November 2008 Archives

Employers Use MySpace for Hiring and, Now, Defending Discrimination Claims

Posted by Molly DiBiancaOn November 30, 2008In: Background Checks, Social Media in the Workplace

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Employers have used MySpace to screen potential job candidates.  Employers have fired employees for something posted on the employee's Facebook and MySpace pages.  Even the incoming White House administration is requiring applicants to disclose any potentially embarrassing content on social networking sites.  So we've seen the role Facebook and MySpace have played in hiring and firing decisions.  But there is a new use for employers--using Facebook and MySpace in litigation.  Specifically, litigation against former or current employees.    image

Dan Schwartz at the CT Employment Law Blog pointed out this new use as described in an article at entitled "Are Social Networking Sites Discoverable?" The article concludes that the information found on a plaintiff's MySpace or Facebook page is likely discoverable during litigation.  From the article:

Although these sites provide users with a sense of intimacy and community, they also create a potentially permanent record of personal information that becomes a virtual information bonanza about a litigant's private life and state of mind. The converse thus becomes the moral for litigation counsel -- this new generational fount of potentially discoverable information should be high on the list of priorities when evaluating a new matter.

Dan raises a great point--what if the employee's website contains comments that would disprove his claim?  For example, if an employee is claiming national-origin harassment and his co-workers said that there was an environment of friendly, though inappropriate (but not unwelcome), banter between the young males in the department.  The employee claims that he never engaged in this banter but, instead, he was subject to frequent comments so severe that it made his workplace a hostile environment.  So there's the employee's word and the word of his co-workers.  Not much to go on as far as a defense goes. 

But what if the employee's MySpace page was peppered with inappropriate comments of his own?  And what if the comments were exactly the ones identified by the co-workers? 

It's not difficult to imagine this potentially case-changing scenario.  It looks like MySpace and Facebook are here to stay as a tool for employers to learn potentially crucial information about employees--old and new.

Employee Misclassification Prevention Act Update

Posted by Molly DiBiancaOn November 30, 2008In: Independent Contractors

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Independent Contractor Update:  Earlier this year, legislation was introduced that would prevent employers from improperly classifying employees as "independent contractors" in order to avoid paying them overtime and benefits. The Employee Misclassification Prevention Act (H.R. 6111) hasn’t seen any activity since June, when it was referred to the House Ways and Means’ Subcommittee on Income Security and Family Support. (Readers may recall that this was the same time that the Delaware and Pennsylvania state legislatures were reviewing similar legislation). 

In light of the impending change in the White House and the pro-union legislative efforts that are sure to follow, it may be time to take a second look at the Employee Misclassification Prevention Act. (Especially since President-elect Barrack Obama was one of two Senators to introduce S. 2044, called the “Independent Contractor Proper Classification Act of 2007,” which would repeal section 530 safe harbor for classifying workers as independent contractors.)

Aside from clarifying that misclassifications are a prohibited act under the FLSA, the proposed bill would also increase penalties under appropriate circumstances and require the U.S. Department of Labor (DOL), and the states to work together to better detect misclassification. In addition, the bill would: (1) require employers to designate on their employee's records whether they are an "employee" or "independent contractor;" (2) require employers to notify workers of that classification and their right to challenge it; and (3) require state unemployment insurance agencies to audit employers to identify employers who are misclassifying employees.

The DOL and Internal Revenue Service (IRS) would also be required to share information on cases where employers misclassify workers. In addition, the proposed bill would mandate that the DOL perform targeted audits focusing on employers in industries that frequently misclassify employees. Presumably, the construction industry would be a prime target, in light of the fact that the industry was the focus of both Delaware and Pennsylvania’s proposed laws, both of which shared the same name, the Construction Industry Independent Contractor Act.

According to the latest comprehensive study by the IRS, 15% of employers in the U.S. were misclassifying employees as independent contractors. 3.4 million employees were affected. The IRS’s findings are similar to those of the May 8, 2007, report by the Government Accountability Office. The report, titled “Employee Misclassification -- Improved Outreach Could Help Ensure Proper Worker Classification,” concludes that there were 10.3 million independent contractors in 2005. That number grew from 6.7% of the total workforce in 1995 to 7.4% in 2005.

And what’s so bad about misclassification? For one, misclassification costs the Treasury billions in lost revenue. Additionally, improper misclassification artificially lowers costs for those businesses that engage in the practice. In turn, the businesses that follow the rules are put at a competitive disadvantage. But the real focus of the proponents of the legislation has been the potential harm to the employees who do not have access to the benefits and protections to which they are entitled under the law.

Misclassification violates the Fair Labor Standards Act (FLSA), because it enables employers to avoid meeting the mandatory minimum wage and overtime requirements. And, just as they are exempted from the requirements of the FLSA, independent contractors also are not protected by worker’s compensation and discrimination laws and are not entitled to unemployment insurance.

The employers’ perspective is equally compelling. For a variety of reasons, such as fluctuating work demands and seasonality, many businesses cannot afford to maintain a workforce comprised exclusively of year-round employees. Independent contractors provide a solution to the demand for personnel with specialized skills and knowledge that may be required for short-term projects. Additionally, the ability to set one’s own schedule is seen by many as an attractive benefit.


Can Desk Treadmills Help Employees Walk Away From Cancer?

Posted by Molly DiBiancaOn November 25, 2008In: Wellness, Health, and Safety

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Employee wellness programs are great.  Employers like the cost reductions in insurance and related health-care costs.  Employees like to be able to shoot hoops at lunch or take a yoga class on-site after work.  But what about wellness while you work?  The idea of the treadmill-desk is one I've posted about before.   (See These Pumps Were Made for Walkin').  "Walkstations," as they're known, have been touted as the missing link between a truly obtainable harmony between wellness and the daily corporate grind. Walking At Work: The Best Medicine

Now, the makers of Trekdesk claim that the benefits of walking while you work are even more substantial.  According to a promotion for the company, you can walk your way to thinness by losing one to two pounds per week, or more, without dieting.  It can help you sleep through the night, help correct back problems, improve your mood, and even reverse and delay aging.  And, according to the manufacturer, “Walking has been shown to prevent colon, prostate and breast cancer along with a multitude of other diseases."  Hence, employees who walk will be helping to prevent cancer.  Pretty lofty claims.

In the end, I am more than a little skeptical of the validity of these expectations.  But, I'm not skeptical about the potential impact on productivity and general health that can result from regular exercise.  Not that I'm committing to the purchase of a TrekDesk quite yet--after all, there are no prices listed on the manufacturer's website.  But I'm willing to keep an open mind. when it comes to wellness.

Dep't of Labor: Guidance on Employing Young People With Disabilities

Posted by Molly DiBiancaOn November 25, 2008In: Disabilities (ADA), Internet Resources

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Fact Sheets for Employing Youth with Disabilities.  The U.S. Department of Labor ("DOL"), released three new fact sheets that provide helpful information on employing young people with disabilities, including:  Tips for Parents with Children with Disabilities, What Young People with Disabilities Need to Know, and Including Talents of Young People with Disabilities.

The third is of particular interest to employers.  Published by the Office of Disability Employment Policy ("ODEP"), the four-page fact sheet provides a detailed list of references for where to find young people for both internships and for permanent placement. 

News Anchor Given 6 Months' House Arrest for Workplace Privacy Violations

Posted by Molly DiBiancaOn November 24, 2008In: Privacy In the Workplace, Privacy Rights of Employees

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Larry Mendte, former Philadelphia news anchor, was sentenced today in federal court after pleading guilty to reading the emails of his former co-anchor, Alycia Lane, and forwarding the information along to reporters, reports the Philadelphia Inquirer.   Mendte was sentenced to three years of probation, a $5,000 fine, and 250 hours of community service.

Mendte, who apologized for his conduct, admitted that he accessed Lane's personal email on more than 500 occasions.  He stated that he was motivated by a "flirtatious, unprofessional, and improper" relationship he'd had with Lane.  Lane was present in the courtroom but did not speak on her own behalf. Lane and Mendte: Delaware Employment Law

For the salacious details of this unusual workplace drama, see our earlier posts:

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails
Employee Embarrasses Employer, Who Fires Employee, Who Sues Employer
Prying Eyes: What is "Private" Becomes Even Fuzzier for Employees Who Snoop
ABA Journal Takes Note of Our Newsworthy News Anchors
TV News Anchors' Soap Opera Has the Makings of a Made-for-TV Drama
The Mendte-Lane Saga Concludes With a Guilty Plea and a Lawsuit


And what, if anything, can be learned from this latest chapter? Here's what I would offer as the Lessons to Be Learned from the Love-Hate Saga of Larry Mendte and Alycia Lane:


  1. Anti-fraternization policies may get some good publicity from this case.  The "flirtatious" relationship between the two co-anchors seems to be, according to Mendte, what sparked his bizarre conduct.
  2. Be careful not to disregard the claims of the co-anchor who cried wolf.  Despite Lane's prior allegations regarding Mendte's alleged snooping, her employer was not inclined to believe her, probably because she'd previously volunteered for the spotlight by appearing on the Dr. Phil show, and other unusually public conduct.  This goes to show that, when receiving a complaint from an employee, not to carry our own biases and preconceived beliefs into the investigation.  Go figure--she might actually be telling the truth!
  3. Privacy is a big deal.  It's a big enough deal that his violation of it landed a very popular local public figure into very hot legal water.  As Mendte is reported to have opined during his sentencing hearing: "When I look back on the story of my life, I can't believe it brought me to this moment. I am ashamed."

The Intersection of Worker’s Comp, FMLA, and ADA

Posted by Molly DiBiancaOn November 24, 2008In: Disabilities (ADA), Family Medical Leave, HR Summer School

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The Family Medical Leave Act (FMLA), Americans With Disabilities Act (ADA), and state worker’s compensation laws are not mutually exclusive. By qualifying for one, an employee is not automatically disqualified from the others.

For example, an employee who is hurt on the job is not necessarily ineligible for FMLA leave. He still must be an eligible employee, work for a covered employer, and have a serious health condition. If his on-the-job injury resulted in him being absent from work for two days, though, he would not qualify for FMLA because a serious health condition is defined, in part, as an illness or an injury that incapacitates the employee for more than three consecutive days.

And what about an employee who exhausts all of his FMLA leave but is still on disability leave? Can he be terminated if he fails to return to work at the end of the 12-week period? Certainly an employer can terminate an employee who fails to return to work after exhausting all available leave.

But there is another level to this question. If the employee is on disability under the company’s disability-insurance plan, his serious medical condition may very well qualify as a disability, as well, under the ADA. The ADA requires that employers make “reasonable accommodations” for qualified employees. The U.S. Equal Employment Opportunity Commission (EEOC), and the courts have taken the position that an accommodation may take the form of a modified work schedule, flexible leave policy, or even just additional time off.

Whenever faced with a decision about whether to terminate an employee who is about to exhaust all of his FMLA time but is not expected to return to work, be sure to consider whether the ADA is applicable and what is required if it is.

For more information on legal compliance with the FMLA and ADA, see the posts in the HR Summer School category, which covers these topics in a comprehensive and no-nonsense style.

December 9: In-House & Corporate Counsel CLE Seminar

Posted by Molly DiBiancaOn November 22, 2008In: Seminars, Past

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73.5% of corporate and in-house counsel report that their companies have been a defendant in employment-related litigation over the last three years. Delaware employers, therefore, have an immediate need to understand state employment laws. To address these concerns, the Employment Law Group at Young Conaway Stargatt & Taylor, LLP, will host a CLE seminar specifically for in-house counsel with responsibilities for Delaware employees.

The seminar will be held at our offices in Wilmington, Delaware on December 9, 2008, from 9 am - 12 p.m. Registration is $105 per person and includes all seminar materials, validated parking, continental breakfast, and, as a bonus, the 2009 edition of the Delaware Employer's Handbook, which annotates the state-specific employment laws. Registration is open until November 26, 2008, and seats are limited.

