September 2009 Archives

Social Media Is Here to Stay: Time to Start that Workplace Policy

Posted by Molly DiBiancaOn September 29, 2009In: Social Media in the Workplace

Email This Post | Print this Post

As of mid-September, there are 300 million Facebook users worldwide. The announcement came just two months after the company reached 250 million users in July. For those of us not inclined to do the math, at the current rate, Facebook is growing to the tune of 25 million new users per month.

Faced with these statistics, it’s hard to deny the reality—social media is here to stay. So it makes sense that more and more employers are (finally) turning their attention to the many implications that sites like Facebook, LinkedIn, and Twitter can have on businesses. Taking a proactive approach makes obvious sense to many of us, especially considering some of the better known blunders that have made their way to the mainstream media.

Despite their good intentions, though, many employers have gotten stalled. They recognize the potential value and potential risks inherently associated with social-media technology. But when they sit down to put pen to paper, they can’t seem to get started. So, since the hardest part is figuring out where to begin, I’m going to provide a quick checklist of fundamentals. Think about these first and the policy will be far easier to create.

What Is the Purpose?

First, what is the purpose of the policy. Is your focus to prevent potential liability or are you more interested in harnessing the power of the web through the voice of your loyal employees?

What Technologies Are Covered?

Second, what technologies will your policy address? Do you have any internal social-networking sites or blogs? If so, will they be covered? Will different rules apply to employee posts on your internal wiki than to employee posts on a personal Facebook page?

In addition to purely internal and purely external sites, there is a third category to consider, as well—public content posted on behalf of the organization. This blog is an example. I am posting on my firm’s nickel but, with any luck, I’m posting in the hopes that someone from outside the firm actually reads it.

Decide which of the three will be addressed in your policy and then identify the specific technologies that will be covered. If the decision makers aren’t familiar with the technologies on a basic level, this is the time for some education in Web 2.0.

Who Is Covered by the Policy?

Third, who will be covered by the policy? All employees? Will some employees be subject to more expansive restrictions? For example, should employees in R & D be subject to different obligations than those in customer service? And what about managers and supervisors? They should be given a larger share of responsibility not only for their own online activities but also for communicating and enforcing the online presence of the members of their respective teams.

Recognizing the Top Small Workplaces

Posted by Molly DiBiancaOn September 28, 2009In: Employee Engagement

Email This Post | Print this Post

The WSJ today recognized the Top Small Workplaces in its third annual report featuring the best small employers in the country.  The fifteen winners, which were complied in partnership with Winning Workplaces, were selected based on their continued investment in their employees.  The winners were selected from nearly 630 nominations, pared down to 35 finalists. 

Congratulations to the 2009 Top Small Workplace winners:

  • Advanced Technology Institute, North Charleston, S.C.
  • Analytical Graphics Inc., Exton, Pa.
  • Anthony Wilder Design/Build Inc., Cabin John, Md. superhero cheesy
  • Bailard Inc., Foster City, Calif.
  • Barfield, Murphy, Shank & Smith PC, Birmingham, Ala.
  • Censeo Consulting Group, Washington, D.C.
  • Heavy Construction Systems Specialists Inc., Sugar Land, Texas
  • Mike’s Car Wash Inc., Indianapolis
  • Radio Flyer Inc., Chicago
  • Root Learning Inc., Sylvania, Ohio
  • Skyline Construction Inc., San Francisco
  • Steppenwolf Theatre Company, Chicago
  • The Railroad Associates Corporation, Hershey, Pa.
  • Tohono O’odham Nursing Care Authority, Sells, Ariz.
  • Woodmeister Master Builders Inc., Holden, Mass.
  • What can you do today to create the kind of workplace that engages employees?

    Women as Breadwinners

    Posted by Molly DiBiancaOn September 23, 2009In: Women In (and Out of) the Workplace, Women, Wellness, & Work-Life Balance

    Email This Post | Print this Post

    Unemployment is painful for anyone who wants to work but is unable to locate a suitable position.  With the increases in unemployment finally starting to lessen, the aftermath of layoffs has come into focus.  The manufacturing and construction industries were two of the hardest hit by the recession, suffering higher job losses than other industries.  Because these two industries employ disproportionately large numbers of males, men have suffered an equally disproportionate number of job losses. 

