September 2010 Archives

Working Families Flexibility Act Proposed in Senate

Posted by Sheldon N. SandlerOn September 29, 2010In: Flextime, Legislative Update

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A law first proposed by the late Senator Ted Kennedy has been resurrected and introduced in the Senate by Bob Casey (D-Pa.) and Tom Harkin (D-Iowa). The law mirrors legislation introduced in the House of Representatives in March 2009 which, to date, has gone  nowhere. Premised on the purported need of employees to have more flexible work options, it authorizes an employee to request from an employer a change in the terms or conditions of the employee's employment if the request relates to: (1) the number of hours the employee is required to work; (2) the times when the employee is required to work; or   (3) where the employee is required to work.Juggle work and home with red hands

The proposal does not require the employer to grant any requests, but does set forth employer duties with respect to such requests, and makes it unlawful for an employer to interfere with any rights provided to an employee under the Act. Under regulations to be promulgated by the Secretary of Labor, an employer would have to hold a meeting with the requesting employee and give the employee a written decision on the request, discussing the reason for any rejection and addressing a prescribed list of possible explanations. An employee would be entitled to request reconsideration and the employer would be required to provide a written response to that request as well. In short, it would create an unnecessary paperwork nightmare.

The proposed law also authorizes an employee to file a complaint with the Administrator of the Wage and Hour Division of the Employment Standards Administration of the Department of Labor for any alleged violations of rights, and provides for the investigation and assessment of civil penalties or the award of relief for alleged violations.

The timing of its introduction suggests that S. 3840  is a political ploy. In view of the current mood of the populace, passage of the legislation is, to put it mildly, a longshot.

Nov. 16, 2010: New Castle County Chamber Women’s Business Expo

Posted by Molly DiBiancaOn September 28, 2010In: Locally Speaking, Seminars

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The Annual Women's Business Expo, held by New Castle County Delaware's Chamber of Commerce, will celebrate its 20th anniversary this year. The Expo will feature over 100 exhibitors, workshops, an awards luncheon honoring businesswomen in New Castle County, and a keynote presentation by author Jen Groover, creator of the Butler Bag.

I will be co-presenting about ways that businesses can use social media from a legal perspective.

The Expo will be held at the University of Delaware. Full day admission for members is $55 ($75 for nonmembers), and you can register online at the New Castle County Chamber's website.

Oct. 18, 2010: Monitoring Employee E-mail, Texting, and Facebook Audio Conference

Posted by Molly DiBiancaOn September 28, 2010In: Seminars, Past, Social Media in the Workplace

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Do you suspect an employee is spending more time Facebooking than working? How far can you go to monitor blogs, e-mails, and texts without invading an employees privacy? Even the best-intended employers are struggling to keep up with the legal developments in this area.surveillance camera

I will be presenting an audio-conference discussing how a recent Supreme Court decision should impact your electronic monitoring policies:

  • Best practices to avoid invasion of privacy claims: Is it really effective, or necessary, to ban personal use of employer-provided phones, computers, etc.?
  • Pros and cons of monitoring your employees' online activities during off-duty time
  • Best practices for monitoring your organization's phone logs, computers, e-mails, texts, blogs and other social media
  • How to implement and communicate a policy to your workforce regarding electronic monitoring in the workplace
  • How to adjust your HR policies to inform employees that your organization's e-mail, blogs, texts, and social networking sites may be monitored
  • The federal rules that govern electronic monitoring in the workplace, including how the Electronic Communications Privacy Act comes into play
  • How far can you go to monitor employee electronic communications? What types of surveillance should you avoid?
  • Your legal options if you suspect an employee is stealing confidential data using an electronic device

This 90-minute audio conference will be held on October 18, 2010, beginning at 11 a.m. Eastern time. Registration and additional information is available on the HR Hero website.

October 15, 2010: Delaware Valley Human Resources Partnership Summit

Posted by Molly DiBiancaOn September 28, 2010In: Seminars, Past

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The 2010 Annual Delaware Valley Human Resources Partnership Summit is coming to the Valley Forge Convention Center in King of Prussia on October 15, 2010.  This one-day conference is a partnership between Greater Valley Forge HR Association and the Philadelphia SHRM Chapter, and features the following six learning tracks:

· 21st Century Tools and Technology2010dvHR_tall

· Employee Relations and Legal

· Engagement, Retention and Recruiting

· HR Strategy

· Total Rewards

· Organizational Development

I am very excited to be participating as a speaker in this year's event. I'll be speaking on Hiring with Social Media as part of the first learning track.

