Sticks 'n Stones May Break Your Bones, But Workers Can Defame You

Posted by Molly DiBiancaOn September 12, 2012In: Social Media in the Workplace, Union and Labor Issues

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The NLRB continues to whittle away the ability of employers to manage the operations of their businesses. In the past two years, the NLRB and its Acting General Counsel have issued a slew of opinions and advisory memoranda in which they've proclaimed various workplace rules to be in violation of the NLRA. Many of the rules they've found to be unlawful have been standard issue in workplaces around the country for many years. And many employers (and employers' lawyers) believe that the NLRB's interpretation of the Act is alarmingly overbroad.

The latest decision that threatens the workplace as we know it was issued last week, on September 7. In Costco Wholesale Corporation, Case 3A-CA-012421, 358 NLRB No. 106, Chairman Pearce and Members Griffin and Block overturned the ruling of an Administrative Law Judge. There were several workplace rules at issue in the case but the one of particular interest to me read as follows:

[S]tatements posted electronically . . . that damage the Company, defame any individual or damage any person's reputation, or violate the policies outlined in the Costco Employee Agreement may be subject to discipline, up to and including termination of employment.

When I read that prohibition, I am inclined to give it a pretty high grade. What I like most about the provision is that it requires actual harm to occur. It does not prohibit employees from engaging in social-media in a way that may cause harm or that may damage the reputation of the company or others. It requires that some harm actually occur before a violation will be found.

Alas, the NLRB and I apparently use a different grading scale because the Board found that the policy was, indeed, overly broad in violation of the Act. The Board's analysis, as it always does, turns on whether the policy would reasonably tend to chill employees in the exercise of their Section 7 rights.

The Board found that this policy would chill such speech because its "broad prohibition" clearly encompasses concerted communications protesting the company's treatment of its employees. In other words, the NLRB concluded that employees would likely construe the rule as prohibiting them from speaking negatively about the Company.

So how could the rule be fixed? Well, the Board implied that there may be two ways to improve it, if not correct it entirely. First, the Board indicated yet again that disclaimer language may have saved the policy. If there had been some language explaining that the rule did not apply to protected activities, that may have helped. (No guarantee, of course, nor was there any sample language provided).

Second, the Board indicated that the rule should have been limited to acts that fall outside the protections of the NLRA, such as conduct that is "malicious, abusive, or unlawful." I could almost laugh out loud at this suggestion. Almost.

In my opinion, a policy should never hinge on intent. Who's to say what the "real" reason is when an employee posts a negative comment about his employer? Maybe it's malice. Maybe it's stupidity. Maybe he's having a really bad day and just wants to take it out on somebody or something other than himself. Who knows? Not me and, I suggest, not his employer. Let's not play Backseat Psychic, shall we? Leave the intent-based restrictions to my colleagues who practice criminal law.

If there's one thing I'd give the NLRB, it's consistency. If a workplace rule attempts to regulate employees' online activities, it's a safe bet that the Board is going to be skeptical of it, at the least. Even if the rule prohibits employees from harming their employer, the Board may find it to violate the NLRA. Harm away, employee. Harm away.

Your Tattoo Says a Lot About You, Constitutionally Speaking

Posted by Molly DiBiancaOn September 12, 2012In: Public Sector

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Tattoos are intended to convey a message. Whether it's an old-school-style pinup girl or the modern favorite "tribal language," the tattoo bearer, presumably, gets inked because of the message that it conveys. Perhaps the message is meant only for the tattoo bearer but perhaps it is intended for those who see it. Maybe it's a combination of both.

momtattoo.jpg

Either way, residents of Arizona now have a First Amendment right to send a message via permanent body art, according to the Arizona Supreme Court. Last week, the court ruled last week that tattoos are a form of protected speech. In reaching its opinion, the court looked to an earlier decision by the 9th Circuit, which held that a tattoo is pure speech and that the act of tattooing is expressive activity.

The case was remanded to the Maricopa County Superior Court, which will decide whether the city has the authority to regulate tattoo parlors. The decision must take into consideration that the tattoo shops are engaged in constitutionally protected speech.
So why does this matter to employers? I can think of two questions that the decision would seem to raise.

First, does the opinion support the argument that a Facebook "like" constitutes speech subject to constitutional protection? (If you've got no idea why this matters, see my prior post, Social Media as Speech).

Second, does this mean new obligations for public employers in Arizona? Since a tattoo is protected speech, government employers cannot regulate it without a reasonable justification for doing so. Will this be the end of tattoo-prohibitions in Arizona's public sector?

