Seminar for Del. Lawyers: Introduction to Federal Practice

Posted by Molly DiBiancaOn April 17, 2012In: Locally Speaking

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The Delaware Chapter of the Federal Bar Association, in conjunction with the United States District Court for the District of Delaware, has announced what sounds like an outstanding opportunity for attorneys new to Delaware practice, a two-night seminar program entitled "The Federal Trial Practice Seminar Presents: An Introduction to Federal Practice in the District of Delaware." The sessions will take place in Courtroom 2B at the J. Caleb Boggs Federal Building in Wilmington, Delaware, on Thursday, May 17 and Thursday, May 31, 2012, from 5:00 to 7:30 p.m.

Attorneys who have been practicing in the District for three years or less are eligible to participate in this seminar. One of the two seminar sessions will relate to an attorney's interaction with opposing counsel and participation in the litigation process, while the other session will focus on an attorney's interaction with the Court. Each session will include a presentation from a speaker and a panel discussion. The speakers and panel members will be current and/or former judges of the District Court.

Participation is limited to FBA members. Current FBA members may register for the seminar by contacting Steve Brauerman via e-mail by no later than May 14, 2012. Those interested in participating in the seminar who are not currently FBA members can register for membership by completing and submitting the membership form (below) or by contacting Mr. Brauerman for additional information.

Space for the seminar is limited and applicants will be accepted on a first-come, first-served basis. Applicants should be available to attend both sessions. Admission to the seminar is free and the FBA expects to apply for Continuing Legal Education credit in Delaware for both sessions.

The "Introduction to Federal Practice" seminar will be organized by the same administrative team that has organized our successful "Federal Trial Practice Seminar" (or "FTPS") in 2010 and 2011. The FTPS, an eight-week trial skills seminar program offered to attorneys in their first ten years of practice, will be next offered again in Spring 2013.

Membership-Application.pdf

Cal. Meal-Break Decision and Delaware Employers

Posted by Molly DiBiancaOn April 16, 2012In: Cases of Note, Fair Labor Standards Act (FLSA), Wages and Benefits

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The California Supreme Court issued its long-awaited decision in Brinker Restaurant Corp. v. Superior Court on April 12, 2012. The decision contains some very good news for employers regarding obligations relating to employee meal breaks and could have some significant implications for Delaware employers covered by Delaware's meal break law, 10 Del. C. § 707.

Background

Brinker Restaurant Corporation operates 137 restaurants in California, including Chili's Bar and Grill, Maggiano's Little Italy, Romano's Macaroni Grill and others. In 2002, a former employee brought a putative class action against Brinker on behalf of nearly 6,000 hourly restaurant employees. The complaint alleged that Brinker failed to provide rest and meal periods in accordance with California legal requirements, required employees to work off-the-clock during meal periods, and unlawfully altered their time records. The plaintiffs obtained class certification in the trial court on each of these claims, but the Court of Appeal reversed, holding that class certification was improper as a matter of law. The Supreme Court, in a unanimous decision, partially agreed and partially disagreed with both the trial court and the Court of Appeal.

Meal Periods

There were two distinct questions before the Supreme Court concerning meal periods. First, does an employer have a duty to ensure that a meal period is taken and thus violates the law if the employee does not in fact take a 30-minute duty-free break? To that question, the Supreme Court answered "no" - employers are not required to ensure that an employee performs no work during the meal period. Instead, the Supreme Court held that an employer satisfies its meal period obligations by:

• Relieving the employee of all duty for the period;
• Relinquishing control over the employee's activities;
• Permitting the employee a reasonable opportunity to take an uninterrupted meal period; and
• Neither impeding nor discouraging the employee from taking the meal period.

The Court cautioned that employers unlawfully discourage employees from taking meal breaks if they provide incentives for or encourage skipping breaks, coerce employees to forego them, or otherwise make it difficult for employees to take breaks, whether through scheduling or otherwise.

It is this ruling that has the most significance for Delaware employers. Under the Delaware meal break law, an employer "must allow" a 30 minute meal break to persons working 7 ½ or more consecutive hours. Like the California law, the break must be given after the first 2 hours of work, but unlike the California law, the Delaware statute imposes an additional restriction in that the meal break must be given "before the last 2 hours."

