Delaware Employment Law Blog

Delaware's capital, the City of Dover, recently rejected a proposed social-media policy for its employees. Apparently, Dover's City Council was influenced by a letter from the ACLU of Delaware. The ACLU Delaware's Legal Director also spoke at the Council's meeting and, according the Wilmington News Journal, called the proposed rules a "clear violation" of First Amendment rights and "told the committee that public employees are not subject to any special restrictions on their speech because of the nature of their positions."

With all due respect to the ACLU's Legal Director (who I happen to know and think very highly of), I must, respectfully, disagree. In my humble opinion, the policy as proposed did not violate the First Amendment in any way--and certainly did not constitute a "clear violation" of any law. And, contrary to the Director's claim that public employees "are not subject to any special restrictions on theirs speech" by virtue of their employment with the government, although public employees do not leave their First Amendment rights at the workplace door,

it is plain that those rights are somewhat diminished in public employment.

Melzer v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., 336 F.3d 185, 192 (2d Cir. 2003).

Because social media is a "new" technology, there are only a few cases that address whether a public employee may be disciplined or terminated as a result of online conduct that occurs while the employee is off duty. But those cases "clearly" provide legal support for the adoption of Dover's proposed policy.

In Stengle v. Office of Dispute Resolution, 631 F. Supp. 2d 564 (M.D. Pa. 2009), a hearing officer employed by the State of Pennsylvania maintained a blog, the description of which stated that its intended purpose was to

share information about inclusion and the implementation of the Gaskin Settlement agreement from the perspective of a parent of a class member and to provide a means to share information with other class members.

The "Gaskin Settlement Agreement" was a very hot topic in Stengle's local community. It was also the settlement of a matter over which she was presiding in her capacity as a hearing officer. When her contract was not renewed after she declined to recuse herself from the matter. Stengle sued, alleging that the non-renewal of her contract constituted an unlawful violation of her First Amendment rights.

The district court disagreed. It first looked to whether she wrote her blog in her official capacity as a hearing officer. You'll recall from Post 2 in this series that this first step was explained by the Supreme Court in its Garcetti decision. If an employee is speaking in his or her official capacity, First Amendment protections do not apply. Here, the court concluded that the blog's explanation of its intended purpose was sufficient to show that blog was written in Stengle's capacity as a citizen, as opposed to a hearing officer.

The court skipped the second step because the defendants conceded that the blog posts discussed matters of "public concern." Speech made by an employee on matters of public concern, as you may recall, receives constitutional protection. Therefore, the court proceeded to the third step.

At this stage, the court asks whether the public employee's interest in her speech outweighs her employer's interest in promoting workplace efficiency and avoiding workplace disruption. The court noted that this analysis recognizes a pubic employer's "need to have wide discretion in running an efficient operation."

The court easily concluded that the hearing officer's blog posts did not deserve constitutional protection. The court explained that the employer need show only that the employer's speech had "some potential" to affect the workplace. The employer need not wait until the bad things actually happen because of an employee's speech before taking action. The court then reviewed the several problems that the defendant-employer had offered as ways that its operations could be disrupted, finding that these potential disruptions were sufficient to justify its decision not to renew Stengler's contract.

A blogging case decided by a court on the opposite coast reached the same result. In Richerson v. Beckon, No. 07-5590-KJA (W.D. Wash. Mar. 27, 2008), aff'd, 337 Fed. App'x 637 (9th Cir. 2009), a school-district employee's job duties were reassigned when district officials learned of her blog, where she'd written posts criticizing coworkers and others. The posts were personal attacks of the individuals she worked with and were "racist, sexist, and bordered on vulgar. " One post also disclosed confidential information acquired in the course of her employment with the school district.

The court concluded that, although the underlying topic of the posts--the operation and management of public schools--could be considered a matter of public concern, the personal attacks and stereotyping "far exceeded normal standards of decency." The nature of the posts, the court found, disqualified the posts for the protections afforded to speech on a matter of public concern. Thus, the speech was not constitutionally protected and the claim was dismissed.

On appeal, the Ninth Circuit assumed without deciding that the speech was a matter of public concern but affirmed the dismissal under the balancing test. The court found that the employee's blog posts had caused co-workers, students, and members of the community to lose faith in her as a confident and otherwise impaired her ability to secure the trust that was essential to her position. Therefore, the court concluded, the school district was reacting to actual disruptions caused by the employee to the workplace and had not acted unlawfully.

