July 2010 Archives

August 9: EEOC Seminar in Philadelphia

Posted by Molly DiBiancaOn July 29, 2010In: Seminars, Past

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This seminar presented by the EEOC looks like an outstanding learning opportunity for HR professionals.  There are great topics and great speakers, so I'm passing it along for readers in the Philadelphia area.

WHAT: EEOC Technical Assistance Program Seminar

WHERE:  Ace Conference Center, Lafayette Hill, Pennsylvania

WHEN: August 9, 2010

Less than two weeks to register!! Come to the Ace Conference Center in Lafayette Hill for an EEO seminar hosted by the Philadelphia EEOC district office, your source for employment discrimination compliance training. The Ace Conference Center is about 12 miles from downtown Philadelphia and easily accessible from 1-76, I-476 and the Pennsylvania Turnpike.

This seminar has been approved for 5.75 (General ) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute.

For more agenda information, see the seminar brochure with registration form.

Discount Price of $319 is still available when you register and pay online with a credit card or electronic check. Click here to register online.  Regular rate is $349.

Registration Customer Service Contacts: 866.446.0940 (customer service rep), 800.828.1120 (TTY), 518.615.8422 (FAX) or eeoc.traininginstitute@eeoc.gov.

New Guidance on Law Requiring Breaks for Nursing Mothers

Posted by Molly DiBiancaOn July 29, 2010In: Fair Labor Standards Act (FLSA), Resources

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Employers are affected by the health-care legislation, also known as the Patient Protection And Affordable Care Act, in numerous ways. One of the lesser-known parts of the Act is Section 4207, which amends the Fair Labor Standards Act (FLSA).  Section 4207, also called Reasonable Breaks for Nursing Mothers, requires employers to provide nursing mothers reasonable breaks to express breast milk and a separate room where they can take the break for up to the first year after the child’s birth. (See FLSA Now Requires Breastfeeding Breaks and a Place to Take Them).  baby bottle

The law took effect in March but employers have been without any guidance on what the law requires.  Until now, that is.  The Department of Labor has issued an official fact sheet providing some guidance on the specific requirements under the law.  Fact Sheet #73 offers the following guidance:

Who Is Eligible for Breaks

Only non-exempt employees are affected by the law.

Frequency and Duration of Breaks

Breaks must be provided “as frequently as needed by the nursing mother.”  The frequency of breaks and the length of each break “will likely vary.”

Location of Breaks

The Fact Sheet makes clear that a bathroom, even if private, is not considered a suitable location for nursing mothers to express milk.  The Fact Sheet states that, “[i]f the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement.  A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.”

Exceptions to the Rule

Employers with less than 50 employees are not subject to the rule if it would impose an undue hardship. “Hardship” is relative, compared to the employer’s size and financial resources.

Click here to read the entire Fact Sheet #73 (PDF)

Use Twitter, Get Fired

Posted by Molly DiBiancaOn July 21, 2010In: Social Media in the Workplace

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The "resignation" of a CNN editor due to comments made via Twitter was a big story last week.  (See Tweet At Your Own Risk: CNN Editor Learns the Hard Way).  But it certainly was not the first story involving an employee terminated for something he or she posts online, whether it's on Facebook (see Eagles Employee Gets Benched for Comment on Facebook Page), a personal blog (see Employee Fired When Her Sex Blog Is Discovered by Her Boss), or, like the CNN story, via Twitter.

We’ve covered plenty of stories about employees who tweet themselves out of a job. Despite the fact that these stories seem to make the news on a daily basis, employees still do not seem to have grasped the fundamental idea that anything and everything you post online can be used against you by your employer. Ok, well, not discussions of union activity, but just about everything else. Everything, that is, that would impact the employer negatively or put the organization in a bad light.

