August 2010 Archives

Tasting Breast Milk And Other Alleged Misdeeds in the Library of Congress

Posted by Adria B. MartinelliOn August 20, 2010In: Harassment, Sexual

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I’ve written on lactation and sexual harassment policies – I didn’t anticipate the opportunity to discuss both in the same article. As reported in the Washington Post, the Library of Congress recently settled a sexual harassment lawsuit brought by one of its librarians. The librarian alleged that the former Chief of the Law Library for the Library of Congress sexually harassed her and other librarians. Among the specific allegations were that he made remarks about female staffers’ bodies and informed some he’d tasted human breast milk.

So much material here, where to start . . . Let’s get the HR lesson out of the way: According to her complaint, the Library of Congress conducted an investigation, found him responsible for inappropriate behavior in 2007, but did nothing about it – after which he escalated his behavior. NEVER EVER conduct an internal investigation, conclude that sexual harassment occurred, and do nothing about it. It’s worse than not investigating at all.

Now, for other interesting pieces of this story. If true, his actions would be inappropriate in any workplace. Context does matter, though, and some industries and workplaces have different environments than others. The alleged harasser has to know, or have reason to know, his behavior was unwelcome. Take Hooters, for example. It may be harder for a waitress at Hooters to show that harassing conduct was unwelcome. Although the on Undercover Boss, we learned that Hooters' CEO was shocked to find that his waitresses were treated in a degrading fashion, I, for one, was not.

If I were to pick any workplace, in which I would assume such comments were NOT welcome, it would be a library. The LIBRARY OF CONGRESS more than any other library, in THE LAW LIBRARY. I’ve spent time in that library and can tell you that you get looked at sideways for turning the newspaper pages too loudly. The very thought of the Library Chief making sexually inappropriate comments in that environment is wrong on so many levels.

And as far as tasting human breast milk? I read in People Magazine (in between reading law review articles and scholarly blogs…) about this guy who makes cheese and other tasty recipes with his wife’s breast milk. Somehow, I imagine when Mr. Library Chief said he’d tasted breast milk, it wasn’t in Chef Dan’s cheese.

Delaware Court's Dress Code Sparks Controversy (?)

Posted by Molly DiBiancaOn August 19, 2010In: Dress & Attire

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Delaware's Kent County Superior Court has issued a new dress code (pdf) for litigants and observers.  The dress code provides that "appropriate dress" that is "consistent with the seriousness and dignity of the judicial process" will be required to gain access to the courthouse. The dress code goes on to say that attire must be "constructed and worn in such a manner that it is not unduly revealing or offensive."  Casual v Business

The dress code goes on to identify certain types of clothing that are prohibited for court appearances, including:

  • Clothing that depicts swear words, violence, drugs, or alcohol use;
  • Muscle shirts or tank tops
  • Halters or bare midriffs
  • Mini Skirts (no more than 4" above the knee when standing)
  • Hair curlers, hats, or head coverings (except those worn for religious purposes)

The Superior Court dress code seems to me to be, well, pretty easy to satisfy. Really, are we asking too much that a litigant take off his hat when he comes to court?  I'm all for casual and all for comfort; but there's a proper place and time. 

Apparently, though, requiring a party to remove his or her hair curlers prior to taking an oath of honesty is too much for some.  U.S.A. Today, no less, has picked up the story in a piece called, Judges crack down on inappropriate clothes in court.  According to the story, some worry that the dress code will result in unequal access to the courts.


If anything, the dress code improves equal treatment in the justice system.  If a litigant does not have the foresight to wear something other than a t-shirt bearing a marijuana leaf to his court hearing, then the dress code actually helps him and ensures that he doesn't act contrary to his best interest.

I have my own opinions (and lots of them) on dress codes and attire policies--I've linked to a few of them below.  Our friend, John Phillips, takes a similar approach to the issue and has inked quite a few outstanding posts on the dress-code topic, as well.

