December 2009 Archives

Whatever Happened to the Employee Free Choice Act?

Posted by Sheldon N. SandlerOn December 31, 2009In: Union and Labor Issues

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For the first quarter of 2009, the Employee Free Choice Act (EFCA), was front page news, and the subject of scores of seminars, webinars and spirited discussions. Since then, it has virtually disappeared from view. Aside from a few rumors about possible Senatorial compromises, EFCA became a nonevent during the balance of 2009. As we move into 2010, an election year, will we see an effort to revive and enact EFCA in some form? I’m betting we will.

First of all, the current Congressional makeup is likely to be a high-water mark for union supporters that will recede after the November 2010 election. So it may be now or never for EFCA proponents. And now that the heavy lifting has been completed in the Senate on health care reform, and the economy has begun to stabilize, it seems like a more propitious time for President Obama and the Democrats in Congress to turn back to what was first on the unions’ wish list. Andy Stern, president of the SEIU and a regular White House visitor, has said recently that he expects Congress to take up EFCA in the first quarter of 2010. That sounds right.

The version of EFCA that is enacted will probably omit the card-check provision that caused the most angst among opponents. The unions may seek to retain the other major change, requiring interest arbitration of first contracts (after an unreasonably short period of negotiations.) Reducing the time for a union election to be conducted after a union files its petition will certainly remain in the final version. Some companies, anticipating EFCA’s passage, have begun regular union-avoidance training for all employees. Others have held training sessions for supervisors, who act as the early warning system for recognition of union organizing activity. Thoughtful employers who want to remain union-free should be considering their options and taking proactive steps in anticipation of the passage of EFCA in some form.

When Did Working at Work Become Optional?

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

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The line between work and home is hardly visible.  To describe it as “blurred” would be inaccurate. The reality (for most of us) is that the line can barely be seen and, for some, only fades into existence occasionally for short intervals.   And there seems to be little debate about the validity of this conclusion.  The debate begins only when the question is asked whether this reality is a positive or negative one.

For most, I believe it’s perceived negatively. At least it sounds that way when I hear it discussed.  Because what normally follows is the argument that, because of the “blurred” line between work and home, a metaphor most commonly described with a  visual of a worker whose Blackberry must be surgically removed from his hand, employers must permit employees a bit of “leeway” in their electronic follies.  For example, the story goes, because employees may be expected to respond to a client emergency after normal business hours, they should be permitted to do some online shopping during the work day. Or, another story goes, because employees are working more hours than ever before, they have no choice but to do some online banking from their office.  The need to send personal e-mails, browse the malls of cyberspace, and update one’s Facebook status takes precedent over the need to [gasp] work.

Oh, hogwash.

I just cannot buy into this nonsense.  The argument that employees should retain some right of privacy in the e-mails that they send from the account provided to them by their employers, using the computers purchased, maintained, and serviced by their employers, on a network owned by their employers, using bandwith that their employers intended for use for work-related purposes, is a losing one to me.

Those who argue in favor of this alleged entitlement for online detours during the work day must forget that not all employees are exempt. In fact, most workers are non-exempt, meaning that they must be paid (by their employer) for all time worked in excess of 40 per week.  (More in some states, mind you.)  So , non-exempt employees who take short detours to e-Bay via the information superhighway during working time have one of only two impacts: either they are being paid for something they’re not actually doing—some might call that stealing, or they are getting paid time and a half for it because they need to stay late to get their work completed on time.  There’s also a third option: that the employee completes his or her work in a hurry or in a half-done manner to expedite his access to the Internet.

To me, none of these three is an acceptable solution. Has it really become acceptable to demand we be given the choice to not work while at work?  Maybe the manufacturing sector is the only one that hasn’t lost its collective mind by taking breaks of designated lengths at designated intervals but actually working during the rest of the work day.  Not so novel, really, but seemingly a rarity in the office environment.

Last Chance to Vote in ABA's Top 100 Blawgs

Posted by Molly DiBiancaOn December 30, 2009In: Delaware Specific

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As you may know, our little blog was named 1 of the top 100 law blogs by the American Bar Association. We are so honored to have been chosen!  We're in the "Geo" (as in "geographic-specific") category with 9 other excellent legal blogs.   And, until tomorrow at 5 p.m., you can cast your vote for us as the best in our category--an honor we'd be thrilled to have.

To vote, you'll have to register with the ABA site but it takes just a minute to sign up. All you'll need to provide is an e-mail and a password.

Click here to register to vote. 

Click here to see the list of all 100 blogs.

So please, take a minute or two and get registered and vote for our blog.  And then pass this e-mail along to your friends, family, local postman, kid that cuts your grass, or anyone else with Internet access.

Thank you, thank you, and thank you again!!

EEOC Proposes to Fix Its Broken System [Insert Snarky Comment Here]

Posted by Molly DiBiancaOn December 30, 2009In: EEOC Suits & Settlements

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The Equal Employment Opportunity Commission has issued proposed regulations for ways to improve how discrimination complaints are processed.  I'll beg your pardon if the first thought that comes to mind when I hear this is, "Improve it for whom, exactly?".  The sarcasm didn't stop there.  The more I read, the more questions I have, each tinted with at least a hint of snarkiness. (The snarky comments are denoted in blue).

