February 2009 Archives

More Good Advice on Best Practices for Use of Social Networks for Employers

Posted by Molly DiBiancaOn February 27, 2009In: Social Media in the Workplace

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Employers's many uses of online social networking sites, such as Facebook, in recruiting, hiring, and monitoring, has been my theme this week.  I've said a lot on the issue so I'll turn it over to someone else for the final thoughts of the week. facebook_logo

Jonathon Bick, of the New Jersey Law Journal, has a piece on Law.com's Legal Technology News offering some excellent advice for employers who may be considering using social networks, such as LinkedIn, Facebook, and MySpace, in their hiring practices.  Specifically, he suggests the following three tips:

  • First, attempt to ensure the firm's personnel who research potential employee's background comply with the appropriate third-party terms of use agreements while data mining blogs.


  • Second, update the firm's employee handbook to detail what data mined from blogs may be used, and what data mined from blogs may not be used.


  • Third, update disclosures and background search permission acknowledgements used by potential employees and existing employees to appropriately cover blog review.


I raised each of these points in my podcast posted earlier in the week, Social Networking Sites As Employment Tools.

Stimulus Package Provides for Employee Whistleblower Protection

Posted by Maribeth L. MinellaOn February 27, 2009In: Benefits, Legislative Update

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Employers will be impacted by the Stimulus Package.  We've previously addressed the impact the $787 billion Economic Stimulus Package (a.k.a. the American Recovery & Reinvestment Act (the “Recovery Act”)), will have on employers' obligations with respect to COBRA, the Children's Health Insurance Program Reauthorization Act (CHIPRA), as well as the potential impact on available state unemployment-insurance benefits and tax implications.   This post highlights the McCaskill Amendment – the Act’s whistleblower-protection provision.

The amendment, introduced by Claire McCaskill (D-MO), includes several provisions.  First, the amendment proposes to permit inspector-general investigations.  Second, it proposes to gives employees rights to jury trials.  Third, it requires employers that receive Stimulus funds to inform employees of their new whistleblower rights.whistle

That’s right employers, the Act imposes yet another obligation.

Under the Amendment, an employee of any non-federal employer receiving Stimulus funds may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary course of an employee’s duties, to the Board, an inspector general, the Comptroller General, a member of Congress, a State or Federal regulatory or law enforcement agency, a person with supervisory authority over the employee, a court or grand jury, the head of a Federal agency (yes, the list is that long!) information that the employee reasonably believes is evidence of:

  • gross mismanagement of an agency contract or grant relating to Stimulus funds,
  • a gross waste of Stimulus funds,
  • a substantial and specific danger to public health or safety related to the implementation or use of Stimulus funds,
  • an abuse of authority related to the implementation or use of Stimulus funds, or
  • a violation of law, rule, or regulation related to an agency contract or grant awarded or issued to Stimulus funds.


Not only is the list of potential topics quite broad, but the threshold for an employee complaint is quite low.  The standard is simply what the employee reasonably believes. A person alleging reprisal under the amendment is deemed to have affirmatively established the occurrence of the reprisal if he can demonstrate that his whistle blowing was a contributing factor in the reprisal.

A whistleblower can premise his case on circumstantial evidence, including: evidence that the official undertaking the reprisal knew of the disclosure, evidence that the reprisal occurred within a period of time after the disclosure such that a reasonable (there’s that word again!) person could conclude that the disclosure was a contributing factor in the reprisal.

Employers, if you want to rebut the whistleblower’s case, you need to do so under the rigor of clear and convincing evidence. An employer needs to show that it would have taken the action constituting the reprisal in the absence of the disclosure.

Finally, the McCaskill Amendment does not preempt, preclude, or limit state law. The amendment provides rights in addition to existing whistleblower laws.

The bottom line is that the amendment gives employees the right to act as watchdogs for how an entity spends its Stimulus funds, which is not entirely a bad thing. In fact, we can all be watchdogs and use the federal government’s website, www.recovery.gov, which has been set up to allow taxpayers to figure out where Recovery Act money is going. Nonetheless, the amendment, like the other portions of the Act previously highlighted, burdens employers with one more responsibility.

American Recovery & Reinvestment Act Provides Tax Benefits for Some Employers

Posted by Maribeth L. MinellaOn February 25, 2009In: Benefits, Legislative Update

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Employers may benefit from the Economic Stimulus Package.  So far, this blog’s posts on the $787 billion Stimulus Package (formally known as the American Recovery & Reinvestment Act (ARRA)) have focused on the burdens placed upon employers that result from new laws on issues like extended COBRA coverage and unemployment insurance modernization. Notwithstanding the additional responsibilities, the Stimulus Package does have some tax perks for companies, particularly small businesses. In fact, President Obama alluded to the importance of ARRA’s tax provisions in his presentation to Congress last night. Below are some of the federal tax issues employers should raise with their tax advisors:

Net Operating Loss Carryback. Tax law under ARRA will extend the “carryback” period for net operating losses generated by small companies from two years to five years. From some employers, this means if you lost money in 2008, but paid taxes on profits in the last five years, you may be eligible to apply last years’ loss to prior-year taxes.

Equipment Deductions and Depreciation. Current tax law allows small businesses to immediately expense new equipment or machinery. The 2009 deduction will be $250,000.

Making Work Pay Tax Credit. This is a tax cut which refunds a maximum of $400 to single filers making less than $75,000 and $800 to married couples making less than $150,000. Taxpayers who qualify will see the amount deducted from their paychecks. Self-employed owners, find out if the can apply to you. This tax cut will be accomplished by adjusting federal income tax withholding tables, and the revisions will be integrated with employers’ payroll systems.

Work Opportunity Tax Credit. The WOTC is a voluntary program by which employers earn a tax credit for hiring individuals from one or more specific groups- i.e., unemployed Veterans and disconnected youths (someone who is between 16 and 25 years old and who is not regularly attending school or regularly employed for a six-month period prior to their date of hire).


For more information on the impact the Stimulus Package will have on employers, see:

Governors Reject Stimulus Funds Marked for Expanding Unemployment Benefits

More Employer Compliance Issues from Stimulus Package

Stimulus’ COBRA Premium Subsidy Puts Burden on Employers

Free Podcast: Employers' Use of Facebook, MySpace, and Other Social Networking Sites

Posted by Molly DiBiancaOn February 24, 2009In: Social Media in the Workplace

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Employers' use of social networking sites, such as Facebook, MySpace, LinkedIn, and, more recently, Twitter, is the them of my guest posts this week on the LexisNexis Workers' Compensation Center.  I've posted this week on the many ways employers have found to use these online tools (How Employers Are Putting Online Social Networking Sites to Work ), and about the risks that employers face when using these tools to investigate employee fraud.  Today we did a podcast on the same topic, which you can download here for free.  facebook_logo

The use of online social networking sites has continued to skyrocket--including use by adults over 25.  So long as this trend continues, it seems difficult to imagine that employers will simply ignore the potential resources that exist online.  As I've previously discussed, there are plenty of reasons to utilize these tools.  But there are even more reasons to do so in a way that will avoid as much legal risk as possible.  Check out the podcast to learn more.

Governors Reject Stimulus Funds Marked for Expanding Unemployment Benefits

Posted by Maribeth L. MinellaOn February 24, 2009In: Benefits, Legislative Update

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The Stimulus Package's impact on employers is hardly clear at this stage.  So far there have been three: Governors from Mississippi, South Carolina, and Louisiana each have gone on the record with their intention to reject millions of dollars marked in the $787 billion Stimulus Package (a.k.a. the American Recovery & Reinvestment Act) for states to expand their unemployment insurance benefits. The goal of the $7 billion Unemployment Insurance Modernization Act (UIMA) is to close gaps in current unemployment insurance programs. 3d image of computer mouse and globe with job search online

The Governors have a decent argument. Their concern is that if they expand eligibility for unemployment benefits, the consequence may be that their state is forced to raise unemployment insurance tax – literally a tax on employment, which seems contrary to the notion of economic stimulus. Governor Barbour (Mississippi) told CNN’s “State of the Union” Sunday that he does not want Mississippi to accept UIMA funds because it may require the state to change or somehow loose control of its employment laws.

Data from the National Employment Law Project (NELP) shows that 19 states immediately qualify for UIMA funds and 12 more could quickly become eligible by making a few policy changes. The immediate benefit of increasing unemployment eligibility by using federal funds is that under UIMA states who tap into such funding can receive millions of dollars up front, deposited all at once in their state unemployment trust funds.

