March 2009 Archives

Unemployment Olympics

Posted by Adria B. MartinelliOn March 30, 2009In: Just for Fun

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Employers who've laid off workers are looking for a (sort-of) constructive activity to keep your  former employees out of trouble. Tompkins Square Park in New York City will host the officespacefaxsceen Unemployment Olympics tomorrow, Tuesday March 30.

The Olympiad of the down-and-out at Tompkins Square Park will feature events including the Fax Machine Toss, Pin the Blame on the Bosses and a Pinata bashing. Nick Goddard, 26, came up with the idea when he lost his position last month, and he got a permit to stage the Olympiad at the ballfields at 1:30 p.m. Tuesday. "Maybe it will lift everyone's spirits a little," Goddard said about his positive spin on unemployment. "Originally, my thought was just to make people laugh."

Participants must prove they lost a job to compete. Bars and restaurants have donated prizes.
Not sure bars and unemployment are necessarily a positive combination, but kudos to Mr. Goddard for his creativity.

Twitter Saves Cisco a Bundle of Money

Posted by Molly DiBiancaOn March 30, 2009In: Social Media in the Workplace

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Employers saving money because of Twitter?  It's not actually Twitter that saves employers money, it's the person doing the Tweeting, really. The Tweeter (?) in question is an almost-Cisco employee.  The individual was given a job offer following an interview at Cisco.  He proceeded to Tweet the following:

Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.

A current Cisco employee, after reading this, Tweeted back:

Who is the hiring manager. I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the web.

[Insert chuckle from author.]  Oh, that is justice, is it not?  The Cisco employee saved Cisco a bundle of money by preventing this near-miss.  Cisco now won't be burdened with a disengaged employee and the inevitable costs associated with replacing the employee (sooner rather than later). 

I am left with one slightly troubling question, though.  Was the Cisco employee at work when he read the first Tweet? I'm going to think positive and say he was probably off duty, right?  One thing is for certain--this won't be the last story of employees (and potential employees) who Tweet themselves right out of a job!

Thanks to Ross Ipsa Loquitor Blog for pointing out the story, caught first by Sharon Nelson at Ride the Lightning. Twitter_logo.jpeg

For previous posts on Google, Facebook, and Twitter in the Workplace, see:

MySpace Post Results in Termination of Nursing Student

Discoverability of Facebook Profiles

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

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

FMLA Audioconference Materials

Posted by Molly DiBiancaOn March 29, 2009In: Seminars, Past

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FMLA Audioconference, Update

As promised, I've uploaded the materials from the BLR audioconference conducted on Thursday, March 26, 2009, including the slides from the presentation.  I also downloaded the DDOL's notice forms 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.

Delaware Employment Discrimination Law May Get Amended

Posted by Maribeth L. MinellaOn March 27, 2009In: Delaware Specific, Legislative Update

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Delaware’s employment discrimination law is a step closer towards being amended. On March 26, 2009, a bill was introduced to the Delaware House of Representatives that proposes to add the term “sexual orientation” to the already-existing list of prohibited practices of discrimination in Delaware. If enacted, the legislation would forbid discrimination against a person on the basis of sexual orientation in housing, employment, public works contracting, public accommodations, and insurance. In addition, the proposed legislation provides that Delaware’s Superior Court (its trial court) would, in the first instance, hear and adjudicate alleged criminal violations of equal accommodations, fair housing and employment discrimination.

South Park Does Document Review, BigLaw Style

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

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At this very moment, there is a closet-size room filled with paper-stuffed banker's boxes piled to the ceiling.  In the middle of the room, is a junior associate dreaming about somewhere else he'd rather be.  With a heavy sigh, the associate puts another pile of papers into the cardboard file box on his right and takes a new pile from the box on his left.  You know what I'm talking about, so don't bother trying to deny it.  It's document review.  The dreaded and horrid rite of passage that all junior associates must endure--at least in the world of BigLaw.  This video, done "South-Park style" is, well, hilarious to those of us who either have participated in or spent years dodging the infamous exorcism known as document review.  Enjoy!

Oh, Sh*#! The F-Word (and others) at Work

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

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Is there a "no-cussing" policy in your workplace?  How many times a day can you expect to hear the F-bomb?  How about less extreme curse words?  Apparently, the frequency with which we toss around swear words is on the rise.  An article at MSNBC claims that the increase in swearing is tied to a tanking economy.  Please.  I don't buy that for a minute.  expletive

The reality is that the boundaries of socially accepted behavior is changing, has changed, and will continue to change.  Anyone who watched the Bravo show, Mad Men understands this concept.  But why is it that we do steer towards cussing?  Why don't we buck another trend?

Psychologists say that a little swearing can be good for you.  Two-thirds of cursing is tied to anger and frustration, according to Timothy Jay, professor and author of the recently released survey, Utility and Ubiquity of Taboo Words.  During difficult times, that percent can increase, as different people react differently to the stress of everyday life.  According to Jay's paper:

A set of 10 words that has remained stable over the past 20 years accounts for 80% of public swearing. Swearing is positively correlated with extraversion and Type A hostility but negatively correlated with agreeableness, conscientiousness, religiosity, and sexual anxiety.

And you thought your swearing didn't have anything to do with your personality, right?  And employers, now more than ever, may want to give that "no-cussing" policy a second look!

Oh, and if you want some proof of the increasing presence of the F-word at work, see our prior post on the Anchorwoman busted on camera using a whole lot of 'em!

She Shoots, She Scores! An Adobe PDF Tip for March Madness

Posted by Molly DiBiancaOn March 26, 2009In: PDFs

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Adobe Acrobat 9 holds iconic status in my office.  (See A Plea for PDF: How Adobe Acrobat Can Revolutionize Your Practice).   We love it. acrobat iconWe use it for "everything"--or so we think, until someone thinks of another way to put it to use.  There are so many unexpected ways to put the PDF to good use that we've started a list of them that's shared throughout the office.  One of my coworkers, Felicia B., came up with a way to put Acrobat 9 to good use during March Madness.  I thought it was pretty creative so I'm passing the tip along to readers.  

Felicia used the Typewriter tool in Acrobat to make her basketball picks this year.  Unlike the scribbled brackets of her family and friends, Felicia's brackets are neatly typed and ready for emailing--without a trip to the scanner. 

This tip isn't computer wizardry.  It's just a great example of thinking outside the box and putting software to work!  Thanks for the tip, Felicia!!

If you're thinking about taking your office "paperless" (or, as I prefer, "digital"), here are some resources:

The Link Between the Digital Office and Improved Intangibles

Preparing to Make the Switch to "Almost Paperless"

Making the Switch to Digital: Legal Research

The Impact of the 2007 Baby Boom

Posted by Molly DiBiancaOn March 26, 2009In: Generations: Boomers, Xers, and Millennials

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Employers are experiencing the impact of the generational differences between Boomers and Gen Y.  Don't expect that dynamic to change anytime soon.  The New York Times reports that 2007 holds the record for the year with the highest number of births in the U.S.  In 2007, 4,317,000 babies were born in the U.S.--beating out the prior record set in 1957.  Little Girl with Briefcase

Coincidentally, the original Boomers, who were born in 1957, will retire at the age of 65 in 2022.  Three years later, the second wave of Boomers will enter the workforce at the age of 18, in 2025.  This generational conversion will mean a complete transformation of workplace values and expectations, instead of a longer-term integration.  It also means that there will be little opportunity for knowledge transfer between the incoming and outgoing generations.  Succession planning will require conscious awareness of the potential knowledge gap if businesses want to retain their critical knowledge. 

See our prior posts to learn more about the current impact Generation Y is having on employers.

Employers, What's Your Pressing Question? The White House Wants to Know

Posted by Molly DiBiancaOn March 25, 2009In: Employee Engagement

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Employers, employees, and anyone else so inclined may submit a question to the White House.  The Obama Administration just launched a web site called Open For Questions, where visitors (who must first sign-in), may ask any question for which they think the federal government may have an answer.  So many things could be said about this initiative but I'll limit my comments to the employment realm.  3d man with multiple phones

First, if this is not a "sign of the times," then I don't know what is.  All of the employers out there who "don't want to learn" how to use Facebook--this is your call to arms.  Even the President of the United States is promoting his "brand" with social networking!!  Please, please, don't be behind the federal government when it comes to technology and innovation. 