Peggy Mastroianni, EEOC's deputy legal counsel, said the working group that issued the recommendations decided to proceed with incremental changes and would tackle only issues on which the group could reach consensus.

If a bureaucratic "working group" with no mandated checklist of required objectives or enforcing agency to ensure the completion of objectives, is going to work only on the objectives that they can agree upon, I'd say it's a safe bet that none of those objectives is likely to ever get done.  Oh, heck, they may never get started.  When was the last time you were in a group setting where all persons in the group reached consensus on anything?

Among the process updates outlined by the EEOC in a Federal Register notice published on Monday was a requirement that agencies file responses to complaints electronically.

Congratulations!  Federal courts have been filing dockets electronically since, what, around 2005?

Another proposed regulation would require an agency to notify the complainant when its investigation would be complete.  This requirement would be triggered "only" if the investigation was not completed within 180 days from filing.  The notice, of course, also would inform the employee that he has a right to file a lawsuit once the 180-day mark has passed. 

I honestly cannot recall an investigation being completed in 180 days. Certainly not in the past 2 years but maybe not even in the past 5 years. I have clients who responded to charges filed more than 2 years ago without having received any indication that a decision would be rendered any time in the near--or distant--future. So this proposal seems like a guarantee that each complainant will be reminded that they can skip the process altogether and go directly to the courthouse steps. Remind me again, isn't the purpose of this process somehow linked to the idea that completing it may have desirable benefits to all involved?

A final note of irony can be found in the portion of the notice that explains that the EEOC "intends to provide a mechanism for reviewing and seeking compliance from agencies that fail to comply with the requirements" of a number of EEO directives. In other words, it wants to attempt to get its own house in order.  This may be related to the claim that only about 50% of federal departments and agencies actually follow some of the "mandatory" reporting requirements. 



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Interview with Delaware Supreme Court Chief Justice

Posted by Molly DiBiancaOn December 29, 2009In: Delaware Specific

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Delaware attorney and blogger Francis G. X. Pileggi of the always popular Delaware Corporate and Commercial Litigation Blog has posted an outstanding discussion with Delaware Supreme Court Chief Justice Myron Steeleimage

It's well worth stopping by Francis' excellent blog to read the insightful commentary of the Chief Justice. 

Jan. 29 Breakfast Seminar: Retaliation

Posted by Molly DiBiancaOn December 28, 2009In: Seminars, Past

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Retaliation claims brought by employees who have complained about discrimination or harassment in the workplace have increased dramatically over the past several years.  They now account for more than one-third of all claims filed with the EEOC.  At the same time, the Supreme Court has issued a series of rulings that have expanded the types of retaliation claims an employee may bring.  This presentation will inform you about retaliation claims and give you strategies to avoid liability.  When it comes to dealing with employees, revenge is a dish best not served at all.


Attorney Michael P. Stafford will present this 90-minute seminar in our Wilmington office. The cost? Free. First come, first serve, though, so don’t delay.  E-mail Felicia G. (be sure to include “Breakfast Seminar” in the subject line) or call 302.571.5718 to sign up today.

Judge Tells Lawyer to Follow Guidelines and Start Preparing Better Documents

Posted by Molly DiBiancaOn December 27, 2009In: PDFs, Resources

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I continue to be amazed by some of the less-than-best writing practices of my friends and colleagues.  Many of these practices relate to the ways in which they format documents. I recognize that many of these practices derive only from habit--not bad intentions.  But that doesn't make them any less annoying.  And what makes them more annoying is the irrational devotion they garner. 

What are these habits, you ask?  Truth be told, there are too many to list here.  But there is good news--I am not alone.  There are others who feel strongly about the importance of documents done right. 

Minnesota bankrupcty court judge Robert Kressel is one such sympathizer.  Recently, he issued Order Preparation Guidelines for attorneys appearing before him.  The Guidelines spell out a variety of writing misdeeds that Judge Kressel wisely abhors. 

I have two thoughts about these Guidelines.  First, they offer terrific advice that everyone should follow.  Second, they demonstrate how helpful style guides can be and make me wish that there were more such guides in place--both in the judicial system and in the workplace.  

All of the guidelines are great, really.  But a few stand out for me.

The first guideline, for example, instructs parties to submit PDFs that have been converted directly from Word or WordPerfect--instead of by scanning printed paper copies.  Amen!  Why in the world anyone thinks it is somehow better to print a document and then hard scan that document to PDF positively escapes me.  Print to PDF, people.  Please, I beg you!  As Judge Kessler points out, it saves tremendously on the size of the PDF.  And it also provides a far better looking final document, as well as a searchable document.  A document that is printed to PDF (as opposed to scanned) can also accept comments made with commenting tools in Acrobat, such as highlighting and adding "sticky notes."  (See my previous posts on the topic of PDFs for better documents for additional inspiration).