Via WSJ.com

It's All Fun and Games . . . Until It Isn't

Posted by Lauren Moak RussellOn September 11, 2012In: Harassment, Harassment, Sexual

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Miseta v. Stardock, (E.D. Mich.), is a great example of what not to do as an employer in response to a claim of sexual harassment made by an employee.

The employer, Stardock, launched a new video game, Elemental: War of Magicm in August 2010. The game proved to be a complete failure. (I promise, it's relevant.)

Weeks before the launch, Stardock's Marketing Manager, Alexandra Miseta, quit. Shortly after she resigned, Miseta filed a Charge of Discrimination with the EEOC, and later instituted a lawsuit.

Miseta alleged that she had been sexually harassed by the company's CEO. Miseta's claim was based, in part, on emails reaching back to 2008. Significantly, when Miseta sent an email to the CEO asking him to change his behavior, he sent the following response:

I am an inappropriate, sexist, vulgar, and embarrassing person and I'm not inclined to change my behavior. If this is a problem, you will need to find another job. . . . Again, I am not willing to adapt my behavior to suit others. . . . I'm not some manager or coworker of yours. I own the company. It, and your job here, exist to suit my purposes, not vice versa.

After 16 months of discovery, Stardock's attorneys moved for summary judgment asserting that Wardell's comments, while inappropriate, do not constitute sexual harassment. Not surprisingly the Court denied summary judgment.

Instead of acknowledging the loss, Stardock elected to sue Miseta, alleging that she destroyed marketing materials for Elemental, resulting in the game's resoundingly poor performance. The timing of the suit raises some questions. Two years after the files were allegedly deleted, and shortly after its summary judgment motion was denied. Current Stardock employees have also come forward to deny that Miseta deleted files, and offering up emails from the CEO praising the marketing team's work while making no mention of deleted files.

To make matters worse, the CEO apparently has taken matters into his own hands, posting statements to at least one videogame website defending himself and indicting Miseta for "getting pissed off, quitting without notice and using her network access to wipe out our marketing assets."

This is the type of client behavior that keeps lawyers up at night.

The lessons from this case are pretty obvious--don't be a jerk to your employees, don't revel in your chauvinism, and if you are going to do these things anyway, don't do them in writing! On a more serious note, we all occasionally make mistakes. It is sometimes more valuable to admit defeat and resolve to do better the next time, rather than engaging in internet rants and retaliatory litigation.

Employee's Tookus Antics Costs Him $2m

Posted by Molly DiBiancaOn September 6, 2012In: Policies, Terminations & Layoffs

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Jason Selch worked as an investment analyst for his employer for 10 years. The company went through multiple mergers and acquisitions and eventually was bought by a Bank of America subsidiary. After the BoA merger, Selch learned that his friend and co-worker had been terminated after declining to accept a pay cut.  

Presumably in protest of his friend's exit, Selch marched into a conference room where the COO and CIO were meeting.  He asked the executives if he was subject to a non-compete agreement.  When the CIO answered that he was not, Selch promptly dropped his drawers and mooned the two executives.

The two execs, to their credit, weren't flustered by the demonstration and simply returned to their discussion and went on with the meeting. Later, at the COO's instruction, HR issued Selch a final written warning, which stated that any subsequent violation would result in his termination.  

When the CEO learned of Selch's flagrant "display" of insubordination, however, he insisted that Selch be terminated.  As a result of being terminated for cause, Selch had to foreit contingency payments of approximately $2 million, which would have vested in a few months. 

Not surprisingly, Selch sued his former employer, claiming that he was entitled to the contingency payments because, in part, the written warning was a contract, which constituted a promise that he would not be fired unless he engaged in a subsequent policy violation. 

The court granted summary judgment to his employer and the decision was upheld on appeal.  In short, the court held that the warning was not a 
"promise" such that an enforceable contract was created. 

What are the employer take-aways from this case?

Well, first, kudos to the executives who, remarkably, managed not to lose their cool after such a visual assault.  Let us all be inspired by their ability to stay focused on the task at hand.

Second, today is my birthday and I find this story more than mildly entertaining. Because it is my birthday, I will take the liberty to be a bit more candid in disclosing my opinion here--what an idiot. Shame on Selch for acting like an immature middle-school kid. The good guys won this battle and I am glad for that. 

