June 2009 Archives

Stupid Criminals: Are We In the Pool or Mid-Robbery?

Posted by Molly DiBiancaOn June 29, 2009In: Just for Fun

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[via Legal Antics]

Marco. . .















. . . Polo

July 23: Pregnancy Discrimination Audioconference

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

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Adria B. Martinelli will present Pregnancy Discrimination Claims Flood EEOC: How to Counter New and Aggressive Enforcement on July 23, 2009.

Pregnancy discrimination lawsuits are on the rise and the courts are ruling against employers:

  • In the May 2009 AT&T v. Hulteen case, the court ruled that employees who took pregnancy leave before the effective date of the Pregnancy Discrimination Act should be eligible for the same retirement benefits as those who took leave after the law was enacted.
  • The Seventh Circuit Court recently recognized the applicability of the PDA to the "potential pregnancy" after an employee claimed she lost her job because she had taken time off for fertility treatment.
  • And now that the new ADA Amendments Act has gone into effect, the interplay between the ADA, PDA, and the recently-revised FMLA has further complicated compliance issues for employers.

Learn how to make sense of the overlapping complexities of the PDA, FMLA, and the ADA, and how to accommodate pregnant employees without risking discrimination claims, as well as these other critical and timely topics:

  • Key rulings made recently against employers regarding pregnancy discrimination claims, including the U.S. Supreme Court's
    interpretation of the PDA in AT&T v. Hulteen
  • How do you know when employees are protected under the PDA? (Hint, they’re not always pregnant.)
  • How the new ADA Amendments Act comes into play
  • New discrimination risks employers need to consider when training supervisors and managers
  • EEOC guidance on family rights discrimination
  • Practical advice for day-to-day issues involved with managing pregnant employees
  • The kind of accommodations that should and should NOT be made for pregnant workers

Register for this employment law seminar at HR Hero.com

How to Become an Employer of Last Resort: Require Applicants' Facebook Passwords

Posted by Molly DiBiancaOn June 28, 2009In: Social Media in the Workplace

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Potential employees will no longer be asked to submit their Facebook and MySpace passwords as part of a "background check," said a spokeswoman for Bozeman, MT. This about-face on its hiring policy came less than a week after news of the new policy ignited a firestorm of criticism.  The town initially defended its position--claiming that it had a duty to be as thorough as possible in investigating potential job applicants. As one may well imagine, the policy wasn't very popular.  (In fact, one poll reported that 98% of residents felt it was an invasion of privacy).

Without restating the obvious, this policy had a lot of serious problems. There's the possibility that the request would have constituted a violation of privacy under the First, Fourth, and Fifteenth Amendments--remember,this is a government employer.  logo_facebook

But the more immediate issue is the limitations this policy would impose on the potential applicant pool. Candidates who value personal privacy and who have a Facebook, MySpace, or similar account, likely wouldn't apply.  This means that that they would likely exclude almost all Gen Y and most Gen X candidates because this segment of the population places privacy at a premium and values their online networks.

And who would they get as applicants? Well, only individuals over 32, in the first instance.  And, of those, only individuals who would either lie and say they didn't have any online profile or individuals who have a "I-do-what-I'm-told-regardless" mentality--the same type of mentality that enabled Hitler to become the leader of an entire nation. And,don't forget that, by turning over their password to their Facebook account, the individual would be in violation of Facebook's terms of service--so you'd end up with a bunch of rule-breakers. Not to mention that turning over a personal password for anything to anyone is just a bad idea indicative of someone with poor judgment (who's to say that some rogue HR employee wouldn't commit some heinous act like blocking out the original owner or changing or deleting the individual's profile--Identity Theft 101 says this is a preventable problem).  Oh, and maybe some individuals who are just so desperate for employment of any kind that they'd be willing to forgo their personal autonomy--a characteristic certain to last for a very brief period, especially once employment had been secured. 

So, in all, they'd likely end up with an entire workforce of people who either can't or prefer not to think for themselves, have poor judgment, or who would be nearly impossible to retain. What a result.

In the end, the market would eliminate this job requirement--Bozeman would become an employer of last resort. But I'm glad to hear that public outcry stepped in and corrected it before the market had a chance to adapt.