Judge Kessler also reminds lawyers to "limit the use of capital letters to proper names."  I've discussed the "ALL-CAPS disease" before but it bears repeating.  For those of you who have held tight to this habit, please consider resolving to abandon it in the new year.  Words that are typed in all capital letters are very difficult to read.  For an excellent explanation of the phenomenon, see Robin Williams' highly instructive and enlightening book, The PC Is Not a Typewriter

There are other resources for those who are open minded and ready to make some positive changes to their document-formatting habits.  Ms. Williams' book is a fantastic place to start.  (The book is closer to a pamphlet than War and Peace and serves as an excellent desk reference.)  The Seventh Circuit has published an excellent and extensive set of guidelines for briefs (pdf).  One of the sources cited in the court's guidelines is Ruth Anne Robbins' journal article, Painting With Print (pdf), which is far more detailed and a truly outstanding scholarly work.  Finally, specific to the legal profession but applicable for all professions is Matthew Butterick's blog, Typography for Lawyers

So, wonderful readers, go forth into the new year with standards set high and paragraph alignment set to Left (please, no more justified paragraphs!).  These are resolutions that, if kept, truly would help make the world a better place, one document at a time.

[Hat tip to the Lawyerist]



Judges Order Re Writing Mistakes in Court Filings




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COBRA Subsidy Is Extended*

Posted by Molly DiBiancaOn December 22, 2009In: Benefits

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The eligibility for the COBRA premium subsidy was about to expire for those individuals who are involuntarily terminated and become eligible for COBRA benefits after December 31, 2009.  However, on December 21, 2009, the President signed legislation that extends the eligibility for the subsidy to those individuals who are involuntarily terminated and become eligible for COBRA coverage before February 28, 2010. 

The legislation also extends from 9 months to 15 months the length of the subsidy period and the extension applies to those who became eligible for the subsidy after February, 2009, even if their initial nine months has already expired.  The extension is retroactive for those individuals who lost COBRA coverage because they stopped paying the premiums due to the expiration of their subsidy.  Thus, individuals who became eligible for the subsidy in March were subsidy eligible through November 30, 2009.  If such an individual did not pay his or her December, 2009 COBRA premium because the subsidy expired, the individual can re-enroll in COBRA and receive the subsidy for December, 2009 (without any gaps in coverage) and another 5 months until May, 2010.

The COBRA subsidy extension was attached to H.R. 3326, the Department of Defense appropriations bill for the fiscal year ending September 30, 2010 which passed by an overwhelming vote in the House of 395 to 35.  According to Rep. Charles Rangel, D-N.Y., chair of the House Ways and Means Committee, “This bill ensures that workers who have lost their jobs through no fault of their own will not lose the unemployment and health benefits they rely upon to provide for their families.  The immediate benefits and assistance provided in this bill help provide some measure of economic security for millions of our fellow Americans struggling during this holiday season, helping ease their pain as they search for their next job opportunity.”

More to come as details of the legislation emerge.

See also, ARRA COBRA Subsidy Information

*Written by guest author Timothy J. Snyder, Esq.  Tim is the Chair of Young Conaway’s Tax, Trusts and Estates, and Employee Benefits Sections.  His primary area of practice is employee benefits, which involves both the benefit provisions of provisions of the Internal Revenue Service and ERISA.  He represents business and professionals in establishing, monitoring, and administering employee-benefit plans, new comparability retirement plans, non-qualified deferred-compensation plans, health, disability and life benefits, COBRA, HIPAA, ADA and ADEA.

Albertsons Pays $8.9 Million to Settle EEOC Harassment and Retaliation Lawsuits

Posted by Teresa A. CheekOn December 21, 2009In: Discrimination & Harassment, Harassment, Harassment, Other (Title VII)

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The EEOC announced last week that large grocery store chain Albertsons has agreed to pay $8.9 million to settle three lawsuits in which the EEOC alleged that it had engaged in race, color and national origin discrimination, and retaliation, at a distribution center in Aurora, Colorado. eeoc logo

According to the EEOC lawsuits and a news report, 168 minority employees were subjected to racist and anti-Semitic derogatory epithets, slurs and graffiti. Allegedly, supervisors were aware of and even participated in the harassing conduct. One African-American employee whose leg was broken by a piece of equipment at work was allegedly left lying on the warehouse floor for thirty minutes by a white supervisor who told him that was what he got for being black. Albertsons denied that it had engaged in discrimination or harassment.

The $8.9 million settlement will be divided among the 168 employees who complained about harassment between 1995 and 2008 (an average of about $53,000 per person).

The lesson for employers is clear, according to the EEOC’s press release. “EEOC Acting Chairman Stuart J. Ishimaru said, ‘Employers simply cannot overlook or tolerate this kind of outrageous discrimination and retaliation. The EEOC certainly won’t. We will aggressively pursue employers who violate the laws we enforce. And we’ll insist on substantial and meaningful relief for the victims before settling these cases.’” Albertsons also agreed to four years of court-supervised monitoring and a training program for its managers.

Employers who suspect or know about harassing behaviors in the workplace must act promptly to stop them to avoid liability, and should train all employees regarding compliance with equal employment opportunity laws.

