January 2012 Archives

Delaware Court of Chancery Issues Guidelines for Attorneys

Posted by Lauren Moak RussellOn January 30, 2012In: Delaware Specific

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The Delaware Court of Chancery has issued Guidelines to Help Lawyers Practicing before the Court. Chancery Court Guidelines.pdf This guidance may be particularly helpful to attorneys unfamiliar with the level of civility expected of the Delaware Bar. The guidelines also include advice on "best practice, which are informative even for seasoned practioners. Here are some excerpts from the new guidelines:

  • All cellphones and PDAs are strictly prohibited in the courtroom, even if silenced. Failure to comply with this rule may result in confiscation of the device and/or sanctions.
  • Plans for the use of technology during a hearing or trial should be made approximately one week before the proceeding.
  • Where Delaware attorneys are acting as local counsel, letters to the Court from lead counsel should not be forwarded to the Court under a cover letter saying, in substance, "Here is a letter from my co-counsel."
  • Letters to the Court should be short. If a letter exceeds 5 pages, double-spaced, counsel should consider whether a motion is more appropriate. Submissions of up to 15 pages may be filed as speaking motions. Submissions longer than 15 pages should be submitted as motions with supporting briefs.
  • Parties should include in their standard interrogatories a request that the other party(ies) identify prospective trial witnesses. If a party fails to include such an interrogatory, the Court will not look favorably on complaints of unfairness when counsel is unable to depose all trial witnesses before the close of discovery.
  • Answers should repeat the allegations of the Complaint and then set forth the response below, mirroring the practice used in discovery responses.
  • The Court takes issue with parties (1) aggressively denying basic facts without a good faith basis to do so, and (2) reciting a laundry list of affirmative defenses without consideration of the applicability of each defense to the case.
A series of sample documents reflecting the Court's recommended practices are also available from the Court's website.

Delaware Court of Chancery Guidelines

Does Facebook Friendship Require Recusal?

Posted by Lauren Moak RussellOn January 25, 2012In: Social Media in the Workplace

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A decision from the Pennsylvania Court of Common Pleas seems to hold that a judge who is Facebook friends with a party in a matter before him must recuse himself as a matter of course; failure to do so, in this particular case, resulted in the judge's decision being overturned. Does this mean that Pennsylvania judges will be subject to a new, lower standard for recusal?

On May 1, 2011, Pennsylvania State Representative Cherelle Parker was arrested for drunk driving. During a hearing in November 2011, the presiding judge, the Honorable Charles Hayden suppressed the testimony of the arresting officers, finding that, due to conflicting evidence, the officers' testimony was "impossible" to believe.

After the Court issued its decision, the Attorney General became aware that Judge Hayden was Facebook "friends" with Representative Parker. Judge Hayden refused to recuse himself and the Attorney General appealed the case to the Pennsylvania Common Pleas Court. In January 2012, the Court issued an order reversing Judge Hayden's ruling and ordering that he recuse himself from the case.

The basis for the Court's order was its determination that Judge Hayden had abused his discretion by not recusing himself from the case, reports WHYY's Newsworks. (Note: As of this post, we've been unable to locate a copy of the court's order. Thus, our information is limited to the news reports. If you have a copy of the order, we'd appreciate having a look at it.)

This approach, however, seems likely to cause problems. Take this case for example: Judge Hayden has more than 1,500 Facebook "friends," and Representative Parker has more than 4,500 Facebook "friends." Moreover, Pennsylvania judges are elected, making them politicians of a sort. In this day and age, it is not unusual for politicians to have aids manage their social media accounts, especially when they are used for professional rather than personal purposes. Finally, most people with Facebook accounts will readily acknowledge that there is a real difference between a friend and a Facebook "friend." Indeed, Representative Parker's attorney asserts that she and Judge Hayden had no personal connection beyond their Facebook accounts.

Editor's Comments by Molly DiBianca

Social-media activity by judges is an issue not likely to go away any time soon. Although many, if not most, judges do not use social-media sites like Facebook for personal use, it seems inevitable that this statistic will change and the number of judges who engage in social media will increase. This raises at least two questions. First, how, if at all, does the use of social media (and, particularly, social-networking sites), by judges affect their ability and/or perceived ability to remain impartial when an online "friend" is before them in the courtroom? Second, should bar associations opine about and/or take a formal position with respect to this question?

Ethics committees in at least five states have issued advisory opinions regarding online friending of attorneys by judges. All but one of the states to have addressed the question has come out on the side that friending an attorney who may appear in the judge's courtroom is not, per se, impermissible, provided that the judge complies with the rules of ethics in all other respects, including impartiality. (Committees in Ohio South Carolina, and North Carolina have issued advisory opinions that permit judge-attorney friending; Florida's ethics body concluded that such friendships were not appropriate).