Second, this is one super example of the value of communication.  Employers, follow Obama's lead and listen.  Ask questions and then listen to your employees' responses.  One scenario where this is not being done nearly enough as it should is with employee engagement and retention.  The very best employers know that exit interviews (i.e., "What did we do wrong?"), come too late in the game.  Instead of waiting until you lose your best employees, sit them down now and ask them, "What are we doing right/wrong?"  and "What can we do to enable you to continue to enjoy your work and working for us?"

Give it a shot, hold an "Open for Questions" day and interview each of your reports to assess the current level of satisfaction and to find out what really is important to them.

Annual Employment Law Seminar Registration Form

Posted by Molly DiBiancaOn March 24, 2009In: Seminars, Past

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To sign up for our annual Employment Law Seminar, being held at the Chase Riverfront Center in Wilmington, DE on April 29, use the registration form, which can be accessed through the link below. We're looking forward to it and you'll be able to attend.

Click here for more information about the employment law seminar, including the seminar brochure.

FLSA: Rounding of Hours Worked

Posted by Molly DiBiancaOn March 24, 2009In: Fair Labor Standards Act (FLSA)

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Under the Fair Labor Standards Act (FLSA), nonexempt employees must be paid for every minute worked. It is the duty of the employer to maintain records of time worked by its employees.  To accomplish this, many employers have an electronic time clock, which employees use to "punch in" and "punch out" at their starting and ending times.  Neither the FLSA nor the Delaware Wage Payment and Collection Act ("DWPCA"), require employers to use time clocks  but there is a great number of reasons to do so.  calendar and clock

One question that often arises from employers who use time-clock systems is how to handle "rounding time worked"?  If an employee must be paid for all time worked and he clocks in at 8:01 a.m., must the employer's payroll system generate a payment for 1 hour and 1 minute?  If not, does the employer have to pay the employee for 1 hour and 15 minutes if its payroll system is set up to pay in 15-minute increments?

The FLSA explicitly permits "rounding" of an employee's starting and stopping times.  In fact, the Department of Labor has promulgated a regulation that deals directly with this question.  According to 29 C.F.R. Sec. 785.48(b):

It has been found that in some industries, particularly where timeclocks are used, there has been the practice for many years of recording the employee's starting time and stopping time to the nearest five minutes, or to the nearest one-tenth or quarter of an hour.  Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work.

As an example, assume that the employer pays in 15-minute increments and has an established practice of rounding working time in this amount.  This method is acceptable, provided that the rounding must not always benefit the employer--the rounding method must "average out."  To ensure that you are "averaging out" the employee's working time when using a rounding method to calculate time worked, you have three options:

1.  Always round up to favor the employee.  (This works just fine for some employers due the easy calculations and certainty of compliance).

2.  Round up to favor the employee at starting time and round down to favor the employer at ending time. (A little complicated for many payroll systems but workable for others).

3.  Round up and down based on the increment.  For example, if the employee reports to work at 8:08 a.m, he would be paid for time worked beginning at 8:15 a.m.  If he clocked in at 9:07 a.m., he would have to be paid for time worked beginning at 9 a.m.  

Over time, the presumption is, this system would even out in a way that is fair to both employer and employee. 

See our previous posts on the wage and hour requirements of the Fair Labor Standards Act

It's Here! Announcing the 2009 Annual Employment Law Seminar

Posted by Molly DiBiancaOn March 23, 2009In: Seminars, Past

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Registration for the annual Employment Law Seminar is now open and details about the conference, the presenters, guest speakers, and topics, are available.  Use the Registration Form, below, to sign up but don't delay--we expect attendance this year to be at a maximum capacity.  Here's what you need to know:

When:  April 29, 2009  9 a.m. - 4 p.m.

Where:  Chase Center on the Riverfront, Wilmington, Delaware

Cost:  $145 for the first registrant from an organization.  Registration of additional participants from the same organization is only $125 per person.  Cost includes continental breakfast, lunch "with the lawyers," and the full seminar materials--even for those sessions you can't attend. 

Presenters: This year's speakers include employment law attorneys Barry M. Willoughby, Sheldon N. Sandler, William W. Bowser, Teresa A. Cheek, Scott A. Holt, Adria B. Martinelli, Michael P. Stafford, Maribeth L. Minella, Margaret M. DiBianca, and Lauren Hudecki.  We will be joined by guest speakers, Rudy Antonini, Chief Referee of the Delaware Unemployment Appeals Commission, and Executive Director the Delaware Public Employment Relations Board, Debbie Murray-Sheppard, as well as keynote speakers from the Delaware Department of Labor, Julie Klein Cutler, Administrator of the Office of Anti-Discrimination, and Trina Gumbs, acting mediation director and Supervisor of the Kent-Sussex County Office of Anti-Discrimination. 

Topics:  This year's seminar is a full day, which permits us to cover more important employment-law topics than ever before.  Of course, we'll review the critical court decisions and pieces of key legislation that have been issued during the last twelve months.  We will also address the changes we expect to occur in the first twelve months of the new administration.  Additionally, we'll provide a recap of legal happenings in the public sector, update you on the changes to the FMLA and the new COBRA subsidy, discuss how to manage a layoff and how to keep employees engaged in the present economy, address the ins and outs of screening job applicants with online tools, and offer insight on how to deal with an unemployment appeal. 

For more detail, have a look at the Seminar Brochure and then register using the provided form, below.  We hope to see you on April 29, 2009!

Local Thoughts on the Employee Free Choice Act

Posted by Molly DiBiancaOn March 23, 2009In: Union and Labor Issues

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William W. Bowser was quoted on the Employee Free Choice Act (EFCA) in the Delaware newspaper, The News Journal, today.  Bill, a partner in the Employment Law Section at Young Conaway Stargatt and Taylor, commented on the real-world impact that the secret-ballot and interest-arbitration provisions could have if the legislation is passed.  Last week in Wilmington, Local 32BJ of the Service Employees International Union protested on behalf of employees of Optima Cleaning Systems.  The Wilmington-based company, claim AFL-CIO officials, has photographed and videotaped union activity on public property.  image

Bowser pointed out that there has been far less attention given to the interest-arbitration provision than it deserves in light of its potentially game-changing impact.

This mechanism, known as "interest arbitration," exists in the public sector in some states, including Delaware. But in the private sector, labor and management are expected to hammer out their differences at the bargaining table.

"That is sort of a wild card in this whole thing that has never been tried here in the United States, in the private sector," Bowser said.

There's much more to be said on the EFCA, which was introduced to the House earlier this month.  You can read the full article from The News Journal, Business, Labor, Battle Over "Card Check", or review some of our previous posts on the EFCA at Delaware Employment Law Blog.

Employee Benefits Update: Changes to Transit Passes and Van-Pooling Benefits for 2009-2010

Posted by E-LawOn March 22, 2009In: Benefits, Legislative Update

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Tax-Free Qualified Transportation Fringe Benefits

By now, most employers are aware that they can provide tax-free transportation fringe benefits of parking, transit pass, van pooling and bicycle commuting reimbursement benefits to their employees. What never seemed appropriate from a policy (and fairness) viewpoint was that the monthly exclusion amount for parking far exceeds the amount allowed for transit passes and van pooling. In addition, employees can simply be reimbursed for the cost of their monthly parking while only transit passes (if available) are the only means of providing the benefit for public transportation. A “transit pass” is any pass, token, fare card, voucher, or similar item entitling a person to transportation (or transportation at a reduced price):

(1) on mass transit facilities (whether or not publicly owned), including, for example, rail, bus, and ferry; or

(2) provided by any person in the business of transporting persons for compensation or hire, if this transportation is in a highway vehicle with a seating capacity of at least six adults (excluding the driver).

Beginning in January 2009, the maximum monthly exclusion for parking is $230 and the maximum exclusion for transit passes and van pooling is $120. The monthly exclusion for bicycle commuting reimbursement is $20.