Recently, the Huffington Post highlighted 13 of these stories, focusing on employees who were fired as a result of [allegedly] inappropriate tweets. We’ve covered several of the stories here before but some of the ones we’ve missed are worth a closer look:

Number 4 on their list is the story of radio host Mike Bacsik. who tweeted, “Congratulations to all the dirty Mexicans” in response to the loss of his favorite basketball team, the Mavericks, to the San Antonio Spurs. Bacsik, who was a professional baseball player before his radio gig, was fired as a result of his racist comments, despite having tweeted an apology the following day.

Number 8 is the story of a former employee of California Pizza Kitchen, who apparently did not care for his employer’s new uniform mandate. The employee, who used the Twitter handle, @Traphik, tweeted, “@calpizzakitchen black button ups are the lamest shit ever!!!" Not surprisingly, management was alerted to the tweet and used the information in @Traphik’s bio to trace the tweet back to the bitter employee.

Number 13 is from the health-care field, an industry that faces significant challenges with social media. In response to a tweet by Mississippi Governor Haley Barbour, Jennifer Carter, a former nursing-school employee at University of Mississippi Medical Center, tweeted that one way for the State to cut expenses would be for the Governor to “Schedule regular medical exams like everyone else instead of paying UMC employees overtime to do it when clinics are usually closed.” Apparently, Carter was referring to an incident that occurred prior to her employment but that didn’t stop her employer from concluding that she’d violated HIPAA’s privacy requirements or from “compelling” Carter to resign.

follow me on twitter

See also, these posts on social media and its impact on the modern workplace:

Waitress Is Fired for Her Complaint on Facebook: Lesson Learned for Employers?

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

Breach of Noncompetition Agreement Via LinkedIn

Sure, You Can Use Facebook at Work . . . We’ll Just Monitor What You Post

Who's Your Daddy? Under the FMLA, It's a Tough Question

Posted by William W. BowserOn July 20, 2010In: Family Medical Leave

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Maury Povich has made a good living hosting a TV show which often focuses on determining paternity. The show follows a familiar pattern. A woman comes on and declares that a man, waiting back stage, is the father of her baby. The child is then shown on the screen for the audience in the studio and at home to adore. The putative father is then marched onstage to loud boos.

He, of course, vociferously denies paternity using a series of arguments used by men through the ages like “the kid don’t look like me” or “she slept with lots of other men.” The man and woman then go back and forth for a bit. No physical violence. This isn’t Jerry Springer. The crowd loves it anyway.

Maury then produces a manilla envelope with the result of a DNA test. After the requisite commercial break, Maury dramatically reads the results of the test. The studio audience erupts. If the man is the father, he pledges to live up to his obligations. Sure, buddy. If he is not, the mother runs off the stage to his taunts. The whole sad affair is wrapped up in ten minutes.clip_image002

Determining parenthood often critical under the FMLA. The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, “[b]ecause of the birth of a son or daughter”, “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and “to care for a son or daughter with a serious health condition.”  See 29 U.S.C. 2612(a)(1)(A)-(C).

Fatherhood, or motherhood, for that matter, is not always clear under the Family and Medical Leave Act (“FMLA”). While in Maury’s world, a child has only one father, under the FMLA there can be many. A parent is defined as “a biological, adoptive, step or foster father or mother or any other individual who stood in loco parentis” to a child.

While Maury uses a DNA test to determine a biological father, it is not necessary for FMLA purposes. Under the FMLA, a birth certificate will suffice. Similarly, court documents will work for adoptions and foster care. But what about “in loco parentis”? Now that’s a tough one. The U.S. Department of Labor recently issued an Administrator’s Interpretation that may make it even tougher.

The FMLA regulations state that “[p]ersons who are ‘in loco parentis’ include those employees with day-to-day responsibilities to care for and financially support a child….” The Interpretation, however, sees this definition as providing only an example of an “in loco parentis” arrangement, not establishing the requirements. Despite the use of word “and” in the regulation, the Interpretation states that an employee need not establish both day-to-day care and financial support. Rather, it sufficient for an employee to provide only day-to-day care. The Interpretation also gives a series of other scenarios which may qualify for in loco parentis status. For example, an employee who will be raising an adopted child with a same sex partner, but who does not have a legal relationship with the child, will still be eligible for FMLA. Good luck confirming these relationships.

