April 2009 Archives

Delaware General Assembly Piles on Construction Industry

Posted by Sheldon N. SandlerOn April 28, 2009In: Independent Contractors, Legislative Update

Email This Post | Print this Post

Independent Contractor Update: A bill targeting the construction industry has been introduced   in the Delaware General Assembly. "The Construction Industry Independent Contractor 3d construction man with hard hat and blueprintAct,” HB129,   which is similar to one that failed to pass during the last legislative session, creates a presumption that an individual performing a service “in the making of improvements to real property” is an  employee rather than an independent contractor.  To overcome that heavy burden, an employer must prove that the individual is free from control or direction over the performance of that service, the service is outside the usual course of the employer’s business or performed outside of all of the employer’s places of business [seemingly impossible to prove in the context of a construction employer, who travels from place to place], and the individual is customarily engaged in “an independently established trade, occupation, profession or business.”

And woe to the employer who misclassifies, either unwittingly or knowingly.  The law not only contains criminal fines and imprisonment penalties, it also authorizes civil suits, including class actions, and allows attorney’s fee awards to prevailing plaintiffs. An employer who knowingly misclassifies an individual can also be debarred from working on public projects. The law also makes the Secretary of Labor the judge, jury and executioner, authorizing administrative monetary penalties if he or she decides that there has been a violation, subject only to a hearing that can be requested after the initial decision has been made.

Since the Act only applies  to individuals, employers wishing to engage legitimate independent contractors may wish to require them to incorporate or form limited liability companies before entering into an agreement for construction-related services.  As an alternative, the cautious employer may want to rely heavily on temporary job services, with the individual remaining an employee of the service company, which would be responsible for taxes, withholdings and other legal requirements.  Of course these approaches will cost more money, and one wonders why, in the midst of an economic crisis, the Delaware General Assembly would want to create additional financial burdens for companies. The only message that can be inferred from this one-sided legislation is that Delaware is less friendly to business than it used to be.

See prior posts about Independent Contractors: Employee Misclassification Prevention Act Update, Construction-Industry Employers Should Be Aware of Proposed Legislation, Pennsylvania House Passes Construction Industry Independent Contractor Act, Delaware Legislation Proposes to Criminalize Employment Law

Two New Resources for Employers on the Employment of Persons With Disabilities

Posted by Molly DiBiancaOn April 26, 2009In: Disabilities (ADA), Resources

Email This Post | Print this Post

The U.S. Department of Labor's Office of Disability Employment Policy (ODEP), has released two new resources on the employment of persons with disabilities. 

Comprehensive Reference for the Employment of Persons with Disabilities

To meet the need for a comprehensive, portable, and easy-to-understand guide for employers who are looking to recruit, hire, and retain employees with disabilities, ODEP just released its new Four-Step Reference Guide. The online version of this valuable resource covers topics such as Incentives & ROI, Recruiting, Interviewing & Hiring, and much more. And be sure not to miss the last three pages, which contain a wealth of links and other resources for employers.   Diversifying Your Workforce, A Four-Step Reference Guide to Recruiting, Hiring & Retaining Employees with Disabilities is available now online and will be available later this year in print.

Employers' Use of Accessible Technology to Improve Employment for People With Disabilities

The second resource is a follow up to last year's Roadmaps for Enhancing Employment of Persons with Disabilities Through Accessible Technology (Roadmaps I).  Roadmaps I affirmed current successful business policies and practices and identified new strategic policies and practices. The Roadmap for the business community identifies the actionable steps that can be taken by the business community to facilitate the widespread adoption of these policies and practices by businesses. Roadmaps I was released on January 31, 2008.

Roadmaps II provides an overview of federally funded accessible-technology (AT), programs; a summary of some of the barriers that affect the use of AT by individuals with disabilities; and recommendations to increase the employment of individuals with disabilities though AT. The report was launched in Philadelphia, Pennsylvania, at the 2009 Annual Conference of AT-Act Programs on April 21.