ARRA Increases Transit Pass And Van Pooling Benefit Exclusion

ARRA has temporarily leveled the playing field for tax exempt transportation fringe benefits. Beginning in March 2009 and through December 2010, the maximum exclusion for transit passes and van pooling will be the same as the exclusion for parking. Thus, for the remainder of 2009, transit passes and van pooling benefits valued up to $230 per month will be excluded from the income of the employees who receive such benefits. For 2010, the monthly exclusion for parking, transit passes and van pooling will the inflation adjusted $230 exclusion amount for parking. The exclusion for bicycle commuting reimbursement benefits remains unchanged by ARRA.

Salary Deferrals for Pre-Tax Transportation Fringe Benefits

Employers who cannot afford the increased benefits (or any transportation fringe benefits) can adopt an arrangement to permit their employees to pay for parking, van pooling and transit passes from their compensation with pre-tax dollars, up to the monthly exclusion amount. And, unlike cafeteria plans that require generally irrevocable annual elections to defer income, the pre-tax transportation fringe benefit arrangement can permit employees to change their deferral amounts monthly so long as the change relates only to income that is not yet payable to the employee.

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This post was written by Guest Blogger, Timothy J. Snyder, Esq., Chair of the Tax/Trusts & Estates and Benefits Section at Young Conaway.  Tim has posted several important pieces on the impact on employers of the recently passed Economic Stimulus package.  For employers who haven't yet gotten up to speed on the numerous ways in which ARRA is changing the world of employee benefits, Tim's posts are a great place to start, beginning with the very helpful Guidance for Employers on the New COBRA Subsidy.  Also, be sure to get the new forms provided by the U.S. Department of Labor and the IRS, which you can do at these posts:  DOL Releases Model COBRA Notices and  Stimulus Package's COBRA Subsidy: Guidance Update.

Maribeth L. Minella has also provided helpful commentary on the employment-related effects Stimulus Package.  Her previous posts include:

Stimulus Package Provides for Employee Whistleblower Protection

American Recovery & Reinvestment Act Provides Tax Benefits for Some Employers

Governors Reject Stimulus Funds Marked for Expanding Unemployment Benefits

More Employer Compliance Issues from Stimulus Package

Stimulus’ COBRA Premium Subsidy Puts Burden on Employers

MySpace Post Results in Termination of Nursing Student

Posted by Molly DiBiancaOn March 22, 2009In: Social Media in the Workplace

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The termination of employees as a result of Facebook posts is not new. Just last week, I posted about the pushback against the Eagles football franchise resulting from its decision to terminate a fan-employee for his Facebook post slamming the team's termination of fan-favorite, long-time player, Brian Dawkins.  The phenomenon is not limited to employees, either.  We've seen teacher-in-training, Stacy snyder, file suit against Millersville University after it refused to grant her a teaching certificate due to her, now infamous, "Drunken Pirate" post on Facebookfacebook logo

There's now another student-dismissal story--this one the result of the student's MySpace page.  The University of Louisville nursing student was expelled from the school via a dismissal letter that cited her MySpace postings about "patient activities and identities."  Disclosure of confidential patient information, said the letter, violates the nursing school's code of conduct. 

But the student, Nina Yoder, denies the violation.  Instead, she claims, she was dismissed from the program because school officials believed she was carrying a gun. When she was called in for the meeting, she was patted down by two campus security guards.  She was unarmed and claims that she's never brought a weapon to school.

But on her MySpace page, Yoder defends her right to bear arms--Yoder was a paramedic in the U.S. Army prior to enrolling in the nursing program.  According to the Courier Journal, the page also includes Yoder's "caustic and profane observations on race, sex, and religion, including diatribes against Blacks and Christians."  Yoder has filed suit alleging that her MySpace postings, which, she claims, are protected by the First Amendment, were the real reason for her expulsion. 

[Hat Tip to First Am. Law Profs]

For similar stories:

Facebook Makes Friends With the Ladies

What Employers Should Not Do In A Social Marketing Recruiting Campaign

Discoverability of Facebook Profiles

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

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

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

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

DOL Releases Model COBRA Notices

Posted by E-LawOn March 20, 2009In: Benefits, Legislative Update

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Model COBRA Notices have been released by the U.S. Department of Labor (DOL).  There are four Model COBRA Notices in all, which are required to effectuate the provisions of the 65% governmental subsidy of COBRA premiums enacted as part of ARRA.Capital Hill bw

The Four Model COBRA Notices

The first model COBRA Notice is the General Notice.  It has been released in a full-length version, consisting of 13 pages, and an abbreviated version, totaling 9 pages in length.  The abbreviated version constitutes the second model COBRA Notice.

The General Notice informs Qualified Beneficiaries (QBs) of their right to elect COBRA coverage, the cost of the coverage, and the provisions of the COBRA premium subsidy--all in a Q & A format. The full version should be used for a QB who has just incurred a qualifying event and is entitled to elect COBRA coverage.The abbreviated version is to be provided to those QBs who had a qualifying event on or after September 1, 2008, and who are currently enrolled in COBRA coverage.

The third Notice is the Notice in Connection with Extended Election Periods.  This Notice is to be provided to those QBs who

  • are or would be eligible for the subsidy but are not now enrolled in COBRA coverage; or
  • were enrolled in COBRA coverage and subsequently discontinued coverage with regard to qualifying events that occurred on or after September 1, 2008, and on or before February 16, 2009.

The Fourth Notice is for use by insurers that provide group health-insurance coverage to persons who became eligible for continuation coverage under a state law.  The DOL points out that the continuation coverage requirements vary among states, and insurers must modify this model notice as necessary to conform it to the applicable state law.  All of the Notices have optional pages to be used if the employer chooses to allow the QBs to elect alternative, cheaper medical coverage.

All of the Notices include a form entitled Request for Treatment as an Assistance Eligible Individual.  This form must be completed by the QBs and returned to the employer for a determination by the employer of whether the QBs are entitled to the COBRA subsidy. If the employer determines that the QB is not entitled to the subsidy, the QB can appeal that denial to the DOL.

Now What?

Now that the DOL has issued the Model Notices, employers can begin notifying QBs of the availability of the COBRA premium subsidy available under ARRA. 

  • All QBs who had qualifying events on or after September 1, 2008, and had not elected COBRA by February 17, 2009.
  • Those QBs already covered by COBRA on February 17, 2009 must be provided with the appropriate Notice no later than April 18, 2009.

The subsidy must be provided beginning with the March 2009 COBRA coverage. At this point, it doesn’t seem that employers would be able to get the appropriate notices out to the QBs and make a determination of whether they are entitled to the subsidy in time for the payment of the April COBRA premiums. Therefore, employers should get the Notices out as soon as possible so that the QBs can return the completed forms and employers can make the determinations regarding a QB’s status as an Assistance Eligible Individual in time for the payment of the May premiums.  This means that the employers will be providing the Assistance Eligible Individuals with either refunds or credits for the amount of the premiums that they paid for March and April coverage that exceeded 35% of the premiums.

This post was written by Guest Blogger, Timothy J. Snyder, Esq., Chair of the Tax/Trusts & Estates and Benefits Section at Young Conaway.  Tim posted earlier this month offering very helpful Guidance for Employers on the New COBRA SubsidyMaribeth L. Minella has also provided helpful commentary on the employment-related effects Stimulus Package.  Her previous posts include:

Stimulus Package Provides for Employee Whistleblower Protection

American Recovery & Reinvestment Act Provides Tax Benefits for Some Employers

Governors Reject Stimulus Funds Marked for Expanding Unemployment Benefits

More Employer Compliance Issues from Stimulus Package

Stimulus’ COBRA Premium Subsidy Puts Burden on Employers

Download this

, which includes forms published by the IRS, and has been updated to include the Model Notices. The package is a PDF, best viewed with Adobe Acrobat 9.  (Download Reader 9.)