The Interpretation concludes by stating the determining whether an employee stands in loco parentis to a child “will depend on the particular facts.” Unfortunately, those particular facts may be hard for an employer to determine or confirm.

Does GINA Provide a Cause of Action for Overweight (or Overly Attractive) Employees?

Posted by Adria B. MartinelliOn July 19, 2010In: Genetic Information (GINA)

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GINA (the Genetic Information Nondiscrimination Act), has been dismissed by many legal practitioners as an unnecessary law with little probable impact on employers.  Au contraire. The ink has barely dried on this new law and, already, GINA is making headlines.  For example, a GINA claim has been filed against a Connecticut employer, GINA may make illegal the common practice of checking Internet sources for information on a current or future employee and, last but not least, as recently posited in this article in Corporate Counsel magazine, GINA could provide a new claim to overweight employees who believe they’ve been discriminated against. microscope

As noted in the Corporate Counsel article, ADA potentially could over a case involving obesity. So could GINA. GINA precludes consideration of family medical history. Specifically, it defines “genetic information” to include “the manifestation of a disease or disorder in family members of such individual.” Disease or disorder is not defined in the statute, but most likely some cases of obesity would be considered a disorder. Further, it has been medically established that in many cases, obesity has a genetic component.

Consider the following hypothetical scenario: Employer observes the manifestation of obesity in a family member of an employee at Company picnic. Employer concludes that employee is overweight as a result of a genetic predisposition. Employer terminates or denies promotion to overweight employee. Voila! Like a Genie in the Bottle, a GINA claim has instantly materialized.

What about the “Too Sexy for Her Job” employee, Debrahlee Lorenzana? Could she claim that her good looks were genetic and therefore state a GINA claim? Not likely, since – even if it runs in the family – good looks would not likely be labeled as a “disorder.” And there’s that pesky little fact that she does not come by it all naturally.

Notice to Job Applicants of Intent to Search Social Networks

Posted by Molly DiBiancaOn July 19, 2010In: Social Media in the Workplace

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Employers who want to use include social-networking sites into their background-check process when considering potential job candidates often ask whether they have to notify the applicant in advance that his or her Facebook page may be viewed during the hiring process. Unless you have a third party perform the Facebook search, the answer is “no.” Employers do not legally need the consent of a potential employee to conduct an Internet search and to view what is otherwise publicly available. But the mere fact that something is not legally required does not necessarily mean that it’s not a good idea. In fact, I’m an advocate of notifying applicants not only that you intend to review the individual’s online presence, including his or her presence on social networks, but also the specific items that you’ll be looking for when you do conduct the search.

There are a number of reasons that I believe this to be the best practice, not the least of which is that it is a better way to begin the employment relationship than “sneaking” a peek at the candidate’s personal life. Additionally, when a candidate knows in advance that a potential employer will be viewing his online activity but still posts content that portrays him negatively, you have a legitimate basis to question the candidate’s judgment, as well as his true interest in the position.

Employers who heed this suggestion and do want to notify candidates of the employer’s intention to review the applicant’s online profiles, then, the next question is, “How?” Employers often request sample language to include on the job application. I’ve written previously that a single sentence ought to do the trick. The sentence can be included in the section of the job application that addresses background checks. For those employers who want specific language, though, I offer you a sample provided by the federal government. Here is what the feds now include on job applications:

As part of the agency’s review of your application, the agency may view and/or access publicly available information about you, including information publicly available on the internet, that is job-related and consistent with the merit system principles and prohibited personnel practices set forth in the Civil Service Reform Act, 5 U.S.C. 2301, 2302. No information from any source may be used to discriminate for or against an applicant based on race, color, national origin, gender, age, political affiliation, religion, disability, marital status, sexual orientation, gender identity, status as a parent, membership or non-membership in an employee organization.

