Delaware Employment Law Blog

The U.S. Department of Labor (DOL) continues in its initiative to provide employers and employees with online resources and tools designed, according to the DOL, "to help employers understand their responsibilities to report and record work-related injuries and illnesses" in accordance with OSHA regulations.   

From the DOL's press release announcing the new web tool:

The OSHA Recordkeeping Advisor helps employers and others responsible for organizational safety and health quickly determine whether an injury or illness is work-related; whether a work-related injury or illness needs to be recorded; and which provisions of the regulations apply when recording a work-related injury or illness.  To help employers in making these determinations, the OSHA Recordkeeping Advisor relies on their responses to a series of pre-set questions. 

Some related resources:

OSHA Recordkeeping Rules CFR 1904

OSHA Recordkeeping Handbook

OSHA Recordkeeping-Related Letters of Interpretation

 

Of course, nothing can really top the DOL's Wage and Hour Division's new timekeeping app, which gives employees the ability to keep their own records of time worked, which may or may not match the records provided to the employer.

The Delaware Attorney General’s Office is seeking to appeal the Third Circuit’s ruling that Delaware’s labor apprentice law violated the commerce clause. That decision upheld an opinion in April 2010 by Judge Sue L. Robinson of the U.S. District Court for the District of Delaware that the state’s failure to recognize out-of-state registered apprentices under Delaware's Prevailing Wage Law discriminated against out-of-state contractors by effectively forcing them to pay higher wages to apprentices than in-state competitors were required to pay. After the Third Circuit’s ruling, Tri-M sought more than $190,000 in attorney’s fees and costs from the State, but that petition was stayed by the District Court while the State petitions the United States Supreme Court to review the Third Circuit’s ruling.

The NLRB's General Counsel's Office has issued an Advice Memorandum in which it finds that an employer did not violate the National Labor Relations Act when it terminated an employee for his tweets critical of his employer. This is an important decision favorable for employers.

The employee was a public-safety reporter for a newspaper in Tucson, the Arizona Daily Star. The paper encouraged its reporters to use social media, including Twitter, to engage its readers.

In early 2010, the employee posted a tweet criticizing a headline written by another reporter. He was called for a meeting with Human Resources and was "encouraged" to discuss his concerns instead of airing them on Twitter. Later, the managing editor told him not to post grievances or otherwise comment about the paper "in any social-media forums that may damage the goodwill of the company."

The employee complied for a while but, eventually, gave in to the lure of Twitter and posted several comments critical of the paper. Not surprisingly, he was terminated as a result. The termination was submitted to the NLRB, thus resulting in the recent Advice Memorandum.

The key holding in the Memorandum is this: an employee who is "terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so" does not violate the employee's NLRA rights. In short, the employee was fired for engaging in misconduct that, in and of itself, did not consitute protected concerted activity. Therefore, there was no basis to find a violation of the NLRA.

Porter Wright's always excellent Employer Law Report blog has a detailed summary of the decision, as well as a link to the Advice Memorandum. The case is Lee Enterps., Inc. d/b/a Arizona Daily Star, No. 28-CA-23267.

Location:E Vista Chino,Palm Springs,United States

Last night, Governor Markell signed Delaware's civil union bill into law. The new law will go  into effect on January 1, 2012. 

See our prior posts regarding how the new law will affect Delaware employers:

Civil Unions: Federal Tax and Benefit Implications

Same-Sex Civil Unions Recognized in Delaware

Delaware Legislature Considers Same-Sex Civil Unions

The Wage-and-Hour Division of the Department of Labor (DOL) has released an app called "DOL-Timesheet."  The app works on the iPad and iPhone but may later be released for Android and Blackberry. As described by the DOL:

This is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer.  It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek.

The app does not handle tips, commissions, bonuses, deduction, holiday pay, shift differentials or other non-standard methods of pay.

One notable feature of the app is the ability to send a copy of the report via email.  This may be of particular use to employees who work "on the road" or even from home, especially if their time entries are sporadic.  For example, if an employee sends a series of emails from his iPhone at home, after the end of the normal business day, this may be a helpful way for him to record that time worked and communicate it to his employer.

To set up the app, the user is asked to enter the Employer name, the hourly rate of pay, and the start of the workweek.  (Picture at left).  A nifty little feature occurred when I entered $6.00 as the hourly rate.  A warning popped up, alerting me that I'd entered an amount less than the federal minimum wage.  (Picture at right).

The three screens below show how users can create a new timesheet; create a new time entry using either the timer or manually; and send the report via email.

There is also a glossary of wage-and-hour terms and, conveniently, contact information for the DOL's WHD.

