever the case may be, and let them give it a shot.  It will matter far more how they perform during that test run than any personality test when it comes to picking the right hires for your business. 

Don't take my word for it, though.  You can watch Malcolm Gladwell's speech at the New Yorker Conference and see for yourself.  I think the premise is infallible, despite its tendency to fly directly contrary to all modern presumptions about recruitment and hiring.  Of course, I do happen to believe he's the smartest man alive, so that probably helps with credibility.  Check it out, it's a fascinating talk.

District of Delaware Rules In Favor of School District in Parents' FAPE Claim

Posted by Michael P. StaffordOn July 23, 2008In: Public Sector

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The United States District Court for the District of Delaware has found in favor of a local public school district in a special-education case brought under the Individuals with Disabilities Education Act (IDEA).  The conduct of the parents, said the Court, was a large part of the problem.

The parent involved in the case filed a due-process claim against the District in late 2006, alleging a number of procedural errors.  As a remedy, the parent sought a private placement at The Gow School at public expense. Therefore, the Delaware Department of Education was joined as an additional party to the proceeding.  In a decision issued on January 6, 2007, the administrative due process Hearing Panel found in favor of the District and the Department, and the parent appealed. 

On appeal, both the parent and the District filed motions for summary judgment.   The two key issues raised in the case centered on whether the District denied the student a free appropriate public education (FAPE) by (a) failing to have an IEP in place for the student on the first day of school and (b) failing to properly notice an IEP meeting.  The Court rejected both claims.  

First, the Court noted that "minor procedural violations do not constitute an IDEA violation."  And, "[w]hile the court does not recommend having a disabled child attend school without an IEP, it finds the week delay to be a minor procedural error.  Consequently, the absence of an IEP on the first day of school does not equate to a denial of a FAPE." 

Second, the Court held that the IEP meeting "was merely a continuation" of a prior IEP meeting and as such "no new notice was necessary." Therefore, because there was no denial of FAPE, the Court concluded that the District was not responsible for the costs of the parents' private school placement.

This decision highlights the fact that minor procedural errors do not automatically lead to liability for public school district's under the IDEA.  The case also illustrates the risks run by parents when they cease to participate in the collaborative IEP development process.  Here, the Court specifically noted that it was "convinced that an IEP could have been instituted for [student] after the September 11, 2006 meeting and that none was developed because of the conduct of [student's] mother."  

[Editor's Note:  As usual, the author's humility has led him to omit his role in the case as counsel for the District.  Congratulations to Michael Stafford for securing this important victory for the school district! md]

TV News Anchors' Soap Opera Has the Makings of a Made-for-TV Drama

Posted by Molly DiBiancaOn July 23, 2008In: Electronic Monitoring, Newsworthy, Off-Duty Conduct, Privacy Rights of Employees

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Employee-privacy rights.  Compensation-based jealousy.  Bitter co-workers.  Electronic monitoring.  Gender discrimination.  Clash of the Gen X and Baby-Boomers, even?  The continuing saga involving former news anchors Larry Mendte and Alycia Lane has all of the makings of an employment-law thriller. 

Larry Mendte and Alycia Lane

Last we checked in with the two former news anchors, KYW-TV announced its decision to terminate long-time host, Larry Mendte, following a federal investigation and raid of Mendte's home and office.  On Monday, July 21, the U.S. Attorney's office filed a federal criminal information charging Mendte with a single felony count of intentionally accessing a protected computer without authorization.  See the full Information here: 

The allegations, as detailed in meticulous fashion in the Information, are based on the government's claim that Mendte hacked into Layne's personal e-mail accounts and released the info he stole to the press and others.  The hacking is said to have gone on for a period of two years but, last quarter alone, is alleged to have tapped into her accounts approximately 537 times.  Lane's lawyer is reported so say that Mendte was jealous of his younger co-host, who garnered lots of attention and who made $100,000 more than him a year. 

That alleged jealousy could land Mendte with a jail sentence of up to six months.

The Acting U.S. Attorney Laurie Magid, explained the government's interest in the case.  "We live in an age in which many people exchange and share personal, sensitive information by e-mail every day."

This is a great lesson for employers.  Privacy rights are on the minds of employees everywhere.  It's an already-serious issue when employers monitor their employees' e-mail and internet use.  But add to that a potential threat from co-workers and privacy paranoia seems like a very realistic possibility.

For earlier episodes in the soap opera:

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

Pardon Me? Anchorwoman’s Cursing Caught on Live TV

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

If a BigLaw Law Firm Can Recruit Gen Y, So Can You

Posted by Molly DiBiancaOn July 22, 2008In: Generations: Boomers, Xers, and Millennials

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Employers are keenly aware of the difficulty in attracting and retaining Gen Y employees.  Employers are attending seminars, reading books, and turning to HR for help interpreting the real desires of the internet generation.  The general theory, right or wrong, has been that Gen Ys are not interested in a life-long career with a single employer.  They're not so into the idea of working the boring corporate work week--hence the additional push for a 4-day workweek, telecommuting, and other flex-time options

Gen Y (man)

But really, I think it's safe to say that most employers will admit that it's the communication barrier that's created the generational log-jam.  Businesses really want to recruit the all-stars of this mysterious generation.  But, doggone it, they just don't seem to know how.  If only the Gen Ys could speak Baby-Boomer for just long enough to explain what it is that they want!  Until today's management communicates in a way that Gen Y understands and can relate to, it's unlikely that the new workforce will be jumping at the chance to hash out their emotions with senior management over chai lattes at Starbucks any time soon.

But just when you think all hope is lost, that it simply cannot be accomplished, alas, a beacon of hope.  By way of  . . . a law firm?  Huh?

ABA Journal points its readers to the website of Halleland Lewis Nilan & Johnson, a Minneapolis law firm with a great Marketing Director and/or sense of humor.  When you visit the site, you're faced with a talking-head type interviewer--suit, tie, smirk, and all.  The talking head bobbles back and forth as if he were nodding but not listening to a word you say (c'mon, you've been there--we all have).  Next to it is aan online "game," the "Laywer Job Interview Translator,"  which allows you to select a question and get (1) the biglaw canned answer; (2) Halleland's translation of the meaning of the canned answer; and (3) Halleland's answer--had you asked them the question. 

Pretty clever, I'd say.

Now, the next time you try to make a pitch about "lightening up" as a way to attract Millenials to your workforce and you get a dirty look, just refer them to this site.  Then refer them to the ABA Journal, a national publication read by lawyers everywhere, which picked up the story and, undoubtedly, single-handedly altered Halleland's recruiting roadmap (or, at the very least, sped up the engine substantially). 

Who knew?  A law firm raises the "trendy" bar a little higher.  Gen Y attorneys-to-be will surely have this employer in their sights.

For earlier posts on how to recruit, hire, manage, and retain Gen Y:

How to Tap Into the Millennial Market – Part 1

How to Tap Into the Millennial Market—Part 2

How to Manage Your Millennial Asset–Part 3

How to Retain Your Millennial Asset — Part 4


Workplace Etiquette: How to Send a "Helpful Message" Anonymously

Posted by Molly DiBiancaOn July 22, 2008In: Just for Fun

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The woes of the workplace. Gossiping coworkers. Working next to the loudest talker in the office.  The smells of popcorn wafting through the office mid-afternoon the sicken everyone but the popcorn-popper himself. And don't forget fridge raiders--the worst of the worst office etiquette violations lurking around the kitchen waiting to pounce on the first brown bag she can find.  It's hell out there.  nicecritic

Maybe the worst part of the many slights we must endure from day to day, really, is the inability to fix it.  Many workers do not feel comfortable with the idea of confronting a coworker who, for example, has less-than-pleasant breath or who seems to have a never-ending parade of noisy "visitors" from other departments stopping in to "say hi." 

Web Worker Daily points out that NiceCritic.com is here to help.  The free internet service touts itself as "the anonymous way to send a helpful message."  These "helpful messages" include, for example:

It looks like it could be time for a haircut.

A breath mint may be beneficial today.

You seem to have over-applied your makeup today.

You just pick a category, then a specific thought, and NiceCritic.com will send the helpful message to your coworker anonymously. 

Maybe this should be called, "Passive Aggressive Anonymous."  It's a sad reflection on the state of the workplace and modern-day social skills (or lack thereof) when we have to resort to sending anonymous online messages.  Where are the days that open hostility would have been the obvious resort?  Ah, the modern workplace--a battlefield, indeed.

It's Hard to Write a Good Employee Performance Evaluation. Get Over It.

Posted by Molly DiBiancaOn July 20, 2008In: Performance Evaluations

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Employee performance reviews are hard, aren't they? Much fuss is made about them--by senior management, by HR, by Legal, and, of course, by the employee receiving the review. Get over it.  That's what separates managers from non-managers. 

Writing a performance review is a learned skill and requires a lot of practice to get even close to getting them "right."  Yet, many (or most) companies fail to provide training to supervisors on how to prepare an effective and legally compliant employee performance review.  If you're one of those companies, do yourself a favor and start that training now.  If you're a supervisor in one of those companies, here's the top 3 things you can do now to write a better performance evaluation. 


1.  Be [Painfully] Honest. 

Do not sugar-coat your comments.  Yes, it can hurt to give a less-than stellar performance review.  Too bad--it's your job.  And it's also in your own best interest.  Just ask any supervisor who's had to testify in a discrimination case brought by a former employee where the cross-examination went like this:

Q:  Mr. Jones, why did you terminate Mr. Smith?

A:  Because Mr. Smith was a terrible employee.

Q:  Can you give the jury some examples of the terrible conduct?

A:  Oh, sure.  He was always late.  He didn't get along with any of his co-0workers and was always causing disagreements in the office.  He was disrespectful and insubordinate, making inappropriate comments to me and other managers regularly. 

Q: Anything else?

A:  Yes, actually.  He had an overall terrible attitude.  He was not a team player.  He refused to help his coworkers.  Just overall hostile to everyone.

Q:  I'd like to move in Plaintiff's Exhibit 8, please.  Mr. Jones, can you please tell the Court what that document is that I've just entered into evidence?

A:  This is Mr. Smith's performance evaluation.  This was the last one I wrote for him--probably about 4 months before he was fired.

Q:  And what rating did you give Mr. Smith in this employee performance evaluation?

A:  "Satisfactory."

Q:  So, Mr. Jones, were you lying then or are you lying now?

2.  Use Your Big-Boy [or -Girl] Words

We know you've got some in that vocabulary of yours.  Otherwise, they wouldn't have made you a big-boy [or -girl] boss.  Well, this is the time to use them.  And we're not talking about big words, as in the number of letters.  We're talking about descriptive words.  Words that actually describe some action, attitude, incident, or conduct.

My second-grade English teacher prohibited the use of "very", "clearly", "nice" and "good."  Why?  Because they've lost meaning through overuse.  The same applies to you.  Heck, go crazy and grab that dust-covered thesaurus from your bookshelf (or just use an online thesaurus and save yourself the allergies). 

I'll even get you started with some examples:

Don't write:  Bob has good communication skills.

Do write:  Bob generated several well-written memos during the budgeting process that were particularly useful in guiding our assessment decisions. 

Or, write:  During planning meetings, Bob actively listens to his coworkers without disruption and, when appropriate, shares his position candidly but respectfully.


Don't write:  Jessica's sales numbers last quarter were very good.

Do write:  Last quarter, Jessica exceeded her projected sales by 18%.

Or write:  Jessica's sales have increased by at least 12% for the last 5 quarters--far exceeding the levels of sustained increased demonstrated by her colleagues.


Don't write:  Ron needs to improve his attention to detail.