Objection! Opposing Counsel Has Violated the Basic Rules of Fashion!

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

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

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

Facial Hair: Style Statement of the Unemployed

Honey, Does This Outfit Make Me Look Unethical?

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

“Are You My Lawyer or the Janitor?” The lawyer’s dress-code pendulum swings back.

Police Officers Online: Web 2.0 Worries for Public Employers

Posted by Molly DiBiancaOn August 16, 2010In: Off-Duty Conduct, Public Sector, Social Media in the Workplace

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Employers everywhere are facing new challenges when it comes to employees’ use of social media. These technology-based challenges are different, though, for every employer and have different nuances between industries. Certain employees’ off-duty posts on social-networking sites, such as Facebook, can have significantly more impact than others. Police officers are one such type of employee. handcuffs with sheriffs badge

For example, one criminal defendant in New York, who was facing charges for weapons possession, used the arresting officer’s MySpace and Facebook pages to get the charges dismissed. At trial, the officer was questioned about his Facebook status, which said that he was “watching Training Day to brush up on proper police procedure.” And, on the day of the defendant’s arrest, the officer’s “mood” on his MySpace page was set to “Devious.”

A Columbia, Missouri police officer was issued a serious discipline after internal affairs determined that he had posted information about the juvenile record of a protester who had been photographed and quoted in a newspaper story about police brutality. Although the officer has posted the comments under a pseudonym, the protester (and his lawyer) didn’t have to jump to too many conclusions before guessing someone from law enforcement was the likely poster, simply given the fact that juvenile records are not available to the public.

These stories are just two examples of the difficulties employers face when attempting to manage employees’ off-duty Internet activities. These Web 2.0 challenges, though, are complicated anytime a public servant is involved. And, as these stories show, public employees who interact directly with the public will be held to an even higher standard than most.

For more on social media and off-duty conduct, see:

Employee Fired When Her Sex Blog Is Discovered by Her Boss

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

State Off-Duty Conduct Laws and Facebook-Friending Policies

Use Twitter, Get Fired

New Illinois Law Prohibits Employers' Use of Credit Checks in Hiring

Posted by Molly DiBiancaOn August 13, 2010In: Hiring, Legislative Update

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The credit history of a job candidate will be off limits to Illinois employers as of January 1, 2011.  Illinois Governor Pat Quinn signed the bill into law on Tuesday, thereby prohibiting employers from making employment decisions--including the decision whether to hire--based on the individual's credit history.  (See Press Release).

Hawaii, Oregon, and Washington already have similar laws.  And bills are pending in 16 state legislatures that would enact similar prohibitions.  The recent push is likely related to the high unemployment rate--more candidates inevitably will have credit issues as a result of unemployment. Therefore, there are more voices to speak out against employers' use of credit histories for employment decisions. 

The Importance of Office Space

Posted by Adria B. MartinelliOn August 13, 2010In: Just for Fun, Policies, Wellness, Health, and Safety

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How important is office space to employees?  Very important, apparently, according to this article discussing a "summer office swap" conducted at a Boston-area advertising agency.  During the summer months at this forward-thinking firm, nearly every employee switches office space based on a lottery system.

There were a small number of managers with offices, and regardless of how high their pick was, they could not keep an office. However, who did get the office appeared to depend on an elaborate bartering system, which resulted in more lowly office types offering services such as babysitting, car washing, and coffee retrieval in exchange for a seat in a coveted manager office.clip_image002

The article is a good reminder of how important office space is to employees. More than a few employment discrimination lawsuits have been based, in part, on the office (or cubicle) an employee is assigned to.

In 2003, there was a Delaware case involving a plaintiff who filed a federal lawsuit which entailed, among other things, his objection to an office space “auction” at University of Delaware – where the best offices would go to the highest bidder and the money raised would go into a fund for use of the Department.