My colleague, Adria B. Martinelli, noted that there is one piece missing from this otherwise good language. In addition to the protected characteristics listed in the paragraph above, federal agencies should consider including “genetic information,” as well, to comply with the latest federal employment law, the Genetic Information Nondiscrimination Act (“GINA”), which, as Adria points out, may turn out to expose employers to significant legal liability in the context of social media and employees. For more on this very recent issue, see Adria’s post, GINA and Social Media.

See also these posts relating to social media in the workplace:

Tweet At Your Own Risk: CNN Editor Learns the Hard Way

Are You Monitoring Your Employees’ Facebook Pages?

Employee Fired When Her Sex Blog Is Discovered by Her Boss

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

Breach of Noncompetition Agreement Via LinkedIn

Sure, You Can Use Facebook at Work . . . We’ll Just Monitor What You Post

Sample Social-Media Policy

Welcome, Delaware Non-Compete Law Blog

Posted by Molly DiBiancaOn July 12, 2010In: YCST

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Delaware Employment Law Blog is pleased to welcome a new employment-law blog to the blogosphere.  Young Conaway's Non-Compete and Unfair Competition practice group recently launched the Delaware Non-Compete Law Blog, focusing on, you guessed it, non-competition agreements and unfair competition litigation in Delaware. 

"The blog is an acknowledgement that the Delaware Court of Chancery, frequently recognized for its expertise in handling corporate disputes, has developed into a leading forum for the enforcement of non-competition agreements and cases involving misappropriation of trade secrets," says Scott A. Holt, a partner in the firm's Non-Compete and Unfair Competition practice group.  "Companies continue to value the Chancery Court's ability to handle these disputes in a quick and equitable manner, which is critical for any business that needs to protect its goodwill and assets."

Readers (and authors!) of the Delaware Employment Law Blog are certain to find the Non-Compete Law Blog a very useful resource.

There's got to be something in the file

Posted by Michael P. StaffordOn July 12, 2010In: Public Sector

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The Delaware Supreme Court has clarified key procedural requirements for terminating non-tenured teachers set forth in a decision issued last week, Angstadt v. Red Clay Consolidated School District.

Section 1410(b) of Title 14 of the Delaware Code states that a non-tenured teacher may request in writing the reasons for his termination after.  The statute requires the district to "provide such reason or reasons in writing" and that "the stated reason or reasons must have either been contained in the teacher's performance appraisal, and the teacher was provided time to correct any deficiency through an individualized improvement plan or other documented materials properly placed in the teacher's personnel file prior to said notice." 3d green folder

According to the Delaware Supreme Court, the term "personnel file" means exactly that- a physical personnel file- and does not simply refer to the type of documentation.  Moreover, documents supporting the decision to terminate a non-tenured teacher's services must be in the personnel file at the time the district's makes its decision.  However, the Court took a very broad view of what constitutes "other documented materials."  Such documents are not merely limited to reprimands or other disciplinary documents.  In this instance, a Lesson Analysis noting some difficulties controlling the classroom constituted the "other documented material" that sufficiently supported the school district's decision to terminate. 

In light of the Angstadt decision, districts will need to review their procedures to ensure that disciplinary documents are promptly placed in teachers' personnel files.  In addition, school districts would be well advised to review the contents of personnel files prior to distributing notices of their intention to terminate non-tenured teachers to ensure that documents supporting the decision are located in the file. 

Angstadt v. Red Clay Consol. Sch. Dist., No. 08C-03-051 (Del. July 8, 2010)

Tweet At Your Own Risk: CNN Editor Learns the Hard Way

Posted by Molly DiBiancaOn July 8, 2010In: Social Media in the Workplace

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Twitter is a powerful medium for communication. Messages can be posted in seconds and from anywhere, and can reach a nearly limitless number of listeners.  But, with great power, well, . . . you know. 