Write:  Although Ron's work is submitted promptly, he seems to compromise accuracy for timeliness.  The finishing details of his projects, such as the final budget calculations, frequently contain errors.

Or write:  In an attempt to be as thorough as possible, Ron's reports often contain more data than is necessary.  This results in a cluttered presentation, which appears cluttered and disorganized.  Some additional attention given to the aesthetic of the report will prevent this problem. 


3.  Prove It.

That's right.  Don't just say it.  Back it up.  Give a specific example for each area you're asked to comment on.  Too difficult?  If you can't articulate a specific example, then don't write it.  If called on later to support the evaluation, it's a sure bet that you won't be able to produce any examples then.  So write it down now. 

It also gives you credibility with the employee.  Without examples, what makes you think the employee is going to believe you?  He thinks he is a great employee.  Do you think he'll change his mind with a comment like, "improve attention to detail"?  Doubtful.  On the other hand, if you spell it out with real examples, including how the employee's conduct impacted his co-workers, the team, or the organization as a whole, it's a lot more difficult to challenge the validity of the review. 

I know you're getting the hang of it now, so I'll give just one example. 

Instead of:  Jackie's attendance needs improvement. 

Try:  Jackie has been absent 8 times this quarter--far exceeding the 2 absences permitted by company policy.  More troubling is that, on 6 of the 8 occasions, Jackie called out of work just before her shift started.  These unplanned absences require her supervisor to find a substitute at the last minute.  Not only is this an inconvenience to her coworkers, but it often requires the company to pay the substitute at a premium hourly rate, which is an unnecessary and avoidable expense. 

Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.

Posted by Molly DiBiancaOn July 20, 2008In: Alternative Work Schedules

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The 4-day work week has been a hot topic for several months.  The idea of a compressed work week has become popular, in large part, because of the increasing cost of gasoline and the resulting impact on the price of employees' everyday commute.  Although various iterations of an alternative work schedule have been on the radar of the news media, it's not clear whether the idea is really gaining momentum with employers in the private sector.  Government employers, on the other hand, seem to have taken a real interest. 

utah green

The latest announcement from the public sector comes from the State of Utah, which has announced that it will impose a mandatory 4-day work week for most state workers.  The spin, though, is a bit unusual. As reported by the article in USA Today, "Most state workers shifting to 4-day work week," Governor Huntsman (R), announced the plan and explained that its purpose is "to reduce the state's carbon footprint, increase energy efficiency, improve customer service, and provide workers more flexibility."

Approximately 80% of state workers will be affected.  Public universities, state courts, prisons, and some services will be exempt from the mandatory change.  The State doesn't seem to be concerned about the availability of state services for residents.  Many state offices will remain open on Fridays and "more than 800 state services are available online."

Really?  All of that from an alternative work schedule?  And with no negative impacts on citizens?  Pretty impressive.  Maybe. 

Pardon my skepticism but I have some doubts.  After all, it didn't work for Ohio, which abandoned a 4-day workweek after several months due to the lack of available services to the State's residents.  And, although I suppose the Governor's claims may be accurate, I suspect his expectations may be somewhat overzealous. 

For example, I can't make the connection between improved customer service and a 4-day work week.  After all, as Ohio experienced, it's a real hassle when the government offices close down for an entire day every week, further limiting citizens' access to state services. 

And, as for the claim about online services, I'd suspect that this will be of little or no help to the state's poor who are largely without ready access to the internet and who also are the group with the greatest need for the state assistance.  I would not be at all surprised if the law would be able to withstand a constitutional challenge for violating the guarantee to equal access to governmental services. 

But don't get me wrong, it's not that I'm opposed to the idea of a 4-day work week.  It's just that I'm not so crazy about it being mandatory--especially not given the potentially negative consequences on the citizens with the greatest dependence on the availability of government services. 


FMLA 102: What Is a Serious Medical Condition?

Posted by Molly DiBiancaOn July 18, 2008In: Family Medical Leave, HR Summer School

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FMLA 102, part of the HR Summer School, Back-to-Basics Program, reviews the conditions that entitle an employee to take FMLA-qualified leave.  The Course Materials are attached for your reference. 

I. Generally

The Family and Medical Leave Act of 1993 (“FMLA”) was enacted primarily to balance the demands of the workplace with the needs of families. It entitles eligible employees of covered employers to take up to 12 weeks of unpaid leave per 12-month period for:

ª the birth, adoption, or assumption of foster care of a child;

ª caring for an eligible family member with a serious medical condition;

ª caring for their own serious medical condition.

In its simplest form, the FMLA requires covered employers to give leave to covered employees for up to 12-weeks per year under any of the above three conditions. Employers must not only permit the employee to take leave, but also cannot take any retaliatory action as a result of the leave or request for leave.


II. Childbirth, Adoption, and Foster Children


A. Childbirth

Both fathers and mothers of newborns are entitled to take FMLA leave for the birth of a child.

The mother may take leave for childbirth, prenatal care, and to care for the newborn. She also may take FMLA leave for morning sickness and other pregnancy-related conditions that amount to serious health conditions.

The father may take leave for his wife’s serious, pregnancy-related health condition and to care for his newborn child.

If both spouses work for the same employer, the 12-week maximum is calculated in the aggregate. They can split up the leave as they want , and it can overlap, but the total combined leave cannot exceed 12 weeks.

B. Pregnancy-Related

Pregnancy itself is not a serious health condition. But conditions related to pregnancy are automatically serious health conditions under the FMLA if they prevent an employee from doing her job.

The FMLA protects intermittent and long-term leave for:

ª prenatal care and doctor visits;

ª bed rest on a doctor’s or midwife’s orders;

ª morning sickness; and

ª the birth of the child.

If an employee experiences complications from her pregnancy that incapacitate her and amount to a serious health condition, she is eligible for FMLA leave on that basis.


C. Adoption and Foster Care

Employees may use FMLA leave before actually getting the child if they must miss work to attend appointments, such as attorney meetings and court appearances that are required for the placement. Leave may also be taken to pick up the child. Employees do not have to wait for the adoption to become final before taking leave—they are eligible when they first begin caring for the child.


III. Medically Related FMLA Leave

The FMLA allows an employee to take protected leave to care for his or her own serious health condition. it also allows provides for leave to care for certain family members who suffered from a serious health condition.

A. Covered Family Members

Not all “family members” are included for the purposes of the FMLA. Only a spouse, son or daughter, or parent are considered to fall within this definition. A son or daughter can include a biological, adopted, foster, or stepchild, legal ward, or child for whom the employee stands in placer of a apparent. Parents do not include parent-in-laws.

B. Serious Health Condition

One of the biggest, yet unanswered questions with respect to the FMLA is what exactly is a “serious health condition.” Although there is no comprehensive definition that seems to apply in all situations, it is best to think of whether the condition has a serious effect on the individual employee. There are five categories of illnesses, injuries, impairments, and conditions. If the condition fits into one of the five categories, then it is covered by the FMLA.

Inpatient Care: Conditions requiring an overnight stay in a health-care facility (such as a hospital or hospice), automatically qualify as serious medical conditions. FMLA covers the time in the facility and any subsequent period of incapacity or follow-up treatment in connection with the same condition.

Incapacitation for More than Three Days: Conditions that incapacitate the employee for more than three consecutive calendar days are considered serious provided that he or she is under the “continuous treatment” of a health-care provider. “Continuous treatment” can mean

ª Two or more treatments by a health-care provider within the period of incapacitation; or

ª One treatment by a health-care provider that results in a regiment of continuing treatment under the provider’s supervision.

Chronic Serious Health Conditions: These conditions incapacitate a person but don’t last more than three straight days. It requires periodic visits for treatment by a health-care provider and continues over an extended period of time. The employee need not visit a health-care provider for each absence. Examples of chronic conditions could include diabetes, asthma, and epilepsy. Treatment may include prescription medications. Treatment does not include actions that the employee can do without a visit to a health-care provider, such as taking over-the-counter medications, or bed rest.

Long-Term Incapacity: A period of incapacity that is permanent or long-term because of a condition for which treatment may not be effective. For example, Alzheimer’s, stroke, or terminal disease.

Treatment to Prevent Incapacitation or for Restorative Surgery: This category includes absences that are taken to receive multiple treatments by health-care providers for reconstructive surgery after an accident or injury or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days if left untreated. Chemotherapy and radiation treatments are examples.

Pregnancy Discrimination Act Includes Infertility Treatments

Posted by Adria B. MartinelliOn July 18, 2008In: Pregnancy (Title VII)

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Courts continue to expand what is protected under the Pregnancy Discrimination Act (PDA). The Third Circuit Court of Appeals, which covers Delaware, Pennsylvania, New Jersey, and the Virgin Islands, recently ruled that abortion is an activity protected by the PDA. Then, on Wednesday, the Seventh Circuit Court of Appeals ruled that in vitro fertilization (IVF) treatments were also covered under the Act.

The lower court had ruled that in vitro fertility treatments were not covered under the PDA on the ground that infertility affects both men and women. On July 16, the Appeals Court overturned that decision. The Appeals Court ruled that the plaintiff's in vitro fertilization — like many fertility treatments — was gender-specific because it was related to childbearing, which affects only women.
“Employees terminated for taking time off to undergo IVF — just like those terminated for taking time off to give birth or receive other pregnancy-related care — will always be women,” the ruling said.

Facts of the Case
The plaintiff took a leave of absence for IVF, a complicated procedure wherein eggs are extracted, fertilized and then surgically implanted in the womb.

She took one three-week leave of absence for the procedure and then applied for another three-week leave after learning that the first in vitro was unsuccessful. Meanwhile, the company had been reorganizing and decided to eliminate a sales secretary position: hers.

Her supervisor told her that termination was in her own best interest due to her “health condition,” according to the Seventh Circuit decision. He had consulted with an employee relations manager over eliminating the position, who took note of the plaintiff’s “absenteeism — fertility treatments.”
The employer argued that a regional sales manager unaware of the in vitro treatment had made the decision to eliminate the plaintiff’s position in favor of keeping the other, more qualified sales secretary.

Protection Under Other Federal Employment Laws

Fertility treatments may also be covered under the ADA and the FMLA. The U.S. Supreme Court has held that inability to procreate is a “major life activity,” therefore treatment to combat infertility is most likely protected and you must “accommodate” the employee as you would any other qualifying disability (such as cancer). Also, fertility treatments probably qualify as a “serious health condition” under the FMLA.

Bottom Line

This case continues to expand the definition of “pregnancy and related medical conditions” under the PDA. Given the likely coverage of fertility treatments by a number of federal laws, tread carefully when making employment decisions related to employees undergoing such treatments.

In addition, the facts serve to remind us of some basic employment law tenets:

(1) Focus on the performance, not the reason - there is no reason anyone (an HR person, no less!) needed to note “fertility treatments” in documentation related to performance;

(2) A “downsizing of one” is always tough to defend – if a termination is due to performance, make it about performance and make sure you have the documentation to support it; don’t call it a “downsizing” when only one person is affected;  and

(3) Beware of “benevolent intent” – many managers get into hot water making employment decisions based on their opinion of “what is best” for the employee. Remember the decision about “what is best” should be made only by the employee.

Gosh, thanks!! It sure is nice to be included!

Posted by Molly DiBiancaOn July 18, 2008In: YCST

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One of great employment-law bloggers, Michael Fox, of "Jottings by an Employer’s Lawyer" recently celebrated his blog's six-year anniversary!  Not only is Michael one of the innovators in our genre, but he also writes a wicked good blog! 

