USERRA's Statute of Limitations

Posted by Molly DiBiancaOn May 30, 2012In: Uniformed Services (USERRA)

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At our Annual Employment Law Seminar, U.S. Department of Labor Chief of Investigators Kenan Torrans gave an informative presentation on the requirements of the Uniformed Services Employment and Reinstatement Rights Act (USERRA). At the end of the presentation, I jumped in with my two cents and explained that I'd invited Kenan to speak because I think that USERRA compliance will be one of the biggest issues facing employers in the next several years.

One reason for my speculation is that USERRA differs from other employment-discrimination statutes in a number of ways. So employers who may not be familiar with USERRA's specific requirements and attempt to comply by applying rules that are generally applicable to Title VII or the ADA may find themselves to have run afoul of the law.

Another reason for my worries is the statute of limitations or, more specifically, the lack of one. An employee could, for example, return from military service and seek reemployment. Let's say the employer is unfamiliar with USERRA's requirements and denies the employee's request to return to work. The employee may find other work and the employer would think that all is well.

Well, not necessarily. If the employee's replacement job does not pay as well or has lesser benefits, the employee could later file a claim against the original employer. And, by "later," I mean much, much later. As in forever. Because there is no statute of limitations, there is no time limit on when an employee can file a claim.

Which is why a recent decision by the Sixth Circuit caught my attention. In Oswald v BAE Industries, Inc., No. 11-1119 (6th Cir. May 12, 2012), the plaintiff alleged that he'd been terminated due to his military service in Iraq. He filed suit three years after he was let go. The employer moved to dismiss on the grounds that the claim was precluded by the plaintiff's employment agreement, which required all employment-related claims be brought within six months. The court agreed and found that the employee's claims were time barred.

USERRA was amended in 2008 to preclude any statute-of-limitations defense and the employment agreement in this case was signed prior to the amendment. So this would not work in new contracts drafted today. However, it is important for employers who have such provisions in employment agreements already in place.

Calling All Employees! . . . As Long As They're Not Driving

Posted by Lauren Moak RussellOn May 29, 2012In: Policies

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text alert.jpgDelaware employers should be aware of the risks of employees' use of cell phones while driving. It's a recipe for litigation. Delaware employers should have a clear policy prohibiting employees from using cell phones whild driving on company business. The use of hand-held devices while driving is illegal in Delaware and employers should avoid liability for employees' violations of state law. As a starting point, employers should prohibit employees from violating any traffic laws while operating a vehicle on company time.

A recent article in the Washington Post takes these concerns one step further, and discusses several incidents in which employees did serious bodily harm to innocent third-parties while they were driving and talking on cell phones. Pizza delivery companies have also learned this lesson the hard way--you no longer see 30-minute delivery guarantees because franchisors were sued when their employees took up dangerous driving practices to meet the deadlines. One plaintiff won a $21.6 million jury verdict in a case arising from a cell-phone related car accident. Significantly, that accident occurred in 2004, before many states prohibited use of hand-held phones for talking or texting while driving.

If you weren't convinced already , these stories should encourage you to communicate clearly with your employees that, regardless of how important their assignment, they may not violate traffic laws to complete it!

Podcast: Social Media for Employers

Posted by Molly DiBiancaOn May 28, 2012In: Seminars, Social Media in the Workplace

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Last week, I appeared on the The Proactive Employer, talking about all things workplace social media with host Stephanie Thomas, and fellow employment-law blogger, Jon Hyman of the Ohio Employers' Law Blog.  The 60-minutes was over before we knew it but, lucky for you, if you missed the live version, you can listen to a recording of the show by either streaming it from the Proactive Employer site, or by downloading it from iTunes. 

Two Delaware Employers Selected as Freedom Award Finalists

Posted by Molly DiBiancaOn May 28, 2012In: Uniformed Services (USERRA)

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Memorial Day is more than a day off of work. The holiday is a time to remember those who have died in service to the country. One way we pay tribute to the men and women who died in military service is by observing a minute of silence at 3 pm today.

The Freedom Award is an example of the important ongoing effort to support military service members.The Freedom Award is the highest award given by the Department of Defense (DoD) to employers for exceptional support of Guard and Reserve employees. A review board comprised of military and civilian leaders selected 30 finalists from more than 3,000 nominations. Two of the 30 finalists were selected for their support of Delaware reservists--Siemens Corporation in Washington, D.C., who was nominated by an Army Reservist in Glasgow, Delaware; and Kent County Levy Court in Dover, Delaware.