To register, visit the Young Conaway website and register online or download the form for submission via fax, e-mail or mail. If you have any questions, please feel free to call or e-mail Shaina Carl (302) 571-4745 or

December 12: Breakfast Briefing on Proposed Union Legislation

Posted by Molly DiBiancaOn November 21, 2008In: Seminars, Past

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The Employee Free Choice Act and the RESPECT Act are considered priorities in 2009 by members of Congress and President-elect Barack Obama. 

If approved, these acts would significantly change labor-management relations under the National Labor Relations Act (NLRA) by:

  • making it easier for unions to organize employees;
  • requiring binding arbitration of first contracts after 120 days;
  • increasing penalties for certain unfair labor practices; and
  • changing the definition of "supervisor" dividing loyalties of supervisors between the company and the union. 

What will changes to the NLRA mean for employers' bargaining power?  What strategies can be implemented by employers who wish to remain union-free? 

Join us for a panel discussion about these important labor and employment law changes.  During our discussions, we also plan to talk about other labor and employment legislation that is likely to be enacted in the next year, including:

Ledbetter Fair Pay Act and the Paycheck Fairness Act - improve plaintiffs' chances of winning pay discrimination claims

Civil Rights Act of 2008 - would remove $300,000 cap on damages under Title VII and the ADA

The Working Families Flexibility Act - employees can request modification of work hours, schedule or location and require meetings and explanations for denials

The Forewarn Act - reduces WARN Act coverage to employers of 50 employees, and extends notice period to 90 days (from the current 60).

Barry M. Willoughby will moderate the panel, which will include attorneys Sheldon N. Sandler, William W. Bowser, and Scott A. Holt.  The program is free, so don't delay because it's likely to fill quickly. 


Event Web Page:  The Coming Union Revival Effort: What Labor & Employment Law Changes to Expect 

Registration Form: 

100 of the Leading Blogs on Leadership

Posted by Molly DiBiancaOn November 20, 2008In: Internet Resources

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100 of my favorite blogs on leadership and management.  Have a look around--it's Friday, after all!

  1. acidlabs
  2. Adventure of Strategy - Rob Millard
  3. Agile Management
  4. All Things Workplace
  5. Art Petty on Management
  6. Ask A Manager
  7. Ask the Manager
  8. Bailey WorkPlay :: The Alchemy of Soulful Work
  9. Bearing Fruit Consulting
  10. Billion Dollar Lessons
  11. Bold Leader Blog
  12. Bud Bilanich
  13. Business of Management
  14. Business Pundit
  15. Business Toolkit
  16. Cenek Report
  17. Center for Creative Leadership
  18. ChaosScenario
  19. Christian Anschuetz
  20. Coaching Tip: The Leadership Blog
  21. Contrarian Thinking
  22. ConverStations
  23. Cranky Middle Manager Podcast Show
  24. Dave Prouhet
  25. David Maister
  26. Dr. Z’s Leadership Institute
  27. Eclecticity
  28. Education Innovation
  29. Employee Engagement
  30. Enlightened Manager
  31. Eric Brown
  32. Escape from Excellence
  34. Extreme Leadership
  35. Frank Kanu
  36. Get Me Jamie Notter
  37. Great Leaders Build Strong Relationships
  38. Great Leadership
  39. Great Leadership
  40. Great Management - Articles
  41. Joe and Wanda - on Management
  42. Kent Blumberg
  43. Lead on Purpose
  44. Lead Quietly
  45. Leader Business
  46. Leader Storytelling
  47. Leader’s Journey with Lee Thayer
  48. Leaders We Deserve
  49. Leadership is not rocket science
  50. Leadership Made Simple
  51. Leadership Turn
  52. LeaderValues
  53. Leading Agile
  54. Leading Blog
  55. Leading Questions
  56. Management by Baseball
  57. Management Craft
  58. Management IQ
  59. Management Issues
  60. Management Quotes
  61. Management Skills Blog
  62. Management-Issues
  63. Manager Thoughts
  64. Manager Tools
  65. Managing Leadership
  66. Managing with Aloha Coaching
  67. MBA by Blog
  68. Mission Minded Management
  69. NetSpeed Leadership
  70. Nina Simosko
  71. Organic Leadership Blog
  72. Passion, People and Principles
  73. Performance and Talent Management Blog
  74. Personal Leadership Insight
  75. Phil’s Leadership Blog
  76. Practice of Leadership
  77. Quantum Thinking
  78. Richards Leadership
  79. Robin Yap
  80. Servant Leadership
  81. Slacker Manager
  82. Slow Leadership
  83. Strength-Based Leadership
  84. SuccessFactors
  85. Talking Story with Say Leadership Coaching
  86. The Art of the 3 Disciplines
  87. The Bizzy Life
  88. The Blogging Boss
  89. The Happy Burro
  90. The Leader’s Journey
  91. The Leader-Follower
  92. The Leadership Revolution
  93. The Organic Leadership Blog
  94. The Practice of Leadership
  95. The Recovering Leader
  96. The Specialist
  97. The Sykes Group’s OnPoint Blog
  98. The Vital Integrities Blog
  99. Unfolding Leadership
  100. You Already Know This Stuff

People, don't you understand: More Teacher Social Networking Woes

Posted by Michael P. StaffordOn November 20, 2008In: Public Sector, Social Media in the Workplace

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Employee foibles on social networking websites are back in the news.  According to the Raleigh News & Observer, a teacher in the Charlotte-Mecklenburg Schools may be fired because of derogatory comments about students that the teacher posted on her Facebook page


The comments included referring to "teachin' chitlins in the ghetto of Charlotte."  The teacher went on to note in the "About Me" section of her Facebook profile that she is "teaching in the most ghetto school in Charlotte."  She also listed drinking as one of her hobbies.  Apparently, other Charlotte-Mecklenburg teachers also have objectionable Facebook pages as the news story reports that several other teachers from the same district have been also reprimanded for Facebook comments that show, in the district's view "poor judgment and bad taste."   

Federal Contractor E-Verify Rule Is Final!

Posted by Teresa A. CheekOn November 19, 2008In: E-Verify

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The E-Verify program took center stage when federal contractors were mandated to use the system in June. The mandatory E-Verify took many federal contractors by surprise and put other employers on high alert.  The federal government issued a proposed rule on June 12, 2008, and solicited public comments. About 1,600 comments were submitted.

On Friday, November 14, 2008, the final rule for the E-Verify program was published in the Federal Register, together with summaries of the public’s comments and the government’s responses to the comments. To see the rule without the comments, go to the end of the document, but the comments and responses are helpful to the big picture.everify USHS

Here’s the bottom line. 

Starting on January 15, 2009, once you are awarded a federal contract worth more than $100,000 that has a performance term of 120 days or more, or if you have a subcontract worth more than $3,000, you will have 30 days to enroll in the federal contractor E-Verify program.  Enrolling involves signing a non-negotiable Memorandum of Understanding with the Department of Homeland Security and registering the individuals who will be using the system. I suggest that you take a look at page 5 of the E-Verify User Manual to get an idea of your options and what it will be like to use the system. The people you select to be “users” of the system will have to register and take the on-line tutorial before you can actually begin using the system.

You might want to register now and begin using the standard E-Verify system for new hires to give get a head start before the deadline. If you are already enrolled in the E-Verify program as of January 15, 2009, and you have a qualifying contract or subcontract, you will have to modify your enrollment to switch to the federal contractor version.  Within 90 days of enrollment as a federal contractor, you will have to begin using E-Verify for all new hires in the U.S. (including people who are not working directly on a federal contract), within three days after the employee begins working for pay.

There is one major difference between the federal contractor E-Verify process and the standard E-Verify process. Federal contractors will also have to run E-Verify on each current employee who was hired after November 6, 1986 and who is directly involved in work under the contract. The standard E-Verify process may be used only for new hires.

As you receive new contracts, or make new assignments of current employees to work on a contract, you will have 30 days to run those newly assigned current employees through E-Verify. You don’t have to run your current general administrative support and overhead employees through E-Verify if you don’t want to, but you will have the option of running all of your current employees through E-Verify. You might want to do this to avoid trying to figure out whether an employee is “directly” working on a contract. It’s also a good way to avoid accusations that you assigned an employee to work on a federal contract for discriminatory reasons. You have to give DHS notice if you decide you are going to use E-Verify for your entire post-11/6/86 workforce.

You will probably want to modify your employee information system now to include a way to track whether you have run each employee through E-Verify, and also (if you aren’t going to run all employees through E-Verify) to track whether the employee is working on a federal contract. You only have to E-Verify an employee one time, regardless of how many contracts the employee works on.

You will need to become familiar with some rules for avoiding discrimination while using the E-Verify. They are listed in the E-Verify User Manual. The most important ones are:

  • Employers may not verify newly hired employees selectively, and must follow E-Verify procedures for all new hires while their company is participating.
  • Employers may not request that the employee use certain documentation for Form I-9 or E-Verify purposes. (This would be considered to be “document abuse.”)
  • Employers may not use E-Verify to discriminate against any job applicant or new hire on the basis of his or her national origin, citizenship, or immigration status.
  • Employers may not use the system to pre-screen applicants for employment.
  • Employers must provide their employees with an opportunity to contest a Tentative Nonconfirmation (TNC). (This is what happens if the system finds a “mismatch” between database information and the information you submit about the employee.)
  • Employers cannot take any adverse action against an employee based upon E-Verify unless the program issues a Final Nonconfirmation.
  • Employee must continue to work during the verification process.

A good jumping off point for perusing the generous amount of information available on government websites about E-Verify is the USCIS web page.

Other related posts include:

DOJ: How to Prevent Discrimination Arising from the Use of E-Verify

E-Verify Employer Dos & Don'ts

GAO Says Universal Mandatory E-Verify Will Be A Challenge

A Season for Giving: How Ready Is Your Ethics Policy for the Gift Season?

Posted by Molly DiBiancaOn November 19, 2008In: Policies

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Employee handbooks often include an ethics policy that regulate the giving and receiving of gifts.  These "gifting" policies are not intended to regulate gifts among coworkers as much as the exchange of gifts with vendors, clients, and potential customers.  The provisions of gifting policies are dictated, in large part, by corporate culture. How restrictive your policy should be will be determined by a variety of factors, including how much direct interaction employees have with vendors and customers. 

For employers who may be considering implementing an ethics policy for gifting, the rules for federal employees are a good starting point.  The general rule for federal personnel is that supervisors may not accept gifts from subordinates or personnel who receive less pay.  But there are exceptions to the rule.

During the holidays, federal supervisors may accept gifts from their direct reports so long as the value of the gift is $10 or less.  Cash gifts are not permitted in any value.  The opposite is true when it comes to gifts from supervisors to subordinates--no restrictions apply.  Nor are there restrictions on personnel gift giving between peers.

These rules do not apply to office gift exchanges so long as gifts are chosen at random or recipients are able to trade gifts.  There are no limits on gifts here since the gift buyer does not know who will eventually receive the gift.  But, if the gift exchange is not random, i.e., if names are drawn in advance, the gift value rules apply. Holiday gift giving at work

The rules for gift-giving with contractors are only slightly modified.  Federal employees can accept gifts up to $20 in value--no cash gifts may be accepted.  Federal employees who want to give a gift to a contractor must first check with the contractor to be sure he or she does not have any ethics rules that would preclude them from accepting the gift. 

There are also rules regulating the ever-popular office holiday party.  Supervisors can participate in the office party and can accept food and refreshments when those items are being shared by others.  Supervisors can also contribute to the cost of the party.  And, if the subordinate attends a function at the home of a supervisor, the subordinate may give a host or hostess gift of the type and value customarily given.  Supervisors and subordinates can accept an invitation to the other's residence for a holiday party without restriction. 