    Since December 2007, men were at the receiving end of more than 74% of cuts.  Women, on the other hand, hold nearly 50% of payroll jobs, making them less vulnerable to financially motivated layoffs.  In June 2009, a record 1.4 million men left the labor force, as compared to a near-record 1.2 million women. 

    The highest unemployment rate for men since the Great Depression was 10.1% in 1982.  In June, that number reached 10%. Post-Great Depression, the record for women was in 1982, 9.3%. Currently, it’s 7.6% today.


    What is less easy to quantify is the impact this shift has had on workplace and home-life dynamics.  As more and more women find themselves in a position of the sole wage earner, societal attitudes inevitably will be affected in some way, even if it's not immediately noticeable.

    Becky Beaupre Gillespie, of Good Enough Is the New Perfect, wrote a very insightful post detailing the struggle she and her husband have experienced in navigating their roles since he was let go from his job with a national law firm.  Her journey is surely one that many working women are experiencing across the country.  How it will impact the gender roles is yet to be seen.

    A Turning Point for Women in the Legal Profession? Almost.

    Posted by Molly DiBiancaOn September 21, 2009In: Women In (and Out of) the Workplace, Women, Wellness, & Work-Life Balance

    Email This Post | Print this Post

    While in law school, I was defeated in the semi-final round of a moot court competition.  The reason for the loss?  My outfit. I'd worn a pantsuit and a female judge, who was a judge in real life, also, ridiculed the choice, telling me that no "real lawyer" would ever have worn pants to argue before the U.S. Supreme Court, which was who we were "pretending" to argue before in the competition.  The harsh criticism came as a total shock to me and I've never forgotten it. 

    Well, after these many years, I've finally been vindicated. In her first argument before the country's highest court, Solicitor General Elena Kagan, former Dean of Harvard Law School, wore a navy blue pantsuit and light blue blouse. So it seems that my judge was wrong.  A woman would and, in fact, did wear pants before the Supreme Court after all.  Does this brazen fashion choice signify a coming of age for women in the legal profession?  bw sexual equality male female scales of justice

    Well, almost.

    It would have been a far more remarkable silent victory but for the fact that it wasn't silent at all.  Kagan's choice was all over the legal newsboards.  Above The Law ran a story detailing the choice and discussing the outfit at length. The fact that her clothing garnered so much attention lessened the potentially important impact of what was surely a high point in Kagan's legal legacy.  Had the media not found it so remarkable, Kagan's pantsuit choice may have been a much more significant symbol of how far women have come in our profession.  But, by spotlighting it as a key point of interest, the news stories just reminds us that our fashion choices do matter--at least to the interested public. 

    Nonetheless, the fact that Kagan was not dissuaded in her selection by the media's interest does give me a great deal of satisfaction.  Would I follow Kagan's lead?  I'd like to think so but I dare not speculate.  After all, an attorney with Kagan's pedigree has plenty of reasons to be as confident as she was--she's got the legal acumen to back up any outfit she "dares" to wear. 

    See also:

    Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

    Are Women Attorneys Being Stricken by a Pantsuit Pandemic?

    The Pantsuit Pandemic Part II

    It Ain't Private If You Post It On the Internet: Another Example for Users of Social Media

    Posted by Molly DiBiancaOn September 18, 2009In: Social Media in the Workplace

    Email This Post | Print this Post

    I recently reported that a staggering 45% of employers use social-media sites, like Facebook and LinkedIn, to research job applicants. I do not oppose this trend, provided there are safeguards in place to prevent unfairness and discrimination in the hiring process.

    There are some opponents to the practice, though, who claim that it could give rise to a claim of invasion of privacy brought by the applicant. I disagree.

    There cannot be a viable claim of invasion of privacy unless the plaintiff had a reasonable expectation of privacy in the information that allegedly was “invaded.” In the world of the internet, once it’s online, it’s no longer private. This is especially true when the plaintiff himself was responsible for posting the so-called “private” information on the world wide web.

    Some scholars have argued that there should be a claim where the individual consented to share the information only to a limited extent and the “invader” exceeded the scope of that consent. This argument has been limited, for the most part, to academics and has not been well received by the courts. A recent decision from a California court of appeal reinforces the traditional notion that, once posted online, information is in the public domain. 

