Waiver of Attorney-Client Privilege Via Facebook

Posted by Molly DiBiancaOn July 10, 2014In: Purely Legal, Social Media in the Workplace

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Breaches of confidentiality via Facebook and other social media are more common than most of us would like to think.  Employees post information about customers, clients, and patients on Facebook, in violation of internal company policies and privacy laws, such as HIPAA, for example.  I recently wrote about a plaintiff who could not collect a sizeable settlement payment because his daughter posted about the settlement on Facebook, which served to demonstrate that her father had breached the confidentiality provision in the settlement agreement.  Waiver of Privilege via Facebook

There’s another reason to be concerned about what employees say on social-networking sites—waiver of the attorney-client privilege.  The general rule is that confidential communications between an attorney and her client are subject to the privilege and are not subject to discovery by the opposing side.  Privilege can be waived, however.  And one way for a client to waive privilege is to have the communication in the presence of a third party.  Another way is for the client to tell a third party about the communication between himself and his lawyer. 

For example, Lawyer and Client meet to discuss strategy regarding litigation.  This conversation would be privileged.  If Client brings his friend to the meeting, the conversation would not be privileged.  And, if Client did not bring his friend but reported the conversation to his friend after the meeting was over, the privilege would be lost. 

Communicating an otherwise privileged conversation via Facebook is no different than if done via telephone or in person.  A case decided earlier this week in a federal court in Nebraska reminds us of this risk.  In Kaiser v. Gallup, Inc., the employee-plaintiff filed suit under the ADA against her former employer.  During discovery, the employer learned that the plaintiff had communicated with her cousin, who was a lawyer, about events leading up to the plaintiff’s termination.  The employer also discovered that the plaintiff had discussed the  communications with her cousin (the lawyer) via Facebook. 

The employer sought to compel the plaintiff to produce those communications.  In response, the plaintiff contended that they were protected by the attorney-client privilege because, at the time the communications were made, her cousin represented her as counsel in her unemployment-benefits claim.  The employer argued that, even if the privilege had once applied, the plaintiff waived it when she discussed the communications with third parties.  The plaintiff failed to show that she hadn’t waived the privilege and the court granted the employer’s motion. 

This case, and others like it, serve as a good reminder that confidential information should not be shared through any medium, including social media.  Posting it to Facebook is, contrary to popular belief, the equivalent to sharing it on the phone, in an email, or in person.  If it’s a secret—it doesn’t belong on Facebook. 

Kaiser v. Gallup, Inc., No. 8:13CV218, 2014 U.S. Dist. LEXIS 92588 (D. Neb. July 8, 2014).

Delaware Gov. to Sign Law Expanding Retaliation Protection for Whistleblowers

Posted by Molly DiBiancaOn July 2, 2014In: Delaware Specific, Legislative Update, Retaliation

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Delaware Gov. Jack Markell signed into law legislation that expands the protections provided to employee-whistleblowers.  H.B. 300 extends whistleblower protections to employees who report noncompliance with the State’s campaign-contribution laws,who participate in an investigation or hearing regarding an alleged violation of the campaign-contribution laws, or who refuses to violate the campaign-contribution laws. Whistleblower

The practical effect of this new protection is limited, as it applies to a fairly narrow group of employees—those whose employer has some involvement in political fundraising.  But it serves as an excellent reminder about the importance of preventing unlawful retaliation.

Retaliation claims continue to top the list of claims filed with the EEOC.  Not only are they popular but they are some of the most successful for plaintiffs.  The reason for its popularity and its success is the same—retaliation happens.

Thankfully, most of us are not targets of workplace discrimination based on our race, gender, or disability.  But I’d challenge anyone to say that they’ve really never been the target of retaliation.  If you made a critical comment about a co-worker in front of your boss, you were probably subject to retaliation by that co-worker.  The retaliation could have been mild—maybe you don’t get invited to lunch that day.  It could be more overt—maybe a flat-out refusal to help the next time you request assistance from the co-worker.  Or it could be more covert—the coworker quietly (but intentionally) sows the seeds of poor performance with your boss, telling your boss every time you don’t make a meeting on time or leave early on a Friday. 

