January 2009 Archives

It's Friday and Your Boss Is a Total Tool

Posted by Molly DiBiancaOn January 29, 2009In: Jerks at Work

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A "tool" is a loser, a wanna-be. A tool, usually a male, could also be described as a "poser"--someone who acts soooo coooool that he almost has the world tricked.  But, then a real cool person comes along and assures us that the individual in question is, in fact, a tool.  How, you ask, does the tool make such a convincing case for his false coolness?  Usually by berating others and kicking on the little guy.  You remember someone like this from high school, right?  At the time, he was very convincing but now, in your wisdom, you can look back and recognize that it was his insecurity that made him toss freshman into lockers--not his alleged coolness. shutterstock_22637446

Most tools get out of high school and, sometimes college, only to realize that they're really not so cool and they may even take a few beatings themselves.  By professional life, most tools outgrow this nonsensical camouflage.  And the ones who don't?  In some organizations, they're promoted.  That's right, in some worlds, where I am thankful not to live, the biggest tools take the day and are promoted as a result of their obnoxious conduct.  Why this is, truly, is beyond me. 

Maybe you've been wondering whether your boss is a tool.  Maybe you've suspected it for quite some time.  If so, you can take the following test, created by male-fashion blogger extraordinnaire, MagnificientBastard, and find out. Only MB uses the term "toolbag," which leadership blog, What Would Dad Say, defines "men who are clueless, inappropriate and overall doofuses."  (And, for the record with regard to the tool-toolbag debate, I'm not discrediting the use of the term "toolbag, I'm just sticking with "tool" as my preferred term, ok?)  

Here's how to tell if your boss is a toolbag:

1. He takes credit for everything you do.

2. He walks around the meeting with a baseball bat, asking if anyone saw the movie Untouchables.

3. He steals money from the coffee jar.

4. He is all gushy about you to your wife, and asks her to call him if you get upset at him.

5. He demands the project be completed overnight for his 8 am meeting, but then doesn’t show up himself.

6. He broke down, cried and asked “why don’t they like me?”

7. He wanted everyone to dress like a pilgrim at Thanksgiving.

8. He monitors phone calls.

9. He brings in his kids’ grade school artwork and asks for your honest opinion.

10. He puts you down for ten boxes of Girl Scout cookies because “everyone else is buying this much.”

Layoffs Can Lead to Abusive Workers' Compensation Claims

Posted by Molly DiBiancaOn January 29, 2009In: Wellness, Health, and Safety

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Employers are conscientious about safety and injury-prevention, regardless of the economic climate.  But when the economy is difficult, employers should keep an especially cautious eye out for fraudulent workers' comp claims.  There are three methods to prevent abusive workers' comp claims that every employer can utilize, regardless of size or industry. shutterstock_17077399

To read more about how to best prevent laid off employees from bringing baseless comp claims, have a look at my guest post at the Workers' Comp Kit Blog

What Happens When You Fail to Follow Workplace Dress Codes in BigLaw

Posted by Molly DiBiancaOn January 29, 2009In: Dress & Attire, Just for Fun

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Men are going unshaven as a sign of rebellion against Corporate America, or The Man, or the employer that just laid them off.  Well, so we hear, anyway.  And fashion houses are designing women's suits that include shorts so short that would make the women in the Nair* commercials blush.  Even I have contributed to the recent workplace dress code rebellion by suggesting that corporate-suit-types may prefer pink iPod cufflinks to the traditional mainstays.  shutterstock_23553256

And this type of style confidence is fantastic.  Unless, of course, your choices put your superiors on guard--instead of admiring your style as avant-gard.  Just ask Tracey Batt.  

From the ABA Journal, an article titled, Ex BigLaw Associate: I Was Arrested By Law Firm Fashion Police.  According to the article's author, Martha Neil, Batt was a 5th-year associate at a BigLaw** firm in NYC when she scared her superiors so badly with her fashion choices that they actually retained a fashion consultant to take her shopping and help her with a total makeover.

Batt described the experience as "positively mortifying." 

It must have been--she's left the world of BigLaw altogether and now runs a "small nonprofit legal services organization" from her home.

So, for those of you considering somewhat outrageous jewelry or other fashion choice, please, be warned.  Keep an eye out for the fashion police, they could be coming for you next!


*Nair's jingle, for those who may not recall, begins, "Who wears short shorts?"  Sure, you remember it! 

**"BigLaw" is code for "multi-office Golaith law practice where associates are relegated to document production for the first 8 years of their careers, while earning hefty six figures for their suffering."

Lilly Ledbetter Fair Pay Restoration Act Has Been Signed Into Law

Posted by Molly DiBiancaOn January 29, 2009In: Equal Pay, Gender (Title VII), Women In (and Out of) the Workplace

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President Barack Obama this morning signed the first bill of his presidency, a piece of legislation known as the Lilly Ledbetter Fair Pay Restoration Act that makes it easier for workers to sue after discovering what they believe to be pay discrimination.  For a bit more detail about the potential ramifications of the new law, see Lilly Ledbetter Fair Pay Act Will Become First Pro-Labor Legislation of 2009, Equal Pay Becomes Front Runner as Lilly Ledbetter Act Takes Center Stage, Equal Pay: Fair Pay Restoration Act Voted Down in Senate, More Fodder for the Fair Pay Debate, or A New Day for Employers.

New Conclusions on the Potential Costs of Workplace Bullying

Posted by Molly DiBiancaOn January 28, 2009In: Jerks at Work

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Workplace bullying is not a recent phenomenon.  I'd go so far as to say that jerks at work have a primary cause of conflict and adversity since the inception of the modern workplace.  In her recent paper, Nancy Haig analyzes and synthesizes the research on workplace bullying.  She concludes:

Workplace bullying  is . . . commonly defined as a pattern of psychological abuse, over time, intended to degrade, humiliate and isolate the bully’s victim. Bullying may be impacted by individual characteristics and/or corporate structure; and corporate practices themselves have been called bullying. The costs of bullying are significantly high to both employees and employers.

The paper is very well-supported and offers readers a whole host of resources for further reading.  [Via Brandon Hall Research]

OFCCP Delays the Start Date for Mandatory E-Verify Yet Again

Posted by Teresa A. CheekOn January 28, 2009In: Diversity, E-Verify

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Responding to a lawsuit, the OFCCP previously agreed to delay implementation of the new mandate that federal contractors use E-Verify.  The lawsuit, as you may recall from previous posts, was filed by the Society for Human Resource Management (SHRM), and other organizations. E-verify

The original effective date of the mandatory E-Verify requirement was January 15, 2009. That date subsequently was changed to February 20, 2009.  And, today, it appears that the start date for the mandatory use of E-Verify has been delayed again--this time until May 21, 2009, to allow the new administration time to review and evaluate the rule and the arguments against conversion to a fully mandatory E-Verify system.

June 8: Social Media & HR (Delaware SHRM)

Posted by Molly DiBiancaOn January 27, 2009In: Seminars, Past

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My seminar on Social Media and HR, which was originally scheduled for February 9 but was canceled due to the snow, has been rescheduled for June 8. The seminar is hosted by the Delaware Chapter of the Society for Human Resources Management. The seminar will take place during the Chapter's June breakfast meeting. There is a small fee to attend the event but it is open to members and non-member guests. Here's the link for more information on how to register: SHRMDE.