    In Moreno v. Hanford Sentinel, Inc., the plaintiff-appellant sued for invasion of privacy and intentional infliction of emotional distress when an article she’d posted on her MySpace page was submitted to a newspaper for republication. The appellate court affirmed the trial court’s dismissal of the privacy claim and held that, “once posted on, this article was available to anyone with internet access.”

    The plaintiff, Cynthia Moreno, posted “An ode to Coalinga” and posted it in her online journal. The article was a rant about her dislike of her hometown, Coalinga, California. Moreno removed the article from her MySpace page after just six days but, one day later, learned that the principal of Coalinga High School had submitted it to the local newspaper. The article was posted in the Letters to the Editor section of the paper and was attributed to Moreno. The community reacted with death threats to Moreno’s family, who later moved and closed their 20-year-old family business.

    The court’s decision is an important one. It states that the fact that Moreno removed the article from her online journal after just six days was “of no consequence” to the determination that no privacy violation had occurred. Instead, by posting it on a publicly accessible web page, she opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.


    Previous, related posts:

    Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

    How to Conduct Online Background Searches With Google

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

    Top 10 Reasons Why Employers Should Screen Their Applicants

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

    In Case It's Not Obvious: Don't Text Witnesses During Trial

    Posted by Molly DiBiancaOn September 18, 2009In: Social Media in the Workplace

    Email This Post | Print this Post

    A Florida state judge recently dismissed with prejudice a lawsuit alleging civil fraud involving the sale of a condo tower. During the trial, the plaintiff sent a text SMS text marketingmessage to his employee, while the employee was testifying on the witness stand in that case. The texter, Yizhak Toledano, CEO of the company that had filed suit, texted the company’s CFO while the attorneys were in sidebar. Not only was the case dismissed, but the plaintiff, thanks to the CEO’s text message, was ordered to pay the defendant’s attorneys’ fees and costs.  

    It seems painfully obvious that texting your witness while he’s testifying is a very bad idea. What makes it more painful is that the plaintiff had improperly texted a witness during deposition just two months earlier, resulting in a reprimand from the magistrate judge.

    [H/T Evidence Prof Blog]

    Other Posts on the Intersection of Technology and the Law

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

    Hopeful New Lawyers Will Be Subject to a Social-Media Review
    Delaware's Indian River School District Bans Cell Phones
    Michigan's Supreme Court Bans Jury Members from Mid-Trial Twitter Use

    Employers and Health-Care Reform

    Posted by Teresa A. CheekOn September 16, 2009In:

    Email This Post | Print this Post

    In the U.S., about half of the people who have health insurance get it through employment. (The others who have insurance get it from the government, through programs such as workers’ compensation, Medicare, Medicaid, and the Veterans Administration). The reliance health insurance costsin the U.S. on employment-related health insurance is very different from what happens in other industrialized countries, according to this interesting article by Princeton economics professor Uwe Reinhardt.

    Most people don’t know that the dominance of employment-based health care insurance was not planned; instead, according to Professor Reinhardt, it was the result of efforts to evade World War II wage controls. Members of the armed services weren’t paid much, so Congress decided that civilian pay should also be kept low. A gaping loophole in the wage control legislation was the failure to include employer-paid fringe benefits in wages, and Congress also allowed companies to deduct the cost of their contributions to health insurance premiums from their taxes. Employment-based health insurance took off. Things have changed since then, and one writer recently argued that employer-based health care is dying.

    Continue reading "Employers and Health-Care Reform" »

    Let it Rain: Isotoner Decision on Breastfeeding at Work Brings a Downpour of Criticism

    Posted by Adria B. MartinelliOn September 16, 2009In: Pregnancy (Title VII)

    Email This Post | Print this Post

    On August 27, the Ohio Supreme Court Court issued its opinion in Allen v. Totes/Isotoner Corp.  In its two-page opinion, the majority said that the employee was fired for not following company policy on breaks, period. End of story, plain and simple. Apparently not so, judging on the uproar this decision has created in the blogosphere:

    It appears many out there misapprehend the nature of the protections provided under the Pregnancy Discrimination Act. On the federal level, the PDA was an amendment to Title VII, enacted in 1978, which clarified that discrimination based on “sex,” included discrimination based on “pregnancy or related conditions.” Most states, including Ohio, have amended their state law similarly, and follow federal law on the interpretation of their statute.

    Continue reading "Let it Rain: Isotoner Decision on Breastfeeding at Work Brings a Downpour of Criticism" »

    Where Have Our Manners Gone? Is Workplace Civility a Thing of the Past?