But the story addressed in Lauren's post, above, deals with a separate issue--specifically, whether the existence of a Facebook friendship between a judge and a party requires the judge recuse himself as a matter of course. Although the Pennyslvania court seems to have decided the answer to this query is "yes," I am not convinced that it is quite that simple.

We would love to hear your thoughts on the issue--can a judge who is Facebook friends with a party (plaintiff or defendant) remain impartial or should he be required to recuse himself because of that online connection?

5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit

Posted by Molly DiBiancaOn January 19, 2012In: Background Checks

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Criminal background checks of job applicants seems to have reached a tipping point as a topic in employment-law circles. So, what are the key components leading to this perfect storm of EEO laws?

1. Most Employers Consider Criminal History
According to a 2010 study conducted by SHRM, more than 9 out of 10 employers polled conducted criminal background checks on some or all job candidates as part of the pre-employment screening process. The study found that 73% of employers conduct these checks for all candidates, while 19% used them only for selected positions.

2. More Adults Have Criminal Records
According to a March 2011 study by the National Employment Law Project, more than 1 in every 4 adults are estimated to have a criminal record. Thus, the use of criminal-background checks in the job-screening process affects more than one-quarter of all potential applicants. See 65 Million "Need Not Apply" (PDF)

3. EEOC's Public Meeting
In July 2011, the EEOC held a public meeting to "Examine Arrest and Conviction Records as Hiring Barrier," focusing on the use of criminal records by employers for employment screening background checks. The purpose of the meeting was to identify the ways in which criminal histories are being used, how they can be used appropriately, the legal guidelines for doing so.

4. Ban-the-Box Movement--Nationally and Locally
Around the country, cities, counties, and municipalities are adopting laws and ordinances known as "ban-the-box" laws. The reference is to remove from job applications the box that an applicant is asked to check to indicate that he or she has a criminal history. By removing the "box" question, the idea is that an applicant will not be automatically excluded from consideration as a result of criminal background.

Philadelphia is one of the latest cities to join this movement. The Fair Criminal Record Screening Standards Act, which was signed in April 2011, took effect on Friday, January 13, 2012. As detailed in this earlier post, the Act prohibits employers from inquiring during the fir initial interview about a candidate's arrest history.

5. EEOC Settles Lawsuit for $3M
The most recent development has been the settlement of a lawsuit brought by the EEOC against Pepsi Beverages Company ("Pepsi"), in which Pepsi agreed to pay $3.13 million as a result of its policy, which was revised during the EEOC's investigation, and which prohibited the employment of applicants with an arrest history, regardless of whether the arrest had led to a conviction. The payment will be split among more than 300 applicants who, according to the terms of the conciliation agreement, were adversely affected by the policy between 2006 and 2010. A portion of the sum will be allocated for the administration of the claims process. The suit alleged that the employer's criminal background-check policy violated Title VII's prohibition against race-based discrimination.

How can an employer avoid the perfect storm? There are two keys. First, and most important, do not use criminal histories as a per se bar to employment. Second, use the EEOC's suggested best practices to determine whether a particular candidate's criminal history should be considered and, if so, how to do so in a legally sound way. For more information on this process, see these earlier posts:
How Considering a Candidate's Arrest History Could Land You In EEOC Jail
Research Puts 5-Year Expiration Date on Criminal Records Used for Background Checks
Is Creditworthiness a Protected Characteristic? Yes, says EEOC


Don't Hate Me Because I'm Brilliant: Part II

Posted by Lauren Moak RussellOn January 12, 2012In: Hiring, Jerks at Work, Just for Fun, Newsworthy

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You may recall our previous post about a young lawyer who sued his former employer. The lawyer, Gregory Berry, had sent an email to the firm's partners, in which he stated, "it has become clear that I have as much experience and ability as an associate many years my senior, as much skill writing, and a superior legal mind to most I have met." Not surprisingly, Mr. Berry's arrogance was not well received, and he lost his job. He then sued his former employer, seeking over $75 million in damages.

Mr. Berry must have been stunned, then, when his lawsuit was dismissed earlier this week. The court dismissed the suit on the grounds that Mr. Berry had executed a valid release of his claims in exchange for a $27,000 severance payment. Consequently, his claims were barred. The court rejected Mr. Berry's argument that he signed the "unconscionable" agreement under economic duress.

But this story isn't over! In keeping with the self-aggrandizing attitude evident in Mr. Berry's email, he left the Courtroom before the Judge had finished issuing her ruling. She has now ordered the parties to attend a hearing on January 24, for purposes of considering a contempt ruling against Mr. Berry, reports Above the Law.