Via NY Daily News

Here's to Job Security

Posted by Molly DiBiancaOn September 5, 2012In: Discrimination

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I spent my Labor Day weekend in the office. Yesterday, I spent my birthday (or 14 hours of it, anyway), in my office. This is not a result of some deeply-seeded self-loathing tendency or a lack of enthusiastic friends. It's a different type of popularity that is keeping me tied to my desk these days--popularity with clients. Or at least that's what I tell myself. Truth told, the real reality is that I'm just plain ole' busy.

And that's a good thing, or so I tell myself. But let me not feel too sorry for myself. [FN 1]
Misery does love company, after all. And I, apparently, am not alone.

Bruce Springsteen.jpg

According a Hildebrandt survey as reported by the Washington Post, employment lawyers across the country have been burning the midnight oil. While the largest legal markets have dropped 2 to 3 percent, labor-and-employment work increased by nearly 5 percent in the second quarter of 2012, as compared with the second quarter of 2011.

Many employers are all too familiar with this phenomenon, unfortunately. As we've previously reported, the EEOC received more complaints last year than ever before. And discrimination is not the only thing keeping my friends in the plaintiff's bar busy, either. The number of FLSA suits has tripled in the last decade.

So, why the uptick in labor and employment work? According to the article, our practice is "countercyclical." In a bad economy, more employees are let go. And the longer they go without being able to find new work, the more likely they are to sue.

On the flip side, the economy has been bad long enough that employees who've been itching to leave but too scared to take that step find they're tired of waiting and they're jumping ship. When they jump ship and climb aboard with a competitor, the former employer is more likely to sue to enforce a non-compete agreement if one exists.

More employees filing suit and more employers filing suit equals more work for labor and employment lawyers like me. I'll put my birthday celebrations on hold for the moment. For now, I'll make a toast to job security.

[FN 1] Don't feel too bad for me. I did see The Boss in Philly on Labor Day. See Picture, above. And what could be more motivating than Bruuuuuuuuuuuce to get me through the workweek?

Why I May Have to Eat My Emoticons

Posted by Molly DiBiancaOn September 5, 2012In: Just for Fun

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Most of the time, HR and employment law are serious topics. But, sometimes, they can be seriously funny. Today, I read something that qualified for the latter description. It strikes me as so funny that I just have to share it with you, dear readers.

Regular readers may recall a post I wrote a while back about the dangers of communicating with email. Recent research seems to confirm what many of us have long suspected--that recipients are more likely to give a negative connotation to email than they would if the same conversation had taken place face-to-face.

love-emoticon.jpg

Some smart folks had suggested that the use of emoticons in emails would help to communicate the tone of the message and could help to prevent unintended negative inferences. I enthusiastically endorsed the idea and admitted that I use emoticons a lot already--probably a lot more than most people in general and almost certainly more than most lawyers.

Well, a survey I read about today may have me eating my words--or, more accurately, my emoticons. According to an article at the Huffington Post, the survey found that emoticons may be sending more of a message than we thought. Specifically, the survey reported that:

"71 percent of women and 90 percent of men said that receiving a winky face indicates the possibility of romance or a first date"

Yes, you read that correctly--according to the survey, including an emoticon in your email is today's pick-up line. And, according to the survey, the technique works! The survey also found that about half of office romances started with an emoticon.

Apparently, I'm not the only one who's been sending the wrong message unintentionally--the same survey reported that about half of office workers say that they use emoticons regularly in emails sent to coworkers. So, maybe it's not just me.

But, so as not to risk sending the wrong message with my emoticon usage, maybe I'll add yet another disclaimer to my email stationery that says:

This email is not intended to convey an intent or desire to engage in any romantic or inappropriate conduct of any kind. Any emoticons used herein should not be interpreted in any manner that infers or implies an intent by the sender to engage in any romantic or otherwise inappropriate conduct.

What do you think--sufficiently confusing, yet effective? Just in case I can't get approval to add the proposed disclaimer, though, let me just say this: If you receive an email from me and it includes an emoticon--winking, smiling, thumbs up, otherwise--I assure you that it is not a way for me to suggest any kind of indecent proposal.

Just so we've got that all cleared up. And, if you found this story to be particularly entertaining, you can thank our friends over at the Alabama Employment Law Blog, whose post alerted me to the story. But chose your email emoticons carefully--you wouldn't want them to get the wrong idea, after all.

Images for Labor Day

Posted by Molly DiBiancaOn September 3, 2012In:

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Happy Labor Day, dear readers. In observance of this important national holiday, may I suggest having a look at a new set at the Library of Congress, called Child Labor & Lewis Hine. The set showcases the works of investigative photographer Lewis Hine, who portrayed working and living conditions of children in the U.S. between 1908 and 1924.