One prohibition that seems grounded in common sense is the rule prohibiting federal employees from soliciting money from other employees or from contractors for the purpose of buying a gift for a supervisor.  Group gifts are limited to infrequent (as opposed to annual) occasions, such as baby showers and retirements.  And even then, contractors may not participate in the gift giving.

These rules may seem extreme when applied to your workplace.  But they're a good starting point for ideas on just how restrictive such policies can be.  These rules also point out some of the potential areas of concern for employees who may be uncomfortable with the gift-giving and party-circuit traditions in the office environment.

10 Most Important Changes to the FMLA Regulations

Posted by William W. BowserOn November 18, 2008In: Family Medical Leave

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The U.S. Department of Labor (DOL,) formally published its long-awaited Family and Medical Leave Act (FMLA) regulations on Monday, November 17, 2008. The regulations contain hundreds of changes and become effective on January 16, 2009 – just a few days before President-Elect Barack Obama takes office. This post discusses some of the most important of these changes.

1. Military-Caregiver Leave.

Military-caregiver leave was mandated by the National Defense Authorization Act (NDAA) Eligible employees are entitled to take up to 26 weeks of leave during a “single 12-month period.” The regulations make clear that the 26 weeks will be calculated on a per servicemember, per injury basis. The 12-month period begins on first day of leave and ends 12 months later and any unused leave cannot be carried over.

The NDAA states that military-caregiver leave can be taken by spouses, children, parents or “next of kin.” Under the regulations, “next of kin” is defined as the nearest blood relative (other than spouse, child, or parent). All family members sharing the closest level of relationship (i.e. siblings) are next of kin. Importantly, the injured servicemember can designate in writing who is next of kin.

In order to take military-caregiver leave the servicemember must be receiving treatment for a “serious illness or injury” incurred in the line of duty while on active duty. The servicemember must be undergoing “medical treatment, recuperation, or therapy, is otherwise in ‘outpatient status,’ or is otherwise on the temporary disability retirement list, for a serious injury or illness.” “Servicemember” is defined as member of the Armed Forces, including a member of the National Guard or Reserves. The regulations make clear that the illness or injury need not have occurred at a time near the need for leave.

2. Active-Duty Leave (Leave because of a qualifying exigency).

The NDAA also created another form of military leave. This leave is called “active-duty leave” or “qualifying-exigency leave.” Up to 12 weeks of active duty leave can be taken by spouse, parent, child. This leave cannot be taken by a servicemember’s “next of kin.”
Active-duty leave must be as a result of qualifying exigency arising out of the fact that a member of the Reserves or National Guard is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation. It does not apply to family members of Regular Armed Forces.

The regulations define seven categories of qualifying exigency: short-notice deployment; military events; child and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities; and a “catch-all” category of situations agreed to by the employer and employee. Details of these categories are set out in an earlier post.

3. Serious Health Condition.
The regulations also modify the definition of “serious health condition.” Period of incapacity, however, unfortunately stays at “more than three consecutive calendar days.” Incapacity must, however, be for “full” days. Moreover, the first visit to the healthcare provider must occur within seven days of start of incapacity and the visit must be in-person.

When relying on two visits to a health care provider to establish “continuing treatment,” the visits must occur within 30 days of the first day of incapacity. The second visit must be determined by the health care provider, not the employee.

Chronic conditions must involve treatment at least twice a year.

4. Light Duty.
The regulations now provide that time spent in “light duty” work does not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the light duty period. If an employee is voluntarily doing light duty work, he or she is not on FMLA leave.

5. Perfect Attendance Awards.
Employers will now be allowed to deny a “perfect attendance” award to an employee who does not have perfect attendance because he or she took FMLA leave – but only if the employer treats employees taking non-FMLA leave in an identical way.

6. Employer Notice Obligations.
The new regulations reorganize and modify an employer’s notifications obligations under the FMLA. The first change involves how employers must inform their employees of the FMLA. This general notice may inform employees electronically, but a paper posting must be seen by applicants. Employers without handbooks must provide general notice at time of hire. Employers with handbooks can include prototype general notice found in Appendix C of the regulations in such handbooks.

Upon a request for FMLA an employer must provide an employee with an eligibility notice. This notice addresses only whether the employee meets eligibility criteria. Notice must be supplied to employee within five business days, “absent extenuating circumstances.” The regulations provide that eligibility is determined (and notice provided) at the commencement of the first instance of leave for each FMLA-qualifying reason. If ineligible, the employer need only provide one reason for ineligibility.

If leave is designated as FMLA qualifying, an employer must provide the employee with a designation notice. A designation notice must be provided in writing and provided within five business days after employer has enough information to determine whether leave will be designated as FMLA leave. Prototype designation notice is contained in Appendix E of the regulations.

Only one notice is required for each FMLA-qualifying reason per 12-month period, regardless of whether leave is taken in a block or intermittently. Employer must notify the amount of leave counted against the employee’s entitlement. If known at time of designation it must be provided with notice. If unknown, employer must provide upon request of employee, but no more often than every 30 days.

Along with the designation notice, an employer must provide a rights and responsibilities notice. This notice must be in writing and spell out the specific expectations and obligations of employee and consequences of failure to meet these obligations. If leave has commenced, the notice must be mailed. A prototype notice of rights and responsibilities is contained in Appendix D of the regulations.

7. Employee Notice Obligations.
The new regulations also place new obligations on employees seeking FMLA leave. These obligations depend, in part, on whether the leave is “foreseeable” or “unforeseeable.”

Notice for foreseeable leave must be at least 30 days or “as soon as practicable” taking into account all the facts and circumstances. It should be the same day or the next business day after learning of need for leave. There is no more “two-day” rule allowing employees two days after the leave need occurs to inform the employer. Employees can be required to explain why it was not possible to give 30 days notice.

While an employee need not mention the FMLA or specifically request FMLA the first time leave is need, the employee must reference FMLA-qualifying reason if employer has previously provided FMLA-protected leave for this reason. This should eliminate an employers need to guess on every absence whether is for the FMLA-qualifying reason or not.

Importantly, an employer may require an employee to comply with notice and procedural requirements (including call-in procedures) for requesting leave, “absent unusual circumstances. Foreseeable FMLA leave can be delayed until 30 days after notice from employee if unusual circumstance don’t exist.

In the case of unforeseeable leave, an employee must provide notice to the employer “as soon as practicable under the facts and circumstances of the particular case.” Generally, notice should be within the time frame prescribed by employer’s usual and customary notice requirements for such leave. Employee must provide sufficient information for an employer to determine whether FMLA applies. Calling in “sick” without more explanation is not sufficient to trigger employer’s obligations.

An employee need not assert FMLA in first request for leave, but must reference FMLA-qualifying reason if employer has previously provided FMLA-protected leave for this reason. Again, an employer may require an employee to comply with notice and procedural requirements (including call-in procedures) for requesting leave, “absent unusual circumstances.” FMLA leave can be delayed for failure to comply unless policy requires notice sooner than practical.

8. Medical-Certification Process.
The new regulations make a number of changes to the medical certification process. Most importantly, it changes the time frames for requesting a certification and responding to such a request. An employer now has five days to request a certification instead of two days. The employee must then provide the requested certification within 15 days, regardless of type of leave. The employee must, however, be given additional time if he or she is using “diligent, good faith efforts” and informs employer of such efforts. Employer need not send a notice indicating that certification has not been received. An employer may get a certification annually for conditions that last longer than a year.

Employer may generally get a recertification every 30 days. If the initial certification says that an absence will last longer than 30 days, recertification can be requested when the initial certification says the absence will end or six months, whichever is shorter. Recertification can take place any time the employee requests: an extension of leave; circumstances described in initial certification have changed significantly; or the employer has information that casts doubt upon the stated reason for absence or continued validity of the certification.

The regulations also set sure a procedure for curing an incomplete certification. The employer must first state in writing what information is required to make certification complete and sufficient. The employee then has seven calendar days to cure the certification.

9. Substitution of Paid Leave.
Finally, the regulations impose new limits on the ability of employees to substitute paid leave for unpaid FMLA leave. Under the new regulations, an employee’s right to substitute paid leave will be determined by the terms and conditions of the employer’s normal leave policy, regardless of the type of leave (including vacation and personal leave). For example, if sick leave must be taken in full day increments, an employer can refuse substitution for a partial day of sick leave. Employee can, however, take the entire day and a full day will count towards his FMLA entitlement. Similarly, if personal days can be used upon two days notice, the same requirement can be imposed prior to allowance of substitution. The employee will, of course, be able to take the unpaid FMLA leave. The Employer can, and in most case probably will, waive the procedural requirements with or without the employee’s consent so that substitution can occur.

10. Legal Fixes.

The new regulations make a couple of technical legal changes. The first brings the regulations into compliance with the U.S. Supreme Court’s Ragsdale decision which dealt with the consequences of an employer’s failure to properly designate FMLA leave. In Ragsdale, the U.S. Supreme Court ruled that the so-called “categorical” penalty (requiring an employer to provide 12 additional weeks of FMLA-protected leave after the employee had already taken 30 weeks of leave) contained in the DOL’s earlier regulation was inconsistent with the statutory limit of only 12 weeks of FMLA leave and contrary to the law’s remedial requirement that an employee demonstrate individual harm. The new rule removes these penalties and clarifies that if an employee suffers individual harm because the employer did not follow the notification rules, the employer may be liable.

The regulations also remove an impediment for settling FMLA claims. The regulations clarify that employees may voluntarily settle their FMLA claims without court or DOL approval. Prospective waivers of FMLA rights will continue to be prohibited.

Sample Safe-Harbor Policy for Improper Deductions From Salaried Employees

Posted by Molly DiBiancaOn November 17, 2008In: Fair Labor Standards Act (FLSA)

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The Fair Labor Standards Act (FLSA), is the hottest law in employment litigation today.  And for good reason--the potential liability can multiply exponentially if more than one employee is found to have improperly paid.  A single claim quickly becomes a collective action. 

If an unauthorized deduction is made, that deduction could convert the employee's status to non-exempt for the period during which the deductions occurred.  This means that the employer would be required to pay an employee for all hours work plus time and a half for any hours over forty (40) per week.  The loss of exempt status applies when there is another employee for whom improper deductions were made in the same job classification and working for the same managers or supervisors responsible for the improper deductions.  Therefore, improper deductions have the potential to become costly.

The U.S. Department of Labor's (DOL), regulations provide employers with an affirmative defense if improper deductions are erroneously made by the employer.  An employee will not lose his exempt status if the employer has a clearly communicated policy that prohibits improper deductions and sets forth a clear complaint procedure.  This "safe-harbor" policy is considered "clearly communicated" if it is published in an Employment Handbook or located on the company intranet.  The employer must also include information that indicates how an employee should report the violation, such as to notify the human resources department, supervisor or owner in writing.

I've written here before about the dangers of improperly deducting the salary of exempt employees.  (See  The Effect of Improper Deductions on Exempt Status Under the FLSA).  The topic came up again last week during a seminar I taught with Scott Holt--Advanced Issues under the Fair Labor Standards Act.  In discussing the potential dangers of improper deductions, I mentioned the need for employers to check their handbooks and confirm that they have included a "Safe-Harbor" provision.  A lot of eyebrows were raised over that statement and so I agreed to send the attendees a sample policy for their reference.  And, because I'm a firm believer in sharing, I'm posting it here, as well:  

The Company complies with the salary basis requirements of the Fair Labor Standards Act (FLSA). The Company does not make improper deductions from the salaries of exempt employees. Exempt employees are those employed in a bona fide executive, administrative, or professional capacity and who are exempt from the FLSA’s overtime pay requirements.

What Deductions Are Permitted?
There are certain circumstances where deductions from the salaries of exempt employees are permissible. Such circumstances include:

    • When an exempt employee is absent from work for one or more full days for personal reasons other than sickness or disability; 
    • When an exempt employee is absent for one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;
    • To offset amounts received as witness or jury fees, or for military pay; or 
    • For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. 