    Posted by Molly DiBiancaOn September 16, 2009In: Jerks at Work

    Email This Post | Print this Post

    There have been recently been several displays of incivility in the workplace worth a moment of reflection. Three incidents in particular come to mind.

    The Conduct

    First, there was the outburst by S.C. GOP Rep. Joe Wilson during President Obama's congressional address last week. On Good Morning America the next day, George Stephanolopous was asked whether he had ever witnessed similar conduct. Stephanolopous immediately responded that no, he had not.

    Then, during the women's finals at the U.S. Open, tennis great Serena Williams threw her racket and, in the same match, cursed and pointed at the line official who penalized Williams for a foot fault. Williams' opponent, Kim Clijsters, was awarded an extra point when Williams walked away only to turn around and come back at the official, finger pointing and profanities flying. In a press conference, she was positively unapologetic, even trying to justify her behavior, responding to a reporter's inquiry by saying that everybody treats line people that way. little pig feels bad

    Then there was Kanye West's "performance" at the MTV Video Music Awards when he bombarded 19-year-old Taylor Swift, snatching the microphone out of her hand during an ill-fated acceptance speech. The look on Swift's face was heart wrenching. She looked like a child who couldn't process how terrible people could be.

    The Apologies

    Each of the three offenders issued an apology. Wilson called his apology into the White House the day after his disrespectful display. Williams, after booed off the court and being smacked with a $10,000 fine, has apologized several times via the press. And West was first redeemed by Beyoncé, who won for best video of the year but kindly turned over her time at the microphone to the slighted Swift, giving Swift the chance to finish her acceptance speech. Then West made an appearance Monday night on the premier episode of the new Jay Leno Show. Before performing with Jay-Z and Rihanna, West sat down with Leno and seemed deeply troubled by his behavior.

    Each incident occurred in the respective person's workplace. Yet, despite having some familiarity with their surroundings, each of the three conducted themselves in a manner far too horrible to be described as inconsiderate. The displays were inappropriate and downright mean. They were embarrassing, even shameful, really. But what do they say about our society?

    Continue reading "Where Have Our Manners Gone? Is Workplace Civility a Thing of the Past?" »

    3d Circuit Revives Claim of Pennsylvania Worker With Lilly Ledbetter Fair Pay Act

    Posted by Teresa A. CheekOn September 14, 2009In: Cases of Note, Gender (Title VII), Wages and Benefits

    Email This Post | Print this Post

    Mikula v. Allegheny County of Pennsylvania is a new decision from the Third Circuit Court of Appeals, interpreting the Lilly Ledbetter Fair Pay Act (“the Act”).

    Facts of the Case

    Plaintiff Mary Lou Mikula was hired by Allegheny County Police Department as its grants coordinator in 2001. In September 2004, Mikula wrote a memo to the Police Superintendent asking him to change her title to “Grants and Project Manager” and make her salary equal to or greater than that of a male colleague whose title was “Fiscal Manager.” The fiscal manager was making $7,000 a year more than Mikula at that time. The county did not respond to Mikula’s request. In October 2005, Mikula renewed her request for a raise. The county again did not respond. money in piggy bank

    In March 2006, Mikula filed an internal complaint alleging gender and age discrimination, stating that she was paid $7,000 a year less than a comparable male colleague and that the pay discrimination had started when she was hired. She also filed a lawsuit in federal district court alleging that her rights under the Equal Pay Act had been violated. In August 2006, the County’s Human Resources department notified Mikula that it had completed its investigation of her complaint and did not agree with her allegations of discrimination.

    The Timeliness Argument

    In April 2007, Mikula filed a discrimination charge with the U.S. Equal Employment Opportunity Commission alleging pay discrimination based on sex under Title VII of the Civil Rights Act of 1964 (“Title VII”). When she received a right-to-sue letter, she added the claim to her federal court case. In response, the County filed a motion arguing that the Title VII claim should be dismissed because Mikula had waited too long to assert the claim.

    Under Title VII, claimants in most states must file their discrimination charges within 300 days of the allegedly discriminatory act. The County argued that the pay decision had been made in 2001 when Mikula was hired, and that even if the court allowed an extension of time until 2004, when Mikula found out about the difference between her pay and the fiscal manager’s pay, she had still waited more than 300 days before filing a charge. Mikula argued that the Human Resources department’s decision in August 2006 on her internal complaint of discrimination was itself a pay decision and that she had filed a charge within 300 days after receiving the decision.

