Facebook Users to Friends: "You're Fired"

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

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Employers are well aware of the implications of their employees' social-media and other online activities. Infamously, employees have been less willing to be aware of those serious implications. Perhaps the tide is changing. According to the results of a new report from Pew Internet, social-media users are becoming more aware of the potential consequences of what they post online.

How, you may ask, are users showing their privacy savvy? In these difficult economic times, they're doing what most of us have done. They've made cuts. That's right, social-media users are cutting back on friends.

Social-media users are unfriending Facebook friends, removing unwanted comments, and restricting access to their profiles. For example, 44 percent of respondents said that they deleted comments from their profiles last year. This is up from 36 percent in 2009.
So, is it possible? Are people finally beginning to catch on to the myriad of negative consequences that can stem from online postings? I won't hold my breath but may consider breathing a sigh of relief that some people, at least, are becoming aware of the ramifications of social-media conduct.

Employer Is Liable for Off-Duty Harassment-by-Blog

Posted by Molly DiBiancaOn February 28, 2012In: Harassment, Social Media in the Workplace

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Employee is harassed at work. Employee reports harassment to his employer. Employer investigates immediately. Employer stops harassing behavior. Anything short of this will result in liability. Compliance will preclude liability pursuant to what is known as the Ellerth-Faragher defense.

But what if the harassment occurs outside of work? Certainly, at-work harassment is the most common scenario. But it's not the only scenario that can trigger liability. Today, in the context of social media, this scenario has become easier to imagine. A case decided by a state court in California earlier this month provides a vivid example of precisely this set of facts.

In Espinoza v. County of Orange, the plaintiff was an employee with a physical disability. In 2006, co-workers started two blogs, where they posted critical and spiteful comments about the plaintiff. Some of the posts attacked managers other than the plaintiff and about the workplace generally.

The employer did not sponsor or endorse the blog or participate in it in any official way. The plaintiff complained repeatedly to management of the blog posts, as well allegedly harassing conduct that occurred in the workplace.

Management apparently made some meager efforts to get the employees to stop posting about the plaintiff. For example, there were a couple of emails sent to the co-workers, instructing them to stop the postings. Those efforts were not successful, though, and the plaintiff filed suit for disability-based harassment. Following a trial, the jury awarded the plaintiff nearly a million dollars in damages.

The employer appealed and argued, in part, that it could not be held liable for conduct that occurred outside the workplace. The court rejected this argument. The reality is that the duty of an employer to protect its employees from unlawful harassment. This duty is unaffected by where the location occurs. If, for example, a sales employee is harassed by a customer in the customer's worksite, the employer's duty is unchanged--the law requires that the employer stop the harassment and protect the employee. Similarly, if the harassment occurs in cyberspace, the duty remains the same--the employer must protect the employee and stop the harassment.

Espinoza v. County of Orange, 2012 WL 420149 (Cal. App. Ct. February 9, 2012)

(H/T to Eric Goldman at his Technology and Marketing Law Blog. Prof. Goldman also looks at this case from an IP perspective and offers insight into the court's analysis of the employer's immunity argument pursuant to 47 U.S.C. 230).

Redefining "Eligible Employee" under the FMLA

Posted by Molly DiBiancaOn February 27, 2012In: Family Medical Leave

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An employee does not become eligible to take FMLA leave until he or she has worked at least 1,250 hours and 12 months. But, according to the 11th Circuit, being eligible to take leave is not the same as being eligible to request leave. Employers should be mindful of the court's recent opinion when a recently hired employee submits a request for FMLA.

In Pereda v. Brookdale Senior Living Communities, Inc., the plaintiff-employee submitted a request to take FMLA. At the time the request was made, she had not yet passed her one-year anniversary, making her ineligible to take leave. However, the requested leave would have begun after the 12-month mark, when she would have been eligible for FMLA. The employer terminated her before the end of her first year.