Included in the package are the following:

  • IRS Revised Form 941 (Employers Quarterly Federal Tax Return)
  • IRS Instructions for Revised Form 941
  • DOL FAQ and Fact Sheet
  • DOL Flyer for Employers
  • Model COBRA Notice: General Notice (full)
  • Model COBRA Notice: General Notice (abbr.)
  • Model COBRA Notice: Notice in Connection with Extended Election Periods
  • Model COBRA Notice: Request for Treatment as an Assistance Eligible Individual

Looking a Flexible-Schedule Gift Horse in the Mouth

Posted by Adria B. MartinelliOn March 20, 2009In: Alternative Work Schedules, Women In (and Out of) the Workplace, Women, Wellness, & Work-Life Balance

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Flexible schedules is a topic of particular interest to me, in some part, because I am the grateful beneficiary of one.   I commend employers, including my own, who have made the enlightened and informed decision to offer this benefit.  It's a decision that I firmly believe will pay dividends in employee loyalty and ultimately save the employer money on hiring, retraining, etc.calendar and clock

Raising happy, healthy, adjusted children is the responsibility of our entire population, and the burden of doing so should not rest on the mother’s shoulders alone. However, the United States, unlike other industrialized nations, has little legislation to promote this ideal. Absent the FMLA, permitting new parents 12 weeks (unpaid) to bond with their children, and the Pregnancy Discrimination Act, which prevents employers from discriminating against women on the basis of their pregnancy, accommodations or benefits to assist new mothers in balancing their work and families are left largely to the employer’s discretion.

WorkLife Law has advocated aggressively and effectively on behalf of working mothers, suggesting litigation through existing statutes where possible to remedy inequities with respect to mothers in the workplace. In part due to their efforts, the EEOC issued its guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities , which helped to focus employers and EEOC investigators on subtle biases about the commitment of working mothers to their job responsibilities, that may result in actionable discrimination cases.

A recent “Employer Alert” from WorkLife Law, however, has taken it too far, suggesting the following:

Continue reading "Looking a Flexible-Schedule Gift Horse in the Mouth" »

AIG - Between Scylla and Charybdis

Posted by Sheldon N. SandlerOn March 19, 2009In: Employment Contracts, Newsworthy

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The current hullabaloo over the AIG bonuses is a good example of the old adage that bad facts make bad law, and is especially puzzling to employment lawyers, who understand that employment agreements are usually sacrosanct. While it is hard to muster any sympathy for AIG, the proposed political machinations to make AIG executives give back their bonuses have broad implications that should be of concern to all clear-thinking citizens. AIG

Congress imposed strings on the bailout money after it had already been accepted by AIG and many other companies, which itself is a bit questionable. But when Congress proscribed companies that accepted the bailout money from paying bonuses, it made an exception for bonuses that were "required to be paid pursuant to a written employment contract executed on or before February 11, 2009." To pillory AIG for paying out bonuses in accordance with the language chosen by the very politicians who are now screaming loudly about the greedy company seems a mite disingenuous.

Talk about a Hobson’s Choice! If AIG had refused to pay the money, it would have faced a flurry of lawsuits either by individuals or a class of people with very strong legal claims. And for those whose employment agreements called for them to remain with AIG in return for the bonuses, the so-called retainer bonuses, the refusal to pay the bonuses would likely have triggered wholesale departures from the company at a time when it needed them to stay afloat. Indeed, before the current uproar gathered steam, members of the administration opined that AIG had to honor these contracts and pay the bonuses.

Of even broader concern is the effort to get the bonus money back by imposing a 100% tax on it, or by trying to indirectly recover the money from AIG. Since the federal government’s original goal was to assist AIG in avoiding bankruptcy and eventually be repaid by AIG, the government’s current maneuvers could easily end up accomplishing the purpose it has been trying to avoid, a bankrupt AIG and a federal government that is unable to recoup any of the bailout money.

Even more dangerous are the potential long-term impacts. If these schemes are implemented, the resulting precedent would give the federal government carte blanche to violate the Contract Clause of the U.S. Constitution or, if nothing else, result in expensive lawsuits that would probably end with the legislation being overturned. While it may feel good, and win political points, to inveigh against the avaricious company, the truly responsible politicians and other citizens must focus dispassionately on the long term consequences of these actions.

Twitter + Reporters + a Courtroom = A Whole Lot of Controversy

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

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Twitter is everywhere! This morning, on Good Morning America, one of the hosts said that there were 100,000 people following the show on Twitter--at that moment!  Yesterday, they answered questions submitted via Twitter during the live section of the program.  twitter icon

But the newsroom isn't the only place experiencing serious changes as a result of the explosive popularity of microblogging.  The courtroom has had its own share of the Twitter craze. 

  • Earlier in the week, one of Pennsylvania's biggest political corruption trials was interrupted temporarily when lawyers for the defendant, former State Senator Vince Fumo, learned that a juror had been tweeting and called for a mistrial. 
  • In an Arkansas case, lawyers for a building products company are asking the court to overturn a $12.6 million judgment after learning that a juror tweeted during the trial.  There, the juror is accused of posting this message via cell phone: "I just gave away TWELVE MILLION DOLLARS of somebody else's money." 
  • And, last week, a Florida judge declared a mistrial after no less than 9 jurors admitted to have researched the case online.

And the tweeting isn't limited to reporters at a newsdesk. They've taken the show on the road--tweeting right from the heart of the action--in the courtroom.

What about the lawyers?  Oh, we're tossing around the idea, too.  Kevin O'Keefe posted on ways that lawyers can (and should, according to O'Keefe), using Twitter as a marketing tool almost a year ago. 

Does the old adage, "If you can't beat 'em, join 'em" apply when it comes to Twitter and the law?

Going Green Using Direct Deposit

Posted by William W. BowserOn March 17, 2009In: Going Green

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Going green at work has been a slow-going process for me.  At home, I have built a composter, installed a rain barrel, banished incandescent light bulbs, started using organic lawn fertilizer, and began recycling almost everything I can (reducing our trash by about 50 percent).  At work, though, going green is a journey taken in baby stepsrecycle

One idea I had not considered is the positive environmental impact of direct deposit.  That's right, direct deposit. According to a recent study by the PayItGreenAlliance, the elimination of every paper check will yield a real environmental impact. It claims that each employee switching to direct deposit will:

- Save one pound of paper.
- Eliminate the release of four gallons of wastewater.
- Eliminate the release of one pound of greenhouse gases (equivalent to:  not driving four miles and half a square food of forest preserved for 10 years).
- Save a business $176.55.

If every employee with access to direct deposit began using it, the country would:

- Save 11,082,971 pounds of paper.
- Avoid the release of 105,709,380 gallons of wastewater.
- Save 4,105,889 gallons of gas.
- Avoid the release of 31,581,675 pounds of greenhouse gases into the atmosphere.  Equivalent to: 112,329,703 miles not driven; 1,345,379 trees planted (and grown for 10 years) and 13,756,978 square feet of forest preserved.

These stats further prove that small changes by all of us can have a real impact on the environment, as well as help the bottom line.

Fumo Found Guilty--No Thanks to Facebook

Posted by Molly DiBiancaOn March 16, 2009In: Newsworthy, Social Media in the Workplace

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A Philadelphia juror returned a verdict of guilty for former Pennsylvania state senator, Vince Fumo, today.  Over the weekend, Fumo's attorneys demanded that the jury's deliberations be halted and requested a mistrial after one juror was caught posting about the trial on his Facebook page and twittering about an impending verdict.  The defense argued that deliberations cease until the twittering juror was questioned about his online disclosures. 

The judge complied with the request but, after questioning the juror, permitted the deliberations to continue.  The judge stated that he was satisfied that the juror had not received any communications about the trial and that the juror's impartiality had not been compromised.

The "tweets" were not specific enough for the judge to find that they were posted in violation of the court's admonition against disclosing the status of jury deliberations.  For example, "Stay tuned for a big announcement on Monday everyone!"

Just hours after being permitted to return, the jury came back, finding Fumo guilty on all counts--137 in all, including charges of corruption and obstruction of justice.  The Fumo trial has been a focus of the Philadelphia news for the entire duration of the five-month trial.  Once considered the most powerful Democrat in the state, Fumo was accused of defrauding the state Senate and others of $3.5 million to support his lavish lifestyle. 

Given the attention surrounding the trial, is it really that surprising a juror just couldn't help himself from talking about it--even in the vaguest terms--online?