Also, an employer is not required to pay the full salary in the initial or terminal week of employment; for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act or; for penalties imposed in good faith for infraction of safety rules of major significance. In these circumstances, either partial day or full day deductions may be made.

What to Do If an Improper Deduction Occurs
If you are an exempt employee and believe that an improper deduction has been made to your salary, you should immediately report this information to your direct  supervisor, or to the manager of the Human Resources Department.
Reports of improper deductions will be promptly investigated. If it is determined that an improper deduction has occurred, you will be promptly reimbursed for any improper deduction made.

Worried that you're not up to speed on all of the requirements of the FLSA?  Don't worry, you're not alone.  Catch up on the FLSA basics with some of the materials from our HR Summer School series:

Top 5 FLSA Topics

Executive Exemptions and the Fair Labor Standards Act (FLSA)

5 Words of Warning about Improper Deductions and the FLSA

FLSA FAQ: Overtime and Unpaid Leave

FLSA 101: Who Is Covered Under the Fair Labor Standards Act?

FLSA 102: Minimum Wage Requirements of the Fair Labor Standards Act

FLSA 103: Defining What Constitutes "Hours Worked"

FLSA 104: Overtime and the Fair Labor Standards Act

FMLA and NDAA New Online Resource for Injured Vets and Families Who Care For Them

Posted by Molly DiBiancaOn November 17, 2008In: Internet Resources, National Defense Authorization Act (NDAA)

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Final regulations for the National Defense Authorization Act (NDAA), a recent amendment to the Family Medical Leave Act (FMLA), were released by the U.S. Department of Labor (DOL), today.  The NDAA, discussed in detail in previous posts, provides a new type of family and medical leave to employees whose family members are servicemembers and who are either called to active duty or who are injured while in active duty.  The NDAA has been in effect since being signed by President Bush in January 2008.  But, with the DOL's publications of the final regulations, employers can expect to see more specific questions relating to leave under the NDAA.   

There is a new online resource to help employees who may be navigating leave under the military-caregiver provision of the NDAA.   The National Resource Directory, a collaborative effort between the departments of Defense, Labor and Veterans Affairs, is a Web-based network of care that includes resources for wounded, ill and injured service members, veterans, their families, families of the fallen and those who support them.  (Last week, in honor of Veteran's Day, we posted about  similar initiative, America's Heroes at Work, which provides employers with a variety of helpful information and tools to assist veterans in the reemployment process.)image

The scope of the Directory is comprehensive and includes information on topics such as available benefits, eligibility requirements, help filing claims and appeals processes.  Information on education and employment is also available, such as financial aid and scholarship information, apprentice and internship programs, and job training and placement.  Additionally, family support programs, child-care services, counseling and support group information is all available in the Family and Caregiver Support section. 

Information on housing, transportation, financial and legal support, assistive technology, medical care, psychological and behavioral conditions is also provided.  Finally, resources can be listed by geography--on either a state or local level.  This is an excellent resource filled with a tremendous amount of information that your employees caring for injured or ill servicemembers could potentially find very useful.  Employers, you may consider sending a notice to employees about the availability of this and other government resources being made available to them at no cost. 

The original press release, issued today, can be found here:  Department of Defense Launches National Resource Directory For Wounded Warriors, Families And Caregivers

Delaware's ING DIRECT Invests in the Health of Its Employees With Remarkable Returns

Posted by Molly DiBiancaOn November 17, 2008In: Wellness, Health, and Safety

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Delaware's ING DIRECT's employee wellness strategy and approach has been discussed in earlier posts.  The background of the wellness program was the subject of Part I of this post.  In Part II, we reviewed the principals underlying the corporate health and wellness program that shape the company's various health-centric initiatives.  In this final part, we'll look at the Returns on Investment ING DIRECT has seen since first implementing its wellness program.


High-Energy Initiatives at The Energy Zone

At the core of the ING DIRECT wellness program is The Energy Zone. The Energy Zone, is the company’s on-site exercise facility, which opened in March 2005. The facility is expansive, sprawling across 10,000 square feet of the company’s Delaware location. The Energy Zone is fully equipped with all of the cardiovascular and strength-training equipment found in a membership-based health club, including full shower and locker room amenities. These conveniences represent substantial time savings for associates. In turn, employees, who pay just $10 per month in dues, are more motivated to participate, in part, because of the ease of access to the exercise infrastructure.

And, once associates make their way to the fitness center, they can expect to have some company. The Energy Zone is staffed with a team of professionals dedicated to the promotion of health and wellness. The team offers members guidance on general fitness principles and the value of making healthy lifestyle choices. Nutrition counseling is available as an important auxiliary benefit to ensure associates are able to maximize their efforts in the gym. The Energy Zone staff is an enthusiastic group, implementing a number of interactive and motivational programs to get associates excited about wellness and to keep that enthusiasm in high gear on a long-term basis.

So how well has the Energy Zone worked? The gym sees, on average, approximately 150 employee-members per day. This number represents an increase in attendance by more than 70% since 2006. There is little seasonal fluctuation in attendance numbers. The Energy Zone’s attendance rate has virtually no decline in November and December—a time when the busy holiday season is historically linked to low attendance.

The Doctor Is In

What separates the ING DIRECT model from even most its highly regarded competitors is its on-site medical care. Employer-sponsored health clinics have experienced increased popularity over the last several years. And, as is not uncommon with this front-running company, ING DIRECT was one of the first large organizations to recognize the concept’s many values.

Until recently, the number of employers that provide on-site health clinics has been tiny. A recent study, though, found that 32% of all employers with more than 1,000 workers either have an on-site medical center or plan to build one by 2009. Again, ING DIRECT is far ahead of its peers.

The medical facility offered at ING DIRECT is available for associates on an appointment and walk-in basis. The facility is staffed by a board-certified family physician, and a registered nurse, both of whom are accessible to associates via phone and e-mail. The availability of on-site treatment for routine, as well as urgent issues, resulted in a direct and immediate savings of more than 1,300 working hours in 2006 alone.

Results and Returns

For many businesses considering a health and wellness offering, the lingering question remains, “Will it work?” Contributing to this question are a number of other questions such as, “How do we define success?” and “What will be the net gain?” All of these inquiries are legitimate and arise, and each arises in the context of keeping in mind the best interests of the business.

ING DIRECT has addressed the questions in a number of ways. First, ING DIRECT set clearly defined long-term objectives, such as reducing the cost of health care to its associates and to the productivity of the organization as a whole. With those objectives in mind, it was able to create a set of short-term goals, such as decreasing the number of tobacco users and increasing the amount of cardiovascular activity associates participate in on a regular basis. And, with these targets in mind, it set to work to get results.

And results have happened—far beyond the optimistic goals set by the program’s director, Don Baag, M.D. For example, one of Baag’s early initiatives was a campaign to decrease the percent of ING DIRECT employees who smoke by 5%. By all accounts, this is an admirable goal, and even more so in light of the fact that participation was entirely voluntary—no carrot or sticks required.

To measure the company’s effectiveness, a health survey was distributed to employees, who were selected at random at the beginning and end of the campaign. The results were remarkable. In a mere five months, the percent of employees who smoked decreased by 24%. Regardless of how “results” are defined, there can be no doubt that such a remarkable accomplishment is, by definition, a success.

The results of the wellness program also can be evaluated by referencing enrollment statistics. If associates are enthusiastic enough to enroll in continued short-term programs, they’re more likely to sustain a long-term lifestyle change. In this category, as well, the ING DIRECT wellness program sets the standard high. For example, in the first year it was offered, nearly 20% of employees participated in the company’s flu-shot program. Additionally, for employees who are not members of the on-site fitness center because of residency and traveling issues, ING DIRECT offers up to $40 per month in gym-fee reimbursement. Nearly 200 employees are enrolled in this program, which requires participants to provide proof of attendance at least eight times a month.

New FMLA Regulations Explain Military-Caregiver Leave

Posted by William W. BowserOn November 16, 2008In: Family Medical Leave, National Defense Authorization Act (NDAA)

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The Family and Medical Leave Act (FMLA), will be the talk of the HR world next week when the U.S. Department of Labor (DOL), formally issues its new revised final regulations. The new regulations finally define the scope of two new types of FMLA leave that were created by the National Defense Authorization Act for FY 2008 (NDAA). These two new kinds of leave, known as active-duty leave and military-caregiver leave, provide FMLA leave for the families of servicemembers called to active duty or injured in the line of duty. In an earlier post, (New FMLA Regulations Define Scope of Active-Duty Leave), we addressed the regulations dealing with active-duty leave.  Now we examine the regulations on military-caregiver leave.

The NDAA provides that “an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a [single] 12-month period to care for the servicemember.”   This type of leave is different from other forms of FMLA leave, including Active-Duty leave, in that it provides for up to 26 weeks of leave rather than 12 weeks.  In addition, the NDAA also provides that a covered servicemember’s “next of kin” is eligible to take FMLA leave to care for the servicemember.

Defining "Next of Kin"

The NDAA left several questions unanswered. The first group of questions involved the phrase "next of kin."  Just who is a "next of kin"?  Is it just one person or a group of relatives? Can the employee designate his or her "next of kin"?  Can the employer require an employee to prove his or relation to the servicemember? The new regulations address all of these questions.

The final regulations define a servicemember’s “next of kin” as the servicemember’s nearest blood relative, other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military-caregiver leave under FMLA, in which case the designated individual shall be deemed to be the covered servicemember’s next of kin.

The final regulations also provide that all family members sharing the closest level of familial relationship to the servicemember shall be considered the servicemember’s next of kin, unless the servicemember has specifically designated an individual as his or her next of kin for military-caregiver leave purposes. In the absence of a designation, where a servicemember has three siblings, all three siblings will be considered the servicemember’s next of kin.

Finally, the regulations permit an employer to confirm an employee’s status as a covered servicemember’s next of kin.

How Much Leave Is Available?

The next set of questions left open by the NDAA involved the amount of military-caregiver leave that could be taken by an employee. Is this type of leave a one-time entitlement?  Can an employee take more than one period of military caregiver leave to care for multiple covered servicemembers with a serious injury or illness, or the same covered servicemember with multiple serious injuries or illnesses? How should the “single 12-month period” should be determined?

The final rule explains that an eligible employee may take no more than 26 workweeks of military caregiver leave in any “single 12-month period.” This section also provides that the 26-workweek entitlement is to be applied as a per servicemember, per-injury entitlement, meaning that an eligible employee may take 26 workweeks of leave to care for one covered servicemember in a “single 12-month period” and then take another 26 workweeks of leave in a different “single 12-month period” to care for another covered servicemember or to care for the same covered servicemember with a subsequent serious injury or illness. The final rule also provides that the “single 12-month period” begins on the first day the eligible employee takes military-caregiver leave and ends 12 months after that date.

U.S. Department of Labor Issues Rule Requiring Heightened Union Reporting

Posted by William W. BowserOn November 16, 2008In: Legislative Update, Public Sector

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The U.S. Department of Labor's (DOL), Office of Labor-Management Standards (OLMS), issued a final rule that will provide union members with more complete information about finances held in union trusts.  Union trusts are established and maintained primarily to provide benefits to union members and their beneficiaries, and common examples include credit unions, strike funds, redevelopment or investment groups, training funds, apprenticeship programs, building funds and educational funds. Under the rule, unions will be required to annually file a Form T-1 for trusts in which a laborunion, alone or in combination with other unions, possesses managerial control or financial dominance.

The Form T-1 will use the same basic template as the existing Form LM-2. Only labor unions with total annual receipts of $250,000 or more will need to file a Form T-1. Additionally, labor unions will not be required to file a Form T-1 on trusts subject to certain other disclosure requirements.

