Delaware Employment Law Blog

EEOC has filed a particularly newsworthy lawsuit against Kaplan Higher Education Corp.The suit is based on Kaplan's alleged consideration of candidates' credit histories during the hiring process.  EEOC takes the position (and has, for quite some time), that employers may be engaging in unlawful employment discrimination by using a candidate's credit history when deciding who to hire. EEOC contends that this practice, in which many employers engage regularly, has an unlawful discriminatory impact based on race and is neither job-related nor justified by business necessity.  In short, EEOC alleges that employers, including Kaplan, are disproportionately disqualifying black candidates due to credit ratings.

Although I understand that there is a comfort to employers in using credit histories to screen clients, comfortable isn't always the most desirable outcome.  When an employer asks me about whether to rule out a candidate based on the candidate's credit history, I usually suggest that it's very possible that a top performing employee can be so focused on being a top performer that their personal lives are left unattended. In other words, you can imagine an employee whose personal credit is less than perfect because they're too focused on work--not the worst employee that I can imagine, by far.

Another scenario is an employee who goes through a difficult divorce, which results in a poor credit rating.  Or, alternatively, if the employee has had a serious family illness.  This, also, can lead to financial difficulty and, in turn, to a less-than-stellar credit rating. 

Of course, none of these scenarios are connected by race or ethnicity.  Thus, I can't say that I am particularly compelled by EEOC's position in the Kaplan case. But neither am I compelled by a credit score--especially not in a difficult economy or in any economy when looking for the best possible employee for the job.

One final note.  Illinois recently passed a law prohibiting employers from disqualifying candidates based on credit history.  The law takes effect on January 1, 2011.  Hawaii, Oregon, and Washington have similar laws.  And, as of late summer, 2010, similar bills were pending in 15 states.  So it seems indisputable that the practice is becoming more and more disfavored.

Other Resources:

Washington Post article re: EEOC v. Kaplan

EEOC Press Release

For the third year in a row, I'm thrilled to submit to our readers what I consider to be the best of the best when it comes to employment law blogs.  Since this is the third year I've published this list, and practice does make perfect, I've imposed a few more rules this time around.  The "rules" and more details about those on this year's list are found below but, first, . . . drumroll, please. . . the winners . . .

*    *    *   *

Update (Dec. 20, 2010, 12:50 p.m.)

Thanks to the readers who noted some of the excellent blogs (current and up-and-coming), that I failed to include.  Be sure to add these to your feed reader, as well:

FMLA Insights, by Francezek Radelet

Labor Relations Today, by Seth Borden, @LRToday

The BELG Blog, by Hirsch Roberts Weinstein, LLP

Additions to the "Up & Coming" Group:

Castronovo & McKinney, LLC, Tom McKinney

Colorado Employer's Law Blog, Jennifer Gokenbach at Ogeltree Deakins

Employment and Labor Insider, Robin Shea, Constangy Brooks & Smith

*    *    *   *

The "Rules"

First, employee- and employer- side blogs were eligible, as they have been in the past.  And you'll notice that some excellent employee--side blogs have made it into the list. 

Second, I did include Canadian blogs but made the standard a bit higher for our blogging brothers and sisters to the North so as to keep the list as U.S. focused as possible.

Third, and this was the hardest, I only included blogs that have posted in the last two months. There were some blogs that I really wanted to include that had not posted since the summer.  So, to be fair, I excluded them from the list--this year only, of course--they're eligible now to be included next year. 

And, fourth, I only included blogs written by lawyers, legal professionals, or from a legal perspective.  Non-lawyer consultants account for less than 10 of the blogs on this year's list and each of those write consistently on legal issues. 