    Continue reading "3d Circuit Revives Claim of Pennsylvania Worker With Lilly Ledbetter Fair Pay Act" »

    ALL-CAPS EMAILS and Other Workplace Annoyances

    Posted by Molly DiBiancaOn September 14, 2009In: Just for Fun

    Email This Post | Print this Post

    Most of us will admit that we’ve become unnecessarily agitated by a coworker’s quirks. For whatever reason, or maybe for no reason, your office mate’s habit of dragging his feet while he walks makes you recoil every time he strolls past your door. Or the receptionist who cracks her gum as what is surely an act of passive aggression.

    Do you dare confront the annoying employee? Of course not! You’d sound irrational! You’d appear half daft! The annoying conduct is trivial to everyone else—even to you in any setting other than work. But, alas, in the workplace, this seemingly benign habit pushes you nearer and nearer to the line where sanity meets crazy cat lady.

    As a rational adult, you keep your insanity in check. You recognize the disproportion of your reaction and you monitor your facial expressions and body language to guard your secret. Other, not-so-rational adults, on the other hand, may not have the same level of self control. They might take their dislikes and pet peeves a little too far. (See What Irks Your Employees? Do You Really Want to Know?)

    But wacky and non-wacky employees alike can understand certain fundamental canons of workplace etiquette. And when those cannons are violated, the beast in us can come unleashed. What follows are a few examples of what I consider to be inexplicable acts of discourtesy in the workplace . . .

    Continue reading "ALL-CAPS EMAILS and Other Workplace Annoyances" »

    Employers Make Headlines With Facebook and Twitter Policies

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

    Email This Post | Print this Post

    More employers are addressing their employees' use of social-media sites, such as Facebook, through formal workplace policies. Here are just a few of the employers whose policies have made headlines in the past several weeks:

    sheriff icon

    Ohio state troopers are now prohibited from "posting pictures of themselves or others in uniform and from using the patrol's 'flying wheel' insignia on social-networking sites without approval." As Brian Hall reported, the new rule for uniformed employees of the Ohio State Highway Patrol came to be as a result of a female trooper who posted an "inappropriate" picture of herself and another trooper on her MySpace page. She was not wearing a uniform in the picture but her site did identify her as a member of the Highway Patrol.  The poster apparently did not realize that her site was viewable by the public. 

    Takeaway: Policies should include education for employees to explain how to set effective privacy settings.


    The NFL implemented a somewhat unpopular policy limiting players' and coaches use of Twitter at game time. The NFL's new guidelines provide that its members can use social-media applications until 90 minutes before each the start of a game and have to wait until traditional media interviews are finished footballbefore they resume posting personal messages. The policy was initiated shortly after media-favorite, Bengal's player Chad Ochocinco announced that he would tweet from the sidelines.  When that appeared to be threatened by the pending policy, he said he would have someone else tweet for him at his signal. The NFL wrote a line into the policy prohibiting players from having someone else tweet on their behalf. At first, it was reported that Ochocinco would delete his Twitter account but, not one to be called a quitter, he announced this week that he's found a "loophole" in the NFL's policy and is planning a "surprise" at the team's season opener on Sunday. This summer, the San Diego Chargers reportedly fined cornerback Antonio Cromartie $2,500 for using Twitter to complain about the food served at the team's training camp. 

    Driven by concerns about potentially lost business, the League also is attempting to restrict how fans can use social-media applications like Facebook and Twitter to talk about professional football. Under the new rules, the NFL says fans are encouraged to circulate messages about teams and players, but cannot post play-by-play accounts of actual games. 

    Takeaway:  Policies that are overly broad are likely to be ignored from the start, making enforcement very difficult. If a policy is obviously ineffective, don't bother.

    u.s. marine corps


    The Pentagon also has some concerns about the potential impacts of Twitter and similar social media.  In August, Deputy Defense Secretary William Lynn commissioned a report on the pros and cons of social media.  The Pentagon, he said, will review the report and, by the end of September, issue an official policy.  The Marines banned access to Facebook from its computers, citing security concerns.  Marines can access Facebook and Twitter from their personal computers and at internet cafes, though.  The order banning access states: "These internet sites in general are a proven haven for malicious actors and content -- and are particularly high risk due to information exposure, user-generated content and targeting by adversaries."