I'll be talking about Twitter, among other social-media tools. You can follow me to Twitter at @MollyDiBi until the seminar for more information about the potential uses of social media by human-resource professionals.

Looking for Some of the Best Leadership Training Around? You've Found It.

Posted by Molly DiBiancaOn January 26, 2009In: Employee Engagement

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100 of the Best Blogs on Leadership may sound like just about every imaginable leadership blog worth its salt would have been included. That is an incorrect conclusion.  After I posted my list of my favorite leadership blogs, readers sent me lots more names to add to the list. One of them that was specifically recommended was Leadership for Lawyers, authored by Mark Beese. I took that recommendation and am glad I did--the blog has outstanding content presented in well-written and timely fashion.  metaphor signs for business

Fittingly, Mark was named by LawDragon as one of the Top 100 Legal Consultants.  If his consulting services are on par with his blogging efforts, I'd say it's an honor well deserved.  And he is in good company, to boot.  Aside from Mark Beese, the list includes leadership greats, such as long-time leadership consultant David Meister, several of the Hildebrandt International all-star team also are included.  Larry Richard, Ph.D, is one such all-star.  I had the pleasure of hearing Dr. Richard speak about the traditional character personalities of lawyers about two years ago.  As a former practicing attorney, who chose to pursue his Ph.D in psychology more than a decade after having completed his J.D. at the University of Pennsylvania. 

Although I can attest to Mark's praise-worthy services only second-hand, I can attest personally to Dr. Richard's leadership genius.  In both cases, congratulations for being recognized for successfully teaching the important leadership message to lawyers.  Goodness knows, we are certainly in need of the lessons being taught!

Fashion Accessories for Gen Y Workers in Corporate America

Posted by Molly DiBiancaOn January 26, 2009In: Just for Fun

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Gen Y (a/k/a the Millennial Generation), is known, among other things, for an authority-be-damned approach to the workplace.  Having be raised by late-Boomer(or "Helicopter") parents, the "Y" Generation wants to know, "Why Should I?"  Why should I do what you tell me? . . .  Why should I work in the same job for my entire career? . . . Why should I be loyal to one employer?  And, of course, "Why should I wear a suit to work?"image

In my experience, it's often easier to go with the trend but add your own signature to ensure you stand apart from the crowd.  

And that is the approach I'd advise when it comes to workplace attire.  Law firms are still largely formal corporate environments, and for good reason.  (See Sheldon Sandler's previous post, “Are You My Lawyer or the Janitor?” The lawyer’s dress-code pendulum swings back.").  To make sure that you don't stand apart from the average black-suit-wearing legal eagle, consider accessories.  The smaller and less in-your-face the accessory, the more outrageous it can be.  (If pressed, I would admit to wearing to work a charm bracelet by Lagos that is adorned with tiny charms shaped like skulls.  I might even admit that I've worn it to a deposition once or twice). 

Here is a workplace-appropriate accessory for the dutifully fashionable--the iPod cufflink.  It is sold in both black (U2 style) and in pink for those interested in a more feminine touch.  And, lucky for you, the iPod cufflink is now on sale for $18 at 1st Choice Cufflinks.

Writing References #4: 40 of the Best Books on Writing

Posted by Molly DiBiancaOn January 26, 2009In: Resources

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Who vs. Whom.  It's a classic grammar question.  The answer? Beats me. Well, if I don't have any help, that is.  In reality, if I have a writing question that's got me stumped, I just look up the answer.  And, as high-tech as my world tends to be most times, nothing beats a good, old fashioned paper reference. 

Previously, I posted about 10 of the Funniest Writing Blogs.  If you missed that post, go check it out--you're guaranteed a laugh from the very particular bloggers who feel so passionately about things like the overuse of quotation marks. MONTBLANC

In the second post in the series, I offered readers a list of 20 Online Dictionaries, which included everything from the Dictionary of Philly Slang (our native language), to the RhymeZone, to the Dictionary of Sushi.  You can never have too many reference sources, right? 

In the third post in the series, I named 30 of the Best Writing Blogs.  Some of the blogs focus on legal writing, some are strictly business (writing, that is), and some are whatever they want to be on any given day.  Other great writing blogs were added via comments by readers, so be sure to check out those additions, as well. 

But today's post is all about the real thing--books as references.  Below are 40 of my most turned-to sources, broken down into four categories:  (1) Style and Usage Guides; (2) Business Writing (3) General Writing and Grammar; and (4) Legal Writing. 


Please don't be shy--add your favorites that I may have overlooked in the Comments section.


Continue reading "Writing References #4: 40 of the Best Books on Writing" »

Lilly Ledbetter Fair Pay Act Will Become First Pro-Labor Legislation of 2009

Posted by Molly DiBiancaOn January 25, 2009In: Equal Pay, Gender (Title VII), Legislative Update, Purely Legal

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The Lilly Ledbetter Fair Pay Act of 2009 has passed the Senate and could be on President Obama's desk within days.  The wage-discrimination statute, Senate Bill 181, reverses a decision by the U.S. Supreme Court in 2007, which narrowly defines the time period during which an employee can file a claim of wage discrimination.  This may be the first piece of legislation signed by the new President.  Obama has been a strong advocate for the legislation.  Lilly Ledbetter, the plaintiff in the lawsuit that inspired the legislation, was invited to the inauguration.

The bill was approved during the first week of the new congressional session, perhaps indicative of the momentum behind the expected pieces of labor legislation.shutterstock_2935217

In Ledbetter v. Goodyear Tires, the case at the center of the legislation's history, the Court held that the discriminatory act, which starts the clock running on the time period to file a claim, occurs at the time of the discriminatory decision.  In other words, in a failure-to-promote claim, the date of the promotion decision is the date when the clock begins to run.  Ledbetter argued that the clock would begin to run each time a new paycheck was issued because each paycheck represented a new discriminatory act--the unequal payment of wages.  Ledbetter claimed that she did not know that she had been getting paid less than her male counterparts until a note was left in her mailbox at the end of her 19-year career with the company. 

Opponents of the law contend that it will effectively eliminate a statute of limitations period and could result in increased filings of unmeritorious lawsuits.  Employers will be hard pressed to "disprove" the decision- making process involved in a pay raise issued 20 years earlier. 

A middle ground, offered by Republican Senator Kay Bailey Hutchinson would have started the time period when the employee knew or had reason to know that discrimination was occurring.  Hutchinson said her alternative would protect both employee and employer. 

The alternative was rejected by women's-rights advocates, as the issue has become one largely divided on gender lines.  Women's-rights groups argue that the law is necessary to protect women from continued unequal pay.  Very little has been mentioned about the fact that the Ledbetter bill would apply to other protected classes, such as race, ethnicity, and national origin--not just gender.