There are other cases that do not involve social media but do involve off-duty conduct and are, therefore, similarly applicable to those discussed above. I will save my discussion of those cases for another post but, for now, the two decisions addressed above demonstrate, in my opinion, that there is no "clear violation of First Amendment rights" arising from a social-media policy that merely clarifies that an employer's anti-discrimination, anti-harassment, and other, similar workplace policies, apply to employee's off-duty and/or online activity.

See the earlier posts in this series, Government Employers Can (and Should) Have a Social-Media Policy, Part 1 and Part 2.

The Society of Human Resources (SHRM), released the results of a recent survey about employers’ use of social-media in the hiring process. The findings may surprise some. According to SHRM’s survey, there are fewer employers using social-media sites to screen job applicants than there were in 2008. The employers who participated in the survey responded that three primary concerns were serious enough to deter them from looking online for information about a candidate prior to making an offer. Specifically, they identified: (1) “legal risks,” including potentially discovering “information about protected characteristics;” (2) lack of verifiable data; and (3) lack of job relatedness.

I agree completely with the third reason cited. Before surfing the web for information about an applicant, employers should make an internal assessment of whether such a search is appropriate and necessary for that particular position. If it’s not necessary, the employer should make an official decision that online searches should not be performed—by anyone in the organization. If, however, there is a reason that an online search or social-media search may be appropriate, the employer should make an official decision reflecting this and then implement a policy about who will be authorized to perform the search and under what conditions.

Of course, regular readers will know that I wholly disagree with reason #1. So long as the employer adopts, implements, and enforces a clear policy about who will (and, perhaps, more important, who will not), have access to the information obtained during the search, online searches can be performed effectively and lawfully.

Regular readers also will know that I disagree with reason #3, above. As part of any defensible plan to incorporate social-media searches into a background-check program, employers absolutely should provide any negative information about a candidate. Not only is this the right thing to do as a simple matter of fairness but it also is critical to ensure that the information is accurate. Unfortunately, according to the survey, only 27% of employers who do use information obtained online in hiring decisions actually give the candidate an opportunity to explain the information that is found.

One more thought on the results of this survey—I have to question the validity of the survey results. I teach a lot of seminars to employers about social-media in the workplace. I also teach social-media seminars to graduate and professional students—who soon will become employees. In every seminar that I teach, I ask attendees whether they are using social media for hiring or, in the case of students, whether they believe they’re being Googled by their potential employers. The answer in both cases is a resounding “yes.” So, the results of the SHRM survey seem difficult to align with ,my experience. One possible explanation to the discrepancy? Perhaps there’s a hesitancy by employers to admit that they’re using social media to screen job applicants.

See also:
45% of Employers [Still] Don't Have a Social-Media Policy
Can an Employer Sue an Employee for On-Duty Facebook Use? Probably Not.
Screening Job Applicants with Facebook: Parts 1, 2, and 3

Yesterday, I promised to discuss the analysis that a court applies to determine whether a government employer has unlawfully retaliated against an employee in violation of the employee's right to free speech. As promised, the analysis is discussed below. In the next post in this series, I'll discuss the cases that have been applied to employee's off-duty, online, and social-media speech.

The Analysis
In order to establish a claim under the First Amendment, an employee must first show that the speech in question meets three requirements. First, the employee must demonstrate that his or her speech was made as a “citizen” in accordance with the U.S. Supreme Court’s decision, Garcetti v. Ceballos, 547 U.S. 410, 419 (2006). Second, the employee must show that the speech addressed a matter of “public concern. Third, the employee must show that his interest in the speech outweighs the employer’s countervailing interest in “promoting workplace efficiency and avoiding workplace disruption.”

If the employee successfully establishes each of these three elements, he must then prove that the speech was a “substantial or motivating factor” in the action taken against him by the employer. If he meets this burden, the burden then shifts to the employer to prove that the adverse action would have been taken absent the protected speech.

Because we are talking only about social-media policies, i.e., no employee is claiming that he has been disciplined for his speech, our analysis is limited to the first three steps, discussed above, which establish the test to determine whether speech is protected. If the speech that is restricted or prohibited in a policy is not protected speech, then the policy can be implemented without implicating the First Amendment. If the speech is protected, then the policy should be revised.