Related resources:

Two New Employment-Outreach Programs from the ODEP

Honoring Veterans By Supporting Their Reemployment Efforts

National Disability Employment Awareness Month

EEOC Issues "Employer Best Practices for Workers with Caregiving Responsibilities"

Posted by Adria B. MartinelliOn April 23, 2009In: Family Responsibilities (FRD), Women, Wellness, & Work-Life Balance

Email This Post | Print this Post

Employers, the EEOC issued a new technical assistance document yesterday, titled Employer Best Practices for Workers with Caregiving Responsibilities. This document supplements the U.S. Equal Employment Opportunity Commission's Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, issued in May 2007.eeoc

The Guidance explains the circumstances under which discrimination against workers with  caregiving responsibilities might constitute discrimination based on characteristics protected by federal employment discrimination laws, and suggests best practices that employers may adopt to reduce the chance of EEO violations against caregivers. Best practices are proactive measures that go beyond federal non-discrimination requirements.

The issuance of the Best Practices demonstrates how the new administration is continuing to pay attention to this issue, despite the fact the current economic environment has pushed “family-friendly” policies  to the back burner for many employers. In light of this environment, the EEOC wisely emphasizes in the Best Practices that employers adopting flexible workplace policies may not only experience decreased complaints of unlawful discrimination, but may also benefit their workers, their customer base, and their bottom line. As the Best Practices states:

Numerous studies have found that flexible workplace policies enhance employee productivity, reduce absenteeism, reduce costs, and appear to positively affect profits. They also aid recruitment and retention efforts, allowing employers to retain a talented, knowledgeable workforce and save the money and time that would otherwise have been spent recruiting, interviewing, selecting and training new employees. The benefits of these programs remain constant regardless of the economic climate, and some employers have implemented workplace flexibility programs as an alternative to workforce reductions. Such programs not only enable employers to “go lean without being mean,” but they also can position organizations to rebound quickly as soon as business improves.

The Best Practices provides specific recommendations for employers, including:

  1. train managers about employers’ legal obligations relating to employees with family responsibilities;
  2. implement an EEO policy that prohibits discrimination against caregivers;
  3. respond to complaints of caregiver discrimination promptly and effectively;
  4. review employment policies and practices;
  5. monitor compensation practices and performance appraisal systems;
  6. where overtime is required, make it family friendly; and
  7. promote an inclusive workplace culture.

Despite the many other pressing issues on President Obama’s agenda, it is clear the new administration is not going let this one fall by the wayside.  Just last month, it was reported that President Obama created a White House Council on Women and Girls. Stay tuned – I don’t think this is the last we are going to see from this administration on these matters.

Previous posts about Family Responsibilities Discrimination: The Maternal Profiling Debate Continues, Looking a Flexible-Schedule Gift Horse in the Mouth, Laid Off & Pregnant.

Obnoxious Employee or Co-Worker? Just Tape His Mouth Shut

Posted by Molly DiBiancaOn April 23, 2009In: Just for Fun

Email This Post | Print this Post

A judge ordered the mouth of a criminal defendant taped shut at a probation-violation hearing.  Nicklas Frasure, 23, made repeated outbursts and ignored the judge's continued orders to remain silent.  So the judge ordered bailiffs to silence Frasure--and the bailiffs complied.  duct tapeThey taped Frasure's mouth shut with duct tape.  Oh my.

At the end of the hearing, the judge ordered Frasure placed into the custody of the Department of Correction in a mental-health facility in Boise. 

Are there any co-workers or members of your staff who could learn a little from this extreme strategy? 

Apr. 28: 2010 Annual E-Law Seminar

Posted by Molly DiBiancaOn April 22, 2009In: Seminars, Past

Email This Post | Print this Post

HR professionals, mark your calendars because we’ve picked the date for our 2010 Annual Employment Law Seminar!  The seminar will be held at the Chase Center on the Riverfront in Wilmington, Delaware.  The seminar will be an all-day event presented by attorneys from Young Conaway Stargatt & Taylor’s Employment Law Department.  Topics will be selected shortly after the first of the year and we’d love to hear what topics are at the top of your list.

Registration for this event will open much earlier than in previous years.  But, until then, check out these posts from the 2009 Employment Law Seminar:

Employment Law Does Pecha Kucha

Employment Law Seminar Update: COBRA Presentation Slides

Is there Really an Increased Amount of Age-Based Bias in the Workplace?