The Summit has been approved for 5.25 HRCI strategic management credits. General credits will also be offered. The conference agenda and online registration are available on the DVHRP Summit website. 

Romano v. Steelcase: Defendant Granted Discovery of Plaintiff’s Facebook Profile

Posted by Molly DiBiancaOn September 27, 2010In: Social Media in the Workplace

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Kathleen Romano sued Steelcase, Inc. for personal injuries she allegedly sustained when she fell from her office chair. Romano alleged that, as a result of the fall, she suffered restricted movement of her neck and back and “pain and progressive deterioration with consequential loss of enjoyment of life.”

As part of its defense, Steelcase sought to obtain copies of Romano’s Facebook and MySpace profiles—both the portions that were publicly available and those that Romano had marked as private using the sites’ privacy settings. To obtain the profiles, Steelcase served both sites with subpoenas.

But Facebook objected to the request on the basis that it cannot release a user’s profile information without the user’s consent because to do so would be in violation of the Stored Communications Act (“SCA”). Romano refused to provide her consent and sought to quash the subpoena on several privacy-related grounds.

Defendant: Facebook Profile May Contain Evidence Contrary to Claims

Steelcase argued in response that, based on the public portions of Romano’s Facebook and MySpace profiles, there was reasonable grounds to believe that Romano, contrary to the claims asserted in her lawsuit, actually “has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation.” For example, Steelcase reported that the plaintiff’s public Facebook profile showed the plaintiff “smiling happily in a photograph outside the confines of her home despite her claim that she. . . is largely confined to her house and bed.”

Plaintiff: Private Facebook Content Is Protected

Romano countered that she “possesse[d] a reasonable expectation of privacy in her home computer.” Steelcase’s claims of relevancy, she argued, were based only on “speculation and conjecture” and characterized the discovery request as a “blatant attempt by defendant to intimidate and harass” her. The wholesale release of all private messages on her Facebook and MySpace account would give Steelcase access to “wholly irrelevant information as well as extremely private information.”

Court: Private Information Doesn’t Belong on Facebook

But the New York Supreme Court wasn’t buying it. Instead, the court ruled, precluding Steelcase from accessing Romano’s profiles “would condone [her] attempt to hide relevant information behind self-regulated privacy settings.” he court found that the fact that, based on the publicly available portions of Roman’s profiles, it was reasonable to conclude that the private portions of her profiles “may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”

The court also rejected Romano’s argument that the release of the information would violate her Fourth Amendment right to privacy because, by joining the sites, she consented to the possibility that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites or they would cease to exist.”

Romano v. Steelcase Inc., 2006-2233 (N.Y. Super. Sept. 21, 2010).

What To Do If Your CEO Is A Ninja

Posted by Lauren Moak RussellOn September 22, 2010In: Just for Fun, Social Media in the Workplace

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   comic book martial artist

This is a question that executives at Apple are probably asking themselves right now as the   result of an unfortunate confluence of events. Apparently, it all started when Steve Jobs, Apple's CEO, visited Japan over the summer. During the same time, an individual was stopped at the airport, attempting to carry  Japanese throwing stars  onto a private plane. A Japanese tabloid put two and two together, and now Apple is in the position of having to deny that its CEO has clandestine job aspirations.

The story has spread so far over the internet that a Taiwanese company has created a "reenactment" of Jobs being stopped by airport security. The fictional Jobs then morphs into a ninja, and attacks airport security.

While Apple's predicament is more humorous than harmful, it is a reminder of the damage that can be done via bad press on the internet. This is another great reason to have a social media policy in place that asks employees to report negative information they find on the web! And a really good social media policy may have the added benefit of ferreting out the secret ninjas in your workforce.

