August 2009 Archives

What’s the Shelf Life of a Legal Blog?

Posted by Molly DiBiancaOn August 31, 2009In: Social Media in the Workplace

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There is much hype about the power of social media. A quick search of the Internet will generate countless links to countless websites where self-named social-media gurus profess the benefits of engaging in various Web 2.0 media, such as blogs and microblogs like Twitter.  Building business, getting referrals, finding new clients, and getting positive publicity are all possibilities, so they say. metaphor blog

But an article on ABA Journal questions the value of legal blogs at all.  One blogger conducted an "unscientific survey" and concluded that legal blogs are very short lived.  Several of the blogs he reviewed had stopped posting after just a few months. Why the sudden death for so many of my potential blogging peers?  Too much work, too little return, says the article.

Have You Thanked Your Team Members Today?

Posted by Molly DiBiancaOn August 31, 2009In: Employee Engagement

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I recently read The Carrot Principle, an absolutely fantastic book about motivating employees through reward and recognition. It was such an incredible book that I immediately bought five more copies, which I sent to some of my clients who are particularly in tune with the wonders of an engaged workforce.  The recently published second edition of The Carrot Principle includes a wealth of research that supports what I know to be true:  Happy employees are the key to a successful organization.  And happy employees are those who receive consistent recognition for the work they do. thank you 3d red bubbles

If you are a manager who is worried that recognition will create an "entitled" workforce, whose demands increase the more recognition they receive, read this book. Your worries will be disproved.

If you are a manager who does not have a formal system for recognizing and rewarding your direct reports but you fundamentally believe that recognition is valuable, read this book.  You will learn why you need a real system to ensure recognition is done effectively. 

If you are a manager who already has a formal system in place for recognition and reward, buy this book and send it to your manager, the President, or CEO of your organization.  Help them learn why recognition must be in place throughout the company.

And, if you're not a manager, read this book. Everyone can make a difference by showing gratitude to others every day. Gratitude is a grass-roots movement and it takes just one person to start an engagement revolution.

Mandatory E-Verify For Federal Contractors About To Begin

Posted by Teresa A. CheekOn August 31, 2009In: E-Verify

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The start date for the mandatory E-Verify program for federal contractors and subcontractors is now set for September 8, 2009. Further postponements are not expected. The U.S. Citizenship and Immigration Services has posted a Frequently Asked Questions page to help contractors understand the new requirements, and I highly recommend that all employers with federal contracts or subcontracts read it. All employers are permitted to participate in E-Verify, but federal contractors and subcontractors who do not comply risk debarment (loss of their ability to obtain federal contracts and subcontracts).

Related Posts:

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

News on E-Verify for Federal Contractors

Federal Contractor E-Verify Rule Is Final!

Attention Government Contractors!! You Are Being Ordered to Use E-Verify!

Editing Is Writing

Posted by Molly DiBiancaOn August 26, 2009In: Resources

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Yesterday, I posted my thoughts on typos in cover letters and resumes.  Although I am in the camp of thinkers who believe that resume mistakes are big red flags, I also believe that we are keepers of our own destinies. So, instead of complaining about the lack of proofreading and editing skills, I’ll point you to a great article on this very same topic.  Lisa A. Mazzie has an outstanding article, titled, Be Wise: Revise, posted at the State Bar of Wisconsin’s Wisconsin Lawyer.

The article includes a Sample Revision Checklist,which is on the simple side but an excellent way to make sure your writing hasn’t lost its focus—especially as that filing deadline approaches.  The checklist is a great reference for new associates starting this fall. 

[H/T to Legal Writing Prof Blog]

And if you really want to improve your writing skills, the blogosphere contains a jackpot of resources. Start with our list of The Top 30 Blogs on Writing.

Does a Typo in Your Cover Letter Kill Your Chance at a Job?

Posted by Molly DiBiancaOn August 26, 2009In: Hiring

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Legal Writing Prof Blog says that it may and it may not. I agree in theory.  In reality, though, I must respectfully disagree.  The answer to the question posed in the title is "Yes." 

I've seen it happen too many times to count.  A candidate makes it past the initial screening process but is eliminated during the first-round interviews, not because of anything that goes on in the actual interview.  Instead, the hiring manager spots a typo in the candidate's cover letter or resume and makes the decision not to hire her before the interview even begins. pencils

Do I agree with this method of elimination?  Well, it depends.  If the candidate pool is entry-level college graduates, I tend to be a lot more forgiving. My experience has been that undergraduate students and recent graduates have not been taught the make-or-break nature of proofreading.  As a result, I tend not to make an elimination decision based on a single typo.