This is not the first time Facebook has been in the news in Philly.  Recently, a die-hard Eagles fan was fired for comments he posted on his Facebook profile that were critical of his favorite team's decision to trade fan-favorite Brian Dawkins.  Certainly, this is not the last story of its kind.  Stay tuned and tune in.

For similar stories:

Facebook Makes Friends With the Ladies

What Employers Should Not Do In A Social Marketing Recruiting Campaign

Discoverability of Facebook Profiles

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

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

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

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

50 Best Blogs on Wellness, Women's Interests, and Work-Life Balance

Posted by Molly DiBiancaOn March 13, 2009In: Resources, Wellness, Health, and Safety, Women In (and Out of) the Workplace, Women, Wellness, & Work-Life Balance

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Delaware Employment Law Blog is pleased to add the following 50 blogs to its "Best of" Blogroll.  The common premise among these blogs is the idea that well-rounded employees are happier employees and happier employees perform better for their employer, who, in turn, enjoys more success overall.  In other words--wellness and work-life balance are valuable principles, which should be considered high-ranking goals among employers.   man holding blog

Here's the list, alphabetically:

  1. About Working Moms
  2. Alliance for Work-Life Progress
  3. Business Week’s Working Parents Blog
  4. Chief Home Officer
  5. Corporate Voices
  6. Corporate Voices for Working Families
  7. Discovering Your Inner Samurai Blog
  8. FunnyBusiness
  9. Half Changed World
  10. How She Really Does It
  11. Hybrid Mom Insider
  12. Institute for Women’s Leadership
  13. Jugglezine
  14. Kathy Lingle's Work-Life Blog
  15. Moms Rising
  16. Motherlode
  17. Mothers Movement
  18. Newly Corporate
  19. On Balance
  20. Progressive States
  21. Sloan Network
  22. Sue Magazine
  23. The Anti 9-to-5 Guide
  24. The Juggle
  25. The Lattice Group
  26. The Women’s Initiative Blog
  27. The Work/Life Balancing Act
  28. The WorkLife Monitor
  29. Women for Hire
  30. Women on Business
  31. Women's Leadership Exchange Blog
  32. Women's Rights Employment Law Blog
  33. Work from Within
  34. Work+Life Fit, Inc
  35. Working Mother
  36. Work-Life and Human Capital Solutions
  37. WorkLife Law Blog
  38. World at Work
  40. Christina's Considerations
  41. Corporate Wellness Quotes
  42. Employee Corporate Wellness Programs
  43. Employee Wellness USA
  44. Employee/Corporate Wellness Programs
  45. Meditation At Work Info
  46. My Meditation Coach: Improve your workforce!
  47. Wellergize
  48. Wellness Corporate Insights
  50. Workplace Wellness

Impressive Cover Letters Are a Must in Today’s Job Market

Posted by Adria B. MartinelliOn March 12, 2009In: Hiring

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Job applicants today face a tough market.  There can be no doubt about it.  And law students are no exception. Graduating at the top of one’s class from a top law school no longer guarantees an interview, much less an eventual job offer. Upon racking up a number of rejection letters noting his “impressive background” (or something similar), one law student decided to take a new approach to his cover letter.

The entire letter is posted at Above the Law and is worth reading.

The letter recounts the writer’s top 15 percent law school rank and law journal experience, but goes on to offer “an outside perspective”—the opinions of nine law firms, offered in a variety of permutations, that the job applicant has an “impressive” background.

Lawyers at one firm, for example, were "most impressed" with the writer’s resumé. Another firm “remarkably” came to the identical conclusion that that the applicants’ "qualifications are impressive."

"Clearly, there is a consensus among many firms that I am ‘impressive,’ ” the cover letter posted on the blog says. “Although there is some disagreement about whether my background, credentials, qualifications, resumé, or a combination of these is impressive, it is obvious that I am impressive on some level. Furthermore, while these accolades were all included in rejection letters, the opinions still hold true and are strong measures of my value as a candidate in your colleagues' and competitors' eyes. Thus, I am undoubtedly qualified for a position in your litigation department."

“Finally, if I do not receive an offer for employment, many firms will be quite disappointed. Dozens of firms have indicated a desire for my ‘success’ in the ‘future’ with a ‘challenging’ or ‘rewarding’ position ‘somewhere else,’ and I do not intend to upset these firms by failing."

Unfortunately, the creative approach did not pan out for this law student – he states that the firm receiving this letter rejected him within three days.

Eagles Employee Gets Benched for Comment on Facebook Page

Posted by Molly DiBiancaOn March 11, 2009In: Social Media in the Workplace

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Facebook strikes again. The potential dangers of impulsive Facebook posting made headlines in Philly this week. The story goes like this:

Dan Leone, life-long resident of South Philly and die-hard Eagles fan, was hired for what he describes as his dream job as a game-day employee at the Linc.  Leone was one happy football fan.  Until, that is, his beloved team traded Brian Dawkins to the Broncos.  image

Dawkins was equally beloved by the citizens of the City of Brotherly Love.  After spending 13 of his 13 pro years with the Eagles and, during that time, developed an adoring fan crowd.  When the Eagles traded Dawkins, who is known for his openly emotional style, Philly fans were not enthused. 

And Leone was not happy at all.  You know, Philadelphia residents are known for their passion for sports.  So, like any self-respecting 32-year-old Philadelphian would do, Leone expressed his heartache by posting on his Facebook profile.  Little did Leone know that his heartache had just begun.

Eagles management found out about the posting and they weren't happy either.  They terminated Leone over the phone.  Leone is heartbroken.  And, as reported by the Ohio Employment Law Blog, the public is behind him.  The Philadelphia Inquirer is behind him.

The question is the same--can and should employers consider employees' off-duty conduct, specifically their Facebook postings, when making major employment decisions?

Facebook Makes Friends With the Ladies

What Employers Should Not Do In A Social Marketing Recruiting Campaign

Discoverability of Facebook Profiles

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

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

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

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

Legal Research the Digital Way: How to Copy Text from PDFs (Pain-Free)

Posted by Molly DiBiancaOn March 10, 2009In: Resources

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Can a "paperless office" really be achieved?  Maybe not.  But the digital office is very possible.  For me, it's been a reality for more than five years.  Every element of my legal practice is digital--I even save my legal research in PDF.  When I posted about the reasons that I prefer to download legal research to PDF, I got a lot of interesting feedback and lots of questions about how to implement a digital office. 

One comment in particular caught my attention because (1) it raised a great point about a particular annoyance when downloading research; and (2) the annoyance is really easy to fix. Ernie Svenson, who writes two great blogs, Ernie the Attorney and PDF for Lawyers, agreed that PDF is the way to go when downloading research.  But he did have one reservation.  Here's Ernie's comment:

I COMPLETELY agree! First, I agree that Ray Ward is a wonderful writer and a very thoughtful person. But, I had the same reaction to his suggestion of saving research in .doc or .wpd format.

Why would anyone save research in an editable format? The only valid concern I've heard is the idea that it's a little trick to copy text when the case is in dual column format. My practice is to tweak the output settings when the PDF is created; so I pick 'print in single column' format when I have LEXIS or Westlaw output to PDF. That makes it easier to read, and easier to copy text.

The point Ernie makes is an excellent one.  If you haven't yet begun saving your research to PDF from online databases, such as Lexis or WestLaw, you may not have had this experience.  For those of us who have, it's more than a little annoying. 

From the PDF version of the case, you can copy text and paste it into a Word document to save the hassle of retyping it.  (This is one of the reasons why some lawyers favor the Word version over the PDF--so they can copy and paste the text.)  Truth be told, you can copy and paste it from Word, too.  But, if you just select text (the blue text in Figure 1, below has been selected using the Select tool), and paste it into a word-processing application, such as MS Word, you'll get the result shown in Figure 2.

clip_image002Figure 1




image Figure 2

When you copy and paste text from the PDF, it retains all of the line breaks as manual paragraph returns.  So, unless you can place the copied text in the same format, column width and all, as the original document, you'll have to go through and manually delete all of the hard returns.  (Or use the Find and Replace feature in Word, which still requires some effort). 