For readers outside Delaware, Dover is the home to the Dover Air Force Base, making the recruitment and retention of military-service members a key objective for employers in Dover and throughout Kent County. Kent County Levy Court was nominated by an employee serving in the Air Force Reserve. The Court supported Guard and Reserve members by regularly featuring a Uniformed Services Employment and Reemployment Rights Act (USERRA) question-and-answer section in its monthly newsletter. The Court also provides a quarterly dinner for families of deployed employees, as well as babysitting services.

The Freedom Award was instituted in 1996 under the auspices of Employer Support of the Guard and Reserve (ESGR), a DoD agency, to recognize exceptional support from the employer community. Since it was first established, 160 employers have been honored with the award. The DoD will announce the 15 recipients of the 2012 Freedom Award early this summer following completion of a national selection board comprised of senior DoD officials, business leaders and prior awardees. Winners will be honored at a dinner in September in Washington.

Congratulations to both Delaware finalists and to all Delaware employers who continue to recognize the value of their military employees.

How Delaware's Password-Privacy Bill Would Impact Teachers

Posted by Molly DiBiancaOn May 25, 2012In: Public Sector, Social Media in the Workplace

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Delaware's Workplace Privacy Act, H.B. 308 will go to the Delaware House of Representatives one week from today. The Bill, if passed in its current form, would impact all employers, including teachers in the public and private sectors. You can read about some of the many other issues I have with the Bill in my previous posts but, in short, the legislation, as drafted has three main prohibitions.

What the Bill Would Prohibit

First, the Bill prohibits an employer from "requiring or requesting" that an employee or applicant turn over his "password or other related account information" to the employer. Although the intent of this provision is commendable, it, too, has a far broader reach than expected.

Second, the Bill prohibits an employer from "requiring or requesting" that an employee or applicant log into a social-networking site in the employer's presence.

Third, the Bill prohibits an employer from accessing an employee's or applicant's social-networking-site's profile account "indirectly through any other person who is a social networking contact" of the employee or applicant.

In plain English, the Bill prohibits an employer from: (1) asking an employee for his Facebook password; (2) asking an employee from logging into his Facebook account so the employer can see it; and (3) viewing an employee's Facebook page through another person's Facebook account.

How the Bill Would Affect Teachers

One of the many concerns I have with the Bill is that effectively prohibits an employer from investigating claims of employee wrongdoing and, simultaneously, prevents an employee accused of wrongdoing from defending herself. Here's an example:

School Principal gets a call from a "concerned parent," who wishes to remain anonymous. The nameless parent reports that he has reason to believe that a teacher is having an inappropriate relationship with a student. He goes on to say that he has reason to believe that the teacher and student are Facebook friends and have exchanged messages on Facebook that demonstrate wrongdoing.

Principal has received a complaint from a parent that Teacher has had inappropriate contact with Student via Facebook. The complaint appears credible. What will Principal do? What must Principal do? Investigate. Immediately.

Let's assume that Teacher is innocent and that, in fact, Teacher is not Facebook friends with any of her students. Principal calls Teacher into his office and confronts her with the allegation. After recovering from the initial shock of the accusation, Teacher denies any wrongdoing and volunteers to log into her Facebook account and show Principal that there are no students in her list of friends.

But Principal cannot oblige--to view Teacher's Facebook page or her Friends list would violate HB 308. So now what? What is Principal to do? Principal is prohibited by law from investigating the complaint other than by conducting in-person interviews of Teacher and Student. And, since the complaining parent did not disclose his name, Principal cannot request more information to substantiate the allegation.

It seems to me that Principal has one choice--suspend Teacher until the matter can be cleared up. I suppose Teacher could, and would, call upon the Union. But what help could the Union offer?

Side Note

The scenario described above is not, at all, unlikely. A recent study in the U.K. found that more than one-quarter of all complaints of teacher misconduct with respect to students, including those with and without merit, originate from communications exchanged via social-networking site.

Although the study did not offer an explanation for its finding, I think most of us would agree that the problem is secrecy--when a parent discovers that his child has been engaged in any "secret" conduct, particularly with an adult, the parent is justifiably concerned. The element of secrecy and surprise is what leads the parent to conclude that something is not quite right and to make a complaint to the school.