National Child Labor Committee.jpg

Hine's photography was aimed to promote the "rights, awareness, dignity, well-being and education of children and youth as they relate to work and working." You can read more about his work in the set description.

California Passes Comprehensive Social-Media Privacy Laws

Posted by Molly DiBiancaOn August 31, 2012In: Privacy In the Workplace, Social Media in the Workplace

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California is now the third state to pass legislation banning employers from requesting or requiring the social-networking passwords of employees and applicants. The bill was passed by the state Assembly on Wednesday, reports the WSJ Blog. Maryland was the first state to pass a social-media password-protection law, with Illinois following suit just a few weeks ago. The bill now moves to the desk of the Governor for signature by the end of the month.

Last week, the California Senate unanimously passed a bill that prohibits colleges and universities from requesting access to student's social-media accounts. Delaware was the first state to pass social-media privacy legislation applicable to students and academic institutions. With the passage of the employer-based bill, California's protections will be the most comprehensive in the country.

The WSJ Blog article also references Bradley Shear, a Maryland attorney who has "advised lawmakers around the country on social media privacy legislation" and who the article quotes as saying that the California bill "is a huge win for the business community because it may provide California businesses with a legal liability shield from plaintiffs who may allege that businesses have a legal duty to monitor their employees' personal password protected digital content."

Seriously? Who does he think he's kidding with that nonsense? The law imposes new restrictions on employers--and new liability to go with those restrictions. It limits an employer's ability to regulate its workplace, investigate wrongdoing, and, in some instances, to protect employees. There has never been a successful lawsuit based on an employer's failure to "monitor [its] employees' personal password protected digital content." So, if the law protects employers from something that never happens but imposes new restrictions and liability, I fail to see how that counts as a "win" for employers.

Of course, it is a win for Mr. Shear, who, apparently, is devoting his time to the passage of these laws and enjoying the media resulting from his involvement. But I doubt this line on his resume will help him secure many businesses as clients because, contrary to his claim otherwise, businesses don't like these laws because they are unnecessary and overly broad.

Social Media Round-Up

Posted by Molly DiBiancaOn August 29, 2012In: Social Media in the Workplace

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Happy Wednesday, dear readers! There have been a number of interesting social-media stories in the news headlines recently. And, although I'd love to devote a post to each of them, my day job makes that ambition a bit unrealistic. But they are worthy of mention, so I'm going to so in today's post. Here goes!

Anti-Government Posts Lead to Trouble for Commenters

First, there are two stories of individuals who've gotten into trouble for their political speech online. The first of the two comes from Virginia, where a judge ordered the release of a 26-year-old former Marine, who was questioned by the FBI and then detained for a mental-health examination because of comments he posted on his Facebook page that, according to the FBI, indicated an intent to engage in violent and/or terroristic activities.

The second of the two stories comes from the Netherlands, where a 28-year-old man was given a six-month suspended sentence for threatening and insulting Queen Beatrix. The man posted his insults on Twitter. The court found that the tweets were "offensive to her dignity" and held that, whether the Queen actually saw the insults was irrelevant to their decision. The Irish Times reports that the decision is the first of its kind from the Dutch court.

In the Courtroom

The federal Judicial Conference Committee on Court Administration and Case Management published an updated edition of Proposed Model Jury Instructions. The instructions are aimed at juror's use of social media and other new technology while serving jury duty.

There are several important changes to these new Proposed Model Instructions but, to me, the key change is the inclusion of a reporting instruction. If a juror learns that another juror has violated the instructions, he is to inform the judge.

This issue has come up for lawyers, too. The ethics rules of some states require an attorney to report any suspected violation by a juror. But other states, including Delaware, have no such rule. Absent a specific rule, the question has been posed at more than one seminar I've attended (as attendee and speaker), but I've never heard a definitive answer. (If asked what I would do--as opposed what I would be obligated to do, the answers may not be the same. I can assure you that the answer to the former is, "report it at once.") via ABA Journal

Social-Media Privacy

An interesting development in social-media security has been announced by McAfee called, Social Protection. The Facebook app and browser plugin is said to display users' photos as blurred images, which will be displayed as actual photos only once the user's Facebook friends have installed the app.

Even more interesting are the app's other protections, which prevent photos from being downloaded, shared, or captured as screen shots. (How that works, I have no idea but it sure does sound cool!) It's a fascinating concept and I will look forward to seeing how it is received by Facebook users. Social Protection is currently available as a free public beta version. via AllFacebook.com

Is the NLRB In Need of a Dictionary?