The 11th Circuit was asked to decide whether the employee could pursue a claim under the FMLA. In order to make that decision, the court had to determine whether the employee could be considered an "eligible employee" for purposes of the FMLA. As you may imagine, the employer argued that the employee was not an "eligible employee" at the time she was terminated and, therefore, was not protected by the statute.

The court disagreed, finding that eligibility is determined at the time the employee would have taken leave. Here, she would have been eligible for leave because, by that time, she would have been employed for the full 12 months. According to Hunton Labor & Employment Perspectives Blog, the 11th Circuit is the first federal court of appeals to have faced this question.

Although the ruling may come as a surprise to many employers, I think that common sense and good intent would deliver the same outcome. An employer would be well advised to be aware of the message it would be sending by terminating an employee who gives timely notice of her need for FMLA leave. In other words, the employer would be encouraging employees who had a legitimate need for leave to keep mum about the need until completing the first year of employment. It seems that employers would want to have as much notice as possible so it could make the necessary arrangements in planning for the employee's absence.

Pereda v. Brookdale Senior Living Communities, Inc., No. 10-14723 (11th Cir. Jan. 10, 2012).

IRS to Employers: Raise Your Hand If You've Misclassified Workers

Posted by Molly DiBiancaOn February 20, 2012In: Independent Contractors

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All individuals performing work for an employer should be classified as employees or independent contractors. Employees are then further classified under the Fair Labor Standards Act as "exempt" or "non-exempt" for purposes of overtime compensation. Proper classification of employees and independent contractors can be difficult, and misclassification can lead to significant financial liability in the form of back taxes and overtime pay.  Red 3D Figure Raising Hand

In an attempt to address misclassification of independent contractors for tax purposes, the IRS launched the Voluntary Classification Settlement Program (VCSP). The goal of the VCSP is to properly classify workers, while collecting unpaid payroll taxes for employees improperly classified as independent contractors. As the IRS explained, "this new program will allow employers the opportunity to get into compliance by making a minimal payment covering past payroll tax obligations rather than waiting for an IRS audit." An employer's voluntary participation in the VCSP removes the burden of interest and penalties that would be assessed if the misclassification were discovered as the result of an IRS audit.

Despite the many benefits offered by the VCSP, many employers were reluctant to participate because it was unclear whether the facts surrounding the employer's participation would be shared with other government agencies. Of particular concern is the Department of Labor's Wage and Hour Division, which is responsible for enforcing the Fair Labor Standards Act. Employers' concerns were legitimized by the earlier announcement that the IRS, the Department of Labor, and several states would be joining forces to identify wage and hour violations and impose significant fines on non-compliant employers.

In an attempt to address employer concerns about the VCSP, the IRS has issued an FAQ sheet. The FAQ resolved three key fears for employers:

  • The IRS states that it will not share information about VCSP applicants with the Department of Labor or state agencies;
  • An employer that applies for but is not accepted into the VCSP will not automatically be subject to an IRS audit; and
  • Participation in the VCSP is not an admission of liability or wrongdoing with respect to employee classification issues.

With these concerns alleviated, we'll have to wait to see whether employers forward and work with the IRS to address any concerns they may have about whether they have misclassified independent contractors.

See also these previous posts on misclassification of employees:

3d Cir. Rules on Enforceability of Non-Compete Agreements for Independent Contractors

Pennsylvania Passes Misclassification Law

Will "Misclassification Initiatives" Reduce Employers' Use of Independent Contractors?

Friday Funnies: Edison's Take on Job Interviews

Posted by Lauren Moak RussellOn February 17, 2012In: Just for Fun

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The job application and screening process is key to finding and retaining valuable employees. As employment attorneys, we talk a lot about the Do's and Don'ts of job interviews and background checks. So, when we came across Thomas Edison's job interview quiz, we thought it was worth a look.  What we discovered is that we couldn't get a job with Thomas Edison. Could you?

Feds Blunt Delaware's Medical-Marijuana Law

Posted by Michael P. StaffordOn February 13, 2012In: Delaware Specific, Drug Testing, Legislative Update

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Delaware's medical-marijuana program has gone up in smoke. According to the News Journal, Gov. Markell "has suspended the regulation-writing and licensing process for medical-marijuana dispensaries--effectively killing the program." The decision comes in response to a letter from U.S. Attorney Charles M. Oberly III.