See more posts on the role of Facebook, MySpace, and Twitter in the workplace.

Has Employers' Belt-Tightening Led to Well-Heeled Workforce?

Posted by Molly DiBiancaOn June 25, 2009In: Dress & Attire

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NPR aired a story claiming that employees are paying more attention to their wardrobe as a result of layoffs and belt-tightening.  Has workers' attire become more conservative and just better looking lately?  And, if so, is the appearance improvement possibly a tactic being used to prevent termination? image

If this idea is based in reality, doesn't it imply that employees believe that dressing better is just plain better?  So why do they settle for less-than-better unless they think their jobs are on the hook?  Maybe the ones who don't "dress better" (as in, "improved"), should be rewarded because they (a) always strive to "dress better" (i.e., look their best); or (b) have enough confidence in themselves, their fashion sense, and their employer.

There may be something to it.

See recent posts relating to workplace attire:

Firm Defines "Business Casual" (a/k/a the "Nobody Wants to See Your Chest Hair" Memo)

What Not to Wear to Work: More Style Rules for the Modern Worker

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


Delaware Set to Ban Discrimination Based on Sexual Orientation

Posted by Molly DiBiancaOn June 25, 2009In: Delaware Specific, Discrimination, Legislative Update

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Delaware employers should prepare to add another protected characteristic to their list.  Late last night, the Delaware General Assembly passed Senate Bill 121, which would prohibit discrimination based on sexual orientation. It passed the Senate after a three-hour debate.  Delaware seal

The bill is headed to Gov. Jack Markell for signature.  The Delaware News Journal reports that Rep. Pete Schwartkopf (D-14th Dist.), who helped push the bill through the House, has said that Markell is expected to sign.   

The bill had been introduced every year for the past decade without success.  Five of those bills had passed the House but stalled in Senate committees.  We reported on an earlier version of the bill, which passed the House in March but died in the Senate Executive Committee.  A full version of the bill is linked below.

Courtesy and Respect Get Tossed to the Side by Political Staffer

Posted by Molly DiBiancaOn June 21, 2009In: Jerks at Work

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Rude people--who needs 'em!?!  Not me.  My husband is a chef and restaurant-owner and regularly gets comments and complaints that, in my opinion, are totally insane.  (For example, "This venison tastes . . . . dead.").  Some customers will overreact to the most trivial issue--I've had a grown man scream (and I mean scream) at me because he didn't like his table.  I told him that I'd be glad to move his group to a different table but he continued to scream hysterically--totally undeterred.  The open demonstration of rage was shocking.  I'll probably never forget it. 

Politico has a remarkable story of unjustifiable rage.  It's a great story to start the week, putting things in perspective and reminding us to treat others with respect and courtesy.  The story is about a political staffer who lost control when she received an e-mail addressing her as "Liz" instead of "Elizabeth."  Despite the offending party's repeated apology, the offended staffer was relentless in her attack.  The exchange went on for 19 e-mails.  It's very . . . insightful. 

When you read the story, think of how terrible the exchange must have been for the "offender" and try extra hard to be extra nice even to those who try to push you to the brink.

Other posts about jerks at work:

Jerks at Work and on the Web

Rude Employees Are Bad for Business

Women Bullies In the Workplace

New Conclusions on the Potential Costs of Workplace Bullying

Women Who Bully Women at Work

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

Supreme Court Rules for Employers in Age-Discrimination Case

Posted by Molly DiBiancaOn June 21, 2009In: Age (ADEA), Purely Legal, U.S. Supreme Court Decisions

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The Supreme Court issued its opinion in Gross v. FBL Financial Services last week, holding that a plaintiff bringing an age-discrimination claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Title VII permits plaintiffs to prove that the employer had several motive.  So long as the plaintiff shows that at least one of the motives was discriminatory, he has met his burden to show cause.  The Supreme Court's ruing in Gross, on the other hand, makes clear that the ADEA does not provide for a mixed-motive analysis.

The decision will have positive implications for employers who find themselves defending against an age-discrimination claim.