All of these things constitute retaliation.  But they’re not unlawful retaliation because they are not in response to you having engaged in a protected activity, such as reporting workplace discrimination or, now, refusing to violate the campaign-contribution law. 

So, how can employers prevent unlawful retaliation?  The key, in my opinion, is taking a step back.  We’ve all had our feelings hurt when a co-worker points out an error in our work while the boss is standing there.  But, the key is to take a step back, realize that you’re a rational, logical, thinking adult.  And move on.  No grudge holding.  It makes life far more difficult than necessary. 

See also

U.S.S.C. Clarifies the Applicable Standard for Retaliation Claims

Manager's Drunk Facebook Post Leads to Retaliation Claim

3d Cir. Issues a Bitchin' Constructive Discharge Decision

Business Is Booming . . . for the EEOC, Anyway

People First Language: Delaware Legislation Gets It Right

Posted by Molly DiBiancaOn July 1, 2014In: Delaware Specific, Disabilities (ADA), Legislative Update

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Delaware’s General Assembly has passed a law “relating to the removal of insensitive and offensive language.”  When I first saw the title of this Act, I admit, I was alarmed that our State’s legislature was banning profanity in some context.  I was relieved to read the text of the law, though, and learn exactly what it actually does provide.  People First Lanuauge

According to the synopsis, the bill is part of a national movement, known as People First Language (“PFL”) legislation, intended to “promote dignity and inclusion for people with disabilities.”  PFL requires that, when describing an individual, the person come first, and the description of the person come second. 

For example, when using PFL, terms such as “the disabled” would be phrased, “persons with disabilities.”  This language emphasizes that individuals are people first and that their disabilities are secondary.  I think this is an outstanding initiative.

First, it is far easier to do (or say) the right thing when we know what the right thing is.  So legislation like this, which makes clear what is (and is not) the right thing to say, is always helpful.  Second, I think the approach is spot on.  Individuals are people first. The same concept applies to all protected characteristics. 

I have received countless calls from clients seeking advice with regard to a potential termination of an employee.  The call often starts out like this: “We have an employee who is in a protected class and who is always late to work and who constantly undermines her coworkers.”

If the PFL concept were applied, the call would start out, instead, like this: “We have an employee who is always late to work and who constantly undermines her coworkers.” 

What matters is what the employee is doing (or failing to do) with respect to her job—not that she is “in a protected class.”  Start off by addressing what actually matters.  Everything else, including a discussion about potential accommodations, etc., will follow if and when it’s appropriate. 

See also, previous posts regarding Disabilities in the Workplace.

Facebook Post Means No Unemployment Benefits for Nurse

Posted by Molly DiBiancaOn June 22, 2014In: Social Media in the Workplace

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Joseph Talbot worked as a nurse at Desert View Care Center until he was terminated for violating the employer’s social-media policy. In the Facebook post that triggered his termination, Talbot wrote:

Ever have one of those days where you’d like to slap the ever loving bat snot out of a patient who is just being a jerk because they can? Nurses shouldn’t have to take abuse from you just because you are sick. In fact, it makes me less motivated to make sure your call light gets answered every time when I know that the minute I step into the room I’ll be greeted by a deluge of insults.

One of Talbot’s Facebook friends, a nursing professor, reported the post to the employer, expressing concerns about resident safety. Talbot said he was “just venting.” The employer fired him, citing the company’s social-media policy.

Talbot sought unemployment insurance benefits but his claim was denied b/c he was discharged for violating the company’s policy. Talbot appealed and the Appeals Examiner reversed the initial denial decision, finding that he had not been terminated for employment-related misconduct. The employer appealed and the decision was reversed and Talbot was denied unemployment benefits. Talbot appealed to the Idaho Supreme Court.

The high court upheld the denial of benefits, finding that the employer had satisfied each of the three required elements. Most import was the court’s finding that the employer had an expectation that its nurses would not make threatening statements about a patient on Facebook and that Talbot failed to meet the employer’s expectations. Talbot argued that his post was not a threat—it was merely a “rhetorical statement meant to initiate discussion.”

But this argument misses the point. The employer did not claim that Talbot’s post was an actual threat—only that it was “threatening.” There is a difference, it seems to me. “Threatening” language or comments can cause harm, regardless of intent. Personally, if I had a family member who was a patient at Desert View Care Center, I would have had significant reservations about the quality of care they would receive from Talbot. I wouldn’t necessarily think he had made a “threat”—only that his attitude was less than ideal for a caregiver. And the nursing professor who reported the post, apparently, thought so, too.