    For more on the love-hate relationship of employers and Facebook, see these earlier posts:

    New Statistics on Employers Using Social Media to Research Applicants
    Warnings Against LinkedIn Recommendations: Justified or Propaganda?

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

    Facebook and YouTube Make Employees More Productive. Really??

    USCIS Publishes E-Verify Supplemental Handbook For Federal Contractors

    Posted by Teresa A. CheekOn September 9, 2009In: E-Verify

    Email This Post | Print this Post

    Yesterday, September 8, 2009, was the official start date for the mandatory E-Verify program for federal contractors and subcontractors. The U.S. Citizenship and Immigration Services has just created and published a Supplemental Guide for Federal Contractors to explain the new requirements.

    user manual

    The Guide provides background information, describes the E-Verify program, and provides fairly detailed information about compliance, including timelines and charts. It is user friendly and I recommend that all employers with federal contracts or subcontracts read it to find out whether they are subject to the new rule, and if so, to learn the basics about how to comply. Federal contractors and subcontractors who are subject to the rule but who do not comply risk loss of current contracts and debarment (loss of their ability to obtain future 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!

    New Statistics on Employers Using Social Media to Research Applicants

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

    Email This Post | Print this Post

    CareerBuilder's most recent survey has interesting statistics on the number of employers who report that they currently use social-media sites, such as Facebook and LinkedIn, to research potential job candidates. 22% reported that they used social media in the 2008 survey, which more than doubled this year, up to 45%.  An additional 11% reported that they planned to start using social media as a background check tool.  That would push the number far past the half-way mark. 

    Here's a quick visual.

    Last year . .  .


    And, this year. . .


    I think that the increase is inevitable--employers will continue to utilize these sites for their recruiting and hiring processes more and more as more and more HR and recruiting professionals become accustomed to using the sites.


    Want more?  Here are some earlier posts on the topic of social media in the workplace:

    Facebook Set to Overhaul Its Privacy Settings

    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

    Facebook and YouTube Make Employees More Productive. Really??

    Are You an Employer Covered by the FMLA?

    Posted by Molly DiBiancaOn September 8, 2009In: Family Medical Leave

    Email This Post | Print this Post

    The answer to this question is critical. If the answer is “yes,” the employer must comply with the myriad of obligations imposed by the FMLA. The answer is “yes” if the employer has 50 or more employees in 20 or more workweeks in the current or preceding calendar year.[1]  

    The determination of whether an organization meets this 50-employee requirement is not an easy one, though, especially for employers with a high turn-over rate and employers who utilize temporary or seasonal help. Here’s a short breakdown of the analysis to help you determine if your organization is a “covered employer” for purposes of the FMLA. 3d man with calculator.jpeg

    • Start with the correct time period. You should look to the payroll records of the current and preceding calendar year. (For example, if we were to perform the calculation today, we would need to look at the records for 2008 and 2009).
    • For this period, determine how many employees the organization had who were employed for a total of 20 or more weeks. The week is based on a calendar workweek. Workweeks need not be consecutive.
    • From this number, remove employees who were subject to layoff, whether temporary, indefinite, or long-term.
    • Do not remove an employee who was on leave of absence or suspension but who has a reasonable expectation of returning to active employment.
    • Remove any employee working at a location outside of 75 miles from the location for which the determination is being made.

    Once a private employer satisfies the 50-employee and 20-week threshold, the employer remains covered until it no longer has 50 employees during 20 workweeks in both the current and preceding calendar years.

    [1] Joint employers and successors in interest of covered employers, public agencies, and private elementary and secondary schools are also covered.

    See other posts on the FMLA's requirements and prohibitions:

    New FMLA Regulations Restrict Substitution of Paid Leave for FMLA
    So You Thought You Understood the Final FMLA Regs?

    Employer Notice Requirements Under the Final FMLA Regulations

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

    10 Most Important Changes to the FMLA Regulations

    Singing at Work: I'll Do It! I swear I will!