What Other Great Minds Have to Say

Several e-law bloggers have already issued their insights on the legislation, so have a look at some of these posts to learn more about the ins and outs of what may be the first pro-employee legislation passed in 2009:

John Phillips at The Word on Employment Law, Fair Pay Act Ready to Become Law

Michael Moore at the PA Labor and Employment Blog, Ledbetter Fair Pay Act passed by Senate and awaiting Obama Signature

Jon Hyman at the OH Employment Law blog, Ledbetter passes Senate – President’s signature is next

Frank Steinberg at the NJ Employment Law Blog, Ledbetter Act Passes Senate

Ross Runkel at LawMemo, Lilly Ledbetter Fair Pay Act of 2009 awaits President's Signature 

Dennis Westlind at The World of Work, Senate Passes Lilly Ledbetter Bill 61-36

Dan Schwartz at the CT Employment Law Blog, Lilly Ledbetter Fair Pay Act of 2009 Passes Senate, 61-36; President Will Sign

Tracing the Story Back to the Beginning

And to read about the bill since its inception, see the following posts:

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

Equal Pay: Fair Pay Restoration Act Voted Down in Senate

More Fodder for the Fair Pay Debate

A New Day for Employers


Employers should stay tuned to what may be the first in a series of legislation that advocates for employees to the disadvantage of businesses.

Top 10 Ways Managers Can Engage Employees

Posted by Molly DiBiancaOn January 23, 2009In: Employee Engagement

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An engaged workforce doesn't occur by accident.  It requires a lot of work and a lot of attention.  At the end of the day, it's the front-line managers who can make the biggest difference in spreading the passion and enthusiasm required for engagement.  What follows after the jump are the 10 best ways managers can ensure that they're doing their part to achieve the ideal conditions suitable for an engaged workforce.

Continue reading "Top 10 Ways Managers Can Engage Employees" »

Security Breach of Personal Data Could Be the Largest Ever

Posted by Molly DiBiancaOn January 22, 2009In: Privacy Rights of Employees

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The possibility of identity theft has become a reality for tens of millions of credit and debit cardholders.  Yesterday, Heartland Payment Systems, a major payment processing company, revealed that its secure systems had been hacked and that the private data of millions of individuals may have been stolen.  This is said to be the largest data breach ever. identity theft

The N.Y. Time reports that those responsible for the massive theft could be part of an “international ring of hackers that are introducing breaches at a number of financial institutions.”  With an operation of this magnitude, it seems likely that this is the case--that the breach was a result of highly organized criminal entities.  But, more commonly, the theft of personal data is not so far-reaching or as complex.  An, often, it is the result of actions by an insider--an employee--who leaks the data for revenge or for money, or both.

For example, in December of 2008, an employee of Certegy Check Services, physically removed 2.3 million consumer data records to resell. The former employee sold consumer information to a data broker, who then sold it to a number of direct marketing companies.

Another example occurred in September of 2008, when Countrywide Mortgage notified the FBI that a former employee had sold customers' personal information to a third party, including names, addresses, social security numbers and application information. The FBI arrested the employee and reported that as many as two million people may have had their data stolen.

Then there was the case of the unauthorized sale of Britney Spears' sealed psychiatric information to the National Enquirer by an employee of the UCLA Medical Centre.  The employee was later prosecuted for the breach, was is believed to have been a series of disclosures over a period of several months.

Employers who've not yet implemented an effective procedure for responding to the unauthorized access of employees' personal data should consider the Heartland story a real wake-up call about the realities of identity theft.  No one is immune from a potential security breach.  But everyone should know what to do if one does occur. 

Work-Life Issues Spotlighted by Michelle Obama's Appointment of New Policy Director

Posted by Adria B. MartinelliOn January 21, 2009In: Newsworthy, Women In (and Out of) the Workplace

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President Obama’s commitment to work-family issues is a topic I've posted about previously.  I've also posted about the President's campaign platform on work-life and work-family issues.  I’ve wondered, however, given the many larger issues on the President’s plate, whether these matters would truly be a focus once he was in office. Michelle Obama has made it clear it is a focus of hers, even while her husband is tending to other matters. She solidified her commitment to the issue by her appointment, as reported in the Wall Street Journal, of fellow attorney and Harvard Law School classmate Jocelyn Frye, general counsel of the National Partnership for Women and Families, as her Policy Director. michelle obama work life balance

Obama’s naming of Frye last Friday suggests she’s preparing to take an activist stance on such policy issues as family leave and flexible scheduling. Frye has been a long-time advocate of expanding family leave and ending pregnancy discrimination.  

The National Partnership for Women and Families drafted and lobbied for the 1993 Family & Medical Leave Act, which entitles many workers to up to 12 weeks unpaid time off for family care and other reasons. Their “proposed agenda for the new administration,” posted on the Partnership’s Web site, includes a much-expanded FMLA, guaranteeing employees of companies with 15 or more workers access to seven paid sick days a year, and also for the federal government to provide incentives for the states to set up paid family-leave insurance plans. The brief also calls for equal access to family leave for part-time workers, income supports to allow working parents in poverty to care for new children at home, and federal policies to give workers more control over their schedules, including the right to refuse mandatory overtime.

Let’s hope that Michelle Obama’s commitment to the cause, and her appointment of Frye, result in some real developments on work-family issues!

Why the Four-Day Work Week Should Not Be Considered a "Flexible Schedule"

Posted by Molly DiBiancaOn January 20, 2009In: Alternative Work Schedules

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The four-day work week is touted as a way for employers to offer employees a more flexible schedule.  The demand for flexible and alternative schedules continues to grow.  There are a number of reasons for this increased demand.  The influx of Generation Y workers has played a role, for one.  Also, the increased focus on work-life balance mandates the need for flexible scheduling.  And, as the workplace becomes more and more mobile, the need for office workers to actually work from the office continues to diminish.   Flexible Work Schedule Hourglass and planner

There are many ways in which employers can implement flexible-schedule programs.  When done right, these programs can act as ways to recruit the best candidates and retain the best employees.  But not all flexible workplace programs are created equally.  And, in my opinion, one of the most hyped offerings, the four-day work week, doesn't meet the criteria at all.  In a short post for the Sloan Work and Family Research Network, I write about Why the Four-Day Work Week Would Be the Death of the Flexible-Schedule Initiative.  In the post, I address some of the reasons why I think the four-day work schedule cannot, by definition, classify as a "flexible work schedule." 

Searching MySpace and Facebook for Job Applicants and . . . Judges?

Posted by Molly DiBiancaOn January 19, 2009In: Social Media in the Workplace

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Employers who use MySpace and Facebook as hiring tools have been the subject of some debate.  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.  Recently, there was some discussion about the use of social networking sites as a way to defend an employer in an employment litigation lawsuit. judge in robes with gavel

And now, there's talk of yet another purpose for the use of online profiles.  In the Fall issue of Litigation News, a quarterly magazine published by the ABA's Litigation Section, an article entitled Know Thy Judge advocates conducting an internet search on the judge assigned to your case.  Specifically, the article suggests that counsel should "Google the judge" before appearing in his or her courtroom, in the hopes of gaining insight on the judge's personality, habits, or tendencies. 

I wouldn't expect that many judges maintain public Facebook or MySpace pages.  But, in twenty years, when the bench is filled with Gen Ys wearing black robes, will their "internet past" play a relevant and important role?  It seems inevitable, doesn't it?  Especially in light of the recent report that the number of adults using online networking tools has quadrupled in the past three years. 

How to Participate in Today's National Day of Service

Posted by Molly DiBiancaOn January 19, 2009In: Internet Resources, Locally Speaking

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Today is Martin Luther King, Jr. Day.  It is also the national day of service and the first day of President-elect Obama’s initiative to Renew America Together.  In communities around the First State, as well as in neighborhoods around the country, Americans are volunteering to help others.  If you would like to join in this growing initiative but don't know of any particular activities in your local area, check out USAService.org.   Here, you can search by zip code or by state and find a list of events being held today that would benefit from any time you can contribute.  And the website isn't just a great resource today.  Its comprehensive database of volunteer and charitable events lists the many opportunities that happen throughout the year.