3d Circuit Will Rule on Student Discipline Based on MySpace Posting

Posted by Molly DiBiancaOn June 20, 2009In: Social Media in the Workplace

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Facebook postings are powerful things.  We've seen them get their authors fired from their jobs, be used in legal proceedings, and, recently, land judges in hot water. The Third Circuit Court of Appeals, which is the federal appellate court for Delaware, Pennsylvania, New Jersey, and the Virgin Islands, is set to rule in a different type of social-networking legal matter.  The plaintiff in the case is a middle-school student in the Blue Mountain School district in Schuykill County, Pennsylvania.  She was suspended when she created a fake MySpace profile for her principal, using a fake name but his real photograph, claiming that he was a pedophile and sex addict.  The profile was riddled with sexual vulgarities. The student created the profile at home after school. myspace

At issue in the case is whether, and to what extent, the school can discipline students for out-of-school conduct that disrupts or otherwise affects the school and educational process. Federal appellate court judge, D. Michael Fisher, cautioned the school district about the possible impact the case could have if the court were to rule in its favor, saying, "Do we want our school districts to become Internet police?"

The question of how far a school can and should go outside the boundaries of the school yard is paralleled by the debate about employers' monitoring of employees' off-duty conduct.  How far is too far?  And, once you start, do you have a duty to continue to keep tabs of students' or employees' online affairs?  It's a question that is far from settled but front and center in this rapidly developing area of the law.

Recent related posts:

Job applicants required to submit Facebook passwords for background checks

More Stories from the Facebook Frontier

Ethical Implications of "Friend-ing" a Witness on Facebook

MySpace Post Results in Termination of Nursing Student

Job Candidates Made to Submit Facebook Pages for Background Checks

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

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Applicants with social networking profiles on sites like Facebook and MySpace had better do a bit of self-censorship if they hope to get a job with one city government in Montana.  internet computer monitor lock privacy monitoring

All applicants for employment in Bozeman City, Montana are asked to submit a list of all "current personal or business websites, web pages, or memberships on any Internet-based chat rooms, social clubs or forums, to include but not limited to:  Facebook, Google, Yahoo, YouTube.com, MySpace, etc."

Applicants are then asked to list the web site, their user name, and log-in information and their passwords

For those individuals who feel as if their privacy has been invaded by an employer who surfs the web for the "scoop" on potential employees, this must seem like an outrageous intrusion! If there was a balance between what employers should seek to learn about what candidates do in their off-duty time, that balance is all but evaporated for employees in Bozeman City. 

[via Boing Boing]

Want to know more about Facebook's increasing impact on the employment relationship?  See these prior posts:

More Stories from the Facebook Frontier
Ethical Implications of "Friend-ing" a Witness on Facebook

Employers, Job Applicants, and Google

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

MySpace Post Results in Termination of Nursing Student

Discoverability of Facebook Profiles

Eagles Employee Gets Benched for Comment on Facebook Page

Facebook and YouTube Make Employees More Productive. Really??

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

Twitter + Reporters + a Courtroom = A Whole Lot of Controversy
Fumo Found Guilty--No Thanks to Facebook

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

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

Facebook Makes Friends With the Ladies

Delaware Legislative Alert: Proposal Would Require Employees Be Given Leave to Attend School Functions

Posted by Adria B. MartinelliOn June 18, 2009In: Delaware Specific, Leaves of Absence, Legislative Update

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What do Delaware and Colorado employers have in common? If Delaware House Bill 231 is passed, both states will require employers to grant employees leave to attend school-related functions for their children. Unlike Colorado’s law, which applies only to employers with 50 or more employees, Delaware’s law would apply to all employers. In a nutshell, Delaware’s law would grant working parents 16 hours of unpaid leave per year to attend school-related events.

If passed, the law would require that all Delaware employers, regardless of size, permit employees to attend classroom activities, school meetings and extra-curricular school events related to the employee’s child if the meetings or classroom activities cannot be scheduled during non-work hours, up to 16 hours a year, per child. The time off can be taken in increments of up to 4 hours. The only consolation to small employers is that employers with ten or fewer employees working at one location could limit the number of employees who may take leave on any one day.