More recently, I had a case where among a plaintiff’s evidence of “retaliation,” were claims that she was given a “dirty, dusty cubical walls filled with dust mites.” And of course, who can forget the movie Office Space, and Milton, whose most prized possession was his Swingline stapler, and whose cubicle was continually moved until he was eventually wound up in a dimly lit basement among the boxes.

The legal profession is one of the last standouts where a good portion of the employees – lawyers and paralegals – typically have real offices with doors: associates have window offices, partners have bigger window offices, and paralegals have interior window-less offices. I know this is unusual for most of corporate America. But as the Boston Globe article illustrated, even among cubicles there is a hierarchy: those closest to the window, most shielded from foot traffic, etc.

Employers should keep in mind the importance of office space to employees, and what a difference small changes can make. In this era of layoffs and belt-tightening, there may be simple and relatively inexpensive ways to reward your employees and keep them happy: think about small ways their work environment can be improved. Many (indeed most) employers are not cut out for the “summer office swap” conducted by the Boston firm – if this was ever attempted in a law firm, I’m quite certain it would result in a revolt that would make the Pakistani lawyers revolt look tame. Nevertheless, consider what might work for your workplace: access to natural light, modest levels of privacy, can go a long way to build employee loyalty.

Do Bald Employees Finally Have A Cause of Action Under GINA?

Posted by Adria B. MartinelliOn August 11, 2010In: Genetic Information (GINA)

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It has long been believed that bald men do not fare well in the workplace, suffering from hidden bias that results in their failure to get hired or promoted at the same rates as those with a full head of David Hasselhoff-like hair. My husband contends that this is one of the few categories of employees it is still deemed appropriate to poke fun at. I will not comment on the state of his follicular impairment except to say that he is often compared to Cal Ripken, Jr.

I’ve written previously that the newly enacted Genetic Information Nondiscrimination Act (GINA) may have a whole host of unintended consequences, including potential claims for overweight employees.  GINA may offer a claim for follically-challenged individuals as well.

GINA protects against the discrimination based on genetic information. Genetic information includes the manifestation of a disease or disorder in the family member of an employee. At least some types of hair loss are widely deemed to be a result of a medical disorder, and some sources even appear to classify male-pattern baldness as a “hair disorder.” man with ax

Remember, GINA does not cover manifestation of a disease or disorder in the employee him/herself: that is medical information, not genetic information, and therefore governed by the Americans With Disabilities Act (ADA). Baldness alone would not likely qualify as a disability under the ADA. However, if an employer were to observe the manifestation of hair loss in a family member, an employee or applicant who believed he was being discriminated against based on his baldness could conceivably state a claim under GINA.

GINA also prevents an employee from a hostile work environment based on genetic information. Harassment could include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Just like hostile work environment claims based on other protected categories, the incidents would have to be severe or pervasive and simple teasing and offhand comments will not generally state a claim. Certainly, though, there could be circumstances where teasing about baldness, along with other instances, could amount to a hostile work environment.

It may be hard to show that discrimination or harassment was based on baldness was because of genetic information, rather than appearance, which GINA nor any other federal law prevents (unless the appearance was related to age, race, gender, disability or other protected category). But that wouldn’t stop a disgruntled or hurt employee from filing a claim. I highly doubt that MX Energy discriminated against Pamela Fink because of her genetic information – after all, she took the most aggressive step she could to address her genetic condition: she got a double mastectomy upon learning she carried the BRCA gene for breast cancer. Nevertheless, she presents as a highly sympathetic plaintiff and her attorney was able to drum up a whole lot of bad publicity for her former employer by invoking a GINA claim.

So watch out, employers! Creative plaintiffs' attorneys can and will use GINA to create claims where none may have existed before. Given the right set of facts and a sympathetic plaintiff, a bald discrimination or harassment claim under GINA could actually grow roots!

Be Kind to Your Employees – The Bad Publicity Isn’t Worth It!