Illinois Passes Password-Privacy Law

Posted by Molly DiBiancaOn May 24, 2012In: Social Media in the Workplace

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The Illinois Senate approved a bill banning employers from requesting the Facebook passwords of employees and applicants on Tuesday, reports the Chicago Tribune. If Illinois' Governor signs the legislation, it will become the second state in the country to pass such a law. Maryland was the first--its law takes effect October 1.

The article quotes two lawyers with differing views of the Illinois law. The lawyer advocating for the law is Bradley Shear, who writes the blog, Shear on Social Media, and who played a role in the passage of the Maryland law. Although I am somewhat skeptical about Shear's apparent enthusiasm for this type of law, at least the Maryland version, the drafting of which he was involved in, is fairly reasonable and limited in scope.

The lawyer advocating against the Illinois law is Jeff Nowak, who writes the award-winning Blog, FMLA Insights. Nowak argues that legislation is another example of unnecessary regulation of employers. Nowak is quoted as saying:

The overwhelming number of employers understand that this practice simply does not make much business sense -- it leads to potential employment litigation, internal administrative burdens and an accusation of being tagged 'big brother.'

You may not be surprised to learn that I side with Nowak. The number of employers engaging in this practice is minimal at best. Even the sponsor of the Illinois bill admits that she knows of only a handful of employees who claim to have been subject to this practice--and even those individuals did not disclose the names of these employers who allegedly requested their passwords.

Delaware is on its way to become the third state to pass a "password-privacy" law. I am strongly opposed to the law in its proposed form. To read more about the reasons for my opposition, you can read my prior posts on the subject. I hope that, after you do, you will consider calling your Delaware State Representative to share your concerns in advance of next Friday, when H.B. 308 moves to the House floor.

I'm Too Sexy For My Job . . . Part Three

Posted by Molly DiBiancaOn May 23, 2012In: Discrimination, Gender (Title VII)

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Is it unlawful to fire an employee for being too sexy?  Well, it depends.  That's the claim that a New Jersey woman filed with the EEOC, though, so she and her lawyer must think so.  Lauren Odes, 29, worked in her data-entry job for just one week before she was let go.  She claims that there was no dress code in place and that other employees wore very casual "athletic wear," which makes sense given the fact that they were working in a warehouse instead of a traditional office environment.  Odes claims, though, that, in the first few days on the job, her supervisors cautioned her that her outfits were too provocative, "her lips and hair, 'too fresh,'" and her breasts too big. On one occasion, according to the Huffington Post, she was given a bathrobe to wear over her clothes.  Too Hot for Work

Finally, she alleges that she was told that she was just "too hot" for the workplace.  Gloria Allred has taken up the case.  Odes' Charge alleges gender- and religious-discrimination claims.

And where, you might ask, does religion play into this?  The employer is owned by an Orthodox Jewish family and, Odes claims, they were trying to impose their religious beliefs on her with respect to appropriate attire.  As if there weren't enough irony in this story already, the employer is a lingerie company.  It seems to me that the fact that the company sold, in Odes' words, "thongs with hearts placed in the female genital area" would be evidence against Ms. Odes' claim that she was targeted for her religious beliefs. 

For my long-time readers, this story may seem a bit familiar.  If so, it's likely because this is not the first time I've had the occasion to write about employees who claim to have been fired for being too darn hot.  I've written about similar stories on two other occasions--once back in 2008 and then, again, in 2010, when a female employee sued Citigroup, alleging that she was terminated for being "too sexy for her job."

And people wonder why I love my job!

Florida Judges May Not Connect With Lawyers Online

Posted by Molly DiBiancaOn May 22, 2012In: Purely Legal, Social Media in the Workplace

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As I wrote a few years ago, judges in Florida may not be Facebook friends with any lawyer who may appear before the judge.  (Opinion 2009-20, Nov. 17, 2009).  Last month, the Florida Judicial Ethics Advisory Committee made clear that this prohibition extends beyond Facebook.  In Opinion Number 2012-12, issued on May 9, 2012, the Committee opined that a judge may not be “connected” to lawyers who may appear before him on any social-networking site—including LinkedIn.  The inquiring judge had posited that Facebook and LinkedIn have distinctly different purposes—one for personal use and one for professional use.  Therefore, the inquiring judge asked, shouldn’t there be different standards for judges’ use of the two sites?  linkedin logo by webtreats

The Committee did not agree.  Instead, it held that the relevant inquiry is not about the website or social-networking site or its purpose. Instead, the Committee determined that the process of selecting friends or connections “and the fact that the names of those friends or connections are then communicated – often, but not always, selectively to others – that violates Canon 2B, because by doing so the judge conveys or permits others to convey the impression that they are in a special position to influence the judge.”