The union-trust transparency rule was issued on the same day as the regulations dealing with the Family and Medical Leave Act (FLMA).

Presidential Staff Job Applications Dig Deep Into Off-Duty Conduct

Posted by Molly DiBiancaOn November 15, 2008In: Background Checks, Newsworthy, Social Media in the Workplace

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Potential job candidates beware: your Facebook page is not off limits.  At least that's the case if you're applying for a job in Presidential-elect Obama's administration.  Candidates for Cabinet and other high-ranking positions must complete a seven-page, 63-item questionnaire, which asks questions about almost every imaginable detail of their personal lives.

Some of the areas on the application include:

  • real estate and financial investments;
  • involvement in civil or criminal lawsuits;
  • immigration of any domestic help they may have hired;
  • names and phone numbers of past live-in lovers;
  • whether any family member owns a gun; and
  • financial and tax information.

One of the more unusual topics on the questionnaire is a real "sign of the times."  Potential candidates must disclose Facebook pages and blogs.  CNN reports that job applicants will need to turn over any and all information that could potentially cause embarrassment to the next administration, including their social networking pages--past or present.

So, will this silence some of the critics who advocate against employers who run Facebook and MySpace searches on candidates?  If it's a suitable background-check method for potential members of the presidential Cabinet and international ambassadors, doesn't it seem like a reasonable idea for potential members of your organization?

For more on this topic, see:

New Study Shows Increase in Online Applicant Screening

Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

How to Conduct Online Background Searches With Google

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Top 10 Reasons Why Employers Should Screen Their Applicants

And for employers who are considering the practice of Online Applicant Screening but who don't know where to start, be sure to catch the easy-to-understand video, Video Resources: How to Set Up a Facebook Account for Applicant Screening, available under the Resources > Video Resources tab at the top of the page.

New FMLA Regulations Define Scope of Active-Duty Leave

Posted by William W. BowserOn November 14, 2008In: Family Medical Leave, Legislative Update, National Defense Authorization Act (NDAA)

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The Family and Medical Leave Act (FMLA), will be clarified when the U.S. Department of Labor (DOL), formally publishes new regulations on Monday, November 17, 2008. Among the many changes contained in the regulations, are provisions dealing with the recently enacted leave benefits for family members of both seriously injured or ill service members and National Guard and Reserve members who have been called to service.

On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA). One section of the NDAA was an amendment to the Family and Medical Leave Act of 1993 (FMLA) which created two new types of FMLA leave: Military Caregiver Leave and Active-Duty Leave. Although the NDAA became effective immediately following the President's signature, the DOL announced that it would not look to enforce the Act until it issued regulations as long as an employer was attempting to comply with the NDAA "in good faith." The new regulations apparently end this amnesty period.

Active-Duty Leave, as the name suggests, is triggered when the employee's relative is called to active duty. It can be taken by employees spouse, parent, or child who is on or has been called to active duty in the Armed Forces. These workers may take up to 12 weeks of FMLA leave when they experience "any qualifying exigency." The new regulations finally define what is a "qualifying exigency."

Section 825.126(a) of the final rule defines qualifying exigency by providing a specific and exclusive list of reasons for which an eligible employee can take leave because of a qualifying exigency. These reasons are divided into seven general categories: (1) Short-notice deployment, (2) Military events and related activities, (3) Childcare and school activities, (4) Financial and legal arrangements, (5) Counseling, (6) Rest and Recuperation, (7) Post-Deployment activities, and (8) Additional activities.

The short-notice deployment category involve the situation where a covered military member is notified less that seven days prior to a deployment. Under these circumstances, leave can be taken to address any issue that arises from the deployment. Leave taken for this purpose can be used for a period of seven calendar days beginning on the date the covered military member is notified of an impending call or order to active duty.

The Military Events and related activities category allows leave to attend any official ceremony, program, or event sponsored by the military and to attend family support and assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status of a covered military member.

The Childcare and School activities category allows an eligible employee to take leave to arrange childcare or attend certain school activities for a biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.

Leave may be taken under this to arrange for alternative childcare when the active duty or call to active duty status of a covered military member necessitates a change in the existing childcare arrangement; (2) to provide childcare on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care arises from the active duty or call to active duty status of a covered military member; (3) to enroll the child in or transfer the child to a new school or day care facility when enrollment or transfer is necessitated by the active duty or call to active duty status of a covered military member; and (4) to attend meetings with staff at a school or a day care facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors, when such meetings are necessary due to circumstances arising from the active duty or call to active duty status of a covered military member.

The Financial and Legal Arrangements category allows qualifying exigency leave to make or update financial or legal arrangements to address the covered military member’s absence while on active duty or call to active duty status, such as preparing and executing financial and health-care powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (“DEERS”), obtaining military identification cards, or preparing or updating a will or living trust. It also allows leave to act as the covered military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on active duty or call to active duty status and for a period of 90 days following the termination of the covered military member’s active duty status.

The Counseling category allows qualifying leave to attend counseling provided by someone other than a health-care provider for oneself, for the covered military member, or for the biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member.

The Rest and Recuperation category provides leave to spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment. Eligible employees may take up to five days of leave for each instance of rest and recuperation.

The Post-Deployment activities category allows qualifying exigency leave to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty and to address issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.

Finally, the Additional Activities category allows leave to address other events which arise out of the covered military member’s active duty or call to active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

A future post will address how the new regulations answer the many open issues surrounding military caregiver leave. Stay tuned.

November 19: E-Verify at the DCA

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

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E-Verify is being used by employers to ensure that they do not hire undocumented viewpdfworkers.  The Delaware Contractors Association is hosting an informational seminar about this important topic on November 19, 2008. Young Conaway attorney Teresa Cheek will describe the ins and outs of the federal government’s E-Verify system, which allows employers to quickly check the employment eligibility of newly hired employees and avoid civil and criminal prosecution.  She will also discuss the current status of the E-Verify system and new efforts by the government to force federal contractors to use it.

This informational seminar, sponsored by the Human Resources Committee, is open to all DCA members, and will be held in the DCA Boardroom at 572  Stanton Christiana Road, Newark, DE 19713. The session is expected to run about an hour, beginning at 8:30 a.m.

Members who would like to attend should call Nancy Handlin at (302) 994-7442, or e-mail  Non-members should email for more information.


Department of Labor Issues Long-Awaited FMLA Regulations

Posted by William W. BowserOn November 14, 2008In: Family Medical Leave, Legislative Update

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The U.S. Department of Labor (DOL) released the newly revised regulations governing the Family and Medical Leave Act (FMLA).   This is the first major regulatory update of the 1993 law in more than ten years. 

We will be providing the highlights of the changes shortly.  If you can't wait, the 750-page report can be accessed via the electronic version of the FMLA regulations in the Federal Register.

FLSA 104: Overtime and the Fair Labor Standards Act

Posted by Molly DiBiancaOn November 13, 2008In: Fair Labor Standards Act (FLSA), HR Summer School

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The Fair Labor Standards Act (FLSA), mandates that covered, non-exempt employees must be paid at a rate equal to one and one-half the regular rate of pay for all hours worked over forty in any given workweek.

Compliance with the overtime laws is determined by workweek and each workweek stands by itself.  A workweek is defined as 7 consecutive, 24-hour periods (168 hours), but which 7 consecutive days can be chosen by the employer.  image

The regular rate of pay is determined by dividing total earnings in the workweek by the total number of hours worked in the workweek.  The regular rate can never be less than the applicable minimum wage.  Not everything, though, is included in the calculation of the regular rate.  Excluded from the calculation are:

  • Sums paid as gifts;
  • Payments for time not worked;
  • Reimbursement for expenses;
  • Discretionary bonuses;
  • Profit-sharing plans;
  • Retirement and insurance plans;
  • Overtime premium payments; and
  • Stock options.

To determine the regular rate (RR), take the total straight-time earnings (make sure to exclude any of the above) and divide it by the total hours worked.  The overtime rate is calculated at a rate equal to the regular rate multiplied by .5.  The overtime rate is then multiplied by the number of overtime hours worked.  This amount is the total overtime premium due.  Three examples follow, below.

Example 1:  Hourly Rate and Production Bonus

Total Hours + 48     Hourly Rate = $9      Bonus $10

46 hours x $9 =432 + 10 = $442 / 48 = $9.21 (Regular Rate)

$9.21 x .5 = $4.61 x 8 hrs = $36.88 (Overtime Due)


Example 2:  Different Hourly Rates

Lifeguard Rate $8.50   Lifeguard Hours 21 = $178.50

Cabana Attendee $9.00    Cabana Attendee Hours  26   = $234.00

Total straight-time earnings = $412.50 / 47 hours = $8.78 (Regular Rate)

$8.78 (Regular Rate) x .5 = $4.39 (Overtime Rate)

$4.39 (Overtime Rate) x 7 hours = $30.73 (Overtime Due)


Example 3:  Tipped Employees

Rate Paid by Employer $2.13

Tip Credit Claimed $3.72

Regular Rate:  $5.85

Additional Half-Time Rate  $2.93

50 Hours  $5.85  =$292.50

10 hours x $2.93 =$29.30

Total Due             =$321.75 (less tip credit)

Tip Credit 50 x $3.72 =$186.00

Total Cash Wage Due = $135.75


For more about the basics of the FLSA, see:

FLSA 101: Who Is Covered Under the Fair Labor Standards Act?

FLSA 102: Minimum Wage Requirements of the Fair Labor Standards Act

FLSA 103: Defining What Constitutes "Hours Worked"

Gen X Offers an Overdue Apology to Baby Boomers Everywhere

Posted by Molly DiBiancaOn November 13, 2008In:

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It's safe to say that there is a communication gap between the generations.  When it comes to careers, for example, Boomers want to build a solid but fantastic one, whereas Gen X wants to ensure security through portability--a major divide in perspective.  Or, take training, as another situation where the two differ greatly.  Gen X wants, needs, must have training--good training--in their job or they're gone.  Baby Boomers, who were never given much training other than the basic skills needed to perform their required duties, don't see training as that big of a deal. 

generational divide

At, there is an excellent article by Heather Havrilesky that indicates that maybe the generational divide has shrunk some recently.  In An open apology to boomers everywhere, Havrilesky apologizes on behalf of her generation, Gen X, for being so impatient with Baby Boomers, their idealism, their tales of peace rallies, and their unending devotion to a "cause."  The article's cultural references put the story into focus as she partially excuses the conduct of Gen X.  After all, her generation had to deal with the influences of a motley crew including "Mister Rogers, Son of Sam, the Iran hostage crisis, Catholic school, the Hite Report, "The Day After," Edwin Meese, rampant divorce, "Fantasy Island," "Endless Love," Jeffrey Dahmer, the Happy Meal, the Lockerbie air disaster, Toyotathons, John Updike, and 'Who Wants to Marry a Millionaire?'"

The piece is really a political one, likening the connection between Gen X and the president-elect to that of Baby Boomers and JFK.  Having come of their political age, Gen X is only now able to understand their parents' "idealism" and "notions about community."

The article poignantly recognizes some of the real-life experiences that make the two generations so different.  And, it concludes, as Generation X continues its own journey into maturity, it has come to understand some of those differences with modern-day replays of the experiences of their parents. 

[H/T to Lisa's Generation Relations Blog]

For more on the Generational Divide, see:

Succession Planning and the Particular Needs of Gen Y Employees
HR Glossary: Generations at Work
Why Recruiters Need to Understand the Helicopter Parent
How to Use Reverse Mentoring as a Retention Tool for Gen Y Employees
Gen Y Demands Employers Open the Checkbook for Technology Requests
The Connection Between Training and Employee Retention, According to Gen Y
What Makes a Good Leader? If You Lead Gen Y's, You'd Better Find Out.