In honor of his "blogiversary", Michael got nostalgic and posted this entry: "6 Years, 1800 Posts and How the World Has Changed."    It's a great list of some of the best e-law blogs around.  And, it just so happens, the Delaware Employment Law Blog is one of those blogs Michael considers worthy enough to make the list.  

Thank you, Michael, and Happy 6th Birthday to your blog. May there be many, many more!

Here's to Dads and Kids--Just another post about the FMLA

Posted by Molly DiBiancaOn July 17, 2008In: Alternative Work Schedules, Family Medical Leave

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Congratulations to Jon Hyman, of the Ohio Employment Law Blog, who celebrated the birth of his son, Donovan Joseph Hyman, earlier this week!!  And, wouldn't you know it, being the dedicated blogger that he is, Jon actually tied the joyous occasion to an employment-related topic--the FMLA!  And, if you can even believe it, earlier this week, my office cheered on William W. Bowser, a partner in our Group, when he managed to pull off the unimaginable--tying together Brangelina and the birth of their twins, to the FMLA!  I kid you not.

So, to read about a real-life FMLA scenario that can match just about any set of facts your employees might throw at you, check out William W. Bowser post, Brad + Angelina + twins = One Great FMLA Hypothetical .  And, for the scoop on intermittent leave under the FMLA, see Jon's post called, Dads Get FMLA, too, (and while you're at it, drop a comment with a congratulations on his exciting arrival!).

And for more about guys and babes (the swaddled type), here are some other interesting posts from the blogosphere:

"Daddy Track" Is a Major Concern for Law School Grads, Study Says (Martha Neil at the ABA Journal)

From winning the bread to spreading peanut butter on it:  Confidence in themselves, along with family support, helps stay-at-home dads get in the groove (Boston Globe)

Some Days It Would Be Better to Be In Management (by the dad who Stays at Home with Triplets

Happy Father's Day to Fathers Across the County (Delaware Employment Law Blog)

These Pumps Were Made for Walkin'

Posted by Molly DiBiancaOn July 17, 2008In: Just for Fun, Wellness, Health, and Safety

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Corporate America, listen closely! Can you hear that sound?  It's the whoosh, thump, whoosh, thump, whoosh.  It's the pounding of feet on the two-ply treadbelt as it comes speeding around again and again.  Wait! What's it doing here, in Corporate America?  Your employer is going to make you healthy, darn it--like it or not!

Now, don't say you have no idea what I'm talking about.  Haven't you been reading our blog?  We've talked about employers' sheer determination to fight the battle of the bulge, whether employees like it or not.  We've talked about how many employers cite the rising costs of health care as the motivator for companies to implement wellness programs of every shape and size.  Employers have might even be getting pushy about their employees' health.  (Even to the point that some have begun to regulate what their employees' are scarfing down at meals).

And do these wellness programs actually work?  Some say yes, without a doubt.  Others say that wellness programs are running out of steam as more and more workers abandon their diet and exercise programs.  So, what is an employer who cares about its employees do to help them to learn to value a healthy, active lifestyle? 

Buy them a walkstation, of course! 

We posted about these walk-your-workday-away-machines back in March, at which time they were still more fantasy than reality.   But the collaborative news hounds of everything work-from-home related at Web Worker Daily, have an update. They report that Steelcase, the well-known manufacturer of office furniture, filing cabinets, and the like, has officially introduced the Walkstation to cubicle workers across the country.  From Web Worker:

3707@3706_2670373755_f0b39622d8_tBased on the idea that you can burn enough calories to make a difference, even if you don’t work up a sweat, the Walkstation marries an adjustable-height desk and monitor arm with a low-speed treadmill

There are plenty of other bells and whistles here, including a magnetic sensor that automatically stops the treadmill should you be carried away from your desk, and an optional convertible model that lets you switch from office chair to treadmill at the touch of a button. The drawback? Cost, mainly: buying one of these will set you back $4300.

If it's of any comfort, I am fairly competent that most employers won't be jumping at the idea of this size investment--especially after the first time the news reports that an employee was whisked right off of the Workstation, sustaining serious injuries and filing suit against her employer. 

HR Summer School: The Back-to-Basics Series. FMLA 101: Who Is Covered

Posted by Molly DiBiancaOn July 15, 2008In: Family Medical Leave, HR Summer School

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HR Summer School is back again. We've finished two ADA courses, so it's time for the FMLA.  This is the first of five FMLA "courses" in the HR Summer School series.  The course outline is attached for your reference. 

I. Covered Employers

The easy answer is that private employers with 50 or more employees are covered by the FMLA. Of course, there’s nothing easy about the FMLA, which is why there is a much more detailed explanation of this seemingly simple statement.

The FMLA covers private employers that have:

  • at least 50 employees;
  • for at least 20 weeks;
  • in the current or preceding calendar year.

A. “Employees”

So who actually counts as an “employee” for purposes of determining whether a business is covered by the FMLA?

  • Full- and part-time employees
  • Temporary employees, even if you don’t pay them.
  • Employee’s located at all work sites within 75 miles.
  • Employees with no regular office are assigned to the office to which they ordinarily report.
  • Employees “acquired” as part of the sale of a business.

The last type of employee applies only to “successor employers.” If you’ve acquired or taken over all or part of a business that was covered by the FMLA, you are considered a successor employer and may have to grant FMLA leave to certain employees even if the part of the business you’re operating has fewer than 50 workers. You must honor the leave request of any employee who had provided notice to the previous employers and you must follow the FMLA’s rules on maintaining benefits and reinstating employees who were on leave when you acquired the business.

B. Relevant Time Period

The FMLA covers only employers with 50 or more employees (as defined above). But what about employers who fluctuate just around 50 employees, or who had 50 employees but recently reduced staff? To determine the number of employees for FMLA purposes, employers can’t simply look to one specific date on the calendar, such as the first or last day of the year. A more complicated evaluation is required.

The FMLA applies, even if the employer does not currently have 50 employees, where the employer had 50 or more employees for at least 20 weeks in the current or preceding calendar year. This requires the employer to look at both years, week by week. Any week in which there were 50 or more employees on each working day (usually Monday through Friday), will count towards the 20-week minimum.


II. Covered Employees

Once an organization determines that it is covered by the FMLA and bound by its provisions, it will next need to determine whether the specific individual requesting leave is a covered employee.

To be eligible for FMLA leave, an employee must:

  • be employed by the employer for at least 12 months; and
  • work at least 1,250 hours in the 12 months before the leave would start.

The 12 months of employment do not have to be consecutive. And the 1,250 hour requirement must be satisfied by the time the employee would take the leave—not at the time the employee requests the leave.

The Cheesecake Factory Is Sued for Sexual Harassment of Male Employees

Posted by Molly DiBiancaOn July 15, 2008In: EEOC Suits & Settlements

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The U.S. Equal Employment Opportunity Commission ("EEOC") has filed suit against The Cheesecake Factory in Chandler, Arizona.  The suit alleges that the California-based restaurant ignored repeated incidents of same-sex harassment.  Several male employees claim that there were regular sexual assaults by groups of male employees, who would grab another male employee and take turns simulating sex with him.  

One of the three men, Bryce Fitzpatrick, said he was harassed more than 20 times while he worked as a kitchen supervisor. Fitzpatrick, 23, said he would be cornered by about five to 10 cooks and dishwashers who would lift his legs into the air and grind up against him in the restaurant's kitchen area. 

R. Enochs, Esq. has posted on the difficulties the claimants are likely to face.  Same-sex harassment claims make up 16% of all sexual harassment claims filed with the EEOC.  Male-on-male claims are particularly stigmatized.  When a male victim complains to management, he's often faced with resistance instead of redress.  Excusing the behavior as "horseplay," the conduct is actually more akin to hazing. 

EEOC Rundown: Who's Getting Sued, Who's Settling

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

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The Equal Employment Opportunity Commission (EEOC) has been hard at work.  Here's a rundown of some of the latest claims and settlemeneeoc_logots involving the EEOC and its big sister, the Department of Labor (DOL).

Hotel Heartache

The former owner of a Best Western hotel in Ocean City, Maryland hotel settled a claim for discrimination and retaliation brought by the former executive housekeeper for $36,000.

The owner of the Ramada Inn Wytheville, in Wyethville, Virginia, has settled a claim for unpaid back wages brought by the U.S. Department of Labor.  The hotel owner was alleged to have paid waitstaff the federal tip-credit wage of $2.13 per hour despite the fact that the employees didn't earn enough tips to yield the minimum wage of $5.85 per hour.  The employees were subject to a half-hour meal-break deduction, regardless of whether they actually took, or were permitted to take, any meal break. Finally, the hotel's time records did not reflect the number of hours worked by employees each week.  Improperly paid employees will share in a $23,000 settlement.

Fly Me to the DOL

An aircraft-painting company in New Mexico has agreed to pay more than $227,000 in back wages and fringe benefits to resolve a claim by the U.S. Department of Labor.  Dean Baldwin Painting misclassified employees who worked on an Air Force contract.  Workers assigned to work on military aircraft are paid at a different rate than those who perform work on commercial aircraft.  The company began paying back wages, which will be distributed among 255 current and former employees, four months ago.

And the Last Laugh Goes to. . .

Les Schwab Tire Centers of Montana has agreed to pay $185,000 to settle a racial harassment suit brought by the EEOC on behalf of Earle Nevins, a former Les Schwab employee.  Nevins, a member of the Blackfeet Nation claimed that he'd been subjected to a hostile environment by coworkers who called him derogatory names and made insulting jokes about Native Americans.  The EEOC  suit alleged that, when Nevins complained of the harassment, he was told that the coworkers were merely engaging in "horseplay," and was later fired for his complaints. 

Jin Hua Inc., a restaurant supply company in New York, has agreed to pay 28 employees a total of $110,788 in overtime back wages. in order to resolve a federal lawsuit brought by the Department of Labor.  estigation that disclosed violations of the FLSA’s overtime and record-keeping provisions.


August 14: Click Here for Lawsuit--Applicant Screening With Google & MySpace

Posted by Molly DiBiancaOn July 14, 2008In: Seminars, Past

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Upcoming employment-law audio conference.  August 14, 2008, William W. Bowser and Molly DiBianca will be discussing the pros and cons of using the internet for recruiting and screening efforts.  The audio conference is hosted by HR Hero and is approved for HRIC credit.

internet search

Learn how far you can go without risking legal liability and what to consider when deciding whether to employ these strategies. 

  • When Google and other social networking sites can be a useful tool for HR
  • Why some information found on social networking sites may be too dangerous to be considered in the hiring process
  • How using the Internet to screen job candidates could lead to complaints of hiring discrimination
  • How to handle information found online that you would never ask about in an interview
  • What to do if an applicant claims that your Internet background check constitutes an invasion of privacy
  • The likelihood of being led astray -- positively or negatively -- by online information
  • What the current Internet search debate says about generational conflicts in the workplace
  • The roles of organizations, such as ReputationDefender, that work to find and remove an individual’s negative online content

The seminar is scheduled for Thursday, August 14, 2008, 11 a.m. - 12:30 p.m. (Eastern).  To register for, Click Here for Lawsuit:  Applicant Screening with Google and MySpace.

Brad + Angelina + Twins = One Great FMLA Hypothetical

Posted by William W. BowserOn July 14, 2008In: Family Medical Leave

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It's official. The "Brangelina" clan, headed by Brad Pitt and Angelina Jolie, has grown by two. And what's the first thing that comes to mind?  The Family Medical Leave Act (FMLA), of course!  Ok, maybe not. 