Posted by Molly DiBiancaOn April 20, 2009In: Age (ADEA)

Email This Post | Print this Post

Age-discrimination claims are on the rise.  The number of age-based charges of discrimination filed with the EEOC increased by 29% in 2008, according to an article in the Wall Street Journal, More Workers Cite Age Bias After Layoffs. The rise is larger than the overall increase in charge filings, which the EEOC reported as 15% over 2007.  This news won't come as much of a surprise to most employment law attorneys, though.  We've seen a steep increase in charge filings, on the state and federal levels, since the summer of 2008, with a seemingly record-high numbers of charge filed in the Delaware Department of Labor during the months of September and October.  But why have age claims, in particular, been the type subject to the sharpest increase? image

For one, there are more older workers in the workforce today than ever before.  We're living longer.  And we Traditionalists and Silents have resisted retirement, remaining active members of the workforce.  Statistically, if there are more people over 40, then it follows that there will be more age claims. 

Layoffs are another contributing factor. When layoffs happen, employees with the highest salaries are common targets.  And salary level is often commensurate with years of service.  And, as you may have guessed by now, years of service with a particular employer is often commensurate with years of total employment.

So if these factors are by-products of modern reality, can there really be more age bias in the workplace?  As this unprecedented number of claimants take their claims through the charge process and are released from the administrative process, it will only be a matter of time until we know whether the same staggering increases will be seen in the courts around the country. 

Delaware Employers,

Don't miss an opportunity to learn up-to-the-minute statistics on the current status of charges in the State of Delaware.  We're honored to have Julie Klein Cutler, Administrator for the Delaware Department of Labor's Office of Anti-Discrimination as a Keynote Speaker at Young Conaway's 2009 Annual Employment Law SeminarRegistration for this year's employment law seminar is open for only one more week.  If you haven't signed up already, you can register now to participate in this must-attend educational event.  We hope to see you there!

An Unusual Alternative to Layoffs: Vote-Offs

Posted by Molly DiBiancaOn April 17, 2009In: Reduction in Force (RIF)

Email This Post | Print this Post

What if your employer announced cut-backs but, instead of announcing who would be subject to layoffs, you were giving the task of making the choice.  How easily could you select which of your coworkers you would "vote off of the island"?   Talk about peer pressure. Talk about cubicle wars!

Would you vote for the employee who never carries his weight?  Or would you invoke the Survivor strategy of voting off the strongest competitors--even though it means you'd run the risk that you'd have to do more or that the business would suffer in the absence of its key performers?  image

Thanks to a  new reality show, viewers can live this decision process vicariously.  In each episode of "Someone's Gotta Go'," workers at a struggling business will choose who should get a salary cut or raise and who should be fired based on information about pay and past performance.

Maybe you'd better smile at the coworker in the neighboring cubicle a little more often these days.

Delaware employers can learn more about other, more humane, alternatives to layoffs at our annual Employment Law Seminar on April 29.  (Learn more about the employment-law seminar here and register for the seminar here).

Delaware Senator Carper & the EFCA

Posted by Molly DiBiancaOn April 17, 2009In: Union and Labor Issues

Email This Post | Print this Post

Delaware Senator Tom Carper (D) supports the rights of employees to freely unionize without retribution by their employer.  So it's not surprising that Carper was one of 40 co-sponsors of the Employee Free Choice Act (EFCA).  What may be surprising to some employers, both in and out of the First State, is Carper's reservations about the secret-ballot provision of the proposed bill.  He has stated that card-check elections "are not a reliable way to determine the true wishes of the employees in a workplace truly want to be represented by a union."  EFCA7

But don't let his reservations lead you to believe that he still won't support EFCA with his vote.  Carper is a co-sponsor, after all.  And he thinks the issue is a critical one to American workers.  At the very least, Senator Carper believes that EFCA deserves to come to the floor of the Senate for debate.

For more on the EFCA and its potential impact on employers in Delaware and across the country, be sure to register for our annual Employment Law Seminar, scheduled for April 29, 2009, when employment-law attorneys Barry M. Willoughby, Sheldon N. Sandler, and William W. Bowser, will host a panel discussion of the most important aspects of the bill.  You can also read more about EFCA in these prior posts:

Local Thoughts on the Employee Free Choice Act

Cappelli on the EFCA

Reverend Al Sharpton Speaks Out Against Employee Free Choice Act

DuPont Puts Flexible Downsizing to Work With Voluntary Unpaid Leave

Posted by Molly DiBiancaOn April 15, 2009In: Alternative Work Schedules, Reduction in Force (RIF)

Email This Post | Print this Post

Delaware's largest industrial employer is asking its salaried workers to take at least two weeks' unpaid leave.  75 of the company's senior leaders announced that they will take three weeks off without pay in response to the current market conditions.  There are a number of reasons to consider initiating this type of voluntary program instead of involuntary layoffs.  According to the article reported by the Wilmington News Journal:Dupont

Employers appear to be favoring voluntary programs, according to a February survey by Watson Wyatt consulting firm. Eleven percent of the 245 U.S.-based companies surveyed have instituted mandatory furloughs, while another 6 percent expect to launch a program in the next 12 months.  By comparison, 10 percent already have had voluntary furloughs and another 9 percent are expected to ask for voluntary furloughs within the next 12 months, the survey said.