Any time off taken under the new law would be unpaid (like FMLA leave), but the employee could substitute any “available leave” such as vacation and personal days to be compensated for this time.

The only responsibility of the employee requesting such leave would be to provide at least 48 hours advance notice of the leave and make a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer. The employer can request written verification of the event.

Any employer who violates this section shall be subject to a civil penalty between $1,000 and $5,000 per violation.

One interesting question is whether sick leave would be considered “available leave.” “Available leave” is defined in the statute as “annual or vacation leave, personal leave, compensatory leave or other similar leave provided to an employee with pay by an employer.” Unlike the Colorado law, Delaware’s statute does not explicitly identify “sick leave” as leave that could be used for this purpose. One would expect employees who have paid sick leave to attempt to use this leave, prior to other types of accrued leave.

Although the leave is unpaid, it could potentially present a considerable burden on smaller employers. Under the statute, an employer with 11 employees, 5 of whom requested leave to attend the same school-related function, would be required to let them all attend. It makes more sense to limit the statute to larger employers, like the FMLA, and like Colorado did in its similar law.

We’ll keep you posted on the progress of this bill.

3d Circuit Decision on Who Is a "Supervisor" for the Purposes of Imputing Harassment Liability

Posted by Molly DiBiancaOn June 16, 2009In: Harassment, Harassment, Sexual

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Employers in Delaware, Pennsylvania, New Jersey, and Virgin Islands, who are within the jurisdiction of the Third Circuit Court of Appeals, have the benefit of a new decision from that court providing guidance on a key issue in harassment law.  The case, Huston v. Procter & Gamble Paper Products Corp., issued on June 8, is good news for employers and offers important precedent in a critical area of employment law. 

Some context . . .

When an employee files a sexual or other harassment claim involving allegations of harassment by a co-worker, the employer often invokes what is known as the Ellerth-Faragher defense.  To utilize this defense, the employer must show that it took reasonable steps to prevent harassment in the first place.  This is normally accomplished by showing that the organization had an anti-harassment policy, which was communicated to the employees.  (See my previous post for more information on what exactly constitutes an effective anti-harassment policy). 

If the employer can meet this burden, then the employer must demonstrate that it took reasonable steps to correct and mitigate the harassment.  Usually this means that the employee followed the steps outlined in the organization's anti-harassment by reporting the offensive conduct.  Next, it's up to the employer to act on the information that the employee has provided.  This requires the employer to follow the steps enumerated in its policy and to do so quickly.  At the end of the day, the employer must investigate the claim and take whatever steps necessary to cure any ongoing harassment.  And the employee must cooperate in the investigation and, within reason, accept whatever remedy the employer implements.

If the employer fails to promptly investigate or otherwise act once it knows or "has reason to know" of the allegations of harassment, the defense is not available.  The case often becomes one of "he-said, she-said" evidence and the employer will likely find it quite difficult to present an effective defense. 

Therefore, one of the most critical points is when the employee first makes its report.  If the employee tells only a friend, family member, or coworker, the employer is not deemed to have knowledge of the allegations and is not required to take any action.  If, however, the employer makes a complaint of harassment, formal or informal, to a member of management, including HR, the company is deemed to have knowledge of the allegations and its duty to act is triggered. 

In Huston, the 3d Circuit addressed the question of just who qualifies as a managerial employee sufficient for the purposes of imputing knowledge to the employer.  The employee-plaintiff, Huston, worked on a team of employees who operated large paper machines and claimed that the machine supervisors knew of the harassment but failed to take action in accordance with P&G's policy. She argued that, because "supervisors" had knowledge of the conduct, the organization also was imputed to have knowledge, triggering its duty to act.

The Third Circuit disagreed.  The court found that the machine supervisors did have some, limited supervisory functions but those functions were limited to  supervising work on the machines, which was insufficient to trigger liability for the employer.  Only two types of employees will be sufficient to impute knowledge of co-worker sexual harassment.  First, where the employee is "sufficiently senior" to the complainant or otherwise "in a position of administrative responsibility over employees under him, so that such knowledge is important to his general managerial duties.  Department or plant managers are examples of this first type of employee. 