So what is the lesson to be learned for employers? Well, I suppose there's the idea that there's no way to guarantee you won't get sued. Despite the existence of a valid severance agreement and a substantial cash payent, the law firm still got hit with a lawsuit--and the aggravation and expense that goes with it. If there is a lesson here, it may be that you can never be too selective in your hiring decisions.

Bans on Smokers in the Workplace Continues

Posted by Molly DiBiancaOn January 11, 2012In: Off-Duty Conduct

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"More job-seekers are facing an added requirement: no smoking -- at work or anytime." That is the opening line of an article on USA Today's Money website. I will defer to the news organization and the author of the piece but, to be frank, I have doubts about the objective veracity of that statement. I am certain, however, that this story is not a new one.

In October of last year, for example, we noted that Texas' Baylor Health Care System had elected to implement a ban hiring smokers. This does support the USA Today's claim that health-care employers are leading the way in this trend. We also wrote about this trend nearly a year ago in February of 2011 in a post, called Health-Care Employers Who Don't Hire Smokers, in which we discussed a similar article in the New York Times.

The underlying question in these and similar articles is whether it is a good idea for employers to discriminate against individuals who use tobacco. Without coming out and saying so, both articles seem to conclude that the answer to this question is "yes." As you can read in my previous posts, I tend to be less convinced. Primarily, my concerns are as follows:

1. I don't believe that the best way to address productivity is through a ban on employing smokers. The better way to handle this is through better management. Simply implement a ban on workday smoke breaks; and

2. Tobacco use is a legal activity (at least for now). There are countless other legal activities that endanger the health of employees--obesity in particular. However, it would be a tremendously bad PR move to stop hiring the morbidly obese. We can refuse hiring smokers because smokers are an unpopular group in today's society. Being a defense lawyer, I hesitate to endorse what can seem like picking on an already marginalized group.

That being said, I also recognize that health and wellness are good things. And I would readily support an employer whose real objective is to give its workforce the tools to lead healthier and, in turn, more productive lives. I just tend to think that this should not be limited to bans on smokers.

See also:
Health vs. Privacy: Employers Continue to Juggle Both;
How Far Should Employers Go When It Comes to Employees' Health?;
Not Everyone Is Fired Up About Smoking Ban;
Employer Quits Its Smoking-Penalty Policy;
A Whirlpool of Excitement about Rights of Employees Who Smoke

When an Employer Posts to Employee's Facebook and Twitter Accounts, Bad Things Happen

Posted by Molly DiBiancaOn January 10, 2012In: Social Media in the Workplace

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Employers and social media--boy oh boy, new problems seem to crop up daily. One of the more recent problems is ownership of social-media accounts. The decisions are mixed. For example, one court ordered an employee to return social-media log-in and password information to his employer. But when an employee files suit against his employer for using a social-media account that the employee claims for his own, the tables can turn.

The defendants were an interior-design firm and its owner. The plaintiff, Jill Maremont, worked for the firm as its Director of Marketing, Public Relations, and E-commerce. During her employment, Maremont became well known in the local design community and developed a substantial "personal" Twitter following.

As part of the firm's social-media marketing campaign, Maremont created a blog, which was hosted on the firm's website. She also created a Twitter account using the firm's computer at the firm's office. For reasons that were not explained by the court's opinion, the parties apparently did not dispute that Maremont's "personal Twitter and Facebook accounts were not for the [firm's] benefit." The parties also did not dispute that Maremont created a "personal following on Twitter and Facebook for her own economic benefit and also because, if she left her employment at [the firm], she would promote another employer with her Facebook and Twitter followers."

Maremont filed a complaint alleging four counts: (a) Lanham Act; (b) Stored Communications Act; (c) a state statutory privacy claim; and (d) a state common-law privacy claim.

Subsequently, Maremont was seriously injured in a car accident. While hospitalized, she learned that the firm had updated Maremont's Facebook page and that some of the posts promoted the firm. She also learned that the firm had accessed her Twitter account and used it to post promotional tweets. She asked the firm's owner to refrain from posting updates to Maremont's Twitter and Facebook accounts but the updates continued. Maremont and her husband later changed the password for her Twitter account. Maremont was able to return to work but only for a brief period of time. She left work and did not return.

The court looked first at the false-association or false-endorsement claim brought under the Lanham Act. False endorsement occurs when "a person's identity is connected with a product or service in such a way that consumers are likely to be misled about that person's sponsorship or approval of the product or service." The court let this claim proceed.

The court then turned to the SCA claim. Maremont claimed that the defendants had accessed her personal Twitter account without her permission or authorization. The SCA provides for a cause of action for unauthorized, intentional access to communications held in electronic storage. The defendants admitted that they sent 17 tweets from Maremont's account while she was hospitalized and not at work. Therefore, the court held that the SCA claim could proceed because there were disputed issues of fact as to whether the firm was authorized to access Maremont's personal accounts.