Based on the guidance from Brinker, as long as a Delaware employer "allows" the employee to take a meal break during the specified time, the employer need not require the break. If the employee, without any employer pressure, works through his or her break and is paid for it, that would not be a violation of the law. It should also be noted that the Delaware law does not mandate that the meal break be a paid break.

The second meal period question in Brinker concerned the timing of meal periods (the so-called "floating five-hour rule"): must meal periods be scheduled so that an employee is not working more than five hours either before or after the meal period? The Court answered "no" to this question too. The employees in Brinker were sometimes required to take their meal periods an hour into their shifts, such that they were working seven hours after the meal period.

The Court held that this practice was not unlawful and that there is no limit on the number of hours that can be worked after the meal period. Instead, it concluded that:

• Employees must be provided a 1st meal period at some time before the end of the 5th hour of work; and

• Employees who work 10 or more hours must be provided a 2d meal period before the end of the 10th hour of work.

Since the Delaware law is more specific as to when the break must occur, this holding has less significance for Delaware employers. For employees working 7 ½ consecutive hours, the meal break must be allowed no later than 5 hours after the beginning of the work day. Delaware law is silent on the need for a second break if the work day extends beyond 7 ½ hours.

Rest Periods

There were two questions regarding rest period rules. First, does California law require that the rest period be taken before the meal period is taken? The Court answered "no" to this question.

Second, what does the Wage Order mean when it says that employees have a right to a 10-minute rest period for each "four hour work period or major portion thereof"? The Court rejected Brinker's argument that "major portion" means 3-1/2 hours, and held instead that it means "more than two hours." Since Delaware has no rest period law at present, that ruling has no Delaware implications.

Off-the-Clock Work

The sole question regarding the off-the-clock work claim was whether class certification should have been granted or denied. In support of class certification, the plaintiffs had offered anecdotal evidence of "a handful of individual instances" of off-the-clock work. The Court held this evidence insufficient to establish a "uniform, company-wide policy" of allowing off-the-clock work. Instead, Brinker's written policy prohibited working off the clock.

Furthermore, Brinker's time records showing an employee was clocked out created a presumption that the employee was not working. Finally, an employer is liable for off-the-clock work only when it knew or should have known that the employee was performing work off the clock. The Court held that to rebut the time records and establish employer knowledge would require individual evidence and determinations. Therefore, liability could not be established on a class-wide basis, and class certification was improper.

Bottom Line

The Brinker decision is a welcome relief to employers because the California Supreme Court declined to impose strict liability for missed or non-compliant meal periods. Since California has been a leader in providing work benefits to employees, and over time, policies that began in California have drifted to Delaware (the implied covenant of good faith and fair dealing being a prime example), the Brinker ruling should cause Delaware employers to breathe a sigh of relief.

Maryland Law Makes It Unlawful to Demand Facebook Password

Posted by Molly DiBiancaOn April 11, 2012In: Social Media in the Workplace

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The debate over the cyber-screening continues. It's big news these days that employers have been asking candidates for their Facebook log-in and passwords. The purpose? These employers claim that they want to screen potential candidates and what better way to find out the real deal with a potential new hire than see what the candidate posts on his or her Facebook page? Well, it's an idea. The trick, though, is that most candidates are smart enough to restrict access to their social-networking sites.

But people don't like the idea that employers are demanding passwords. The lawfulness of this practice is questionable. As I wrote previously, the practice of "requesting" an applicant's Facebook password may constitute a violation of the Stored Communications Act or may give rise to a state common-law claim for intentional interference with contract.

If the practice's lawfulness is uncertain, its popularity is not--the resounding response has been a hostile one. In fact, there's been such a pushback against asking for Facebook passwords that even politicians have taken notice. As I wrote last month, some state legislatures are considering laws that would prohibit this type of conduct.

Despite the efforts of two U.S. senators, a proposed bill prohibiting the practice was killed in Congress. But the Maryland General Assembly has had more luck and, yesterday, became the first state to pass legislation prohibiting employers from asking current and prospective employees for their user names and passwords for social-networking sites, such as Facebook, reports the Baltimore Sun. Governor Martin O'Malley has not yet announced his position on the bill.

This development is not entirely surprising in light of the negative publicity given to the Maryland Department of Corrections, which allegedly required applicants to turn over Facebook passwords in order to obtain employment. The ACLU rallied on behalf of the employee and the DOC officially halted the practice. Similar legislation is currently pending in California and Illinois. I imagine it won't be long before other state legislatures see the introduction of similar bills, so stay tuned.