A DuPont representative cited the current preference for flexible work schedules as one reason for its decision to initiate the voluntary program.  Another reason was that it made compliance with foreign laws easier than if an involuntary layoff program had been utilized. 

For those of us on the East Coast, where summer is king, now may be an ideal time to consider offering a flexible-downsizing initiative.  If your organization is trying to cut labor costs without having to layoff its valued employees, you may want to think about unpaid leave, voluntary furloughs, and reduced-schedule work week.  If your employees traditionally flock to the beach on Friday afternoons, they may jump at the chance to work a four-day week for 4/5 of their normal pay.  Even a temporary program for the summer months may be enough to enable your organization to stave off unwanted involuntary reductions.

I'll be conducting an audio conference on layoff alternatives in June for M. Lee Smith Publishers.  Be sure to check out the HR Hero website for lots of resources on employment-law and human-resource topics, including information about voluntary and mandatory furloughs.  Delaware employers can learn more about the legal considerations involved in layoffs at our annual Employment Law Seminar on April 29.  (Learn more about the employment-law seminar here and register for the seminar here).

Utah's Four-Day Work Week Scores Well

Posted by Molly DiBiancaOn April 13, 2009In: Alternative Work Schedules

Email This Post | Print this Post

Utah's four-day work week has been in place for nearly a year and the numbers are in. According to state officials, the energy savings have not materialized but there have been increases in employee productivity and reported worker satisfaction. State planners report the following benefits to the four-day work week:

  • Less overtime hours worked
  • Less leave taken
  • 70% satisfaction

NPR ran an article on the reduced-workweek program. There was no mention in the article about how the "increased productivity" was measured.  But it did include the opinion of one state employee who is not in the 70% of "happy workers." 

Nicki Lockheart is quoted in the article as saying about the alternative work schedule, "I hate it."  "A 10-hour day for me is like eternity," she says.

By the time the customer service agent gets home and eats dinner, she says, it's time for bed. By Friday, Lockhart is so stressed out, she gets headaches. 

Gov. Huntsman will decide whether the pilot program goes permanent later this summer. 

Previous Posts on the Four-Day Work Week:

  • The Pros and Cons of a 4-Day Workweek: Cons
  • Feds Take a Cue from the States and Consider the 4-Day Workweek
  • 35 Questions You Should Ask When Drafting a Compressed Work Week Policy
  • Positive Benefits of a Four-Day Work Week
  • 5 Steps Toward a More Flexible Workplace
  • Should a Four-Day Work Week Be Mandatory*
  • It's Saturday Today in Utah: 4 Day Work Week
  • Alternatives to the Four Day Work Week
  • New Research on Employer Perspectives on the Employment of People with Disabilities

    Posted by Molly DiBiancaOn April 10, 2009In: Disabilities (ADA)

    Email This Post | Print this Post

    Telework has lots of advantages for employers.  One such advantage that commonly is overlooked is that telework can promote employment opportunities for people with disabilities.  The Office of Disability Employment Policy (ODEP), conducted a study on this benefit in an effort to inform future policy decisions.  The study, published in late 2008, offers insight into the specific ways telework can be used to assist people with disabilities.  The purpose of the research was to evaluate the following types of telework:

    1.  Using telework as a return-to-work strategy specifically for people with disabilities receiving federal and state workers' compensation; and

    2.  Using telework as an alternative strategy for increasing competitive employment for disabled vets returning from tours of duty.

    The 2008 Survey of Employer Perspectives on the Employment of People with Disabilities was performed using data gathered from employers in 12 industry sectors of varying sizes. ODEP Logo

    Here are some of the key findings:

    Employing people with disabilities

    • 19.1% of employers report employing people with disabilities.
    • By size of employer:
      • 10.7% of small companies (with 5-14 people) report employing people with disabilities.
      • 22.6% of medium companies (with 15-249 people); and
      • 53.1% of large companies (250 and more people).