FLSA FAQ: Overtime and Unpaid Leave

Posted by Molly DiBiancaOn November 12, 2008In: Fair Labor Standards Act (FLSA), Family Medical Leave, Leaves of Absence

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What counts towards “hours worked” under the Fair Labor Standards Act (FLSA), can become an issue when it comes to the Family and Medical Leave Act (FMLA), as well. An employee has been approved to take intermittent FMLA leave one to three days per month. When the employer asks the staff to work overtime, the employee volunteers. He claims that he should be paid at his overtime rate even though he was out on FMLA leave for some portion of the week. Is this true?

Let’s look at the numbers. Let’s say that the employee takes off on Monday and Wednesday for FMLA leave, thus working 24 of the 40 hours for which he was scheduled. And then he volunteers to work on Saturday, a day outside his normally scheduled work time. In all, he actually worked 32 hours (24 + 8), with an additional 16 hours of FMLA leave time. The 16 hours do not count as “hours worked” under the FLSA.

Because he did not work more than 40 hours in one week, the employee is not entitled to overtime pay.

The result is the same even if the employee is paid sick or vacation time during the FMLA leave time. The use of such paid time still does not count toward an

Comments on the Delaware DOL’s Final Regulations on Discrimination Charges

Posted by Teresa A. CheekOn November 12, 2008In: Delaware Specific

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Charges of employment discrimination in Delaware are handled by the Delaware Department of Labor (DDOL). Until now, the charge process has not been regulated by state law. How the DDOL handles a charge of discrimination and how charging parties and responding employers may be involved in the process have been available only as proposed regulations until last month when the DDOL published its first set of final regulations applicable to the charge process.

In a prior post, the new regulations were summarized and explained. In this follow-up post, I offer some of my thoughts on these important recent changes.

Most of the procedures set forth in the new regulations will be familiar to anyone who has been involved with a charge of discrimination filed with the DDOL during the past few years. One of the most useful recent developments, even prior to the issuance of the new regulations, has been an increased emphasis on mediation. In my view, unless the employer is sure that the Administrator will be dismissing the charge, the employer should always attempt mediation because it often results in a quick and (relatively) inexpensive resolution of the dispute. Mediation is simply a meeting between the mediator, the charging party, the employer, and their attorneys, if any. Both sides are given an opportunity to talk about the case in an effort to resolve it without further litigation.

Settlement means the case will end without an admission of liability by the employer and it is the only way to control the outcome of the dispute. Even if mediation is unsuccessful, participating in the process is still helpful because the employer will gain insight into the charging party’s view of the claim. The employer also will be able to determine the facts upon which the charging party intends to rely.

At the very least, the time it takes to schedule and participate in mediation will allow the employer and its attorney to conduct a more thorough investigation of the facts and law and prepare a better answer to the charge than they would be able to do in the 20 days contemplated by the regulations.

Employers may be a bit disconcerted by the regulations’ failure to require the DDOL to give notice to a respondent employer when it issues a subpoena. When the DDOL published its proposed regulations and opened them to comments, employer representatives, including Young Conaway Stargatt & Taylor, requested that the regulations provide for such notice.

We also requested that the employer be permitted to participate in depositions to enable it to have a more complete understanding of the facts that the DDOL gathers. The DDOL rejected this request, presumably because the law that authorizes the DDOL to issue subpoenas and take depositions (Section 108 of Title 19 of the Delaware Code), does not require the DDOL to give notice or any opportunity to participate to employers. Employers who are unhappy about the possibility that the DDOL may engage in unilateral investigatory activities may consider lobbying their legislators to amend the law.

Is the Employee Free Choice Act Needed? Unions Seem to Be Doing Fine.

Posted by William W. BowserOn November 11, 2008In: Legislative Update, Union and Labor Issues

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The Employee Free Choice Act (EFCA), is a priority for organized labor following the election.  The bill, described in greater detail in earlier posts on the EFCA, would unionize a workplace as soon as majority of employees signed cards saying they wanted the union to represent them.  No secret ballot election would be required.

Unions see the bill as a way to stop their declining membership, which has dipped to 7.5 percent in the private sector.  Employer groups have vowed to fight the bill.  “This will be Armageddon,”  according to Randel Johnson, vice president for labor policy at the United States Chamber of Commerce.

A recent report by the Bureau of National Affairs (BNA) indicates that that unions are fairing quite well under the current system.  According to the report, unions won 66.8 percent of secret ballot elections conducted by the National Labor Relations Board (NLRB) in the first six months of 2008.  This is a marked increase from the 58.5 percent during the same period in 2007.  According to Daniel V. Yager, Chief Policy Officer and General Counsel of the HR Policy Association, "This new data clearly demonstrates that the current system, if anything, is working to the unions' advantage."

Stay tuned.

SHRM Poll Says Pink Is the New Black This Holiday Season

Posted by William W. BowserOn November 11, 2008In: Reduction in Force (RIF)

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The Society of Human Resources ("SHRM"), reports that that Human Resource professionals are preparing for tough times as the holiday season approaches. The results of a recent workplace poll warns that many HR professionals think they will be playing the role of Scrooge by handing out pink slips. The poll indicates 39 percent of HR professionals think that layoffs are "likely" should economic conditions continue to deteriorate.  LAYOFF NOTICE

The poll also contained the following chilling actions as "likely" in their organizations if things don't improve:

70 percent of HR professionals feel budget cuts across entire organizations will occur
50 percent says bonuses will be cut
45 percent say wages will be frozen
55 percent say hiring freezes will be imposed.

On a lighter note, attorneys William W. Bowser and Scott A. Holt will present The Good, The Bad, and The Ugly: Employment Law Update 2008 at the 8th annual Delaware SHRM conference on November 18 and 19. This year, the program will be held at the Clayton Hall Conference Center at the University of Delaware. 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.

Want to Annoy Coworkers? Just Use One of the 10 Most Irritating Phrases

Posted by Molly DiBiancaOn November 10, 2008In: Employee Engagement, Just for Fun

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The office rumor-mill and water-cooler talk are two of the most annoying workplace behaviors.  But they can be difficult temptations to avoid--especially if you want to drive your coworkers crazy.  (Which, admit it, you do from time to time).  Don't lower your standards ever again!  Stand proud and refrain from perpetuating the gossip chain.  Thanks to some  clever researches at Oxford, there is, at last, an alternative.  Annoying Coworkers

Oxford scholars have released the top 10 most irritating phrases.  The phrases were at the top of the list after the researchers aggregated overused phrases in books, magazines, broadcast, online media and other sources. 

So, the next time you're at that meeting that just will not end and you're feeling a little feisty, throw out as many of the top 10 most irritating phrases as you can possibly stomach.  Maybe the individual conducting the meeting will be moved to adjourn by sheer annoyance at having to listen to you even one minute longer.  Here they are, write them down and save them for a rainy day:

1 - At the end of the day
2 - Fairly unique
3 - I personally
4 - At this moment in time
5 - With all due respect
6 - Absolutely
7 - It's a nightmare
8 - Shouldn't of
9 - 24/7
10 - It's not rocket science

[H/T to Roy Jacobsen at Writing, Clear and Simple, and his catch of the original article at]

Honoring Veterans By Supporting Their Reemployment Efforts

Posted by Molly DiBiancaOn November 10, 2008In: Disabilities (ADA)

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More employers are recognizing the value in recruiting, hiring, and retaining our nation's veterans.  There are important reasons to employ returning service members, including those with disabilities and combat-related injuries, especially Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD).  image

The U.S. Department of Labor (DOL), in conjunction with the Office of Disability Employment Policy (ODEP), and the Hire Vets First initiative, have instituted a program designed to support the successful employment of returning service members with TBI and PTSD.  The program, America's Heroes at Work, is targeted to employers and provides a variety of helpful information and tools to assist in the reemployment process.  This Tuesday, November 11, Veteran's Day 2008, remember those who served for our country and honor those who returned from service by visiting the America's Heroes at Work website to learn more about this special initiative. 

Delaware Department of Labor Issues Final Regulations

Posted by Teresa A. CheekOn November 10, 2008In: Delaware Specific, Discrimination & Harassment, EEOC Suits & Settlements

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The Delaware Department of Labor (DDOL), is the agency responsible for processing charges of discrimination filed under Delaware’s various discrimination statutes. Because the DDOL has a work-sharing agreement with the U.S. Equal Employment Opportunity Commission (EEOC), the Department has authority to process charges filed under state and federal discrimination laws.image

Until now, the charge process, including applicable deadlines and controlling procedures, has not been regulated by state law. How a charge is handled by the DDOL, and the rules governing charging parties and responding employers have been available only in the form of proposed regulations for the past several years. But, last month, the DDOL published its first set of final regulations applicable to the charge process.

In this post, the new regulations are summarized and explained. A second, follow-up post will offer some commentary about these important changes.

The Charge of Discrimination

The regulations set forth what must be included in a charge of discrimination. A charge must identify:

  • the basis for the DDOL to assert jurisdiction over the charge;
  • the type(s) of discrimination alleged;
  • the type(s) of adverse action alleged;
  • the facts that support the claim;
  • the laws that have allegedly been violated; and
  • the reasons that the charging party believes support a finding of discrimination.

For the charge to be valid, the charging party must swear under oath that the allegations are true and correct and must sign the charge before a notary public.

Initial Processing of a Charge

Once a verified charge is filed, the DDOL must send a copy to the employer, by certified mail, within 14 days. The DDOL may also include a request for information with the charge, and, in its discretion, may invite the employer to participate in mediation. Even if the DDOL has not invited the employer to participate in mediation, the regulations permit the employer to request mediation in lieu of filing an answer.

The employer has 20 days to submit an answer, though the Administrator has the discretion to grant an extension of time to respond. The answer must respond “fully and completely” to the allegations asserted in the charge.

Preliminary Findings

The next step is the issuance of a preliminary finding. The Administrator must issue her preliminary finding within 60 days from the date the charge was served to the employer. The DDOL Administrator has three options. She can refer the case to mediation, refer the case for investigation, or recommend dismissal of the case.

The Administrator may dismiss a case in the following circumstances:

  • the DDOL does not have jurisdiction over the case (because, for example, the employer has too few employees to be covered by the law or the employment was not located in Delaware);
  • the charging party is not cooperating;
  • the employer has filed for bankruptcy or relief is otherwise precluded;
  • the charge was filed after the statutory deadline, or
  • the charge does not allege facts that would, even if true, constitute a violation of the law.

Administrative dismissal is rare. And, even if dismissal is recommended, the charging party will be given the opportunity to provide additional evidence demonstrating that an investigation is warranted.


The regulations also address the DDOL mediation process. The Administrator is authorized to refer a case to mediation at any time, after 20 days from service of the charge. The regulations make clear that mediation communications and records are confidential and may not be used against either party. The regulations preclude the mediation director and staff from participating in the investigation of any case that is unsuccessfully mediated. And, if the case is settled, the settlement agreement will be kept confidential unless there is an allegation that one of the parties has breached the agreement.


If the parties do not mediate the charge or if the mediation fails, the charge will be referred for investigation. The employer has 20 days from the date it receives notice that the case has been referred for investigation to file its answer, if it has not done so already. If the employer did file an answer, the employer will have 20 days from the date of notice of investigative referral provide a supplemental response or to respond to any pending request for information.

The regulations include a lengthy description of the DDOL’s tools for investigating claims. The DDOL’s powers include obtaining information from the employer through written requests for information and documents, on-site visits and interviews. The DDOL can obtain information from third parties with subpoenas and depositions. The DDOL also has the authority to obtain information at a fact-finding conference.

A DDOL representative advises the parties in advance of the conference to bring specified witnesses and documents. During the fact-finding conference, the DDOL representative will question the witnesses and parties. The regulations state that “the parties shall not be entitled to cross-examine witnesses,” but the representative has the discretion to allow attendees to question the witnesses.