The Importance of Sharing (i.e., What the "Groups" Mean)

This year, I also decided to take a stand on something that drives me slightly buggy--blogs without blogrolls.  I'll be honest, I think it's a little selfish.  Ok, so there, I said it.  I think it's selfish for a blogger to ignore the community that is the blogosphere by not recognizing his or her fellow bloggers via a blogroll.  I do realize that the decision often belongs to the firm and not the individual blogger--some firms are reoffenders in this department--and so I don't want to place all the blamed with just the blogger.  Which is why I didn't make having a blogroll a criteria for inclusion.  Well, that, and I wouldn't have even close to 100 blogs!

So, what you'll see below is the list of the top 100 (plus a few), separated into 3 groups.  The first group includes blogs that have a blogroll that includes DELB.  The second group has a blogroll that, in my opinion, is missing one (namely, us!).  And the third group includes those blogs that, for whatever reason, don't have a blogroll. 

And, one last thing.  I wanted the list to be as readable as possible but, at the same time, wanted to give readers the name of the blog author and firm and, where applicable, the author's Twitter handle. But that was just too much information to put on a single (readable) page.  So, as a compromise, I've listed the name of the blogs below, which are hyperlinked to the blogs themselves.  Then, I've attached a spreadsheet (pdf) containing all of the data, including the blog name, author name (hyperlinked to their Twitter handle if available), and the firm name. 

Up & Coming

There are 4 blogs I that I thought worthy of mention but that have not been around long enough to make the official Top 100.  For those long-time readers of The Word on Employment Law, don't be confused that I have that listed in this category.  Many of you may know that our beloved John Phillips, Jr., accepted an in-house counsel position earlier this year and that his former colleagues have stepped into the role of blogger at The Word.  So, although the blog itself is hardly new, without John's voice, it is certain to be a different, albeit surely wonderful, blog.

Didn't Make This Year's List?

If you're not on the list, don't be shy--leave your blog's info as a comment.  I'll add it to my feed reader and hopefully add it to next year's list. 

And One Last Thing. . .

If you haven't already voted in this year's ABA Journal's Top 100 Blawgs, there's still time left.  You'll find all five of the honorees in the In Labor category, including Delaware Employment Law Blog, on the Top 100 Employment Law Blog list.

So be sure to jump over to the ABA Journal, register, and vote for your favorite--particularly if your favorite is us! 

Congratulations to all 100 of this year's best employment law blogs!

For the third year in a row, I'm thrilled to submit to our readers what I consider to be the best of the best when it comes to employment law blogs.  Since this is the third year I've published this list, and practice does make perfect, I've imposed a few more rules this time around.  The "rules" and more details about those on this year's list are found below but, first, . . . drumroll, please. . . the winners . . .

*    *    *   *

Update (Dec. 20, 2010, 12:50 p.m.)

Thanks to the readers who noted some of the excellent blogs (current and up-and-coming), that I failed to include.  Be sure to add these to your feed reader, as well:

FMLA Insights, by Francezek Radelet

Labor Relations Today, by Seth Borden, @LRToday

The BELG Blog, by Hirsch Roberts Weinstein, LLP

Additions to the "Up & Coming" Group:

Castronovo & McKinney, LLC, Tom McKinney

Colorado Employer's Law Blog, Jennifer at Ogeltree Deakins

*    *    *   *

The "Rules"

First, employee- and employer- side blogs were eligible, as they have been in the past.  And you'll notice that some excellent employee--side blogs have made it into the list. 

Second, I did include Canadian blogs but made the standard a bit higher for our blogging brothers and sisters to the North so as to keep the list as U.S. focused as possible.

Third, and this was the hardest, I only included blogs that have posted in the last two months. There were some blogs that I really wanted to include that had not posted since the summer.  So, to be fair, I excluded them from the list--this year only, of course--they're eligible now to be included next year. 

And, fourth, I only included blogs written by lawyers, legal professionals, or from a legal perspective.  Non-lawyer consultants account for less than 10 of the blogs on this year's list and each of those write consistently on legal issues. 