    Recruiting people with disabilities

    • 13.6% report that they actively recruit people with disabilities.
    • 33.8% of larger companies, compared with 7.8% of smaller companies, actively recruit people with disabilities.
    • In the private sector, service-producing industries are more likely to actively recruit than those in goods-producing industries.

    Hiring people with disabilities

    • 8.7% of companies report having hired people with disabilities in the past 12 months.
    • Large companies (32.6%) are more likely to have hired a person with disabilities in the past 12 months compared to medium-sized companies (8%).
    • The most often cited challenge in hiring a person with a disability is that the nature of the work is such that it cannot be performed by a person with a disability. (72.6% of all companies).
    • For small and mid-sized businesses, the cost and the belief that workers with disabilities lack the skills and experience necessary are the most often cited concerns. 
    • For large companies, the most cited concern is supervisory uncertainty about how to take disciplinary action.

    The full report is available at the ODEP's website.

    Related Posts and Resources:

    New Resources on the ADAAA

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

    Honoring Veterans By Supporting Their Reemployment Efforts

    How to Reward Gen Y Employees

    Posted by Molly DiBiancaOn April 10, 2009In: Generations: Boomers, Xers, and Millennials

    Email This Post | Print this Post

    Gen Y employees have a not-so-great reputation for being difficult to manage.  Here are some tips to remember when rewarding Gen Y workers when they're on the right track.young-professional-woman

    A common mistake made by well-intended employers involves how they reward employees.  The value of rewards must be judged by a different standard.  To be effective, the reward must be tailored to its recipient.  When Boomers were on the receiving end of the rewards, it was common for the reward to involve more work.  

    For example, a junior associate who does a stellar job on a client project could be rewarded with an invitation to attend a dinner with that client. That "reward" may have been well-received by a Boomer employee when he was climbing the ranks. But not so with Gen Y.  Gen Y is a generation of employees who value their personal time.  Being "asked" to attend a work-related event in addition to their normal work duties is not a reward. 

    Today, the new reward is balance.  Reward Gen Y employees by giving what they want--flexibility.  To celebrate a big success, allow the employee to set his own schedule for the week.  If you know that your hard-working Gen Y is a late riser, change his schedule from 9 - 5 to 10 - 6.  

    Related Posts:

    The Impact of the 2007 Baby Boom

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

    5 Things Employers Should Know about the Engagement of Gen Y Employees

    HR Glossary: Generations at Work

    Is Your Workplace Psychologically Healthy?

    Posted by Molly DiBiancaOn April 7, 2009In: Employee Engagement, Wellness, Health, and Safety

    Email This Post | Print this Post

    Bullying in the workplace has been on the employment radar for several years, now.  But what exactly bullying is, on the other hand, remains elusive and without a universal definition.  The American Psychological Association (APA), has provided a way to come close, though. image

    Each year, the APA sponsors the Psychologically Healthy Workplace Award program.  The award program recognizes employers who excel in five categories.  When a workplace can implement each of the five, it qualifies not just as a "good place to work," but as a psychologically healthy workplace.  

    The five types of workplace practices that contribute to a psychologically healthy work environment include: (1) work-life balance; (2) employee involvement; (3) employee growth and development; (4) health and safety; and (5) employee recognition.  These factors mirror those most commonly cited as the most important drivers for employee engagement, as well. 

    Employers interested in reducing health-care costs, improving quality and productivity, and positioning their organizations for recruitment and retention of the best employees can learn more at the APA's website.

    COBRA Subsidy Update

    Posted by Molly DiBiancaOn April 6, 2009In: Benefits

    Email This Post | Print this Post

    Department of Labor (DOL) has updated its COBRA Subsidy website.  Added to the resources already available are the IRS Notice 2009-27 and an expanded FAQ for employers with new Q&As on the model notices. image

    In case you missed it, here's a recap on of the major COBRA changes:

    The American Recovery and Reinvestment Act of 2009 (ARRA), provides for premium reductions and additional election opportunities for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit. The premium reduction applies to periods of health coverage beginning on or after February 17, 2009, and lasts for up to nine months for those eligible for COBRA during the period beginning September 1, 2008, and ending December 31, 2009, due to an involuntary termination of employment that occurred during that period. The TAA Health Coverage Improvement Act of 2009, enacted as part of ARRA, also made changes with regard to COBRA continuation coverage.