Ergonomic Chair Update: Herman Miller Laptop Stand

Posted by Molly DiBiancaOn January 19, 2009In: Wellness, Health, and Safety

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Previously I posted about my quest for the perfect economic office chairherman miller scooter laptop standAnd, as everyone knows, nothing's more important than the perfect accessory.  When I do manage to find my dream chair, I now know the perfect accessory for it--the Herman Miller Laptop Stand. The Scooter Laptop Stand  provides comfortable and ergonomically correct keyboard and mouse support. The Scooter adjusts in height from 22" to 30" and has a tilt range of 20°. It can be purchased at Amazon for $379 and comes in Solid Cherry, Ash, and Ebony finishes.  

The Number of Adults Who Use Online Social Networking Sites Is Skyrocketing

Posted by Molly DiBiancaOn January 19, 2009In: Privacy In the Workplace, Social Media in the Workplace

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Teens outrank adults in the use of social networking sites by 30%.  But the popularity of social networking sites is not limited to teenagers.  Currently, one-third of adults in the U.S. have a profile at a site like MySpace or Facebook.  And this number is rising.  In fact, the number of adults who utilize these sites has quadrupled since 2005, according to the Pew Internet & American Life Project’s December 2008 tracking survey. 

See the full survey here:  

What are the consequences of this skyrocketing use?   They can only be imagined.  As we've posted about previously, employers are taking a hard line when they discover what they consider unacceptable conduct by employees.  With more and more adults spending time on sites like Facebook and its more "grown-up" cousin, LinkedIn, it seems inevitable that there will be more and more terminations resulting to online conduct.

FLSA 105: Recordkeeping Requirements

Posted by Molly DiBiancaOn January 14, 2009In: Fair Labor Standards Act (FLSA), HR Summer School

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The Fair Labor Standards Act (FLSA), requires employers to make, keep, and preserve records regarding employees and employee compensation.  The FLSA provides a 15-item list of the types of information that the employer has the obligation to obtain.  All primary sources of this information must be preserved for a period of three years for all current and former employees.  All supplementary sources must be preserved for at least two years.  deptoflabor

What Information Am I Required to Keep?

First, you must be familiar with the information for which you are responsible.  The list includes:

  1. Name and SSN;
  2. Home address;
  3. Date of birth if under age 19;
  4. Sex and occupation
  5. Day and time on which the workweek begins;
  6. Hourly rate of pay;
  7. Basis of pay;
  8. Nature of any payment claimed as an exclusion from the regular rate;
  9. Total hours worked for each day and each week;
  10. Total straight (i.e., non-overtime or premium) pay;
  11. Total overtime pay;
  12. Additions and deductions made, including wage assignments;
  13. Total wages paid;
  14. Date of payment and pay period covered; and
  15. The company's sales and purchase records for purposes of determining whether it is an enterprise with an annual business volume of $500,000.

What Are the Primary and Secondary Sources of this Information?

All records that constitute primary sources of the above-listed information must be preserved for a period of three years.  Such records include:

  • payroll records;
  • work certificates;
  • CBAs; and
  • employment contracts.

Supplementary records are the documents that serve as the source documents for other payroll records. Supplementary records may include:

  • time cards;
  • production cards;
  • wage rate tables;
  • piece-rate schedules; and
  • work-time schedules.

What Else Should I Keep and Where Should I Keep It?

Although not required by the FLSA, it is a good idea to retain job descriptions, performance reviews, internal memos, job postings, handbooks, and other materials relating to wage classifications and pay practices that you could use to justify your pay practices during an audit, for a period of at least three years.

The FLSA requires that all records be kept at the place or places of employment or at one or more established central record-keeping offices, where such records are customarily maintained.  If kept outside the place of employment, they must be available within 72 hours of a request by the U.S. Department of Labor.

And, finally, don't forget about your posting requirements.  Employers must post notices in the workplace that state the requirements of the FLSA. 

The Fair Labor Standards Act (FLSA), is a very challenging statute to apply correctly.  For more information about legal compliance with the federal wage and hour laws, see the following posts:

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

The Revolution of Thank You

Posted by Molly DiBiancaOn January 14, 2009In: Employee Engagement

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Leadership blogger, Ed Brenegar, of Leading Questions, is a finalist in the Johnny Bunko 7th lesson contest.  If you aren't familiar with the contest, it's a big deal. To become a finalist, Ed submitted his vision on the relationship dynamic in the professional work environment.  The concept is called, To Say Thanks Every Day and it can be described as the revolution of the "thank you."

Voting is only open through Thursday, January 15, so visit the Johnny Bunko contest website to register your vote.  While you're there, be sure to have a look at some of the more than 50 entries for the contest.  Don't know who or what Johnny Bunko is?  Oh no!  How about Daniel Pink?  BusinessWeek Best Seller?  How about that?  The book, Johnny Bunko, written by Daniel Pink, was a literary phenomenon in 2008 in the business world.  image From the book's website:

The Adventures of Johnny Bunko is America’s first business book in manga and the last career guide you’ll ever need. 

The book, which you can read in an hour, tells the story of Johnny Bunko, a beleaguered Everyman toiling away at the Boggs Corp

One night Johnny meets Diana, a magical and butt-kicking adviser who teaches Johnny -- and you -- the six lessons of satisfying, productive careers:

1. There is no plan.

2. Think strengths, not weaknesses

3. It’s not about you.

4. Persistence trumps talent.

5. Make excellent mistakes

6. Leave an imprint.

The book could be described as "the revolution of the Everyman."  Revolutions all around!  Check out Ed's entry on the real value of saying "thank you," as well as the other top contenders.  Then be sure to pick up the Johnny Bunko book and give yourself the sixty (or ninety) minutes it takes to read it cover to cover.  Enjoy the revolution.

Women Who Bully Women at Work

Posted by Molly DiBiancaOn January 14, 2009In: Jerks at Work, Women In (and Out of) the Workplace

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Bullying in the workplace has been a hot topic in the labor and employment world since 2007, when The Workplace Bullying Institute published a revealing survey on the topic. Since then, the subject of Jerks at Work has played a regular role in scholarly discussions about how employers can work to improve the working environment.  The attention, at least from legal scholars, has been focused on the overlap between unlawful harassment and the bullying epidemic.  So the theory goes, bullying conduct looks enough like harassing conduct that a jury could reasonably interpret the former as the latter. 

I speak frequently on the topic and, when making a case for the implementation and enforcement of anti-bullying policies, I explain it as a matter of simple business sense.  Happy people don't sue.  (Most of the time.)  But pissed-off people make great plaintiffs.  Pick on someone long enough and be mean enough and it's just a matter of time until the person reacts.  The reaction can come in a myriad of forms, all of which are adverse to the employer's interest.   Workplace violence is one possible response to bullying experienced by workers.  Legal action is another. 

This topic also comes up when I give general employment discrimination training or harassment-prevention training.  When discussing the legal elements of harassment, I tell attendees that the harassing conduct must be because of a protected class.  If a male supervisor terminates a female employee, this is not gender discrimination.  For gender discrimination to exist, the termination decision must have been made because of the employee's gender.  There is a principle in discrimination law that stands for the idea that, where the alleged discriminator is in the same protected class as the plaintiff-employee, it is less likely that discrimination occurred. 

