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.
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?
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.
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.
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.
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."
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?
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.”
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).
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.
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.
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.
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.
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!
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.
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.
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:
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.
It’s only Wednesday but this has been a busy week already. If time allowed, I could write posts on several important employment-law-related topics. But, alas, my day job is keeping me busy, so this short-form recap of some of the more notable items will have to suffice.
On her Ride the Lightning blog, Sharon Nelson writes of a story with similarly disturbing facts. In the case that she discusses, an insurer in a dog-bite case permitted its private investigator to lie about his identity on Facebook so he could spy on the plaintiff—a 12-year-old girl. Folks, if it’s not obvious already, this type of dishonesty is despicable and those who engage in it should not be surprised at the negative repercussions that result.
Show Me the Numbers
The EEOC has released a new set of statistics relating to Charges of Discrimination filed in FY 2011. What is notable about this data is that it marks the first time the EEOC has published private-sector statistics for each of the states and territories. The statistics provide the total number of charges filed in each state and a breakdown of charge by type of discrimination. This is the first time that state-specific information has been released and it offers helpful insight on a more granular level.
Lots of blawgers have reviewed this data as it relates to their particular states. For example, Dan Schwartz wrote about the Connecticut numbers and McAfee & Taft’s EmployerLINC blog posted about the Oklahoma stats. And Chris DeGroff and Matthew Gagnon, of Seyfarth Shaw’s Workplace Class Action blog wrote about the significance of this data.
Another One Bites the Dust
Because I just never seem to grow weary of stories involving smart people who fail to exercise good judgment when using social media, I’ll toss this one to my loyal readers for good measure. In this social-media saga, it’s a CFO who was terminated for improperly communicating company information through his Twitter feed and public Facebook profile. Jon Hyman and Phil Miles recap the story in more detail.
Reporter Sarah Tressler covered high society and fashion for the Houston Chronicle. She also worked as an exotic dancer on a part-time basis. According to Tressler, she worked as a stripper only "rarely" and did it for the "exercise" since she "didn't have a gym membership." So she must have been surprised when her "workouts" got her fired from her day job.
The Chronicle told her that she was being terminated for failing to disclose her side job on her employment application, according to MSNBC.
But Tressler ain't buying it. She hired celebrity lawyer Gloria Allred, who has filed a charge of discrimination on Tressler's behalf with the EEOC. The charge alleges that the termination constitutes gender discrimination.
"Most exotic dancers are female, and therefore to terminate an employee because they had previously been an exotic dancer would have an adverse impact on women, since it is a female-dominated occupation," Allred said.
And she may just have a point. If Tressler was fired because she worked part-time as an exotic dancer and she can show that male reporters who failed to disclose their part-time employment on their job applications, it may be a viable claim. On the other hand, journalists usually are subject to strict workplace policies. Newspapers and other traditional media outlets impose high standards on their reporters and, if the paper enforced those rules consistently, it may have a solid defense. Either way, it makes for a good story.
Delaware's version of a Facebook-privacy law, called the "Workplace Privacy Act" (H.B. 308), will go to hearing on Wednesday before the Telecommunications, Internet, and Technology Committee in Delaware's House of Representatives. The bill, as amended, purports to prohibit employers from requesting or requiring an employee's or applicant's password to his or her social-networking site.
In actuality, the bill would fail to accomplish that single objective but would, at the same time, have implications far beyond the stated objective. I wrote in a more demure tone about some of my concerns regarding this bill. But, after seeing a video update (below) in which Rich Heffron of the Delaware State Chamber of Commerce reports that the bill is likely to pass before the close of the session on June 30, it seems that a more direct approach may be in order.
I've outlined my many, many objections to the bill and have attached that document for those readers who may be interested in the more specifics. (HB 308, Full Text, Amendment, and Comments, PDF). For those of you more interested in the short-and-sweet edition, here's the Executive Summary of what I consider are the most dangerous provisions:
No Friending, Even for Family
The bill would prohibit a supervisor from sending a Facebook-friend request to any other employee in the organization--even if the supervisor worked in one division in Delaware and the friend-to-be worked in a different division in Hong Kong.
A supervisor whose teenaged son works for the same employer would be prohibited from "requiring or requesting" her son's Facebook password or "other related account information."
Employers May Not Investigate and Employees May Not Defend Accusations Made Against Them
The bill would prohibit an employer from investigating a report that an employee posted something to his Facebook page, such as: (a) a threat to commit workplace violence; (b) release of information protected by HIPPA and/or the state data-breach laws; (c) communication of trade-secret information; or (d) any number of other wrongdoings.
Not only would the employer be prohibited from asking the alleged wrongdoer about the allegations but the employer would also be prohibited from asking the accuser to support the allegations with proof of what she saw on Facebook that prompted her to make the report. In short, the employer would have no choice but to fie the accused--regardless of whether the individual wanted to clear his name.
The Rule, Though Too Broad, Is Swallowed By Its Exemptions--for Some Sectors
Yet, despite the incredibly overreaching effects of the bill, it is, at the same time, simply insufficient in its narrowness. the bill falls far short of satisfying its supposed purpose--i.e., to prevent employers from requiring employees and applicants to relinquish access to their social-media accounts in the name of a job. The two most glaring failures in this regard include the stated exemptions for:
Law Enforcement, who are altogether exempt from the provisions of the bill; and
The Department of Corrections, . . . maybe.
The exemption for the Department of Corrections is trickier. Although the bill seems to to exempt the DOC from the prohibitions in the bill, it is not entirely clear because the bill also states that the DOC shall not be prohibited "from accessing an employee's social networking site for purposes of employee supervision and retention."
Pardon me? If you think you know what such purposes may include, I'd love to hear about it.
Don't Say I Haven't Tried
Lest you think that I am the type who rushes to judgement and who condemns that which I did not create, let me take a preemptive strike against such conclusions. I forwarded my prior post and my comments to the sponsor for the Committee's consideration and review.
My question is this: Can we see eye to eye on an overly broad, unworkable law that has far-reaching implications for employees and employers? Despite what my business card may say, anyone who knows me knows that I come down squarely in the middle between "employer and employee," which is the only place I believe anything productive can be accomplished.
One of my biggest concerns about the bill is the scenario discussed above, in which the employee who is wrongly accused but who is unable to defend himself and who loses his employment as a result. Nor can I imagine any legitimate basis for there to be exemptions for law enforcement or the Department of Corrections as they are drafted in the proposed legislation. Thus, the concerns raised on behalf of employees are as strong as the problems raised by the bill for employers.
Call to Action, Delaware Employers and Employees
If you are a Delaware employer, a Delaware employee who uses social media and/or social-networking sites like Facebook, business proponent, or defender of civil liberties, I humbly suggest that you call your state representative between now and Wednesday at 3 p.m. to express the concerns you may have. And feel free to forward along my Comment Outline.
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