    You may also want to review our previous posts on this issue, beginning with Tim Snyder's Guidance for Employers on the New COBRA Subsidy. Delaware employers, of course, can learn first-hand about the changes at our Annual Employment Law Seminar, on April 29, 2009.

    Facebook and YouTube Make Employees More Productive. Really??

    Posted by Molly DiBiancaOn April 6, 2009In: Social Media in the Workplace

    Email This Post | Print this Post

    Employees who surf the web at work are more productive, according to a new survey.  Workers who use the Internet for personal reasons during working time are 9% more productive, says the study's author.  A new catchphrase has even been coined.  "Workplace Internet leisure browsing" is no longer known as "slacking."  Now it's being called "WILB."  And it's claimed to sharpen employees' concentration.  image

    Notably, the study was conducted on workers that spent 20% or less of their working time on the Internet, though, which makes a big difference.  If you're only on the web for a fraction of your working day, then you're not faced with the temptation after you've satisfied your craving for some WILB.  But, for those of us who spend the whole day staring at the computer screen, I think the temptation is much stronger--once you've jumped online for a little "leisure browsing" to limit the time spent surfing.  

    More productive or not, though, employees are getting their Facebook fix whether their employers like it or not.  The study reports that 70% of workers take a leisurely stroll down the information superhighway on a regular basis.  So, are they more productive because of their web habits?  Sorry, I just don't buy it. 

    Employer Alert: New I-9 Form

    Posted by Molly DiBiancaOn April 6, 2009In: Hiring, Immigration

    Email This Post | Print this Post

    The United States Immigration and Citizenship Service (USCIS), posted this item on Friday:

    USCIS Reminds all U.S. Employers of Requirements to Use Revised Form I-9, Employment Eligibility Verification

    The revised Form I-9, Employment Eligibility Verification (Rev. 02/02/09), goes into effect today for all U.S. employers. The revision date is printed on the lower right-hand corner of the form.

    The interim final rule, published December 17, 2008, in the Federal Register, revised the list of documents acceptable for the Employment Eligibility Verification (Form I-9) process. Employers may no longer use previous versions of the Form I-9.

    The revised list improves the security and effectiveness of the Form I-9 process. The list specifies that expired documents are no longer acceptable forms of identification or employment authorization. Allowing for expired documents makes it more difficult for employers to verify an employee’s identity and employment authorization and compromises the Form I-9 process.


    If you haven't already, employers should download the new I-9 form today for immediate use.

    Employers, Job Applicants, and Google

    Posted by Molly DiBiancaOn April 5, 2009In: Social Media in the Workplace

    Email This Post | Print this Post

    Seth Godin posted recently about the effect that the internet can have on your job search. He explained:

    A friend advertised on Craigslist for a housekeeper.

    Three interesting resumes came to the top. She googled each person’s name.

    The first search turned up a MySpace page. There was a picture of the applicant, drinking beer from a funnel. Under hobbies, the first entry was, “binge drinking.”

    The second search turned up a personal blog (a good one, actually). The most recent entry said something like, “I am applying for some menial jobs that are below me, and I’m annoyed by it. I’ll certainly quit the minute I sell a few paintings.”

    Employers are doing their homework before hiring new employees.  If you are an employer and you're not looking at a candidate's online profile, you should read some our previous posts (see the list, below), which discuss the reasons for and against screening job applicants on the web.

    There's another important, and less common, lesson here, as well.  Godin's story demonstrates how wide spread the effects can be of seemingly innocuous internet communications.  If you are posting pictures of yourself in a drunken stupor and you keep those pictures online while you're job hunting, it just may be that you aren't the ideal candidate. Let's just say it's a judgment issue.  If you don't know what your online profile looks like (or your company's profile, for that matter), then you need get online now.  Run a Google search.  Run a Yahoo search.  Search the blogs.  Then set up a Google Alert to make sure you find out if any new information about you enters the world-wide web.


    Don't know how to set up a Google Alert?  Watch our video: How to Use Google Alerts to Monitor Your Online Reputation.

    Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

    How to Conduct Online Background Searches With Google

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

    Top 10 Reasons Why Employers Should Screen Their Applicants

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

    Top 100 Employment Law Blogs

    Posted by Molly DiBiancaOn April 3, 2009In: Resources

    Email This Post | Print this Post

    Have an employment-law or workplace-law question?  You're just about guaranteed to find the answer here. Below are 100 of the best employment law blogs. Actually, 99 of them, with the 100th being a link to a prior post where I chose my 20 most favorite benefits-law blogs.  Alphabetical order. 3d businessmen at desk


    1. Affirmative Action Blog Spot
    2. Alaska Employment Law
    3. Boston Employment Lawyer Blog
    4. California Employment Law - Fight Harassment
    5. California Labor & Employment Law Blog
    6. California Labor and Employment Law
    7. California Workforce Resource Blog
    8. Canadian Employment Law
    9. Charles A. Krugel, Labor & Employment Law, HR Law
    10. Colorado Employment Law
    11. Compliance Training Blog (California)
    12. Connecticut Education Lawyer & Attorney
    13. Connecticut Employment Law Blog
    14. Daily Developments in EEO Law
    15. Delaware Business Litigation Report
    16. Delaware Employment Law Blog
    17. Discriminations
    18. Diversity Insight
    19. Doorey's Workplace Law Blog (Canada)
    20. Drama, Conflict, Despair & Victory at Work
    21. E-Legal Lawyer
    22. Employee Free Choice Act
    23. Employer Notes
    24. Employer's Law Blog
    25. Employer's Lawyer
    26. Employment & Labor Relations - Porter Wright
    27. Employment Advisory
    28. Employment Law @ Work Updater
    29. Employment Law Bits
    30. Employment Law Blog by Jill Pugh
    31. Employment Law Colorado
    32. Employment Privacy Law (Littler)
    33. Employment Rights Blog
    34. Fair Labor Standards Act Law
    35. Federal Sector FMLA Blog
    36. Florida Employment Law Blog
    37. Florida Special Needs Lawyer
    38. FMLA law
    39. George's Employment Blawg
    40. Georgia Employment Law Blog
    41. Greater Valley Forge HR Law Link
    42. Gruntled Employees
    43. HR Briefcase: Labor and Employment Law Blog
    44. HR Lawyer's Blog
    45. HR Legal News
    46. Human Rights in the Workplace
    47. Immigration Law for Employers
    48. Jottings By an Employer's Lawyer
    49. Juz the Fax
    50. Kentucky Employment Law Notes
    51. Labor & Employment Law Blog
    52. Labor & Employment Law Blog (Shepphard Mullin)
    53. Laconic Law Blog
    54. Lancaster Employment Law Blog (Pennsylvania)
    55. Lisa Law View
    56. Los Angeles Employment Lawyer Blog
    57. Manpower Employment Blawg
    58. Maryland Employment Law
    59. My Disability Blog
    60. National Whistleblower Legal Defense and Education Fund
    61. New Jersey Employment Lawyer & Attorney - Steinberg Law Offices
    62. New Jersey Fox Rothschild HIPPA
    63. New Jersey Fox Rothschild Wage and Hour
    64. New York Disability Lawyer & Attorney - Turley Redmond & Rosasco
    65. New York Employment Lawyer Blog
    66. New York Public Personnel Law
    67. Nolo's Employment Law Blog
    68. Northern Exposure (Canada)
    69. Northwest Labor and Employment
    70. OFFCP Blog Spot
    71. Ohio Employer's Law Blog
    72. Oregon Law and Employment Law
    73. Pennsylvania Employment Law Blog
    74. Pennsylvania Family Medical Leave Act
    75. Pennsylvania Labor & Employment
    76. Privacy (Proskauer Rose)
    77. Quirky Employment Law Questions
    78. Quitamhelp
    79. RFID Lawyer & Attorney
    80. Rush on Business (Iowa)
    81. Storm's California Employment Law
    82. Strategic HR Lawyer
    83. Suits in the Workplace
    84. Texas Non-Compete Law Blog
    85. Thoughts from a Management Lawyer
    86. Trading Secrets
    87. Transgender Workplace Diversity
    88. Virginia Non-Competes
    89. Wage & Hour - Development & Highlights
    90. Wage and Hour Lawyer & Attorney - Yezbak Law Offices
    91. Wage Law: California Wage & Hour Law Weblog
    92. Washington Labor, Employment & Employee Benefits Law Blog
    93. What's New in Employment Law?
    94. Whistleblower Law Blog
    95. Whistleblower Lawyer Blog
    96. Word on Employment Law
    97. Workplace Privacy Counsel
    98. Workplace Prof Blog
    99. WorkplaceHorizons
    100. Top 20 Employee Benefits Blogs

    U.S. Supreme Court Administers Coup de Gras to Alexander v. Gardner-Denver. . . Or Does It?