This is consistent with the First Amendment case law in the context of social-media and Free Speech. When an employer is faced with potential harms arising from an employee’s social-media post, the employer need not wait until those harms actually occur before taking action. Here, Desert Care was not required to wait until Talbot actually neglected a patient who, in Talbot’s opinion, complained too much. The employer can (and should) take action to ensure that the harms do not occur in the first instance.

Was this a tough break for Talbot? Maybe. But would it have been a really tough break for Desert Care if word got around that its nurses gave less attention to patients they didn’t like? Most definitely. And, especially in the health-care context, it’s not merely the employer’s prerogative to prevent bad outcomes but its duty.

For a different take on this case, see Eric Goldman’s Technology & Marketing Law Blog

Talbot v. Desert View Care Ctr., No. 41208 (Idaho, June 20, 2014).

Jurors Behaving Badly

Posted by Molly DiBiancaOn June 16, 2014In: Purely Legal, Social Media in the Workplace

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Jurors misbehaving have been making a lot of news headlines lately.  And jurors’ online research is one of the most commonly reported problems in this area. Jurors Behaving Badly

In May 2014, for example, a jury awarded the plaintiff, a former police officer, $300,000 in compensatory damages and $7.2 million in punitive damages based on its finding of unlawful sexual harassment and retaliation.  The employer appealed the judgment after a juror acknowledged that, during deliberations, he Googled the phrase, “where do punitive damages go” and, after reading a Wikipedia entry on the subject, told his fellow jurors that the plaintiff would receive some or all of such an award.

Delaware has not been immune from this problem.  In May, the Delaware Supreme Court reversed a final judgment following a jury verdict due to alleged juror misconduct.  In Baird v. Owczark, the plaintiff moved for a new trial on several grounds, including juror misconduct.  In the two weeks after the jury had delivered its verdict, one of the jurors wrote a letter to the trial judge informing him that another juror had conducted online research during deliberations.

The court heard oral argument about the alleged misconduct but did not conduct an investigation.  The Supreme Court reversed and remanded, finding that the Delaware Constitution mandates an investigation following allegations of juror misconduct.  Such an investigation is mandatory even where the trial court gave clear instructions regarding the use of the Internet as a source of extrinsic information.

Baird v. Owczark, No. 504 (Del. May 28, 2014).

See also

Peek-a-Boo, I See You: Juror Contact Via LinkedIn

3d Cir. "Likes" Jury Instructions on Social Media

Auto-Deduct Meal-Break Policies Live to See Another Day

Posted by Molly DiBiancaOn June 11, 2014In: Fair Labor Standards Act (FLSA)

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The number of FLSA lawsuits filed each year continues to rise.  See The Wage & Hour Litigation Epidemic Continues, at Seyfarth Shaw’s Wage & Hour Litigation Blog.  Often, the lawsuits follow certain trends, targeting a particular industry, job type, or claim.  One such trend, which I’ve written about previously, is meal-break claims.  In these suits, the plaintiffs allege that their pay was automatically deducted for meal breaks that they never received. Auto-Deduct Meal Break Policies FLSA

Although this has been a popular claim, it’s not been a very successful one.  And a recent case from the Eastern District of New York gives employers real reason to believe that meal-break claims are all but dead upon arrival.

In DeSilva v. North Shore-Long Island Jewish Health System, Inc., the court decertified a collective action of 1,196 plaintiffs who had alleged that they were subject to automatic deduction of meal breaks that they didn’t receive.  In its opinion, the court makes clear that such claims will have a difficult time proceeding as a collective action:

In the time since this action was initially filed, mounting precedent supports the proposition that [the employer’s] timekeeping system and system-wide overtime compensation policies are lawful under the FLSA. 