Other States

Massachusetts judges also may not be “friends” online with any attorney who may appear before the judge.  (Op. No. 2011-6).  So can judges in California, although that State’s opinion seems more qualified.  (Formal Op. No. 66) (2011).  Ethics opinions from Kentucky and Ohio reached a similarly qualified “yes.”  (Op. JE-119) (Jan. 2010); (Op. 2010-7) (Dec. 2010).

Other states’ judicial-ethics committees have come out differently than the Florida committee.  For example, Judges in South Carolina are not prohibited from being Facebook friends with law enforcement officers and employees who work for the judge, provided there is no discussion of anything related to the judge’s official duties.  (Op. No. 17-2009) (Oct. 2009).  Judges in New York also are permitted to participate in social-networking, provided the judge otherwise complies with the rules of ethics.  (Op. 08-176) (Jan. 2009).

But, in a Pennsylvania decision rendered earlier this year, a court determined that a judge had abused his discretion by not recusing himself from a case in which he was Facebook friends with the defendant, a local politician.

And then there’s the example of the New York criminal judge who was transferred after some of the lawyers who appeared before him complained that the judge had sent them Facebook friend requests.

Social-Media Policies for Educators—the N.Y. Case Study

Posted by Molly DiBiancaOn May 21, 2012In: Social Media in the Workplace

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Schools continue to struggle with social media. In particular, teachers’ online interactions with students via Facebook and other social-networking sites continues to be problematic. Some school districts have been successful in adopting social-media policies.  New York City, for example, recently implemented social-media guidelines for teachers and staff.  But school districts without social-media policies for staff are facing challenging times.

The Democrat and Chronicle.com, for example, reported one such story involving a teacher named Shari Sloane. According to the article, Sloane has no qualms about communicating with students and former students via her personal Facebook page. Some of her colleagues think the practice is unprofessional—others call it unethical. I would call it dangerous. 

Another Rochester-area school district, Churchville-Chili Central, adopted a social-media policy in March.  The policy prohibits communications between students and teachers other than those that are for “educational purposes only.” Although I commend any school district that recognizes the importance of addressing social media, I do have reservations about the policy.

It seems to me that teachers should not be discouraged from communicating with students. It’s more important that there be a mechanism in place to prevent inappropriate communications from taking place.  Thus, there are competing interests--preventing inappropriate communications while, at the same time, without restricting communications that benefit students, even if they’re not purely education-related.

One way to manage these interests is with a policy that prohibits “secret” communications. In other words, a teacher should be able to discuss non-educational subjects with students, provided that those discussions are known or knowable to school administrations and parents. As with most things in the word of social media, transparency is key.

That’s why the New York City policy is a better approach. That policy, according to the N.Y. Times, prohibits teachers from communicating with students via personal Facebook and  Twitter accounts but does not impose a general ban on teacher social-media use. Instead, the policy expressly provides that teachers may use social media and recognizes the educational potential of social media. The policy simply says that any communications must be done through district-provided technology. An excellent balance, it seems to me.

See also:

N.Y. Teacher’s Firing Overturned Despite Facebook Wish that Students Drown

No 1st Am. Protection for Teacher’s Facebook Posts

Court Denies Reinstatement to Teacher Fired for Facebook Posts

Blogging Teacher Returns to Work After Suspension for Posting About Students

Social-Media Woes for School Districts

More Social-Media Woes for School Districts

Prof. Alleges Conspiracy to Oust Him for Anti-Muslim Facebook Posts

Posted by Molly DiBiancaOn May 21, 2012In: Social Media in the Workplace

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A tenured professor at Purdue University has sued the university, alleging that it wrongfully disciplined him after he posted anti-Muslim comments on his Facebook page. According to The Fire.org, Prof. Maurice Eisenstein, an Orthodox Jew, posted a picture on his Facebook page of “Christians killed by a radical Muslim group,” along with written comments questioning the response of moderate Muslims and insulting the Prophet Muhammad.  FB Logo

The Facebook post led to student protests on campus and, later, to anti-harassment complaints by at least two other professors.  The professors later filed a second round of complaints alleging that Eisenstein had retaliated against them for their anti-harassment complaints.  The university is alleged to have conducted an investigation of the complaints, “forcing” Eisenstein “to go through a full-blown hearing to defend himself.”  As a result of the investigation and hearing, Eisenstein was cleared of violating the harassment policy but was found to have violated the retaliation policy.  As a result, Eisenstein received written reprimands.