Under UIMA, a state qualifies for one-third of its UIMA share if it has in place a policy called the “alternative base period,” which counts a worker’s recent earnings to qualify for benefits. To qualify for the remaining two-thirds, states have the option of providing benefits in two of the following four situations:

  1. part-time workers who are denied benefits because they are required to seek full-time work,
  2. individuals who leave work for compelling family reasons (domestic violence, spouse relocation, illness and disability),
  3. workers with dependent family members who qualify for state benefits but whose benefits should be increased to care for dependents, or
  4. permanently laid off workers who require extra unemployment benefits to participate in training.

According to the National Employment Law Project’s UIMA fact sheet, Delaware does not have an “alternative base period” policy, but it does have programs that would later qualify the state for UIMA funds. If Delaware decides to tap into UIMA, it could be eligible for $21.8 million.

For more information on the impact the Stimulus Package will have on employers, see:

More Employer Compliance Issues from Stimulus Package
Stimulus’ COBRA Premium Subsidy Puts Burden on Employers

Women Bullies In the Workplace

Posted by Molly DiBiancaOn February 24, 2009In: Jerks at Work, Women In (and Out of) the Workplace

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Women who bully women at work is not a new topic on this blog.  A segment on Good Morning America today addressed the topic of female bullies from a different point of view.  The piece looked at the female target and how women tend to differ from men when subject to workplace bullying.  Some of the more interesting gender-specific perspective notes made in the piece included:jerks angry woman

  • Women are taught to be non-confrontational and this tendency to not fight back makes them especially vulnerable targets.
  • Women, more so than men, tend to take negative interactions personally, concluding that the attack was directed to them specifically, as opposed to directed towards the individual standing closest to the bully at that moment.
  • Women do not complain about an existing problem and, when they do, they aren't as persistent as maybe they should be. 

So, do women make better targets?  Or, are they just more vicious bullies

It's an interesting idea.  Women are better than men at bullying others and at being bullied by others.  Well, I suppose that there's something to be said for being better at something.  Ok, not really.  So why do women fall into both roles with ease?  Are we genetically predisposed to these opposable positions? 

Gary Namie, Ph.D, founder of the Workplace Bullying Institute, offered the following tips to those being targeted by workplace bullies:

  • Get support from family and friends. Talking about the problem eases the burden and lowers the chances of stress-related illness.
  • See a doctor or a therapist, especially if you're having stress symptoms, such as sleeplessness and appetite loss.
  • Get witnesses to help you build a record of the bully's actions for a future complaint.
  • Confront the bully with the same toughness he or she showed you. This should be done with a single witness or as a group.

It's interesting to note some of the ways in which these suggestions would be particularly effective for female targets.  The first suggestion, for example, is a very gender-specific technique.  Research proves that women are biologically programmed to talk about their problems, whereas the male brain actually reacts to stress by reducing his desire, even restricting his ability, to "talk about it." 

Similarly, the tendency to garner group consensus prior to acting is a female-specific trait.  Males, on the other hand, tend not to seek group consensus before executing a decision.  This idea of "power in numbers" also is seen in the final suggestion, which encourages a victim to stand up to the bully--but to be supported by either a single witness or by a group. 

To read more about Jerks at Work, you may want to read these earlier posts:

New Conclusions on the Potential Costs of Workplace Bullying

Women Who Bully Women at Work

"My Boss Is Killing Me": Why this just may be true

Top 5 Lessons to Be Learned from the Jerk at Work

Workplace bullying

It's Friday and Your Boss Is a Total Tool

The Truth About Workplace Revenge

More Employer Compliance Issues from Stimulus Package

Posted by Maribeth L. MinellaOn February 23, 2009In: Benefits, Legislative Update

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We alerted employers to the new COBRA subsidy created by the Stimulus Package last week.  There is yet another insurance angle employers must be aware of: the Children’s Health Insurance Program Reauthorization Act (CHIPRA).


This Act extends and maintains health coverage for uninsured children, which was a hot topic during the Presidential campaign. The Act, which was signed into law on February 4, 2009, helps employees get insurance through their employers should their coverage run out by allowing employees to enroll kids even after the enrollment period is over.

The result is one more compliance issue for employers. Like the COBRA subsidy, employers need to identify eligible employees, notify them of the opportunity to enroll after enrollment periods are closed, and amend health insurance plans to allow for the extended enrollment. 

The Kaiser Family Foundation has put together a fact sheet offering an overview of the CHIPRA provisions, which may be helpful.  Employers, the Act takes effect April 1, 2009, so start your due diligence now.

The [Many] Roles of Online Social Networks in the Workplace

Posted by Molly DiBiancaOn February 23, 2009In: Privacy Rights of Employees

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Online social networks (OSNs), such as Facebook and MySpace, have found their way into the workplace.  Employees' use of OSNs and the impact of that use on workplace productivity are topics all to themselves.  OSNs are also being used by employers, though, as well.  In fact, Facebook and similar sites are becoming increasingly common tools in employers’ arsenals.  Employers have found a number of ways to use technology to their advantage.facebook logo

The various ways that employers are putting these tools to use span across the entire employment relationship, from pre-employment (recruiting), to potential employment (screening), and then all the way through the employment relationship (monitoring).  

I'm a guest blogger this week at LexisNexis' Workers' Compensation Law Center.  In today's post, I discuss the many ways that employers are putting Facebook, LinkedIn, and other, similar sites, to work in the workplace.  (See How Employers Are Putting Online Social Networking Sites to Work.)  Be sure to check out the post to learn about the variety of ways employers have utilized the very same type of technology that is considered one of the biggest drains on employee productivity. 

Should Gen Y Abandon Any Hope for Work-Life Balance?

Posted by Molly DiBiancaOn February 22, 2009In: Generations: Boomers, Xers, and Millennials, Women, Wellness, & Work-Life Balance

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Will work-life balance survive the current economy? Or will employees abandon the idea in an attempt to protect themselves from layoffs and other job cuts?  In a recent post, Adria B. Martinelli recently asked whether work-life balance issues are at risk in the current economyshutterstock_5022628

And she's not alone. The ABA Journal recently reported that associates have dumped the idea of a "work-life balance" and are, instead, billing hours like crazy in an attempt to survive any upcoming cutbacks.

Others, however, think that the whole "work-life thing" should be abandoned in the name of self-preservation, especially when it comes to Gen Y workers.  Instead, says Jake on Jobs, 20-somethings should not worry about work-life balance--that will come in due time.  What they should do is "work their butts off until they find a job that doesn't feel like work."

It's a difficult question, really.  On the one hand, I do agree with Adria's points.  Time is an invaluable commodity that can't be bought back with money.  On the other hand, though, being home with family as a result of an unanticipated period of unemployment is not my idea of "quality time," either. 


Stimulus’ COBRA Premium Subsidy Puts Burden on Employers

Posted by Maribeth L. MinellaOn February 20, 2009In: Benefits, Legislative Update

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The American Recovery and Reinvestment Act of 2009 (ARRA), has been signed into law by President Obama.  ARRA creates a federal subsidy of the premiums payable by certain terminated employees for continuation of coverage under employer-sponsored group health plans pursuant to the requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).  What does this really mean for employers?

It means employers, go back to September 1, 2008. Under ARRA, employers have an obligation to inform employees who experience an involuntary termination of employment (but not for reasons of gross misconduct) from September 1, 2008, to December 31, 2009, that they automatically qualify for a 65% subsidy for COBRA premiums for up to nine months after their date of termination or layoff.  So, employers get your ARRA notices ready.  Employers have an affirmative obligation to identify every employee who has been laid off since September 1, 2008, and send them an ARRA notice.

Below are some of the points your ARRA notice should include:

  • A description of the former employee’s automatic qualification for the subsidy, subject to the employee ability to meet the subsidy’s income requirements.
  • The forms necessary for establishing eligibility for the subsidy.
  • Pertinent contact information for the COBRA plan administrator or anyone else who can assist former employees with access to the subsidy.

Although it may not seem like much, there is a small burden placed upon employees who qualify for the subsidy. Covered individuals who become eligible for coverage under another group health plan or become eligible for Medicare coverage before the expiration of the nine month period must notify the health plan providing COBRA in writing or face a 110% penalty of the subsidy received. Make sure you add that point to your ARRA notice.

A New Weapon in the War Against the Office Lunch Thief

Posted by Molly DiBiancaOn February 19, 2009In: Just for Fun

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Coworkers who steal food from the office fridge are despised.  Fridge raiding is considered the most offensive breach of office etiquette, according to one survey.  But there is a way office workers can fight back.  

The Anti-Theft Lunch Bags, available at Thinkofthe.com just may be the long-sought-after solution to the problem of workplace lunch thefts.  From the website:

Tired of having your food stolen by sticky-fingered coworkers or roommates? Bullies taking your kid's lunch? Well, worry no more . . . Anti-Theft Lunch Bags are sandwich bags that have green splotches printed on both sides, making your freshly prepared lunch look spoiled. Don't suffer the injustice of having your sandwich stolen again! Protect your lunch with Anti-Theft Lunch Bags.