Pastor Terry Jones, Free Speech, and Employee Rights

Posted by Lauren Moak RussellOn September 16, 2010In: Off-Duty Conduct, Public Sector

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Employees' rights to free speech seems to become a hot topic right around election time.  During a very rare interview with Larry King last night, Supreme Court Justice Breyer discussed the importance of free speech. Larry, being the inquisitive interviewer that he is, asked Justice Breyer about Reverend Terry Jones's highly controversial decision to burn copies of the Koran on the anniversary of 9/11.

3d man with megaphone
The Justice compared Jones's plans to the burning of the American flag, a practice that the Justice was repulsed by during the Vietnam War era. Jones was eventually dissuaded from following through on his plan, thanks in part to calls from Secretary of Defense Robert Gates. However, the Justice noted that Jones was well within his First Amendment rights to carry through with his controversial plan, reminding us all that freedom of speech applies equally to popular and unpopular speech.

While private employers are not subject to the restrictions of the First Amendment, this is certainly an issue for public employers to take to heart. Jones's actions and the upcoming elections may well spark political speech within the office. Such speech is generally protected, unless it falls within one of a very few prohibited categories, including profanity and fighting words.

Superbug Reminds Employers to Get a Pandemic Policy

Posted by Lauren Moak RussellOn September 16, 2010In: Policies

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Employers heard the word “pandemic” more often then they’d ever imagined during last year’s outbreak of the H1N1 strain of the flu, also known as Swine Flu. While the World Health Organization declared an end to the H1N1 pandemic in June 2010, employers should still be aware of the ways that a pandemic can impact a workforce. The flu is not the only reason to have a pandemic policy in place in your office.

MSNBC has just reported three cases of a new “superbug” in the United States. The bug is actually a gene that is capable of being easily incorporated into many bacteria. Once the gene has been incorporated into a strain of bacteria, the bacteria become resistant to nearly all antibiotics, including doctors’ antibiotics of last resort.

With this newest of medical scares, employers should once again revisit the idea of a pandemic policy. If your business does not have one, consider one of the many policies available online, from your attorneys, or from human resources consultants. If you already have a policy, make sure your employees are properly trained to comply with the policy—it won’t work if they don’t follow it! In today’s ever-more-connected world, pandemics are a reality of life. But they don’t have to cripple your business.

Delaware Retirees' Personal Info Accidentally Posted Online

Posted by Molly DiBiancaOn September 15, 2010In: Privacy Rights of Employees

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Social security numbers, gender, and dates of birth of approximately 22,000 State of Delaware retirees was accidentally posted online.  According to the AP as reported in the Newark Post, Aon Consulting accidentally posted the information to the procurement section of the State's website as part of an RFP for the State to solicit bids from insurance companies to provide vision benefits to current employees and retirees.  The data remained online for five days before being removed.  The employees' names were not posted.

Identity Theft

In response to the data breach, Aon is reportedly taking the following actions:

  • Contact each affected individual by letter to inform them of the incident and the steps taken to address it;
  • Post public notices in states where there are more than 500 affected individuals;
  • Provide 1 year of free credit monitoring;
  • Establish a toll-free phone line to respond to questions; and
  • Notify U.S. DHSS.

This is an example of a data breach that did not involve any fault on the part of the employer (State of Delaware), thus demonstrating that, even when the employer takes all precautions, its employees' personal data may still be breached. 

More than a year ago, I posted about what an employer should do in the event that employees' confidential information is stolen or otherwise compromised.  (See What to Do If Your Employees' Confidential Data is Stolen).  In Delaware, and many other states, there is a law that addresses what obligations employers and other entities have.  (See 6 Del. C. Chp. 22, Credit and Identity Theft Protection).  The FTC's Identity Theft Site, including its Guide for Businesses, Protecting Personal Information (PDF), are two other helpful resources.

The best plan is one that you make in advance. There's no better time to review your internal response procedures now so you are prepared should your employees' confidential or personal information be publicized accidentally.

3d Cir. Finds Anti-Illegal-Alien Ordinance Unconstitutional

Posted by Teresa A. CheekOn September 14, 2010In: Cases of Note, E-Verify, Immigration

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In Lozano v. City of Hazelton, the Third Circuit Court of Appeals ruled that the Hazelton, Pennsylvania ordinances regarding illegal aliens were unconstitutional.  The ordinances, which had been enjoined by a federal court before taking effect, were designed to keep illegal aliens out of the town by penalizing employers who employed them and landlords who rented to them.  The court found that the ordinance conflicted with federal immigration laws and therefore violated the Supremacy Clause. The ordinances operated in part through the sanction of suspending the business license of any person or entity who hired a worker not authorized to work in the U.S.