Now, when it comes to law students, it's a different story.  I don't expect law students to have perfect proofreading skills. But, what I do expect, is for them to take advantage of the resources available to them.  Law schools provide any number of resources to their students for this purpose, including career-center services and even resume-review services. My alma matter has a whole day devoted to resume reviews, when students can stop in to have their resume reviewed by practicing lawyers and professors alike.  I've been asked by a number of job-seeking students to critique their resumes.  In short, a resourceful student with the foresight to plan ahead and the initiative to be creative enough to find a sufficiently broad pool of potential reviewers, will not have a single typo in any document they provide to a potential employer.*

I also must take issue with the statement that a student with an outrageously good resume can escape the negative effect of a flawed resume. If a resume is brimming with very prestigious credentials but contains a typo, the typo doesn't get overlooked.  Instead, the overlooked mistake indicates that the candidate, who otherwise appears brilliantly qualified, must not be interested enough in the position to put those qualifications to work. A mistake by someone who doesn't know any better is, to me, less of a turn off than carelessness by someone who does.  Carelessness is a sign that the candidate must not want the job, after all. 

Research Puts 5-Year Expiration Date on Criminal Records Used for Background Checks

Posted by Molly DiBiancaOn August 24, 2009In: Background Checks

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Employers who conduct background checks on candidates must be careful to comply with a variety of governing laws.  A particularly hot topic in this area is criminal-background checks. Many (if not most) mid- and large-sized businesses in the U.S. are performing background checks, including criminal-history reports, on at least some job candidates.  But criminal histories can be complicated.  The EEOC has quite a bit to say about what you do with the information you receive in response to these requests.  (See How Considering a Candidate's Arrest Records Could Land You In EEOC Jail; Potential Delaware Judge's Criminal Record Raises Questions for State Senate).green alarm clock

One of the EEOC's concerns is the length of time that has passed since the crime occurred and the sentence imposed. Generally, employers should not consider a criminal histories that are more than 7 years old.  There are, of course, exceptions to this rule. As far as I'm aware, the EEOC's 7-year rule is not tied to empirical data that supports seven as the magic number. 

But a recent study by Carnegie Mellon provides the science that may be key to answering the question, How long does an individual have to be "clean" before he can be considered "redeemed" for employment purposes. According to the study, 5 years.  The study estimates that, after five years without a run-in with the law, an ex-convict is no more likely to commit another crime than other citizens of the same age.  Most committed new crimes within the first few years after their arrest, perhaps adding legitimacy to the use of criminal records in the first place.  But only a small number of those studied were re-arrested after that 5-year mark.

Many states already have legal limits on the use of criminal histories by employers. Some states prohibit their use altogether. Others require the employer to disclose their request to the candidate prior to receiving the records.  And some impose expiration dates--just in case the EEOC Guidance isn't persuasive enough.  This study may encourage other states to put limits on the length of time that a criminal history can be considered for the purposes of hiring decisions.

Sept. 18: Caregiver Discrimination Breakfast Briefing

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

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EEOC’s “Best Practices” on Caregiver-Responsibilities, issued in April 2009, presents an excellent opportunity to discuss the topic of family-responsibilities discrimination (FRD).  Adria B. Martinelli will discuss the impact of the new guidance at our next Breakfast Briefing, on September 18.  Adria will discuss the subtleties of this evolving area of the law. 

Attendees will learn:

  • Why the EEOC issued the Caregiver Discrimination Guidance
  • When or how unlawful disparate treatment of caregivers can occur
  • How you can recognize bias in your own workplace
  • How you can structure policies and train managers to avoid claims and protect your company


As always, there is no cost to attend our Breakfast Seminar.  However, conference space is limited and therefore, we suggest that you register as soon as possible.

Two Ways to Register:

    1.  You may click here to register by email.  Be sure to include "Breakfast Seminar" in the subject line and your name and contact information in the email text, OR

    2.  You may telephone Felicia at 302.571.5718. 


    An email containing driving directions and parking options will be sent to all registrants closer to the event.

    Please mark your calendars and join us for our last Breakfast Seminar of 2009 on Friday, November 13, 2009.

    As always, information regarding employment law issues is available on the Delaware Employment Law Blog.  Moreover, two of our employment attorneys, Molly DiBianca and William Bowser, are Tweeting about current employment topics. They can be followed: @MollyDiBi  and  @WBowser.

What Irks Your Employees? Do You Really Want to Know?

Posted by Molly DiBiancaOn August 21, 2009In: Jerks at Work, Just for Fun

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When managers were asked about the strangest employee complaints they'd ever received, they had a lot to say. asked this question and got some very strange results. Some of the answers made me laugh outside.  And not just because the complaints were so weird, which they are, but also because some of the weirdest ones I'd actually encountered in my practice. Here are a few of employee complaints that I found the most entertaining with my commentary following:3d devil (cynic)

  • Employee has big hair . . . umm, did this person spend the '80s locked in an office-supply cabinet?
  • Employee eats all the good cookies . . . Unforgiveable!
  • Employee is so polite, it's infuriating. . . there's nothing worse, is there?
  • Employee suspected co-worker is a pimp. . . . and? what's the complaint part?
  • Employee is trying to poison me . . . a legitimate complaint, certainly (or just delusional)
  • Employee's body is magnetic and keeps de-activating my magnetic access card.
  • Employee is personally responsible for a federally-mandated tax increase. . . .I bet she's really, really unpopular
  • Employee only wears slippers or socks at work. . . ok, I can't deny it, this would bother me
  • Employee breathes too loudly. . . .wow! talk about unworkable conditions!
  • Employee has bells on her shoes and it's not the holidays. . . .scary, scary, scary
  • Employee spends too much time caring for stray cats around the building. . . seen it, never want to see it again