The court explains that this “mounting precedent” has resolved any doubt about the validity of auto-deduct policies, which require an employee to report a missed break to his supervisor in order to be paid for it.  If no report of a missed break is made, the break period (usually 30 minutes) is automatically deducted from the time worked.  This timekeeping system has the benefit of not requiring that employees clock in and out during their breaks—only at the beginning and end of each shift.  The court reiterated that “automatic meal deduction policies are not per se illegal” and:

[w]ithout more, a legal automatic meal deduction for previously scheduled breaks cannot serve as the common bond around which an FLSA collective action may be formed."

This decision continues to build on the growing body of case law dismissing or decertifying FLSA collective and class actions arising from auto-deduct meal-break policies.  Good news for employers, particularly in health care, where these policies are commonplace.

DeSilva v. N. Shore-Long Island Jewish Health System, Inc., No. 10-CV-1341 (PKC) (WDW), 2014 U.S. Dist. LEXIS 77669 (E.D.N.Y. June 5, 2014). 

 

See also

2d Cir. Drops the FLSA Hammer (Dejesus v. HF Mgmt’s Servs., LLC, No. 12-4565 (2d Cir. Aug. 5, 2013).

Another Auto-Deduct Case Bites the Dust (Raposo v. Garelick Farms, LLC (D. Mass. July 11, 2013)).

8th Cir- FLSA Plaintiffs Must Spell It Out (Carmody v. Kan. City Bd. of Police Comm’rs (8th Cir. Apr. 23, 2013)).

2d Cir- FLSA Does Not Cover Gap Time (Lundy v. Catholic Health Sys. (2d Cir. Mar. 1, 2013)).

Another Employer's Auto-Deduct Policy Is Upheld (Creeley v. HCR ManorCare, Inc., (N.D. Ohio Jan. 31, 2013)).

6th Cir. Affirms Dismissal of FLSA Gotcha Litigation (White v. Baptist Mem'l Health Care Corp. (6th Cir. Nov. 6, 2012)).

The Legality of Automatically Deducting Meal Breaks (Camilotes v. Resurrection Health Care Corp. (N.D. Ill. Oct. 4, 2012)).

E.D. Pa. Dismisses Nurses' Claims for Missed Meal Breaks, Part I and Part II (Lynn v. Jefferson Health Sys., Inc. (E.D. Pa. Aug. 8, 2012)).

FLSA Victory: Class Certification Denied (Pennington v. Integrity Comm’n, LLC (E.D. Mo. Oct. 11, 2012)).

Calling Your Students "Hoes" Can (And Should) Get You Fired

Posted by Molly DiBiancaOn June 5, 2014In: Off-Duty Conduct, Public Sector, Social Media in the Workplace

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During the 2007-2008 school year, Ms. Kimble was employed as a cook and cheerleading coach at a high school.  In December 2007, she took the cheerleaders on an overnight Christmas party held in a cabin located outside the county.  The trip was not approved as was required by district policy.  When administration learned about the trip, Ms. Kimble was instructed that all future out-of-county trips must have prior approval.

The following year, Ms. Kimble worked as a cook at an elementary school and as the cheerleading coach at the same high school at which she had coached the prior year.  In December 2008, Ms. Kimble took the cheerleaders to the same cabin for another overnight Christmas party.  Ms. Kimble and a parent went as "chaperones" but Ms. Kimble did not seek or obtain approval for the trip.

During the party, Ms. Kimble was photographed in the hot tub, surrounded by several female cheerleaders.  Although Ms. Kimble was clothed, most of the girls were topless.  All of the girls were minors. 

Ms. Kimble posted several photos of the party on her MySpace page, although the girls were fully clothed in all of the pictures that she posted.  To one of the photos, in which the girls were wearing Santa Claus hats, Ms. Kimble added the caption:

my girls acting like their self[sic] . . . hoes.

The photos were discovered and reported to the school and Ms. Kimble was suspended without pay.  After a hearing, she was terminated from both her position as cook and as coach based on the determination that she had committed insubordination, immoral conduct, and sexual harassment. 

Ms. Kimble challenged the termination.  An administrative law judge overturned the board's decision to terminate her from her position as cook.  The board appealed and the circuit court affirmed the finding of the ALJ.  The board appealed to the state's highest court, which reversed, siding with the board and finding the termination lawful. 

As the grounds for its opinion, the state's Supreme Court held that Ms. Kimble had been insubordinate by ignoring the directive and policy to first obtain permission from the school prior to taking students on any out-of-county trip.  That was the easy part.