The court dismissed the final two claims, finding that there could be no invasion of privacy for public information and that the defendant had not purported to be Maremont and, as a result, had not misappropriated Maremont's image on the firm's behalf.

Without a doubt, the key lesson from this case for employers is this: when you want to use social media for marketing or promotional purposes, do so with the same rules you would apply to any other business venture. Social-media accounts should be treated like any other company property. Implement rules for their use, just like you would for a company vehicle or credit card. Communicate those rules and enforce them when broken.

Maremont v. Susan Friedman Design Group, LTD, No. 10-07811 (N.D. Ill. Dec. 7, 2011) (PDF).

(H/T to Social Media Employment Law Blog).

See also:
Ex-Employee Must Return Social-Media Account Info to Employer
Who Owns Your Company's Twitter Account?

Keepin' It In the (Blog) Family

Posted by Molly DiBiancaOn January 9, 2012In: Newsworthy, YCST

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Employers have more resources than ever when it comes to employment-related questions. The Internet is chock full of fantastic references for all things employment law. This blog was selected as one of the best in the country by the ABA Journal for the third time this year (thanks, ABA Journal!!), along with several other terrific employment-law blogs. There's a connection between this blog and some of the other winners this year, though, that deserves my attention.

Young Conaway is a long-time member of the Employer's Counsel Network (ECN). Through this affiliation, we publish our monthly Delaware Employment Law Letter (the only monthly newsletter for Delaware employers). The ECN's presence in the blogosphere has multiplied in the past few years and I'm proud to say that 4 of us were selected as Top 100 blogs this year. In addition to the Delaware Employment Law Blog, the following three ECN members also were 2011 award winners (in alphabetical order):

Arizoneout is the newest addition to ECN's blogging family. Written by Dinita James of Ford & Harrison, the blog's focus is narrow but deep--with posts only about the medical marijuana law in Arizona. Dinita's blog is sure to be a go-to resource for employers across the country who will be dealing with questions about managing card-carrying employees. I have a particular fondness for Dinita's blog because, so she says, she was, in part, inspired to finally put pen to ink (or fingertips to keys) after hearing me and my fellow ECN bloggers talk about why we love blogging at an ECN meeting last year. Dinita tweets at @Arizoneout.

That's What She Said is another blog written by Ford & Harrison lawyers. This blog is the longest-running among all of the ECN blogs. The blog makes the Top 100 each year but not in the employment category. Instead, it is listed in the Humor category--and for good reason. Posts track the TV sitcom, The Office. Each week, its authors comment on the various workplace missteps that the show's characters make. They even give estimates of the costs of those missteps if the same facts were to occur in the real world, which surely would result in lots of litigation. The gang can be found on Twitter at @HRHero.

Work Matters is written by our friend, Mike Maslanka, in Dallas. Mike is a prolific writer and constant scholar, who always seems to find the deeper meaning of otherwise everyday events. Mike's take on employment matters is almost holistic--he tends to analyze issues in a highly insightful way. Follow Mike on Twitter @worklawyer.

Although technically not a member of the ECN, Robin Shea's Employment & Labor Insider is almost in the ECN family, since she and Mike Maslanka both are partners with Constangy Brooks & Smith. So maybe her blog is a blog-in-law of some sort. Either way, Robin, who practices in North Carolina, writes in a style that is very easy to read and as entertaining as it is practical. She's been blogging since late 2010 and posts as frequently as ever. Follow her on Twitter @RobinEShea.

Although not in my ECN family, fellow Top 100 bloggers Dan Schwartz and Jon Hyman certainly are members of my blogging family. Dan, who writes the Connecticut Employment Law Blog, is one of true innovators in legal blogging. Jon somehow manages to generate an enormous amount of content on his Ohio Employer's Law Blog. Each blogger also tweets like crazy. Follow them on Twitter at @danielschwartz and @jonhyman.

Eric Meyer also blogs more frequently than most and his new blog, The Employer Handbook, was honored as a Top 100 this year, as well. Follow him on Twitter at @Eric_B_Meyer.

Finally, there are two other winners this year, each of whom have made my Top 100 Employment Law Blogs list in past years. First, there's FMLA Insights, written by Jeff Nowak of Chicago. For any employer with 50 or more employees, there is hardly a more relevant topic than the FMLA and the constant challenges that it presents. Follow Jeff on Twitter @JeffreySNowak.

Second, is Donna Ballman's Screw You Guys I'm Going Home. For reasons that escape me, plaintiff's employment lawyers are largely absent from the blogosphere. But, of the handful of quality blogs written for employees, perhaps none has a better name than Donna's. You can follow her on Twitter @EmployeeAtty.