The (Somewhat Complicated) Family Tree

The proud parents have announced that Vivienne Marcheline and Knox Leon were born on Sunday in a hospital in the South of France.  The unmarried Pitt and Jolie have four other children.  Jolie adopted Maddox in 2002 and Zaharah in 2005.  Pitt adopted the two in January 2006, which was followed by the birth of the couple's first child together, Shiloh who was born in Nambia in 2006.  The couple adopted Pax in 2007. 

It's safe to say that this family is a long way from what was once considered a traditional family unit.  What if Brad or Jolie were not motion-picture superstars but, instead, were your employees?  How would the FMLA be applied to situations occurring in their family?

The Family and Medical Leave Act (FMLA) is one of the most complicated employment laws for HR professionals to administer. It's hard enough to determine whether the Act applies to an employee who requests leave because of his own serious health condition. It can be even more challenging when leave is requested to care for a new or sick family member.

ABCs of the FMLA

The FMLA generally provides that certain employers (companies that employ 50 or more workers) must allow an employee who has worked at least 12 months and 1,250 hours to take up to 12 weeks of unpaid leave for one of the following the birth of a child or to take care of the newborn; placement of a child for adoption or foster care; or to care for a spouse, child, or parent with a serious health condition.

Rock-a-Bye Baby

Both male and female employees may take leave for the birth and care of a newborn child. This type of leave has nothing to do with the medical condition of the newborn or the mother. As a result, Brad and Angelina are simply entitled to take leave as a result of the birth of the twins.

There are only three real limitations to this type of leave. First, the leave must be taken within a year of the child's birth. Second, it must be taken in a single block of full days off. In other words, Brad can't take leave three weeks after the birth of the child and then wait several months to take the remaining nine weeks. Similarly, this type of leave can't be taken intermittently or for partial days unless you agree to that arrangement. And finally, if Brad and Angelina both worked for you, they are entitled to a total of 12 weeks jointly.

The FMLA also requires you to grant leave when a child is placed with your employee for adoption or foster care. According to U.S. Department of Labor (DOL) regulations, FMLA leave may be used before the employee actually gets the child. She may take FMLA leave to attend meetings with an attorney, doctor's visits, and court appearances or to fly out of the country to pick up the child. Thus, Brad and Angelina could have taken FMLA leave off to fly to Cambodia, Vietnam, or Ethiopia in connection with the adoption of Maddox, Pax and Zahara.

Are You My Mother?

The FMLA allows employees to take unpaid leave to care for certain family members who are suffering from a "serious health condition." The law severely restricts the family members for whom leave can be taken, however. An employee can take leave "to care for" his spouse, son or daughter, or parent, but not for siblings, grandparents, or grandchildren. While it might seem that determining whether leave must be granted for a family member is straightforward, the definitions of "spouse," "child," and "parent" can make figuring out whether leave is required harder than it looks.

First, a "spouse" is either a husband or wife defined by the law of the state where the employee resides. That's a particular challenge for Delaware employers that have employees living in Pennsylvania. That state recognizes "common-law marriage," while Delaware doesn't. As a result, Brad could not take FMLA leave to care for Angelina if they lived in Delaware, but might if they lived in Pennsylvania and their relationship constituted a "common-law marriage."

The regulations define "child" as either a biological child, an adopted child, a foster child, a stepchild, a legal ward, or a child for whom the employee is standing in loco parentis (that's Latin for "in place of the parents"). In other words, the employee must have day-to-day responsibility for taking care of and financially supporting the child. The child must also generally be under 18 or incapable of caring for herself because of a mental or physical disability. All the Brangelina kids meet this definition one way or another.

The FMLA regulations define "parent" to include the employee's biological parent or the person who stood in loco parentis to him when he was younger. As a result, an employee can have more than two "parents" for FMLA purposes. As a result, the adopted kids might someday be eligible to take care of Brad and Angelina, but also their biological parents.

For more information on the basis of FMLA and what it requires, check in at HR Summer School for FMLA 101.

Doctors With Poor Bedside Manners Will Have to Change Their Ways

Posted by Molly DiBiancaOn July 13, 2008In: Jerks at Work

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The healthcare industry can be characterized by some not-so-flattering statistics.  The industry has one of the highest rates of workplace violence, for example.  It is also known for fostering an environment that breeds distrust among co-workers and that acts as a petri dish of sorts for bullies and jerks.  That is, until now. 


The problem with bullies and jerks in healthcare is contagious.  Doctors, nurses, and other clinicians, who work in an environment where hostility is tolerated and where bullying behaviors are common, aren't the only ones paying a price.  For years, bad behavior among workers has been linked to medical errors. 

In his book, The No Asshole Rule, Bob Sutton discussed a study of hospital employees as evidence of this link.  The study looked at two groups of nurses and doctors.  One group was led by a jerk-doctor, the other by a non-jerk-doctor.  The researchers were surprised when they found that the first group (led by the jerk), reported a significantly lower rate of medical errors than did the happy, nice-guy group. 

So what was the deal?  Was the second group just too busy being nice to one another to pay attention to crucial medical procedures?  Or was the first group really more responsive to the reign-of-terror leadership style that the jerk doctor embodied?  Don't kid yourself.  The researchers soon learned that the first group had a lower reported rate of errors because they reported fewer mistakes--not because they made fewer mistakes. The second group, on the other hand, reported their mistakes without fear.  And the patients of the nice guys finished first after all. 

A 2004 study of workplace intimidation by the Institute for Safe Medication Practices (ISMP) found that nearly 40 percent of clinicians have kept quiet or ignored concerns about improper medication rather than talk to an intimidating colleague.  More than 90 percent said they’d experienced condescending language; nearly 60 percent had experienced strong verbal abuse and nearly half had faced negative or threatening body language.

The Joint Commission, though, is trying to put an end to these bullying tactics.  The Joint Commission is a national hospital accrediting agency, making it one of the few agencies with the power to effect real change.  Beginning in January, it will require hospitals to have implemented codes of conduct that define inappropriate behaviors and have plans for dealing with them.  This requirement is a recognition of the correlation between intimidating tactics and an increasing number of costly medical mistakes.  The Joint Commission's special Alert, Stop Bad Behavior Among Health Care Professionals, and corresponding report, Behaviors that Undermine a Culture of Safety, is packed with data and statistics that support the directive and is well worth the read for those who have an interest on the impact of Jerks at Work.

May Employers Monitor Employees' Text Messages?

Posted by Molly DiBiancaOn July 13, 2008In: Electronic Monitoring, Privacy Rights of Employees

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The lines of privacy in the workplace are blurred, at best. There are lots of questions about the limits placed on employers when it comes to monitoring their employees' technology use.  We do know that employers should notify employees if the company wants to reserve the right to monitor e-mails, voicemail, and internet access.  In Delaware, this notice is mandatory.  But it is not clear whether this notice can extend to web-based, personal e-mail accounts, like G-Mail or Yahoo!, when the accounts are accessed by employees during working time on a company-provided computer, accessing the internet through the company's server.  (See my previous post, Suit Raises Tough Questions About Privacy Rights of Former Employees for a case involving these facts; and if you're still not sure, just ask the Mayor of Detroit, Is It Time to Update Your Electronic Communications Policy? If you’re the Mayor of Detroit, the answer is “Yes”). 

And that is just the tip of the iceberg.

A recent decision from the Ninth Circuit Court of Appeals has added another layer of complexity. In Quon v. Arch Wireless Operating Company, the court found that the employer-defendant violated its employee's rights by reading his text messages without his consent.  The case was brought by a police officer, whose text messages were reviewed by his boss, who had obtained them from the internet service provider.  The reason given by the officer's supervisor was fairly innocuous--to determine whether the officer was using his city-issued pager for personal communications. 

The important take-away from this case is consent, consent, consent.  The court found that the officer had a reasonable expectation of privacy in the text messages.  Had the employee consented to the employer's search, the whole suit would have been avoided. 

And how can you get an employee to consent, you ask?  Easy.   By having all employees read and sign a comprehensive electronic-monitoring policy at the time of hiring. 

Already doing that? Great.  Now get a Gen Y to read it.  Have him or her tell you about all of the types of technology you've missed.  Does your policy even cover text messages? Now's the time to check. 

Medical Weight Loss Clinic Learns that HIV is a Disability Under the ADA

Posted by Molly DiBiancaOn July 13, 2008In: Disabilities (ADA)

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The Americans with Disabilities Act (ADA) protects persons with HIV/AIDS.  And that's been the case for at least 15 years. (See the DOJ's Informal Discussion Ltr. on HIV Discrimination and the ADA, dated March 2,1993).  But maybe no one told this to the Medical Weight Loss Clinic, which, according to the Department of Justice (DOJ), refused service to a prospective client because she is HIV positive.  The Medical Weight Loss Clinic had to find this out the hard way after the DOJ filed suit on behalf of the potential patient, alleging the Illinois-based business failed to comply with its obligations to provide equal access to public accommodations.

Although we deal with the ADA mostly in the employment context, it's implications are much broader reaching.  The ADA guarantees equal opportunity for individuals with disabilities in public
accommodations, employment, transportation, State and local government services, and telecommunications.  Although the EEOC has administrative authority over disability claims in employment, the DOJ handles cases like this, where the claim involves discriminatory denial of public accommodations. 

As the DOJ's 1993 letter (above) explains, gymnasiums, health spas, and other places of recreation are all public accommodations and, therefore, required to provide equal access to persons with disabilities.  The exception to this requirement is when an individual poses a direct threat to others.  But the direct-threat conclusion cannot be reached by relying on generalizations or stereotypes--that would be discrimination--the same kind the ADA is designed to prevent.  Instead, such a conclusion must rely on current medical evidence.  A person with HIV or AIDS does not pose a serious risk of exposure through casual contact. 

As part of the settlement, the Medical Weight Loss Clinic will be provided to provide training on nondiscriminatory practices.  Maybe it should also consider providing its personnel with access to modern medical data on HIV and other traditionally stigmatized conditions to help prevent unfounded biases from leading to future litigation against the company.

For additional information, see:

The Delaware Employment Law Blog's HR Summer School: ADA 101, and ADA 102

A comprehensive Q & A bulletin on HIV/AIDS as a protected class under the ADA is available at the ada.gov website. 

Sept. 16: Plan & Implement Your 4-day Work Week

Posted by Molly DiBiancaOn July 12, 2008In: Alternative Work Schedules

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I've written a lot lately on the topic of the four-day work week and it's increasing popularity as a tool to help employees combat the gas-price crisis.  For a more detailed discussion of the topic, join me and Rex L. Facer, public finance management author and professor, for a 90-minute audioconference on the pros and cons of these alternative schedules. 

We'll discuss how long-distance commutes may be driving away your top talents and how to use a four-day workweek program can help retain your long-distance employees and cut operating costs at the same time.   From the program description:

  • How to avoid legal dangers associated with four-day workweeks, including discrimination issues, wage & hour-overtime challenges, and accommodation hurdles under the ADA for employees physically unable to work more than eight hours a shift
  • Hands-on advice for implementing four-day workweeks at your organization
  • What employers can expect from a four-day workweek -- including how to shift focus to productivity and away from "numbers of hours worked"
  • How a four-day workweek meshes with other cost-saving measures, such as telecommuting, subsidies for mass transit, etc.
  • Real-world tips for supervising employees on four-day weeks
  • Communication dos and don'ts when some, but not all employees, are working four-day weeks
  • Success stories and lessons learned from employers with four-day programs.

The audioconference has been approved for 1.5 recertification credits through HRCI. You can register at M. Lee Smith's website.