CNN editor Octavia Nasr is the latest personality to make headlines for tweeting her way to the unemployment line. Nasr, who was responsible for the news station's Middle Eastern coverage, tweeted kind words about a Lebanese cleric who was famously anti-American.  When he passed away on Sunday, Nasr tweeted that he was "one of Hezbollah's giants I respect a lot."

CNN issued a statement calling the tweet an "error in judgment."  Nasr responded, blogging that she was referring to the cleric's position against so-called "honor killing" of women. She acknowledged that the life of a designated terrorist is not something she should have commented about "in a brief tweet. It's something that I deeply regret."

Nasr was a 20-year veteran of CNN and the decision for her to leave the company may seem to some to be a harsh sentence for a 140-character tweet. 

Source: Associated Press

See the posts in our Social Media in the Workplace category for related stories.

Employers Must Play or Pay Under Health-Care Reform

Posted by E-LawOn July 8, 2010In: Benefits, Legislative Update

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Health care reform is now law and many of the so called “insurance market reforms” go into effect for most employers on January 1, 2011. However, the portion of the law that will require certain large employers to offer and contribute to employees’ health insurance or pay a penalty are deferred until 2014.Health care symbol

Under the law, effective January 1, 2014, each Applicable Large Employer must offer minimum essential coverage to its full-time employees (and their dependents) or it will be required to pay a penalty for each month that any of its full-time employees purchases health insurance through a state health insurance exchange (“Exchange”) and receives a tax credit or cost-sharing reduction (generally granted to individuals based on income levels).

An Applicable Large Employer is one that employed an average of at least 50 full-time employees during the preceding calendar year. A full-time employee is one who for any month works an average of at least 30 hours or more each week is counted as one employee and those employees who work less than 30 hours per week are counted as proportionate employees based on 30 hours per week. An Applicable Large Employer will be subject to the penalty only if the employer has any full-time employees who are certified as having purchased health insurance through an Exchange and received a tax credit or cost-sharing reduction.

Continue reading "Employers Must Play or Pay Under Health-Care Reform" »

On the Road Again: What State Cell-Phone Bans Mean for Employers

Posted by Adria B. MartinelliOn July 7, 2010In: Legislative Update, Locally Speaking, Newsworthy

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Delaware will join the many states that ban cell-phone use while driving.  The law, signed by Gov. Markell on July 6, will take effect on January 2, 2011. The new law bans texting while driving and the use of hand-held cell phones – meaning a hands-free device will be required to talk on the cell phone while driving. It also bans the use of pagers, PDAs, BlackBerry devices, laptops, games or portable computers, and two-way communication devices while driving. In addition, drivers cannot browse wirelessly or read, write, or send messages while driving.pda 2

There are a few exceptions, including for law enforcement, firefighters, EMS technicians, or other operators of emergency vehicles. In addition, two-way mounted radios can be used to communicate with other employees or a central dispatch.

Any violation is primary offense and a civil penalty. The fine for the first offense is $50 and subsequent penalties are between $100 and $200 dollars.

29 other states plus D.C. & Guam ban texting. Delaware will be only the eighth state to ban the use of hand-held phones. Delaware State Police cite 230 crashes in 2009 that involved the use of a cell phone as a distraction. National research shoes that drivers using cell phones are four times more likely to get into crashes causing an injury.

Employer Policies

The new laws don’t require you to have specific policies, but it’s a good idea to remind your employees that they need to follow the law while they’re working. There are many reasons employers should take all the steps they can to make sure their employees are driving safely while on the job. Employers may be legally responsible for the actions of their employees. If one of your employees is negligent, gets into an accident, and injures someone while on the job, the company could be held liable. Furthermore, if the employee is injured, you will likely have a workers’ compensation claim on your hands as well.