Have a great lunch and happy Friday, office workers across America!

HR Gold Standard In Action

Posted by Molly DiBiancaOn February 19, 2009In: Hiring

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Recruiting and training programs, to be truly successful, must have a clear purpose with well-defined objectives.  This is very difficult to do.  In the book Change to Strange, author Daniel M. Cable writes about just how difficult it can be to define your organization's true priorities, the ones that you will be fanatical about in the execution of the organization's business, and then building your workforce architecture around that "strange" picture. 

For an example of the lessons taught in Change to Strange, have a look at this speech by Randy Nelson, dean of Pixar University, the company's recruiting and training arm.  Mr. Nelson is inspiring, to say the least.  From his presentation, it's clear to me that Pixar "gets it."  As in, really gets it.  I am very impressed. 

[The video is made available by Edutopia.org, which Fast Company posted about early in the month.]

The video is about 10 minutes long (worth every second of your time).   As Fast Company describes the HR theory Nelson advocates:

Mostly, it's about hiring ultra-nerds with good communication skills. To wit: You want people who have become exceptional at a tiny discipline, no matter how obscure or dorky, since it's that compulsion to truly master something that predicts how they'll handle a new task. (Wannabe Pixar employees: Don't bury your unicycle or juggling skills on your resume.) Another idea is looking for people who have failed and overcome—as Nelson puts it, "The core skill of innovators is error recovery not failure avoidance," which is key if you're asking someone to solve a never-before-solved problem. But perhaps the squishiest trait is the ability to make others around you better, through communication and camaraderie.

This, I believe, is the HR Gold Standard in action.

March 5: Layoffs & Reductions in Force

Posted by Molly DiBiancaOn February 19, 2009In: Seminars, Past

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Employers are implementing layoffs and other drastic cost-cutting measures.  Done improperly, these "cost-cutting" measures can result in ruinous litigation. shutterstock_21695104

Learn how to conduct reductions in force without inviting a lawsuit by attending this half-day seminar hosted by Young Conaway. Delaware employment law attorneys Scott A. Holt, Teresa A. Cheek and Maribeth L. Minella will discuss the downsizing dos and don'ts. 

This program is taught at an advanced level and is designed for senior human resource professionals, equal employment and affirmative action managers, in-house counsel, and other business professionals. 


Program Fee:  $60.00 per registrant

Registration form is available for download at the event's page at Young Conaway's website.  The deadline for registration is March 2, 2009.

When:  March 5, 2009 9 a.m. - 11:30 a.m.

Where:  Young Conaway offices, Wilmington, Delaware

*HRCI Credits Pending

A(nother) Change of Heart from Facebook's Privacy Department

Posted by Molly DiBiancaOn February 18, 2009In: Privacy Rights of Employees

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[Update to Change to Facebook's Privacy Policy Under Attack]  Here's the quick background of this post, if you don't know already: 

Facebook has privacy policy warning users that their content is "owned" by Facebook until they terminate their membership or permanently remove the content.  Facebook changes policy by adding one sentence, which states that, even after the termination of one's membership, Facebook retains ownership of that member's content--forever.  Facebook users are outraged and there is a public outcry about concerns for privacy rights. Facebook announces that the policy is legitimate and here to stay. image

That gets you caught up through this morning.  But there's more to the story.  This morning, on CNN's American Morning, Facebook's Chief Privacy Officer, Chris Kelly, spoke about the outcry from users following the change in the policy's language.  And, it turns out, Facebook has been persuaded by the public voice.   In a total about face, (sorry but the pun is intended), Facebook has decided to again change its policy, this time to satisfy the concerned public. 

One of the most insightful points made by Kelly came as a reminder about just how private your content is not, once posted online.  From the transcript of today's show:

Well, we think it's incredibly important for people to realize the power that they can have in terms of choosing to put up information or not, and then also to whom they show that information.

The video can be viewed in whole at the CNN website: Facebook's About-Face

Why Flexible Downsizing Is a Win-Win Initiative

Posted by Molly DiBiancaOn February 18, 2009In: Alternative Work Schedules, Flextime, Reduction in Force (RIF)

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The four-day work week is very popular among public employers these days.  Employers who have implemented a compressed work week program successfully say they've enjoyed benefits such as saved energy costs, decreased absenteeism, and improved employee morale resulting from the change. 

I don't believe that a four-day work week is the solution of all solutions, as some have claimed.  But I do believe that there are certain organizations that, because of their structure and purpose, can be good models for the program.  The ideal candidates, though, are almost always government employers.  A mandatory four-day work week, generally, is not realistic in the private sector. image

But does that general proposition lose its vigor in a bad economy?  Can the four-day work week be implemented in the private sector more effectively because of the downturn?  It turns out that flexible schedules can have important benefits in an economic downtime, just as they can in times of fiscal health.  The trick, though, is to get employers to be aware of the opportunities.  

Fast Company blogger, Cali Yost, has an ongoing series of posts about the benefits of "flexible downsizing" and why employers are better suited to consider this option as opposed to layoffs.  In a recent post, she explains:

There are creative, cost-effective ways to use strategic work+life flexibility to reduce labor costs while remaining connected to valuable talent. These options include reduced schedules, job sharing, sabbaticals, and contract workers.

In a recent interview with Penn professor and author, Dr. Peter Capelli, Yost questioned why more employers aren't taking advantage of the benefits that can be derived from a flexible-downsizing initiative.  Most employers, said Capelli, are too short-sighted, focusing only on short-term cuts instead of the longer term savings to be had.  Capelli asserts that it is cheaper to retain an employee at  5% reduction in pay than to layoff 5% of the workforce because "there are no severance packages; the legal liability and associated costs are much less; and the savings come instantly without the agonizing administrative process of figuring out who has to go…”.

Flexible downsizing is also a valuable option when employers are trying desperately to avoid layoffs--at the cost of the fiscal health of the organization.  These companies are so pained by the thought of laying off personnel that they avoid doing so to the extent that it actually results in more layoffs in the long-term.  Alternatives such as voluntary, across-the-board pay cuts, reduced-hour schedules, and furloughs of even a few weeks can mean the difference between voluntary, and relatively minor, cut-backs now and involuntary and severe cut-backs later. 

Change to Facebook's Privacy Policy Under Attack

Posted by Molly DiBiancaOn February 18, 2009In: Privacy Rights of Employees

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1 in 5 employers use online social networking sites (OSNs) to screen job applicants.  Some employers even use OSNs to monitor the activities of current employees.  (Think workers' comp fraud.)  If done properly and for the right purpose, I support the use of the Internet as a tool for employers.  But there are plenty of critics of the practice.  word background social networking

Those who are against the use of sites like Facebook and MySpace to screen job candidates cite "privacy" concerns.  I don't buy it.  There is no reasonable expectation of privacy when it comes to information an individual voluntarily posts on-line.  Yes, there may be other problems if an employer creates a false identity for the purpose of "tricking" an individual into granting the employer permission to access his or her site or web page.  But, the simple act of viewing something that was published for the purpose of being viewed, does not seem like a privacy violation from my perspective. 

Continue reading "Change to Facebook's Privacy Policy Under Attack" »

Laid Off and Pregnant

Posted by Adria B. MartinelliOn February 17, 2009In: Pregnancy (Title VII), Women In (and Out of) the Workplace

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The Wall Street Journal recently posted an entry on its blog “The Juggle,” entitled Laid Off . . . And Pregnant,” describing the position of tens of thousands of pregnant women laid off in the current economy. As noted by the article, pregnant women are just as subject to any one else to being laid off for economic reasons, as long as they are not specifically targeted based on their pregnancy or assumptions about their future commitment to the job as new mothers. stick people family images

A woman laid off while pregnant, however, is in a uniquely difficult position. Legal prohibitions against pregnancy discrimination notwithstanding, women with a visible belly are not the most competitive job candidates. Most unemployed women “showing” their pregnancy assume (with good reason) that they will never get hired, and therefore remove themselves from the job market. Others hope to land a job offer before their appearance forces them to disclose their condition.

Although it is illegal for an employer to refuse to hire a candidate simply because of her pregnancy, the employer is likely to assume that the employee will be unable to work for at least some period in the near future. In addition, there remain societal assumptions about a new mother’s lack of focus on work (that the EEOC’s Guidance on Family Responsibility Discrimination (pdf) was designed to combat). Even if, subconsciously, one would anticipate most employers to reach the decision that another (non-pregnant) candidate was better suited for the position. It goes without saying that an expectant father who is laid off does not face the same hurdles.