Determination and Findings

When the DDOL concludes its investigation, the Administrator will issue a determination. The determination can state that the Administrator either did or did not find reasonable cause to believe that the employer violated the law by discriminating against the charging party. A “no-cause” finding results in a dismissal of the charge. A finding of “cause,” on the other hand, means that the Administrator has determined that there is reasonable cause to believe that the employer unlawfully discriminated against the charging party.

In the event of a “cause finding,” the employer has 10 days to file a written request for reconsideration of the finding. The Administrator will determine whether the employer will be granted permission to submit additional information in support of its request. The Administrator’s decision will be issued within 10 days of the date the request for reconsideration is made.


If the reasonable-cause finding is not reversed by the Administrator, it is considered final. A final cause finding triggers the conciliation process. Similar to the mediation process, conciliation provides an additional pre-litigation opportunity for the parties to resolve the dispute.

If conciliation fails and the parties do not reach agreement, the DDOL will issue a Right-to-Sue Notice to the employee, which authorizes the employee to file a complaint in state court. At that point, the DDOL’s involvement in the case concludes. The DDOL will retain its file for two years. If litigation ensues, the parties will have the right to obtain copies of the witness statements and factual written data, reports and documents in the DDOL’s file by making a written request and serving a copy of the request on the other party or the other party’s attorney.

Succession Planning and the Particular Needs of Gen Y Employees

Posted by Molly DiBiancaOn November 10, 2008In: Generations: Boomers, Xers, and Millennials

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Smart employers have begun internal campaigns to prevent what could be a potentially crippling brain drain as the Baby Boomers, the largest generation in history, nears retirement.  As many as 40% of the current workforce is expected to be eligible for retirement age by 2010.  With a mass exodus of key employees on the horizons, employers look for ways to transfer knowledge to the next generation workforce.  But, in light of the many particular characteristics of Generation Y (or "Millennials"), this effort is not necessarily one with an obvious plan of attack.    

Gen Y logo

Gen Y demands that communications be transmitted in a format that they're used to, which almost always means the involvement of real-time technology.  For many employers, this demand is light years beyond the bulletin-board and newsletter-style communications they've employed for years.  So what's an employer to do if it's not current with the cutting-edge technology attractive to Gen Y? 

Implement a formal leadership program.  Gen Y will not have had the experience necessary to successfully take control as managers.  Unless there is a formal program in place to teach Millennials what makes a good leader and communicates the expectations of the organization with regard to have leaders should behave and treat others, we cannot expect them to simply "figure it out." 

Teach employees how to communicate with other generations.  Baby Boomers and Traditionalists hold the key to your organization's future success.  Now you have to get them to share it.  And, even if they're willing to do so, they may not know how.  Intra-generational communication is notoriously weak.  The generations simply don't speak the other generations' language.  Providing training to employees on how to communicate is essential if you want the older generations to share their knowledge and for the younger generations to receive and understand it. 

For more about Gen Y in the workplace, see:

HR Glossary: Generations at Work
Why Recruiters Need to Understand the Helicopter Parent
How to Use Reverse Mentoring as a Retention Tool for Gen Y Employees
Gen Y Demands Employers Open the Checkbook for Technology Requests
The Connection Between Training and Employee Retention, According to Gen Y
What Makes a Good Leader? If You Lead Gen Y's, You'd Better Find Out.
Knock It Off, Gen Y: 3 Ways You're Driving Your Boss Crazy

Bringing Babies to Work Is a Bad Idea

Posted by Molly DiBiancaOn November 6, 2008In: Women In (and Out of) the Workplace

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Bringing babies to work is a bad idea.  Please, don't do it.  Think of your colleagues and their hectic workdays at the office, where the phone rings about every 32 minutes, where the new-email alert pops up more than 200 times each time, and where the space just outside of their office door could easily be mistaken for La Guardia airport--everyone's circling, waiting for a space on the runway to open up so they can land and unload their passengers. 

There is no sanity for your colleagues who have to deal with constant chaos--even if it's well-managed chaos.  Crying babies, cute babies, either one would be too much. 

Yet, in an article on the NYT blog, Motherlode, Lisa Belkin interviews Carla Moquin, the founder of the Parenting in the Workplace Institute, who claims that the bring-your-baby-to-work concept is a good one.  Thankfully, I am not alone. The bloggers at Ask the Manager agree, well, mostly, in the post, bringing babies to work.

Iranian Minister of the Interior Admits He Lied On His Resume, Political Turmoil Ensues

Posted by Molly DiBiancaOn November 6, 2008In: Hiring

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Of the many ways to screen job candidates, using set standards for resume reviews, behavioral interviewing, and pre-employment testing, there is one fundamental that cannot be overlooked--reference checks.  Don't be fooled into believing that no one gives reference information.  Not true.  At the very least, verify academic credentials.  ali-kordan

The reality is that people lie on their resumes.  I recently heard that it is estimated that as many as 62% of resumes contain "inaccuracies."  And those "inaccuracies," in large part, are related to the individual's employment and education histories.  So check the history stated on the resume against the real history. 

Don't believe me?  Just ask the Iranian President Ahmadinejad, whose Minister of the Interior, Ali Kordan was impeached for dishonesty when he admitted that he'd falsely represented that he held a law degree Oxford University.  The revelation has caused major political turmoil, as reported in detail by the Washington Post.

[H/T to Employee Screen IQ University]

Pink, Blue, Red, Green, What Do Our Color Preferences Mean?

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

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Can your color preferences provide an indication of your ideal job?  Seems unlikely, I know.  But try the Color Career Counselor at and maybe you'd reconsider.  In short, you are presented with several color swatches (on the screen, of course), and asked to choose the color you like to look at the most, the least, etc.  Now, this is not the same thing as which color you'd paint your bedroom in or what color you'd never be caught dead wearing--it's a more purist angle.  Simply, which one feels right when you look at it? 

After you take the 5-minute-or-so test, you are e-mailed a summary of your results.  I was positive that the test showed nothing.  I couldn't even say that I had a certain response for many of the choices--I was hesitant on most. 

Well, lo and behold, I was wrong.  I cannot attest to the "science" behind the test but I was shocked at how dead-on the results had me pegged!  It identified my "best occupational category" as a "creator" because I am "nonconforming, impulsive, expressive" and others.  A lawyer, believe it or not, in in that category.  As are corporate trainer, author, and editor, all of which I do and enjoy regularly. 

Ok, so maybe it's a coincidence.  But let's look at the "2nd Best Occupational Category."  Persuader.  No, really, I'm not kidding.  The key personality traits associated with this category include "witty, competitive, sociable, talkative, ambitious, argumentative, and aggressive."  I would agree strongly with each one except for competitive, which I tend to have a deficiency in.  But the rest?  Yes, that's me in a nutshell.  As you can imagine, lawyer certainly falls within this category. 

The most striking part of the report, though, was the last sentence.  It described me and others with similar color preferences as:

They enjoy working with others inside organizations to accomplish goals and achieve economic success.

Ummm, hello? That, in a nutshell, is exactly what I do for a living!  So does this mean that the employee-placement test of the future will involve fabric swatches or paint chips? 



November 12: DELPELRA Conference for Public Employers

Posted by Molly DiBiancaOn November 5, 2008In: Public Sector, Seminars, Past

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William W. Bowser will be presenting at the DELPELRA Fall Conference next week. 

DELPELRA FAll Conference (2008) (fill in)(Final)

The Conference is targeted specifically to public-sector human resources and labor-relations professionals.  The half-day conference will include presentations on sexual harassment, ADA and FMLA developments, as well as return-to-work strategies for injured employees.  And, at lunch, we are honored to have Delaware Insurance Commissioner and Lt. Governor-Elect Matt Denn will be the featured speaker. 

The conference is being held Tuesday, November 12, 2008, from 8:30 a.m. to 12:30 p.m. at New Castle County Police Headquarters in New Castle.  Tours of this beautiful facility will be offered following the program.

The cost of the seminar is $70 for DELPELRA members and $90 for non-members.  The brochure and registration form are available in PDF format, below. 

A New Day for Employers

Posted by Sheldon N. SandlerOn November 5, 2008In: Newsworthy, Union and Labor Issues

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Human Resources departments of Delaware employers will soon face a new and more challenging day once the initial excitement dies down and the new administrations in Washington and Dover turn to official business. 

The State of Unions

In Washington, one of the first items on the agenda will surely be the Employee Free Choice Act, which is designed to revitalize the union movement. It will substitute card checks for secret ballot elections, establish strict bargaining deadlines, and introduce interest arbitration to impose a first contract if the parties are unable to reach agreement in 90 days. Interest arbitration is a concept already familiar to Delaware public employers.

Of note, Delaware public employers have won every interest arbitration case decided to date, but the concept itself changes the bargaining landscape. It requires employers to, in essence, bid against each other by proving they are keeping pace with comparable employers. The Act would also increase the power of the NLRB to obtain injunctive relief and impose increased back-pay damages for unfair labor practices committed by employers during bargaining campaigns.

Another law designed to assist unions is the RESPECT Act, which would overturn an NLRB decision (Kentucky River) that labeled many employees as supervisors and removed them from the coverage of the National Labor Relations Act. Passage of that Act would add many exempt supervisors to the rank and file.

On the Agenda

President-Elect Obama has also supported a proposed law that would ban the permanent replacement of strikers.  And he will be appointing at least 3 new members of the NLRB, and it is virtually guaranteed that the majority will be sympathetic to unions. Passage of this cornucopia of union-favoring legislation would put a heavy thumb on the union side of the organizing scale.

Another change that seems certain is the reversal of the Supreme Court’s Ledbetter decision. The plaintiff in that case, Lilly Ledbetter, was featured in an Obama ad, so he certainly owes her. That case held that the time for filing a charge of discrimination based on unequal pay begins to run from the time the initial unequal wage was established. The new law would permit a charge to be filed every time a new paycheck is received.

President-Elect Obama also has expressed support for expanding FMLA coverage from companies with 50 or more employees to those with 25 or more employees, and to require at least 7 days of mandatory paid sick-leave per year.

Delaware's Political Landscape

In Delaware, it is harder to predict what might come to pass. Governor-Elect Markell, though a Democrat, is a former businessman and will, likely, approach game-changing labor and employment legislation cautiously. But the General Assembly, with many union members and advocates, could pass several bills that have been proposed previously but have never seen the light of day.  Among these are the expansion of the state discrimination statute to include sexual orientation, and the elimination of the employment at-will doctrine. Depending on what happens in Washington, there might also be efforts to add a Delaware FMLA law and a Delaware analogue to the WARN Act.

Fasten your seat belts, it is going to be a bumpy ride.

Dealing With Abuse and Special Problems Under the FMLA

Posted by Molly DiBiancaOn November 4, 2008In: Family Medical Leave

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The Family Medical Leave Act (FMLA), is heavily abused and burdensome to administer.  Put together, this combination can mean a major headache for employers.  There are numerous questions that remain unanswered when it comes to what to do when an employer suspects an employee is abusing his FMLA rights.  Many employers have been subject to painful litigation as a result of the FMLA, especially as a result of their well-intentioned but improper attempt to regulate these frequent abuses.  There's no guaranteed way to avoid FMLA errors but sample scenarios help illustrate some of the most common traps for employers.

Requesting Recertification During Leave

If the employer has good, objective evidence that abuse is taking place, the employer may require that the employee be recertified before the end of leave.  If an employee requests an extension of leave, the circumstances since the last certification have changed significantly, or the employer has received information that casts doubt on the continuing validity of the certification.

Possible Options

The Department of Labor (DOL), issued an administrative ruling saying that "the FMLA does not prohibit an employer from including a record of an employee's absences along with the medical certification form for the health-care provider's consideration in determining the employee's likely period of future absences."  The employer may ask the provider whether the employee's absences are consistent with the stated serious medical condition. 