So Ernie's solution is to download the case in single-column format--as opposed to dual column like I did above--and avoid a lot of this headache.  But there's another, even better solution.  (Better only because it's more flexible--it works even with a case you already have that is in dual-column format). 

Here's the alternative.

In the PDF, from the main toolbar, select Advanced, Accessibility, and Add Tags to Document.  (Shown in Figure 3).  "Accessibility" has to do with how individuals with disabilities are able to access electronic content with assistive devices.  That's not the function that we use it for here but it gives us great results.

imageFigure 3


A process will run and, when it's finished, a panel will open containing a "Recognition Report."  (Shown in Figure 4).  You don't need to do anything with the Report, so you can close the panel with the left-pointing arrow. 

image Figure 4



Now, when you copy and paste the text, the "tags" you just added to the document will "know" where the actual line and paragraph breaks are and, like magic, the pasted text will reflow automatically!


For the original post, see

Making the Switch to Digital: Legal Research

Facebook Makes Friends With the Ladies

Posted by Molly DiBiancaOn March 9, 2009In: Social Media in the Workplace

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Social networks have been seen as an outlet used mostly by younger audiences.  Facebook was only for college students and alum until 2006.  But since then, Facebook's growth has not been limited to Gen Y users.  In fact, according to Nielson Online, Facebook's greatest growth has been among users aged 35-49.  Women over 55 are the fastest growing age demographic. 



This shouldn't come as too much of a surprise, especially in light of our report back in January that the number of older users of social networking was skyrocketing

International Women's Day 2009

Posted by Molly DiBiancaOn March 9, 2009In: Women In (and Out of) the Workplace

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International Women's Day (IWD), is a global day celebrating the economic, political and social achievements of women past, present and future.  IWD was celebrated officially on Sunday, March 8, 2009, so this post is a day late but, in light of the worthiness of the topic, timely nonetheless.  Making it even more timely is the fact that March is "Women's History Month" in the U.S.

International Women's Day

To celebrate, many global organizations host internal events, as well as support external ones.  For example, Google changes its logo on its global search pages. 


The International Women's Day website provides a free service to women around the world wanting to share and promote their IWD activity, videos, opinions and ideas.  The site offers the following summary as a backdrop for this important date:

The new millennium has witnessed a significant change and attitudinal shift in both women's and society's thoughts about women's equality and emancipation. Many from a younger generation feel that 'all the battles have been won for women' while many feminists from the 1970's know only too well the longevity and ingrained complexity of patriarchy. With more women in the boardroom, greater equality in legislative rights, and an increased critical mass of women's visibility as impressive role models in every aspect of life, one could think that women have gained true equality. The unfortunate fact is that women are still not paid equally to that of their male counterparts, women still are not present in equal numbers in business or politics, and globally women's education, health and the violence against them is worse than that of men.

However, great improvements have been made. We do have female astronauts and prime ministers, school girls are welcomed into university, women can work and have a family, women have real choices. And so the tone and nature of IWD has, for the past few years, moved from being a reminder about the negatives to a celebration of the positives.

100 Free Sites for Learning about Business

Posted by Molly DiBiancaOn March 8, 2009In: Resources

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Free tutorials on basic business principles abound, thanks to the Centre for Learning & Performance Technologies.  Jane Hart has posted an incredible list of links to 100+ Free Sites for Learning about Business.  She describes the list as:

[A]n alphabetical list of websites for learning about all aspects of business - strategy, management, leadership, marketing, finance, accounting, economics, as well as business skills.

It includes a range of sites suitable for both business studies education, workplace learning, and for educators, learners and managers alike.

The sites include both formal and informal learning resources - games, podcasts, blogs, videos, books, PDFs, as well as online courses, communities and other general resources.

The blog is based in the U.K. but the links aren't country-specific and include a tremendous variety of great resources for employers.

And, in case you didn't know, Delaware Employment Law Blog has tons of free resources, too.  You can check them out on the Internet Links resources page, or watch some of the helpful videos we've posted, or any of the posts that discuss new resources for employers.

Stimulus Package's COBRA Subsidy: Guidance Update

Posted by Molly DiBiancaOn March 7, 2009In: Benefits, Legislative Update

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The American Recovery and Reinvestment Act of 2009 (ARRA) provides certain employees the opportunity to collect a subsidy equal to 65% of COBRA continuation premiums for themselves and their families for up to 9 months.  We've posted about the new COBRA subsidy previously and those posts contain important details on how the subsidy affects employers.  Here it is, though, in a nutshell:

Workers who have lost their jobs may qualify for a 65 percent subsidy for COBRA continuation premiums for themselves and their families for up to nine months.

Eligible workers will have to pay 35 percent of the premium to their former employers.

To qualify, a worker must have been involuntarily separated between Sept. 1, 2008, and Dec. 31, 2009. Workers who lost their jobs between Sept. 1, 2008, and enactment, but failed to initially elect COBRA because it was unaffordable, get an additional 60 days to elect COBRA and receive the subsidy.

This subsidy phases out for individuals whose modified adjusted gross income exceeds $125,000, or $250,000 for those filing joint returns. Taxpayers with modified adjusted gross income exceeding $145,000, or $290,000 for those filing joint returns, do not qualify for the subsidy.

The IRS and U.S. Department of Labor have posted several helpful documents recently.  We've packaged them for you in one nice little PDF Portfolio for your easy reference.

Included in the package are the following:

  • IRS Revised Form 941 (Employers Quarterly Federal Tax Return)
  • IRS Instructions for Revised Form 941
  • DOL FAQ and Fact Sheet
  • DOL Flyer for Employers

For our previous posts, see:

Guidance for Employers on the New COBRA Subsidy

Stimulus Package Provides for Employee Whistleblower Protection

American Recovery & Reinvestment Act Provides Tax Benefits for Some Employers

Governors Reject Stimulus Funds Marked for Expanding Unemployment Benefits

More Employer Compliance Issues from Stimulus Package

Stimulus’ COBRA Premium Subsidy Puts Burden on Employers

The World's Greatest Lawyer Bio

Posted by Molly DiBiancaOn March 6, 2009In: Just for Fun

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Attorneys in private practice want to be rainmakers.  Well, we at least want to bring in our share of business.  And we know that, as lawyers, marketing ourselves and our firms is critical to continued vitality.  There is more advice on the top of best practices in law-firm marketing than I could consume in a lifetime. 

There are some principles, though, that are so fundamentally true that you knew about them and believed in them long before any webinar or white paper addressed it.  One such principle could be stated as, "To thine own self be true."

It never works out well when someone tries to "be" someone else.  "Just be yourself--people will like you better that way" may be more like motherly advice than marketing advice but it seems to cross the divide. 

One great example of this principle is Kevin A. Gliwa, partner with Otten Johnson Robinson Neff + Ragonetti, located in Colorado.  Gliwa's bio, posted on the Otten Johnson website, is, truly, the best I've ever seen.  Ever.  Kevin A. Gliwa, sir, you are my hero.  image

Here's some of the world's greatest lawyer bio:

Kevin, a Shareholder practicing in Otten Johnson's real estate group, was raised by penguins following a childhood boating accident. He graduated magna cum laude from Colby College, where he learned that not all issues can be reduced to black or white. He received his law degree from Boston University, which he attended on a full football scholarship through an administrative error. Thereafter, he worked for four years as an associate at a large law firm in New York, where he once rode an elevator to the top of the Empire State Building. He lectures frequently to his children on a variety of subjects. He enjoys swimming and fishing, despite the painful memories.

In the years since the above bio was published on Otten Johnson's predecessor website, Kevin has received many bemused queries, often pertaining to the state of his health. To limit future inquiry, here are answers to some of the more frequently asked questions:

(a) Emperor, not King.

(b) Yes, it was cold.  Thankfully, I had a sweater.

(c) Sushi.

Personal Interest

  • Avid indoorsman
  • Writes free-verse, non-rhyming limericks

Positively inspirational, isn't it?