Step 1: Did the Employee Speak as a Citizen or as an Employee?
Speech made by an employee about matters relating to his employment is not protected by the Constitution. Thus, a government employer may discipline an employee who speaks (online or otherwise), about his or her job without triggering the protections of the First Amendment. So, the first question is whether the speech can be said to relate to the employee’s job.

Speech that is most easily classified as “employee speech” is speech that relates to the employee’s job responsibilities. For example, a teacher who posts complaints about the required curriculum is said to be speaking as an employee and receives no constitutional protection. On the other hand, a teacher who complains about increases in property taxes would be speaking as a citizen because taxes are unrelated to his job duties and he is, therefore, speaking as a citizen.

Step 2: Did the Speech Address a Matter of Public Concern?
If the employee can show that his speech was made in his capacity as a citizen and did not relate to his job duties or responsibilities as a government employee, then he proceeds to the second step of the analysis. Here, the employee must show that his speech addressed a matter of public concern.

In the hypothetical described above, taxes easily qualifies as a subject for public concern. On the other hand, it would be difficult to conclude that a matter for public concern is involved where a teacher who posts about the poor lunch selection offered in the teacher's lounge. Just for purposes of contrast, though, if the teacher's comments were about the poor nutritional content of lunches provided to the student body, a public concern may be at issue.

Step 3: Is the Employee’s Interest Outweighed by the Employer’s Interest in an Effective and Productive Workplace?
Speech that relates to a matter of public concern is next subject to what is known as the Pickering balancing test whereby the employee's interest in her speech is compared to the employer's interest in promoting wrokplace efficiency and avoiding workplace disruption. Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

The application of this balancing test is not a precise science. In some cases, this balancing test gives the employer a tremendous amount of leeway when considering whether it can discipline an employee for his or her speech. Some of the factors considered at this step is whether the speech impairs disciplien or control by supervisors; whether it disrupts co-worker relations or erods close working relationships based on personal loyalty or confidentiality; interferes with the speaker's performance of his or her job duties; or obstructs routine office operations.

It's this last step that gives employers the most protection--particularly in the context of a negative comment made by an employee on his or her Facebook profile. But for more about that, you'll have to tune in for the next post in the series. Stay tuned!!

Delaware's public employers seem to face a great deal of opposition when they propose to implement a social-media policy. In May, Kent County Levy Court tabled a proposed socia-media policy after critics raised somewhat confusing objections to it. And, last week, the Dover City Council rejected a proposed social-media policy after receiving a letter from the ACLU of Delaware. The ACLU’s letter concluded that the policy would encroach on employees’ free-speech rights. An ACLU representative spoke at the Council meeting, claiming that the policy would violate the First Amendment.

When the Kent County policy was first proposed, I wrote about some of the many reasons that employers do need social-media policies. In this series, I’ll address the constitutional issues that government employers face and explain that social-media policies, when properly drafted, do not violate the First Amendment. In the next post, I’ll explain the three-step test an employee must meet before he will be afforded constitutional protection for his speech. Then, in the third and final post, I’ll offer some examples of how the constitutional analysis has been applied by courts to employees’ off-duty speech, including online speech, and how those cases make clear that government employers, indeed, can restrict employees’ social-media activities in the interest of operating an effective and productive workplace. For now, what follows is a short summary of free-speech law as applied to social media:

The First Amendment to the U.S. Constitution provides, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech.” But this restriction is not without limitation. The government may place certain restrictions its citizens’ speech. And when the government is acting as an employer, the limits it may impose on its employees’ speech are far broader. The U.S. Supreme Court has interpreted the First Amendment as providing government employers the ability to restrict speech to manage the workplace.

Thus, speech on a matter of “public concern,” i.e., that relates to the political, social, or other community concerns, will receive a higher level of protection. On the contrary, speech that is not on a matter of public concern, i.e., purely personal in nature, receives far less protection. In the context of social media, as discussed in the upcoming posts in this series, the same rules apply—government employers may restrict (through policies or discipline), employees’ speech.

Stay tuned for Parts 2 and 3 later this week.

FINRA, the Financial Industry Regulatory Authority, is the watchdog agency for the financial brokerage industry. In January 2010, FINRA issued Regulatory Notice 10-36 cautioning brokerages about broker-dealers' use of social media. FINRA released additional guidance last month, expanding upon the notice issued last year.