The court explained that the Immigration Reform and Control Act of 1986 (“IRCA”), the federal law that first prohibited the employment of undocumented workers, was carefully designed to minimize the burdens imposed on both employers (who did not want to be involved in the enforcement of federal immigration laws) and on authorized workers, who might erroneously be perceived as illegal aliens and discriminated against. Accordingly, IRCA limited the types of complaints against employers that the government would investigate, the measures that employers would have to take to assure that workers are authorized to work in the U.S., and the workers to which it would apply (IRCA applies to employees only, not to independent contractors). Congress also included an anti-discrimination provision in IRCA to reduce the burden imposed on authorized workers.

Continue reading "3d Cir. Finds Anti-Illegal-Alien Ordinance Unconstitutional" »

The Need for (Workable) Social-Media Policies

Posted by Molly DiBiancaOn September 13, 2010In: Social Media in the Workplace

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Employers, if you don't have a social-media policy--get one. 

If you have a social-media policy for your employees but it functions like the one in the Dilbert cartoon, below--throw it away and start over.

Social-media policies have to be functional (and somewhat flexible).  Policies that are draconian or impossible to apply are worse than useless; they are demoralizing to employees.

See also:

Sample Social-Media Policy for Employers

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

Stereotyping and “Reverse” Sexual Harassment

Posted by Teresa A. CheekOn September 9, 2010In: Harassment, Harassment, Sexual

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Claims of sexual harassment made by males has been on the rise. Allegations of male-to-male harassment, especially, are becoming increasingly common. Female-to-male harassment claims, though, are less common. And that's why a recent decision from the Ninth Circuit is particularly noteworthy for employers.

In EEOC v. Prospect Airport Services, Inc., the male plaintiff and the female alleged harasser both worked as passenger assistants (helping passengers who need wheelchairs) at McCarran International Airport. The plaintiff, Rudolpho Lamas, was a recent widower.  His alleged harasser, Sylvia Munoz, was married.male and female silver

After Munoz propositioned Lamas repeatedly, Lamas reported her conduct to the company’s assistant manager.  The manager responded that Lamas (the victim), should tell Munoz to stop and let management know if she didn’t stop. Lamas had already told Munoz that he was not interested, but, following his supervisor’s advice, he told her again. This did not work; Munoz gave Lamas a second note expressing interest in a relationship with him and then tried to give him a picture of herself. Lamas next asked his immediate supervisor for help, but she did nothing.

Munoz gave Lamas a third note that was even more aggressive and explicit. By this time, Munoz had told other co-workers of her interest in Lamas, and they began lobbying him on her behalf. He told them he was not interested, and began feeling embarrassed. Lamas went to the next supervisor up the chain, gave him the note, and asked him to make Munoz stop. The supervisor said he did not want to get involved in personal matters but he agreed to speak to Munoz as a “favor” to Lamas, acknowledging that the latest “love letter” was a violation of the company’s sexual harassment policy. The supervisor spoke to Munoz and warned her to stop, but she didn’t stop.

Munoz began making suggestive remarks and gestures whenever she was around Lamas, on a daily basis. Lamas began to feel oppressed and offended by the constant pressure from Munoz. She had co-workers tell him that she was going to “get him” no matter what. Co-workers began to speculate that Lamas was gay because of his negative response to Munoz. Lamas consulted a psychologist about his emotional distress; he felt helpless and cried.

Lamas complained to four different managers. The company’s general manager said the situation was a joke and that Lamas should walk around singing to himself, “I’m too sexy for my shirt.”