We’ve come a long way, baby, but not that far.

There’s no easy answer to this issue. I’m sure there are plenty of expectant mothers crossing fingers and toes (if they can reach them) and hoping that they remain employed through the duration of their pregnancy.

Self-Service Check Out: A Sign of the Apocalypse?

Posted by William W. BowserOn February 17, 2009In: Just for Fun

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I know we are in tough economic times. Sacrifices must be made. Budgets must be cut. But can you go too far? Can personnel cuts go so deep that they become counter productive? For example, a layoff may make no sense if all the cost savings are lost due to overtime paid to the remaining employees. Similarly, cutting staff would seem to be inappropriate if customer service deteriorates to a point that customers are driven away. Yet, many retailers seem to be taking such an approach in the expansion of self-service checkout.group with briefcases

Last weekend, I visited a major home improvement retailer to purchase seeds for this year's garden. I won't say its name, but its logo is blue and white. Now, I am generally a fan of this chain and drive a few extra miles because I have found it offers a great selection of goods at a fair price. But mostly, I go there because I have found it's employees knowledgeable, helpful, and most importantly, accessible. I drive right by this chain's major competitor (the one with the orange sign) for this reason. But the customer service of that chain is not what this post is about.

By the time my wife and I had finished our shopping, we had a couple of dozen seed packs and related materials. As we approached the checkout, we noted that every aisle was closed except the self-service checkout aisle. Two clerks were working at a closed aisle. When I approached them, hoping that they would open up, they directed me back to the self-service checkout aisle. A sense of dread came over me.

Be honest. Have you ever been able to successfully checkout a dozen or so items at a home center or grocery store without a problem of some sort? I never have. Either an item won't scan or an "unexpected” item will be detected in the bag, or some other issue will require assistance from the clerk (i.e. how do you ring up two loose screws and three nuts? Or, is this a sweet potato or a yam?)

Continue reading "Self-Service Check Out: A Sign of the Apocalypse?" »

What All Employers Can Learn from Gordon Ramsay

Posted by William W. BowserOn February 16, 2009In:

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Employment law lessons can be found everywhere.  As winter slogs on, I have been spending more time indoors.  For me, more time indoors means more time watching TV.  One show that I have discovered is Kitchen Nightmares, in which chef Gordon Ramsay helps failing restaurants. 

The shows follow a predictable pattern.  As the show opens, Ramsay meets a proud, yet clueless owner and places an order. The food is always horrible.  Gordon then tours a filthy kitchen and meets the a hapless kitchen staff led by a despondent chef.

Chef Ramsay's recipe for turning around a restaurant can be used by virtually any employer.

First, he carefully reviews the strengths and weaknesses of the restaurant.  He then delivers his findings to the owners in a direct, expletive strewn, way.  Interestingly, they usually know about most of the weaknesses, but have failed to address them. They are paralyzed with fear that making changes will make a bad situation worse.  Of course, their failure to act simply accelerates the restaurant's decline.  Ramsay convinces them that their approach is a fool's game, since without change the restaurant will ultimately disappear.

Second, he demands that the owner be an effective leader.  In each of episodes, the owner is new to the restaurant business. This lack of experience leads to either indecisiveness or arrogance.  Both approaches fail.  The indecisive owner is ignored.  While the arrogant leader is sabotaged.  Ramsay counsels a middle ground where the owner listens to the staff while imposing consequences for failure to follow directives. image

Third, he orders a complete cleaning of the kitchen.  To Gordon, the filth is a symptom of a staff without pride.  Where necessary, he orders new equipment to ensure that the staff can actually produce food in a safe manner. 

Fourth, Ramsay simplifies the menu.  In virtually every restaurant, the menu is bloated with dozens of appetizers, entries, and desserts-- all done poorly.  Ramsay's approach is develop a single theme for the restaurant which customers can understand.  All other items, are eliminated.  The restaurant can then focus on a "core competency."

Fifth, the smaller menu also allows Ramsay to train the kitchen staff on the proper preparation of each item.  To often, the kitchen staff is a "jack of all trades, master of none."  The trained staff leads to better prepared dishes which lead to praise from customers which lead to a more motivated staff.

And, sixth, he demands communication in the kitchen. To often, the chef mumbles the orders as they come in.  The staff fails to acknowledge the orders and they go their separate ways.  As a result, the orders become hopelessly backed up due to preparation errors and poor timing.

In these tough economic times, employers should take stock of Ramsey's ideas.  Access strengths and weaknesses. Deal with problems now.  Listen to employees. Discipline when necessary. Invest in new equipment. Clean up the workplace. Focus on your core business.  Train. Communicate.

Bon Appétit.

The Office Chair Lament

Posted by Molly DiBiancaOn February 15, 2009In: Just for Fun

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I need a new office chair. Actually, what I need is a real office chair.  One that does not increase my desire to run to the door and flee the building at 5 p.m. anymore than the normal office-bound employee.  I discussed this crisis (a/k/a "the office-chair lament"), shortly after the start of 2009 in, Wellness Resolution: The Quest for the Perfect Ergonomic Office Chair.  

Leadership blog, What Would Dad Say, adds to the topic with a positively hilarious post called, Is a Nice Chair Too Much to Ask For?.  In the post the author laments the fact that he never invested in an upgraded office chair.  The funny part, at least to me, are the 5 suggestions offered for the inventive types out there.  Here are the 5 ways in which modern office chairs can be improved, according to WWDS:image


1. Heat. Some offices are cold so why not a heated chair, like my car? If they can make it even a bit hotter where my lower back hits the chair, score!

2. IPod connections. Let’s get hooked up properly, without the cords running across the desk. Are hidden speakers too much to ask for?

3. The Wii Fit idea. When you step on the Wii Fit board, the little lady says “Ohhh.” This really means “Lard-Ass” but it is a cute reminder just the same, chairs should do that.

4. Make them recline. I mean I-want-to-take-a-15-minute-nap flat.

5. Mood chairs. Ever walk into someone’s cube, with some simple, easy question and the person turns on you like one of Michael Vick’s pitbulls? A chair that turned colors depending on the mood of the sittee would save a lot of hurt feelings. Tell me I’m wrong.


I agree with each and every one.  Somebody, please, take these suggestions to the assembly line and whip up a real office chair for the office workers of the world!!  (In case the pictured chair is your idea of the ideal office chair, you can get more information about the WorkBay chair at Vitra.com, which makes this jewel and many other pieces for work and home, not all of which are this "unusual.")

Two New Employment-Outreach Programs from the ODEP

Posted by Molly DiBiancaOn February 15, 2009In: Leaves of Absence, National Defense Authorization Act (NDAA), Resources

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Military caregiver leave, which was amended to the FMLA in January 2008 as part of the National Defense Authorization Act, provides unpaid leave to employees who need to take time away from work to help care for a covered family member who became ill or was injured in the line of duty. This leave can be critical to these employees.  But what about when the employee is the service member?  There are ways that employers can offer assistance to employee service member, as well. 

Employment can play a major role in the recovery of wounded and injured service members. To support these brave men and women in their return to civilian life, the U.S. Department of Labor (DOL), has launched two employment-related outreach programs for returning service members and their employers—REALifelines and America’s Heroes at Work.soldier march

Recovery & Employment Assistance Lifelines (REALifelines)

The DOL's Veterans' Employment and Training Service (VETS), developed the REALifelines program, which is managed by the DOL's Office of Disability Employment Policy (ODEP).  The program creates a personalized network to ensure that wounded and injured service members are trained for rewarding careers in the public and private sectors. REALifelines provides wounded and injured service members—and their primary caregivers—the opportunity to meet face-to-face with a Disabled Veterans’ Outreach Program specialist who provides guidance on how to secure employment and achieve economic self-sufficiency.

America’s Heroes at Work

The DOL’s second initiative, America’s Heroes at Work, focuses on the employment challenges of returning service members living with Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD), which are two of the most common injuries among today's service members.  America’s Heroes at Work offers a variety of educational resources devoted to workplace best practices for returning service members with TBI and PTSD. Materials include fact sheets, Web-based training tools, educational presentations and more—all designed for employers, workforce development professionals, service branches, key military support systems, veterans’ service organizations and One-Stop Career Centers.

These two programs are representative of the ODEP's ongoing efforts to give the men and women of the U.S. Armed Forces practical assistance in their transition back to civilian life.  Employers who employ service members or the family of service members should not hesitate to take advantage of the many initiatives made available by the DOL and ODEP.  

Polygraphs and Lie-Detector Tests for Delaware Employers

Posted by Molly DiBiancaOn February 14, 2009In: Delaware Specific, Policies

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Employee theft is on the rise.  This is not terribly hard to believe in light of the current economic forecast.  When the economy heads south, crime generally and theft in particular, escalate, so it's no surprise that theft in the workplace follows that trend. 