Second, where the employee "is specifically employed to deal with sexual harassment" will be imputed to the company.  "Typically such an employee will be part of the employer's human resources, personnel, or employee relations group or department."  The court explained that just because an employee has "supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status [in this context].”  Instead, the court explained, “to the extent that such a supervisor does not have a mandate generally to regulate the workplace environment, that supervisor does not qualify as management level.”

More Stories from the Facebook Frontier

Posted by Molly DiBiancaOn June 15, 2009In: Social Media in the Workplace

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A Facebook exchange ex parte has led to the judicial reprimand of a North Carolina judge. The Greatest American Lawyer reports this somewhat shocking story about a judge who "friended" one of the lawyers in a case before him. The lawyer would post questions about the case and his strategy and the judge would respond.  The lawyer replied by posting the comment, "Wise judge."  It's hard to blame this memory lapse regarding the prohibition on ex parte contacts on youthful indiscretion.  

Facebook users too often seem not to understand the potential implications that their postings may have.  Many commentators, myself included, attribute this to youthful indiscretion.  Which may be why stories like this are so difficult to rationalize.

Another Way to Find What You (HR Pros) Want Online

Posted by Molly DiBiancaOn June 11, 2009In: Resources

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HR Superstar, John Ingham, (as in John Ingham's Strategic HCM Blog), has alerted his readers to another helpful search tool.  (In case you missed it, yesterday I posted about 3 new ways to search online).  And this tool is specific to Human Resource professionals.  As per his post, Halogen Software has a widget that enables users to search across not only Google and Bing, but also across a variety of HR blogs, as well.  First check out John's blog and then check out the new HR Search tool!

3 New Ways to Find What You Want Online

Posted by Molly DiBiancaOn June 10, 2009In: Resources

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Technology can help to make us more productive. I’m a big fan of technology, so long as it’s free, integrates easily into my current set up, and requires no training to use! All easy requests, right?

As it turns out, there are three new options that actually fit that bill. Each of them are new ways to search the Internet. If you haven’t given them a whirl, you should give them a try. After all, who couldn’t use the efficiency boost? Here’s a quick rundown:

The first on the list is a brand new search option. Microsoft has introduced its new search engine, Bing, which Microsoft hopes will be in real competition with Google.

Google introduced a new feature of its own--Google Squared, which is the second item on my list of three. Whereas Google Search returns search results in a linear list, Google Squared returns search results in a matrix designed for comparison. Unlike Microsoft’s new option, Google Squared isn’t a brand-new option, but it is a new twist on a classic.

The third new search option is my favorite. Spezify is a visual search engine that searches not only the Internet but also returns results from Twitter and social-networking sites, such as Facebook and LinkedIn. It even returns images. And results are displayed in small, colored text boxes. Additionally, it displays what it’s determined are “related words” (i.e., related to your search terms). Pictured below are the results from a search for “harassment training.” Don’t know what to search for? Try your name and see what comes up. You may be surprised—especially what images are returned!


Maybe It’s Not All Gloom and Doom for Work-Life Balance

Posted by Adria B. MartinelliOn June 10, 2009In: Women, Wellness, & Work-Life Balance

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Work-life balance and its place in the current economy is a familiar topic to this blog (see "The "Sandwiched Generation", Work-Life Balance Issues At Risk in the New Economy?, and Should Gen Y Abandon Any Hope for Work-Life Balance?).  Law 21, which describes itself as “Dispatches from a Legal Profession on the Brink” recently posted a well-written and thought-provoking blog on this topic, which concluded that “we’ll soon be closing the book on one of the legal profession’s most-work_life_balance_signused and least-understood phrases of the last decade: “work-life balance.””

Most commentators in this area seem to agree that—at least in the legal profession—any discussion or concern about Work-Life Balance is a thing of the past.  A past when the economy was good, attorneys were in great demand, and law firms competed for the best and brightest by offering whatever they could to attract them.  This included at least engaging in discussion of, the now-verboten Work-Life Balance topic.