Lawfulness of Employers' Demand for Facebook Password

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

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Is it illegal for an employer to ask an applicant for his or her Facebook password as a condition of employment? That's a hot question these days. In my last post, I explained that two U.S. Senators recently asked this very question to the Department of Justice. Specifically, they want to know whether this very unpopular practice violates the Stored Communications Act (SCA) or the Computer Fraud and Abuse Act. As described in my last post, the practice may constitute a violation of the SCA.

Are there other possible claims? Perhaps. One possible claim that comes to mind is tortious interference with contract. In Delaware, a claim for tortious interference with contract requires four elements. Let's run through them and see whether a claim could be made.

First, there must be a valid contract. This is questionable but it is at least arguable that Facebook has a contract with each of its users. If we agree that a contract does exist, then the Terms of Use are the terms that govern that contract. And one of the Terms of Use is that the user agrees not to share his password.

Second, the "interferer" must have knowledge of the contract. I think it would be difficult to conclude that an employer does not know that Facebook's Terms of Use provide that a user should not share his password. Thus, the employer has knowledge of the contract.

Third, the interfering party must intentionally interfere that induces or causes a breach of the contract. By asking that a candidate provide turn over his password, is an employer intentionally inducing the candidate to breach his contract with Facebook? Certainly seems that way.

Fourth, and finally, there must be damages. In other words, the candidate must be harmed by the interference. And here, my friend, is where our winning streak comes to an end. Damages? No, there are none.

I think you'd be hard pressed to show that you were damaged by sharing your Facebook password. Remember, it's not the failure to hire that counts here--it's the act that induces the breach of contract. And, in our scenario, the act that induces the breach is the act of "requesting" a candidate's Facebook password. Trying to establish damages is a tall order that, in my opinion, would be difficult, if not impossible, to satisfy.

See also, Employers Who Demand Facebook Password. Oy Vey.

2d ALJ Decision on Social-Media Policies Under the NLRA

Posted by Molly DiBiancaOn April 9, 2012In: Social Media in the Workplace

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The lawfulness of employer's social-media policies under the National Labor Relations Act (NLRA) continues to be a hot topic. Although the position of the National Labor Relations Board (NLRB) continues to be hostile towards these policies. And, without court decisions on the question, employers are not left with much other legal guidance. Until now, there has been just one decision by an Administrative Law Judge (ALJ), which found that an employee's Facebook posts were protected by the NLRA.

A decision issued by an ALJ at the end of March, though, brings the total count to two. In G4S Secure Solutions (USA) Inc., the ALJ looked at two provisions of the company's social-media policy. First was a prohibition on employees commenting on "work-related legal matters" without the permission of the company's legal department. Second was a prohibition on employees posting any pictures or videos of employees in uniform or employees on a job site. The ALJ found that the first provision violated the NLRB but upheld the second. Here's how it went.

The ALJ found that the "no-comment" provision was overly broad and could be reasonably read by employees to prohibit protected concerted activity. In short, the ALJ concluded that the policy could effectively prevent employees from "sending messages to each other about their issues at work . . . via social-networking sites."

The ALJ found that the "no-photos" provision was lawful, though, holding that the employer "clearly has legitimate reasons for not having pictures of uniformed employees or employees who are at work posted on Facebook and similar sites."

You could say that the decision is a zero-sum game, since the ALJ came out for the employer on one of the challenged provisions and against the employer on the other. But the more positive approach would be to recognize that there is a valuable victory in the ALJ's decision. The value, specifically, is the that ALJ recognized a "clearly" legitimate reason to prohibit employees from posting workplace photos online. This is quite different from the position of the NLRB's General Counsel, who, in his most recent memorandum on social-media policies, took issue with such provisions, concluding that they violated the NLRA.

[H/T Jon Hyman at Ohio Employer's Law Blog]

Employers Who Demand Facebook Passwords. Oy Vey.

Posted by Molly DiBiancaOn April 2, 2012In: Social Media in the Workplace

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Employers who require job-seekers to turn over their Facebook passwords remain a mystery to me. Really, what are they thinking? As if the potential negative publicity alone is not enough of a deterrent, you'd think that employers would be aware that there are potential legal implications, as well.