Judges in South Carolina May Have More Friends Than Judges in Florida

Posted by Molly DiBiancaOn December 21, 2009In: Social Media in the Workplace

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The following is an advisory opinion issued in October by the South Carolina Advisory Committee on Standards of Judicial Conduct that addresses the use of social-networking sites by a magistrate judge:


A magistrate judge has inquired as to the propriety of being a member of Facebook, a social networking site. The Magistrate is friends with several law enforcement officers and employees of the Magistrate’s office. The Magistrate is concerned about the possibility of an appearance of impropriety since the list of Facebook subscribers is vast.


A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.


A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(A), Rule 501, SCACR. However, the commentary to Canon 4 states that complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge. Thus, a judge may be a member of a social networking site such as Facebook. 

[via Legal Profession Blog]

The South Carolina opinion is more permissive than the more recent Florida advisory opinion, which provides that judges may not friend lawyers who may appear before them.

*   *   *   *   *

See also:

What's a "Friend," Really?

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

Searching MySpace and Facebook for Job Applicants and . . . Judges?



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Marital Status Discrimination: First Comes Love . . . Then Comes Marriage . . . Then Comes Preferential Treatment at Work?

Posted by Adria B. MartinelliOn December 18, 2009In: Family Responsibilities (FRD)

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Delaware has long since included “marital status” in its list of categories (along with race, sex, gender, religion, and sex) protected by the state’s anti-discrimination statute. But what is marital status discrimination? Does it really occur, and has an employee ever filed a claim based on alleged marital status discrimination? A new Policy Briefing from the Sloan Work and Family Research Network (pdf) gives some insight into this area of discrimination rarely discussed.

Marital-status discrimination occurs when a person is granted or denied rights based on his or her marital status. It appears there is no written decision in Delaware where an employee has claimed discrimination based on his or her marital status. Several cases have been brought in other jurisdictions and they give Delaware employers a bit of insight into their potential exposure under the statute. As noted in the Policy Paper, cases have been brought by a male employee alleging he was denied a promotion because he was unmarried, and a single mother who alleged she was discriminated against based on her unmarried status.

Studies have shown that employers often treat employees differently based on their marital status in the following ways:

- Married men are paid more and offered promotions more than single men (even when controlling for work performance and seniority);

- Employers may subsidize health benefits for spouses and sometimes domestic partners, but no offer no additional compensation for single employees;

- Work-family policies are often written to address married employees with children; and

- Unmarried and single workers without children are expected to travel more for work; they also feel that they have to work at times that are not expected for working parents. In addition, parents are more likely to get time off from work than nonparents.

It is interesting because many of these differences seem to relate more to parental status, rather than marital status. Indeed, a divorced or unmarried worker with child-care responsibilities may well be afforded accommodations in the workplace based on these responsibilities that a childless worker is not. Because parental status is not a protected category (although assumptions about a worker’s performance because of their childcare responsibilities may present a sex discrimination claim under Title VII), an employer may be able to defend a claim by presenting evidence that differential treatment was not the result of marital status, but parental or caregiver status.

Nevertheless, an employer would still face exposure if single employees were not afforded the same protections and accommodations in the workplace as married employees. With work-life balance remaining a popular topic of discussion, and lots of layoffs resulting in bitter former-employees looking for a payout – we are sure to see more discrimination lawsuits, and more creative causes of action.

So what can you do now to make sure your company is not exposed to marital status discrimination?

1. Expand dependent health care coverage not only to domestic partners, but also to other extended family members or household occupants.

2. Encourage work arrangements such as flexible work schedules and telework for all employees – not just married employees with families. Avoid “work-family” label for policies and instead use “work-life.”

3. Train your human resources officers and managers that marital status should not be considered in any employment-related decision (e.g. hiring or promotion) or staffing/scheduling decisions. For instance, employers should not make the assumption that a married male employee should be promoted over a single one because he will be more dependable, has a mortgage and mouths to feed (or will soon in the future). Nor should the single employee always get the worst shifts or travel schedules because they don’t have a spouse or family at home.

For information about family-responsibilities discrimination, see this previous post:

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

Top 10 Employment Law Developments of 2009

Posted by William W. BowserOn December 17, 2009In: Benefits, Disabilities (ADA), E-Verify, Genetic Information (GINA), Newsworthy, Purely Legal, Union and Labor Issues

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As 2009 winds down, it’s a good time to reflect on the most important employment law developments in what has been a very busy year. Here are my top 10:

Continue reading "Top 10 Employment Law Developments of 2009" »

Why Restrictive Covenants Should Include Delaware Choice-of-Law and Forum-Selection Clauses

Posted by Teresa A. CheekOn December 16, 2009In: Non-Compete Agreements

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Many companies require high-level managers, salespeople, researchers and other key employees to sign confidentiality, non-solicitation and/or non-compete agreements, also known as “restrictive covenants.” These agreements are intended to prevent key employees from capitalizing on proprietary knowledge they learned or developed and relationships with customers and employees that they formed in the course of their employment for their own benefit or the benefit of competitors and against the interest of their former employers.

Continue reading "Why Restrictive Covenants Should Include Delaware Choice-of-Law and Forum-Selection Clauses" »

Weird Sexual Harassment Cases In the News

Posted by Teresa A. CheekOn December 14, 2009In: Harassment

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Two high-profile sexual-harassment cases are in the news.  One is just beginning, the other has come to a close.