ABA Journal Takes Note of Our Newsworthy News Anchors

Posted by Molly DiBiancaOn July 12, 2008In: Off-Duty Conduct

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Here at the Delaware Employment Law Blog, we've been following the Alycia Lane-Larry Mendte brouhaha since it first began to brew--before Mendte was accused of snooping through his co-anchor's personal e-mails "hundreds of times;" before the FBI confirmed that it had swept Mendte's home on the swanky Main Line suburbs of Philadelphia, taking with them Mendte's personal computers when they left; before he was suspended and then fired for the "e-mail situation" (though no one is quite sure what that involved). Heck, we've been covering this story all the way back to before Lane was terminated for embarrassing the news station where she and Mendte had been co-anchors, following her involvement in a string of high-drama, news-making scandals of her own.  chp_taking_notes_1

There can be no dispute that the story has been as interesting as any news broadcast could hope to be.  Better than that, it's really evolved into a daytime soap opera.  The ABA Journal apparently agrees.  In her article, News Anchor Fired Over Alleged E-Mail Snooping That Brought Down Co-Anchor, Martha Neil reports that the involvement of the FBI in what appears to be an employment-law matter has raised some eyebrows.  Assuming Mendte did, as is now alleged, install keystroke-tracking software on the station's computers, enabling him to access Lane's account without her permission, that still wouldn't explain the involvement of the federal law authorities.  No crime has been alleged--at least none that I can identify. 

As the drama and intrigue continue to unfold, we'll be sure to be on high alert for the criminal element of what seems to be a straightforward, albeit juicy, employment-law scenario. Just another day in the workplace.

For earlier posts on the Mendte-Lana saga, see:

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

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

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



October 16-17: 2008 Advanced Employment Issues Symposium

Posted by Molly DiBiancaOn July 11, 2008In: Pregnancy (Title VII), Seminars, Past

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FMLA and pregnancy discrimination are two difficult employment laws that employers face regularly. Employers wanting to gain insight into both types of leave can do just that on October 16 & 17th in Nashville, Tennessee at the 13th Annual Advanced Employment Issues Symposium. Adria Martinelli will be presenting "When FMLA and Pregnancy Leave Collide: How to Avoid Costly Discrimination Claims." The seminar will address the rising number of pregnancy discrimination claims in the workplace (see prior blog post "Job Qualification of the Week: Suck in Your [Pregnant] Belly"), and what employers can do to prevent becoming a statistic.

Attendees will be introduced to the comprehensive subject of employee rights under FMLA and how to create an effective and legally compliant accommodation policy for pregnant employees. Key 1184335059_0505FMLA and pregnancy discrimination topics that will be covered include:

  • How to calculate entitlements to pregnancy and family leave
  • When does pregnancy qualify as a “serious health condition” under FMLA?
  • Whether fertility treatments are covered under FMLA leave
  • How to terminate employee after returning from maternity leave without violating FMLA
  • Whether or not you have to give a pregnant employee “light duty” if she requests it.

The Symposium will be held October 16-17, at the at the Hilton Downtown in Nashville, Tennessee.  Online registration is open and the complete agenda is now available.  The cost is $849 per person; only $799 for past attendants.  The cost of registration also includes comprehensive materials that you can use as a desktop reference. Register online now in order to take part in this relevant and important session.

Friday Funnies: Brevity Is Beautiful (Especially When It Rhymes)

Posted by Molly DiBiancaOn July 11, 2008In: Just for Fun

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Lawyers are infamous for being too wordy.  If you ever hear a lawyer say, "Just one more point," this is attorney-speak for, "Just 20 more points."  And I'm not pointing fingers, I'm a guilty party, too.  But there are limits.  And, according to the Wall Street Journal's Law Blog, federal Judge Ronald Leighton felt that the limit had been reached when he received a 465-page complaint in a racketeering lawsuit. Judge Leighton (limerick)

You may ask, just how does a document become so voluminous.  Well, for starters, the title of the document is eight pages long.  That is followed by eighteen pages in which the plaintiff identified six defendants.  Apparently unimpressed with what the judge described as an "odyssey," he ordered the plaintiff to re-file, relying on the procedural rule (Rule 8(a)), that a complaint should contain "a short and plain statement of the claim showing that the pleader is entitled to relief."

What's more is the way the judge responded.  Writing that brevity, in addition to being the soul of wit, is the soul of a pleading.  He even gives a fine example of brevity and wit.  From the court's four-page order comes the following limerick:


Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a).
His Complaint is too long,
Which renders it wrong,
Please rewrite and refile today.

Everything sounds better if it rhymes.  Have a great Friday and an even better weekend!

Going Green at Work: Baby Steps

Posted by William W. BowserOn July 10, 2008In: Going Green

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How employers and employees can make their workplace more environment-friendly is one of my favorite employment topics.  One of my favorite movies is "What About Bob?" starring Bill Murray and Richard Dreyfus.  In the move, Murray is absolutely hilarious as Bob Wiley, a neurotic and manipulative patient of Doctor Leo Marvin, an egotistical psychiatrist played by Dreyfus.  The hilarity begins when Bob tracks down Dr. Marvin and his family on vacation using "baby steps," the buzz phrase from Marvin's new book of techniques for treating mental patients and their phobias.

What's this got to do with going green at work? It may be a way to really get started. I stumbled upon a post in the blog, grist.org,  which advocates for just such an approach. 

Just what are the "baby steps" for going green at work?

Turn Off the Lights. Commercial buildings account for 18 percent of the nation's greenhouse-gas emissions. A good portion of the problem is caused by leaving lights on in vacant rooms. Switch off the lights whenever you leave your workspace empty for more than 15 minutes, and especially when you leave for the day.

Turn Off Your Computer.  Each computer left on at all times results in more than 1,000 extra pounds of greenhouse gases each year. At a minimum, consider using the sleep mode. The widespread use of sleep mode could prevent the annual release of hundreds of millions of tons of global warming.

Print Fewer Copies. The average American office worker uses 10,000 pages of copy paper. If you must print, do it on both sides of the page and reuse paper that's only been printed on one side.

Turn Off Your Gadgets. If you use printers, scanners, and copiers only on an occasional basis, turn them off until you need them. Use a power strip to turn off your cell phone charger, lamp, and such when you're not using them.

Ditch the Styrofoam. Stock your lunchroom, stock it with reusable mugs and kitchenware.  Oh, and get rid of the plastic stirrers. It's estimated that 138 billion of them wind up in the trash each year.

Control the Thermostat.  This is a tough one. As previously debated on the Delaware Employment Law Blog, the office thermostat is a place of great conflict.  But it is also a great place to save energy since heating and cooling systems suck up about 22 percent of energy used in the commercial sector.

October 23, 30: Developing Your Employee Handbook

Posted by Molly DiBiancaOn July 10, 2008In: Seminars, Past, YCST

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Molly DiBianca will be presenting a seminar, Developing Your Employee Handbook, on two dates in October.  The free seminar is sponsored by Lyons Companies Insurance

The 2-hour seminar is designed to provide attendees with an understanding of the legal implications of an organization's written policies and procedures, as well as the costs and benefits of placing informal practices in an employee handbook. I will also cover some of the practical elements of handbook creation and revision, such as the handbook's structure, legally mandated policies and how to format individual policies.

The October 23 session will be held in Georgetown, Delaware from 11 a.m. - 1 p.m. and the October 30th session will be held in the Young Conaway Stargatt & Taylor offices in Wilmington, Delaware, from 9 am - 11 am.

Handbooks are one of the most frequently requested seminar topics, so I expect both sessions to fill quickly.  To reserve a spot, you can either contact Lyons Companies Insurance or contact Molly DiBianca.

Alternative Work Arrangement May Soon Become Mandatory

Posted by Molly DiBiancaOn July 10, 2008In: Alternative Work Schedules, Flextime, Telecommuting

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The four-day workweek is gaining momentum. The rising price of fuel has caused many workers to pursue alternative working schedules.  A shortened week has seen a rapid increase in popularity. Even schools have considered the idea of reducing operation costs by closing their doors on Fridays.  Another employee alternative is telecommuting.  A new bill, passed by the U.S. House of Representatives, proposes to mandate this "alternative."telecommuter


If passed, the bill would authorize all federal employees to work from home (i.e., telecommute), for at least 20% of their work hours every two weeks.  Federal agencies would be charged with creating programs that include this requirement. 


The bill doesn't seem to take into account that telecommuting doesn't always work.  Just ask the employees of the State of Ohio.  As reported by the New York Times back in April (see Ohio State Workers Are Coping: It’s Now 8 to 5), Ohio officials had tried unsuccessfully to implement a 4-day work week.  After several months on the 4 10-hour workdays, state officials planned to eliminate the alternative schedule in order to provide the basic level of customer service.  On the four-day-week program, departments were closed, phones unanswered, and the needs of citizens not met on Fridays.  Ohio officials did not prohibit telecommuting or flexible work hours--but compressed schedules (4-days workweeks) were off-limits.

Also see:

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

How the Current Economy Could Affect the Future of Flextime

New Employer & Workplace Study on Flexible Schedules

R.I.P: Several Bills Affecting Delaware Employers Killed by the Legislature

Posted by William W. BowserOn July 9, 2008In: Delaware Specific, Legislative Update

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Delaware's General Assembly put to rest several bills that would have had substantial negative impact on the State's employers.  The 144th General Assembly concluded on June 30th without having passed several controversial pieces of legislation.  Here are the highlights:

Independent Contractors 

Perhaps the most controversial bill that died on June 30 was House Bill 468. This bill, called the Construction Industry Independent Contractor Act would have imposed substantial penalties on contractors who improperly classify their employees, including fines, terms of imprisonment, and loss of business licenses. A previous blog post discusses this bill in greater detail, see Construction-Industry Employers Should Be Aware of Proposed Legislation


Sexual-Orientation Discrimination

A bill prohibiting discrimination based on sexual orientation in employment as well as housing, public works contracting, public accommodations, and insurance and grants was shot down again. Senate Bill 144 was the just latest attempt to expand the anti-discrimination laws to include sexual orientation.   Although this bill was defeated, it is sure to be resurrected in the next General Assembly, just as it has for the last nine years.


Elimination of Employment At-Will

Another perennial loser, a bill eliminating the employment at-will doctrine, was again sent to its grave. House Bill 327 never got out of committee.


Minimum Wage Bills

Finally, two bills that would have increased the minimum wage expired on June 30. Senate Bill 204 would have increased the minimum wage from $7.15 per hour to $7.75 per hour effective March 1, 2009, and from $7.75 per hour to $8.25 per hour effective March 1, 2010. If passed, Delaware's minimum wage would have been the highest in the nation.

And, Senate Bill 280  would have increased the minimum wage for "tipped" employees on January 1 of each year through 2012.  The rate would have increased from the current $2.23 per hour to $2.51 per hour on January 1, 2009; to $2.86 per hour on January 1, 2010; to $3.32 per hour on January 1, 2011; and to$3.57 per hour on January 1, 2012.  The minimum wage for “tipped” employees has been $2.23 per hour since 1987.

What Makes a Job a Crummy Job?

Posted by Molly DiBiancaOn July 9, 2008In: Employee Engagement

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Employee retention has garnered a great deal of attention as a result of the notoriously short stints of Generation Y employees.  The battle for talent requires more strategic tactics than ever.  But, as many employers have learned, getting them to stick around after they arrive is just as difficult.  As a result, more and more employers are spending more and more resources on employee perks of every variety.  But are some jobs just so unbearable that no perk can entice employees to stay?

crumbs on a plate with fork

BNet has a recent article explaining the "five telltale signs that recession is putting your organization in a chokehold, and possibly making your job unbearable."