As the WSJ Law Blog reports, Sens. Richard Blumenthal, D-Conn., and Chuck Schumer, D-N.Y., took up the issue on a federal level. The Senators wrote to the EEOC and U.S. Department of Justice, asking both agencies to investigate the practice of requiring applicants to provide their social-networking-site log-in information during the hiring process.

The letter to the U.S. DOJ sought a legal opinion as to whether the practice violates the Stored Communications Act (SCA) or the Computer Fraud and Abuse Act (CFAA). The letter cites Pietrylo vs. Hillstone Restaurant Group, as support of the proposition that mandating Facebook log-ins violates the SCA.

Potential Legal Violation

I agree with their assertion that Peitrylo would support a claim under the SCA. In that case, the employer was found to have violated the SCA when it accessed employees' private MySpace chat room. Managers had obtained the password and log-in information of another employee. That employee, a hostess at the defendant-restaurant, testified at trial that she turned over her password to the managers only because she believed that she'd be fired if she failed to accede to the request.

If the same logic were applied to applicants who are "asked" for their passwords, the result would be the same--the employer would be in violation of the SCA, just like the employer in Pietrylo. This interpretation of the SCA is not universally accepted, though. The SCA is a challenging statute and its application is difficult to predict.

That said, though, most employers do not want to be the test case. To avoid potential risk under the SCA (and for a variety of other reasons, legal and non-legal), employers should not "request" an applicant's password for Facebook or other social-networking site.

Facebook

Facebook also is speaking out against the practice. On March 23, the uber-popular site wrote a blog post about the issue, stating: "If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends.  We have worked really hard at Facebook to give you the tools to control who sees your information."

Legislative Efforts

In Washington, there was one recent attempt to put an end to this highly unpopular practice. According to the Orlando Sentinel, Rep. Ed Perlmutter, D-Colo., introduced the proposal as part of a bill to reform the Federal Communications Commission. House Republicans blocked the proposed amendment on Tuesday, reported the Huffington Post.

Blumenthal is also drafting on a bill that would prohibit employers and prospective employers from requesting access to Facebook accounts. California State Senator Leland Yee, introduced similar legislation on Friday.

Union Files Complaint Over Social-Media Policy

Posted by Molly DiBiancaOn March 30, 2012In: Social Media in the Workplace, Union and Labor Issues

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UFCW Local 1500 filed a petition with the NLRB office in Brooklyn, NY, alleging that NY grocery chain Stop & Shop's social-media policy violates the National Labor Relations Act, reports Thomson Reuters. The unions takes issue with the policy, which it alleges is overbroad, impermissbily vague, and violates employees' Section 7 rights.

The policy was promulgated over the summer and, according to the news report, prohibits employees from disclosing confidential information, including salaries, on social-networking sites such as Twitter. It is also prohibits employees from "discrediting" the store's practices or products.

A union representing employees at a New York grocery chain has asked federal labor regulators to investigate whether the store's new social media policy is overbroad and violates workers' rights under the National Labor Relations Act. Finally, the union takes issue with the store's failure to negotiate the terms of the policy prior to its implementation.

The employer's spokesperson says tat the policy is meant to serve as reasonable guidelines for employees' online conduct and that the policy expressly provides that it will not be used to violate the NLRA.

Although the intent sounds "reasonable," the NLRB is likely to take issue with the policy's prohibition on sharing pay information, which has long been considered impermissible under the NLRA. We'll see whether the store acts quickly enough and to the satisfaction of the union.

See also:
The Love-Hate Relationship of Unions and Social Media

YCS&T Annual Employment Law Seminar

Posted by Molly DiBiancaOn March 26, 2012In: Seminars

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Yes, it's time again for Young Conaway's Annual Employment Law Seminar!

This year, the seminar will be held on May 9 at the Chase Center on the Riverfront. You can download the seminar brochure (PDF) and register online on the seminar's event page on our firm's website.

We are very pleased to announce that our keynote speaker for this year's event will be William Kenan Torrans, Chief Investigator, Veterans' Employment and Training Service, U.S. Department of Labor. Mr. Torrans will be conduting a plenary session on what I believe is one of the most critical issues that will face employers in 2012--the application of the Uniformed Services Employment and Reemployment Act (USERRA). USERRA's provisions are far reaching but many employers are unaware of the law's implications. As the number of military service members returning home continues to increase, so, too, do the number of complaints received by the Department of Labor. I am looking forward to what is sure to be an insightful presentation on an important subject.