See these related posts for a little more office humor:

10 Best Excuses for Being Late to Work

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

10 Worst Employees

Oct. 8: HR and Social Media Virtual Summit

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

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p>HR professionals, how do you use new social media tools?  If you said, "I'm not," you're missing out on a potentially revolutionary HR management resource.  I am very excited to be participating in an upcoming seminar that will be teaching HR pros exactly what these tools are and showing you how to put them to use.  HR's Social Media Virtual Summit will explain:3d man providing informaiton

  • How to use social-networking sites to target the right job candidates with the right credentials;
  • How online videos generate excitement about your company and improve your on-boarding and retention efforts;
  • How to avoid legal risks resulting from employees' posts on your company-run blog or social-networking site; and
  • How to turn Twitter into a quick, effective micro-training tool.

Not only am I excited about the content but I'm also looking forward to the way in which the seminar will be presented. This all-day conference is being presented live online.  My co-presenters and I will be live in Nashville, TN, where we'll be presenting to attendees via live video stream on the internet. So participants can stay home, saving the time and expense of travel, and watch the entire day-long seminar from their office or conference room.  This is such a neat format and I can't wait to put it to work!  Just think, you can earn 5.5 hours of recertification credit in a single day without leaving home.

I'll be presenting with a great line-up of faculty, including:

  • Jerry Stevenson, director of social media and knowledge management in the human resources technology practice at Buck Consultants, an ACS company;
  • James D. Lynch is Vice President of Employee Communications at the American Express Company, where he manages all internal communications for 22,000 employees worldwide.

You can register and find out more about the summit at the HR Hero website, but here's a preview of the agenda:

  • Locate the right talent using social media
  • Legal trouble spots to avoid when using social media for recruitment
  • Take employee productivity and communication to new heights with social media
  • Energize workplace learning using social media tools
  • Social media policies that protect your organization from lawsuits
  • Developing an effective HR social-media strategy
  • Live Q&A with the faculty (via e-mail and Twitter!)

Construction Industry Beware: The Delaware Workplace Fraud Act Is Now Law

Posted by Sheldon N. SandlerOn August 19, 2009In: Independent Contractors

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Delaware has become the latest state to impose stiff penalties on construction industry employers who improperly classify employees as independent contractors to save on business costs and avoid paying appropriate taxes.

On July 31, 2009, Delaware Governor Jack Markell signed into law House Substitute No. 1 for House Bill No. 230, which imposes significant monetary and other penalties on "construction services" employers who willfully misclassify employees as "independent contractors."

The Delaware action follows similar recent enactments in Maryland and Colorado. Other states that have similar statutes include Illinois, Indiana, Minnesota, New Hampshire, New Jersey, Rhode Island, and Washington. 3d man holding up roof of house

The Delaware Department of Labor is responsible for accepting and investigating complaints under the new law and for its enforcement. The Act directs the DDOL to adopt regulations to "further explain" and provide examples of the prohibited conduct. The law presumes that an employer-employee relationship exists when work is performed for remuneration, and places the burden on the employer to convince the DDOL that the person is an independent contractor or otherwise exempt. If the DDOL initially determines that a violation has occurred, the employer has a right to an administrative appeal.

In addition to penalties of $1,000-$5,000 per misclassified employee, employers who fail to produce requested records can be issued a stop-work order by the DDOL and fined up to $500 per day for each day during which the requested records are not produced. An employer that retaliates against a person who made a complaint or provided information to the DDOL is subject to a penalty of no less than $5,000 up to $10,000 for each violation.

Also, persons who create or assist in creating legal entities to avoid detection of violations are subject to fines of up to $20,000. Employers found to have violated the Act twice in two years are subject to debarment from public contracts for up to five years and may be assessed an administrative penalty of $20,000 per improperly classified employee.

If the DDOL is notified of an alleged violation and has not taken action either by investigating or filing a lawsuit in 90 days, the "person alleging a violation" may file suit for declaratory relief and "actual damages," which is defined to include "treble damages for lost wages or benefits" as well as attorney's fees and costs. The law also requires employers to keep certain records pertaining to both employees and independent contractors and to retain those records for three years.


See these posts for information about similar proposals affecting employment laws and independent contractors:

Delaware General Assembly Piles on Construction Industry
Employee Misclassification Prevention Act Update
R.I.P: Several Bills Affecting Delaware Employers Killed by the Legislature
Construction-Industry Employers Are Targeted in Several States

What Can Employers Learn From Michael Vick and the Eagles?