At this point in the lecture, I laugh to myself because I know what comes next.  I give some examples of this principle at work.  If a worker alleges that he was not hired because of his age, the fact that the hiring manager was older than the candidate weighs against the candidate.  Similarly, if an employee complains that he was unlawfully terminated because of his race (Indian), the fact that the manager who made the decision to terminate also is of Indian origin will weigh in the employer's favor.  I go on to give another example involving an employee who is not promoted and files a charge of discrimination alleging gender discrimination.  Just as in the other examples, if the manager who made the promotion decision also is a woman, this fact will weigh against the employee's case.  I then say, "As any woman in this room will attest, this idea is ridiculous.  Women are treated the worst by other women."  All the women in the room laugh--the truth is funny. 

If she had been in the training session, Peggy Klaus of the N.Y. Times would have laughed, too.  In her recent article, A Sisterhood of Workplace Infighting, Klaus discusses the reality that exists among women at work. As she puts it, "we can be our own worst enemies at work."  She cites the Workplace Bullying Institute's study, which found that women bullies target other women 70% of the time, whereas male bullies are equal-opportunity abusers. 

Why is it that this dynamic is so true?  Why is it that women are most likely to pick on other women at work?  Although this certainly has been true for as long as women have had a seat at the table, I think that the tides have begun to turn and that women are comfortable enough in their seats so that they have no need to worry about someone kicking them out. 

Wellness Resolution: The Quest for the Perfect Ergonomic Office Chair

Posted by Molly DiBiancaOn January 12, 2009In: Internet Resources, Wellness, Health, and Safety

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Walking while you work was the topic of an earlier post. This post stays within the same theme--how to be healthy at work--but with a different perspective--mine.  I have some thoughts of my own on this topic. 

For one, I would cherish the opportunity to move more through the day without sacrificing working time.  It's not the walking part, really, as much as it's the idea of not sitting that I find attractive.  Basically, anything that involves me not sitting would be of value.  Alternatively, sitting comfortably and without permanently wrecking my posture would be a heck of an idea.

Somehow, I've never gotten around to buying one and my back really pays the price for my indecisiveness.  What's stopping me?  There's just too many from which I could choose!  But that's not to say that I haven't given it a lot of thought.  Here's the rundown on my years of searching. image

There's the classic Herman Miller Aeron chair.  Everyone knows that the Aeron is pretty hard to beat when it comes to function and design.  Being a lover of modern furniture, I can admire the Aeron even for the story of its creation--and if you haven't yet read the story, it's a great story of perseverance and dedication, of leadership and teamwork.  Good stuff.  The Executive Aeron can be purchased for approximately $1,300. 


Herman Miller also offers the Mirra ($829) and Celle ($629) chairs as less pricey Aeron alternatives. Both chairs come in a variety of colors, which is an advantage over the Aeron.  Color is important. 











I have to pass on the Aeron because, honestly, it's just not "pretty" enough for me.  Yes, mock me if you will, but at least I'm honest.  I appreciate the aesthetic but I need more glamour than the black mesh has to offer. 

The Freedom chair by Humanscale is next in the rotation.  The Freedom chair (with headrest, ofimage course), also has plenty of design awards on its resume and is known as one of the best in the ergonomic category.  But, to its credit, it comes in a variety of colors and textures, including leather, which happens to be my preference.  At around $1,000, the chair is priced competitively.  The Liberty chair, priced for under $800, is Humanscale's task chair alternative. 












Next up is Steelcase--the maker of the Walkstation treadmill-desk combo that prompted this post.  Steelcase has plenty to offer in the way of ergonomic seating, the two most popular choices being the Leap and Think chairs.   Both are offered in various colors and both have a contemporary look, with the Think chair's sleek, linear design being my preference between the two. image













I've been known to be open to new things so it's not surprising that I've given a lot of thought to the out-of-the-ordinary seating options.  For instance, the HAG Capisco saddle chair (in red, below, $690 - $1,200) dares to be different.  Even assuming that it's as comfortable as could be and the look was where I wanted to go, the whole "saddle" concept just doesn't work for me.  The idea is that you can sit in the chair backwards (why, I haven't the foggiest).  Sorry, I wear too many skirts to make this a realistic possibility.  I'll pass, although I do love the height-adjustable feature. In my ideal office, I would have a height-adjustable desk, making this feature quite important.  















The same principles go for the "stool" option but, in the interest of fairness, I'll list them anyway.   The Swopper Stool by Via (left, $600) is designed to force its user to keep their balance by engaging their abdomen muscles instead of letting us lazy office workers slump over in our traditionally terrible posture.   The HAG Balans Kneeling Chair (right) is even less likely to ever see the four walls of my office.  I've witnessed these in use and, unless you work at a health club or in another industry where you are expected to wear clothes designed for comfort, this option is just impractical.  My devotion to improved posture is not this strong.   














Now let's get to the serious contenders.  If and when I get around to breaking open the office-chair-piggy-bank, there are just two that make me stand up and cheer. 

First is the Steelcase Leap Worklounge Chair in Leather ($2,700-$3,400 depending on options). steelcase work lounger in leather

It's beautiful.  And that's exactly why I like it.  It comes in white leather, which is my favorite upholstery option (practicality be damned).  There is also an optional ottoman but who has time to put their feet up?  We're working too hard to afford the chair!



And then there's the ultimate in luxury office seating, the Silver chair by Interstuhl.  Interstuhl is a German company and brings German precision to its line of couture office furniture.  I could say more but the pictures speak for themselves. 






Beauty is not cheap.  The base model in black will cost you around $4,500.  But why stop there?  If you're going to do luxurious, go all the way.  And Interstuhl has just the chair for satisfying the maximum luxury quotient.  

For a mere $65,500, you can be one of the lucky owners of the world's most expensive office chair.   You'll get not just the chair but the matching ottoman, as well, both of which are plated in 24-karat gold.


The chair has even had a few roles on the silver screen.  It was used as Al Pacino's chair in the movie Ocean's 13.  And, more recently, made a cameo in the latest Bond film, Quantum of Solace.


News on E-Verify for Federal Contractors

Posted by Teresa A. CheekOn January 12, 2009In: E-Verify

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Mandatory use of E-Verify has been on the agenda for several months.  Today in my inbox I found a message from the Society for Human Resource Management (SHRM), saying that SHRM, the U.S. Chamber of Commerce, Associated Builders and Contractors, the HR Policy Associate, and the American Council on International Personnel had filed suit in December in the United States District Court for the District of Maryland to stop the OFCCP from requiring federal contractors and subcontractors from using E-Verify.  E-Verify Logo RGB MASTER

On Thursday, January 8, the U.S. Department of Justice agreed to delay the effective date of the new requirement from January 15, 2009, until February 20, 2009, so that the court can conduct a hearing on the merits of SHRM’s claims. The plaintiff organizations argue in their 28-page December 23, 2008, complaint that the government has exceeded its authority by requiring government contractors to follow the new requirements to use E-Verify for not just new employees but also previously verified current employees.

For background on the E-Verify program, see:

Federal Contractor E-Verify Rule Is Final!