Posted by Molly DiBiancaOn August 28, 2012In: Union and Labor Issues

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A recent decision by the NLRB has many employers (and their lawyers) up in arms. It has left me wondering whether maybe the Board needs a dictionary. Blacks-Law-Dictionary.jpg

In Banner Health Systems, 358 NLRB 93 (2012), the Board held that an employer's instruction to employees to keep information confidential during an internal investigation violated the employee's Section 7 rights under the NLRA. In that case, an employee filed an internal whistleblower complaint about instructions he'd received from his supervisor that the employee felt would endanger patients. An HR consultant told the employee not to discuss the matter with co-workers while it was being investigated.

The ALJ held that this prohibition did not violate the NLRA but the NLRB disagreed.
As the basis for its finding, the NLRB found that, although an employer could require its employees to maintain the confidentiality of an investigation, it must first determine whether that step is really necessary. The Board held that, to make this determination, an employer must first look at whether: (1) witnesses were in need of protection; (2) evidence was in danger of being destroyed; (3) testimony was in danger of being fabricated; and (4) there was a need to prevent a cover-up.

So, dear readers, have you ever conducted an internal investigation in the workplace? An "investigation," by its very definition, implies that there is a suspicion and/or report of wrongdoing. (You don't say that you're going to "investigate" whether an employee put in all-star effort to exceed his sales quota last month, do you?). If you are conducting an investigation of any kind and under any circumstances, I would argue that, at the very least, the last three questions suggested by the Board will be answered in the affirmative.

If you didn't care whether the to-be-questioned witnesses got together and matched their stories up in advance, you wouldn't call it an investigation, would you? You'd call it conversation. Heck, you may even call it party talk, or dinner-table chit-chat but you would not call it an "investigation."

But you needn't take my word for it. Black's Law Dictionary, defines the word, investigate as follows:

To inquire into (a matter) systematically; to make (a suspect) the subject of a criminal inquiry

Black's 7th ed. at p. 830. I believe this definition further supports my thesis--the Board apparently is without a dictionary. Perhaps we should all chip in--the holidays will be here before we know it. The hefty Black's Law Dictionary with its sultry black leather cover makes it a great gift for those who take themselves quite seriously. We'll be sure to bookmark page 830 and highlight the definition of "investigate" before we wrap it, though.

What Does "Good Faith" Mean for the EEOC?

Posted by Molly DiBiancaOn August 27, 2012In: EEOC Suits & Settlements

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The District of Hawaii is the latest federal court to address the obligations of the EEOC during conciliation before it files suit. In EEOC v. La Rana Hawaii, LLC, the court determined that the Ninth Circuit's decision in EEOC v. Pierce Packing required a "genuine investigation, reasonable cause determination and conciliation [as] jurisdictional conditions precedent to suit by the EEOC." The court explained that, in light of this precedent, the EEOC must actually investigate the claims of discrimination and harassment and attempt to resolve the claims through good-faith conciliation.

The court next considered whether the EEOC's conciliation efforts in this case adequately satisfied Title VII's pre-suit requirement. The court acknowledged that the Ninth Circuit has not yet articulated a standard for determining the sufficiency of conciliation. Nevertheless, the court found that the EEOC had failed to conciliate in good faith by failing to provide the defendants with enough information with which they could evaluate the EEOC's claims.

Specific problems that the court identified included the EEOC's "obstinate refusal" to provide the defendants with any specific information about the class members or the allegedly unlawful acts. This refusal constituted a failure to demonstrate a "willingness to work toward settlement." The court found that the EEOC's "take-it-or-leave-it" offer further demonstrated the insufficiency of its efforts.

Having found that the EEOC failed to satisfy its pre-suit conciliation obligation, the court explained that the EEOC should be provided the opportunity to cure any defect in the process. As a result, the court stayed the case pending the completion of a good-faith conciliation by the parties. The court instructed the EEOC to provide the defendants with information necessary to make an informed decision about the case. For example, the EEOC must provide the number or identity of the claimants that it had identified during its investigation, as well as information about the specific incidents of harassment or discrimination.