Posted by William W. BowserOn August 14, 2009In: Jerks at Work

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Last night, the Philadelphia Eagles announced that they had signed quarterback Michael Vick to a two-year contract. Vick, of course, is returning to football after serving time for running a dog-fighting ring. The move by the Eagles, of course, is fraught with risk. Vick’s inhumane treatment of animals has made him one of the most controversial and hated figures in all of sports. This could lead to deteriorating team morale and loss of fan support. The addition of Vick also has the potential for great reward. He is an exceptional talent and his addition to the roster could be enough bring the Super Bowl victory that the City of Philadelphia craves.eagles logo

The signing of Vick, however, stands in stark contrast to the image that Coach Andy Reed and the Eagles have always tried to portray. They have always proclaimed “character” as the most important attribute in a player. This move makes their public pronouncements seem hollow. Is “character” less important when a special talent is involved? It seems so. This move, and the earlier signing of Terrell Owens, seems to signal that the team will relax it’s rules and it’s team culture for special athletes. In the words of Bill Murray, as Dr. Peter Venkman in Ghostbusters: “Actually, it’s more of a guideline than a rule…”

The Eagles would not be the first employer to abandon its culture for short-term gain. The case law is full of situations where workplace rules were ignored because the violator had too much power or made the company too much money. Think of the top selling salesman or rainmaking partner who is allowed to sexually harass. The money rolls in, but later roll out in the form of a large judgment or settlement.

The Eagles are a good football team, with or without Vick. And, I suppose a Super Bowl win will make the fans of Philadelphia forgive the Eagle’s willingness to sacrifice its team culture for the ultimate prize. In a championship-starved city, that’s understandable. Forgive, maybe. Forget, never.

Greetings from Asbury Park High School

Posted by Michael P. StaffordOn August 14, 2009In: Policies

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What is the appropriate discipline for an employees'  violation of a workplace cell-phone usage policy?

If you're New Jersey teacher Desley Getty, the answer is a reprimand and a $22,000 fine.  

Getty, a performing arts teacher at Asbury Park High School, picked an inopportune moment to send out her own greeting from Asbury Park in the form of a four-minute cell phone call to a suspended school superintendent.   

According to a news report describing the incident:

Court records show that Getty was covering for another teacher for a 45 minute period Jan. 10, 2008. Students had been assigned a test, but many had   apparently finished it during the first part of the 80-minute class. While she was at the desk, Getty placed a cell phone call to the district's suspended superintendent Antonio Lewis. While she was on the phone, two students danced in front of her desk and between her and the class. Another student played music on his cell phone and recorded the dancing with a digital camera, then posted an almost two minute edited version on YouTube.

The following school day after Getty became aware of the video, she went back into the classroom and began questioning students about who made it, records show. This action reportedly caused significant disruption in the class for about a half-hour, and when the administration learned of the matter, a reprimand was issued.

Like many employers, Asbury Park has a policy restricting staff cell phone usage in the workplace.  The policy permits "staff to make personal calls during their free period or lunch break outside the presence of students."  However, "[i]t specifically states that personal calls cannot be made while performing assigned school responsibilities except in emergency situations."

Although Getty will keep her job, she faces a stiff penalty for her actions.  Specifically, she is being reprimanded and will forfeit 120 days' salary as a penalty for the phone call and its repercussions.  The 120 days of salary adds up to a grand total of $22,000 .

According to news reports today, Getty will not appeal the ruling.

The decision not to terminate Getty is understandable, after all, it's hard to be a saint in high school.

Employers' Cash-for-Clunkers Program: When to Pay Severance to Terminated Employees

Posted by William W. BowserOn August 13, 2009In: Severance Agreements

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It happens everyday. Employees are let go for poor performance or lack of work. After the decision to terminate has been made, employers must consider whether to offer the employee additional pay or benefits in exchange for a release by the employee of all claims he or she may have against the employer.

A separation and release agreement is simply the contract used to document the understandings reached by the parties. In addition to the severance payment and release, the employer might agree to provide a neutral reference or outplacement services for the employee. The agreement might also contain an agreement by the employee avoid working for a competitor for a period of time.image

When should an employer consider a separation and release agreement? The following situations are typical:

· A termination in which the employee has already asserted a claim against the employer;

· A termination in which the employer is concerned that the employer will likely assert a claim;

· A termination in which the employer is willing to provide extra pay or benefits above what the employer would normally be entitled in exchange for a waiver of claims.

Although a waiver of claims is very desirable, employers should consider the possible consequences of asking for such a waiver, particularly if the severance payment is going to be small. By asking for the waiver, the employer may suggest to the employee – for the first time -- that he or she actually has a claim.

See also:

Top 10 Layoff Tips
Best Practices When Considering a Severance Agreement

Winning With Civility: The Delaware Way

Posted by Molly DiBiancaOn August 12, 2009In: Delaware Specific, Jerks at Work

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Delaware has lots of lawyers. In fact, the lawyer-to-citizen ratio is the third highest state in the country.  But, at the same time, we have a very small bar compared to other states.  It's a privilege to practice law in Delaware, as any Delaware lawyer will surely tell you.  The limited number of lawyers in our community precludes anonymity for any substantial length of time.  And, when you work with the same people regularly, it is in your best interest to conduct yourself with professionalism and civility at all times. You will be remembered, so it's better to be remembered for your good manners than for your abrasive style. map of delaware with sussex co in red

August, if you didn't know, is Win With Civility month.  So it's as good a time as ever to do a bit of self-analysis.  How would your colleagues and peers describe you if asked?  If the answer to that question is not totally positive, work to make a change starting today. 