For these reasons, consider adopting and enforcing the following policies – some of which go further than Delaware’s new law:

· Ban all cell phone use while driving company-owned vehicles or on company property (even hands-free phones can distract drivers);

· Ban texting and emailing while driving.  If text messaging must be used, incorporate a strict policy requiring drivers to first find a safe area to park the vehicle;

· Make an exception for emergencies that require police or medical attention;

· Require all occupants of company-owned vehicles or private vehicles driven on company business to wear their seat belts, and monitor and enforce the policy. Seat belt use is the single most effective way for vehicle occupants to prevent injuries and fatalities;

· Include a signed acknowledgement of your written policy;

Finally, employers may want to contact their insurance broker or review their insurance policies to make sure your company and your employees are adequately covered.

By implementing the suggested policies, employers can ensure their employees are following the law AND that, as an employer, have taken all steps possible to prevent accidents and minimize the company’s liability.

Bonus Benefit

Another potential upside of the cell phone ban, according to the L.A. Times, is improved personal relationships!  According to the article, effective communication while driving is difficult and can lead to relationship problems. 

Update: Fumo Attorneys May Get Another Chance to Argue Juror Misconduct

Posted by Molly DiBiancaOn July 6, 2010In: Social Media in the Workplace

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Almost exactly one year ago, we posted about the defense's request for a new trial in the Vincent Fumo case based on allegedly improper use of the Internet by a juror to research or talk about the case.  Their request was denied but it looks like they'll have the chance to make their argument again, now that the prosecution has announced that it will appeal the sentence, which prosecutors argue is too lenient.

The State's expected appeal will likely trigger an appeal by the defense, who are expected to argue that the case was tainted based on one juror's postings about the case on Twitter and Facebook.

See also:

Fumo Found Guilty--No Thanks to Facebook

Fumo Seeks New Trial for Juror's Twitter Use

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www.Employment-Law Updates

Posted by Molly DiBiancaOn July 2, 2010In: Newsworthy

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Although my schedule recently has left little time for blogging, my fellow employment-law bloggers have been busy keeping readers up to speed with the latest and greatest stories impacting human-resources and management professionals. Here’s a sampling:

Social-Media and Employers

There’s an interesting article at Kroll OnTrack about social-media investigations. I’m often asked about best practices for employers to follow when conducting these investigations. Here’s what the author says about one of the biggest risks of social-media investigations:

It is important to note that not every piece of information on the Web is useable or defensible. Due to confidentiality, privacy and security concerns, most courts will not allow a person to falsely represent themselves as a “friend” to collect data. This is known as “friending someone under false pretenses.” If an individual accesses the private data of another under an alias, or if the person being “friended” is unaware of the individual’s true intentions, courts will not hesitate to disregard information obtained involuntarily or without a user’s actual knowledge.

Social-media policies continue to be a hot topic for employers and the education industry is no exception.  Dan Schwartz at the Connecticut Employment Law Blog tells us how one school board in West Hartford, CT, is considering a social-media-usage policy for its teachers and staff.

Employee [Dis]Loyalty

There have been a great number of perspectives written about story of General McChrystal’s resignation.  The Thomas More Institute’s Blog for All Seasons comes reviews the political story from a business-ethics perspective:

Any relationship between employer and employee must contain an understanding – both tacit and explicit – about loyalty. The employer will not cheat his employees by not writing their pay cheques, etc., and employees, in turn, will carry out their jobs responsibly and diligently. The understanding, of course, applies not only in such straightforward matters, but also to more complex ones: confidential corporate information; plans, strategies, etc. In extreme cases, where this relationship breaks down anarchy and chaos result.

Creative Pleading:  Discrimination Against the Unborn

Philip Miles of Lawffice Space tells us of a case that definitely seems to be a contender for the most-bizarre-lawsuit-of-the-year award.  The plaintiff has filed suit alleging pregnancy and religion discrimination, based on her claim that she was terminated because her employer believed that the plaintiff’s unborn fetus was creating a negative energy field in the workplace.  You’ll have to read it yourself to believe it (or not).