Ah, technology.  Whatever will they think of next?

Philadelphia is the latest city to prohibit employers from asking job applicants to disclose their criminal history. The Fair Criminal Record Screening Standards (PDF) was signed by Mayor Nutter on April 13, 2011, and goes into effect on July 13. The purpose of the new law is to increase employment opportunities for candidates who have a criminal history by ensuring that the candidate will be “judged on his or her own merit during the submission of the application and at least until the completion of one interview.”

The ordinance applies to the City of Philadelphia and private employers with at least 10 employees operating in the City. It contains two key prohibitions. First, employers may not ask candidates to disclose (or otherwise consider) any arrest that did not result in a conviction. Second, employers may not ask about any criminal convictions during the application process or during an initial interview. After the first interview, employers may ask the candidate about the candidate’s criminal history—but not arrest history. The ordinance provides for a fine of up to $2,000 per violation.

Employers operating within the City of Philadelphia should revise their job applications to eliminate any questions regarding an applicant’s criminal history. Employers who are not subject to the Ordinance, though, also may want to consider limiting their reliance upon applicant’s criminal backgrounds during the hiring process. The EEOC “discourages” employers from considering a candidate’s arrest records. The EEOC published an informal discussion letter in 2008 on the use of conviction records in hiring. And a study by Carnegie Mellon showed that convictions older than 5 years were not indicative of future behavior.

This type of prohibition, also known as "ban-the-box" legislation, has been adopted by several states and cities around the country.  A similar restriction has been to prohibit or limit employers' consideration of a candidate's credit history as part of the hiring decision.  At last check, legislation was pending in approximately 16 states to prohibit employers from considering creditworthiness to varying degrees.  As the economic forecast continues to be grim and the number of unemployed remains high, it makes sense that state and local governments will continue to take legislative measures that impact the hiring process. 

Employee theft of documents is a serious issue today. More and more often, employers discover that, before exiting, a former employee took with him (often by forwarding himself via email), many of the company’s confidential documents. The employer has limited ways to respond. If the employee refuses to comply with the employer’s demand to return the documents, it may be necessary to file suit.

One of the claims that an employer may bring is under the federal Computer Fraud and Abuse Act (CFAA). The CFAA is also a criminal statute, originally designed to target computer hackers—not disloyal employees. And some jurisdictions have rejected claims seeking to apply the CFAA to the employment context. The leading case finding that the CFAA can be applied to the disloyal employee is International Airport Centers, LLC v. Citrin, which was decided by the Seventh Circuit in 2006. The key to the Citrin decision and others like it is a determination that, although the employee may have been “authorized” to access the employer’s files initially, that authorization is automatically revoked once the employee becomes disloyal. Any access after this point is, by definition, “in excess” of the authorization previously provided.

Three years later, in 2009, the Ninth Circuit rejected the Seventh Circuit’s Citrin analysis, finding, instead, that an employee’s authorization to access his employer’s computer network is not revoked automatically when the employee becomes disloyal to his employer. [1] The Brekka decision held that accessing and emailing the employer’s files for a purpose contrary to the employer’s interests, alone, did not violate the CFAA.

In April, the Ninth Circuit decided United States v. Nosal (PDF), which substantially limits the Brekka decision. In Nosal, the court held that, where an employer has placed limits on the employee’s “permission to use” the computer and the employee exceeds those limits, the CFAA has been violated. The court distinguished this from Brekka, in which the employee’s access was unlimited, whereas, in Nosal, there was an employee agreement warning employees that violation of the company’s computer-usage policy could lead to disciplinary action or criminal prosecution.

In Nosal, the defendant-employee worked for an executive-search firm. When he left, he executed a one-year non-compete agreement. Shortly thereafter, he decided to start a competing business and enlisted some of his former coworkers to use their accounts to access confidential information for him from the company’s computer network. The employees were authorized to access the data—but only on behalf of their employer and only for legitimate business purposes. Thus, when the employees transmitted the data to Nosal, they were acting beyond the scope of their authorization.

Although this decision is an important victory for employers, it does have its limits. For a violation of the CFAA to occur, according to the court’s opinion in Nosal, the employer must have placed restrictions on the employee’s use. A well-drafted permissible-use policy is likely a necessary element of a successful CFAA claim in the Ninth Circuit, as evidence of steps taken by the employer to protect its data and files.

[1] LVRC Holdings, LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009).

See also, our previous posts:

• 11th Circuit’s CFAA decision in United States v. Rodriguez;
• Department of Justice’s prosecution of an IT Director who accessed and deleted her employer’s computer files; and
• Two district court cases with holdings contrary to the 9th Circuit’s decision in Nosal.