The governor's office sought guidance from Oberly about the legal implications of state employees who work at a dispensary. Oberly's response was clear: "State employees who conduct activities mandated by the Delaware Medical Marijuana Act are not immune from liability" under the Controlled Substances Act.

The death of the Delaware Medical Marijuana Act (DMMA), which was passed in May, 2011, is not due to a unique defect in the statue itself, which shares common elements with other state medical marijuana laws. Instead, the crux of the problem is the intersection of state and federal law and the shifting approach to enforcement taken by the Obama administration.

Despite state statutes like the DMMA, marijuana, medicinal or otherwise, remains illegal under the federal Controlled Substances Act as a "Schedule 1" controlled substance--the same category as drugs like heroin and LSD.

When the DMMA was passed in May 2011, legislators were under the impression that the federal government would not prosecute employees in future dispensaries. This understanding was due to representations by the Obama administration that it would not prosecute individuals for marijuana offenses made legal under state law. That position has changed, however, and the federal Department of Justice is now drawing a distinction between physicians prescribing medicinal marijuana, and individual cardholders, on the one hand, and "large scale, privately owned industrial cultivation centers" on the other. This is problematic for Delaware because the DMMA initially centralizes marijuana distribution in just three Compassion Centers (with one located in each county).

The uncertainty created by contradictory enforcement signals at the federal level has impacted the implementation of medicinal marijuana legislation in other states as well. As we posted previously, a Justice Department warning that "state employees who conducted activities mandated [under a proposed law] would not be immune from liability" led Washington Gov. Gregoire to veto that state's medical-marijuana bill. Similar warnings of potential enforcement actions targeting marijuana dispensaries also led Rhode Island Gov. Chafee to halt plans to create state-licensed compassion centers, as well.

The news should be a relief to Delaware employers concerned about the workplace implications of the DMMA which, among other things, would have made it unlawful for an employer to terminate a cardholder for failing a drug test unless they "used, possessed, or (were) impaired by marijuana" while at work during normal hours. The DMMA also specified that the mere presence of marijuana components or metabolites in a cardholders system would not suffice to establish that they were under the influence of the drug.

While some effort to amend the DMMA to address federal enforcement concerns is likely, for now, medical marijuana's future in Delaware appears hazy, at best.

Does Federal Law Prohibit Lactation Retaliation?

Posted by Adria MartinelliOn February 10, 2012In: Pregnancy (Title VII)

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I recently saw an article in the ABA Journal about a mom who allegedly was fired for wanting to breastfeed at work. The federal judge in the Southern District of Texas concluded in that case that lactation is not "pregnancy, childbirth, or related medical condition" under Title VII, and therefore discrimination on that basis does not constitute sex discrimination. While I strongly disagree with that conclusion, she is not the first judge to draw this conclusion.

The Ohio state judge in the Isotoner decision reasoned that lactation was not "pregnancy related," because a woman could choose to stop it if she wanted to. It is interesting that courts have interpreted "pregnancy-related conditions" broadly in other areas - for instance concluding that not being pregnant is pregnancy-related, yet seem to struggle with the notion that breastfeeding is pregnancy-related.

I suggested in my earlier post that, in light of the existing case law, Congress needs to fix the problem by enacting legislation to make clear that breastfeeding is protected activity. Congress acted. Effective March 23, 2010, the Patient Protection and Affordable Care Act (PPACA) amended the Fair Labor Standards Act to require employers to provide a nursing mother reasonable break time to express breast milk after the birth of her child. The amendment also requires that employers provide a place for an employee to express breast milk. See our earlier post on the FLSA Amendment.