Few would disagree that economy drives this discussion.  Law firms (or any employers, for that  matter) are never going to promote Work-Life Balance because of their generosity or genuine concern for the well-being of their employees. However, they will consider it when they believe it ultimately benefits their bottom line. In good economic times, some employers bought into the notion that promoting Work-Life Balance (or at least uttering the words during the hiring process) would make them competitive in recruiting the top candidates. And that retaining these qualified employees would also mean saving on the bottom line by not having to retrain new employees to replace those who might decide to leave the workplace as a result of inflexible work policies.

What is being overlooked in the current Gloom-And-Doom forecasts, however, is that “flexible” (or reduced) work-schedules can also benefit the employer’s bottom line in a very direct way. Typically, reduced or flexible schedule means reduced compensation.  In the legal world, reduced work-schedules means the attorney is “off,” or at least seriously derailed from, the partnership track. Nobody wants to share the partnership pie in these trying economic times for firms. The old model of law firms who desired associates willing to do whatever it takes, in exchange for partnership on a 7, 8, or 9-year track, is no longer such an appealing one.

At the same time that people are declaring the end of Work-Life Balance, law firms are delaying start dates for new associates, paying associates a portion of their salary to take a year off to spend time with their family or pursue non-profit endeavors, and some are even apparently considering reducing attorneys to four-day work-weeks.  While these employer-driven, sometimes mandatory reduced schedules with accompanying reduced pay is certainly not ideal for many, it beats the alternative (layoffs).  And in the end, it continues to redefine the “model” of the perfect lawyer.  When the economy begins to improve, I believe this rethinking of the old standard will help, not hurt, the Work-Life Balance cause.

Firm Defines "Business Casual" (a/k/a the "Nobody Wants to See Your Chest Hair" Memo)

Posted by Molly DiBiancaOn June 10, 2009In: Dress & Attire

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Women's attire has been a hot topic here this week.  (See Pantsuit I and Pantsuit II). And the subject of dress codes is only getting started--it is, after all, the start of the summer.  One law firm has taken the bull by the horns.  Curtis Mallet issued a memo to associates providing some very specific instructions on what the firm considers to be appropriate summer attire. According to law-firm-tabloid blog, Above the Law, the memo was not well received by associates. 

Oh, boo hiss to them.  dress-for-success

The memo is hilarious.  It's to the point and it leaves little room for doubt.  I think it's a model for excellence in the dress code category!!  Visit Above the Law for the full memo but here's a few highlights in the meantime:

By all means resist the urge to acquaint us with your chest hair. If you think it necessary to impress the ladies with your efforts at the gym over the winter, think again - we are not a particularly good demographic for that.

For the ladies, the situation is a bit more complicated, pitfalls abound and I need to be circumspect. In brief, save it for the clubs or the beach.

So, to the haters out there, I say this:  The memo is right, we don't want to see your chest hair!

Other, related posts:

What Not to Wear to Work: More Style Rules for the Modern Worker

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

Office Romance Survey (a/k/a HR Is Sex, Drugs, and Rock 'n Roll)

Posted by Molly DiBiancaOn June 9, 2009In: Policies

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Anti-nepotism policies are fairly common in the workplace, though their limits can vary widely.  For example, many employers permit spouses to work together, provided they are not in a direct supervisor-subordinate role.  Other employers focus not on curtailing romance at work but on the working relationship of any familial relations, such as parent and child.  How effective these policies are seems to remain an elusive statistic, though, especially due to the fact that office romances often begin and end without the knowledge of management. 

The Vault's recent survey on this topic included some very revealing statistics.  Here are a few of my favorites:

Have you ever been involved in an office romance?



Does the shaky economy make you want to take more romantic risks at the office, or less?



Have you ever dated your boss or someone you supervise?




Have you ever known a married co-worker to have an affair with someone at the office?


The Office Romance survey also provides statistics on office trysts, business-trip liaisons, and other salacious stories.  We always say, employment law is really all about sex, drugs, and rock 'n roll.  And this survey may just prove it!

The Pantsuit Pandemic Part II

Posted by Molly DiBiancaOn June 8, 2009In: Dress & Attire

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Whether women attorneys are guilty of poor fashion choices when it comes to courtroom attire was the topic of Part I of this post.  (See Are Women Attorneys Being Stricken by a Pantsuit Pandemic).  In this part, I propose what I believe is the "solution" to this problem.