If you're interested, the Harvard Law School Forum on Corporate Governance and Financial Regulation has a detailed article on "The Delaware Way" of practicing law, specifically focusing on our esteemed jurists.  It's a lengthy but worthwhile read. See Delaware's Art of Judging.

Delaware's Indian River School District Bans Cell Phones

Posted by Michael P. StaffordOn August 12, 2009In: Generations: Boomers, Xers, and Millennials, Social Media in the Workplace

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Delaware's Indian River School District has decided toSMS text marketing prohibit students from having cell phones, pagers, and other communication devices both at school and on school buses.   According to the Indian River's School Board President Charles Birely, the District took this step because, cell phones are a distraction  that "have no place in the classroom.” 

Many public school districts have policies that restrict the possession and use of cell phones and similar devices at school. Such policies, of course, may give rise to legal liability when school officials seize or search a student's phone.

If Only a New Backpack Would Do It

Posted by Adria B. MartinelliOn August 10, 2009In: Employee Engagement

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My 5-year old was expressing a bit of trepidation about starting kindergarten this fall. In preschool, the students decorated their own “totes,” which they were then required to use for transporting their belongings to and from school.

In preparation for her start in kindergarten this fall, together we selected a brand new backpack with matching lunchbox from L.L. Bean.  Original Junior Original Book Pack, Blue Flower-Patch Print, monogrammed, for those who must know. Employee Engagement and Motivation

All of the sudden, her tune changed. She insisted on sporting the new backpack to camp, even though I’d foolishly thought we could “save it” for school in September. She pronounced that no longer would she look like a 4-year old with her lame “tote bag.” She’d instead look like the mature 5-year-old, almost-kindergartner that she was.

If only this was all it took to reinvigorate employees and make them excited about the workplace. So what does it take, and are efforts by the employer in this regard still necessary and relevant in the current economy? The answer is: not as much as you may think, and YES. My colleague, Molly DiBianca, has written and presented much in this area. As we get ready to start a new school year, and students get a “fresh start” – now is a good time to review your workplace policies and see what you can do to get your employees excited, too.

Prior Posts on Employee Engagement

How Employees Can Boost the Bottom Line by Wasting Time*

Top 10 Ways Managers Can Engage Employees

How to Engage Employees--For Free

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

What Does It Take to Be "Best Place to Work"?

The Real Price of Pulling Perks and 5 Free Ways to Reward Employees

If Only a New Backpack Would Do It

Posted by Adria B. MartinelliOn August 10, 2009In:

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My 5-year old was expressing a bit of trepidation about starting kindergarten this fall. In preschool, the students decorated their own “totes,” which they were then required to use for transporting their belongings to and from school.

In preparation for her start in kindergarten this fall, together we selected a brand new backpack with matching lunchbox from L.L. Bean.  Original Book Pack, Blue Flower-Patch Print, monogrammed, for those who must know. Employee Engagement and Motivation

All of the sudden, her tune changed. She insisted on sporting the new backpack to camp, even though I’d foolishly thought we could “save it” for school in September. She pronounced that no longer would she look like a 4-year old with her lame “tote bag.” She’d instead look like the mature 5-year-old, almost-kindergartner that she was.

If only this was all it took to reinvigorate employees and make them excited about the workplace. So what does it take, and are efforts by the employer in this regard still necessary and relevant in the current economy? The answer is: not as much as you may think, and YES. My colleague, Molly DiBianca, has written and presented much in this area. As we get ready to start a new school year, and students get a “fresh start” – now is a good time to review your workplace policies and see what you can do to get your employees excited, too.

Prior Posts on Employee Engagement

How Employees Can Boost the Bottom Line by Wasting Time*

Top 10 Ways Managers Can Engage Employees

How to Engage Employees--For Free

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

What Does It Take to Be "Best Place to Work"?

The Real Price of Pulling Perks and 5 Free Ways to Reward Employees

Dress Codes, Harvard Style

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

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Employers have long hated the summer months for the dress-code disasters that inevitably accompany the change in seasons. The inability of people to make good fashion choices for their workplace attire has led to countless headaches for human resource professionals and managers everywhere and, in many cases, has been cited as a reason to not make the switch to a casual dress code.  Dress Codes from the Ivy League

Just ask educators. Uniforms in public schools are more popular than ever. When everyone wears the same thing, social status becomes much harder to identify.

Harvard apparently has its own take on the "school uniform" idea.  It's set to release it's own clothing line, called "Harvard Yard."  And, according to Fashionista, the line isn't cheap--we'll have to wait and see how a $220 pair of pants impacts the wearer's perceived social status.

See other posts on dress codes:

Objection! Opposing Counsel Has Violated the Basic Rules of Fashion!
Has Employers' Belt-Tightening Led to Well-Heeled Workforce?
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

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

Facial Hair: Style Statement of the Unemployed

Honey, Does This Outfit Make Me Look Unethical?