Four of the five signs that your organization is in trouble and that your job is about to get "crummy:"

1.  Loyalty goes out the window. Employees, who normally work to please others, with whom they've developed an emotional relationship, instead become transaction-oriented.  Instead of wanting to satisfy those people in the workplace who are important to them, employees turn inward and do the minimum required to satisfy their obligations.

2.  Bad news comes from the top.  Middle managers get stuck with giving bad news that they didn't create or relaying tough decisions that they did not make.  This makes them an undeserving target.

3.  Office politics get as heated as any campaign season.  When employees smell the fear of layoffs, they switch from the defensive to an offensive approach.  To avoid the chopping block, they start pointing fingers as others, hoping to divert attention away from themselves.

4.  Innovations come to a stop.  There is no room for change, so goes the line of thinking during tough financial times.  Inhibiting creative thinking is stifling to many of the best employees.  And those who aren't stifled stand to suffer even more because the ideas they do offer are shot down, leading to hurt feelings. 

There's no prediction of a sudden economic upswing.  Until there is, employers should be on the lookout for signs that employees are becoming dissatisfied.  As much effort should be made to prevent layoffs as goes towards preventing employee disengagement.

Lock Down the Office Supplies--Here Come Undervalued Employees

Posted by Molly DiBiancaOn July 8, 2008In: Policies

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Employees who feel cheated by their employers have their own way of fighting back.  According to a new survey, employees who believe that they are not properly compensated (either in money or in positive feedback), will find other ways of getting paid.  And it starts in the office-supply cabinet. 


The survey reports that nearly 20 percent of American workers take office supplies and only 22 percent of those who do feel bad about it.  But 74 percent knew that stealing is wrong. 

The most popular goods to steal are:

  • pens, pencils, and rules (67%);
  • paper and Post-its (57%); and
  • calculators, staplers and tape dispensers (11%).

The theft of expensive items, though, such as laptops, PDAs, or cell phones, has increased this year from 8% to 15%.

According to HR Executive, theft can be attributed to "stress, long hour, and an inflexible schedule."  People were more likely to adhere to ethical standards if they had a healthy work-life balance.  Employees who don't feel appreciated return the favor by hurting the company in return.

Could an Ombudsman Help You Squelch Bullies in the Workplace

Posted by Molly DiBiancaOn July 8, 2008In: Jerks at Work

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Bullies in the workplace cost employers a substantial amount of resourcesWork Happy Now had a great idea--an ombudsman to listen to your employees' complaints and act as an intermediary to help resolve conflicts.  The post explains the potential benefits:

Jerk boss angryAn Ombudsman could help a company see mistakes from the employees’ point of view. Let’s say a company tries to restructure the organization, and perhaps an employee sees a potential problem, but they are afraid to tell management. Employees are more likely to see a different type of problem because they are closer to the day to day operations. For instance they might recognize that a group of customers could become neglected by the restructuring. This employee could voice his opinion to the Ombudsman without fear of being fired or discovered for his dissenting views.

This sounds like a great bully-fighting strategy, too.  Often, employees want to speak up about the bullying behavior of a Jerk at Work.  But, often, employees have been bullied into silence and are scared to report the bully for fear of retaliation. 

An ombudsman could eliminate those fears.  If employees felt certain that their reports would be kept in strict confidence and told only to the persons who could (and would) address the problem.  Is this a viable solution for employers to use in the counter-attack against bullies in the workplace?

 Other Posts on Jerks at Work:

Abusive Bosses Should Watch Their Backs

Are Bullies Beating Up Your Employees' Health?

Bullies In the Workplace is Water-Cooler Talk on Good Morning America

Bullying Can Be Physical . . . But Torture?

The Cost of Bully Legislation

Top 5 Lessons to Be Learned from the Jerk at Work

Workplace bullying

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

Bosses Aren't the Only Workplace Toxins: What to do with toxic employees?

Employee Handbook Policy #502: Respectful Workplace

Everything You Needed to Know About Your Toxic Boss

Jerks-At-Work Expert Confirms Fridge Raiding Is #1 Worst Workplace Incivility

Are Employers Getting Pushy About Weight Loss?

Posted by Molly DiBiancaOn July 8, 2008In: Off-Duty Conduct, Wellness, Health, and Safety

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Is the workplace the right place to fight the battle of the bulge?  With wellness programs on the rise, obesity among employees has been one of the most targeted health issues.

There seems to be a new study every week about the types of wellness initiatives that are being used, the effectiveness of the different initiatives, and the high cost of wellness programs.  And each study seems to generate different data.  brown bag lunch

Despite the conflicting data, one common thread among many programs is the attempt to target obesity as a health risk.  A study by the Strategies to Overcome and Prevent Obesity (STOP) Alliance reports that 80 percent of employees, regardless of weight, believe that weight-management programs belong in the workplace.  71 percent reported that weight-management issues are appropriately addressed in the workplace. 

A recent article in BusinessWeek entitled "Hide the Doritos! Here comes HR" identified some well-known organizations that have declared war on calorie over-consumption.  According to the piece, companies such as Google, Yamaha, and Caterpillar have taken a first step by removing the junk food from all company kitchens and vending machines. 

[Source:  Human Resource Executive Online]

Other Posts about Employees' Off-Duty Conduct

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?

A Whirlpool of Excitement about Rights of Employees Who Smoke

Employees Who Smoke (Part 1) Smoking Breaks

Employees Who Smoke (Part 2) Charging Smokers Higher Health Care Premiums

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

Delaware Employers & Employees Who Smoke (Part 4)

Employer Quits Its Smoking Policy

Not Everyone Is Fired Up About Smoking Ban

From Cancer Sticks to Drumsticks: How far should employers go when it comes to employees' health?

Price Hike for Google's Employer-Sponsored Day-Care Program

Posted by Molly DiBiancaOn July 7, 2008In: Benefits, Employee Engagement

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Employers who offer subsidized and on-site day care as part of their employee-benefits plan are very popular.  Employer-sponsored day care is a high-demand employee perk.  It is also a very difficult and costly benefit to implement. Google has recently learned this first-hand.

According to to a Joe Nocera of the New York Times, in an article titled, On Day Care, Google Makes a Rare Fumble, there has been a recent brouhaha about this very topic.  According to the article, Google has implemented a five-quarter plan to raise the cost of company-subsidized day care by approximately 75%.  [Gulp!]

Employer-Sponsored Day Care

Subsidized and on-site day care certainly aren't yet common but they've been around for more than a decade at many large organizations.  Google's own experience with day care has been a unique one.  Google began offering day care more than three years ago.  After devoting substantial efforts to it, the program offered only 200 (highly coveted) day care spots with a wait list of more than 700--resulting in a two-year wait for new parents and employees.  And the cost was no small thing.  Nocera writes that the cost to the company was $37,000 per child per year, as compared with the industry standard of $12,000 per year. 

The hyperinflation in cost will certainly reduce that waiting list. And if it doesn't, Google's recent practice of charging people several hundred dollars to stay on the waiting list should do the trick.  As a back-up, though, Google is opening new facilities, which should add another 300 spots. 

ADA 102: What Does the ADA Require

Posted by Molly DiBiancaOn July 7, 2008In: Disabilities (ADA)

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This is the second installment of HR Summer School.  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 102, part of the HR Summer School's Back-to-Basics Program, reviews what the Americans With Disabilities Act requires of employers.  Course materials are attached for your reference. 

composition notebook

The Americans with Disabilities Act of 1990 (“ADA”), makes it unlawful for an employer to discriminate against a qualified individual with a disability. The ADA also outlaws discrimination against individuals with disabilities in the provision of State and local government services, public accommodations, transportation and telecommunications. This outline is limited to the employment context.

The ADA Applies to All “Employment Practices”

This means that any decision relating to employment must be made without violating the ADA. Some of the most common “employment practices” include:

Recruiting Hiring
Firing Pay
Promotion Job Assignment
Training Leave


The Three Types of Discrimination

1. Discrimination in Employment Practices

Employers may not make employment-related decisions because of a disability.

2. Retaliation

Employers may not retaliate against an applicant or employee for asserting his rights under the ADA.

3. Associational Discrimination

Employers may not discriminate against an applicant or employee because he associates with someone disabled.

Pre-Employment Inquiries and Medical Exams

An employer may ask “disability-related questions” and require medical exams only after the applicant has been given a conditional job offer.

1. Before an Offer Is Given, An Employer May:

  • Ask about the applicant’s ability to perform specific job functions.
  • Ask about the applicant’s non-medical qualifications and skills.
  • Ask about how the applicant to describe how he would perform job tasks.

2. Once a Conditional Offer Is Made, An Employer May:

  • Ask disability-related questions and require medical exams but only if this is done for all entering employees in that job category.

3. If the Offer Is Revoked, the Employer Must Show:

  • That the disability-related reason is job-related and consistent with business necessity; or
  • That the employee poses a “direct threat” of substantial harm to himself or to others and the risk cannot be reduced through a reasonable accommodation.

Pre-Offer Disability-Related Questions

1. What Is a “Disability-Related” Question?

A “disability-related question” is a question that is likely to elicit information about a disability. This includes directly asking an applicant whether he has a particular disability. It also means that an employer cannot ask questions that are closely related to a disability.

2. What If the Applicant Has an Obvious Disability?

If an applicant with no known disability interviews for a job, the employer may not ask whether the applicant will need an accommodation to perform the job.

But when an employer could reasonably believe that an applicant will need reasonable accommodation, the employer may ask the applicant certain limited questions, including whether he needs reasonable accommodation and what type of accommodation would be needed to perform the functions of the job.

This is permissible in three circumstances:
  • If the applicant voluntarily discloses a hidden disability;
  • The employer reasonably believes an accommodation will be needed because of an obvious disability; or
  • The applicant voluntarily discloses that he needs a reasonable accommodation

Police Officer-Pastor Is Transferred After Making Anti-Gay Comments During a Sermon

Posted by Molly DiBiancaOn July 6, 2008In: Public Sector, Religious (Title VII)

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An officer of the LAPD has sued the City of Los Angeles and its Police Department, alleging First Amendment violations and religious discrimination.  The officer's claims are based on off-duty statements he made regarding the Bible's teachings on homosexual acts. 

The officer, Sgt. Eric Holyfield, a Christian pastor, quoted Bible passages during a eulogy for a fellow officer, explaining that homosexuality "was an abomination" and that persons who engage in homosexual conduct "must repent or be condemned to hell."

According to

Holyfield was removed from his "coveted assignment in Community Relations" and assigned to patrol "without due process and in violation of his First Amendment rights." 

To survive dismissal of a First Amendment claim, a public employee must sufficiently allege that he was acting in his capacity as a citizen--not in his employment capacity.  This has been a difficult burden for many plaintiffs to overcome.  Here, Holyfield is apparently aware of the requirement.  He alleges that his speech was made in his role as a minister in the community, not a police officer.  He also points out that he was on vacation that day, he was in a church, which was outside the city, and was dressed in civilian clothes.  All of these factors weigh strongly in favor of a finding that he was not speaking as a police officer when he gave the sermon that resulted in his transfer. 

Given the fervor relating to Barack Obama's ties to Reverend Jeremiah Wright, it will be particularly interesting to see whether Holyfield's First Amendment and religious discrimination claims will survive a motion to dismiss.

Bosses Aren't the Only Workplace Toxins: What to do with toxic employees?

Posted by Molly DiBiancaOn July 5, 2008In: Jerks at Work

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Although studies show that most workplace bullies are in a managerial or supervisory role, this is not always the case.  Employees who bully co-workers pose an equally dangerous threat.  Just as employees with a bully boss may feel like hostages, subject to the unpredictable whims of a tyrant, there are plenty of managers who feel the same way about toxic employees.