What can and should be done about these fashion crimes?

There has been some suggestion that law schools should teach students about the dos and don'ts of fashion for their future career endeavors.  I have to giggle a little when I hear that idea.  Academia is going to be responsible for communicating fashion tips to the next generation?  Oh, come on now, I don't think there can be too many people who actually believe that this is a viable proposition. Even if schools were to outsource the subject and hire image consultants to teach a 1-credit class called "Appropriate Courtroom Attire," standards will still vary by some degree based on geography and the courts in which you practice.

At the risk of being laughed out of town for my inflated sense of positivity, I'll offer my suggestion to this serious problem.  Each state's bar association should draft a set of "Attire Guidelines," which would then be incorporated into the bar-admission process. 

In Delaware, bar candidates who have successfully based the bar exam cannot be sworn in until they complete a set of "Clerkship Requirements."  The requirements are what the bar association considers to be the absolute fundamentals of practicing in our State and the idea is that, after completing the requirements, no attorney will ever be totally lost when it comes to the operations of our court systems.  Candidates have to attend various types of hearings in the different state courts and participate in a variety of litigation and transactional activities.  For example, one of the requirements is that the candidate review the articles of incorporation for a Delaware-incorporated business.  Similarly, candidates could be required to attest that they've reviewed the "Attire Guidelines." 

I don't think it's impossible, really. The toughest part would likely be reaching consensus on the guidelines.  And even that can't be too difficult.  I mean, we're not trying to craft a treatise on the issue, just a set of the most basic rules for dressing as a professional.  For example, pick a hemline length and stick with it. Address the color issue--are red suits ok for women to wear to court or are all attorneys, regardless of gender, expected to wear dark colors when appearing before the court?  And are open-toe shoes permissible?  (No, no, no!  I implore you!)  I'd venture that consensus can be reached on these basic tenets. 

Once there is a set of rules in place, attorneys would have no excuse that they "didn't know any better."  Guidelines, standards, and rules are good things.  We need structure.  We're lawyers--it's our nature to come up with creative reasons why the standards don't apply to us.  If the standards are published to all, though, the leeway that comes with an unwritten rule disappears.  I think it could work. Really.

Are Women Attorneys Being Stricken by a Pantsuit Pandemic?

Posted by Molly DiBiancaOn June 7, 2009In: Dress & Attire

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The dress-code issue took front and center during a panel discussion of federal court judges from the Seventh Circuit. The judges raised the issue of what one jurist described as “the Ally McBeal look,” complaining that female attorneys dress inappropriately when appearing in court. The comment and ensuing discussion has sparked a debate across the blogosphere.

For me, the comment raises multiple questions. First, do women really dress as badly as the panelists described? Second, if women are making such horrible fashion choices, why are they doing so--ignorance or disregard?  Third, assuming the pantsuit pandemic is not limited to the Seventh Circuit, what's to be done about it?  image

I share my thoughts to the first two questions below and will share my solution to the problem in a subsequent post.  But, before turning to the questions, but feel compelled to first disclose where I stand on the fashion spectrum.  I fall somewhere on the "fashion forward" side of the line.  For example, my electric blue patent leather pumps usually get an eyebrow raise or two, as do my leopard-print calf-hair Lambertson Truex stilettos. I am a self-confessed shoe junkie.

Shoes aside, I definitely fall on the conservative side of the line, as well.  I guarantee that no judge would ever comment that my hemline is inappropriately high--in or out of court.  Never ever.  So I come from a position that women can dress in a way that reflects their individuality and that is perfectly current without compromising their attire-integrity.





Continue reading "Are Women Attorneys Being Stricken by a Pantsuit Pandemic?" »

Tip-Pooling Verdict Against Starbucks Is Overturned

Posted by Molly DiBiancaOn June 4, 2009In: Fair Labor Standards Act (FLSA)

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An appellate court has overturned a jury verdict awarded to a class of Starbucks baristas in a tip-pooling case  last year.  The wage-and-hour claim had alleged that the baristas were made to wrongfully share their tips with a shift supervisor.  The trial court had determined that California state law prohibited the supervisors from sharing the shift's tips, despite the fact that the supervisors performed normal Barista duties in addition to their supervisory duties.  image

The Court of Appeal found this determination to be in error, explaining:

The applicable statutes do not prohibit Starbucks from permitting shift supervisors to share in the proceeds placed in collective tip boxes. . . . There is no decisional or statutory authority prohibiting an employer from allowing a service employee to keep a portion of the collective tip, in proportion to the amount of hours worked, merely because the employee also has limited supervisory duties.