Posted by Lauren Moak RussellOn August 10, 2010In: Employee Engagement

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A recent spate of highly-publicized stories about employees quitting their jobs have given our attorneys a good laugh—and caused us to think about good employer-employee relationships.
The most popular story so far is that of Steven Slater, a JetBlue flight attendant who quit after he was hit in the head with a piece of luggage while trying to convince an unruly passenger to stay in his seat. It appears that after being hit, Mr. Slater lost his cool, used the airplane’s intercom system to curse at the unruly passenger, grabbed a beer from a beverage cart, and then made a dramatic exit from the grounded plane by deploying the plane’s emergency shoot. CNN reports that during his intercom rant, Mr. Slater stated that “I’ve been in this business 28 years and I’ve had it.”

A similar story involving a woman named Jenny is also making the rounds. Jenny apparently quit her job in a series of pictures circulated to her entire office. Jenny was spurred to action after overhearing her boss call her a HOPA, which she later learned stood for “hot piece of ___.” In response to her boss’s inappropriate remarks, Jenny shot 33 pictures of herself holding a whiteboard. Each picture included different text on the whiteboard, describing the unpleasant treatment that Jenny had suffered as an office assistant. Among the pictures was one revealing that her boss spent 19.7 hours per week playing online games.

Both Steven and Jenny are currently receiving a tremendous outpouring of support online. This support likely derives from the fact that everyone has had a bad job, and wished that they could quit with gusto! As TIME noted, Slater “got to do what so many people wish they could do—tell off a rude customer, then quit, triumphantly. Which makes him, for today at least, an Internet folk hero.”

While these stories are endlessly entertaining to the on-line community, no employer wants to be on the receiving end of this type of publicity. So treat your employees well, and minimize the incentive for them to quit with a flourish. A new rule of thumb might be that if you wouldn’t want your conduct circulated to the office via 33 whiteboard images, you probably shouldn’t be acting that way.

{Update: The day after this post was published, the "HOPA" story was revealed to be a fake. Nonetheless, the lesson for employers--be nice to your employees--is still applicable.}

Utah's Four-Day Workweek Not All It's Cracked Up to Be

Posted by Molly DiBiancaOn August 9, 2010In: Alternative Work Schedules

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Utah was the first (and only) state in the U.S. to move to a mandatory four-day workweek.  Under the system, which was implemented by former Gov. Jon Huntsman in 2008, almost all state employees were converted to a schedule of four, 10-hour days per week.  As readers of this blog may recall, I have not been the biggest proponent of the four-day workweek.  See The Cons of a 4-Day Workweek.  

But not everyone agreed.  In fact, for a while, the compressed-week schedule was very, very popular and local governments around the country began to initiate pilot groups to test it.  These efforts were supported by announcements that the Utah program was generating lots of savings for the State and lauded as an official "success." 

Well, as it turns out, Utah may have been wearing rose-colored glasses when it made the "success" determination, according to a recent audit. The State admitted that it had not seen the reduced energy costs that it had hoped for (realizing only about $500,000 in savings in the first year, as compared to the expected $3 million).  But the audit says it goes a bit deeper, finding that the State overestimated how much money it saved in saved overtime and other costs.  In fairness to the Utah program, though, employee surveys do indicate that employees prefer the four-day workweek, so there must be some supporters. 

Katie Keuhner-Herbert's article on Human Resource Executive about the audit and the four-day workweek program in Utah. See Reassessing Four-Day WorkweeksThe article points out some of the flaws in the four-day workweek and pinpoints some sticking points for employers and employees alike.  (For purposes of full disclosure, I'm quoted in the article--but don't let that deter you.)