Liza Minnelli settled a lawsuit brought five years ago by her former chauffeur M'Hammed Soumayah that had sought $100 million in damages. The amount of the settlement was not disclosed, but the settlement meant that Ms. Minnelli would not be required to give a deposition in the case. The chauffeur claimed that his boss got drunk, beat him, and forced him to have sex with her. These allegations, if true, would state a claim for sexual harassment under Title VII of the Civil Rights Act of 1964. This case shows that women are sometimes also accused of being sexual harassers.question mark red dice

In another interesting development, the U.S. Equal Employment Opportunity Commission has just filed a class action against a Brooklyn fish seller, M. Slavin & Sons, accusing it of harassing a group of African-American male employees based on their sex, race and/or national origin (African). This case is getting attention not because of the employer’s fame, but because of the sordid nature of the accusations.

According to the Complaint, the owners and managers engaged in a variety of uncouth acts, including grabbing, pinching and sticking fish hooks (!) into the buttocks of male employees, making crude sexually explicit comments to their employees, using racial slurs (including the “N” word), saying derogatory things about Africa, and retaliating against an employee who complained. This is a textbook example of what not to do, even in a rough-and-tumble workplace like a fish market, and is another case of sexual harassment that differs from the more common male on female pattern.

Florida Judges May Not Be “Friends” With Lawyers

Posted by Molly DiBiancaOn December 13, 2009In: Social Media in the Workplace

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The Florida Judicial Ethics Advisory Committee has issued an opinion on judges’ use of social-networking sites.  In short, the opinion advises judges of the following:

Judges may have a personal page on Facebook or other social-networking sites and may post comments and other materials on their own pages, provided the material does not otherwise violate the Code of Judicial Conduct.

A judge may not be “friends” with any lawyer who may appear before him.

The opinion recognizes that being a Facebook friend does not mean that there is a friendship in the traditional sense.  But, by identifying the lawyer as a “friend,” the judge risks conveying that the lawyer is in a position to influence the judge.  Thus creating or potentially creating, the appearance of impropriety.

[via N.Y.T.]

See also:

What's a "Friend," Really?

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

Searching MySpace and Facebook for Job Applicants and . . . Judges?


Follow me on Twitter @MollyDiBi

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

Posted by Molly DiBiancaOn December 11, 2009In: Off-Duty Conduct, Social Media in the Workplace

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In an earlier post, I discussed the implications of "friending" by employees.  I suggested that there are a few options for employers and how they handle this sometimes awkward social-networking phenomenon.  One option is to prohibit supervisors from making friend requests to their direct reports.

Patrick Della Valle, of, made an excellent point in a comment to the post.  He noted:

I believe that some states (like New York) have "recreational activities" laws that prohibit an employer from discharging an employee for engaging in lawful activity outside of working hours. I don't know whether "friending" qualifies, but it's something to consider.

His point about off-duty conduct laws is such an excellent one that it merits more than just a comment in response. 

Continue reading "Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies" »

Social Media Policies: What about my “friends”?

Posted by Molly DiBiancaOn December 10, 2009In: Social Media in the Workplace

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Social-media guidelines has been the topic of several recent posts. One of the questions that I suggest employers consider when drafting a social-media policy is "the friending issue."  That's right. 

When deciding on how employees will be encouraged or required to engage online, one point that comes up repeatedly is whether there should be any rules with respect to friending on Facebook. 


There are several possible answers to this question.  I don't advocate that any one of them is the only "right" answer. It will depend, in large part, on your company's culture and the organization's overall approach to social media.  But you should think about them, nonetheless.  Here are the choices:


1.  No rules. Anyone can friend anyone and the employer won't get involved.

2.  Supervisors may not make friend requests to direct reports.  Direct reports may make friend requests to supervisors, in which case the supervisor has the discretion to accept (or not accept) the request.

3.  Supervisors may not make friend requests to direct reports.  Direct reports may not make friend requests to their supervisor. Colleagues may be friends on Facebook.


Although I don't believe any of the 3 are the "best" answer, I do advocate that employers at least consider implementing the second choice, which prohibits supervisors from friending their direct reports.  Common sense dictates that any request that comes from a supervisor is going to be given more consideration. In other words, will the employee really feel free to deny the request?  Likely not.

And what's the potential harm by implementing this rule?  Very little.  The employee can make the request if he wants.  It seems to me that prohibiting a supervisor from being the initiating party, the only thing you're prohibiting is possible undue pressure or coercion.


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Related Posts:

Social-Media Policy Ideas

Sample Social-Media Guidelines

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

3 Reasons Why Employers Don't Have a Social-Networking Policy

Evidence of Plaintiff’s Late-Night Facebooking May Be Used Against Him

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

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Another Facebook-as-evidence story, this time from Canada.

The plaintiff sought damages for personal injuries allegedly sustained in a motor-vehicle accident. He claimed that he suffered “debilitating fatigue” as a result of the accident, which precluded him from working, thus contributing to his damages.  The defendant sought production of the plaintiff’s home computer for forensic inspection.  The defendant sought to prove that the plaintiff spent hours, late at night, on his computer using Facebook.  The defendant contended that all of this late night Facebooking contributed to his alleged fatigue.

via All About Information

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2009 Holiday Gift Guide: Technology Edition

Posted by Molly DiBiancaOn December 9, 2009In: Just for Fun

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The 2008 Holiday Gift Guide was so popular, I've been waiting all year to revisit the topic in improved form. This is the first part of the Guide and includes all of the technology that your favorite lawyer (or other thinking professional) could possibly hope to receive this year. Happy gifting!