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

The Top 30 Blogs on Writing

Posted by Molly DiBiancaOn January 11, 2009In: Internet Resources, Resources

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Better writing is a worthy goal for anyone.  And certainly for lawyers, who make a living by being persuasive.  I work on my writing skills year round but, for the purposes of this series of posts, I'm calling this goal a resolution.  In the spirit of resolutions, I posted on 10 of the Funniest Writing Blogs.  (If you missed that post, go check it out--you're guaranteed a laugh from the very particular bloggers who feel so passionately about things like the overuse of quotation marks.)

In the second post in the series, I offered readers a list of 20 Online Dictionaries, which included everything from the Dictionary of Philly Slang (our native language), to the RhymeZone, to the Dictionary of Sushi.  You can never have too many reference sources, right?

Today, in the third post in the series, I'm being a bit more serious and scholarly.  Below are 30 of the Best Writing Blogs.  Some of the blogs focus on legal writing, some are strictly business (writing, that is), and some are whatever they want to be on any given day.  Here's to better writing everywhere!

Adams Drafting, by Ken Adams, concentrates exclusively on contract drafting and writing issues facing transactional lawyers.
Bad Language is a U.K. blog by Matthew Stibbe.  The blog is dedicated to business marketing, which Stibbe (rightly) believes is linked to effective writing.
Building Rapport, The Plain Language Blog, is written by Canadian Cheryl Stephens. The blog's mantra sums up Stephens' philosophy quite well.  The purpose of the blog is to "advocat[e] plain language, clear design, sensitivity to audience concerns, and civility."
Business Writing, by Lynn Gaertner-Johnston, offers helpful and gracious instruction on writing in the business world.  Lynne's posts often derive from questions she's received in one of her writing seminars, which ensures the timeliness of the topic.
Confident Writing, by writing coach Joanna Young, offers words of encouragement, as well as words of instruction, to a broad audience, including writers and writing hopefuls.
Copyblogger by Brian Clark is targeted towards those who want to improve their online presence through effective blogging.
Daily Writing Tips is maintained by five talented professional writers and offers just what it promises--daily tips on how to improve your writing. If you're feeling confident, take one of the several "tests" offered at the site to measure your vocabulary, grammar, and spelling skills. 
Disputed Issues, by Stephen R. Diamond, J.D., Ph.D., tackles common missteps in legal writing, as well as the reasons why lawyers write so badly.
Fairyland Castle is a new blog written by recent law-school graduate, Martin Magnusson, who provides commentary--not instruction--on legal writing.
Grammar Girl Mignon Fogarty offers short, friendly tips to improve your writing. Covering the grammar rules and word choice guidelines, Grammar Girl makes complex grammar questions simple with memory tricks to help you recall and apply those troublesome grammar rules. Grammar Girl is also available via podcast, if you want to make that morning commute count for something.
Grammarphobia Blog is the love-child of Patricia T. O'Conner and Stewart Kellerman, who met as editors at the New York Times. They offer practical advice for handling every type of grammar problem.
Legal Writing Prof Blog offers resources and news updates by legal-writing academics. 
Legalwriting.net, by Wayne Scheiss, who also maintains an excellent website.
Manage Your Writing, by Dr. Ken Davis, former chair of English at Indiana University-Purdue University Indianapolis.  This site offers readers short, to-the-point posts on discrete ways to "manage" your writing.  It also offers a great list of writing resources.
Men with Pens is a Canadian blog by three, you guessed it, men with pens, who post regularly on ways to improve your writing, blogging, web design, and business generally, in an edgy and irreverent way that's proven very popular with readers. [Update Jan. 16, 2010: According to Mister Thorne, this blog is not written by three men with pens but by one woman. How delightful!]
Mr. Rewrite is a sassy blog that looks at "spelling, grammar, and usage with a dash of humor."
Party of the First Part, by Adam Freedman, is devoted to eradicating the world of the pompous and verbose writing style commonly referred to as "Legalese." At the website of the same name, you can get your kicks by laughing at people who write worse than you at the Legalese Hall of Shame, where "POFP points the Fickle Finger of Fate at some real-life gobbledygook — from insurance contracts, jury instructions, and other literary gems (with translations)."
Robust Writing, by freelance writer Jesse Hines, encourages readers to use writing as a persuasive tool for success in business, marketing, and life in general.
Set In Style, by Mister Thorne, the "Legal Wordsmith."** One of my favorite writing blogs, this site is directed to the legal profession but is beneficial for anyone whose writing is intended to serve as marketing material.
Style & Substance is one of the many great blogs of the Wall Street Journal. Maintained by Paul R. Martin, editor of the WSJ's stylebook, the blog is host to monthly bulletins about style (and the lack thereof) in contemporary language.
The (New) Legal Writer, by Ray Ward, an appellate lawyer practicing in Louisiana, is very popular with those in the know around the blogosphere. 
The Slot is written by Bill Walsh, author of Lapsing Into a Comma and The Elephants of Style. Walsh also maintains the website, The Slot, which provides regular commentary targeted to copy editors and interesting enough for anyone with a passion for writing.
The Vocabula Review "battles nonstandard, careless English and embraces clear, expressive English." In short, this blog is dense with solid content that offers valuable instruction to writers at every skill level.
The Word Blog, by Boston Globe columnist Jan Freeman, is a blog about "the rules and realities of the English language."  
Triangle Grammar Guide is a blog hosted by North Carolina's News & Observer journalist, Pam Nelson. The posts are short and witty and propose to be your "online grammar class."
Word Wise is written by Dan Santow, VP at Edelman, which, according to Dan, is the world's largest privately held PR firm. Satow's posts are inspired by everyday observations of language done well and not so well.
Write to Done is authored by blogger extraordinaire, Leo Babauta. His twice-weekly posts cover "the art and craft of writing." If Leo Babauta blogs it, you can bet it's worth reading it.
Writing, Clear and Simple, by Roy Jacobsen, offers writing tips to legal and non-legal writing alike.
Writing Tools by Poynter Online is the online home of The Poynter Institute, a school for "journalists, future journalists, and teachers of journalists" located in St. Petersburg, Florida.  Poynter maintains one of the very best online resources for everything related to writing.
You Don't Say: Language & Usage is a Baltimore Sun blog, written by John McIntyre. McIntyre's bio, as stated on the blog, says it far better than I possibly could: "John McIntyre, a mild-mannered copy editor for a great metropolitan newspaper, has fussed over writers’ work at The Baltimore Sun since 1986."


The other posts in this series on Writing:

Writing References #2: 20 Online Dictionaries

Writing Reference #1: 10 Humorous Writing Blogs

My Finely Tailored New Year's Resolution: Pens & Pinstripes

New Year's Workplace Resolutions #2: Get More Exercise

Posted by Molly DiBiancaOn January 11, 2009In: Wellness, Health, and Safety

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What are your resolutions for 2009? I predicted the top 5 workplace resolutions based on the popularity of various topics on the blog. One of the most popular topics in 2008 was Corporate Wellness.  There's no time like the present so why wait to get fit?  If you're ready to jump on the healthy-employee bandwagon, here's an interesting way to get started: the treadmill desk.  We've written before about this fascinating workplace wellness concept. 

The premise is this:  Healthy employees are productive employees.  To be healthy, employees need to move.  Moving employees aren't being productive.  It's a vicious circle. 

Until now, that is.