My initial thought upon reading the recent Texas decision was that if the relevant events had occurred after this amendment, the plaintiff may have gotten further with her claim that she was discriminated against for wanting to nurse her newborn. (There are lots of reasons her claim could fail, including if she was terminated for another reason, she was an exempt employee and therefore not covered by FLSA, or the employer had fewer than 50 employees and could therefore assert providing nursing facilities was an "undue hardship" under the amendment). But let's assume for purposes of discussion, that the plaintiff was indeed terminated for asking about where she could pump breast milk, covered under the FLSA amendment, and the company decided they did not want to deal with the hassle. Surely, that would be illegal under the FLSA amendment, right?

The answer is not as obvious as one might think. The amendment related to nursing contains no language regarding retaliation. The retaliation provisions within the broader FLSA statute extend protection only to employees who have "filed a complaint or instituted or caused to be instituted any proceeding under or related to the [FLSA], or has testified or about to testify in any such proceeding." 29 U.S.C. §215(a)(3). This would not protect the plaintiff in the Texas case, who evidently did not lodge any complaints regarding her nursing until she filed her complaint in federal court over her termination.

At least 24 states have their own laws protecting breastfeeding at work. Many include more broad retaliation protection language than FLSA provides. For instance, Maine's law, which require that employers provide similar break times and locations as the federal law, also states that "a]n employer shall not retaliate or discriminate against an employee who exercises the right provided under this section."

If a woman is unfortunate enough to reside in any of the 26 states without such laws, the nursing provisions of the new PPACA law appear to leave a nursing mom exposed, so to speak. Her employer could be required to provide nursing facilities and appropriate breaks under federal law. Instead of complying with that law, an employer could decide merely to terminate the employee because it does not want to deal with the hassle. There appears to be little to protect such a woman under federal law, unless she has registered a "complaint" under FLSA.

The right to breastfeed at work does not fit neatly into existing statutory language. The law needs to be amended in order to protect nursing mothers from retaliation for choosing to exercise their rights under FLSA to take nursing breaks in a designated space. Until that is done, unless the mother complains about the lack of facilities or the failure to give her break time as required under the statute, it appears there is little to protect her if she is terminated for exercising or planning to exercise her rights to pump breastmilk at work.

(FMLA) Form Over Function

Posted by Lauren Moak RussellOn February 7, 2012In: Family Medical Leave, Genetic Information (GINA)

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New FMLA forms appear to be around the corner. In 2008, the U.S. Department of Labor issued a set of forms, which were intended to assist employers in reviewing and granting requests for leave under the Family Medical Leave Act (FMLA). Updated forms have been submitted to the federal Office of Management and Budget (OMB), but have not yet been approved.

Until new forms are issued, the U.S. DOL has indicated that the old forms may continue to be used. However, employers should note that the 2008 forms do not account for recent changes in the law. The most significant change since the forms were issued is the publication of regulations implementing the Genetic Information Nondiscrimination Act (GINA). The GINA regulations were issued in 2010 and took effect in January 2011.

GINA generally prohibits employers from obtaining employees' genetic information, except in limited circumstances. Because of the broad scope of GINA's prohibition, many employers were concerned about its impact on their businesses. The regulations issued in 2010 addressed many of these concerns, and created an exception where employers inadvertently obtain an employee's genetic information. In order to take advantage of this exception, employers are advised to include "safe-harbor" language in medical forms, including FMLA documentation. We've addressed the FMLA-GINA safe-harbor issue and provided sample language in previous posts. The 2008 FMLA forms issued do not contain this safe-harbor language, so employers should consider adding it as a temporary solution until new forms are approved.

Business Is Booming . . . for the EEOC, Anyway

Posted by Molly DiBiancaOn February 2, 2012In: Discrimination, Retaliation

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Many employers continued to face financial challenges in 2011. But business is booming for at least one group. The EEOC received a record number of complaints last year--almost 100,000 in all.

Almost half (40%) of the complaints alleged unlawful retaliation, making it the most "popular" type of claim. Race- and sex-discrimination claims ranked second and third highest.

The newest law on the EEOC's enforcement task list is GINA, the Genetic Nondiscrimination Act. As expected, there were few GINA complaints filed--only 245 in 2011.