Amazon Kindle DX $489

With its 9.7" display, the most recent iteration of this wireless reading device is nearly twice as large as its predecessor. Its generous memory enables you to store up to 3,500 books, which you can download wirelessly without any monthly fees, annual contracts, or other subscriptions. Native PDF support allows you to carry and read all of your documents on the go. image

If the price tag seems a bit high, you may want to consider the Kindle (sans DX), which, in its most recent version (i.e., the latest "generation"), costs a mere $249. For the significant savings, you'll get a significantly smaller display (6") and memory (1,500 books), but the rest of the package is nearly identical.

The DX was marketed to lawyers and others who have not yet been able to let go of their legal pads. The idea, as I understand it anyway, is that the larger-sized DX model would feel more like a notepad, thus serving as a closer substitute. Whether or not that idea will be successful, I haven't got the foggiest. It comes down to personal preference as to: (1) size; (2) memory; and (3) price.

Kensington SlimBlade Trackball $129image

This wireless mouse is downright gorgeous. I own an older model Kensington trackball and couldn't imagine my office life without it. Its stationary design means you don't ever have to move the mouse all around the desk again. Instead, a slight flick of the fingertips enables you to navigate effortlessly across multiple applications and within the most complex documents. Yummy.

Thomas Pink Commuter Tie $100image

The classic haberdashery offers a gift perfect for the dapper gentleman who prides himself on maintaining an impeccable image. The tie, available in several colors, is designed with a "small yet subtle pocket" on the back. The pocket is just the right size to house your iPod Nano and an extra-fabric loop keeps all wires out of sight and close to the body, leaving your hands free to read the Journal on the train ride into work. 



Electronic Windshield De-Icer $25image

Even those people who are crazy about winter (ugh!) don't like to stand in the cold in the mornings just to scrape the ice off of their car windows. This handy gadget makes the snowy weather that much more bearable for all of us. 

The de-icer plugs into the car's outlet and has a 14' cord, which is long enough to reach the front and rear windows of most vehicles. The retractable handle means you can store it easily in your trunk and there's even a built-in light, which is particularly convenient for those pre-dawn trips to work.

Flip UltraHD Minicam $199

Please don't say that you don't have a Flip minicam and please, please, please don't say that you don't know what it is. Flip makes pocket-sized camcorders that are so easy to use, you'll hardly believe that it's a descendent of those mammoth-sized camcorders of yesterday that were lugged in carrying cases the size of suitcase to soccer games and Grandma's house. T

hey cost next to nothing and easier to use than most point-and-shoot digital cameras. Granted, you can shoot just 60 or 120 minutes (depending on the model) of footage but, really, who needs more? 5 minutes of precious memories is probably more than enough. And after you yell "Cut!", you simply plug the camera into your laptop's USB port and, Voila!--you're video is saved on your computer and ready to upload to YouTube. What could be simpler? image

If you don't have a Flip camera yet, now is the time. Just in time for your holiday spending, Flip has introduced a new and improved line of its "minicams" with HD--nothing but the best for your techie, right? It comes in a 60 minute ($149) or 120 minute ($199) format.

If you want to be really sporty, go for the MinoHD.  For $229, you can get 120 minutes of HD video in tiny package and even customize it with your own picture on the shell. (pictured above).

Other, holiday-related posts:

'Tis the Season to Avoid Disaster at the Office Holiday Party
Alcohol and the Office Holiday Party: Tips from the Dep't of Labor
The Risk of Identity Theft Is Higher Than Ever This Holiday Season

Follow me on Twitter @MollyDiBi

Dec. 10: Social Media Policies (Audio Conference)

Posted by Molly DiBiancaOn December 8, 2009In: Seminars, Past

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I'll be presenting a new HR Hero audio conference, HR's Response to Social Media: Policies for Twitter, Facebook, and Other Popular Sites, on December 10, 2009. 

I'll discuss how to create a policy that will help you legally monitor employee online activity and protect your organization from legal risks associated with Web 2.0 in the workplace.

Specifically, we'll talk about:

    • When social media can go terribly wrong -- and why a social medial policy is needed for every workplace

    • The specific legal risks of having Facebook, Twitter, and other online tools available at work

    • Seven issues that your Web 2.0 policy should address, including how to safeguard your organization's intellectual property and other sensitive company data

    • The 24/7 world: Why you may want to govern employee use of social media during working and non-working time.

    • How to craft a policy that treats employees like adults and conveys your organization's trust in its workforce

    • Policy tips on providing employee guidance for using social media to communicate with those outside your organization

    • How to communicate and educate your workforce on your new social media policy


    You can register on the HR Hero website.