    Posted by Molly DiBiancaOn September 8, 2009In: Just for Fun

    Email This Post | Print this Post

    I can’t sing a lick. But that doesn’t stop me from trying. I love music. All kinds of music. Some of the concerts I saw in 2009 includes musicians as diverse as Fleetwood Mac, Jay-Z, and The Police. And don’t forget Broadway. I’m a sucker for a musical any day of the week. So, despite my total inability to carry a tune, I can turn pretty much anything into a song at the drop of a hat. My husband just loves it when I belt out Don’t Forget to Buy Stamps Today, which is set to the music of A Day In The Life by The Beatles.

    And I’ve often thought how invigorating  it would be if, every workday, at around 3 p.m., we could blast music through our office intercom system. Some examples of appropriate songs might include Pump Up the Jam by Salt ‘n Peppa, Queen’s classic, We Are the Champions, or Eye of the Tiger by Survivor (made famous in the movie Rocky III). In fact, I’m such a believer in the power of song to lighten up the mood and rally the troops, I’ve even championed the idea of replacing all workplace speech with song. Just think of how much better the day would be if your department performed a rendition of We Go Together from the musical, Grease, at the conclusion of a weekly team meeting!

    John Phillips, blogger extraordinaire at The Word on Employment Law, found a video demonstrating this idea in action. The employee in the video, admittedly, is a little annoying—but only because the rest of his office mates just don’t seem to appreciate the value of setting words to music. Maybe they should just lighten up!

    Jury Verdict Against Employer Who Accessed Employee's MySpace Page

    Posted by Molly DiBiancaOn September 4, 2009In: Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

    Email This Post | Print this Post

    Employees love social networking. Some employers also love social networking, especially in the context of recruiting, onboarding, and engagement efforts. But employers are not so crazy about the use of Web 2.0 tools by employees.  The question is often asked whether employers may lawfully access an employee's (or applicant's) social-networking page.  And the answer, as any lawyer worth his oats surely will tell you, is "it depends."shutterstock_34933678

    There are a number of different contexts in which this question can arise and each has a different response.  For example, in the hiring context, employers often want to conduct a DIY background check by Googling a candidate or searching for the candidate's Facebook profile.

    I've already said plenty on this topic and won't rehash it here.  (See 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).  But, generally speaking, this presents only minor (and avoidable) potential legal issues.   

    A different context occurs when an employer wants to view a current employee's Facebook or MySpace page.  Add to that the situation where the employer doesn't want the employee to know about it's "investigation" or where the employer sees something it doesn't like and takes adverse action because of it, and you've got an entirely different set of circumstances and associated legal issues.

    A recent case in the U.S. District Court in the District of New Jersey is the perfect "flare-gun" case--sending a poignant warning to employers considering similar actions.  In Pietrylo v. Hillstone Restaurant Group, a waiter at the employer's Houston's restaurant created a MySpace page and group.  The group was private--only those who were invited by its creator could access the site. The waiter, Pietrylo, gave access to co-workers, who could then read postings or create postings themselves.

    Continue reading "Jury Verdict Against Employer Who Accessed Employee's MySpace Page" »

    Third Circuit Says That Boys Can Cry . . . And File Suit: Gender Stereotyping & Title VII

    Posted by Molly DiBiancaOn September 4, 2009In: Cases of Note, Gender (Title VII), Harassment, Sexual Orientation

    Email This Post | Print this Post

    In July, Delaware Governor Jack Markell signed into law an amendment to Delaware’s employment-discrimination statute. The amendment prohibits discrimination based on sexual orientation. Not surprisingly, many employers are concerned about the potential for increased litigation in light of the new law. Some employers may be surprised to learn that current federal law has been used to achieve a similar level of protection. A recent decision from the federal appeals court demonstrates the extent that such protection is provided under Title VII of the Civil Rights Act (Title VII). square peg round hole

    The U.S. Court of Appeals for the Third Circuit, which has jurisdiction over the federal courts of Delaware, Pennsylvania, New Jersey, and the Virgin Islands, ruled in late August that a homosexual employee could proceed with his claim that he was harassed and fired because of his “effeminate behaviors.” The unanimous decision of a three-judge panel in Prowel v. Wise Business Forms, Inc., has made headlines across the country as an extension of Title VII’s sex-based discrimination provisions. Brian D. Prowel brought the claim after he was terminated by his employer after 13 years with the company. He alleges that Wise told him that he was being terminated for lack of work as part of a workforce reduction. 

    According to Prowel, his termination actually was a result of “gender stereotyping.” Unlawful gender stereotyping in the workplace occurs when an employer discriminates against an individual because the individual fails to conform to a certain perception about how the gender should look and act.