There could be any number of reasons for the increasing amount of discrimination complaints filed with the EEOC. Unfortunately, though, it doesn't seem that this trend is likely to slow any time soon.

3d Cir. Finds Individual Supervisor Liable Under FMLA

Posted by Molly DiBiancaOn February 1, 2012In: Cases of Note, Family Medical Leave

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Can an individual supervisor be held liable when an employee files suit? Well, like all legal questions, it depends. The Third Circuit Court of Appeals issued an opinion yesterday expanding the instances when the answer to this question is yes in Haybarger v. Lawrence County Adult Probation & Parole, No. 10-3916 (3d Cir. Jan. 31, 2012).

Background
The plaintiff, Debra Haybarger, was the office manager for Lawrence County Adult Probation and Parole, an agency of the Lawrence County of Court of Common Pleas. Haybarger reported to Director William Mancino who, turn, reported to Court Adminstrator Michael Occhibone. Occhibone reported to the President Judge of the Court, Judge Dominick Motto.

Hayberger missed a lot of work due to various illnesses. Her boss, Mancino, was "displeased" by the absences, writing on her performance evaluations that she needed to "improve her overall health and cut down on the days she misses due to illness." He also commented about her health and suggested that she need to "start taking better care of [her]self." Yikes.

Mancino put Haybarger on a six-month probation, which required weekly progress reports and formal monthly meetings. In a disciplinary letter, he wrote that Haybarger's "conduct, work ethic and behavior [were] non-conducive to the Adult Probation Office." He also wrote that she demonstrated a "lack of leadership," and "no clear understanding of the subordinate positions" that she supervised. Gulp.

At the end of the six months, Mancino told his superiors that Haybarger's performance had not improved and recommended that she be terminated. They followed his recommendation.

The Suit
Haybarger sued the agency, the county, and Mancino under the ADA, Rehabilitation Act, Pennsylvania's state discrimination statute, and the FMLA. Initially, the District Court dismissed all of the claims except for the Rehabilitation Act claim against the agency and the FMLA and state-law claims against Mancino.

After limited discovery, the agency moved for summary judgment, alleging it was immune from suit pursuant to the 11th Amendment. The motion was denied and the Third Circuit affirmed.

On remand, the agency again moved for summary judgment, as did Mancino. The agency's motion was denied but the parties subsequently settled, leaving only the FMLA claim against Mancino in his individual capacity.

The District Court held that, while the FMLA permits individual liability against supervisors at public agencies, the plaintiff failed to show that Mancino had "sufficient control over [her] conditions and terms of employment" because he did not have authority to hire and fire and, therefore, was not a supervisor.

The Holding
The Third Circuit determined, as a matter of first impression, that supervisors at public agencies are subject to liability under the FMLA was one of first impression. The court then went on to find that Mancino could be considered a supervisor and, in turn, an "employer" for purposes of the FMLA.

In its first finding, the court rejected the positions of the 6th and 11th Circuits, both of which have found that the FMLA does not provide for individual liability for supervisors and, instead, adopting the reasoning of the 5th Circuit. This conclusion was based on the determination that the language of the FMLA and its implementing regulations are more like the FLSA, which permits individual liability, rather than Title VII, which does not.

The court then turned to the facts that could support a finding that Mancino could be considered to be an "employer" for the purposes of the FMLA. In sum, the court explained, "an individual is subject to FMLA liability when he or she exercises 'supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation' while acting in the employer's interest."

The Impact on Supervisors
There are several lessons to be learned from this case--some more obvious than others. First, do not comment (or care) about the reasons for an employee's absence. If an employee is absent and is permitted to be absent--because of your leave policy, because of the FMLA, or otherwise--then the reason(s) for the absence is irrelevant. Do not care and do not comment about why an employee is taking leave when she is permitted to do so.

Second, learn how to write a better performance evaluation. Ambiguous comments like, "employee demonstrates poor leadership skills" do not help the employee improve because they do not identify the underlying conduct that you want her to change. Give an example of how she fails to be a good leader. If you cannot articulate a specific example of what you consider to be poor performance, it is not poor performance under the law.