The complaint alleges several counts, including: (1) an “administrative action” claim, which appears to be a due-process claim based on the university’s allegedly “arbitrary and capricious” disciplinary practice; (2) a state constitutional claim, based on the allegation that the complainant-professors “conspired and colluded” with the university’s Chancellor “to deprive Eisenstein of his civil rights” by filing their “unfounded complaints;” and (3) a state-law privacy claim, based on the allegation that the defendants read from a “confidential letter” written by the Chancellor at a faculty meeting. 

Based on the complaint alone, these claims seem attenuated at best. Unless there are additional facts not alleged in the complaint that could establish that the professors actually got together and colluded to harm Eisenstein’s reputation by filing complaints of harassment with the university, I would be not be surprised if all three counts were subject to dismissal on the pleadings.  Nevertheless, the lawsuit is yet another example of the troubles Facebook use by employees continues to cause employers of every size and in every sector.

Podcast: Being Smart about Social Media in the Workplace

Posted by Molly DiBiancaOn May 21, 2012In: Seminars

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Jonathan T. Hyman of the Ohio Employer's Law Blog and I will be guests on this week's edition of The Proactive Employer podcast with Stephanie R. Thomas, Ph.D. Jon and I are not only friends from the employment-law blogosphere but we also collaborated on the book, Think Before You Click, Strategies for Manging Social Media in the Workplace, together. Jon served as editor and co-author and I wrote the chapter on the interplay between privacy and social media.

On the podcast, we'll be discussing some of the many issues relating to social media for employers, sharing tips on social-media policies, and offering suggestions on how to ensure employees are using social media safely. We'll also be fielding questions and comments from listeners.

The podcast airs live on Thursday, May 24, beginning at 3 p.m. Eastern Time and will be available as a download therafter. I hope you can join us then!

3d. Cir: Stay Classy, FLSA Plaintiffs!

Posted by Lauren Moak RussellOn May 21, 2012In: Fair Labor Standards Act (FLSA)

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The 3d Circuit's recent decision in Knepper v. Rite Aid opened the door for plaintiffs in wage-and-hour litigation to bring two different types of class actions against their employers in a single lawsuit.

James Fisher was employed as an assistant store manager in a Rite Aid store in Maryland. He alleges that he was misclassified as exempt from the FLSA's overtime provisions and that they are entitled to additional compensation for all hours worked over 40 per week. In June 2009, Fisher joined a nation-wide, opt-in class action brought under the FLSA. At the same time, Fisher filed a Rule 23 opt-in class action under Maryland's state Wage and Hour Law. Faced with two parallel lawsuits, Rite Aid asked the Court to dismiss the Rule 23 state law class action as inherently incompatible with the FLSA's opt-in class action structure. The Court granted Rite Aid's motion, and Fisher and other state law plaintiffs appealed the decision to the Third Circuit.

On appeal, the Third Circuit joined the Second, Seventh, and Ninth Circuits in holding that there is not "inherent incompatibility" between the FLSA and Rule 23. Instead, the Court noted that it was within the trial court's discretion to administer parallel claims. The Court ruled that, notwithstanding Congress's clear intent in creating a unique process for the FLSA, there was no evidence that it intended to impact the litigation of similar state law claims.
There is another important implication of the Knepper decision. Because the ADEA incorporates the class procedures of the FLSA, the 3d Cir.'s opinion opens the door for parallel ADEA and Rule 23 class actions in age-discrimination claims, as well.

Unfortunately, the road just got a little harder for employers facing wage-and-hour litigation. The FLSA is already a notoriously difficult statute to litigate under, and employers may now be faced with parallel FLSA and Rule 23 class actions. In this case, as in all matters, the best defense is a good offense. Misclassification litigation can be avoided by carefully considering the job responsibilities of your employees and consulting counsel if you are in doubt about classification. If you misclassify employees, the penalties are steep and the cost of litigation just got higher.

Federal Judge Invalidates NLRB Union Election Rule

Posted by Barry M. WilloughbyOn May 18, 2012In: Union and Labor Issues

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At our Annual Employment Law Seminar, we discussed the NLRB's adoption of its so-called "quickie-election" rules, which were adopted in December 2011, following the Obama Administration's failure to obtain passage of the "Employee Free Choice Act," a statute designed to promote union organizing by providing for fast elections when a union files a petition for certification.