The more difficult part (at least for the ALJ and the lower court), was the finding that Ms. Kimble had, indeed, engaged in immoral conduct by:

sitting in a hot tub surrounded, literally, by several topless female students.

The court also found that calling your minor students "hoes" also is relevant to the immorality question. 

Finally, the court rejected Ms. Kimble's argument that she could not be disciplined for conduct that occurred off duty.  This argument is a favorite among plaintiff-employees everywhere but always a loser.  The conduct was within the scope of Ms. Kimble's employment--she, as cheerleading coach, took cheerleaders on an authorized trip outside the county, was photographed with several of them topless, and then called them "hoes" on her MySpace page. 

The fact that she was not on duty at the time of these acts does not serve as a defense.  This case serves as yet another example of how off-duty conduct can (and should) serve as a basis for discipline and/or termination.  When an employee engages in conduct off-duty that undermines or interferes with his or her ability to effectively carry out his or her job duties, discipline is appropriate . . . and lawful.  The same rule applies when the conduct is carried out in cyberspace, particularly on social-media sites.

On the most basic level, it's difficult to imagine that the parents of the female students would appreciate their daughters being called "hoes" by anyone but especially not by their cheerleading coach. 

Kanawha County Bd. of Ed. v. Kimble, No. 13-0810, 2014 W. Va. LEXIS 584 (W. Va. May 30, 2014).

Are Your Employees Takers or Givers?

Posted by Molly DiBiancaOn May 28, 2014In: Jerks at Work

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Employers should hire nice people.  That’s according to Adam Grant, author of Give and Take, anyway.  Grant writes that there are three types of employees: Takers, Matchers, and Givers.  And he advocates that employers should focus their hiring efforts on the last type—Givers are good, in other words.   image

Takers, as you may have guessed, are people who put their own interests first.  Workplace bullies fall into this category, of course.  Matchers believe in quid pro quo—something for something.  Most employees fall into this category.  Then there are Givers.  Givers do nice things for others with no expectation of reciprocity, writes Seth Stevenson at Slate.com.

The problem with Givers, though, is that they can be too nice.  More often than not, they are so selfless, they spend too much time helping others and, as a result, are overlooked for promotions and other opportunities.

But that is not the case for all Givers, says Grant.  Some Givers make it all of the way to the top.  Takers and Matchers, on the other hand, get stuck in the middle.  Why? According to Grant, Givers will because people like them for all of those selfless acts. 

So, in a sense, what Grant is saying is that success is a type of long-term popularity contest.  He is also saying that employers should hire nice people. What he doesn’t say is that employers should take care to help the Givers avoid getting run over or falling behind because of their commitment to kindness.

Have a nice day. 

See also:

Is Your Boss a Bert or an Ernie?

Workplace Revenge and the Equal Opportunity Jerk

Management Monday: Quit Oversharing

Employers, If You Fire for a Facebook Post, Please, Get a Copy of It First!

Posted by Molly DiBiancaOn May 20, 2014In: Public Sector, Social Media in the Workplace

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The plaintiff is a Michigan lawyer.  She was placed on the assignment list of the County Probate Court and, as a result, received several case assignments.  She made a comment on Facebook about what she believed to be inefficiency at the Clerk’s Office at the Court in a particular case she was handling. She tagged two people in the post, mistakenly identifying them as employees at the Clerk’s Office.  how_to_permanently_delete_or_deactivate_facebook_account

One of the two employees brought the post to the attention of the Court administrator.  The administrator never saw the actual post.  Two days later, the Court administrator notified the plaintiff by letter that she had been removed from the assignment list because of her comment on Facebook. 

The plaintiff attempted to get back on the list multiple times but was unsuccessful and filed suit.  The suit alleges several constitutional claims, all but one of which were dismissed by the court.  The claim that survived is a claim for unlawful retaliation in violation of the First Amendment—i.e., a free-speech claim.

The court declined to dismiss the free-speech claim for several reasons.  First, it held that the plaintiff was speaking as a private citizen—not as an employee—when she made the post.  I tend not to agree but, well, we can’t all be right all of the time. 