Third, to avoid being held individually liable under the law, supervisors are best advised to let HR do what they do best--including administering FMLA leave. Simply turn it over to HR and then get the pros involved when writing performance evaluations and considering disciplinary action for any employee who has been approved for FMLA leave. This stuff isn't easy--get help from the pros.

Delaware Court of Chancery Issues Guidelines for Attorneys

Posted by Lauren Moak RussellOn January 30, 2012In: Delaware Specific

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The Delaware Court of Chancery has issued Guidelines to Help Lawyers Practicing before the Court. Chancery Court Guidelines.pdf This guidance may be particularly helpful to attorneys unfamiliar with the level of civility expected of the Delaware Bar. The guidelines also include advice on "best practice, which are informative even for seasoned practioners. Here are some excerpts from the new guidelines:

  • All cellphones and PDAs are strictly prohibited in the courtroom, even if silenced. Failure to comply with this rule may result in confiscation of the device and/or sanctions.
  • Plans for the use of technology during a hearing or trial should be made approximately one week before the proceeding.
  • Where Delaware attorneys are acting as local counsel, letters to the Court from lead counsel should not be forwarded to the Court under a cover letter saying, in substance, "Here is a letter from my co-counsel."
  • Letters to the Court should be short. If a letter exceeds 5 pages, double-spaced, counsel should consider whether a motion is more appropriate. Submissions of up to 15 pages may be filed as speaking motions. Submissions longer than 15 pages should be submitted as motions with supporting briefs.
  • Parties should include in their standard interrogatories a request that the other party(ies) identify prospective trial witnesses. If a party fails to include such an interrogatory, the Court will not look favorably on complaints of unfairness when counsel is unable to depose all trial witnesses before the close of discovery.
  • Answers should repeat the allegations of the Complaint and then set forth the response below, mirroring the practice used in discovery responses.
  • The Court takes issue with parties (1) aggressively denying basic facts without a good faith basis to do so, and (2) reciting a laundry list of affirmative defenses without consideration of the applicability of each defense to the case.
A series of sample documents reflecting the Court's recommended practices are also available from the Court's website.

Delaware Court of Chancery Guidelines

Does Facebook Friendship Require Recusal?

Posted by Lauren Moak RussellOn January 25, 2012In: Social Media in the Workplace

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A decision from the Pennsylvania Court of Common Pleas seems to hold that a judge who is Facebook friends with a party in a matter before him must recuse himself as a matter of course; failure to do so, in this particular case, resulted in the judge's decision being overturned. Does this mean that Pennsylvania judges will be subject to a new, lower standard for recusal?

On May 1, 2011, Pennsylvania State Representative Cherelle Parker was arrested for drunk driving. During a hearing in November 2011, the presiding judge, the Honorable Charles Hayden suppressed the testimony of the arresting officers, finding that, due to conflicting evidence, the officers' testimony was "impossible" to believe.

After the Court issued its decision, the Attorney General became aware that Judge Hayden was Facebook "friends" with Representative Parker. Judge Hayden refused to recuse himself and the Attorney General appealed the case to the Pennsylvania Common Pleas Court. In January 2012, the Court issued an order reversing Judge Hayden's ruling and ordering that he recuse himself from the case.

The basis for the Court's order was its determination that Judge Hayden had abused his discretion by not recusing himself from the case, reports WHYY's Newsworks. (Note: As of this post, we've been unable to locate a copy of the court's order. Thus, our information is limited to the news reports. If you have a copy of the order, we'd appreciate having a look at it.)

This approach, however, seems likely to cause problems. Take this case for example: Judge Hayden has more than 1,500 Facebook "friends," and Representative Parker has more than 4,500 Facebook "friends." Moreover, Pennsylvania judges are elected, making them politicians of a sort. In this day and age, it is not unusual for politicians to have aids manage their social media accounts, especially when they are used for professional rather than personal purposes. Finally, most people with Facebook accounts will readily acknowledge that there is a real difference between a friend and a Facebook "friend." Indeed, Representative Parker's attorney asserts that she and Judge Hayden had no personal connection beyond their Facebook accounts.