    And, for more about social media in the workplace, see the following posts:

    Social-Media Policy Ideas

    Sample Social-Media Guidelines

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

    3 Reasons Why Employers Don't Have a Social-Networking Policy



    Follow me on Twitter @@MollyDiBi 

    [Don't know what a "tweet" is or how (or why) to use Twitter?  Register for my webinar next week on What HR Needs to Know About Twitter]

    An Award You Don't Want: Worst Boss of the Year

    Posted by Molly DiBiancaOn December 8, 2009In: Jerks at Work

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    The eBoss Watch Worst Bosses of 2009 award is one that you probably don't want framed above your desk. There are 25 "winners" selected by a panel of experts on workplace behavior, bullying, and civility. 

    Here's the description of one of the 25 worst bosses of the year:

    Water distribution superintendent, City of Monroe, Monroe, Louisiana
    Benton’s employees recorded a four hour meeting that took place late last year where Benton used hundreds of obscenities and ordered one of the supervisors to physically attack an equipment operator.

    punching fist


    For more on Jerks at Work, see these related posts:

    Abusive Bosses Should Watch Their Backs

    Everything You Needed to Know About Your Toxic Boss

    Could an Ombudsman Help You Squelch Bullies in the Workplace

    5 Costs of Coworker Bullying

    Work-life balance, toxic bosses, and generation gaps, this week in BusinessWeek

    Inside the Mind of a Super Jerk

    Disrespectful Workplace Costs State $314k

    How Crazy Is Your Boss? No, really, how crazy?

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

    It's Friday and Your Boss Is a Total Tool

    The Truth About Workplace Revenge

    Women Bullies In the Workplace

    Jerks at Work and on the Web

    Now's a Great Time for Workplace-Civility Initiatives


    Follow me on Twitter at @MollyDiBi

    Social-Media Policy Ideas

    Posted by Molly DiBiancaOn December 4, 2009In: Social Media in the Workplace

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    At the AON Social Media & HR Summit conference this week, the topic of social-media policies has come up repeatedly.  Attendees at this event are very savvy with respect to the multitude of ways that social media can be used in Human Resources and by employers, generally.  But a question that keeps coming up is “Ok, so now what?”  HR professionals seem to be embracing the many ways that social media can be used but know that there needs to be a set of guidelines for acceptable and appropriate use. 

    Crafting a social-media policy is no easy task.  There are so many variables and possible risks that can and should be addressed before you roll out your social-media initiatives.  I’m going to be speaking again on a panel at the conference here in Chicago in about 20 minutes, so I won’t have time to outline all of the possibilities, so I’ll give you an idea of the first three steps in the process of creating a social-media process.

    1.  Familiarize the Decision Makers

    Unless and until the relevant decision makers understand what social media is, you’re going to have very little luck with getting any program in place.  The first step has to be to get those with the decision-making power comfortable with the possibilities.  So set up a Twitter account for your C-Suite and let them listen to the conversation first so they know what they can expect when the organization makes the move towards social media.

    2.  Select Key Players

    Identify the individuals who will participate in the policy-drafting process.  Who will be your core group?  Consider getting stakeholders from various departments involved.  In addition to HR, consider involving representatives of Corporate Legal, Marketing / PR / Communications, and IT also participate in drafting the guidelines. Will you have a core group draft an outline and then permit employees comment on the draft like IBM did?  Participation does wonders for buy-in of the policy.

    3.  Determine Objectives

    Policy decisions can’t be made unless you have a clear mission and true understanding of what your underlying objectives are.  You can think of it on a spectrum.  On one end of the spectrum, you have an objective of keeping employees away from social media when it comes to their work.  If that’s the objective, you’re going to focus on banning the use of social media in the workplace.  At the other end of the spectrum is the objective of getting your employees fully engaged in social media, using employees as brand advocates and key recruiters.  If these are key goals, then you want to share and include, not censor and prohibit. 


    More to come on social media policies. . .

    Sample Social-Media Guidelines

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

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    Social-media policies are a really hot topic. I spoke today for 3 hours (and 20 minutes, to be exact) about what things an organization should consider when preparing to draft a social-media policy. (To follow the conference on Twitter, use the hashtag #aonsocial09). After the talk, several of the attendees commented that they appreciated the substantive nature of the presentation; i.e., that it was more of a roll-up-your-sleeves type of presentation as compared to more theory-based. This was probably a result of the length of the session. With three hours, it was easier to get into the real heart of the topic instead of an overview.

    In any event, I promised during the session that I would post some links to sample policies that are circulating around the web, and I’ve done that below. Because of the high-level of interest in the topic of social-media policies and guidelines, I’m also going to post about some of the more critical things to include in your policy, and, separately, about how to go about preparing a social-media policy. Honestly, there were a number of topics that we discussed that I’d like to share with our blog readers. In the meantime, you can whet your appetite with some leisure reading...