Second, the court held that she was speaking on a matter of public concern.  This finding was based, in large part, on the fact that no one could produce a copy of the actual post and, therefore, the court was left to decide the nature of the speech without ever having seen the speech.  Yikes. 

Why, you ask, did no one produce the post?  According to the opinion, because the plaintiff deleted it.  Hmmm.  That doesn’t seem like exactly the right outcome, does it?  Because the plaintiff destroyed evidence, she gets the benefit of the doubt?

Maybe not.  But it does teach an important lesson to employers.  If you are going to discipline or terminate an employee due to something the employee posted on Facebook—get and keep a copy of the actual post if at all possible. Taking someone’s word for what the post says doesn’t mean that the termination is unlawful but it does likely mean that you’re going to have to work a lot harder to prove your case.

Butler v. Edwards-Brown, No. 13-13738, 2014 U.s. Dist. LEXIS 62032 (E.D. Mich. May 5, 2014).

The Role of a Distracted-Driving Policy in a BYOD Workplace

Posted by Molly DiBiancaOn May 12, 2014In: Policies

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“Risks and Rewards of a BYOD Workplace” was the subject of one of my presentations at our annual employment-law seminar last week.  [FN1]  More and more employers are adopting BYOD policies.  BYOD, which stands for “Bring Your Own Device,” eliminates the need for employers to give employees a smartphone or tablet for work-related purposes.  Instead, the employee brings his or her own device and uses it for both work and personal purposes.  text message on cellphoneThe State of Delaware was an early adopter in the BYOD arena.

Although BYOD policies are popular, they are not risk free.  One (of the many) dangers of employee use of mobile technology is the potential for distracted driving.  Regardless of who owns the device, employers may face liability for an employee who harms a third party due to the employee’s negligent use of a smartphone while driving. 

Many cities and municipalities now prohibit drivers from operating a vehicle and using a cellphone unless they use hands-free device.  Although this is a great start, it may not be enough to prevent liability for employers.  The U.S. Department of Labor, for example, takes a very firm stance on this issue, stating:

Employers have a responsibility and legal obligation to have a clear, unequivocal, and enforced policy against texting while driving.

I’m not entirely sure that I would agree with this statement—I don’t know of any “legal obligation” to have a distracted-driving policy.  But I do think that employers should have a distracted-driving policy.

The good news is that the federal government has provided a sample distracted-driving policy for employers to use.  The policy is short and to the point and it makes clear that employees are prohibited from using a hand-held cellphone or smartphone while operating a vehicle. 

If you don’t have a distracted-driving policy, consider whether this sample policy, provided by the National Highway Safety Transportation Administration, isn’t worth implementing.  Even if it’s just a starting point, employers are well advised to have something in place to prevent employees from endangering themselves or others while operating a vehicle.  The NHSTA offers additional resources to employers who want to take further steps to prevent distracted driving by employers. 

And, remember, just because it’s the employee’s own device does not mean that the employer won’t be held liable.  A BYOD workplace is not a defense to a claim of negligence for harm caused by an employee in the course and scope of his or her employment. 

 

[FN1]  Thank you to everyone who attended—it’s always great to see clients and friends in a context that does not involve pending or threatened litigation.

Delaware Joins the Ban-the-Box Bandwagon

Posted by Molly DiBiancaOn May 6, 2014In: Background Checks, Hiring, Legislative Update

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Criminal histories and credit scores will soon be an off-limit topic for job applications in Delaware’s public sector.  HB 167 passed the Delaware Senate on May 1, 2014, and is expected to be signed into law by Gov. Markell soon.  Criminal Background Checks

As we previously reported, the bill would prohibit public employers and contractors with State agencies from:

inquiring into or considering the criminal record, criminal history, or credit history or score of an applicant before it makes a conditional offer to the applicant.

Once a conditional offer of employment has been made, the employer may perform a background check but, even then, 

may only consider felonies for 10 years from the completion of the sentence, and misdemeanors for 5 years from the completion of the sentence.

The bill would also require employers to "several enumerated factors” (i.e., the EEOC’s factors) when deciding whether to revoke a conditional offer based on the results of a background check.

The scope of the bill is broader than you may suspect.  It would apply not only to public employers (i.e., State government), but also to “contractors with State agencies.”  It does, however, provide for an exception for contractors who are subject to conflicting State or federal laws.  For example, a child-care facility that contracts with the State would not be subject to the new law because it is obligated by other State laws to comply with certain background-screening requirements. 