The Importance of Sharing (i.e., What the "Groups" Mean)

This year, I also decided to take a stand on something that drives me slightly buggy--blogs without blogrolls.  I'll be honest, I think it's a little selfish.  Ok, so there, I said it.  I think it's selfish for a blogger to ignore the community that is the blogosphere by not recognizing his or her fellow bloggers via a blogroll.  I do realize that the decision often belongs to the firm and not the individual blogger--some firms are reoffenders in this department--and so I don't want to place all the blamed with just the blogger.  Which is why I didn't make having a blogroll a criteria for inclusion.  Well, that, and I wouldn't have even close to 100 blogs!

So, what you'll see below is the list of the top 100 (plus a few), separated into 3 groups.  The first group includes blogs that have a blogroll that includes DELB.  The second group has a blogroll that, in my opinion, is missing one (namely, us!).  And the third group includes those blogs that, for whatever reason, don't have a blogroll. 

And, one last thing.  I wanted the list to be as readable as possible but, at the same time, wanted to give readers the name of the blog author and firm and, where applicable, the author's Twitter handle. But that was just too much information to put on a single (readable) page.  So, as a compromise, I've listed the name of the blogs below, which are hyperlinked to the blogs themselves.  Then, I've attached a spreadsheet (pdf) containing all of the data, including the blog name, author name (hyperlinked to their Twitter handle if available), and the firm name. 

Up & Coming

There are 4 blogs I that I thought worthy of mention but that have not been around long enough to make the official Top 100.  For those long-time readers of The Word on Employment Law, don't be confused that I have that listed in this category.  Many of you may know that our beloved John Phillips, Jr., accepted an in-house counsel position earlier this year and that his former colleagues have stepped into the role of blogger at The Word.  So, although the blog itself is hardly new, without John's voice, it is certain to be a different, albeit surely wonderful, blog.

Didn't Make This Year's List?

If you're not on the list, don't be shy--leave your blog's info as a comment.  I'll add it to my feed reader and hopefully add it to next year's list. 

And One Last Thing. . .

If you haven't already voted in this year's ABA Journal's Top 100 Blawgs, there's still time left.  You'll find all five of the honorees in the In Labor category, including Delaware Employment Law Blog, on the Top 100 Employment Law Blog list.

So be sure to jump over to the ABA Journal, register, and vote for your favorite--particularly if your favorite is us! 

Congratulations to all 100 of this year's best employment law blogs!

Do not pass go, do not have your claims investigated.  According to the new referral system from the U.S. DOL's Wage and Hour Division (WHD), potential plaintiffs can go directly to legal counsel.  WHD, the agency responsible for enforcing the Fair Labor Standards Act (FLSA) has announced that it is undertaking a new attorney-referral initiative with the American Bar Association. In what is a jolting move to many, WHD has announced that it will begin referring certain cases to private attorneys instead of investigating those claims.

According to the WHD’s website, the new "referral" program is intended to provide legal access to all employees who seek the WHD’s assistance.  WHD is inundated with claims--according to the site, WHD receives more than 35,000 contacts from employees each year alleging wage and hour violations. Despite hiring 350 new investigators, WHD is unable to pursue all of the claims filed.

Under this new initiative, an employee who claim is not pursued by WHD will be given a toll-free number to contact the ABA-Approved Attorney Referral System. The referral system will provide employees with listings for local labor attorneys who have experience with FLSA and FMLA cases. The employee may then contact the attorneys and file a private lawsuit. If the employee elects to retain an attorney, the attorney will be given special access to the WHD’s determination and relevant documents. What types of documents will be provided remains to be seen.

Employers should note that this is not a guarantee of representation. Although this referral system increases the chances that meritorious claims will be pursued, attorneys may still be relied upon to decline weak cases. The WHD’s decision to release documents prompted some attorneys to suggest that employers seek legal representation before responding to inquiries by the WHD. We would likely agree.  If the Department of Labor is going to provide a toll-free number to potential plaintiffs instead of providing a fair and impartial determination of the claims, any potential benefits for employers of having a government-funded investigatory agency seems to be lost entirely.