Continue reading "Stereotyping and “Reverse” Sexual Harassment" »

FTC Is Not Amused by Employees’ PDA for Their Employer

Posted by Molly DiBiancaOn September 7, 2010In: Social Media in the Workplace

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All (smart) employers want an engaged workforce. Employees who love their employer are highly coveted and considered to be a potential marketing goldmine.  Marketing gurus encourage employers to put their employees' voices to work, especially in the social-media context, letting employees "spread the word" via blogs, social-networking sites, and Twitter. Certainly, employees who believe in their employer's mission can have great impact in communicating their devotion to others.  But,thanks to the FTC, all of these public displays of affection ("PDAs"), by employees are not without risk.No Public Displays of Affection

As I've written in previous posts, the FTC's recent Enforcement Guidelines require employees to disclose their relationship with their employer any time they post a positive review or comment about their employer's products or services on a social-media site.  The Guidelines apply not only to employees, but also to any individual who receives compensation (whether monetary or in the form of free product or other gifts), from the subject of their positive comments.

Ann Taylor Loft was the first company to receive an enforcement letter from the FTC, following a promotional event where bloggers wrote favorably about the company's products but failed to disclose that they had received free products. 

Reverb Communications is the first employer to receive an enforcement letter for the conduct of its employees.  According to the FTC, the on-line public relations firm sought to promote its clients' gaming applications by having its employees post positive reviews on iTunes.  During a nine-month period, Reverb employees gave the games 4- and 5-star reviews and posted comments such as "Amazing new game" and "ONE of the BEST."

And perhaps they were--great games, that is.  And perhaps the employees really did think that games were some of best games around.  The problem, though, according to the FTC, is that the employees failed to disclose that they worked for the company that was retained to promote the games. 

If the FTC's version of the events is accurate, Reverb did more than fail to train its employees--it took affirmative steps to encourage its employees to engage in behavior that violated the Guidelines.  Should employers just abandon the idea of employee engagement or stop encouraging employees to stop spreading the word about their employer's great products or services?  Not necessarily.  Instead, employers need to be aware of the FTC's guidelines and make sure that employees also are aware of what they can say, can't say, and must say. I've said it before but it bears repeating--employers must have a social-media policy in place that addresses these and similar issues, and they must educate employees about the policy if they don't want to receive a letter from the FTC.

Related Posts:

Another Reason Employers Need a Social-Media Policy: New FTC Guidelines

Turns Out FTC Actually Expects Employers to Comply With Its Rules

Defining an "Employer" Under the Delaware Wage Payment Act

Posted by Molly DiBiancaOn September 3, 2010In: Delaware Specific, Fair Labor Standards Act (FLSA), Wages and Benefits

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The Delaware Wage Payment and Collection Act ("DWPCA"), is the state equivalent of the federal Fair Labor Standards Act ("FLSA"). Both the Delaware statute and the FLSA provide for individual liability for unpaid wages. In other words, an individual can be sued personally if he knowingly permitted a violation of the wage statute.  19 Del. C. Sec. 1101(b) states:

The officers of a corporation and any agents having the management thereof who knowingly permit the corporation to violate this chapter shall be deemed to be the employers of the employees of the corporation.

The Delaware Court of Common Pleas was recently asked to interpret the definition of "employer," for the purposes of individual liability, leading to an interesting and potentially important result.  money falling

In Chasnov v. Brady, No. CPU4-09-8966 (Del. CCP Mar. 23, 2010), the Delaware Department of Labor sued two lawyers on behalf of their former law partner, Chasnov.  Chasnov was ordered to step down as a member of their law firm by the Office of Disciplinary Counsel but he continued to practice with the firm.  He alleged that he was not paid the full amount of fees he was owed.

The Department of Labor brought the suit on Chasanov's behalf to recover the fees he claimed were due. The suit was brought only against the two partners--not against the law firm--based on the provision of the statute cited above.

The partner-defendants moved to dismiss the suit on the ground that the Wage Payment Act does not impose individual liability on members and managers of an LLC.  Instead, they argued, the Wage Payment Act creates liability only for officers and agents of a corporation who knowingly permit the corporation to violate the Act. An LLC is not the same as a corporation and, therefore, members and managers of an LLC cannot be held individually liable for unpaid wages under state law.

The Court agreed with the defendants' argument, finding that the members and managers of a Limited Liability cannot be held personally liable under the state Wage Payment Act.

This is an important decision for employers in Delaware--especially those who operate an entity other than a corporation.  The decision supports a very narrow interpretation of who can be an "employer" for the purposes of individual liability under the Delaware Wage Payment Collection Act--a definition more narrow than the definition of "employer" under the federal Fair Labor Standards Act.