The trend towards prohibiting employers from inquiring into an applicant’s criminal history or credit score does not appear to be going away any time soon.  Although, for now, only public employers in Delaware will be subject to this ban-the-box law, it may be just a matter of time before the scope is expanded to include private-sector employers, as well. 

See also

Bill Would Limit Use of Criminal Histories for Delaware Employers

Wilmington Joins the Ban-the-Box Bandwagon

Other posts on criminal-history checks for potential employees

Yes, Employers, Words Really Do Matter

Posted by Molly DiBiancaOn May 1, 2014In: Discrimination

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It's easy to underestimate the power of words. Many supervisors fail to appreciate the importance of the words used in a performance review or evaluation, corrective action, termination letter, or other employment-related document. But it can go beyond the obvious instances.

In an age-discrimination case, a supervisor had attended a presentation by a contractor who was trying to bid work with the employer. The supervisor wrote in his notes that the type of work would be perfect for "young engineers." What the supervisor meant was that the work being bid was well suited for entry-level engineers, who could gain valuable experience that, often, was quite difficult to find.

You may imagine that the plaintiff's lawyer jumped on the word "young" from the supervisor's notes, using it as an opportunity to make it look like the supervisor preferred young engineers over older ones. An age-based preference such as this would, of course, be unlawful if used in decisions to hire, fire, or assign work. As you also may imagine, it made for an unpleasant deposition of the supervisor--an experience he surely did not forget any time soon.

On the other hand, it also is possible to get far too caught up in the definition or meaning of a particular word. Lawyers are great at this, as this very funny video from the N.Y. Times makes clear.


The lesson to be learned? Words really do matter in every context. Be aware of what you put into writing--generally, less is more and the more specific, the better. But don't play word games when the basics can get the job done.

Documentation in the workplace can be absolutely critical in preventing and defending against claims by employees. It may be time to consider a refresher course about best practices in HR documentation. If so, let us know--we have an excellent training program on this subject.

Employment-Law Legislation In Delaware's General Assembly

Posted by Lauren Moak RussellOn April 23, 2014In: Delaware Specific, Legislative Update

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Employment legislation has been a popular topic for the Delaware General Assembly in recent months. Here are two recently proposed legislation that Delaware employers should keep an eye on.

Employment Protection for the Disabled

The General Assembly has proposed a very simple change to the Delaware Persons with Disabilities Employment Protections Act (DPDEPA), which would change the definition of "employer." More specifically, they have proposed decreasing the threshold for coverage from 15 employees (the same as the Americans with Disabilities Act) to 4 employees (the same as the Delaware Discrimination in Employment Act).

Expanding statutory coverage is always worrisome for employers. However, the proposed change would also provide consistency under Delaware law, which could benefit employers in their decision-making processes. Whatever your business's philosophy, for that small subsection of businesses employing between 4 and 14 individuals, this is something to watch.

The Minimum Wage . . . Again

As many readers know, Delaware will increase its minimum wage--in two waves--resulting in a July 1, 2015 wage of $8.25. Since that legislation was signed by Governor Markell, the General Assembly has drafted another bill that would raise the minimum wage to $10.10 per hour. If passed in its current state, the bill would add a third step to the increases already legislated, requiring a jump from $8.25 to $10.10, effective June 1, 2016.

The proposed increase would put Delaware's minimum wage far above the current federal requirement, and nearly in line with San Francisco, California, which has the highest minimum wage in the country ($10.74 per hour, effective January 1, 2014). The change mirrors legislation that President Obama is expected to propose, and which will face stiff opposition from Republicans in Congress. With that in mind, it is unclear whether Delaware's proposed legislation has any chance of passing the General Assembly. But it is certainly an issue that employers should be monitoring.

Bottom Line

Keep in mind that these bills reflect proposed legislation, only. If you believe that your business would be adversely affected, reach out to the General Assembly, or bring these issues to the attention of any advocacy groups to which you belong.