The new administrative rules are designed to speed the election process. While they are not as draconian as the proposed Employee Free Choice Act, they were intended to, and would have, cut the time from the filing of a petition to an election in half. So-called "quickie elections" favor unions because they limit the time an employer has to respond to union propaganda about the alleged benefit to employees from joining a union.

On Monday, May 14, 2012, a federal judge ruled in favor of the U.S. Chamber of Commerce's request that the quickie elections rules be invalidated. Although a number of issues were raised in the case concerning the NLRB's rule making power, the court ruled only on the question of whether a quorum was present when the Board adopted the rules.

The quorum issue is more complex that would appear on its face. The Board sometimes acts through "electronic" proceedings. One Board member, Brian Hayes, the Board's sole Republican, did not take part in the December 16, 2011 NLRB electronic vote to adopt the final rule. Hayes only had a matter of hours to vote on the rule since it was posted for final action on the day it was adopted. The court ruled that since Hayes did not affirmatively take a position on the proposed rules, nor indicate that he was abstaining, there was no indication that he participated in the decision. Without his participation, the Board lacked the required quorum.

In response to the decision issued, the NLRB has suspended the implementation of the rule changes. NLRB chairman, Mark Gaston Pearce, said the Board is reviewing the Court decision but is "determined" to move forward with the rule changes adopting the "quickie election" process. In a related development, acting General Counsel, Lafe Solomon, withdrew the guidance to regional offices he issued concerning the new election procedures. As a result, the Regional offices will follow the election process and practices prior to the revised rules until further notice. Up to 150 election petitions are affected by the suspension of the quickie election rules.

Surely, this is not the end of the story. We'll keep you posted as the law continues to evolve.

A Little Presentation Humor

Posted by Molly DiBiancaOn May 18, 2012In: Just for Fun

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Our Annual Employment Seminar has the topic of presentations on my mind this week. Like many of my employment-law colleagues, I do a lot of public speaking. I recently looked back at my speaking schedule for 2011 and was surprised to see that I averaged almost 1 speaking engagement per week. If it was up to me, I'd likely speak even more often but, again, my day job makes that difficult.

Being a good speaker is not easy--even for those of us who love it. It's a craft and, like any craft, requires lots of practice and continued improvement. One guaranteed way to improve is to watch yourself--nothing shows flaws like a live video recording. A less traumatic way to improve is to watch other speakers. By paying attention to what they do well and what irks you can be a very effective training tool.

Here are two videos to get you started in your studies. The first is an updated version of Don McMillan's Life After Death by PowerPoint:

And the second is Every Presentation Ever by Habitudes for Communicators:

Here's hoping your Friday is as enjoyable as these presentations!

Delaware's Password-Privacy Law Moves Ahead

Posted by Molly DiBiancaOn May 17, 2012In: Delaware Specific, Social Media in the Workplace

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Delaware is one step closer to legislating employers' ability to manage their workforces. I testified yesterday about the significant flaws in H.B. 308, called the "Workplace Privacy Act." The members of the Telecommunications, Internet, and Technology Committee nodded along, thanked me for my testimony, and then promptly voted to release the bill as is to the House of Representatives. This, my friends, is why I chose the legal profession over a career in politics.

As a result of the Committee's decision, the bill will proceed to the House in its very defective state. I've posted at length about some of the many, many concerns I have about the unintended consequences this bill would have on employers and employees. But, after my experience at Legislative Hall, I have just one additional thought to share.

It seems increasingly clear that the intention of the bill's sponsors is far more expansive than simply preventing employers from trying to get employees' and applicants' passwords. The intent, it seems to me, is to undo the entire body of case law that has been developed regarding privacy rights. In short, the sponsors are attempting to create a reasonable expectation of privacy in online activities and comments. This is directly opposite of what the law provides and would have tremendous implications on employers in every industry and of every size.

One good thing to come out of today's hearing, though, the increased awareness of the problems with this bill by the State Chamber of Commerce and its members. I'll be sure to keep you up to date with any developments over the next two weeks as we get closer to the next step in the legislative process. Until then, though, Delaware residents should consider contacting their state representative and expressing their concerns with the proposed law. Don't hesitate to direct them to the summary I wrote in my prior posts and the Comment Outline, which is linked in the second of the two posts. See Delaware Proposes Facebook-Privacy Law; and Why Delaware's Proposed Workplace Privacy Act Is All Wrong.