Jon Hyman, of the Ohio Employer's Law Blog, discusses the increased rate of employee theft in the context of employer's use of lie-detector tests.  (Jeez, can this guy make a connection or what??)   For an outstanding overview on the issue, see Jon's post, A Primer on Employee Polygraph Testing, in which he discusses the ins and outs of the Employee Polygraph Protection Act of 1988

Delaware employers should be aware, though, of the state-specific requirements and prohibitions in this area.  The state statute (19 Del. C. Sec. 704), provides that an employer may not, "require, request or suggest. . . or shall cause, directly or indirectly, any employee or prospective employee to take a polygraph, lie detector or similar test or examination as a condition of employment or continuation of employment."  Unlike its federal counterpart, the Delaware Polygraph statute provides no exceptions to the general prohibition against the use of lie-detector tests by employers. 

And, in case you were wondering, yes, there is a state-court decision interpreting the statute.  In Heller v. Dover Warehouse Market, Inc., the Superior Court denied an employer's motion for summary judgment, finding that, whether an employee's consent to take a polygraph could be a valid waiver was an issue of first impression.  Referencing case law from Maryland, Pennsylvania, and the Third Circuit Court of Appeals, the court found that the test to determine the validity of the employee's consent:

depends upon a jury determination of whether the waiver was compelled as a condition of continued employment. Under this test, if the jury finds the plaintiff was required to sign the waiver as a condition of employment, then the waiver is invalid.

This law has been around long enough that most employers operating in the State are cognizant of its prohibitions.  But, in light of the increasing incidences of workplace theft, this is as good a time as any to review it.  The key for Delaware employers is this:  polygraphs and lie-detectors cannot be used for employees--even in the course of a theft investigation.

Proper Citation Format for . . . Restroom-Wall Graffiti?

Posted by Molly DiBiancaOn February 13, 2009In: Just for Fun, Resources

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Good writing and, in particular, good legal writing is not an easy endeavor.  To most legal writers, proper citation format is Public Enemy #1.  I started out my career with absolutely no idea of how to create a proper legal citation.  In fact, in my first year of law school, every writing assignment that I submitted was returned with a note, "Please see the TA."  Ouch!Legal_Citation

With the help of legal-writing guru, John Paschetto, I did manage to conquer the citation monster.  Today, I even teach a class on Bluebooking skills at our firm.  Go figure!  But there will always be occasions when I just don't know how a specific source should be cited. 

For example, how do you properly cite rest-stop restroom graffiti?  Or what about the future as predicted by a magic 8-ball?  I can't say I've ever actually had the need to cite to any of these "alternative sources" but, just in case someday I do, I'll have the proper resource at hand.   And so can you, just visit the website of the PostModern Language Association to learn about its latest rulings on alternative source citations

[Hat tip to The (New) Legal Writer, who tips to Southern Appeal.]

Preparing to Make the Switch to "Almost Paperless"

Posted by Molly DiBiancaOn February 13, 2009In: PDFs

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There is an apparent misconception about the costs associated with converting to a digital office. Depending on the firm’s current operating system, the switch may cost nothing. That was the case for my transition--our firm had the resources already in place so the only change that was required was in the way I managed my documents.  The most common costs, when they do exist, are the costs associated with a purchase of additional or better quality scanners and the cost of additional software licenses. 

Of course, if the firm is starting from the very beginning, having made little or no previous investment in its technology infrastructure, substantially higher costs can be expected. Even then, the maximum investment involves expenditures in the form of an upgrade to the firm’s DMS, purchase of increased bandwith, or the acquisition of additional memory and electronic storage. Major investments, though, are the exception, not the rule. Blank Clipboard and pen

Does converting to digital require the conversion of archived files?

The expected cost and required processes involved in converting to a digital office will depend on whether the conversion is prospective only or whether there will be an effort to convert the firm’s archived files, as well. Obviously, the latter requires a great deal more organization, planning, and significantly more money.  Firms that are considering a total conversion should be aware of the expansive nature of this endeavor before making the commitment.  Realize, though, that there is no requirement to make the switch for all files all at once.  

It may be more realistic to consider a prospective-only conversion.  Not only will it be far easier to execute but also significantly easier to secure support for a more limited project. Wait until the firm has enjoyed the benefits of its new digital practice. After everyone has become comfortable with the process and has had the opportunity to develop trust in the system, then consider moving to the larger project of converting archived files.

Continue reading "Preparing to Make the Switch to "Almost Paperless"" »

The Link Between the Digital Office and Improved Intangibles

Posted by Molly DiBiancaOn February 12, 2009In: Generations: Boomers, Xers, and Millennials, PDFs, Resources

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I've posted about how Adobe Acrobat 9 can revolutionize your law practice by lowering operational costs and increased earnings.  And there's plenty more to be said on both fronts. But, in this post, I'll switch my focus from hard to soft costs; i.e., "intangibles."  There continues to be an increased focus on “intangibles” in the workplace—the costs that, although difficult to quantify, have a direct impact on profitability.  Employee engagement and satisfaction are intangibles that are linked directly to client satisfaction and retention, firm revenue, and firm profitability. 

Similarly, employee turn-over can have disastrous consequences for firms that ignore the value of employee morale. The cost of repltaking notesacing an employee is estimated to be 100% of the individual’s yearly salary for staff members, 150% for long-term employees and management, and as much 300% for junior associates when partner mentoring time is factored into the equation. Based on these numbers, a firm’s intangibles can have an enormous impact—positive or negative—on the bottom line. 

And how can the digital office contribute to firm intangibles? The digital office enables firm staff to become more efficient in day-to-day tasks. Increased efficiency means more time for other tasks and different types of work. When freed from menial duties, such as repetitive copying and filing, staff can be given more challenging and substantive assignments.

The benefits of this should be obvious—a challenged and stimulated workforce is a more engaged workforce. Engaged employees are more motivated and that motivation leads to increased productivity. The more successes an employee experiences, the more engaged he or she becomes, thereby further continuing the cycle of positive results.

Additionally, the digital office enables attorneys to take their practice with them anywhere, provided they have access to an available internet connection.  Eliminating the need for attorneys to be in the office just for the sake of being there, workers in the digital office find that "work-life balance" may not be as elusive as once thought.  The modern workforce has made it increasingly clear that flexible work schedules are at the top of the priority list.  And Gen Y workers, the most recent generation to flood the recruiting office, have their own set of demands; and flexibility is high on that list.

Are you convinced yet?  It's true.  Go ahead, start a digital revolution!

When Switching to a PTO System, What to Do With Accrued Leave Time?

Posted by Molly DiBiancaOn February 11, 2009In: Absenteeism, Leaves of Absence, Policies

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I spoke about Paid Time Off (PTO), Systems during a recent audioconference.  Following the seminar, I received the following question from a participant. I imagine many others have had similar concerns about making the switch from a traditional time-off system, where vacation, sick, and personal time are all separate and treated differently, to a PTO system, where all time off is lumped together in a "bank" from which the employee can withdraw, regardless of the reason.shutterstock_24208687 

Q:  We are considering switching to a PTO bank for paid time off.  We discovered that we have some employees who have built up huge banks of personal and sick time that we have traditionally allowed to be carried over from year to year.  Until recently, we "bought back" sick time at the end of the year, so long as the employee had at least five years of service and had accrued a minimum amount of sick time.  Now, we pay out unused vacation and personal time but sick time is forfeited.  As we plan our PTO policy we wanted to limit the carryover of PTO to 10 days (80 hours) at the end of our fiscal year.

Can you provide me with examples of what other companies have done when implementing a PTO system to handle situations where people have extremely large banks of time to be converted to PTO?


Many employers decide to reduce the amount of hours that may be paid out when they switch to a PTO system because the understanding is that PTO is a richer benefit.  So the first thing to do is to determine whether you will permit payout or rollover at all.  (Note that the laws vary on the permissibility of "use it or lose it" policies from state to state.)  Once you establish a maximum number of hours that can be carried over into the next fiscal year, you'll have to decide what to do with any time in excess of the minimum.  There are a number of viable ways to handle these excess hours.  If possible, try to consider allowing employees to choose from several options.  Here are just a few:

1.  Pay out cash for the PTO hours over the maximum number at a discounted rate, similar to your buy-back plan. 

2.  Designate the excess hours as sick-leave-only time.  This would never be paid out or rolled over from year to year.  But if an employee has reason to think he or she may need the sick time (for example, for maternity leave), this would be a very desirable alternative.