Top 10 Layoff Tips

Posted by Maribeth L. MinellaOn March 6, 2009In: Seminars, Past, Severance Agreements, Terminations & Layoffs, WARN Act

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Layoffs and reductions in force were the topics of a seminar we presented yesterday, during which we reviewed how to plan and implement workforce reductions, requirements for severance agreements and releases, and alternatives to layoffs.shutterstock_21093820

In following up to yesterday's discussion, here is a list of the "Top 10 Layoff Tips": 

1. Plan your business first.

Your business plan should always be at the forefront of any decision. Don’t let a reduction in force later hamper your ability to compete. Even if they don’t result in costly litigation, short-sighted layoffs can be expensive because when your business picks back up you will eventually need to replace your laid-off employees.

2. Plan your reduction in force second.

Any reduction in force, whether a traditional lay off or an alternative, should complement your business plan. The short-term goal is to cut costs, but a reduction in force should not cut corners.

3. Consider alternatives.

There are many alternatives to traditional layoffs, and their beauty is that you can tailor them to fit your company’s needs. Alternatives include job sharing, reducing employee hours, voluntary sabbatical programs, and cutting benefits. The list is long and varied, so be creative.

4. Document, document, document.

HR professionals who are worth their salt know that good documentation is the first line of defense to an employee’s discrimination claim. Likewise, impeccable documentation of your reduction in force planning and implementation is your first line of defense to discrimination claims that may arise from a reduction in force.

5. Control the process.

Translation: Don’t wait until the last minute. If you think your business is on shaky ground, start thinking about how to reduce your labor costs. Ultimately, you want a reduction that cuts costs, keeps your best employees, and can get your business through the economic downturn. If you wait and make labor cuts your last resort, you will likely sacrifice one of those goals.

6. Involve stakeholders.

Who? The people who can be trusted with the company’s actual financial condition, who have a good reputation with employees, who can think creatively, and who represent affected employees. These are the people who have demonstrated a commitment to your company’s success. Don’t just involve the same managers who make all of the decisions. Think creatively about who to involve in the process.

7. Seek the advice of legal counsel early.

This accomplishes two important things. First, layoffs can lead to angry employees, who are more likely to sue you. Involving legal counsel early can help you reduce your exposure to lawsuits by making sure your reduction in force does not run afoul of any employment or labor laws.  Second, your communications with counsel are likely protected by the attorney-client privilege, which is important in litigation. This does not mean that the process should be kept secret, because it shouldn’t. The purpose of the privilege is to give clients the opportunity to speak freely and without the concern that what they say to their attorney will be used against them later. That, in turn, means you can float your creative ideas by your attorney and not have your brainstorming held against you.

8. Thoughtful risk analysis.

Whether you involve legal counsel or not, any reduction in force has to be planned and implemented with an eye on potential legal missteps. If you control the process, you also have an opportunity to think about the potential hazards in a meaningful way. Consider the risks your reduction in force poses and if they are too great, change the plan.

9. Identify WARN notice issues.

We’ve posted about the Worker Adjustment and Retraining Notification (WARN) Act before. Basically, it’s a federal law that requires certain employers to give employees 60 days advance notice of a layoff. If you employ at least 100 full-time employees or 100 full-time and part-time employees who, in the aggregate, work at least 4,000 hours per week, any reduction in force discussion should include consideration for the WARN Act.

10. Special considerations for older workers.

There are laws that pertain only to employees who are forty or older, and those laws have particular requirements for things like releases and severance packages. This is one more reason to involve your legal counsel early so that you can readily address any issues presented by workers who are covered by the Older Workers Benefit Protection Act (OWBPA) and the Age Discrimination in Employment Act (ADEA).

Cappelli on the EFCA

Posted by Molly DiBiancaOn March 6, 2009In: Union and Labor Issues

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EFCA, the Employee Free Choice Act, has garnered a lot of attention from employers and employment law attorneys.  If passed, the much-hyped legislation could have far-reaching effects on non-union workplaces.  Unions would be able to bypass the election process and move directly to the card-counting process.  Penn professor and management guru Peter Cappelli has written a captivating column for HR Executive Online called, "EFCA's Significance for HR."  I would encourage anyone interested in the impact of the EFCA to read the column.  Maybe even read it twice.

Cappelli looks at the history of the labor movement, comparing the power and influence of the unions in the pre- and post-Reagan administration.  He notes, with apparent disappointment, that unions have been on the decline since the early 1980's. 

He contends that the EFCA doesn't stand a chance.  Interesting.

But he then contends that HR professionals and employment lawyers would only stand to benefit from the EFCA. 

So here's the little secret: Nothing would do more for the influence and prestige of human resources within companies than a resurgent labor movement.

While management lawyers across the country are warning employers of impending doom if EFCA passes, they are pinching themselves at their good fortune just to have legislation like it being considered because of the attention it gives them.

I remember in the mid-1980s hearing a table of labor-relations managers tell me that they really wished for a good organizing campaign at their plants because that was the only time senior management provided any resources to deal with bad supervisors and other workplace problems.

Cappelli is an expert in all things management and his perspective is one I've not heard previously.  It certainly is a fascinating approach to the potential impact of the Employee Free Choice Act. 

Guns At Work: Impact Update

Posted by Molly DiBiancaOn March 6, 2009In: Workplace Violence

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Roughly six months have gone by since guns-at-work laws were passed in Georgia and Florida.  I posted previously about the legislative initiatives in both states.  (See Georgia Takes One Step Backwards in the Fight Against Workplace Violence; Florida Law Permits Guns at Work; Delaware Initiates an Anti-Workplace Violence Training Program).  John Phillips, at The Word on Employment Law, has done an excellent job following up on similar efforts in other states.handgun   He posted yesterday about the direct impact that these guns-at-work laws can have--for employers, its armed, and unarmed employees, and its clients and customers.  In the post, John writes about a Starbucks employee who was shut in the leg while working.  The employee was not only the victim in this case--he was also the shooter.  He shot himself while working with a gun he'd brought to work.  See John's post for more details and a discussion of the potentially far ranging implications that these new laws can have for employers and employees.

Doodlers Rejoice! Study Shows Doodling Helps Memory

Posted by Molly DiBiancaOn March 5, 2009In: Just for Fun

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The next time you're conducting a meeting and you notice that a colleague is scribbling away as you talk, try not to take it personally.  A new study shows that your doodling peer is more likely to remember what you're saying.  British researcher, Jackie Andrade, who conducted the study, said: 'This study suggests that in everyday life doodling may be something we do because it helps keep us on track with a boring tasks, rather than being an unnecessary distraction that we should try to resist.'  stick figure girl standing

It seems that doodling helps the mind to focus and stop daydreaming.  It's not, after all, a sign of inattention. 

Participants in the study, which will be published in the journal Applied Cognitive Psychology, were asked to listen to a tedious phone message about plans for a party.  The message include guests' names, names of people who would not be attending, place names, and other irrelevant material.  The participants were not told that they would be tested for their ability to recall the information.  The doodlers wrote down more names while listening to the message, had better recall for the party guests' names and place names.  In fact, they remembered nearly one third more than the non-doodlers. 

Guidance for Employers on the New COBRA Subsidy

Posted by E-LawOn March 4, 2009In: Benefits, Legislative Update

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The COBRA subsidy in the Economic Stimulus Plan (ARRA), will be available to “Assistance Eligible Individuals.” To qualify, the employee must satisfy two requirements. First, the employee must have been involuntarily terminated for reasons other than gross misconduct between September 1, 2008, and December 31, 2009. Second, the employee must have either (a) declined COBRA; or (b) elected COBRA but dropped off for a reason that would not have disqualified him for coverage (for example, inability to pay the premiums).Capital Hill

Assistance Eligible Individuals who were not covered by COBRA on the date of the enactment of ARRA must receive a notice of their right to elect COBRA by April 18, 2009. If they do elect coverage, the coverage and the subsidy will be effective March 1, 2009. The subsidy is for 65% of the COBRA premium.

For those individuals who are already on COBRA, employers have 60 days to effectuate the COBRA subsidy. If the Assistance Eligible Individuals pay the full premium for March and April 2009 coverage, the employer can either give them a credit for the subsidy against future premiums or refund the subsidy to them. Individuals on COBRA must also receive notice of the subsidy by April 18, 2009. The United States Department of Labor (DOL), was directed in ARRA to produce a model notice for the subsidy.