EEOC v. La Rana Hawaii, LLC.pdf

See also:
When the EEOC Goes Too Far
When the EEOC Goes Too Far--Part II

How to Nail Your Law-Firm Interview

Posted by Molly DiBiancaOn August 22, 2012In: Hiring, Purely Legal

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I take very seriously the job of interviewing potential candidates. There are certain things that a candidate can do or say to sabotage their chances at getting an offer. Many of these "offer killers" are more common than you might think. Many of the lawyers I've talked with have expressed frustration about similar behaviors from the candidates they've interviewed. In an effort to help future candidates, I humbly suggest some things to avoid.

Only Fools and Egomaniacs Submit a Less-than-Perfect Resume

No student should ever--and I do mean ever send out a resume that hasn't first been reviewed by several professionals. Whether it's through your school's Career Services department, through a formal resume-review program, or just by the smartest professional adults you know, there are plenty of resources for having your resume reviewed.

When I receive a resume that misses the mark in even the smallest way, I find it difficult to take the candidate seriously. It tells me that the candidate has one of two equally undesirable personality traits. He is either: (1) sloppy and lazy; or (2) thinks he is smarter than everyone else. There are no other explanations for a student who fails to have his resume reviewed (repeatedly) prior to submitting it. I do not want to work with a new lawyer who falls into either category.

One Error In a Cover Letter Is One Error Too Many

The same rules apply with respect to cover letters. I cringe when I think of the number of times I have seen a cover letter that starts with, "I am a second year law student" instead of the properly hyphenated, "I am a second-year law student." It's called a phrasal adjective, kids. It's ok if you don't know what one is but you'd better find someone who does so they can point out your mistake.

If a dork like me receives a cover letter that contains an error in the first sentence, you're facing an uphill battle. And not just because of your claim, two paragraphs later, that you have "outstanding writing skills." For me, the real frustration is that you could have gotten right, you just didn't bother to take the time to ask someone. You have a legal-writing teacher, don't you? Ask him or her to look at your letter and thank him or her profusely if they return it to you covered in red ink.

Get the Name Wrong and You've Got No Chance

The cardinal sin for cover letters, though, is not grammatical. It's far, far worse. Although far less common, I am still amazed when I read a cover letter that, at least once in the body of the letter, makes reference to the wrong firm.

Yes, it happens. Usually right around the third paragraph, which must be when students grow weary of editing their own work, the author reiterates how confident she is that she will be an attribute to Smith, Jones, and Smith, LLP. Except, I don't work for Smith, Jones, and Smith, LLP. Smith, Jones, and Smith, LLP, is my firm's competitor.

To me, this error demonstrates the candidate's lack of editing skills and, more important, lack of interest. Neither of which are positive qualities in a potential new hire.

Your Resume Is Not the Place to Demonstrate Your Creativity

Creativity is a desirable trait for a lawyer. But resumes are not the place to show us how creative you can be. Save it for your legal analysis. There are two common failures in this regard.

First is the Overly Long Resume. Legal resumes should be one page in length and no more. You are not, I guarantee, so amazing as to require additional pages. Brevity in writing is a skill, so start practicing.

Second is the Oddly Formatted Resume. Lawyers don't use crazy fonts. If you want to demonstrate your prowess for typeface, go into graphic design, not into the practice of law. Your resume is not the place to use distracting borders or other "fun" formatting techniques.

Mind Your Manners

Try to recall every lesson your mother ever taught you about proper etiquette. Then try harder to remember some more. And take them to heart.

My entire interaction with you is limited to a 20-minute interview. None of these 20 minutes should be spent slouched in your chair. Sit up straight. Look me in the eye when you are answering a question. And don't interrupt me when I'm speaking. The same rules apply in the courtroom and I don't want to have to teach these rules to you now--you've got plenty of other things to learn, trust me.

Speak Like a Grown-Up, Even If Your Interviewer Doesn't

Language matters. Word choice matters. We are lawyers and we care how you speak. Do not use any words such as "cool" or "yeah" during your interview. And, I know it's hard but try to limit the amount of times you say the word, "like." You wouldn't believe how many times a candidate utters that word during a short interview. It would make your head spin. I understand that this is a habit that is difficult to break. But try anyway.

Be wary if your interviewer is on the younger, cooler side of the lawyer spectrum. I am sure that I tend to come off as more casual than many of the interviewers that candidates meet. But don't let my preference for pink fool you. I still expect you to conduct yourself in the same way that you would if I was wearing black pinstripes.

I may be partly to blame for this casual leaning because of my inclination to be friendly and my desire to make the interviewee feel comfortable. But being comfortable in an interview is not the same as being comfortable in a college dorm room. Keep this in mind.