3.  Forfeit any time above the minimum.

4.  Permit a certain amount of hours to be carried over based on the length of service; i.e., the longer the individual has been employed, the more time he or she may carry over.

Top 20 Employee Benefits Blogs

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

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Employee-benefits attorneys and non-attorney benefits professionals must be masters of ERISA and the income tax code--two areas of the law that I  know enough to know that I do not know enough.  When I get a question about 401(k) administration or group health-insurance plans, I promptly turn them over to one of the attorneys in our Tax and Benefits Group.  rss feed icon and computer mouse

At the same time, I still have to be able to field some of the basic questions and, at the very least, spot a benefits issue when there is one.  To keep up to speed in the area of Employee Benefits, I turn to these 20 blogs.  If you know of others, please feel free to leave a comment with the blog name and address.  But, for my purposes, these are the Top 20 Benefits Blogs around:

  1. Benefits Biz Blog
  2. Benefits Blog
  3. Benefits Link Buzz
  4. Boston ERISA & Insurance Litigation Blog
  5. Employee Benefits Blog
  6. Employee Benefits Legal Blog
  7. ERISA Blog
  8. ERISA On the Web
  9. ESOP Law Blog
  10. Florida ERISA Blog
  11. Health Plan Law
  12. Managed Care Matters
  13. Northeast Employee Benefits
  14. Pension Protection Act Blog
  15. Pensions & Benefits Weblog
  16. Piper Report
  17. PLANSPONSOR Perspectives
  18. The Retirement Plan Blog
  19. Weiss Berzowski Brady LLP
  20. Workplace Prof Blog

March 11: 2009 Recruiting: Feed Your Talent Pipeline Using Online Resources

Posted by Molly DiBiancaOn February 11, 2009In: Seminars, Past

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Recruiting with Google, Facebook, and other social media is the topic of an audioconference I'll be presenting next month.  As readers know, I'm a realist who believes in risk management.  Ideally, would employers need to look for candidates' information online?  No.  In an ideal world, candidates would be forthcoming and honest and would truthfully disclose the information employers need to know.  But we're not living in a box of Cracker Jack.  The world is not that sweet.  3d image of computer mouse and globe with job search online

The reality is that savvy employers will make use of the internet recruiting and other HR functions.  But, as a risk-conscious advisor, I know that there is a right way and a wrong way to use the web in the hiring process.  Employers should proceed with caution when surfing the web for potential job applicants.

Anyone can create content and post it online, which means you could hire someone based on false information. And if you decide not to hire the applicant, the information you found on the Internet could be used against your organization to support a discrimination claim.

In the upcoming audioconference, I'll discuss how to use social networking sites to find top talent while avoiding legal entanglements.  Specifically, I'll address questions I'm asked by clients, including:

  • How can I find job applicants who "live" online? What's the best way to use microblogs like Twitter?
  • How do I handle information found online that I would NEVER ask about in an interview?
  • How can I avoid inadvertently violating the Federal Credit Reporting Act (FCRA) and other consumer privacy statutes?
  • How can I use wikis -- a virtual workplace housed on a company’s intranet -- to energize project collaboration and implement an effective work-life balance program?
  • How can company-wide social networking sites and online videos engage employees and help them work smarter?
  • How far can I go when keeping tabs on an employee’s blogs, instant messages, and social networking sites?

The audioconference is sponsored by M. Lee Smith Publishers and registration is available through their website or via telephone, details below.  The date and time is Wednesday, March 11, 2009, from 11 am to 12:30 pm, Eastern, and 1.5 HRCI recertification credit hours have been approved.  


  • REGISTER NOW online
  • CALL toll-free (800) 274-6774 (Please mention Conference Code N640B when calling)
  • LEARN MORE at www.hrhero.com
  • Not able to attend this live event?
    Order the CD recording and we'll provide audio streaming at no extra cost!
    Streaming audio is available 3 days after the audio conference.
  • This powerful program is available for on-site presentation at your organization, customized both in length and content to meet your specific training needs. It's the cost-effective way to engage your most productive employees in achieving valuable professional growth objectives -- all while helping to protect your organization from expensive legal missteps. For more information, please call (800) 274-6774.

Work-Life Balance Issues At Risk in the New Economy?

Posted by Adria B. MartinelliOn February 10, 2009In: Pregnancy (Title VII), Women In (and Out of) the Workplace, Women, Wellness, & Work-Life Balance

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Work-life issues have taken center stage in the first month of the country’s new administration. President Obama’s campaign platform included a specific “Plan to Support Working Families and Women,” and just a few weeks ago Michelle Obama appointed Jocelyn Frye, general counsel of the National Partnership for Woman and Families, as her Policy Director. clip_image002

Many advocacy groups have high hopes that the protections of FMLA and/or Pregnancy Discrimination Act are eventually broadened. In the meantime, however, legal protection in the work-life balance area is limited. Unlike most other industrialized nations, pregnant workers in the United States are afforded no special protections, employers are required only to treat pregnant workers no worse than other temporarily disabled employees.

Pregnancy is not (absent unusual complicating conditions) a disability that must be “accommodated.” Federal law provides little in the way of benefits to pregnant employees to make it easier for them to have a baby and then go through a bonding period.

Continue reading "Work-Life Balance Issues At Risk in the New Economy?" »

March 26: FMLA Regs: What Employers Need to Know

Posted by Molly DiBiancaOn February 10, 2009In: Seminars, Past

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In January, employers were hit with brand-new updates to the Family and Medical Leave Act.  If you're worried that you may not be in compliance, this audioconference is for you.

These new leave rules – which ran a mind-numbing 762 pages in the Federal Register – make sweeping changes to the way you handle many common FMLA situations:

  • Deciding what constitutes a “serious health condition”
  • Scheduling (and accounting for) intermittent leave
  • Requesting and confirming medical certifications and fitness-for-duty certifications
  • Allowing employees to substitute sick leave, vacation days, and other paid time off for FMLA leave
  • Handling questions about gaps in service
  • Providing sufficient FMLA notice to your employees – and enforcing your policies that require workers to give you notice when they’re taking time off for FMLA reasons
  • Dealing with absences related to the brand-new FMLA military caregiver rules

Join us for an in-depth audio conference on what you need to know now.

Learning Objectives:

  • What’s changed with FMLA rules, and what you need to do in response
  • The new rules on medical certifications and doctor visits for employees with chronic medical conditions
  • How to interpret and apply both the new and previously released changes that apply to military families
  • When, under the new rules, you’re allowed to ask for a fitness-for-duty evaluation
  • The new restrictions on your supervisors, which were designed to enhance employee privacy
  • What the new changes mean for your perfect attendance programs
  • What you can do – and what you should never do – when reviewing and investigating potential FMLA abuses by your workers
  • The changes to the notice requirements – and why they’re considered good news for employers
  • The most common mistakes many employers have already made with these brand-new FMLA regs (and how you can avoid repeating them!)

The audio conference is scheduled for March 26, 2009, from 1 p.m. to 3:30 p.m. Eastern.   Registration, which you can do here, is $216 for unlimited attendees on a single phone line. 

The Digital [Office] Revolution: Go Ahead, Make the Switch.

Posted by Molly DiBiancaOn February 10, 2009In: PDFs

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The paperless office may be a myth, at least according to authors Abigail J. Sellen and Richard H. R. Harper, who've earned Malcolm Gladwell's stamp of approval.  But an office with less paper is very much a reality.  So let's put our biases aside--from here out we'll refer not to a "paperless office" but, instead, to a "digital office."  For some background to this series, see yesterday's post, A Plea for PDF: How Adobe Acrobat Can Revolutionize Your Practice.  In this post, we'll talk about the potential cost savings that can result from switching to a digital office.  Tomorrow we'll touch on the other, less tangible benefits.  Later in the week, we'll get to the specifics about how you can go about implementing a revolution in your workplace.

What is involved with a digital office?

In the broadest sense, the phrase “digital office” means a business that operates with electronic, as opposed to paper, files. The “paperless office” was used initially but became less popular as it became less probable to actually occur. “Less paper” is more realistic and the goal of the digital office is not to never use paper. The goal of the digital office is to increase effectiveness while decreasing reliance on paper files.

In a more specific sense, a digital office is one in which all documents, records, and files are managed on the computer in electronic form instead of in filing cabinets in paper form. All documents, whether created internally or externally, are converted to an electronic file and kept in a document management system (DMS).paperless office empty records storage

How can a digital office lead to higher earnings?

Lawyers who have made the switch to digital experience any number of positive benefits. Perhaps the easiest of which to observe is the increased efficiency and time savings that result almost immediately. Time savings is a benefit enjoyed by staff, paraprofessionals, and attorneys alike.