For supervisors who are facing the challenge of managing a Jerk at Work, there is an answer.  Here's a roadmap to get you started.


What behavior constitutes "toxic conduct."

Start by identifying what behavior is unacceptable.  Often, bullies are very subtle, leaving their targets questioning whether they are just imagining the abuse.  They may become very critical of others, try to take credit for others' work, seek approval or validation, or even sabotage interpersonal relationships by spreading gossip and rumors or creating internal conflict.


Why do toxic workers engage in this behavior.

Bullies are often driven by their own insecurities.  They worry about their competence, popularity, or rank in the office hierarchy.


How can a manager retain her control when she's being bullied by a toxic employee.

There are three steps in dealing effectively with a bully in the workplace.  Supervisors must deal with herself, with the bully directly and with the bully's coworkers.

Dealing with yourself.  The trick here is that, as hard as it can be to address bullying behavior, by avoiding it, the bully is likely to gain more and more confidence in the effectiveness of bullying tactics and then expand the scope of his efforts. A big part of eliminating toxic conduct is to rally up the nerve to actually deal with it in the first place, especially due to how easy it is to ignore.

Dealing with Coworkers.  Supervisors should also foster an environment that encourages employees to report unacceptable behavior.  It's not uncommon for employees to be scared to "tell" on a bully colleague.  But speaking up is essential to send a message to others that they need not tolerate nor accept bullying behavior. 

Dealing with the Bully.  The first step is to talk to the bully directly about his behavior.  Be clear about what conduct will not be accepted.  Make certain that the employee understands what will and will not be tolerated.  And then tie those behaviors to real rewards and discipline.  And as tempting as it might be to take a hard-line approach concentrating on punishing the employee, it's often more effective to focus on rewarding positive behavior.  The employee may need to be motivated and challenged in new ways.  He may have come to a point where his work is no longer challenging enough, leaving him bitter, jealous, and resentful, with lots of free time to concentrate his energies on bullying conduct.


Everything You Needed to Know About Your Toxic Boss

Posted by Molly DiBiancaOn July 5, 2008In: Jerks at Work

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Toxic bosses infect the workplace and affect the workers in it.  BusinessWeek has been running a special series, Business at Work: Toxic Bosses.  The series focuses on the dangerous impact of what I call Jerks at Work. Bob Sutton, who is mentioned often on this blog, is one of the guest contributors. 


Dr. Annie McKee, Managing Director of Teleos Leadership Institute, is also a contributor.  McKee's post had a particularly important lesson I think is worth repeating here:

That’s one of the reasons why toxic bosses are so dangerous—their poisonous emotions cause us to sink to the lowest common denominator. Worse, when destructive emotions emanate from the most powerful amongst us, we catch the disease, then spread the pain. It’s not long before we live and work in an environment that is caustic, dissonant, and just plain miserable

McKee goes on to encourage workers with a toxic boss to try to resist the urge to fight back with equally toxic behavior.  I concur--enthusiastically.  As difficult as it can be, the most effective strategy is to channel our energies into maintaining a positive attitude.  We know how infectious negative emotions can be in the workplace.  It only takes one negative coworker to bring a rain cloud over the entire office. 

McKee says, pointedly, "Remember, the poison is his or hers, not yours! You have a choice about whether you mirror destructive emotions, moods, or styles." 

One way to do this?  Use the power of numbers.  Engage in your own campaign.  Gather the troops.  You are not the only one suffering at the hands of your toxic boss.  Make a pact.  If one of you is targeted, agree that the rest of you will rally around and fight back with positivity and support.

Fight back with positivity.

Earlier Jerks-at-Work Posts:

Jerks-at-Work Expert Confirms Office Incivility

Abusive Bosses Should Watch Their Backs

The Cost of Bully Legislation

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

No Jerks Allowed, Catchy, Isn't It?

Respectful Workplace Policy

Top 5 Lessons to Be Learned from the Jerk at Work

Bullying Can Be Physical . . . But Torture?

Are Bullies Beating Up Your Employees’ Health?

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

Wal-Mart's Week Ends With a Bang--And We're Not Talking About Fireworks

Posted by Molly DiBiancaOn July 4, 2008In: Cases of Note

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Despite the holiday week, Wal-Mart probably is not feeling much like fireworks. A $6.5 million judgment is nothing to celebrate.  Earlier in the week, a class of more than 56,000 Wal-Mart employees was awarded $6.5m in back pay for wage and hour violations.  And it gets worse.  The penalties phase, scheduled for October, could bring another $2 billion in damages.

The alleged violations included unpaid training time and failure to comply with state law for meal and rest breaks.


Wal-Mart's own internal audits were used as damning evidence against the retail giant.  The company had performed a series of audits that supported the employees' claim about missing meal and rest breaks. 

So is this strong support for never conducting an internal audit?  Well no, not really.  If your wage and hour practices are not in compliance with the law, that won't change by whether or not you perform an audit.  Nor will an audit change the likelihood that an employee with some knowledge of the wage and hour laws will file a claim with the Department of Labor.  Whether you chose to ignore it or chose to address it, a violation is a violation.

Ok, so why did Wal-Mart's audits end so badly?  The audits did not end badly.  The unlawful practices did.  Audits don't serve much purpose unless the employer acts to correct any problems that the audit reveals.  If you don't actually act on the information, the audit is nothing more than evidence--against yourself. 

Another question, though, that is raised by this case is why the audits came into evidence in the first place.  Performing an internal audit must be done with great care to ensure that the information cannot be later used against the company.  Some believe that involving legal counsel in an internal audit is the best way to achieve this. If the audits are generated for counsel, attorney-client privilege may attach and serve to protect the results.  Undoubtedly, though, how the audit is conducted is just as important as what is done with the results . 

From Cancer Sticks to Drumsticks: How Far Should Employers Go When It Comes to Employees' Health?

Posted by William W. BowserOn July 3, 2008In: Off-Duty Conduct, Wellness, Health, and Safety

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Workplace discrimination based on smoking habits and tobacco use has garnered national attention as a wide-spread employment practice.  Weyco, Inc. was the first large employer to make the news for its tough stance against smoking when it fired several employees after they failed to quit smoking.  Its actions have been at the center of the debate of an employer's right to control the on- and off-duty conduct of its employees.  (See the list of prior posts on this topic, below). 


Now, PETA, People for the Ethical Treatment of Animals, an organization perhaps best known for throwing blood on people wearing furs, has called on Weyco to take its policy to the next level. PETA has written to Weyco President Howard Weyers urging him to hire only vegetarians.

In its letter, PETA points out that the consumption of meat and other animal products has been conclusively linked to heart disease, diabetes, several types of cancer, and obesity. PETA also recommends that the company provide employees with free vegetarian lunches--a program that PETA is offering to help implement--to improve the health of the company's current employees.

"When you take into consideration all the diseases that have been linked to meat consumption, it adds up to a mountain of health care costs," says PETA's Ashley Byrne. "Discouraging smoking is a great idea, but if Weyco really wants to get serious about cutting costs, it'll urge its employees to ditch drumsticks as well as cancer sticks."


Other Posts on Smoking in the Workplace:

A Whirlpool of Excitement about Rights of Employees Who Smoke

Delaware Employers & Smoking Employees (Part 1) Smoking Breaks

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

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

Delaware Employers & Employees Who Smoke (Part 4)

Employer Quits Its Smoking Policy

Not Everyone Is Fired Up About Smoking Ban

EEOC Files Religious Discrimination Lawsuit

Posted by Molly DiBiancaOn July 2, 2008In: Dress & Attire, EEOC Suits & Settlements, Religious (Title VII)

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Everyone's talking about dress codes.  Pantyhose or no pantyhose?  Flip-flops causing mutiny in the workplace. What not to wear is not just a TV show, it's regular water cooler talk these days.  A new case filed by the EEOC shows a much more serious side of the dress-code debate--how dress codes can turn into discrimination.


The Equal Employment Opportunity Commission has sued Texas business, Champion National Security Firm, for religious discrimination after the company did not hire a Sikh who refused to shave his beard and take off his turban.

The claimant, Sukhdev Singh Brar, applied for a position as a security officer, was called for an interview and then got the job.  Well, almost.  Brar alleges that a company representative told him, "'I'm going to hire you, but you have to shave and take off your turban."  Brar says he told the interviewer that her request was against federal law and his religion. 

But she was not dissuaded.  Even after he told her that it was against his religion to cut his hair and remove his turban, she told him that this was the company's policy and the policy wasn't going to change.  "I cannot cut my hair. I cannot take off my turban," he said.

Title VII prohibits employers from discriminating against employees and applicants because of their religion when making decisions about hiring, firing, and other terms and conditions of employment.

The Act also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer. Flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers are examples of accommodating an employee's religious beliefs.

The standard for religious accommodations is "undue hardship."  But what exactly is  an undue hardship? According to the EEOC, "an employer can claim undue hardship when accommodating an employee's religious practices if allowing such practices requires more than ordinary administrative costs."  The EEOC goes on to identify some examples of a religious accommodation:

Employers cannot schedule examinations or other selection activities in conflict with a current or prospective employee's religious needs, inquire about an applicant's future availability at certain times, maintain a restrictive dress code, or refuse to allow observance of a Sabbath or religious holiday, unless the employer can prove that not doing so would cause an undue hardship.

The undue-hardship standard is substantially easier to meet as compared to the standard used in disabilities accommodations. But, even under a lenient standard, the employer must still have a reason for refusing to accommodate a religious request.  And just saying, "Well, that's our policy" is not going to cut it.  I'd be interested to know what the company's defense will be; what will it claim was the hardship?  And the employer may very well have one--it refused to settle (or at least to settle on the terms offered by the EEOC).  Employers stay tuned, the dress-code debate is sure to heat up.

America's Working Moms; Are We Just Whiners?

Posted by Adria B. MartinelliOn July 2, 2008In: Women In (and Out of) the Workplace

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Women in America are having babies at a considerably higher rate than our European counterparts. So is there something special about being a mom in America that makes it more appealing? And how does the high American birthrate jive with the fact that a high proportion of American women are in the workplace, where the work/mother balance is not eased by government benefits provided in some European countries?  The saying “nothin’ more American than Mom and Apple Pie” is apparently more appropriate than ever as we approach this Fourth of July holiday.

A recent article in the New York Times titled," No Babies,"  discusses some of these questions and points to some possible answers. The article points out that the United States has one of the highest birthrates of almost anywhere in the developed world – an average of 2.1 births per woman. European countries discussed in the article range from 1.3 to 1.7.Work-Life Balance

I recently posted a Family Responsibilities Discrimination Update, in which I wrote about WorkLife Law’s study about flexible work statutes in other countries. The study suggests that the United States would be wise to follow some of our more enlightened European brethren when it comes to employers’ accommodation of working mothers.


If that’s true, and the “balance” that America’s working moms are forced to strike is a more difficult one than that in many European countries, one would expect a natural consequence to be that American women to have fewer children than their European counterparts. If American working women enjoyed the benefits of state-funded childcare, liberal maternity leave policies, and statutory flexible schedules, just to name a few—wouldn’t we have more children?? Not necessarily.

The article states that within Europe, the statistics seem to suggest that the more juggle-friendly the country, the higher the birthrate tends to be. So how do we explain the U.S., which has a healthy birthrate of 2.1, despite offering relatively little government child-care assistance?