In short, the FINRA guidance explains that the supervisory and recordkeeping obligations that apply to any business-related communications apply equally when those communications are sent via social media. Companies also must oversee and track all customer interactions sent through personal mobile devices.

Brokers do not need preapprovals for "unscripted" interactions (i.e., unplanned communications), but they must alert their supervisors after the fact.

Also, a broker must be get advance approval from his or her employer before mentioning the firm on any social networking site, such as LinkedIn.

To explain the Guidance, FINRA is publishing a three-part podcast, the first segment of which is available now.

Guidance on Blogs and Social Networking Sites, Full Text of Regulatory Notice 11-39 (PDF)

Young Conaway Employment Law Partner Bill Bowser is a fan of the phrase, embarrassment of riches, meaning an overabundance of a good thing. Just today, Adria Martinelli and I each had occasion to use the phrase today in separate conversations and laughed when we realized that the real embarrassment of riches was our frequent use of the phrase in conversation. Embarrassment of riches had, itself, become an embarrassment of riches. And it now seems that we have yet another chance to use the phrase today, as I’ve learned that the Delaware Employment Law Blog has been named by LexisNexis as one of the Top 25 Labor and Employment Law Blogs!

There are so many incredible labor-and-employment law blogs and bloggers online today that I can’t imagine how tough it was to select just 25 of them for this award. I can’t even limit my annual Top 100 Labor and Employment Law Blog list to 100 anymore. I am a fan of each of the blogs named to the list of Top 25 and I recommend that you pay a visit to any of the sites you may not yet know. Between the whole motley crew of us, you’re almost guaranteed to get all of the up-to-the-minute coverage of what’s happening in the area of workplace law.

Without playing favorites, I will point you in the direction of a handful of blogs written by long-time bloggers whose posts I consistently enjoy. For example, two gentlemen I’ve had the pleasure of getting to know over the past few years, Dan Schwartz of the Connecticut Employment Law Blog and Jon Hyman of the Ohio Employer's Law Blog, both post so often, they make my head spin! Dan, Jon, Phil Miles of Lawffice Space, Rob Radcliffe of Smooth Transitions, and I also collaborated on a recently published book, Think Before You Click, which is the first Human Resources publication dedicated to in-depth coverage of social-media related issues in the workplace.

I also would like to direct you to three blogs that I read religiously but whose authors I’m sorry to say I have not yet met. Michael Fox has been blogging at Jottings by an Employer's Lawyer since before most of the rest of us knew what a blog actually was! Timothy Eavenson of Current Employment hasn’t been blogging quite as long (but, really, who has?), but still longer than most and yet consistently produces great posts on cases and issues that matter. And I am always amazed by Brian Hall of The Employer Law Report and his ability to constantly collect and curate stories from just about every source—and has the content-rich posts to prove it.

Finally, I have to mention my friend Seth Borden of Labor Relations Today. Although Seth’s blog didn’t appear in the LexisNexis list, I’m absolutely certain that it was only due to an oversight because nobody, and I mean nobody writes a better labor blog than Seth.

Although I could go on and on about the great folks with whom I’m so lucky to share the blogosphere with, I’ll, instead, leave you with the rest of those honored by LexisNexis this year. There is apparently a “race to the top” with readers able to vote for their most favorite blog from the Top 25. If you’re inclined to vote for this or any other blog on the list, you can do so here. That's also the page where you can find the entire list of all 25 employment-law blogs. And, while you’re there, be sure to check out all of the resources offered in the LexisNexis Labor and Employment Law Community—many of the bloggers on the Top 25 list are contributors to this terrific resource.

But regardless of whether or for whom you vote, thanks for reading the Delaware Employment Law Blog and any of the other many high-quality employment law blogs that are published every day. This blogging stuff can be a lot of work! But for those of us who do it, it’s a labor of love and we do appreciate having you come along for the ride.

In Pitts v. Terrible Herbst, Inc., the 9th Circuit held that an offer of judgment made by an employer to an employee-plaintiff in an FLSA case will not moot the case where the Court has not yet ruled on certification. As a practical matter, what this ruling meant was that the plaintiff—who alleged that he was owed less than $100—could continue to litigate his collective-action claim, despite having rejected an offer of judgment in the amount of $9,000. In other words, employers who are sued for unpaid wages can do nothing to prevent being targeted by a class-action lawsuit.