This post was written by Lauren Moak and edited by Molly DiBianca.  As with all blog posts, none of the opinions expressed herein are those of the writer's or editor's employer, clients, or other attorneys with whom they work.

Employers often have confidentiality policies that prohibit employees from disclosing the identity of the company's clients, business partners, or vendors.  Some industries and professions are subject to regulations or ethics rules that prohibit such disclosure.  LinkedIn's "recommendations" feature can put a bit of a new spin on an old problem. 

LinkedIn allows users to write recommendations for other users.  Most social-media pros advise users not to make a recommendation unless you do actually know the person you are recommending and would actually recommend him or her if asked offline.  Excellent advice.

But there's more to it in some cases.  Take, for example, me.  As a lawyer, I am bound by certain ethical rules both in and out of the office.  As all rules tend to be, the rules of ethics and professionalism can, at times, be quite nuanced and require more than a passing familiarity in order to comply. One such rule is confidentiality. 

A lawyer may not disclose that he represents Client without Client's express permission.  Only the client can decide to waive this  right.  Here's a social-media scenario where this can become somewhat complicated:

Lisa Lawyer is an employment lawyer.  One of her clients is Acme Co.  She works frequently with Acme's HR Department and Senior Executives, who consult her for legal advice relating to employees and workplace issues. After years of representing Acme, Lawyer has developed close relationships with several of Acme's HR executives.

One of the HR executives sends Lawyer a request for a LinkedIn recommendation.  Lawyer thinks very highly of Eric Executive and is able to recommend him without reservation--he's knowledgeable, professional, has a positive attitude, etc.  Lawyer logs into LinkedIn to write the recommendation for Executive.  To do so, though, it first asks Lawyer to select from her "Experience," how she knows Executive.  Her "Experience" list includes her work history, including her employment as an associate in Firm Fancy.

In order to send the "request for recommendation," Executive had to select how he knows Lawyer and is given the choices from his own Experience List.  Executive indicated that he "had done business with" Lawyer while he was "HR Director at Acme Co."  Now, if Lawyer selects "Associate in Fancy Firm" from her Experience List, the recommendation will display:  Lisa Lawyer, Associate in Fancy Firm, has done business with Eric Executive, HR Director at Acme Co. 

And, just like that, the lawyer has breached her ethical obligation not to disclose the identity of her client. 

And don't be fooled into thinking that, because Executive requested the recommendation, he's given her the go-ahead to disclose the attorney-client relationship.  Not so.  Acme Co.--not Eric Executive--is the client.  And only Acme Co. has the right to authorize the disclosure.  Even if Executive was the owner of Acme and had the authority to authorize Lawyer to disclose the attorney-client relationship, Lawyer would be best advised to confer with Executive before responding to the request to make sure that he is fully aware of her concerns. 

In the social-media context, confidentiality is one of the ethical issues that seems to come up most often--lawyers included.  There are all sorts of stories about confidentiality breaches and leaks when employees post information they shouldn't online.  And confidentiality breaches aren't committed only by bad-intended employees.  The real danger is the accidental or innocent disclosure.  A disclosure is still a disclosure, remember; and, once information is published, it cannot be retracted, so intentions become largely irrelevant.  Social media is a new media and presents lots of old questions in new ways. 

Thank you to the ABA Journal for selecting Delaware Employment Law Blog as one of the Top 100 legal blogs for the second year in a row!  Readers can show their support by voting for us in the "In Labor" category at the ABA Journal's website. Registration is just name and e-mail, takes just a second, and won't result in any annoying advertisements.

On Wednesday, December 8, 2010, the EEOC will commemorate its 45th anniversary by hosting a public seminar discussing its continued efforts to eliminate workplace discrimination. The free event will be held at the National Constitution Center, Kirby Auditorium, from 1:00 p.m. to 4:30 p.m.