Some Parting Thoughts

Candidates of the future, you have been warned. Now that you know what bothers your interviewer, it's up to you to avoid these pitfalls. And, once you land the gig, consider reading this article about ways to make sure you get an offer to return. The cleverly named article was written by Ben Potts, an all-star summer associate who recently finished his first summer in our firm's summer-associate program. Take his advice, he writes from experience and his suggestions are dead-on.

Gordon Ramsay, A Hotel, and a Hen House

Posted by Molly DiBiancaOn August 21, 2012In: Jerks at Work

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Last night I watched the second episode of Gordon Ramsay's new show, Hotel Hell. If you're not familiar with the show, the basic premise is this: Gordon visits a failing hotel and, after lots of screaming and yelling, turns the owners into decent human beings who don't treat their staff like savages and who see the error in their ways. The team all pulls together at the end and turns the place around. [FN 1]

Like the premiere episode last week, last night's episode provided no shortage of "teaching moments." [FN 2] The main lesson from last night's show was this: leave the farming to the farmers. Just because you have enough change in your pocket to buy a parcel of land does not mean that you should be operating a John Deere. The chickens will cluck at you from the hen house and the cows are likely to give you a swift kick with a hoof if you so much as think trying to milk one of them. Blue Hen of Delaware.jpg

In this case, there was no farm, no tractor, and no animals. It was worse--there was a lawyer with a hotel. A lawyer who had no experience whatsoever in the hospitality industry. But, one starry night, he was talking to his wife about what they should do to celebrate their wedding anniversary when he had the bright idea to buy the local landmark hotel instead of, let's say, just booking a dinner reservation.

And, poof, just like that, the lawyer became a hotelier. Not a successful hotelier, mind you. But a hotelier nonetheless. Soon, Gordon was on site to save the day.

He nearly fell over when he learned that Mr. and Mrs. Hotel Owners had no experience in any aspect of hotel or restaurant management. He told them, or, technically, screamed at them, that they ought to just sell the place; that they were not cut out for this business. As it turns out, it seems that Gordon may have been right, the post-script following the show indicated that the bank foreclosed on the property, despite Gordon's valiant efforts. So what's the "teaching moment" from this low-grade disaster?

Don't pretend to be something that you're not.

If you find yourself responsible for a project in a subject matter far beyond your scope of knowledge, admit it. And, for the love of Ramsay, don't try to boss around the real subject-matter experts. If you do, you'll be the laughing stock of the hen house. [FN 3]

***Footnotes***

[FN1] Don't misread my description as a negative review--I heart Gordon Ramsay. If it's his show, it's great, and that's that.

[FN 2] A "teaching moment," for those who many not know, is a major screw-up that, 15 years ago, would have resulted in taunting and teasing but, today, prompts insightful discussion by those who did not cause said screw-up.

[FN 3] In Delaware, you'd have Blue Hens in your proverbial hen house, as it's the Delaware State Bird.

Employer Liability for Employee Injuries In the Company's Gym

Posted by Molly DiBiancaOn August 21, 2012In: Cases of Note, Policies, Wellness, Health, and Safety

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Health-and-wellness benefits are all the rage. Some employers offer their employees a discount on gym memberships. Some offer a monthly stipend to be used towards the fees at a health-club. And some have an on-site fitness center.

Employers who are considering building an on-site fitness center for employees commonly want to know how they can protect themselves against a personal-injury lawsuit. For example, an employee drops a dumbbell on his foot and breaks a toe. (Don't laugh, people, broken toes are brutal!)

What's to stop the employee from suing his employer for his injury? Assuming that lifting weights is not part of the employee's job, it would not have been an injury incurred in the "course and scope" of his employment and, therefore, would not be covered by workers' comp. And you, dear employer, own the equipment, including the dumbbell, so you'd surely be the first defendant to be named.

To avoid the "no-good-deed-goes-unpunished" phenomenon, employers will ask whether they can require employees to sign a waiver or release as a condition of using the fitness center. Until a few years ago, the answer was, "not really." Of course, you could require that they sign a waiver but it would not be effective if you ever needed to use it because the law prohibited waivers of claims for future injury.

In 2008, in Slowe v. Pike Creek Court Club, the Delaware Superior Court held that such claims could be released but only if "the language makes it crystal clear and unequivocal that the parties specifically contemplated such a release." In Slowe, the court held that the waiver at issue did not meet this "crystal-clear-and-unequivocal" standard and, consequently, the waiver was not effective, but left open the possibility that a "properly-worded release might effect a waiver of premises liability."