Other topics and speakers include:

  • The Changing Face of Social Media, Molly DiBianca

  • NLRB In Union and Non-Union Workplaces, Barry Willoughby and Molly DiBianca

  • Special Topics for the Public Sector, Bill Bowser, Scott Holt, and Mike Stafford

  • Background Checks, Adria Martinelli and Lauren Moak

  • Independent Contractors, Scott Holt

  • Education Law Update, Bill Bowser and Mike Stafford
  • As previous attendees know, we believe that a healthy dose of fun is the best way to learn any subject (and especialy employment law). In previous years, some of us were brave enough to present our topics in the Pecha Kucha style. The sheer humiliation factor of that experience was enough to nearly bring down the house.

    This year, we're ready to turn the tables a bit and put you in the limelight! Don't miss Employment Law Jeopardy, hosted by Bill Bowser, where brave volunteers can show just how closely they've being paying attention at these seminars over the years. It's an hour that is sure to be hilarious and educational for everyone.

    We hope to see you on May 9!

    Believe It, Baby. Subjective Belief of Discrimination Ain't Enough

    Posted by Lauren Moak RussellOn March 14, 2012In: Discrimination

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    An employee who sues his employer for discrimination almost always believes that his protected characterstic was the real reason behind a negative outcome, such as termination, discipline, etc.. A new decision from the U.S. District Court in Delaware reminds us that an employee's subjective belief regarding discriminatory motive is not sufficient to establish liability against an employer. This decision likely won't stop employees from filing lawsuits but it should provide some reassurance to employers who make carefully considered and well-documented employment decisions.

    Facing Facts
    The case of Luta v. Delaware Department of Health and Social Services was brought by a black, Kenyan employee of DHSS, who had been denied several promotions. Ms. Luta had been employed with the agency for 5 years when she applied for three internal promotions. She was considered qualified for each position and was placed on a list of eligible candidates.

    Two of the positions remained unfilled because the manager was not satisifed with any of the eligible candidates. Instead, two women continued to perform the duties of those positions in a temporary capacity. The third position was awarded to a white male with signficant experience.

    Mr. Kennedy had 20 years' experience in the Air Force's Medical Service Corps, but had limited experience with HIV/AIDS.

    In issuing its decision, the Court focused primarily on the third position, HIV/AIDS Coordinator. In support of her claim for unlawful failure to promote, Ms. Luta relied argued that she had more experience treating and researching HIV/AIDS diseases than the individual who had been awarded the position. Ms. Luta claimed that she had been told by an HR manager that HIV/AIDS experience was "essential" to the position. By contrast, DHSS argued that management experience was the key skill desired in candidates and, in that regard, the individual selected had far more experience than Ms. Luta.

    The Court concluded that Ms. Luta had failed to meet her burden in presenting evidence of discrimination. The Court noted that the human resources manager with whom Luta spoke was not authorized or qualified to elaborate upon the skills required to perform medical positions. The statements of medical professionals responsible for making the hiring decision were given more weight, and supported the contention that management experience was more important that knowledge of HIV/AIDS. The Court also noted that, contrary to Ms. Luta's assertions, the successful candidate did have experience with HIV/AIDS diseases, albeit more limited than her experience. In addition, the comparator was the more desirable candidate because of his extensive management experience.

    Setting aside their relative qualifications, however, the Court emphasized that Ms. Luta needed to present some evidence of discrimination. "A reasonable factfinder could not conclude, based solely on the fact that a white man with more managerial experience was hired over a black Kenyan woman with arguably more HIV/AIDS experience . . ., that racial and national origin discrimination had occurred." Based on this conclusion, the Court dismissed Ms. Luta's claims.

    This decision represents a beacon of hope for Delaware employers in that it goes to show that a lawsuit will not succeed without some evidence of discrimination other than "I believe" coming from the plaintiff-employee.

    iBooks: Coming to a Courtroom Near You?

    Posted by Molly DiBiancaOn March 12, 2012In: Tech Tips

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    Lawyers are notoriously slow to adopt new technology. This is an unfortunate characteristic of my profession. But there are some innovators in the field. And those innovators may be changing the game for the rest of us.

    For this Monday morning, I'd like to direct you to one such innovator and how he is putting the latest technology to use. Specifically, the technology being put to use is the iBook. And, now, with Apple's new iBook Author app, publishing an iBook is about as simple as creating a document using Microsoft Word.