The 9th Circuit’s decision in Terrible was a terrible one for employers. And, making it worse, the 3d Circuit is on the side of Terrible.

Background

In Symczyk v. Genesis Healthcare Corp., the defendant-employer made an offer of judgment in the full amount of the plaintiff’s claim plus reasonable attorney’s fees. Because the offer provided for all of the relief that the plaintiff could have received had she pursued the claim through trial, the offer constituted “full relief” of her claims. The employee did not accept the offer.

Ten days after the offer expired, the court held a scheduling conference. The offer was not addressed and the court provided for a 90-day period for discovery, after which the plaintiff could move for conditional certification of a class of putative plaintiffs. Thereafter, the employer moved to dismiss the lawsuit on the ground that the court lacked subject matter jurisdiction because the offer of judgment for full relief had mooted the plaintiff’s claim. In other words—there was nothing more that she could have recovered and, therefore, she no longer had a “legally cognizable interest in the outcome.”

Analysis

Standard of Law for Conditional Certification

Before addressing the mootness issue, the court first discusses the plaintiff’s burden at the conditional-certification stage. The court notes that there has been a split among district courts in the 3d Circuit, with some courts requiring the plaintiff’s pleadings to contain “substantial allegations,” with others requiring the plaintiff to make a “modest factual showing.” By no means is either test a difficult one to satisfy and, in all reality, the motion is likely to be granted. Nevertheless, the court did adopt the higher-burden test, which requires, the court explained, the plaintiff to produce some evidence “beyond pure speculation” of a factual nexus b/w how the employer’s policy affected her and how it affected other employees.

The Effect of an Offer of Full Relief on FLSA Collective Action

The court then turned to the main issue—whether an offer of full relief made pursuant to Rule 68 of the Federal Rules of Civil Procedure moots the claim of an FLSA plaintiff who has not yet moved for conditional certification. Like the 9th Circuit, the Third Circuit held that the answer is “no.”

The court acknowledged that an offer of complete relief will generally moot the plaintiff’s claim. But the court then went on to offer several policy-based reasons why this “general” rule limiting the jurisdiction of the federal courts should not be applied in the context of an FLSA collective action.

The court opined that, although Rule 68 was designed “to encourage settlement and avoid litigation,” the Rule can be manipulated in the class-action context to “frustrate rather than to serve those salutatory ends.” The court then states that, if the “general” rule were applied, the defendant would be able to “pick off” the claims of the named plaintiff and avoid certification of the class. This, in turn, would require “multiple plaintiffs to bring separate actions, which effectively could be picked off.” This application of the rule “obviously would frustrate the objective of class actions and waste judicial resources.”

Continue reading for my take on why this decision is so terrible for employers . . .

The NLRB announced the “first case involving Facebook” to have resulted in a decision by an Administrative Law Judge (ALJ). The case, Hispanics United of Buffalo v. Ortiz, held that the employer violated the National Labor Relations Act (NLRB), by terminating five employees for their Facebook posts regarding a coworker’s complaint about their job performance.

One of the five employees posted a message on her Facebook page about the complaint and solicited comments from her coworkers. The responsive comments included plenty of profanity, as well as various reasons why the coworker’s complaint was unfounded.

When the coworker learned of the posts, she complained and the Facebook posters were terminated.

The ALJ concluded that the posts were protected by the NLRA because they were about “matters affecting their employment” and were made amongst coworkers. The ALJ then concluded that the posts did not lose their protection by virtue of the fact that they contained “explicit or implicit criticism of a co-worker,” profanity, or sarcasm.

The lesson to be learned from Hispanics United? Legally speaking, employers must understand what type of conduct—whether it occurs online or offline—will trigger the protections of the NLRA. Practically speaking, employers should plan ahead—discuss how your organization will handle a complaint about employees’ Facebook activities, particularly when the activity is critical of management or other employees. And know not to react with emotion if (and when) the situation occurs. Instead, call your employment counsel for sound advice about how to proceed.

Hispanics United of Buffalo v. Ortiz, 03-CA-027872 (Sept. 2, 2011)

Employees of Delaware’s capital may soon be subject to a social-networking policy. The City of Dover has proposed a new policy on employees’ on-duty and off-duty use of social-media sites, such as Facebook, Twitter, and YouTube, reports The News Journal.