There are various hypotheses regarding the difference. The author of the article suggests that the key seems to be the flexibility of our labor market and workplaces, coupled with social mores that increasingly encourage fathers to take an active role in child rearing. In Italy, where there are traditional views about gender roles, the birthrate is only 1.3, whereas in the Netherlands where fathers share more of the traditional child-rearing roles, the birthrate is 1.7. In other words, women whose partners change the diapers, pick up kids from soccer practice, and clean up the living room, tend to have more children than those who don’t.

So, although the U.S. government offers us little in the way of social services to manage the load, our society supports the notion of women in the workplace, and our spouses (apparently) help to lighten our load. So what are we complaining about?

See Prior Post:

Family Responsibilities Discrimination Update

Jerks-At-Work Expert Confirms Fridge Raiding Is #1 Worst Workplace Incivility

Posted by Molly DiBiancaOn July 2, 2008In: Jerks at Work

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The topic of "Jerks at Work" is one of my favorite. Why co-workers and bosses act like jerks.  Why employees don't get in trouble for being jerks.  What to do about a jerk at work.  And why employers should face jerks at work head on.  

Hand-in-hand with Jerks at Work is the topic of Workplace Etiquette--or lack thereof.  The sheer volume of workplace affronts workers must confront daily can be overwhelming.  Not to mention the incredible variety of crude, rude, and downright discourteous conduct in the workplace is alarming. 

I posted earlier in the week about a report from The Ladders.com about which of these numerous breaches of office etiquette employees took most personally.  I was surprised to learn that the #1 most offensive exhibit of bad manners is lunch theft!  That's right, your coworkers just cannot, will not, shall not, tolerate the extraordinary disrespect they equate with the office refrigerator raider.  Apparently, across the country, rogue employees, surely outcasts of mainstream office-worker society, are sneaking into the closest kitchenette and snatching your left-over lasagna.  (See my earlier post, Put Down the Brown Bag and Back Away From the Lunch).

According to a post earlier today, An Anti-Rudeness Warrior On Handling Jerks at Work, by Tom Weber at the WSJ Blog, there is an "expert" who can speak to both issues--Jerks and Lunch Theft!  Dr. P.M. Forni, author of The Civility Solution and Choosing Civility: The Twenty Five Rules of Considerate Conduct, has started a campaign of sorts to convert the Jerks of the world to conduct themselves with a bit more respect.  You can read all about his mission at the Johns Hopkins website devoted especially to Civility.

But, much to my delight, in Weber's interview with the Doctor of Do-Right, he concurs that the severity of the "sandwich situation" has really gone too far.  He gives the following advice to help us cope:

The Civility Solution

Buzzwatch: What’s the most common workplace rudeness question you hear?

Dr. Forni: At the very top of the list, a common act of incivility is that of taking credit for other people’s work. At the top of some other lists is the person who takes food from the office refrigerator, or takes a bite from another person’s slice of pizza in the office fridge and then puts it back. That’s not to be taken lightly, but I don’t think it’s as egregious as taking credit for someone else’s work.

Buzzwatch: How would you handle that?

Dr. Forni: Depending on how egregious it was, I would start with the culprit. I would say, give the culprit some benefit of the doubt and say, “You failed to mention that a good part of the report was done by my office under my direction. It was a collaborative effort and I think the boss had the impression instead that the bulk of the work was done by your group. I think we should rectify that impression.” The burden is on that person to send an email to the boss with a carbon copy to you.

If the culprit is reluctant to set the record straight, then you go one rung up the ladder and you explain to the supervisor what happened and say that you owe it to yourself and to your team that she, the boss, know exactly how the plan came into being. You do this without being judgmental about what the colleague did, without using harsh words, without revisiting in a blaming way what your colleague did or did not do. Stay focused on the issue that this is the version of the facts that the boss needs to hear.

Source:  An Anti-Rudeness Warrior On Handling Jerks at Work

Oh, Morality. Teacher Fired for Being the "Hottest Wife"?

Posted by Michael P. StaffordOn July 2, 2008In: Newsworthy

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Morality clauses are in the news again.  A Connecticut second-grade teacher was fired after she appeared, with her husband, on Howard Stern's radio show.  The couple participated in a contest called, "Hottest Wife, Ugliest Husband."  She sued her former employer alleging, among other things, sex discrimination and due process violations (under Section 1983).  She has also sued the union for violation of the duty of fair representation with regard to its alleged failure to advocate on her behalf during the grievance process.


The teacher, Marie Jarry, took a sick day from work to participate in the contest (which, by the way, they won first prize and $5,000).  She admits maybe that wasn't the best idea.  When she returned to work, she was told she'd violated the school's "morality clause" and was terminated.  

More details can be found at The Smoking Gun, as well as a link to the full complaint.


For more on morality clauses, see these recent Delaware Employment Law posts:

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

[Editor's Note: Dan Schwartz of the CT Employment Law Blog always keeps his readers up to date on the hottest employment law topics and stories.  He has a great way of demonstrating how just about everything is related to employment law in some way. Well, being the legal eagle that he is, Dan apparently spotted this story at just the same time as Michael Stafford.  So, although I can't send him a hat tip for the story, I do want to send an equally enthusiastic "great post!" to Dan for his great catch.  I mean, really, sharing is a very important value.  If more managers would give credit where credit is due or share credit where possible, they'd have a much happier group of employees and, in turn, a much easier job.  All of that being said, go check out the CT Employment Law Blog for more on this story and Dan's other great posts! md]

100 of the Best Leadership and Management Blogs

Posted by Molly DiBiancaOn July 1, 2008In: Employee Engagement, Internet Resources

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100 great blogs all in one place!!  Is it possible? Well, of course.  Right here at Delaware Employment Law Blog! Under the "Resources" tab at the top right of our home page, the "Blog List" gives you access to more than 160 blogs, all in one place.


HR World has done the same thing, so double your blog intake. 

Here are some of my own favorites from each of the categories:

Leadership:  Wally Block's 3-Star Leadership Blog has always regularly updated and sophisticated content on a broad range of topics relating to leadership and business management. 

Creativity & Inspiration:  I've mentioned before my admiration for David Zinger, who's responsible for the Slacker Manager blog.

Self-Awareness:  Be sure to check out the blog of Marshall Goldsmith, executive consultant and author of What Got You Here Won't Get You There.  But don't forget Seth Godin's Blog, which is wildly popular and only getting hotter,  or David Maister's Passion, People, and Principles.

Development, Marketing and FinanceManaging Leadership, The Strategic Role of the Senior Executive, is a recent addition to my blogroll with insightful and intelligent commentary. 

Using Technology:  The Web Worker Daily is always content-rich--in quantity and in quality.

Getting Results:  Smart Talk on Conversation by Susan Bird focuses on employee and customer engagement with word-of-mouth marketing, interactive dialogue, and social networks.

Branding:  The Engaging Brand Blog: Employee-management tips permeate this blog by Anna Farmery, speaker and social-media coach.

Women:  The Power of the Purse: Fara Warner finesses on how companies can cater to “the world’s most important consumers”— women.

July 8: SHRM Delaware Diversity Seminar

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

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For HR professionals in and around the Maryland-Delaware-Philadelphia area, the Delaware and DelMarvVa Chapters of SHRM are jointly hosting a seminar on Diversity that may interest you.  The seminar will be held a week from today, Tuesday, July 8 and is approved for HRCI credit.  More details below.


The DESHRM and DelMarvVa SHRM Chapters, in cooperation with Wilmington University, are pleased to host Grace Odums, Nationally Renowned Speaker, who will speak about 21 Diversity PrinciplesCome find out how best-in-class organizations are employing the 21 Diversity Principles in their organizations and realizing breakthrough performance results.

Tuesday, July 8, 2008
5:30 P.M. Dinner Meeting
Cavalier Country Club

Registration forms and information are available at Delaware SHRM's website.  

Reserve an entire table for your company by forwarding the names of the eight attendees that will be sitting at your table. Invite others from your department for this informative session!

Who Wears Sweaters in the Summer? Chilly Office Workers, that's Who

Posted by Molly DiBiancaOn July 1, 2008In:

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What's the #1 complaint about workplace conditions?  Chilly temperatures.  A segment on the Today Show, "Is Your Office Too Chilly?" confirms William Bowser comments in an earlier post, Is It Just Me Or Is It Hot In Here? What's the Deal With the Office Thermostat? about employees who complain about the frigid conditions they face throughout the year. 

freezing thermometer

The program featured a segment about the perpetually cold offices and the lengths to which employees will go to warm up.  From fleece jackets, to wooly blankets, to portable space heaters, nothing is much when it comes to temperature. 

The segment also mentioned the study to which Bill earlier referred--that cold temperatures make employees less productive.

And, to end the dispute once and for all (yeah, right), they give us the "ideal temperature" for an office environment:  Between 69-70 degrees.  Even then, though, there will still be 10% of the office population who is unhappy.  5% will be too cold and 5% will be too hot. 

The Office Thermostat Wars will have to continue for now. 

November 18 - 19: Delaware SHRM HR Conference

Posted by Molly DiBiancaOn July 1, 2008In: Seminars, Past, YCST

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Human Resource professionals, recruiters, trainers, and managers who want access to the latest developments in organizational leadership practices should mark their calendars.  The 8th annual Delaware SHRM conference is just weeks away.  This year, the program will be held at the Clayton Hall Conference Center at the University of Delaware.   image

The program schedule is extraordinary and features some outstanding speakers, including keynote speakers, Bill Cawley, Executive Vice President, Bank of America, and motivational speaker, as well as wellness coach, Christine Sopa, founder of Chris Sopa International.  Peggy Eddens, Executive Vice President - Human Capital Managment, WSFS, will lead off the event at the Evening General Session on Tuesday, November 18.

And, returning again by popular demand, attorneys William W. Bowser and Scott A. Holt will present The Good, The Bad, and The Ugly: Employment Law Update 2008. This yearly update is a great way to get up-to-speed on the many important developments from the last twelve months--in the courts and legislatures of Delaware and nation wide. 

Registration information and additional details can be found at the HR Conference Page on the Delaware SHRM's website.

Is It Just Me Or Is It Hot In Here? What's the Deal With the Office Thermostat?

Posted by William W. BowserOn July 1, 2008In: Employee Engagement

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Sunday night, I had a meeting with about 10 people at my office.  When I arrived a few minutes before the meeting was scheduled to begin, it was clear that the air conditioning was not operating correctly.  For those not familiar with Delaware summers, no air condition is not a good thing.   The conference room was stuffy already and bound to get worse. I immediately adjusted the thermostat on the wall, no response.  A call to the night desk for assistance brought the bad news -- "the air-conditioning system is shutdown at 6 o'clock on Sundays until the next morning." 


The guard at the desk then added, "it's hot down here too."  Misery loves company.

As I suffered through the meeting, with the lights dimmed to keep the conference room as tolerable as possible, my mind began to wonder.  I began thinking about how office temperature is a very frequent topic in our office.  Somebody is always complaining that it's either too hot or too cold.

After the meeting, I did some quick surfing of the Internet.  Turns out that the Sunday New York Times has an article on the topic of office temperature.  The article explores why some workers (usually female) are more likely to be cold and why some (usually male) employees complain that the office is hot.  It also cites a Cornell University professor who says that raising the office temperature from a chilly 64 to a balmy 77 increases productivity and lowers mistakes. 

As I type this post, everything has returned to normal. The thermostat in my office is appropriately turned down to 65 and the office is becoming nicely chilled.  It won't belong before someone enters with the familiar refrain "what do you have this thing set at?"  In the past, my usual response has been, "I don't know, I didn't touch it."  

But maybe a new response is appropriate, given my obsession with going green at work and at home, and my new-found knowledge about the correlation between office temperature and employee productivity?  . . . Naaaaaah.