    Media Organizations

    BBC Guidelines Personal use of Social Networking and other third party websites 

    Associated Press Social Networking Q&A (PDF via

    NPR News Staff Social Media Guidelines

    Technology Industries

    IBM Social Computing Guidelines

    Intel Social Media Guidelines

    SAP Social Media Guidelines 2009

    Sun MicroSystems Guidelines on Public Discourse

    Online Repositories and Collections of Links

    Social Media Governance Database

    TechRepublic Links to Social Media Policies Sample Blogging Policy

    Laurel Papworth’s Collection of Social Media Policies from 40 Enterprises


    See these prior related posts:

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

    3 Reasons Why Employers Don't Have a Social-Networking Policy


    Follow me on Twitter @MollyDiBi

    Using Payroll Debit Cards to Help “Unbanked” Employees

    Posted by William W. BowserOn December 2, 2009In: Policies

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    According to a report released today by the FDIC, a shocking 26 percent of U.S. households have little or no access to banking service, and the problem hits poor and minority families the hardest. As a result, these individuals must often pay to have their payroll checks cashed.

    Delaware employers should be aware that payroll debit cards may be a good way  to help  "unbanked employees" to avoid check cashing charges.

    For many years, efforts to use payroll debit cards were thwarted by Delaware law. Under the Delaware Wage Payment and Collection Act, employers must pay all wages "in lawful money of the United States or checks provided suitable arrangements are made by the employer for cashing such checks for the full amount of the wages due at a bank or other business establishment convenient to the place of employment." The Act further defines a check as being "a draft drawn on a bank and payable on demand." In combination, those provisions appeared to preclude the use of payroll debit cards for wage payment.

    Delaware Department of Labor regulations interpreting the DWPCA, however, were amended in 2004 to specifically authorize the use of payroll debit cards. The regulations state that an employer may issue "a payroll debit card which provides the functional equivalent of cash or a check."  It is the employers' responsibility "to effectuate a payroll debit card system which will allow full payment of wages on the employee's regular payday and without cost to the employee."

    Genetic Information Nondiscrimination Act Update

    Posted by Teresa A. CheekOn December 1, 2009In: Genetic Information (GINA)

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    The U.S. Equal Employment Opportunity Commission (EEOC), announced on that it is now enforcing the Genetic Information Nondiscrimination Act of 2008 (GINA), which was enacted in May 2008 and went into effect on November 21, 2009. The EEOC's summary of GINA says:

    Title II of the Genetic Information Nondiscrimination Act of 2008 protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers' acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases or disorders in family members (family medical history); and requests for or receipt of genetic services by applicants, employees, or their family members.

    The EEOC issued proposed regulations for the enforcement of GINA for public comment earlier this year. The regulations are now in the review process.


    CCH Workday just published a helpful employer alert explaining GINA's basics and an interesting summary of some of the comments submitted to the EEOC that highlight employer concerns about the implications of the law.

    The New York Times published an editorial applauding the Act for "removing a significant obstacle to genetic testing, which can help prevent and treat serious illnesses."

    Employers should also take note that the EEOC has revised its employee rights poster to include GINA. Employers may print and post the GINA supplement, or print and post the revised version of the poster. Employers can also order the poster from the EEOC Clearinghouse, but the poster is on backorder so there may be a delay in shipment.

    Should Women Shun Work-Life Balance Benefits?

    Posted by Teresa A. CheekOn December 1, 2009In: Women In (and Out of) the Workplace, Women, Wellness, & Work-Life Balance

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    Glass-ceiling research shows women continue to be harmed by gender stereotypes.  Managers continue to discriminate against female subordinates because they incorrectly perceive women as having greater conflicts between their family responsibilities and their work responsibilities than men, reports The Academy of Management Journal. Somewhat surprisingly, both male and female managers harbor this misperception.

    The study, entitled "Bosses' Perceptions of Family-Work Conflict and Women's Promotability: Glass Ceiling Affects," was conducted by members of the University of Illinois at Chicago's Department of Managerial Studies. Lead author Jenny Hoobler commented that she expected that "[w]hat we're talking about ... is one of the subtle, entrenched forms of discrimination that make up the glass ceiling."


    The study cautions women about using company-sponsored programs such as on-site child care, flex time or paid parental leave, which are designed to assist employees with work-life balance. The problem is that managers may view use of such benefits as confirmation of women's greater susceptibility to work-family conflicts, and then view such women as less committed to the company and less promotable than their male counterparts who do not make use of such benefits.

    The authors recommend that to reduce the potential that gender stereotyping will affect workplace decisions, companies should educate managers about their own possible biases and should be aware of and guard against allowing "biased perceptions of caregiving roles" to affect promotion decisions.

    Many Thanks to Our Readers

    Posted by Molly DiBiancaOn December 1, 2009In: Locally Speaking

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    Thanksgiving may have officially occurred last week but the authors of the Delaware Employment Law Blog have a new reason to continue giving thanks.  In something akin to a holiday-movie miracle, we were voted one of the Top 100 Blawgs (aka legal blogs) by the ABA Journal yesterday.  Winners were selected by the ABA Journal's editors, based on submissions by readers.  image

    When the opportunity to nominate blogs was announced, lots and lots (and lots) of blog authors campaigned their readers to submit their blogs as nominees. As tempting as that idea may have been, I passed on it because, honestly, we didn't stand a chance.  Or so I thought.  As it turns out, you thought differently. And boy aren't we thankful.

    Please be sure to check out the other 99 amazing blogs on the list and, if you're so inclined, you can vote for your favorite blog in each of the several categories, including DELB in the "Geo" category, between now and December 31.