The subsidy is available for nine months or until the end of the COBRA coverage period, if sooner. It will not otherwise extend the COBRA coverage period. Those whose employment terminates involuntarily before December 31, 2009, will be entitled to the subsidy, which means that the subsidy will be provided through September 2010. The subsidy is phased out for single individuals with adjusted gross income between $125,000 and $145,000, and $250,000 to $290,000 for those filing joint returns. The COBRA subsidy is otherwise not taxable to the recipients. The employer is reimbursed for the subsidy by taking a credit against its payroll tax deposit obligation and will be reported on the revised Form 941. If the COBRA subsidy amount exceeds the employer’s payroll tax obligation, the employer will receive a refund from the IRS.

The government information being issued to assist employers and employees in administering the subsidy is being posted on the Internet. The DOL and the IRS both have posted documents to guide employers through the administration of the new subsidy. (See the DOL’s “COBRA Continuation Coverage Assistance Under The American Recovery and Reinvestment Act of 2009” with links to a COBRA Premium Fact Sheet and COBRA FAQs, and the IRS’s “COBRA: Answers for Employers”).

This post was written by Guest Blogger, Timothy P. Snyder, Esq., Chair of the Tax/Trusts & Estates and Benefits Section at Young ConawayMaribeth L. Minella has also provided helpful commentary on the Stimulus Package.  Her previous posts include:

Stimulus Package Provides for Employee Whistleblower Protection

American Recovery & Reinvestment Act Provides Tax Benefits for Some Employers

Governors Reject Stimulus Funds Marked for Expanding Unemployment Benefits

More Employer Compliance Issues from Stimulus Package

Stimulus’ COBRA Premium Subsidy Puts Burden on Employers

10 Best Excuses for Being Late to Work

Posted by Molly DiBiancaOn March 3, 2009In: Absenteeism, Just for Fun

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Are you chronically late?  Or maybe just chronically late to work?  Well, you're not alone.  20% of workers are late to work at least once a week, according to's annual survey.  Last year, only 15% of the workforce suffered from habitual tardiness.  12% were late at least twice per week.

traffic jam

The most commonly used excuses included:

  • Traffic (33 percent);
  • Lack of sleep (24 percent); and
  • Getting the kids ready for school or day care (10 percent).

Public transportation, wardrobe issues, and pet problems were also common reasons.

But the real hilarity is not in the everyday excuses--we've all heard (and probably used) those before.  The real entertainment is the most uncommon excuses that Careerbuilder collected over the last 12 months.  These really leave me to marvel at the, um, "creativity" of these employees.  My personal favorite this year is #5.


  1. “My husband thinks it’s funny to hide my car keys before he goes to work.”
  2. “I was attacked by a raccoon and had to stop by the hospital to make sure it wasn’t rabid.”
  3. “My left turn signal was out so I had to make all right turns to get to work.”
  4. “A gurney fell out of an ambulance and delayed traffic.”
  5. “I feel like I’m in everyone’s way if I show up on time.”
  6. “My heat was shut off so I had to stay home to keep my snake warm.”
  7. “My father didn’t wake me up.”
  8. “A groundhog bit my bike tire and made it flat.”
  9. “I walked into a spider web on the way out the door and couldn’t find the spider, so I had to go inside and shower again.”
  10. “I got locked in my trunk by my son.”
  11. “My driveway washed away in the rain last night.”
  12. “I had to go to bingo.”

Click here to see last year's 10 Best Excuses for Being Late to Work

What Employers Should Not Do In A Social Marketing Recruiting Campaign

Posted by Molly DiBiancaOn March 3, 2009In: Social Media in the Workplace

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I'll be speaking about recruiting with social media in an audioconference next week.  (For registration information, see Feeding Your Talent Pipeline with Online Tools.)  During the presentation, I will spend a good deal of time on best practices for employers who want to leverage online tools, such as Facebook, MySpace, and Twitter in their recruiting efforts.  Until then, it may not be a bad idea to become familiar with what not to do when it comes to online talent marketing. 

Here are some helpful resources to help you get started:

Discoverability of Facebook Profiles

Posted by Molly DiBiancaOn March 2, 2009In: Social Media in the Workplace

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In my podcast on employers' uses of an employee or candidate's personal profile on an online social network, such as Facebook or MySpace, I discussed the discoverability of this information in a lawsuit.  Employers frequently research potential applicants' online profiles for hiring purposesEmployers also can monitor current employees through their online profiles to ensure that they do not leak confidential or proprietary information or commit other wrongs harmful to the organization.  I've also speculated that what an employee posts about himself online could also be potentially important evidence in an employment-discrimination suit, as well.  There has been very little discussion of this question, though, by the courts.  3d men need help on laptop

That's why a recent decision by the Ontario Superior Court of Justice is particularly interesting.  All About Information posted about the case, in which the defendant was permitted to cross-examine a plaintiff in a motor-vehicle-accident suit about material he posted on his Facebook profile.  The content, the defense argued, was relevant to the plaintiff's claim for loss of enjoyment of life. 

The defense had not learned of the potentially revealing information until after the discovery period had closed.  The Master denied the defendant's request, finding that the mere existence of a Facebook profile was not reason to believe it contained relevant evidence about his lifestyle.  Without evidence to support this conclusion, the request was nothing more than a fishing expedition. 

The appeal judge disagreed, stating:

With respect, I do not regard the defendant’s request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated “friends” access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.

Leduc v. Roman, 2009 CanLII 6838 (ON S.C.).  I suspect holdings like this will become more and more common as employers (and defense counsel) begin to catch on to the wealth of information employees voluntarily disclose about themselves online.

Making the Switch to Digital: Legal Research

Posted by Molly DiBiancaOn March 2, 2009In: PDFs, Resources

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Lawyers still don't seem to appreciate the power of PDF.  I've posted some thoughts on the benefits of moving towards a digital office, using Adobe Acrobat.  Even if you aren't [yet] committed to making the switch to almost-paperless, there are ways that you can (and should) be implementing Acrobat and the PDF format into your everyday legal practice. 

I was reminded of this by Raymond P. Ward, at the (new) legal writer in his post, Owning Your Downloaded Legal Authorities.  Mr. Ward made my list of the Top 30 Writing Blogs and for good reason--his blog is a valuable resource for legal writers.  As highly as I regard Mr. Ward and his normally sage advice, I must disagree with him a little on the argument he made in his post.  But just a little.

Ward advises readers to take a few extra steps when conducting online research to save time and effort later.  Agreed.  Next, he advises that, when downloading a case from LexisNexis, Westlaw, or other online legal database, attorneys should save the case "in a word-processing format (Word or WordPerfect), not PDF." 

He explains that, by downloading the case before printing or saving it, you are able to reformat the document, cleaning it up for easier reading, and annotate the case for later reference.  All excellent ideas.  But these ideas can be better executed in Acrobat PDF, rather than Microsoft Word or WordPerfect. 

Here are some of the reasons Ward urges readers to save research in a word-processing format:

  1. If you find the case difficult to read, re-format it. Change the type face or enlarge the font size.
  2. Delete all the headnotes having nothing to do with why you downloaded the case, saving only the pertinent headnotes. This simple tip not only saves you the trouble of wading through dozens of useless headnotes; it also saves paper when you print a hard copy.
  3. While you’re at it, delete the lawyers’ names. Every little bit of clutter-elimination helps. And nobody will mind except the lawyers’ mothers.
  4. Use Word or WordPerfect to highlight the parts that are most important.
  5. Instead of writing in the margins of a hard copy, use Word or WordPerfect to insert comments. That way, your comments will be saved on your electronic copy.
  6. Edit the document header to add all information needed to cite the case. This will later save you the trouble of printing an entire 24-page case when you only need one page with one juicy quotation.

Each of these objectives can be accomplished in Acrobat with ease and, in many cases, with more functionality.   The most obvious way to accomplish any of the cited features is to save the document to Adobe PDF and then, if you later find you want to edit the document in MS Word, simply export the PDF to Word, an easy trick when using Acrobat 9.  But let's go through how you can accomplish Ward's suggestions without converting PDF to Word.

Continue reading "Making the Switch to Digital: Legal Research" »