NYT Says the Man-Short Is Headed to an Office Near You

"Are You My Lawyer or the Janitor?" The lawyer's dress-code pendulum swings back.

Deposition Exhibits: There Is a Better (Digital) Way

Posted by Molly DiBiancaOn August 7, 2009In: PDFs, Tech Tips

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Depositions are critical. Litigators know that an entire case can rise or fall because of testimony given by a deponent. The vital nature of depositions warrants a great deal of preparation in advance by the deposing attorney. In many cases, the documents shape the deposition questioning. It can require a great deal of attention to determine which documents will be used as exhibits.

Here's a quick picture of how my deposition exhibits used to be prepared. The potential exhibits are identified by the lawyer in advance and turned over to the paralegal. The paralegal then makes copies and prepares a separate file folder for each document. During the deposition, when ready to admit a particular document, the lawyer describes the document to the paralegal. The paralegal then begins to search through the bankers' box full of file folders. Once located, the copies are distributed around the table, one is marked by the court reporter, and the deposition continues.

I gave up that method because it seemed so disorganized and difficult. Plus, it required a paralegal spend quite a bit of time to get the documents ready, which meant that I had to know which ones I intended to use far in advance of the actual deposition. The system I currently use takes a fraction of the time to prepare, is far more organized, is easier to use during the deposition, and makes life much, much easier for me, for my paralegal, and for the court reporter.

Here's how it works.

First, I determine which documents I think I'll want to use. It's a low-commitment decision, though, as you'll see. I err on the side of more, rather than less, documents, so if I think I may want to use it, I add it to the "yes" pile.

Once I have a general sense of the documents I intend to use as exhibits, I group them into general categories, instead of admitting each document one at a time. Some documents may end up as a stand-alone exhibit. An employee handbook is an example of a document I'm more likely to move in as a single exhibit. But performance evaluations, for example, are documents I'm likely to group together, sorted chronologically, and call them just one exhibit. Once categorized, these groups of documents become my exhibits.

Of course, all of the documents are already scanned in and my review is usually on the computer instead of in paper, but if, for some reason, they're not yet in electronic form, they would get scanned in now. I assemble the exhibits (the groups of documents), pulling the pages or documents I want into a single PDF file--1 PDF for 1 exhibit.

Next, I add page numbers to the exhibits in Acrobat. To do this in Acrobat 9, just go to Document > Headers and Footers > Add. The Add Header and Footer dialog box opens.



Place your cursor in the box that matches where you want the page number to appear. If your documents are bates stamped on the bottom right, you may want to put the page number directly underneath that number or you may find it easier to put the page number in the middle of the page, keeping the two numbers separate.

So, let's say you want to put your page numbers in the middle of the footer area. Place your cursor in the box labeled Center Footer Text. (#1). Then choose the font type and size that you prefer. (#2-3). Click Insert Page Number. (#4).

I prefer to include the word "page" before the number, just so it's clear that the number is not otherwise part of the document. To do this, you could type the word page in the box in front of the page number but there is a better way. Click the link that says Page and date number format. (#5).

In the new window that appears, you'll see a drop-down menu of choices for how page numbers are formatted. Choose the one you prefer--in my case, I chose "Page 1" or "Page 1 of n"--and then click, Ok.



Back in the Header and Footer dialog box, there is one more option worth considering. Click the Appearance Options link. (#6). In the new window that appears, check the box next to Shrink document to avoid overwriting text and graphics. This ensures that your page number won't cover up the contents of the original document.



Ok, you're almost done. We're almost ready to add the page numbers. Instead of going through these steps for each exhibit, though, we're going to do all of them at once.

To add page numbers to more than one PDF at the same time, click the Apply to Multiple button in the bottom right corner of the dialog box. (#7). Then select Add Files from the drop-down button in the new window that opens and browse to your other exhibits to add them to the list. (To select more than one file at the same time, press the Ctrl key and choose as many documents as you need).


Once you have a list of all of your exhibits, click Ok.

The Output Options dialog box opens.


Here, you can decide how Acrobat should handle the newly numbered documents--whether they should be saved automatically, whether they should be saved with a name different than the original file, etc. This is just a matter of personal preference, so make your selections and click Ok.

Now all of your exhibits have page numbers, making the deposition much easier. You'll be able to say, "Please turn to page number 13 of Exhibit 2" and everyone can quickly and easily locate that page. This is especially important in my system because I'm grouping documents together, so the bates numbers do not run sequentially.

If you want to do it right, there's one more step to the process. Using the custom stamp created by guru Rick Borstein, you can add an exhibit stamp to each document with the name it would normally be given--in my case, the witness' name and the exhibit number, i.e., Smith 2.


You can learn how to install and apply the custom exhibit stamp at Rick's wonderfully informative blog, Acrobat for Legal Professionals.