Editor's Comments by Molly DiBianca

Social-media activity by judges is an issue not likely to go away any time soon. Although many, if not most, judges do not use social-media sites like Facebook for personal use, it seems inevitable that this statistic will change and the number of judges who engage in social media will increase. This raises at least two questions. First, how, if at all, does the use of social media (and, particularly, social-networking sites), by judges affect their ability and/or perceived ability to remain impartial when an online "friend" is before them in the courtroom? Second, should bar associations opine about and/or take a formal position with respect to this question?

Ethics committees in at least five states have issued advisory opinions regarding online friending of attorneys by judges. All but one of the states to have addressed the question has come out on the side that friending an attorney who may appear in the judge's courtroom is not, per se, impermissible, provided that the judge complies with the rules of ethics in all other respects, including impartiality. (Committees in Ohio South Carolina, and North Carolina have issued advisory opinions that permit judge-attorney friending; Florida's ethics body concluded that such friendships were not appropriate).

But the story addressed in Lauren's post, above, deals with a separate issue--specifically, whether the existence of a Facebook friendship between a judge and a party requires the judge recuse himself as a matter of course. Although the Pennyslvania court seems to have decided the answer to this query is "yes," I am not convinced that it is quite that simple.

We would love to hear your thoughts on the issue--can a judge who is Facebook friends with a party (plaintiff or defendant) remain impartial or should he be required to recuse himself because of that online connection?

5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit

Posted by Molly DiBiancaOn January 19, 2012In: Background Checks

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Criminal background checks of job applicants seems to have reached a tipping point as a topic in employment-law circles. So, what are the key components leading to this perfect storm of EEO laws?

1. Most Employers Consider Criminal History
According to a 2010 study conducted by SHRM, more than 9 out of 10 employers polled conducted criminal background checks on some or all job candidates as part of the pre-employment screening process. The study found that 73% of employers conduct these checks for all candidates, while 19% used them only for selected positions.

2. More Adults Have Criminal Records
According to a March 2011 study by the National Employment Law Project, more than 1 in every 4 adults are estimated to have a criminal record. Thus, the use of criminal-background checks in the job-screening process affects more than one-quarter of all potential applicants. See 65 Million "Need Not Apply" (PDF)

3. EEOC's Public Meeting
In July 2011, the EEOC held a public meeting to "Examine Arrest and Conviction Records as Hiring Barrier," focusing on the use of criminal records by employers for employment screening background checks. The purpose of the meeting was to identify the ways in which criminal histories are being used, how they can be used appropriately, the legal guidelines for doing so.

4. Ban-the-Box Movement--Nationally and Locally
Around the country, cities, counties, and municipalities are adopting laws and ordinances known as "ban-the-box" laws. The reference is to remove from job applications the box that an applicant is asked to check to indicate that he or she has a criminal history. By removing the "box" question, the idea is that an applicant will not be automatically excluded from consideration as a result of criminal background.

Philadelphia is one of the latest cities to join this movement. The Fair Criminal Record Screening Standards Act, which was signed in April 2011, took effect on Friday, January 13, 2012. As detailed in this earlier post, the Act prohibits employers from inquiring during the fir initial interview about a candidate's arrest history.

5. EEOC Settles Lawsuit for $3M
The most recent development has been the settlement of a lawsuit brought by the EEOC against Pepsi Beverages Company ("Pepsi"), in which Pepsi agreed to pay $3.13 million as a result of its policy, which was revised during the EEOC's investigation, and which prohibited the employment of applicants with an arrest history, regardless of whether the arrest had led to a conviction. The payment will be split among more than 300 applicants who, according to the terms of the conciliation agreement, were adversely affected by the policy between 2006 and 2010. A portion of the sum will be allocated for the administration of the claims process. The suit alleged that the employer's criminal background-check policy violated Title VII's prohibition against race-based discrimination.