    Posted by Sheldon N. SandlerOn April 1, 2009In: U.S. Supreme Court Decisions, Union and Labor Issues

    Email This Post | Print this Post

    Employers have another U.S. Supreme Court decision to contend with, 14 Penn Plaza LLC v. Pyett.   In a 5-4 decision written by Justice Thomas, the Supreme Court today held that, at least in some circumstances, its 35-year old decision in Alexander v. Gardner-Denver Co. does not prevent a unionized employer from forcing an employee belonging to the bargaining unit to arbitrate his age discrimination claim rather than pursuing it through an ADEA lawsuit, where the union entered into a collective bargaining agreement that included a clear and express provision prohibiting discrimination.  Depending on the prism through which one views the decision, it is either a giant step in overruling Gardner-Denver or a very narrow ruling that depends entirely on the specific facts and the language contained in the CBA.

    Justice Thomas’ opinion makes a distinction between substantive rights and the forum in which those rights are pursued, and holds that allowing an age discrimination claim to proceed in an arbitral forum rather than in court does not affect the individual’s substantive right to be free from age discrimination. “The right to a judicial forum is not the nonwaivable ‘substantive right’ protected by the ADEA.” Since that is now the law of the land, would the Court also uphold individual employment agreements that contain an explicit waiver of the right to the judicial forum? One suspects that the current majority would see no difference, since the majority opinion states that “[N]othing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative.”

    Such individual waiver agreements have had a checkered history, but may gain new life as a result of the Pyett decision. No doubt the dissenters would say that such an agreement, signed by the individual in order to obtain employment, is a contract of adhesion. But for the moment, it seems likely that any clear and unmistakable waiver of the right to pursue a discrimination claim in court will be upheld. As the dissent points out in what may be nothing more than a bit of wishful thinking, the majority left itself some wiggle room and the decision “may have little effect” since the court took pains to point out that it was not deciding whether a CBA’s waiver of a judicial forum is enforceable when the union has exclusive control over access to and presentation of employees’ claims in arbitration. So the door remains open a crack for unionized employees to continue to file Title VII, ADEA and ADA lawsuits. Whether Congress will react to this decision with another Ledbetter Act remains to be seen. Unions may be unwilling to make it an issue, since the decision increases the importance of the union’s role.

    Report Says Department of Labor's Enforcement of Wage Claims is Failing

    Posted by Molly DiBiancaOn April 1, 2009In: Fair Labor Standards Act (FLSA)

    Email This Post | Print this Post

    Wage-and-hour lawsuits may be the worst feared by many employers, and for good reason. If dollar sign 3d successful, an employee who brings a wage claim is entitled to double damages and an award of   his attorney’s fees and costs. A claim for $1,000 of unpaid overtime could translate to $2,000 in damages and, if an attorney was involved, several times that amount for fees and costs.

    Over the past few years, there has been an explosion of wage-and-hour class actions, as well. Financial powerhouses such as Smith Barney were hit with damages in the tens of millions for collective claims brought by employees who had been improperly classified as exempt and were due unpaid overtime.

    Even well-intended employers aren’t necessarily safe from suit. In many industries, standard wage practices are unlawful but, because it’s been the way of business for so long, many employers may not know of the error until it’s too late. And employers who do audit their wage-payment practices may be more confused than ever after trying to make sense of the very complicated Fair Labor Standards Act (FLSA). (Review the FLSA courses from our HR Summer School to see just how well you know the ins and outs of this complex statute.)

    gao-seal It doesn’t look like this grim picture will be improving any time soon. A report from the Government Accountability Office (GAO), released this week, claims that the Department of Labor (DOL), is failing miserably with its enforcement duties. The DOL’s Wage & Hour Division (WHD), is charged with enforcing minimum wage, overtime, child labor, and other similar laws. Employees who believe they’ve not been properly compensated can file a claim with the WHD, which will investigate it on the employee’s behalf. If the WHD determines that the employee’s claim is valid, it has authority to seek resolution for the employee or to refer the case for suit.

    The GAO’s report states that the WHD is miserably understaffed, which has resulted in investigations that drag out for months. Other claims are simply dropped when the investigator is unable to reach the employer.