The theme of the program is "EEOC at 45: Charting a Path toward Equal Employment."  Current EEOC Chair Jacqueline A. Berrien, and former Chair William H. Brown, III, will participate in a discussion, "Reflections on the Past, Present and Future of the EEOC."  Scott F. Cooper will moderate a panel discussion "Charting a Path toward Equal Employment", featuring attorneys and stakeholders: Mark Dichter, Sidney Gold, Juan Laureda, Rosalyn O'Neale, Matt Rubin, and Patricia Folino.

To reserve a seat at this exciting commemoration, hosted by the Philadelphia Bar Association and the Philadelphia Federal Executive Board, please call 215-440-2671 or e-mail mary.tiernan@eeoc.gov.

The engagement of Prince William and Kate Middleton has the whole world talking. And posting.  On Facebook, that is.  Although most of the talk is pleasantries and speculation, it appears that not everyone is giddy about the impending nuptials.  A bishop in the Church of England posted about the royal engagement on his Facebook page, predicting that the marriage would last only seven years and that the event would be surrounded with “nauseating tosh.”

As do all regrettable online comments, the bishop’s post soon went public and, according to Mashable.com, “incited the dismay of politicians and fellow members of the Church.”  The bishop apologized but he was suspended indefinitely nevertheless.

Certainly this is not the first time that an employee’s Facebook post has landed him in hot water with the boss.  Surely it won’t be the last.

I am pleased to announce that the Editors of the ABA Journal have again selected Delaware Employment Law Blog as one of the top 100 best law blogs. The recognition means a lot to us--almost as much as the recognition that our readers show us each time they read our humble blog.  Readers are being asked to vote for their favorites in any (or all) of the 12 categories--DELB is one of five blogs in the "In Labor" category. 

We are in excellent company this year, to be sure.   To vote, please visit The 2010 ABA Journal Blawg 100. You do need to register to be able to vote but registration is free. If you are already registered, all you have to do is sign in and vote. Voting ends at close of business on December 30, 2010.

Although we do greatly appreciate each and every vote, we are most appreciative for those of you who so loyally visit our blog, share your thoughts and comments, and work hard year round to improve workplaces everywhere.  Thank you for your support!

The Third Circuit Court of Appeals has issued an important decision limiting the scope of the Ledbetter Fair Pay Act, which was passed in 2009 in response to the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber, Co., Inc.  In short, the Fair Pay Act provides that "in pay discrimination matters," the statute of limitations is tolled each time an individual is "affected by application of a discriminatory compensation decision."  In other words, if a female employee is not given the same pay raise as her male colleagues because of her gender, every time she receives a paycheck thereafter serves to toll the statutory period.  Indefinitely. 

Since its passage, the Act has been a source of legitimate concern for employers, who worry that they will be called to explain a decision made many years earlier by a former supervisor under different policies or pay practices, etc.   The Third Circuit's decision in Noel v. Boeing Co. puts some of those concerns to rest.

Noel claimed that he had not been promoted in September 2003 as a result of unlawful discrimination.  Therefore, he would have had to have brought a charge of discrimination with the EEOC or Pennsylvania Commission within 300 days of the decision.  But Noel waited to file his charge until March 2005, about a year too late, according to the defendant-employer and the trial court, which dismissed Noel's failure-to-promote claim.  Noel appealed, arguing that the Act tolled the limitations period and saved his claim.

He argued to the appellate court that, each time he received his paycheck, he was being subject again to the effects of the decision not to promote him in 2003.  The Third Circuit did not agree, finding that the Act can toll the period only for claims involving pay discrimination--not for a claim alleging failure to promote.  The court also explained what it considers to be a true pay-discrimination claim for the purposes of the Act.  Specifically, the plaintiff must be alleging that he or she received less pay for doing equal work and that the difference was due to a discriminatory bias. 

The decision is an important one for employers. Although the application of the Act remains unsettled to some degree, this case at least eliminates one type of claim from an indefinitely extended statute of limitations. 

Noel v. Boeing Co., No. 08-3877 (3d Cir. Oct. 1, 2010).