By freeing staff and paraprofessionals from repetitive clerical work, they are able to turn their attentions to more advanced tasks. This enables attorneys to spend more time on client-specific work. In turn, the firm generates more revenue.

How can a digital office lead to lower operational costs?

In the long term, operational costs can be reduced significantly by converting to a digital office. Reduced paper consumption is, perhaps, a more obvious savings opportunity. But using less paper is just the start—think of all of the overhead costs required to organize, store, and dispose of that paper. From banker’s boxes to redwelds to file folders, the purchase of office supplies for storing and organizing paper files becomes unnecessary.

Photocopying costs are reduced dramatically. Documents can be accessed by any attorney in the firm, so the need to send a paper copy via interoffice mail is eliminated. When pleadings are received, the client can be sent a copy via e-mail instead of in paper format, in which case the savings extends beyond the copy cost to include the cost of an envelope and postage.

Another, more long-term, benefit of the digital office is reduced storage costs. In the digital office, closed files are not boxed up and shipped off-site for long-term storage. Instead, they are burned onto a CD or saved in another electronic format, which can then be tucked away in a binder in a filing cabinet and backed up on the firm’s server. If needed later, there is no need to call the Records Department and request the file be hauled back. Simply pull the needed documents from your desktop.

Best Practices When Considering a Severance Agreement

Posted by Molly DiBiancaOn February 9, 2009In: Severance Agreements, Terminations & Layoffs

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Many employers use severance agreements as a way to protect their business from legal liability arising from terminating employees.  Larger companies sometimes use them in just about every termination, while most smaller companies are more selective--offering severance packages only when there is a particularly volatile situation or where there is already a suspicion that the employee will try to sue.  Here are the Top 5 tips that every employer should know about severance agreements before offering one to a soon-to-be former employee.

Who Should Be Offered a Severance Agreement?

The modern school of thought says that employers should consider offering a severance package to all persons who are laid off during a reduction in force (RIF) contract or agreementand to any employee who, for whatever reason, may be particularly inclined to sue. 

Some employers offer severance agreements to every person they terminate.  This becomes problematic, though, when they find themselves having to offer to pay money to an employee with serious policy infractions.  For example, do you really want to offer severance to an employee who is being terminated because he was found to have harassed several female employees?  Probably not.  And he's probably not likely to sue the company.  But, because they've always given severance, the employer is hesitant not to do the same for this employee. 

Specific Requirements for Employees Over 40 Who Are Offered a Severance Package

For severance agreements offered to employees aged 40 and over, the Older Workers Benefit Protection Act (OWBPA), imposes certain requirements that require strict compliance.  Specifically, the agreement must provide that the employee has 21 (or 45, in the case of layoffs) days to consider the offer.  Then, even after acceptance, the employee has seven days to revoke their decision. 

Failure to include this very specific language can result not only in the agreement being unenforceable, but also in liability against the employer if the employee files suit on the ground that the agreement is not in compliance with the law.  It can also invoke a visit from the Department of Labor.

What the Severance Agreement Can and Should Prohibit

A severance agreement should prohibit the employee from filing suit on his or her own behalf against the employer from any and all claims arising from the employment relationship.  It should also prohibit the employee from encouraging or assisting others in filing suit against the company. 

The agreement may not prohibit the employee from filing a Charge of Discrimination with the EEOC or local state agency.  But it can prohibit the employee from collecting any damages if the EEOC pursues a suit on the employee's behalf against the employer. 

There has recently been discussion on whether an employee can waive his or her rights under the FMLA. For a while, there was some indication by the courts that such a waiver would not be enforceable.  Recent guidance indicates the opposite--that FMLA claims indeed can be waived in a severance agreement.

Another area subject to debate is the inclusion of a "no-hire" provision.  Some courts have held that an employer who requires its employee to agree not to reapply for future work with the company is actually engaging in unlawful retaliation.  But, again, some recent court decisions have found that an employer who refuses to rehire a former employee who had been fired previously where the refusal is based on a "no-hire" provision, is not engaging in retaliation. 

What to Do When an Employee Wants to Negotiate a Severance Agreement Offer

The answer to this question is more about instinct than anything else.  Especially where the employer does not offer every terminated employee a severance agreement, it is easier to refuse to negotiate it and extend a "take-it-or-leave-it" type offer.

This is especially true if the employee is going to run up the clock with your lawyer.  Remember to include the costs of negotiation in your settlement offer.  If you are wiling to negotiate for an additional amount, try to quantify that amount in advance and realize that, once your expenses have reached that pre-defined maximum, then you either have to cease negotiations with the former employee or reduce the offer so you break even at the end. 

It is not uncommon for employees to attempt to negotiate.  Often, this is more of a pride issue than anything else.  If you're able to be flexible with any point, it may be enough to satisfy the employee that she walked away with her pride still intact.

Other than more money, consider whether a positive or neutral letter of reference may satisfy the negotiating employee.  Or maybe offer to pay his first 2 months of COBRA payments, especially if this may be an area of concern for the employee because of a special health-care need in his family.

Use a Lawyer

This point cannot be stressed enough.  I have lots of clients who want to reuse old severance agreements as boilerplate agreements instead of calling me for a new one each time.  Really, this is not a good idea.  I can put together a custom severance agreement that is appropriate for the circumstances specific to the employee in less than a half-hour for regular clients and for businesses I know something about or with which I have worked before. 

This is a small price to pay when compared to the expense of a lawsuit brought by an employee who already received severance payments but who was given a defective severance agreement based on a standard, one-size-fits-all template or form.

And the same goes for the employee. Don't just "let" them use a lawyer.  Encourage it.  And, to be legally compliant, state as much in big, bold, letters on the agreement itself.  It is in your best interest the employee fully understand what rights they are releasing to prevent buyer's remorse.

A Plea for PDF: How Adobe Acrobat Can Revolutionize Your Practice

Posted by Molly DiBiancaOn February 9, 2009In: PDFs

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It's true. Adobe Acrobat 9 is the best legal-technology product there is.  Law Technology News confirmed this conclusion at its annual awards last week at LegalTech when it selected Acrobat as the winner for "New Product of the Year."  (Second year in a row, by the way.) 

I am passionate about Acrobat.  No, really.  It has revolutionized the way I practice law and I am committed to communicating its benefits with others.  Just ask anyone in my department--they'll attest to my near-zealous devotion.  I've been totally digital since 2005.  (I prefer the term, "digital."  "Paperless" is a bit exaggerated.)  So I'm always surprised to hear others say that the conversion to digital is a pipe dream.  It's not hard, I promise. 

There are so many benefits and features of integrating PDF into your legal practice that I can't begin to address them all here.  Instead, I'm going to cover some of my favorites in a series of posts over the next several weeks.  To get you started, I'll leave you with this video, called Stop Stupid PDF Syndrome Now.  If you don't "get it" entirely, then you definitely should stay tuned for the upcoming posts in this series. 

From the video's creators:

Stop creating stupid PDF files for your printer. Preserve all the power of PDF by asking for Adobe's PDF Print Engine technology.

This is a great introduction to the value of using the "print to Adobe PDF" feature instead of scanning hard copies of your documents. 

Can Employers Expect to See More of the Rat?

Posted by Sheldon N. SandlerOn February 6, 2009In: Union and Labor Issues

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Recently, the New Jersey Supreme Court struck down a Lawrence Township ordinance that purported to ban the use of inflatable balloons, as well as banners and streamers, except in connection with grand openings. The court said the ban was not “content-neutral” since it allowed balloons to be used in one circumstance, grand openings, while prohibiting them in others, including union-related disputes. Union Rat 2

Large inflatable rats have been used by unions as a signal that a labor dispute was taking place at the site of the rat balloon, usually involving a nonunion employer. The ruling seems a bit of a stretch. The court said it was a violation of free speech to prohibit one kind of expression while allowing another, but the ordinance did not single out union activity, it banned any kind of inflatable balloons except for one narrow circumstance. Union protests and the Thanksgiving Day parade are among the many activities covered by the ban.

With the publicity garnered by the ruling and the support of the Obama administration for union positions, we can expect to see the hoisting of more rat balloons. However, the NLRB has not hesitated to restrict the use of the rat in situations where the union claims it is doing area standards picketing rather than organizing. The NLRB sees the rat as a form of signal picketing that constitutes illegal secondary activity. Of course with the new Liebman Board, that view is probably going to be short-lived.