How can an employer avoid the perfect storm? There are two keys. First, and most important, do not use criminal histories as a per se bar to employment. Second, use the EEOC's suggested best practices to determine whether a particular candidate's criminal history should be considered and, if so, how to do so in a legally sound way. For more information on this process, see these earlier posts:
How Considering a Candidate's Arrest History Could Land You In EEOC Jail
Research Puts 5-Year Expiration Date on Criminal Records Used for Background Checks
Is Creditworthiness a Protected Characteristic? Yes, says EEOC


Don't Hate Me Because I'm Brilliant: Part II

Posted by Lauren Moak RussellOn January 12, 2012In: Hiring, Jerks at Work, Just for Fun, Newsworthy

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You may recall our previous post about a young lawyer who sued his former employer. The lawyer, Gregory Berry, had sent an email to the firm's partners, in which he stated, "it has become clear that I have as much experience and ability as an associate many years my senior, as much skill writing, and a superior legal mind to most I have met." Not surprisingly, Mr. Berry's arrogance was not well received, and he lost his job. He then sued his former employer, seeking over $75 million in damages.

Mr. Berry must have been stunned, then, when his lawsuit was dismissed earlier this week. The court dismissed the suit on the grounds that Mr. Berry had executed a valid release of his claims in exchange for a $27,000 severance payment. Consequently, his claims were barred. The court rejected Mr. Berry's argument that he signed the "unconscionable" agreement under economic duress.

But this story isn't over! In keeping with the self-aggrandizing attitude evident in Mr. Berry's email, he left the Courtroom before the Judge had finished issuing her ruling. She has now ordered the parties to attend a hearing on January 24, for purposes of considering a contempt ruling against Mr. Berry, reports Above the Law.

So what is the lesson to be learned for employers? Well, I suppose there's the idea that there's no way to guarantee you won't get sued. Despite the existence of a valid severance agreement and a substantial cash payent, the law firm still got hit with a lawsuit--and the aggravation and expense that goes with it. If there is a lesson here, it may be that you can never be too selective in your hiring decisions.

Bans on Smokers in the Workplace Continues

Posted by Molly DiBiancaOn January 11, 2012In: Off-Duty Conduct

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"More job-seekers are facing an added requirement: no smoking -- at work or anytime." That is the opening line of an article on USA Today's Money website. I will defer to the news organization and the author of the piece but, to be frank, I have doubts about the objective veracity of that statement. I am certain, however, that this story is not a new one.

In October of last year, for example, we noted that Texas' Baylor Health Care System had elected to implement a ban hiring smokers. This does support the USA Today's claim that health-care employers are leading the way in this trend. We also wrote about this trend nearly a year ago in February of 2011 in a post, called Health-Care Employers Who Don't Hire Smokers, in which we discussed a similar article in the New York Times.

The underlying question in these and similar articles is whether it is a good idea for employers to discriminate against individuals who use tobacco. Without coming out and saying so, both articles seem to conclude that the answer to this question is "yes." As you can read in my previous posts, I tend to be less convinced. Primarily, my concerns are as follows:

1. I don't believe that the best way to address productivity is through a ban on employing smokers. The better way to handle this is through better management. Simply implement a ban on workday smoke breaks; and

2. Tobacco use is a legal activity (at least for now). There are countless other legal activities that endanger the health of employees--obesity in particular. However, it would be a tremendously bad PR move to stop hiring the morbidly obese. We can refuse hiring smokers because smokers are an unpopular group in today's society. Being a defense lawyer, I hesitate to endorse what can seem like picking on an already marginalized group.

That being said, I also recognize that health and wellness are good things. And I would readily support an employer whose real objective is to give its workforce the tools to lead healthier and, in turn, more productive lives. I just tend to think that this should not be limited to bans on smokers.

See also:
Health vs. Privacy: Employers Continue to Juggle Both;
How Far Should Employers Go When It Comes to Employees' Health?;
Not Everyone Is Fired Up About Smoking Ban;
Employer Quits Its Smoking-Penalty Policy;
A Whirlpool of Excitement about Rights of Employees Who Smoke