In July, the court had the opportunity to address the issue again and, this time, found the waiver to be enforceable. In Hong v. Hockessin Athletic Club, the plaintiff, a member of the athletic club, signed a comprehensive waiver of liability and release in connection with her membership agreement. The waiver expressly stated that she and all others on her membership assumed the risk of "any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises," including the use of "any equipment in the facility." The court held that this was sufficient to constitute a waiver in "crystal clear and unequivocal" terms and dismissed the suit.

There are no guarantees in life or in the law and this situation is no exception. Although this case offers employers some very good news when it comes to avoiding liability for on-site injury of employees and visitors, it is, of course, not a guarantee. Nevertheless, in light of this case, there seems to be no reason not to require a waiver for your on-site fitness center.

Hong v. Hockessin Athletic Club, No. N12C-05-004-PLA (Del. Super. July 18, 2012).

Legal Extortion of Employers With the FLSA

Posted by Molly DiBiancaOn August 20, 2012In: Fair Labor Standards Act (FLSA), Union and Labor Issues, Wages and Benefits

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Continuing the FLSA theme from last week, today's post is about the impact of a recent decision by the 5th Circuit in Martin v. Spring Break Productions, LLC, No. 11-30671 (5th Cir. July 24, 2012). The relevant facts of the Martin decision are very simple. Employees filed a grievance with their Union, in which they alleged that they had not been paid for all time worked. The Union investigated the claims but concluded that it could not determine whether or not the employees had worked on the days alleged. The Union and the employer entered into a settlement agreement to resolve the dispute.

The agreement recognized that "disputes remain[ed] between the parties as to the amounts that may be due." Despite the disputes, the agreement prohibited the employees from pursuing future legal action against the employer after receiving their settlement payments. The agreement was not signed by, nor was it intended to be signed by the employees themselves but, instead, by the Union on the employees' behalf. The agreement expressly provided that the Union had the full power and authority to enter into the settlement on the employees' behalf.

Before the agreement was signed by the Union, the employees filed suit in California state court. The employer removed the suit to federal court. The court dismissed the claims based on the settlement agreement. The employees appealed the decision to the U.S. Court of Appeals for the Fifth Circuit, where they made two arguments with respect to the settlement agreement.

First, the employees argued that the agreement was not enforceable against them because they had not signed it and never agreed to it. The employees did not dispute that they'd received "full payment" for their claims pursuant to the agreement or that they'd cashed the checks they'd received pursuant to the agreement. The 5th Circuit quickly rejected this part of the employee's argument and found, instead, that they were bound by the decision of its Union, which had been recognized as the exclusive representative of the bargaining unit.

Second, the employees argued that, even if the agreement was binding on them, the release that it contained was invalid because individuals may not privately settle FLSA claims. This argument was predicated on a decision by the 11th Circuit in 1982, Lynn's Food Stores, Inc. v. United States. In that decision, the court held that FLSA claims may not be settled without the approval of the Department of Labor or a court. The dispute arose as a result of a U.S. DOL investigation and the employees, who did not speak English and who had not consulted with an attorney, did not know that the DOL had determined they were owed back wages.

The 5th Circuit held that the rationale of Lynn's Food Stores did not apply to the facts before them. Instead, the court held, a private compromise of claims under the FLSA is permissible where there exists a bona fide dispute as to the hours worked or compensation due. In that context, a release of party's rights under the FLSA is enforceable.

The potential impact of the Martin decision is expansive, particularly in light of the Third Circuit's holding in Genesis Health Care (which currently is on appeal to the U.S. Supreme Court), that an FLSA collective action is not mooted when an employer pays the full amount claimed. Now, it seems that there is at least the possibility that an employer can prevent a collective action altogether if it tenders a payment to the employee pursuant to a settlement agreement, provided the amount of wages owed is a bona fide issue of dispute and that the employee is represented by counsel.

This is particularly important when an employer receives a demand letter from an employee's lawyer, threatening suit unless the employer agrees to pay the employee an amount of allegedly unpaid wages. Previously, the employer could (and often times would) pay the employee at least some portion of the demand and the parties would memorialize their agreement in writing. The employer would then keep its proverbial fingers crossed in the hopes that the employee would not file a lawsuit seeking the remaining amount of claimed wages. If, however, the employee did later sue, the employer would not have had much hope of having the suit dismissed due to the settlement agreement. In other words, the Martin decision, at least potentially, helps to remove one way in which employees (and employees' lawyers) use the courts as a way to exact legal extortion to receive as much money as they want to claim they are owed.