    And what do all litigators create with Microsoft Word? Briefs. We write lots of briefs. And what happens when you combine iBooks and legal briefs? Total geek heaven. To see a very geeky-cool example of an iBook brief, check out the post, e-Briefs o the iPad: An Exciting New Tool to Give Attorneys an Edge on Cogent Legal Blog. And then be sure to download the sample brief and view it on your iPad.

    I'd love to think that this idea will be the next great trend in litigation but, sadly, I don't think its time has come. Mainly because we don't yet have the ability to file this format in the courts' electronic filing system. But I think the iBook format has tremendous potential as a very accessible way to create compelling content for just about any purpose. How can you put this format to work for your organization?

    (H/T to Ted Brooks at Court Technology and Trial Presentation Blog)

    Federal Court Upholds NLRB Posting Requirement

    Posted by Molly DiBiancaOn March 7, 2012In: Union and Labor Issues

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    In January 2011, the National Labor Relations Board (NLRB) promulgated a rule requiring private employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). The rule required that the notice be posted in a "conspicuous place" and provided for penalties for employers who failed to comply. If the NLRB determined that an employer had failed to comply, it could toll the statute of limitations for an employee who files an unfair labor practice (ULP) charge for any alleged conduct by the employer--not only for conduct relating to the failure to post the notice. A failure to post, alone, also would constitute an ULP.

    The rule prompted a small fury among the business community, which challenged the NLRB's authority to promulgate such a rule. A lawsuit was filed by several organizations, including the National Association of Manufacturers and the National Right to Work Legal Defense and Education Foundation. The suit sought to enjoin the enforcement of the rule, the effective date of which has been delayed several times and currently is set for April 30, 2012.

    The U.S. District Court for the District of Columbia issued a ruling in the case on March 2, 2012, striking down part of the notice-posting rule. The court found that the NLRB does have the legal authority to require employers to post a notice--including the notice at issue. The court's decision was not entirely in favor of the NLRB, however, and it rejected the proposed penalties associated with noncompliance. Specifically, the court held that the NLRB does not have authority to extend the statute of limitations to file an ULP charge or to determine that noncompliance constitutes unlawful interference with employees' NLRA rights.

    Thus, the NLRB will not be able to find that an employer engaged in an ULP merely by failing to post the notice as required by the rule. Without this enforcement mechanism, the impact of the posting requirement is reduced significantly. At the same time, though, failure to post the notice could be evidence in support of another ULP charge.

    A separate suit is still pending in a federal court in South Carolina and it is unclear how the outcome of that case will impact the decision from the District of Columbia. At this time, though, it appears that the NLRB posting requirement will take effect on April 30, 2012. At that time, all employers subject to the NLRA will be required to add yet another poster to their current collections--this one relating to the right of employees to unionize. A copy of the NLRB's suggested posting is available at www.nlrb.gov/poster.

    Should Cyber-Screening by Employers Be Legislated?

    Posted by Molly DiBiancaOn March 6, 2012In: Background Checks, Hiring, Social Media in the Workplace

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    Employers have been cyber-screening job candidates for years now. Although reports vary on how many of the nation's employers are Googling applicants, officially or unofficially. But the practice is a reality.

    What also is a reality is the many variations of cyber-screening that exist. On the most moderate end of the spectrum are employers who have instituted a legally defensible practice, as I've written about previously. On the most extreme and unsavory end are employers who require applicants to turn over passwords and log-in informaiton for their social-networking accounts. Bozeman, Montana was the first employer to make the news for this practice; Maryland's Department of Corrections was the most recent.

    Many employment lawyers, including me, strongly object to this practice on numerous grounds, not the least of which is the fact that it violates the terms of service of the social-networking sites. And now, it seems, that there may be some politicians who feel the same way.

    Law.com reports that a California legislator has introduced a bill that would protect employers who don't cyber-screen job applicants. And bills are pending in Maryland and Illinois that would prohibit employers from asking applicants for log-in information for social-networking sites. The Maryland law is likely a result of the negative publicity the State received after news broke that the Department of Corrections was requiring applicants to turn over their password and log-in information.

    So, will these laws be the wave of the future? Perhaps. Are they necessary? Not really. Or at least they shouldn't be. The terms of service for social-networking sites, such as Facebook, prohibit this type of activity in the first instance. But, as long as stories like the one from the Maryland Department of Corrections keep making the headlines, laws like the ones currently pending may continue to appear in state legislatures.