Steelcase is trying to change that with its Walkstation treadmill desk.  The Walkstation is, in a basic sense, a treadmill and an adjustable desk.  Using this nifty tool, employees can walk while they type, talk on the phone, or review documents.  Employees aren't asked to jog while working, though.  The treadmill runs at speeds of 0.3 - 2 mph. 

Health doesn't come cheap, though.  A single Walkstation will set you back about $5,000.  According to Steelcase, employers are buying single units to be shared among several employees, who can reserve the unit for small periods during the workday.


I have some thoughts of my own on this topic.  For one, I would cherish the opportunity to move more through the day without sacrificing working time.  It's not the walking part, really, as much as it's the idea of not sitting that I find attractive.  Basically, anything that involves me not sitting would be of value. 

I'm also in touch with the fact that I am just not that coordinated.  The thought of me trying to walk on a treadmill in 4" heels while typing an e-mail to opposing counsel is funny to me, even funnier to anyone who's seen me try to walk and chew gum at the same time.  I think it's a disaster waiting to happen.  So what would be my preferred alternative?   Stay tuned to find out.

USCIS to Require Use of New I-9 Form on February 1, 2009

Posted by Teresa A. CheekOn January 10, 2009In: Hiring, Immigration

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U.S. Citizenship & Immigration Services (USCIS), will issue a revised I-9 Employment Eligibility Verification Form.  Employers must use the new form on February 1, 2009.  USCIS issued an Interim Final Rule describing what documents can be used as proof of identity and authorization to work in the United States.

The biggest change under the new rule is the new prohibition on accepting expired documents.  Expired documents will no longer be acceptable proof of the right to work. This means that U.S. Passports and List B identity documents, such as driver’s licenses, may not be used for employment verification purposes if they have expired. In the Interim Rule, the USCIS explains that this measure will help prevent the use of counterfeit documents since current documents are more likely to include security features and up-to-date photographs.

The revised form will also include changes in references to various immigration documents (I-551, I-688, I-688A, I-688B, I-766, I-94, I-94A) to conform to current Department of State and USCIS practices with regard to those documents. There will be two new acceptable List A documents: (1) a machine-readable immigrant visa with a temporary I-551 printed notation, and (2) A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

The new form and a revised version of the instruction book for completing the form will be available on the USCIS website by February 1. Employers must use the new form for all new employees and for reverification of current employees beginning on that date. The draft of the new form is attached to the Interim Rule.

Workplace Dress Code Is Cut Short. Really, really short.

Posted by Molly DiBiancaOn January 8, 2009In: Dress & Attire, Just for Fun

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Workplace attire is a favorite topic of mine.  When the New York Times announced that the "man-short" suit was going to sweep corporate offices across the country, I had my doubts.  Recently, the Wall Street Journal asked whether unshaven faces would be the next big thing as men laid off from their fast-track jobs rebelled against the system by, well, by dressing like men without jobs.  

For those who find this type of fashion-of-the-absurd-style commentary as entertaining as I do, I'm glad to bring another soon-to-be fashion classic to your attention.  Corporette, a fairly recent and worthy edition to the blogosphere, spotted this first.* 


This Bebe twill suit is available as separates--a jacket with piping and pleats, a bustier vest in the same style, wide-leg (and super-long) pants, and a reasonably conservative skirt.  But what really takes the day is not the slightly off-beat twill suit.  There's a third option.  If neither the pants nor the skirt does it for you, try the super-short shorts.  How short is short, you ask?  Try a 2.25 inch inseam.  Wowser. 

*In case you don't already have Corporette in your feed reader, now's the time to add it.  The blog is described as a "fashion and lifestyle blog for women lawyers, bankers, MBAs, consultants, and otherwise overachieving chicks who work in conservative offices and need to look professional, but want to be fashionable."  Great stuff.

The Maternal Profiling Debate Continues

Posted by Molly DiBiancaOn January 7, 2009In: Family Medical Leave, Family Responsibilities (FRD), Pregnancy (Title VII)

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Employment discrimination against pregnant women and moms is on the rise.  Or so says the author of an article in this month's Delaware Today magazineYoung Conaway attorney Adria Martinelli was quoted in the article, commenting on the relationship between the state of the economy and discrimination against women with children. 

The number of single mothers has increased dramatically over the last three decades, rising from 3m in 1970 to 10m in 2003.  And, according to a Cornell study cited in the article, a woman with children is 44% less likely to be hired than a non-mother with the same resume, experience, and qualifications.  Mothers who were hired were offered, on average, $11,000 less than non-mothers.

Although these statistics are sobering, Delaware mothers have some statistics worth celebrating.  Two Delaware employers were included in the 2007 100 Best Companies for Working Mothers award, AstraZeneca and the DuPont Company.  AstraZeneca was also recognized by Fortune magazine as one of the 100 Best Companies to Work For in 2008.  The pharma corporation's adoption and fertility benefits earned it recognition from the Dave Thomas Foundation for Adoption and Conceive magazine.

Although the question of whether maternal profiling really occurs in the workplace and, if so, to what extent, is subject to debate, this article clearly believes that it does occur--a lot.  Maybe so.  But the law is designed to prevent this and, if pregnancy discrimination or caregiver discrimination does occur, the law provides victims with critical remedies and a day in court.

The FMLA gives eligible employees up to 12 weeks of unpaid leave to care for a newborn or just-placed adopted child.  Both parents are eligible for the leave--the FMLA does not discriminate based on gender.  Additionally, Title VII was amended to add the Pregnancy Discrimination Act ("PDA"), in 1978.  In 2008, the Third Circuit ruled that the PDA also prohibits a woman from being fired for having an abortion.  The law also offers women protection for undergoing fertility treatment.  Lastly, the EEOC has interpreted Title VII as prohibiting discrimination based on caregiver status.  This branch of discrimination law protects both men and women from workplace discrimination based on caregiver or family responsibilities they may have at home, including caring for young children, as well as for elderly parents. 

It's likely that, for years to come, the debate over whether maternal profiling occurs in the workplace will likely continue.  What is clear, though, is that maternal profiling is a type of employment discrimination prohibited by law.

FMLA FAQ: Adult Children with Emotional Problems

Posted by Molly DiBiancaOn January 7, 2009In: Family Medical Leave

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The FMLA is complicated for employers to apply.  One reason for this is that most every "definition" in the statute contains another word that has its own definition.  For example, we know that FMLA leave may be taken to care for the serious medical condition of a family member.  We know that "family member" includes a child of the employee.  But who is a "child" under the statute?  Here's one twist on that question.

Q:  An employee has requested to take intermittent FMLA leave to care for her adult son, who has long-term emotional problems, whenever there is a “situation where she is needed.”

There are three questions that the employer would need to have answered before being able to determine whether the requested leave is FMLA qualified. First, the employer must determine if the adult son is a covered family member, which requires a determination of whether he is “incapable of self-care.” If he requires assistance to engage in the activities of daily living, the second question is whether this inability is a result of a chronic serious medical condition. Third, the employer would need a further description of the “situations” for which the employee would require leave.

Adult Children and the FMLA

Adult children can qualify as a “family member” for purposes of the FMLA only if the individual is incapable of self-care because of a mental or physical disability. “Incapable of self care” means that the individual requires active assistance or supervision to provide daily self-care in at least three “activities of daily living,” such as bathing, dressing, eating, cooking, cleaning, shopping, or taking public transportation.