When all of the exhibits have a stamp and page numbers, I have them copied and inserted into binders with numbered tabs. At the beginning of the deposition, I give the witness, his counsel, and the court reporter a copy, and keep a copy for myself and for my paralegal. We use this binder throughout the deposition and don't have to stop for the tedious document search or to have the court reporter mark each exhibit. It's not only a tremendous time saver, but it allows me to concentrate on the questioning instead of file folders and gives me a guaranteed way to know that I'll cover all of the documents I need to cover.

USCIS to Accept New H-2B Fiscal Year 2009 Petitions, Beginning Now

Posted by Molly DiBiancaOn August 6, 2009In: Immigration

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U.S. Citizenship and Immigration Services (USCIS), has announced that it will re-open the filing period for FY 2009 H-2B petitions:

Although on Jan. 7, 2009, USCIS announced it accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000, the Department of State received far fewer than expected requests for H-2B visas and as a result, has issued only 40,640 H-2B visas for fiscal year 2009 to date. This means that there are approximately 25,000 visas that may go unused, as they have not been granted. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.

The normal (non-premium processing) adjudication time frame for H-2B petitions is 60 days. USCIS will make visa numbers available to petitions in the order in which the petitions are filed. However, because H-2B petitions (Form I-129) for fiscal year 2009 visas must be received, evaluated, and adjudicated on or before the fiscal year 2009 deadline of Sept. 30, 2009, USCIS cannot guarantee approval of any H-2B petition on or before the Sept. 30, 2009 deadline. Employers therefore are encouraged to file as soon as possible and to request premium processing by filing a Form I-907 and submitting the $1000 premium processing fee, which will allow for expedited adjudication. See

To qualify for a fiscal year 2009 H-2B cap number, employers must submit the Form I-129 Petition for a Nonimmigrant Worker to USCIS with all required documents, including an approved Alien Employment Certification from the U.S. Department of Labor that is valid for the entire employment period stated on the petition. The petitioner must also indicate an employment start date before Oct. 1, 2009.

Petitions received on or after Oct. 1, 2009, and/or requesting a starting date on or after Oct. 1, 2009, will be considered towards the fiscal year 2010 H-2B cap and are subject to all eligibility requirements for fiscal year 2010 H-2B filings, including 8 CFR 214.2(h)(6)(iv)(D), which requires that the start date listed on the petition be the same as the starting date authorized on the temporary labor certification.

The H-2B program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs for which there is a shortage of available U.S. workers. Typically, H-2B workers fill labor needs in occupational areas such as education, construction, health care, landscaping, manufacturing, food service/processing, and resort/hospitality services.

More information about the H-2B visa program is available in the USCIS guide, How Do I Hire a Foreign National for Short-Term Employment in the United States (pdf). 

More Caregiver-Discrimination Resources

Posted by Molly DiBiancaOn August 6, 2009In: Family Responsibilities (FRD)

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After our Caregivers in the Workplace seminar, I posted some links for those of you interested in learning more about flexible workplace alternatives.   There also have been some requests for citations to cases discussed in the seminar.  Most of the cases discussed were from the EEOC Guidance, which Adria B. Martinelli strongly urged employers to review.  The examples discussed in the Guidance contain footnotes with reference the case from which facts were drawn.  In addition, Adria also discussed Chadwick v. Wellpoint, No. No. 08-1685 (1st Cir. Mar. 26, 2009) (appealed from D. Maine). 

If you missed the audio conference, you can purchase it on CD at the HR Hero website.

How Employees Can Boost the Bottom Line by Wasting Time*

Posted by Molly DiBiancaOn August 5, 2009In: Employee Engagement

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Ever wonder how many brilliant ideas go wasted inside your company?

Maybe you don't have to.

For years, Google has been providing engineers with "20 percent time," a policy that grants programmers 20 percent of their time to work on independent projects of their own creation. The policy has generated such successful programs as Google Suggest, Adsense for Content, and Orkut. Perhaps more importantly, it contributes to Google's ability to attract and retain the best and brightest.  flying ties

But what works for Google may not work for everyone. Some argue that Google's "20 percent time" operates as an extension of their company culture. The type A, driven programmers interested in working at Google aren't exactly your 9 to 5 types. "20 percent time," to them, often means evening and weekends working on the fun stuff.

However, just because your employees may not fit the Google mold doesn't mean that they don't have valuable ideas to contribute. I spent my former life as a manager in a 9 to 5 industrial environment. I never ceased to be amazed by how effectively my people could solve problems and make processes more efficient. All it took was me taking the time to get their input. More importantly, few things breed loyalty like making sure your employees know that they have something to contribute beyond their standard duties.

So, maybe you're not ready for "20 percent time." But, next time you've got a problem to solve, experiment with getting some input from the people who work in the problem everyday. You may be surprised by the solutions you never would have thought of.

You may want to review this interesting dialogue about the benefits and drawbacks of a program structured to fit the Google model

*This post was written by guest blogger, Thomas Williams, a summer associate in Young Conaway's 2009 Summer Associate Program.  Thanks, Thomas!