Kent County, Delaware is considering a social-media policy. And, boy oh boy, is it causing quite the stir. Apparently, some opponents only read the headline of the article before concluding that the county is trying to ban employees' use of social media altogether.  Of course, that's not the case.  The policy does ban use of social media by employees at work--an idea most taxpayers may appreciate.

Other opponents, though, take issue with the part of the proposed policy that, according to the News Journal, would “bar workers from posting materials on or off the job that disparage co-workers, disclose confidential information.”  The policy also would create a “duty to report inappropriate use of social media by co-workers or supervisors.”

The article says that employee representatives supported the county’s effort to prevent co-worker harassment or threats of violence but were concerned about off-duty restrictions.

So, is there anything for employer to be concerned about when it comes to employees’ off-duty use of social media?

Yes. Yes. Yes. And, yes.

Maybe an example will shed some light on the risks that, presumably, the County is trying to trying to prevent.

Off-Duty Conduct Counts

Consider the story of Mike Bacsik, MLB pitcher-turned-radio producer. In April of last year, Bacsik tweeted while watching a Mavericks-Spurs game. When a Mavericks player was ejected, Bacsik, a Mavericks fan, tweeted: “Congrats to all the dirty mexicans in San Antonio.” He was suspended and later fired for the racist comment.

Had he not been let go, though, his employer would have faced significant legal risks due to Bacsik’s tweet. Most obviously, it would have sent a message to employees (and listeners) that the station tolerated racist statements and employees who make them. Following that rational conclusion, it would not be a far jump to conclude that the station also tolerated racism in the workplace.

You can bet that, if an employee later sued the station for race discrimination, the employee would have pointed to Bacsik’s tweet as evidence in support of the claim. The fact that it was made from Bacsik’s personal Twitter account is irrelevant—what is said outside the workplace is evidence, period.

In an age-discrimination case, a supervisor’s statement about having to eat Thanksgiving dinner with the “old geezers” was used as evidence to support the employee’s claim of age bias. The fact that the employee was not present at his supervisor’s Thanksgiving dinner to hear the comment was irrelevant—as a supervisor, everything you say—whether it is in the workplace, during off-duty time, or even at a holiday meal—may be imputed to the employer for purposes of proving workplace discrimination.

The Duty-to-Report Requirement Is Essential

The reporting requirement also has some in a tailspin.  A duty-to-report provision is an absolute necessity in any social-media policy I write. Employers will be held liable for unlawful harassment that they know or should know is going on.  If an employee is being harassed online by another employee, and "everyone" knows about it, the employer will be held liable.

For example, if coworkers know about the harassment because it's taking place on Facebook, and the coworkers are friends with the harasser and the employee being harassed, the employer may be held liable because it "should have known" that the harassment was occurring.  Once you know (or should know), the employer has a duty to immediately act to stop the unlawful harassment.

There are only two ways that an employer can satisfy this obligation.  First, the employer can monitor employees' online activity.  This is not just ineffective but it's also far too intrusive. (Can you imagine what the policy critics would say to that idea?!)  Second, the employer can include a duty-to-report provision that requires employees who know about a policy violation to report it, thereby giving the employer the opportunity to take steps to correct it immediately. 

The opponents of the proposed policy who contend that it goes too far by addressing conduct that occurs during non-working time should consider attending our annual Employment Law Seminar next week, where they can learn about the many, many risks that can befall an employer as a result of employees' off-duty social-media activities.

Employers who are preparing to adopt a social-media policy would be well advised to read an excellent post on Mashable.com, titled, HOW TO: Get Your Employees On Board With Your Social Media Policy.  The piece, which is written by Maria Ogneva, who is the Head of Community at Yammer, offers some terrific suggestions for making your social-media policy work.  

She makes a number of suggestions about ways to implement a social-media policy effectively.  All of the suggestions are top-notch.  But a more important message underlying the post is this: no matter how well drafted your social-media policy is, it’s worth nothing unless your employees know about and understand it.  Compliance is always the single most important objective to consider when drafting any kind of workplace policy.  The goal for a social-media policy is no different.

The purpose is not to have a written document that you can use as a basis for disciplining employees when they violate the rules you’ve prescribed.  Instead, you’re trying to avoid having employees violate those rules in the first place.  The key to compliance is education.  Making sure your workforce is not only aware of the policy (which is, by the way, an important component of the process), but, also, that they truly understand the policy and what it is trying to prevent and protect against. 

Consider engaging in some dialogue with employees as part of the roll-out of your policy.  You may be surprised at the insight they’re able to offer.