    Prowel claims that his coworkers called him “Rosebud” and “Princess” because he was well dressed and well groomed and did not engage in rowdy and distasteful behavior like his male colleagues. Coworkers, Prowel claims, left items such as a pink, feathered tiara and anti-gay religious pamphlets on his desk. In other words, Prowel claims that he was harassed and eventually terminated because he didn’t act “manly enough.”

    Although the Prowel Rule May Be New, A Much Older Rule Still Applies

    Organizations with employees in Delaware, Pennsylvania, and New Jersey should be mindful of the court’s ruling in Prowel, not because it stands for an expansion of the anti-discrimination laws, but because it strongly supports a principle that is much older than Title VII: Do unto others as you would have them do unto you. If an individual is being harassed, he will likely be able to characterize the harassment as being based on some protected characteristic. If no harassment occurs in the first place, there will be no need to split hairs over the true reason that he harassment occurred. Thus, to avoid being faced with a claim of unlawful harassment, the best practice is to strictly prohibit any kind of taunting, mockery, or from occurring in your organization’s workplace.

    When It Comes to Resumes, Looks Do Matter

    Posted by Molly DiBiancaOn September 3, 2009In: Hiring

    Email This Post | Print this Post

    Job candidates are often unaware of the importance of their resumes. It surprises me, really, how little attention seems to be paid to not just the content of resumes but the appearance of resumes.  When I encounter a beautiful resume, I take notice.  And if I interview a candidate with a flawless resume, I'll ask the candidate how they went about creating it.  Did they have it reviewed by a teacher or career services?  A candidate who responds that she sought advice of multiple people, in academics and in the professional world scores very well.  It tells me that she's passionate about the way she presents herself and takes great pains to get the details just right.

    So you can understand my dismay when I read a question from a reader sent in to the excellent blog, Ask a Manager.  The reader asked whether the font used on a resume really matters.  And, specifically, whether a resume created using the font Comic Sans can ever really be taken seriously. This is an example of Comic Sans.

    The answer, in short, is "no."  Comic Sans was a font created by Vincent Connare for Microsoft in 1994. The font was intended to be used in the Microsoft Bob program, which was intended for children.

    Despite Connare's insistence that the font was not designed as a typeface, it's been used as one ever since its release--much to the dismay of typography enthusiasts.   Comic Sans is a font that says frivolity, light-heartedness, and playfulness. Comic Sans does not say professional, serious, or knowledgeable.  So, unless  you're applying for a job at a day-care center, please, please, respect your document and skip the kiddie fonts.  To learn what you should do with your resume, check out Typography for Lawyers, where Matthew Butterick puts out some terrific posts on this very topic.

    (Need more proof that Comic Sans is no laughing matter?  Check out the Ban Comic Sans website.  There's an entire movement devoted to eradicating the professional world of this silliness.)

    Hopeful New Lawyers Will Be Subject to a Social-Media Review

    Posted by Molly DiBiancaOn September 1, 2009In: Social Media in the Workplace

    Email This Post | Print this Post

    Applicants' social-networking sites may now be reviewed as part of the Character and Fitness process for applicants to the Florida State Bar Association.  According to the ABA Journal, the Florida Board of Bar Examiners voted to review applicants' social-media activity on a case-by-case basis. The board will review sites like MySpace and Facebook only for candidates who have a demonstrated history of troubling conduct.   facebook logo

    What's my take on this news?

    1.  It was inevitable.  It was only a matter of time before it happened.  The President required applicants to disclose their online activities, so why wouldn't the state bar associations?

    2.  It's not a terrible idea.  If the state intends to have a truly effective screening process, the more information gathered, the better.

    3.  I'm not crazy about the idea of only looking at the sites of "problem" candidates.  Having not given it too much thought, my first inclination is to argue for a random selection process instead of selecting only candidates who have a history of issues.

    4.  I am also inclined to disagree with the decision not to make an up-front request to all applicants for access.  The bar association says that "if applicants are required to provide access to their social websites, they are likely to delete any derogatory material before staff has the opportunity to review it."  As I've previously argued, it's the ones who are warned in advance and still don't remove potentially offensive material that we should really be concerned about.  I think this is a more effective checks and balances on exactly what conduct or behavior will count "against" an applicant (for bar admission or employment).

    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

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