See also

  • Positive Benefits of a Four-Day Work Week
  • 5 Steps Toward a More Flexible Workplace
  • Should a Four-Day Work Week Be Mandatory*
  • It's Saturday Today in Utah: 4 Day Work Week
  • Alternatives to the Four Day Work Week
  • Popularity of the 4-day Week Continues to Grow
  • Will Four-Day School Week Push the Four-Day Work Week Trend?
  • Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.
  • Employees' E-Mails Lead to Non-Compete Lawsuit

    Posted by Molly DiBiancaOn August 6, 2010In: Non-Compete Agreements

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    Employees who are considering leaving their employer for a competitor and taking with them trade secrets or proprietary information may want to think twice.  A suit filed by Performance Food Group Co., LLC, a food-service distributor, alleges that a former employee did exactly that.  The federal lawsuit, which alleges breach of contract, claims that the former employee sent confidential and proprietary information to a competitor, all from his work e-mail account. 

    The leak was discovered after the employee gave two-weeks’ notice of his intent to resign.  He was terminated.  The competitor to whom the employee sent the confidential information had extended him a job offer at the time of the breach, but subsequently withdrew it.  Another competitor, however, hired the employee.  In its lawsuit, Performance Food Group seeks punitive and compensatory damages, as well as injunctive relief, barring the former employee from future violations of his non-compete agreement.

    What are the lessons to be learned from this unfortunate story?  For one, it should be an absolute wake-up call to employers about the need to monitor emails.  And, by “monitor,” I actually mean monitor—not threaten to monitor.  Having an effective e-mail monitoring system in place and following it can sometimes help to prevent situations such as this while employees are still working. 

    The second lesson is more of a procedural one.  Employers should have a procedure in place whereby, immediately upon the termination of any employee or upon receipt of notice from an employee that he or she intends to quit, the employer: (1) has its IT department (or consulting firm) preserve the employee’s email account; and (2) has management or HR personnel review the emails for critical information such as evidence of a leak of confidential information. 

    The worst case is to lose evidence simply by failing to act quickly to preserve it. Emails are often an employer’s best defense against a lawsuit brought by a former employee. It is also, as in this case, sometimes the best evidence in support of the employer’s own claims that it wishes to pursue against the former employee.

    Blog Comments as Trial Evidence

    Posted by Lauren Moak RussellOn August 4, 2010In: Social Media in the Workplace

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    Evidence from social-networking sites, such as Twitter, Facebook, and blogs, has become increasingly common in modern litigation. In a recent decision, the U.S. District Court for the District of Delaware permitted the use of consumer responses to a blog post as evidence in a lawsuit alleging fraud and deceptive trade practices.

    In the case of QVC, Inc. v. Your Vitamins, Inc., No. 10-094-SLR (D. Del. July 27, 2010), the owner of Your Vitamins, Inc., a dietary supplement manufacturer, posted very unsavory comments about QVC on his blog. Among the allegations was the charge that Hyaluronic Acid, one of the active ingredient in a QVC dietary supplement, was linked to cancer.

    QVC sued, alleging a litany of claims under state and federal law, some of which required QVC to demonstrate that the objectionable blog posts caused consumer confusion. In order to prove confusion, QVC pointed to consumer comments in response to the blog post. After reviewing relevant posts, none of which was flattering to QVC, the Court concluded that there was no evidence of confusion.

    While QVC’s novel use of blog posts proved unsuccessful in this case, it certainly opens the door for new and creative uses of Internet posts as evidence. It goes without saying that as the Internet and its related technologies continue to develop, there is no end to the ways in which it will impact the law.

    Delaware Employers, Are You Ready for the Cell-Phone Ban?

    Posted by Molly DiBiancaOn August 2, 2010In: Legislative Update, Locally Speaking, Policies

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    Delaware’s law banning calling and texting while driving takes effect in January. Eric Ruth, of the Wilmington News Journal, details what Delaware's new no-cell-phone law does and does not require and, with a few suggestions from Adria B. Martinelli, offers ways that employers can begin to prepare.

    Adria also offers some tips for employers who will need to update their policies:

    • Ban all cell phone use while driving company-owned vehicles -- even hands-free devices can distract drivers.
    • Specifically ban texting and e-mailing 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.
    • Also require all occupants of company-owned vehicles or private vehicles driven on company business to wear seat belts.
    • Monitor and enforce the policy.