A new decision from the Third Circuit Court of Appeals provides public employers with some additional guidance regarding employee internet activity. In the case of Beyer v. Duncannon Borough, police officer Eric Beyer was terminated from his position after he posted anonymous online comments, critical of the Duncannon Borough Council. More specifically, Beyer criticized the Council for its opposition to the purchase of new AR-15 rifles for the police department.

Upon his termination, Beyer filed a lawsuit against the Borough, alleging violation of his  First Amendment rights. Pursuant to the U.S. Supreme Court's decision in Garcetti v. Ceballos, a public employee's speech is only protected by the First Amendment if the employee (1) speaks as a citizen (2) on a matter of public concern. Applying this standard, the District Court dismissed Beyer's claim, holding that he was speaking in his official capacity as a police officer, not in his private capacity as a citizen. Beyer appealed the dismissal to the Third Circuit.

In reviewing Beyer's appeal, the Third Circuit placed significant emphasis on the nature of Beyer's speech--anonymous internet posts. The Court found that anonymous posting supported both prongs of the Garcetti analysis. First, the Court indicated that anonymous online postings are inconsistent with conduct performed in an official capacity. As a result, the Court found that it was more likely that Beyer was speaking as a private citizen. Second, the Court found that the broad dissemination of Beyer's statements over the internet supported the argument that he was speaking on a matter of public concern. Based on the foregoing, the Court reversed the District Court's dismissal.

So, what's a public employer to do? The Third Circuit's decision does not prohibit monitoring of employee internet activity pursuant to a reasonable policy. It does, however, limit a public employer's ability to discipline its employees for anonymous online activity critical of the employer. Going forward, public employers should be particularly careful of any disciplinary action taken in response to such conduct, and when in doubt consult an attorney.

Last week, we addressed some of the implications of Delaware's Civil Union and Equality Act (the "CUEA") of 2011, which will become effective on January 1, 2012. In this post, we will address the ways in which the bill may or may not affect employers whose benefit structure is governed by federal law.

As a preliminary matter, it is important to recognize that the CUEA is a Delaware law, so it  has limited impact on matters governed by federal law. By contrast, the definition of marriage under federal law is governed by the Defense of Marriage Act ("DOMA"), which defines marriage as being between one man and one woman. While the Obama Administration has indicated that it believes DOMA is unconstitutional, and will no longer defend the statute in court, DOMA is still in effect. Consequently, for federal tax and ERISA purposes, the definition of marriage remains limited to heterosexual relationships.

Federal Employee Benefits

Many employers who provide benefits to their employees are governed by ERISA, not state law. ERISA governed benefits include both healthcare and retirement benefits, such as health insurance, life insurance, and 401k. If you are a private employer who pays for a portion of the benefits provided to your employees, chances are good that you are subject to ERISA. Because ERISA preempts state law, an employer subject to ERISA generally cannot be required to provide benefits to partners in a civil union.

There is an important distinction, however, between insured and self-insured plans. While self-insured plans are fully governed by ERISA, insured plans are subject to an exception that leaves them open to state insurance laws. Consequently, to the extent that Delaware's insurance code or regulations imposed by the Insurance Commissioner require coverage or benefits for married spouses and civil union partners, those laws or regulations will apply to insured ERISA plans.

It is important to remember, however, that just because you may not be required to provide such benefits doesn't mean you can't provide them. Many employers have determined that it is good policy to provide equal benefits to homosexual and heterosexual partners, regardless of marital status. If your business subscribes to that philosophy, there is no reason to change it now.

Taxation of Employee Benefits

Federal taxation of employee benefits will not be altered by the CUEA. Under federal tax law, insurance and other benefits provided to an employee's spouse are generally tax exempt. Similar benefits provided to a civil union or domestic partner are generally not tax  exempt. That will not change.

However, employers should be aware of an exception to this rule. Benefits provided to a civil union or domestic partner, where the partner is a tax dependent (i.e. the partner receives more than 50% of his or her support from the employee), are tax exempt regardless of marital status. For example, if an employee's partner stays home to care for children, and is covered under the employee's health insurance, the value of the insurance benefit to the partner is tax exempt, regardless of marital status. This exception does not apply to cafeteria or flexible spending plans.

Learn More!

The attorneys of Young Conaway's Employment Law Section will be discussing the contours of the CUEA and its employment law implications at the Annual Employment Law Seminar, on May 11, 2011. Please join us to learn more about this topic, which is sure to impact all Delaware employers directly or indirectly!