According to The News Journal, the policy prohibits on-the-job use of social-networking sites, like Facebook. Off the clock, employees would be prohibited from “posting disparaging comments about co-workers, their bosses, or members of the public” with whom they interact during the course of their jobs. The policy also prohibits employees from making racist statements or “negative comments” based on other legally protected characteristics and from “promoting” illegal activity, illegal drug use or violence.

Before being implemented, the policy first must be approved by the City Council. The usual objections have been raised by Councilman Bill McGlumphy, who claims that employees’ off-the-clock activities are not the City’s concerns. Councilman David Anderson raised the “free-speech” objection, apparently on the basis that the policy’s language is overly broad. Similar objections were voiced in response to the social-networking policy proposed by Kent County, Delaware in May 2011.

The current trend of litigation over social-media policies has been limited to policies that violate the National Labor Relations Act (NLRA). But the NLRA does not apply to public employers. For state and city governments, the First Amendment is the hurdle that must be crossed. Although the First Amendment does guarantee employees some rights of free speech, those rights become limited when employees work for the government.

Navigating the boundaries between employee speech that can and cannot be limited is not easy.

See also, Police Departments Revise Their Social-Media Policies and Jumping the Gun on Public Employees’ Internet Activity.

The Circuit Courts of Delaware County, Ohio, have adopted a social-networking policy for court employees. As reported by TheStarPress.com, the policy prohibits employees from accessing social-networking sites, like Facebook, during working time, including access with personal smartphones.

The policy goes beyond on-duty activities, though, by prohibiting employees from discussing or revealing “any information related to a judge, co-workers, parties before the court, attorneys who appear before the court, local law enforcement officials,” and any information, “obtained through the employees’ observation of events at work.” The policy also prohibits employees from making derogatory comments in online postings. Specifically, employees may not make comments that “are negative about another employee or might be perceived as negative.”

The four-day workweek is no more. Well, at least in Utah, reports NPR. Next week, Utah State employees will return to a traditional five-day workweek. The four-day workweek officially died last week but workers can ease their way into the grueling five-day schedule thanks to the Labor Day holiday.

Former Utah Governor John Huntsman initiated the program in 2008, heralding it as a way to increase efficiency and morale, while reducing costs and conserving energy. As our long-time readers may recall, I was skeptical that the purported benefits of a four-day workweek would be realized fully. It seems that my skepticism was well founded. The State-wide program is being abandoned after a legislative audit revealed that the savings were not as great as had been hoped and residents were dissatisfied with the limited access to government services.

Not all four-day workweeks have been unsuccessful, though. The smaller size of local governments appear to be the key to successful implementation of the so-called 4/10 workweek. With fewer employees and offices, towns and municipalities are able to more effectively adjust the program to fit the needs of residents and demands of employees.

As for me, my opinion is unchanged. Workplace flexibility is a good thing. And that’s exactly why the Utah program did not work. Utah’s four-day workweek was mandatory. “Mandatory flexibility” is an oxymoron. That’s why, in my opinion, mandatory workplace flexibility in the form of a state-wide program doesn’t work.

The U.S. Court of Appeals for the Third Circuit recently ordered that former Pennsylvania State Senator Vincent Fumo resentenced. As reported by Reuters, Fumo had been sentenced to 55 months in a minimum-security prison after being convicted of fraud and related charges in 2009. The prosecution appealed the sentence, though, arguing that it was too lenient.

On appeal, Fumo had a request of his own, seeking a new trial due to comments made by a juror via Facebook while the trial was still in progress. Fumo's counsel had moved for a mistrial for the same reason but, after examining the juror in question, the trial judge denied the motion and the trial continued. The Third Circuit affirmed the decision and, in its opinion, reviews the standard for a mistrial based on juror misconduct.

Even more interesting, though, was the court's comments on how social media is influencing the legal system. The Third Circuit "enthusiastically endorse[d]" the Proposed Model Jury Instructions regarding the Use of Electronic Technology to Conduct Research on or Communicate about a Case, which were promulgated by the Judicial Conference Committee on Court Administration and Case Management in 2009. The Court continued its "enthusiastic endorsement," stating that it:

strongly encourage[s] district courts to routinely incorporate them or similar language into their own instructions.