This decision is limited to California wage-and-hour law but has positive implications for all employers--especially those in the hospitality industry, who are most often the target of tip-pooling lawsuits.

Read the full court decision:  Chau v. Starbucks.  Or see these blogs for additional summaries:  Overtime Advisor; California Labor & Employment Law Blog; Shaw Valenza, LLP; San Francisco Employment Law Firm Blog.

Editor’s Note: A Moment for Reflection

Posted by Molly DiBiancaOn June 2, 2009In: Women, Wellness, & Work-Life Balance

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Regular readers of the Delaware Employment Law Blog may have noticed the lack of postings in the last few weeks. The inactivity was not a result of my being too busy with client work, personal obligations, or vacation (fancy the thought). Instead, I have not being posting because I was recovering from a nasty case of pneumonia. For a little more than a week, I was rendered powerless by the illness, which has given me an opportunity to stop and think.

Continue reading "Editor’s Note: A Moment for Reflection" »

Putting the Computer Fraud and Abuse Act to Use, TV Style

Posted by Molly DiBiancaOn June 2, 2009In: Privacy In the Workplace, Privacy Rights of Employees

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Larry Mendte’s ankle bracelet came off yesterday. Mendte completed his six-month house arrest and is free to live out the rest of his two-and-a-half-year probation outside the confines of his Main Line home. The house arrest and probation constitute the sentence he received after pleading guilty to intentionally accessing the private e-mail account of his former co-anchor, Alycia Lane.  image

Mendte was convicted under the Computer Fraud and Abuse Act (CFAA), which makes it unlawful to intentionally access a protected computer without authorization. In the last few years, employers have tried, with mixed results, to put this statute to work against employees who engage in cyber-sabotage.

In January 2009, for example, an employer filed suit under the CFAA against two former sales reps, alleging that the former employees had deleted information from their company laptops after resigning.[1] That case was dismissed, though, in a somewhat disappointing ruling from the District Court, which held that the intended purpose of the CFAA was limited to preventing and prosecuting computer hacking and did not extend to the misdeeds of former employees.

But in February 2009, another federal court declined to dismiss a claim under similar facts.[2] In that case, an employer sued former executives under the CFAA, alleging they’d e-mailed documents to their home computers when they were preparing to compete with the company.

So often, employers want to file a counter-claim in response to what they believe is a bogus suit filed for a former employee. The law rarely provides for this, though. For many employers and their legal counsel, the application of the CFAA to the wrongdoings of former employees is a developing area of the law with great potential.

[1] Lasco Foods, Inc. v. Hall & Shaw Sales, Marketing & Consulting, LLC, 600 F. Supp. 2d 1045 (E.D. Mo. 2009)

[2] Ervin & Ervin Smith Advertising v. Ervin, No. 8:08-459 (D. Neb. Feb. 3, 2009).

June 12: WARN Act CLE in New York

Posted by Molly DiBiancaOn June 2, 2009In: Seminars, Past

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Maribeth Minella will present on the WARN Act in a session during the New York State Bar Association's day-long seminar:  "Counseling the Corporate Client in Turbulent Times:  Employment Law for the General Practitioner and Corporate Counselor."  MMINE

The employment-law seminar is scheduled for June 12 at The New Yorker Hotel in New York City.  The program will provide basic-to-intermediate continuing legal education courses on how to conduct internal investigations, legislative updates, how to draft individual employment agreements, application of the WARN Act and state-level or "mini" WARN Acts, and other recent developments in the field of labor and employment law.  The program's content also will be presented in Albany, NY on June 3 (Employment Law Albany) and Rochester, NY on June 10 (Employment Law Rochester).