Hurt Feelings Do Not a Lawsuit Make . . . Even on Twitter

Posted by Molly DiBiancaOn April 20, 2014In: Social Media in the Workplace

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To establish a claim of defamation, the plaintiff must establish that: (1) the defendants made a statement concerning the plaintiff to a third party; (2) that the statement could damage the plaintiff’s reputation in the community; (3) that the defendant was at fault in making the statement; and (4) that the statement either cause the plaintiff economic loss or is actionable without proof of economic loss.  Defamation via Twitter

There are several possible defenses to a claim of defamation.  Two of the most common are that: (1) the allegedly defamatory statement is true; and (2) that the statement was one of opinion, as opposed to fact.  Thus, if you make a negative statement about someone that is true, there can be no liability for defamation.  Similarly, if you merely comment about your opinion, as opposed to purporting to make a factual statement, there has been no defamation.

Defamation by Twitter is no different.  Comments that are merely expressions of opinion, whether made in person, in the local newspaper’s letter to the editor, or on Twitter, cannot form the basis for a claim of defamation.  A federal court in Massachusetts recently explained this idea in Feld v. Conway.

In Feld, the plaintiff brought a claim for defamation based on the defendant’s tweet that the plaintiff was “f—ing crazy.”  The comment was made in response to a thoroughbred horse that disappeared after it was supposed to have been shipped to a horse farm in New Jersey.  The event was the subject of “great debate” in the thoroughbred race horse community, which included the defendant, Crystal Conway.  The tweet at issue was apparently intended to imply that the plaintiff, Feld, was involved somehow with the horse’s disappearance.

The defendant moved to dismiss the complaint, arguing that the comment was merely opinion and, therefore, could not constitute the basis of a defamation claim.  The court agreed.  Finding that, when viewed in the context of the online discussion regarding the horse’s disappearance, the comment that the plaintiff was “f—ing crazy” “cannot reasonably be understood to state actual facts about plaintiff’s mental state.”  Instead, it was “obviously intended as criticism—that is, as opinion—not as a statement of fact.”  As a result, the defamation claim was dismissed.

So, what’s the lesson from this case?  Primarily, it’s this: don’t go suing over cheap insults.  Comments like the one at issue in the above suit are not comments to be taken seriously.  Does that mean that they are not annoying, insulting, and/or distracting?  No, of course not.  Online attacks, like “real-life” attacks, are not pleasant.  But that does not mean that there is a basis to run out and file suit. 

It is a different world today, when individuals and entities alike must deal with negative online commentary.  But hurt feelings do not a lawsuit make.

Feld v. Conway, No. 13-13122-FDS (D. Mass. Apr. 14, 2014).  [H/T to Jay Yurkiw, of Technology Law Source at Porter Wright].

Is It Time to Reconsider Your Personal Email Policy?

Posted by Molly DiBiancaOn April 14, 2014In: Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

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The Heartbleed Internet-security flaw has compromised the security of an unknown number of web servers.  This is just one story in a string of recent headlines involving the vulnerability of the Internet sites.  But consumers aren’t the only ones affected.  The companies whose websites have been attacked are employers, after all. computer help button

Although data security has become increasingly impossible to ensure, it has also become increasingly critical to employers’ viability.  So employers are looking for ways to mitigate the exponentially increasing risks associated with the Internet.

One option being considered by some employers is blocking employees from their personal, web-based email accounts from the company’s servers.  Companies can install powerful (albeit not impenetrable) spamware that can catch and prevent many Internet-based security threats.  But that spamware works only on emails that come through the Company’s email servers.  Email that is opened through a web-based account, such as GMail or Hotmail is not subject to the company’s protective measures.

Which is precisely why many IT professionals see web-based email accounts as a major security threat.  But what’s an employer to do?  Employers have long been trying to prevent the productivity loss associated with employees’ personal use of the Internet during working time.  But now this effort has become a top priority.

Will employees stop checking their personal email at work if they’re asked nicely?  If they understand the risks?  Maybe.  Maybe not.  But it certainly wouldn’t be a bad place to start.  Perhaps your company should consider explaining to its employees exactly why you don’t want them to check their personal email during working time.  Hey, it’s worth a try.

By the way . . .

Data Security is the topic of one of the sessions at this year’s Annual Employment Law Seminar, which is coming up on May 8.  If you haven’t registered, there’s still time.  Just click here to get to the Seminar Registration page.