The full opinion is available on the Third Circuit's website--the portions of the opinion discussed above can be found at pages 27-30. And, if you're interested in this topic, you can read more about the impact of technology on the practice of law and the legal system at Going Paperless Blog, which I write in my spare time.

Most supervisors have dealt with an employee who believes his work performance is better than what it actually is. It's a minority of employees who believe they are less than a "four-star" performer. But an employee who is so convinced of his personal value that he sues his employer for $75 million is a rarity, indeed. Yet, rare or not, that is precisely the case in Berry v. Kasowitz, Benson, Torres & Friedman, LLP.

According to Berry, he had a “distinguished” and “remarkable” career in the technology sector. Having "conquer[ed] Silicon Valley," he decided to turn his talents to the legal profession, abandoning his technology endeavors to attend the prestigous University of Pennsylvania Law School. Upon graduation, he accepted a position with an equally prestigous law firm, Kasowitz, Benson, Torres & Friedman. Ready to conquer the world of private practice, according to Berry, he “immediately began doing superlative work,” and “repeatedly found ways to improve the efficiency of work, or even the outcome of cases.” Unfortunately, though, he feels his genius went unappreciated.

Berry claims that he was terminated after he sent an email to the firm’s partners requesting additional work. In the email, Berry stated that it had "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.” Interestingly, prior to sending the email, Berry had been expressly warned not to “be so arrogant.” Apparently, he did not heed that advice.

Upon termination, Berry was presented with an “unconscionable” Separation Agreement, which he signed only under “economic duress.” Under the agreement, Berry received two months’ salary in exchange for a complete waiver of claims. Notwithstanding having executed the waiver and release, Berry sued filed suit, alleging 14 causes of action.

The lesson for employers? Beware the employee who is, perhaps, a bit to aware of his own "superlative" work.

Workplace bulletin boards will be a bit more crowded this Fall, thanks to a new rule issued by the National Labor Relations Board (NLRB). The new rule, which becomes effective on November 14, 2011, will require most employers to post a notice detailing employee rights under the National Labor Relations Act.

The required notice will inform employees of their right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It will also provide examples of unlawful employer and union conduct and instruct employees how to contact the NLRB with questions or complaints.

In addition to posting the notice on a bulletin board, employers who customarily post personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites.

Copies of the notice will be available for download from the NLRB website on November 1, 2011. Employers also can satisfy the rule by purchasing and posting a set of workplace posters from a commercial supplier.

The rule does not apply to public-sector employers or employers who are otherwise excluded from coverage of the National Labor Relations Act, such as railroads and airlines.

NLRB's website: Final Rule for Notification of Employee Rights

Many Delaware residents experienced their first earthquake today. From Virginia to New York, floors were trembling and windows were shaking. The employees in my high-rise office building in Wilmington, Delaware reacted to the experience quite differently: some sat planted in our chairs stunned, later wandering into the hallways to see if anyone else felt the odd sensations, some immediately sought to flee the building, and others were convinced we were in mortal danger and upset the building was not evacuated. How, as an HR professional, do you advise your management to handle these crises—whether fleeting, or one that results in a more drastic impact?

Develop a communication and contingency plan

The key to handling crises, whether natural or man-made, is to have a Crisis Management and Disaster Preparedness Plan in place before the disaster strikes. Disorganization and a lack of well-thought-out emergency procedures pose almost as great a risk to employee safety in a time of crisis as the underlying catastrophic event itself. As a result, you should consider distributing to your employees a clearly articulated and easy-to-understand communication and contingency plan. At a minimum, your policy should explain what your employees should do and where they should go in the event of an emergency. For example, it should provide information about how they're to exit the facility if there's a fire or another type of disaster.

In addition, you should periodically practice evacuation drills and provide emergency contingency training to familiarize your employees with the proper procedures after an emergency occurs. You should also consider things like which equipment needs to be turned off when an emergency strikes, what your backup power sources are, where first-aid supplies will be kept, and how to communicate instructions to your employees or customers while an emergency is unfolding.

Every employer must keep a list of vital contacts. You should have complete contact information for your employees and corporate officers. A good contact list should also include local and federal emergency telephone numbers, including contact information for the Delaware Emergency Management Agency (whose phone number is (302) 659-DEMA).