Resources for Research on Work-Life Balance & Flexible-Work Arrangements

Posted by Molly DiBiancaOn August 4, 2009In: Family Responsibilities (FRD), Flextime, Telecommuting, Women In (and Out of) the Workplace, Women, Wellness, & Work-Life Balance

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Thanks to everyone who attended the audio conference on Caregiver Discrimination, presented by Adria B. Martinelli and Margaret M. DiBianca.  As promised during the conference, we're posting some of the many resources that are available online where employers can locate specific information and research to use in pitching the idea of Flexible Workplace Arrangements.


Two of the Leading Work-Life Centers

Workplace Flexibility 2010, at the Georgetown University Law Center, has a virtual tremendous amount of helpful resources,including A Fact Sheet on Flexible Work Arrangements and Flexible Work Arrangements: The Overview Memo.

Another leader in the field of work-life balance is the Sloan Work and Family Institute.  Here, you'll find a treasure trove of detailed information about flexible work arrangements, including an extensive compilation of Workplace Flexibility Case Studies.



The U.S. Department of Labor (DOL), has a good webpage on the topic of flexible workplace initiatives, where it links to several other great resources, including:

Article: "Incidence of Flexible Work Schedules Increases"
A Bureau of Labor Statistics (BLS) Monthly Labor Review article stating that from 1991 to 1997, the percentage of full-time wage and salary workers with flexible work schedules on their principal job increased from 15.1 percent to 27.6 percent. baby wearing headset

Article: "Flexible Schedules and Shift Work: Replacing the '9-To-5' Workday?"
Article from BLS' Monthly Labor Review Online.

Article: "Over One Quarter of Full-time Workers Have Flexible Schedules"
More information on flexible schedules.

Article: "Flexible Work Schedules: What Are We Trading Off to Get Them?"
More information on flexible schedules.

Article: "Executives most likely to have flexible work hours"
More information on flexible schedules.

Article: "Workers with Longer Workweeks Often Earn More Per Hour"
Article published by the Bureau of Labor Statistics stating that the weekly earnings of workers who work an extended workweek (between 45 and 99 hours) earn at least 32% more money than those who work a standard workweek (between 35 and 44 hours).

Index of BLS Reports on Workers on Flexible and Shift Schedules
A report from the Bureau of Labor Statistics on the trend towards flexible work schedules.


10 More (Great) Resources

The Center for Companies that Care is a national, not-for-profit organization "dedicated to enhancing the well-being of employees and communities."

Center for Women's Business Research "is the go-to source on the trends, characteristics, achievements, and challenges of women business owners and their enterprises."

Center for Work-Life Policy (CWLP), "undertakes research and works with employers to design, promote, and implement workplace policies that increase productivity and enhance personal/family well-being. CWLP is committed to promoting policies that enable individuals to realize their full potential across the divides of gender, race and class."

Corporate Voices for Working Families is a "non-profit corporate membership organization created to bring the private sector voice into the public dialogue on issues affecting working families."

The MIT Workplace Center is part of the MIT Sloan School of Management

Parenting in the Workplace Institute's  mission is "to promote, educate, and provide resources for successful implementation of parenting in the workplace structures nationally and worldwide."

Rutgers Center for Women and Work, is part of the School of Management and Labor Relations, and addresses "women's advancement in the workplace and conducts cutting-edge research on successful public and workplace policies."

WFC Resources formerly Work & Family Connection) has been working since 1984 "to help employers create a workplace that's both supportive and effective."

When Work Works "is a nationwide initiative to highlight the importance of workforce effectiveness and workplace flexibility as strategies to enhance businesses' competitive advantage in the global economy and yield positive business results."

Winning Workplaces is a not-for-profit providing consulting, training and information to "help small and midsize organizations create great workplaces."


And, of course, Delaware Employment Law Blog has bunches of resources, too.

See Previous posts on Alternative-Work Schedules, Flextime Initiatives, Telecommuting, and other Work-Life Balance issues.

FAQ re: Furloughs and Other Reductions-in-Pay and Hours-Worked Issues

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

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Furloughs and other layoff alternatives have gotten quit a bit of press lately, largely because of the economy. Employers often want to know what the legal implications of these programs are before implementing them. The U.S. Department of Labor (DOL), Wage and Hour Division has issued a new FAQ addressing these questions.  (FAQ re: Furloughs and Other Reductions-in-Pay and Hours-Worked Issues). It's a good reference guide, which you should review if your organization is considering a flexible-downsizing initiative.  question marks.jpg

Here are two of the questions addressed that I see most frequently with clients:

Is it legal for an employer to reduce the wages or number of hours of an hourly employee?

In short, the answer is "yes."  But Delaware employers should remember that employees must be notified of any change in pay in writing.  And a reduction in the predetermined salary for an exempt employee may result in the loss of exempt status, so employers should treat that idea separately.

Can a salaried exempt employee volunteer to take time off due to lack of work?

The question of paying exempt employees for time off is one of the most difficult in the wage-and-hour realm.  If the time off is (1) totally voluntary; (2) for a full day; and (3) is taken for personal reasons, other than sickness or disability, salary deductions may be made for the missed work.  Here, the key is that the choice must be truly voluntary.

Click here for other posts on the Fair Labor Standards Act