Jobless Job Applicants Are In No Hurry to Find New Employment

Posted by Molly DiBiancaOn November 4, 2008In: Hiring

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Layoffs was one of the topics discussed at a meeting of a local HR organization I attended last week.  Attendees from different organizations participated in a round-table discussion of the issues they'd each been facing since the last quarterly meeting. Not surprisingly, several raised layoffs as a "hot topic." There was some discussion about how they were handling layoffs and the potential of more cuts in the future. image

But not all organizations were laying off.   Some still were hiring as normal and others' hiring needs had recently increased, for various reasons.  What was most interesting trend was also the most surprising.  Many of the attendees who were still hiring new employees regularly said that lots of candidates had been laid off by the previous employer.  Nothing new or surprising there. 

What was so striking was the observation, which was repeated by several individuals, that the applicants didn't seem to be in any hurry to become reemployed.  A Recruiting Director commented that the candidates who'd been let go were looking for "the best job," not just "a job."  And, to be frank, they are being pretty damn picky.  The recruiters and hiring managers admitted to being taken aback by the demands of the unemployed candidates.

So what does this say about our current workforce?  It sounds like Baby Boomers have adopted the Gen Y mentality of, "I'd rather be broke than suffer all day in a job I hate."   Revolutionary.

The Effect of Improper Deductions on Exempt Status Under the FLSA

Posted by Molly DiBiancaOn November 4, 2008In: Fair Labor Standards Act (FLSA)

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White-collar exemptions from the minimum wage and overtime requirements are the most common exemptions under the Fair Labor Standards Act (FLSA).  The second of the three tests used to determine whether an employee is covered by the white-collar exemption is the Salary Basis Test.  If exempt employees' pay is subject to improper deduction, the exemption may be lost and the employer could be liable for unpaid overtime wages. 

Deductions from the employees' predetermined salary are improper when made for absences occasioned by the employer or by the operating requirements of the business.  If the employee is ready, willing, and able to work, deductions may not be made for time when work is not available. 

Payroll Practices that Constitute Improper Deductions

Some examples of improper deductions include:

  • Deduction for a partial-day absence to attend a parent-teacher conference;
  • Deduction of a day of pay because the employer was closed due to inclement weather;
  • Deduction of three days of pay because the employee was absent from work for jury duty, rather than merely offsetting any amount received as payment for jury duty;
  • Deduction for a two-day absence due to a minor illness when the employer does not provide wage-replacement benefits for such absences.

Payroll Practices that Do Not Constitute Improper Deductions

There are some exceptions from the no-pay-docking rule.  In these situations, the employer will not lose the exemption by deducting pay from the employee's salary:

  • The employee is absent from work for one or more full days for personal reasons, other than sickness or disability;
  • The employee is absent from work for one or more full days due to sickness or disability if deductions made under a bona fide plan, policy, or practice of providing wage-replacement benefits for these types of absences;
  • To offset any amounts received as payment for jury fees, witness fees, or military pay.*
  • Penalties imposed in good faith for violating safety rules of "major significance;
  • Unpaid disciplinary suspension of one or more full days imposed in good faith for violations of written workplace conduct rules;
  • Proportionate part of an employee's full salary may be paid for time actually worked in the first and last weeks of employment.

*Note that, in some states, employers are prohibited from offsetting wages for these items.

Some additional payroll practices that do not violate the salary basis test include:

  • Taking deductions from exempt employees' accrued leave accounts;
  • Requiring exempt employees to keep track of and record their hours worked;
  • Requiring exempt employees to work a specified schedule; and
  • Implementing bona fide, across-the-board schedule changes.

Effect of Improper Deductions

An actual practice of making improper deductions from salary will result in the loss of the exemption.  To determine whether an actual practice exists, some of the factors include:

  • The number of improper deductions, particularly as compared to the number of employee infractions warranting discipline;
  • The time period during which the employer made improper deductions;
  • The number and geographic location of both the employees whose salaries were improperly reduced and the managers responsible; and
  • Whether the employer has a clearly communicated policy permitting or prohibiting improper deductions.

If an actual practice is found to exist, the exemption will be lost only:

  • during the time period in which improper deductions were actually made
  • for employees in the same job classifications
  • working for the same managers responsible for the actual improper deductions.

flsa example

Using the organization chart above as an example:

  • If Manager A has docked the pay of Engineer A on each of 12 days when Engineer A arrived late to work during the last 3 months,
  • The exemption could be lost only for Engineer A and Engineer B and
  • The exemption could be lost only during those 3 months
  • But the exemption could not be lost for Chemist or for Engineers C or D.

This is because the exemption can be lost only  (1) during the time period when improper deductions were made (the 3-month period); (2) for employees in the same job classification (which is why Chemist's exemption would not be lost); and (3) who work for the same manager as was responsible for the improper deductions (which is why Engineers C and D do not lose their exemptions).

The Safe Harbor Provision

If no actual practice is found to exist, the employer may be able to take advantage of the Safe-Harbor provision.  Isolated or inadvertent improper deductions will not result in the loss of exempt status if the employer reimburses the employee in accordance with the Safe Harbor provision.  The Safe Harbor provisions provides that the exemption will not be lost if the employer:

  • Has a clearly communicated policy prohibiting improper deductions and including a complaint mechanism;
  • Reimburses employees for any improper deductions; and
  • Makes a good faith commitment to comply in the future
  • Unless the employer willfully violates the policy by continuing to make improper deductions after receiving employee complaints.

Skills Assessment Without the Assessment? Why Training Must Be Tested

Posted by Molly DiBiancaOn November 3, 2008In: Training & Metrics

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Recently, I was discussing a company's internal training program with its HR Director.  Administrative professionals are required to earn a certain amount of "credits" per year through the internal program.  Full classes are offered in the Fall and Spring and a partial class schedule during the Summer.  The topics are varied and include general software training, such as how to use styles in Microsoft Word, job-specific applications, such as how to write a certain report in more quickly and efficiently, and soft skills, such as organization and time management.  More than 70% of the training, though, falls into the first category, software-specific. 

As we discussed this in more detail, I learned that some of the problems with the program was the unequal results it seemed to produce.  Some of the attendees felt that the courses were far below their skill set and that it was truly painful to sit through the same Microsoft Excel course year after year without learning anything new.  Yet, the HR Director had come to find out that some employees, who had been with the organization for years, did not possess even the most basic software skills.  

The HR Director wanted to know how this had happened and what could be done to correct it?  After the time and energy the organization had devoted to creating and implementing the program, which had been in place for a number of years, it was fair to say that the return on the company's investment was zero, at best.  If anything, the program was actually a loss.  They paid for instructors, both high-cost outside trainers and internal IT staff whose time could have been spent on other things.  The employees were taken away from their "real" work for at least 12 hours a year (the minimum number of credits each employee has to earn per year).  And, the lost potential of having an entire workforce who had actually learned the materials and who should have been performing at a much higher level. 

Turning to the first question--how had this happened?  Certainly, there are a lot of ways to point fingers.  The employees didn't take the classes seriously; they didn't have the initiative to develop their professional skills; and they didn't speak up if they were not able to grasp the material or follow along during the instruction.  And what about the trainers?  Shouldn't they have known that their students had drifted out in space 5 minutes after the class began; shouldn't they have seen the dazed look in the students' eyes; shouldn't they have questioned why the same, advanced-level employees were returning to a class they'd already taken several times; shouldn't they have pushed for a more advanced curriculum offering?

Should've, could've, would've.  Yes, all of those things should have happened.  But they didn't.  There is one other thing, though, that didn't happen.  And this, in my opinion, was the root cause of the program's dysfunction. 

There was no assessment.

Students get credit regardless of whether they left with any increased knowledge. Students couldn't test out of programs that were below their skill level.  Basically, so employees could play Scrabble on the computer during the class, as long as they showed up to 12 hours of classes each year. 

This, in my opinion, was the fatal flaw of the program.  As Stephen Covey said:

"Accountability breeds response-ability."

There were no checks in place to make employees accountable for the knowledge they'd just been given.  And employees who did take the knowledge were rewarded with a big, fat, nothing.  There was no "A+" or gold star at the end of the tunnel.  They just returned to their desks and hoped that the information they'd just learned would help them in some way.  Wow, what a waste!

So, how can it be fixed?  Easy!  Require attendees to take and pass a skills assessment at the end of the class before they will be awarded credit.  If a large percent of the class fails the assessment, the training and the trainer need to be reevaluated--it's likely that the lesson was not well communicated.  But if most do pass the assessment test, the ones who do not should not be awarded credit.

But they should be given another chance.  Because, remember, the goal is to get the students to actually understand the material--not to trick them into passing or failing a test.  So, if a student does not pass the assessment test, they (and all students) should be given take-away materials that they can reference and, when ready, try again.  The take-away should be detailed instructions--probably more detailed than the actual class and used as a reference for later.  Or video tutorials can be made available for students to watch.  Videos can be created internally with a product such as Camtasia Studio, or purchased from a commercial site, such as  The videos can be hosted by the company's SCORM system, an internal server or intranet, or even YouTube.  The point is to get the information to the students for them to study and then to retest--successfully.

Exemplary Practices in Employee Education

Posted by Molly DiBiancaOn November 3, 2008In: Employee Engagement

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Tuition assistance is used as a talent-management strategy. The idea is that employees will not stay unless they are challenged. They will be challenged only if they are learning new skills. So employers assist employees in obtaining the new skills. In the economic downturn, though, some employers are struggling to justify the capital cost these programs can require. I had the pleasure of attending a meeting of the HR Committee of a local industry-based organization. The meeting was hosted by Right Management. Kathleen Voss, the speaker, is a Right Management consultant and spoke on employee retention. During the meeting, she referred us to a report on the same topic.

The report, Strategies for Talent Management 2008, was prepared by the CEO Council for Growth in partnership with the Council for Adult and Experiential Learning. The report looks closely at the successful ways organizations are developing and managing their talent and, in particular, how tuition assistance is part of their talent-management initiatives.

The survey identifies 11 exemplary practices and profiles several companies in the Greater Philadelphia Region using the practices as criteria. The 11 exemplary practices in the use of tuition assistance as an effective employee-retention strategy include:

1. Prepay tuition for employees
2. Provide tuition assistance to part-time employees
3. Re-evaluate tuition caps
4. Form partnerships with educational institutions
5. Provide assistance for individual courses and for degree programs
6. Provide assistance for certificate programs
7. Promote assessment before the education program begins
8. Recognize the academic achievements of employees in the program
9. Provide educational advising to employees
10. Establish metrics
11. Communicate impact

None of the five employers reported that they were recognizing the successes of employees in the educational program. None had established metrics to measure the success of the tuition-assistance program and, as a result, none had been communicating any results of the program.

But 4 of the 5 did extend tuition assistance to part-time workers, as well as permitting tuition reimbursement or individual courses.

PowerPoint and Handouts from "Drafting Your Employee Handbook" Seminar

Posted by Molly DiBiancaOn November 1, 2008In: Employee Handbooks, Seminars, Past

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Drafting Your Employee Handbook is the title of an employment-law seminar I presented to two Delaware employers earlier this week.  The materials and PowerPoint slides from the seminar are linked below for your reference.


includes a number of policies, separated into various categories.  The first three categories specifically address common issues faced by Delaware employers.

  • There are 10 of the policies I consider to be the "must-have" policies.  There are 5 pay-related policies because, in Delaware, that information must be provided to employees in writing at the time of hire. 
  • The required pay information includes pay rate, pay period, place of payment, method of payment, any other benefits, including sick and vacation time, and the name and phone number of the individual who can be contacted with questions.  As a back-up, you can put most of this information in the handbook. 
  • There are also 5 technology policies that have been issues for so many employers but that still seem not to be included in most employee handbooks.

The rest of the policies are grouped by general category type.  Under each category type are some of the most commonly used policies.  Often I hear that employers just don't know what kinds of policies are out there and they need to see some samples to get ideas for what they may and may not want to include in their own handbooks.  The seminar handbook should help.