On the business side, you should also keep telephone numbers and physical and e-mail addresses for major clients, suppliers, contractors, financial institutions, insurance agents, radio stations and newspapers, and any other individuals or businesses you might need to notify after a crisis occurs. Keep your contact list stored off-site so it's available if your main facility is inaccessible.

In addition, consider setting up a place on your website where employees can log in to indicate they are safe. If internet access is unavailable, the old-fashioned "phone tree" that assigns your employees to contact teams can by put into place. Employees on each contact team will be responsible for communicating with other employees on the team after an emergency. That makes locating employees and confirming their safety a far easier task than having no system at all. Another alternative is designating an off-site location employees can call to get information after a disaster or to notify your company and their family and friends that they're OK.

Include in your contingency plan a timeline of tasks to be accomplished. Your list should include things that must be accomplished before disaster strikes (if you have advance warning, like when a hurricane is predicted) and what must be done afterward.

Protect your records

Most of you can't really imagine how much you depend on the documents, forms, employee records, customer and contact lists, and accounting information you've developed over the years you've been in business. To reduce your losses, you must have adequate backups of all your company's important records, computer data, vendor and customer lists, and other information that is essential to your operations.

Make sure your backups are updated frequently and stored in an off-site location specially constructed for data and record storage. You can have all the backups in the world, but they won't do you any good if they're five years old or if they're stored in your office building when it burns to the ground.

Identify emergency business facilities

In the case of emergencies that disable your facilities for a significant amount of time, you may want to consider alternate facilities you might use to operate if a disaster hits your business. Look for facilities that will rent office or warehouse space for short terms, or consider using your employees' homes if your business can be conducted through telecommuting. Of course, you'll have to have a communication plan in place before disaster strikes so your employees and customers will know you're still operating.

Make provisions for employees' wages, benefits

Employers aren't required to pay hourly nonexempt employees for time away from work because of a workplace disaster. Nevertheless, those employees may be eligible for certain pay benefits, including unemployment compensation. You should be cognizant that under the Fair Labor Standards Act, salaried exempt employees must be paid their full salary for any workweek in which they perform any amount of work — regardless of how many days or hours they actually work. If they aren't, you risk having them lose their exemption.

If you're like most employers, some of the most important benefits you provide your employees are health, disability, and life insurance. If any of your employees or their beneficiaries are injured or killed during a disaster, those benefits may be their (and their families') only lifeline of hope. Consequently, make sure you provide whatever help they or their families need to file their health insurance or workers' compensation claims. Injured employees may also need help filing claims under your short-term or long-term disability policies.

Here are some helpful things you can do:
• Let your employees know about pertinent deadlines. Be sure to provide them with the correct forms promptly and help them fill out the paperwork if necessary.

• If an employee's injuries prevent her from filing a claim, contact her spouse or another family member to advise her which benefits are available.

• If an employee is temporarily or permanently disabled, work with her to determine whether there's a reasonable accommodation that will allow her to return to work.
Address employee leave

Keep in mind the proper application of your company's leave policies — and the various laws that protect employees who are injured or whose family members are injured. Take care to apply your sick, personal, vacation, paid time off, and bereavement leave policies uniformly and with compassion.

Injuries sustained during a disaster may qualify someone to take leave under the Family and Medical Leave Act to care for himself or a family member. If an employee needs to take a leave of absence for nonmedical reasons, check your policies and let him know what his options are. Even if you don't usually allow nonmedical leaves of absence, storm cleanup may be an extenuating circumstance that will allow you to grant leave now. Just remember to treat all employees fairly when doling out leave.
Prepare for emotional component

Finally, the stress of a disaster takes a tremendous toll on everyone, both physically and emotionally. If you're prepared to target the fears and concerns of your workforce, you'll be better prepared to recover from a disaster. Managers should have plans to address those concerns and understand that people respond differently during crises. You must accept the fact that performance and productivity will drop, and some employees may have increased absences and difficulty concentrating on their work.

Contact your employee assistance program (EAP) provider for counseling information for stressed workers and their families. Alert your provider that employees will be contacting it. Remind employees about the EAP, and provide them with its phone number.

Bottom line

It appears that the earthquake felt in Delaware did not harm anyone or significantly impact businesses, but it’s a good reminder of what you need in place in case it had. Planning for the unthinkable is the smart thing to do from a business standpoint. Because every business is unique, employers are well advised to consult with employment counsel to help develop a disaster-preparedness and crisis-management policy best suited to your needs.