Emotional Problems as a Serious Medical Condition

The statement that the employee’s son has “emotional problems” is insufficient to qualify him as having a serious medical condition, as is required for FMLA protection. A health-care provider, such as a psychologist, should determine whether the son’s emotional problems constitute a serious medical condition as that term is defined by the FMLA.

“Situations” as Reason for Leave

The FMLA broadly defines the times that an eligible employee can take leave. Simply, the employee must only be taking leave to provide care for or provide psychological comfort to an immediate family member with a serious health condition. If, in the first question, we determined that the adult son qualifies as an “immediate family member” and, in the second question, determined that his “emotional problems” qualify as a serious health condition, the final question is whether the employee is requesting leave to provide care or psychological comfort for her son. If she is taking him to medical appointments or simply caring for him while he is not well, this time is protected by the FMLA. But if she was requesting leave to take him to have his picture taken for the annual holiday card, or to a friend’s house to visit, these would not qualify as protected activities and would not constitute FMLA-eligible leave.

FLSA FAQ: Overtime and Unpaid Leave

Posted by Molly DiBiancaOn January 7, 2009In: Fair Labor Standards Act (FLSA), Family Medical Leave

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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 employee’s total hours worked.

New Resources on the ADAAA

Posted by Molly DiBiancaOn January 6, 2009In: Disabilities (ADA), Internet Resources

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The Americans With Disabilities Act Amendments Act ("ADAAA"), is giving employers another reason to pay close attention to what's happening on the Hill.  The ADA Amendments Act became effective last week with the start of the new year. The EEOC has not completed its final regulations for the new law but that doesn't mean employers aren't still obligated to comply.  ADA 

To help employers manage this new law, the Job Accommodation Network ("JAN"), has released a new publication and a resource page.  All wise employers know about the power of JAN.  JAN is a treasure trove of accommodation-related information.  If you have questions about what options there are for accommodating just about any disability, JAN is the place to look.  And JAN provides not only the answer but actually gives you direct resources for purchasing the necessary goods and services. 

The new publication is JAN's Accommodation and Compliance Series: The ADA Amendments Act of 2008 and will be periodically updated as additional information is made public.  Complementary resources on the ADAAAA is also available.  

Writing References #2: 20 Online Dictionaries

Posted by Molly DiBiancaOn January 6, 2009In: Internet Resources

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When I posted my estimates for the Top 5 Workplace Resolutions for the New Year, I failed to mention my year-round resolution to work to improve my writing.  It's a skill everyone needs and, as we become more dependent on e-mail, Twitter, and text messages, it's a skill that's easy to forget about.  So, to make sure I don't forget to work on my writing, I turn to a bunch of resources for help.  And, because I'm a big fan of sharing, I'm sharing those resources with our readers.  In the first of three posts in this series, I wrote about my 10 favorite writing blogs that take a funny perspective on proper language skills.  pencils

In this second post in the series, I share 20 Online Dictionaries that you may find useful sometime.  You never know when you'll need to look up a phrase spoken to you in Philly slang.  In the third post in the series, I'll get back to the serious stuff with 30 of the best blogs about writing.  Until then, enjoy!

  1. A Glossary of Rhetorical Terms
  2. American Heritage Dictionary
  3. American Sign Language Dictionary
  4. Astronomy and Space Dictionary
  5. Building and General Construction Technology Dictionary
  6. Cut-the-Knot Glossary of Mathematical Terms
  7. Dictionary of American Regional English
  8. Dictionary of Sanskrit Terms
  9. Encyclopedia of Law and Economics
  10. FOLDOC  Computing Dictionary
  11. Glossary of Applied Linguistics
  12. Glossary of Managed Care Terms
  13. Lectric Law Library's Legal Dictionary
  14. Mobspeak Glossary
  15. NetLingo The Internet Dictionary
  16. One Look - includes reverse lookup
  17. Online Etymology Dictionary
  18. Oxford English Dictionary News
  19. Philly Tawk
  20. RhymeZone
  21. Street Drug Slang Dictionary
  22. Sushi Glossary
  23. The Phrontistery, Online Dictionary of Uncommon and Unusual Words
  24. Yiddish dictionary
  25. Your Dictionary

Going Green at Work: New Year Resolution #4

Posted by Molly DiBiancaOn January 4, 2009In: Going Green

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Want to go green in the office for 2009?  Sure you do!  It's one of our new year's resolutions, remember?  Well, there's no time like the present.  Going green at work doesn't require a company-wide initiative--there's plenty that can be done at the individual level that can have real impact.  Of course, the more, the merrier.  So get some friends to join you in your eco-friendly endeavors.  Here are just a few ways you can make the move towards a greener office today.  image

Curb Your Paper Consumption

The average U.S. office worker goes through 10,000 sheets of copy paper a year.  (If that's the average across all industries, I dread to think how much the average law firm employee uses.)

An easy and effective way to reduce the amount of paper used in your office is to get into the habit of printing on both sides of the page.  Our printer will print double-sided easily, so we print just about all of our documents this way.  (An added bonus is the fact that our binders are half as small as they used to be!) 
Also, print in draft mode whenever possible. The ink you save will save the company money, as well as help reduce its carbon footprint. By purchasing remanufactured ink cartridges, you can contribute significantly.  According to Office Depot, for each remanufactured ink cartridge used, approximately 2.5 pounds of metal and plastic are kept out of landfills and about a half a gallon of oil is conserved.

How to Engage Employees--For Free

Posted by Molly DiBiancaOn January 4, 2009In: Employee Engagement

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Employers can build employee morale in countless ways. The most effective, though, are often overlooked because they're not as glossy as others.  For my nickel, the most effective employee-engagement strategies also are the lowest cost strategies.  Training, for example, can be a low-cost (or free!) way to motivate employees at any time.  It costs nothing to take a moment to recognize a job well done.  As Ken Blanchard would call it, "One-Minute Recognition."

The most costly employee-engagement strategies, on the other hand, can be the least effective.  Wally Block at Three Star Leadership posted about a recent N.Y. Times article that asserts the very same claim. In the article, Kelley Holland proposes that employers can't engage employees with "team-building" activities--at least not the traditional team-building that we know.  And I certainly do agree.  Strongly.

Can we all agree that a round of the Egg-Drop Game at the annual retreat simply is not sufficient to build any kind of team?  And why not?  If it's not obvious, the egg-drop game and it's corporate-sponsored brother, the Wilderness Adventure, cannot build true employee engagement because they're insincere.  Give your employees a little more credit than that, already.  image

Insincerity is a poison and it's an obvious one.  It's easy to spot a lame, once-annual attempt to corral the worker bees together over hamburgers and s'mores, put on a happy face, and calling it "team building."  Your employees don't buy it.  When they return to work on Monday, they know that there is no change on the horizon.  Everything returns to normal and no team is ever formed.

Instead of spending money on these external programs and getting no results, try something different.  Try something that costs nothing and is far more effective.  Try saying "thank you."  Try greeting your direct reports and colleagues with a friendly, "Good morning" instead of gruffing past them into your office, closing the door behind you. 

Take a minute to appreciate the extra efforts of a team member--and let them know that you noticed.  Even if this means that you need to schedule time to be nice.  Fine, do it. 

Put it on your calendar--three times a day, in 5-minute increments--"Engage Employees."  When the "appointment" arrives, just look up.  Catch someone doing something right--or even almost right--and tell them that you noticed.  Be sincere.  You'll be amazed at the results.