The National Labor Relations Board (NLRB), has made headlines yet again for its position on employee use of social media.  This time, as reported by the New York Times, the NLRB is up in arms over the termination of a New Jersey employee due to a comment she made on Twitter. 

Thomson Reuters, the current target of the NLRB, asked employees to tweet ways that the company could be made a better place to work.  Deborah Zabarenko complied with the request and tweeted: “One way to make this the best place to work is to deal honestly with Guild members."  The reference is to the Newspaper Guild of New York, of which Zabarenko is a member.  The Union and employer have been engaged in contract negotiations for several months.

According to the NYT, an agent of the employer called the employee at home to remind her that the company’s policy prohibits employees from posting comments that would damage the company’s reputation.  She was not, however, subject to any discipline. 

The NLRB takes issue with the company’s call, threatening to file a complaint if the parties do not reach a settlement before April 29.  The problem, according to the Union? The employee’s tweet is, says the Union, protected by the National Labor Relations Act (“NLRA”).  The NLRA gives employees the right to discuss the terms and conditions of work and to act collectively to make changes to those terms and conditions.  Of the handful of cases in which the NLRB has pursued legal action in response to an employer’s social-media policy or the enforcement thereof, this case seems to have the most merit—at least based on this set of limited facts. 

Eric B. Meyer reported on this story at the TLNT blog, as did Seth Borden on his Labor Relations Today blog.

See also, Social-Media Policies v. NLRB, Round II and Are Employee’s Facebook Posts Protected Activity? to read about two other cases involving the NLRB’s recent position on social-media policies.

Social-media policies are on the mind of employers everywhere. I taught my first social-media policy workshop in 2009 and have been talking about them ever since. It's only been in the last 12-18 months, though, that I've seen a real movement towards adopting and implementing social-media policies, as opposed to just talking about them.

In the coming months, I will be giving a number of presentations about social-media policies. I'll be speaking to the Virginia Bar Association's Labor & Employment Section's annual CLE in Richmond on May 5 and just outside of D.C. on May 12. Then I'll be back in Delaware on May 18 for a CLE hosted by the Delaware Bar Association's Technology and Corporate Counsel. At each of these seminars, I'll be talking about social-media policies.

Although not specific to policy drafting, I will also be speaking about the ethical issues relating to social media for the Pennsylvania Bar Institute on April 21 in Pittsburgh and on April 27 in Philadelphia.

Although the sessions listed above are for legal professionals, human-resource professionals will have their chance, too. On May 11, at Young Conaway's Annual Employment Law Seminar, which is not to be missed for Delaware employers, Bill Bowser and I will be giving an encore presentation of our popular social-media policy workshop. (If you haven't registered yet, do it now--it looks like the event will likely sell out this year). Then, this Fall, I'll be speaking again at both of M. Lee Smith's Advanced Employment Issues Symposiums. The first one is in October in Nashville, Tennessee; the second is in Las Vegas in November.

For the next several months, I'll be living and breathing (and talking a lot about) social-media policies. To make it a truly well-rounded experience, I'll also be writing about them here on the blog. Specifically, I'll be writing an extensive series of posts about the specific considerations that are involved in drafting a social-media policy. These posts will address the details of social-media policies, as opposed to the big-picture considerations that I have written about in the past. All of the posts in this series will be titled, "Drafting Considerations for Social-Media Policies," making them easy to identify.

Registration is now open for Young Conaway's 2011 Employment Law Seminar (PDF). It will be held at the Chase Center on the Riverfront in Wilmington, Delaware on May 11, 2011.  As in previous years, we have an outstanding line-up of topics and speakers scheduled.  The brochure has the full details but here's a quick preview:

• Year In Review:  Discussion of the key developments in the law that affect employers both locally and nationally.
• Looking Forward:  Pecha Kucha is back!  Attorneys keep it short and sweet as they present on upcoming issues to expect in the year ahead.

After the morning sessions, we are very pleased to welcome New Castle County Executive Paul Gregory Clark as this year's Keynote Speaker and to hear his thoughts on the County's recently promulgated $164 million operating plan.  Following lunch, attendees can attend the following break-out sessions:

• How to Comply with the New GINA Regulations
• Special Topics for the Public-Sector
• Health Care Reform: Where are we in 2011?
• New ADAAA Regulations
• Social-Media Policy Workshop

We look forward to seeing you on May 11 at the Annual Employment Law Seminar!

Readers interested in the various ethical implications relating to the use (and nonuse) of social-media by legal professionals also may be interested in a just-published law review article on the topic.  The article is published in the current edition of the Delaware Law Review, which is available here as a PDF:

Ethical Risks Arising From Lawyers' Use of (and Refusal to Use) Social Media