    Want to know the right way to cyber-screen applicants? Check out these articles:
    Screening Job Applicants with Facebook: Part 1, Part 2, and Part 3.

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

    Posted by Molly DiBiancaOn March 6, 2012In: Public Sector, Social Media in the Workplace

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    Christine Rubino had been a teacher in Brooklyn for 15 years without any disciplinary history when she was terminated in response to comments she posted about students on her Facebook page. Specifically, Rubino posted that her 5th-grade students "deserved to drown." And, when asked whether she would "let little Kwame float away," Rubino responded with: "Yes. I would not throw a life jacket in for a million," reports the Huffington Post.

    Even more shockingly, the comments came just one day after a 12-year-old girl drowned during a class trip to Long Island beach.

    A disciplinary hearing officer found the teacher guilty of "misconduct, neglect of duty, and conduct unbecoming her profession" and, as a result, Rubino was terminated. She subsequently appealed to the N.Y. Supreme Court, which overturned the decision.

    Writing for the court, Justice Barbara Jaffee described Rubino's posts as "repulsive." Yet, she went on to conclude that, under the circumstances, the termination was too disproportionate to the offense, thereby requiring that the termination decision be overturned.

    The district does not have a social-media policy but, according to the N.Y. Post, fired three teachers last year for inappropriate online posts.

    This decision is a difficult one to reconcile with some of the recent cases in which similar comments were held to warrant the termination of a teacher. But Evan Brown writes on his Internet Cases blog about an even more perplexing part of the court's decision. He describes the court's take on the issue of proportionality between the nature of the wrong and the consequences imposed as "contextual integrity." Here's the language from the court's decision that Evan cites to:

    [

    E]ven though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable.


    Note the potential impact of the last part of this sentence. The potential impact is enormous. Essentially, the court says that ignorance of consequences for Facebook posts is legally sufficient to establish a reasonable expectation of privacy. This single sentence effectively recognizes the right to publish to a limited audience; a concept that has been consistently rejected by courts. At least until now.

    Rubino v. City of N.Y., 2012 NY Slip Op 30246(U) (N.Y. Sup. Feb. 1, 2012) (PDF)

    Resources for Employers: Applicants and Employees Returning from Military Service

    Posted by Molly DiBiancaOn March 5, 2012In: Disabilities (ADA), Uniformed Services (USERRA)

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    Employer's lawyers have seen an increasing number of questions regarding the obligations relating to employees and applicants returning from military service. There are two important laws that may apply to such individuals--the ADA and USERRA. Although the ADA has been on employer's radar for years, most are less familiar with USERRA. Now is the time, though, to become familiar. The law imposes many obligations on employers and many of those obligations are different than other employment-discrimination laws.

    The EEOC has published a new Guide for Employers titled, Veterans and the ADA. The Guide is intended to provide answers to some of the questions employers can be expected to face as veterans return home from military service and seek employment in the private sector. Some of the points covered by the Guide include:


    • What qualifies a disabled veteran for the protections of the ADA;

    • Information about hiring preferences for disabled veterans;

    • When and how an employer may ask whether a veteran with a disability needs an accommodation;

    • Some of the basic differences between the ADA and USERRA.


    The Guide includes references to several helpful online resources--all of which are free. One of the references is to the U.S. DOL's VETS program. Once on the VETS site, be sure to bookmark the Pocket Guide to USERRA, a detailed and fairly comprehensive FAQ about USERRA's requirements.

    Friday Funnies: Motivational Poster of the Future?

    Posted by Molly DiBiancaOn March 2, 2012In: Employee Engagement, Just for Fun

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    Sheldon Sandler took the picture below during a recent trip to Granada. Yes, it's a real picture of a real sign on the outside of a real factory.

    Granada.png

    Admittedly, the picture evokes mixed emotions for me. Part of me cheers, happy for the employer who attempts to set a positive tone for workers about to start their workday.

    On the other hand, though, the sign seems to send, well, a bit of a mixed message, doesn't it? Nothing like beating someone with a baseball bat imprinted with a motivational message as a technique to motivate workers, right?

    Either way, the sheer extremity of the sign makes me laugh. And that's enough of a reason to post it as this Friday's Funny. Enjoy and have a great weekend!