Religious Discrimination Claim Succeeds for Failure to Accommodate Facial Hair

Posted by Molly DiBiancaOn February 5, 2009In: EEOC Suits & Settlements, Religious (Title VII)

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Title VII prohibits employers from discrimination based on religion, among other things.  The anti-religious-discrimination requirements actually require employers to go a step further.  Not only must employers refrain from acting (i.e., from discriminating), but they must also take action in the form of providing an accommodation for sincerely held religious beliefs of an employee.  Of course, there are limits on how far an employer must go to make such accommodations. And, like all of Title VII, the law applies not only to employees but to applicants, as well.  religion rastafarian_lion

United Parcel Service (UPS), learned this lesson in a very undesirable way.  Last week, a federal jury in New Jersey found against UPS and ordered it to pay $10,000 in damages in a religious-accommodation claim brought by the EEOC.  The EEOC asserted, and the jury so found, that the plaintiff was wrongfully denied a job based on his religious beliefs.  The plaintiff, Ronnis Mason, a Rastafarian, applied for a job in 2004 as a driver's assistant but was denied the job because of his beard. 

The company had a policy that prevented employees with beards from delivering packages to customers.  He was, instead, offered a job as a package handler.  In this position, Mason would have worked in a warehouse for a lower salary.  Mason never completed the application process.

This is the second successful case of religious discrimination brought by the EEOC on behalf of a Rastafarian in recent memory.  We posted last year about a quickly-settled claim involving four security guards at NYC's Grand Central Station were disciplined when their "sloppy-looking" dreadlocks did not fit under the uniform-standard caps.

Confirmation of DOL Secretary Nominee Solis Is Delayed Because of EFCA Support

Posted by Molly DiBiancaOn February 5, 2009In: Legislative Update, Union and Labor Issues

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Hilda Solis, President Obama's choice for Secretary of Labor, will not be taking the office any time soon.  Republicans have professed concern about Solis' role as Treasurer for American Rights at Work (ARW), a pro-union advocacy organization.  Opponents of Solis' confirmation have pointed to a potential ethical issue because ARW is a lobbying organization and the Treasurer position requires money handling.image

Likely, the real message being sent is the Republican anti-EFCA message.  The Employee Fair Choice Act (EFCA) is high on Solis' priority list.  Preventing (or at least delaying) the passage of the EFCA has been a top priority of employee-and-business proponents.  The hold on Solis' confirmation for Secretary is proving to be an effective way to stall the bill and there doesn't seem to be any indication when the hold might be lifted.

In the meantime, President Obama has asked Edward Hugler to serve as Acting Secretary of Labor until Solis is confirmed.  Hugler, a 30-year veteran at the Department of Labor, is currently the deputy assistant secretary for administration.

The news of Hugler's temporary appointment yesterday came on the same day that Labor turns up its campaign to pressure Congress to speed up its consideration of the EFCA. 

FMLA Seminar Materials: PowerPoint Slides, Handout, and DDOL Forms

Posted by Molly DiBiancaOn February 4, 2009In: Family Medical Leave, Seminars, Past

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[Update to  January 30: FMLA Briefings

As promised, we've uploaded our slides from the presentation.  And, while we were at it, we also downloaded the DDOL's regulations and added them to the PDF so you have all of the FMLA resources in one place.  ycst square.tiff

The better-looking version requires Adobe Reader 9, which is a free download that doesn't require administrative rights.  If you're using an older version, switch now, you'll love it. 

If you can't, though,  use Adobe Reader 9, download this copy of the materials, which will display fine in any Reader version. 

Thank you again for attending and we'll look forward to seeing you in April at our annual employment law seminar.

April 22: FMLA Master Class

Posted by Molly DiBiancaOn February 4, 2009In: Seminars, Past

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William W. Bowser and Scott A. Holt, partners in the Employment Law Department at Young Conaway, in conjunction with the publishers of Delaware Employment Law Letter, M. Lee Smith Publishers LLC, will be holding an advanced interactive workshop for Delaware employers on the Family Medical Leave Act on April 22, 2009.

This all-day FMLA Master Class will take place at the Holiday Inn Select in Wilmington, Delaware.
The standard fee is $347, but Young Conaway clients are eligible for a 20% discount.  Clients should obtain the discount number prior to registering.   Registration

Employer Alert: New I-9 Form Delayed

Posted by Teresa A. CheekOn February 3, 2009In: Hiring, Immigration

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Employers were mandated to use a revised I-9 form, beginning on February 1, 2009, per the order of the the United States Citizenship and Immigration Service (USCIS).  The I-9 form is the form used to verify an employee’s eligibility to work in the U.S.   USCIS logo

USCIS has changed its mind, and has decided to delay implementation of the new I-9 form to allow time to evaluate whether it is the best approach to take. The new effective date will be April 3, 2009. USCIS has also reopened the public comment period for thirty days, so if you have an opinion about the proposed new form that you’d like USCIS to consider, you have until March 4, 2009 to do so.

Trainees as Trainers: In Support of Involving Employees In Their Own Training

Posted by Molly DiBiancaOn February 2, 2009In: Training & Metrics

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I've posted several times before on the link between employee engagement and workplace training and development.   I believe there is a direct correlation between job satisfaction and the amount of regular, interactive, and applicable training employees are given.  And, the better and more relevant the training, the better and more engaged the employees.  Well-executed training in the right subject matter is key to retaining key employees.  It's also essential to attracting and satisfying Gen Y employeesclassroom

I also believe that one of the best ways to encourage and engage the best of your best employees is to let them train themselves.  Or train each other, really.  By getting employees to participate in the selection of the topic and the presentation of the subject matter to their co-workers, a great deal can be gained.  (See my previous post on this very issue, Training as an Employee Perk? Yes, really).

Training Time pointed me to a post by Jim Giuliano at HR Morning, which reaches the same brilliant conclusion.  Here's the story as summarized by Training Time:

  • During the recruiting process, people are told that the company is dedicated to continual learning and development, using training to reach career goals.
  • Supervisors and HR don’t have enough time to come up with new training ideas relevant to the goals of the employee and company.
  • The company can’t afford to hire a professional training coordinator.

What to do?  HR Training recommends turning employees into their own training coordinators.  I'd add to that: turn employees into trainers, too.  And I'd venture to say that you've got a winning workplace.

Is e-Learning the Next Big Thing? You betcha'

Posted by Molly DiBiancaOn February 2, 2009In: Training & Metrics

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E-Learning has been on the rise for years.  And it's seen a significant push of growth.  The growing trend can be linked to several factors.

For one, technology is getting easier to use.  You don't have to be tech-savvy to use PowerPoint 2007--the software makes many features incredibly easy to use that, in prior versions, you may not have even know existed.  Also, software such as TechSmith's Camtasia and Adobe's Captivate make screencasting (recording the picture on your monitor, which is essential for software demos and a whiz for recording PowerPoint slides), are affordable and accessible--and produce quick results that look great without much of a learning curve at all. keyboard with question mark

Another factor contributing to the rise in the popularity of e-learning is the influx of Generation Y into the workplace.  Gen Y workers demand "real-time" learning.  They want to know just the piece of the puzzle that solves their current riddle--they don't want to read the whole book, just the chapter that pertains to their particular issue at that particular time. Additionally, Gen Y are a very generous generation.  They love to share.  On Facebook, they share their friends.  On Twitter, they share their play-by-play daily adventures.  On wikis and blogs, they share information, samples, and examples.

Put together these two factors--easier-to-use technology and a generation of learners who love to share and what do you get?  Quickly created, easily accessed technology that is built from learners to be shared with other learners.  E-learning. 

For those interested in learning more about e-learning, you can thank the very generous e-Learning Guild.  You can download for free any of the ten fantastic e-books that are available at the e-Learning Guild's website.  Start your learning about e-learning now, the digital way!

The Truth About Workplace Revenge

Posted by Molly DiBiancaOn February 2, 2009In: Jerks at Work

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Gossip in the workplace can be a powerfully destructive force.  Gossip spread by employees about their coworkers can be the result of passive participation or it can be triggered by a more affirmative attempt to cause harm to another.  Office gossip is an effective method to exact workplace revenge. 

What fuels efforts to engage in workplace revenge has a story all its own.  A new book, due out next month, takes a close look at imagewhat it is that workplace revenge entails and why employees engage in such conduct. In Getting Even: The Truth About Workplace Revenge - and How to Stop It, by Thomas M. Tripp and Robert J. Bies  conclude that workplace revenge is the product of individuals who feel that they have been victimized and seek to avenge justice on their own behalf.  The book is the result of years of research and the various lessons learned from the nearly 500 managers and workers interviewed for the project.  Pieces of the interviews are peppered throughout the book in the form of lively anecdotes.  

To read more about the problems of bullies and jerks at work, see these posts:

New Conclusions on the Potential Costs of Workplace Bullying

Women Who Bully Women at Work

"My Boss Is Killing Me": Why this just may be true

Top 5 Lessons to Be Learned from the Jerk at Work

Workplace bullying