Top 100 Employment Law Blogs

Posted by Molly DiBiancaOn December 20, 2010In:

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For the third year in a row, I'm thrilled to submit to our readers what I consider to be the best of the best when it comes to employment law blogs.  Since this is the third year I've published this list, and practice does make perfect, I've imposed a few more rules this time around.  The "rules" and more details about those on this year's list are found below but, first, . . . drumroll, please. . . the winners . . .

 

Group 1

1. Alaska Employment Law

2. Arkansas Employment Law

3. Connecticut Employment Law Blog

4. Daily Developments in EEO Law

5. Defending the Digital Workplace

6. Delaware Employment Law Blog

7. HR Lawyer's Blog

8. Lawffice Space

9. New Jersey Employment Law

10. New York Public Personnel Law

11. Ohio Employer's Law Blog

12. San Antonio Employment Law Blog

13. Strategic HR Lawyer

14. That's What She Said

15. The Laconic Law Blog

16. Thoughts from a Management Lawyer (CA)

17. What's New in Employment Law

18. Wisconsin Employment & Labor Law Blog

Group 2

19. Adjunct Law Prof.

20. Alabama Employment Law Report

21. All About Information

22. Atlanta Employment Lawyer Blog

23. California Wage Law

24. California Workforce Resource Blog

25. Canadian Privacy Law Blog (CA)

26. Charles A. Krugel

27. Colorado Employment Law Blog

28. Employment Law Matters

29. Employment Lawyer Blog

30. Fair Competition Law Blog

31. Florida Employment & Immigration Law Blog

32. Iowa Employment Law Blog

33. Juz the Fax

34. Legal Developments in Non-Compete Agreements

35. Maryland Employment Law Developments

36. New York Labor and Employment Law Report

37. Overtime Advisor

38. Pennsylvania Labor & Employment Law Blog

39. Smooth Transitions

40. Social Networking Law Blog

41. Tennessee Employment Lawyer Blog

42. Texas Employment Law Update

43. Texas Non-Compete Law Blog

44. Virginia Non-Compete Law Blog

45. Wage Law

46. Wait a Second! (2d Cir. Civil Rights)

47. Work Matters

48. World of Work

Group 3

49. Alabama HR Law

50. California Employment Law Report

51. Digital Workplace Blog

52. Doorey's Workplace Law Blog (CA)

53. Drew Capuder's Employment Law Blog

54. EBG Trade Secrets & Noncompete Blog

55. Employee Benefits Legal Blog

56. Employer Law Report

57. Employers Law Blog

58. Employment Essentials

59. Employment Law Bits

60. Employment Law Watch

61. Executive Counsel Blog

62. Fair Labor Standards Act Law

63. Federal Sector FMLA Blog

64. Florida Employment Law Blog

65. FMLA Law Blog

66. George's Employment Blawg

67. Gruntled Employees

68. Healthcare Employment Counsel

69. Human Rights in the Workplace (CA)

70. Jottings By An Employment Lawyer

71. Labor & Employment Law Blog

72. Labor & Employment Law Blog

73. Labor Relations Counsel

74. LawMemo Employment Law

75. Manpower Employment Law Blog

76. Massachusetts Non-Compete Law Blog

77. Michigan Employment Law Connection

78. Minnesota Employment Law Blog

79. Nevada Employment Law Blog

80. New York Employment Lawyer Blog

81. OFCCP Blog Spot

82. Overtime Law Blog

83. Overtime Lawyer Blog

84. Prima Facie Law Blog

85. Privacy & Information Security Law Blog

86. Privacy Law Blog

87. Public Sector Law Blog

88. The FMLA Blog

89. The Proactive Employer

90. Trade Secret / Noncompete Blog

91. Trading Secrets

92. Transgender Workplace Diversity

93. Wage & Hour Counsel

94. Wage & Hour Defense Blog

95. Wage & Hour Development & Highlights

96. Wage & Hour Law Update

97. Washington DC Employment Law Update

98. Workplace Privacy Counsel

99. Workplace Prof Blog

100. Wyatt Employment Law Report

Up & Coming

101. Delaware Noncompete Law Blog

102. FLSA Cases

103. Hawaii Labor Law

104. Iowa Employer Law Blog

105. The Word on Employment Law Blog

*    *    *   *

Update (Dec. 20, 2010, 12:50 p.m.)

Thanks to the readers who noted some of the excellent blogs (current and up-and-coming), that I failed to include.  Be sure to add these to your feed reader, as well:

FMLA Insights, by Francezek Radelet

Labor Relations Today, by Seth Borden, @LRToday

The BELG Blog, by Hirsch Roberts Weinstein, LLP

Additions to the "Up & Coming" Group:

Castronovo & McKinney, LLC, Tom McKinney

Colorado Employer's Law Blog, Jennifer Gokenbach at Ogeltree Deakins

Employment and Labor Insider, Robin Shea, Constangy Brooks & Smith

*    *    *   *

The "Rules"

First, employee- and employer- side blogs were eligible, as they have been in the past.  And you'll notice that some excellent employee--side blogs have made it into the list. 

Second, I did include Canadian blogs but made the standard a bit higher for our blogging brothers and sisters to the North so as to keep the list as U.S. focused as possible.

Third, and this was the hardest, I only included blogs that have posted in the last two months. There were some blogs that I really wanted to include that had not posted since the summer.  So, to be fair, I excluded them from the list--this year only, of course--they're eligible now to be included next year. 

And, fourth, I only included blogs written by lawyers, legal professionals, or from a legal perspective.  Non-lawyer consultants account for less than 10 of the blogs on this year's list and each of those write consistently on legal issues. 

The Importance of Sharing (i.e., What the "Groups" Mean)

This year, I also decided to take a stand on something that drives me slightly buggy--blogs without blogrolls.  I'll be honest, I think it's a little selfish.  Ok, so there, I said it.  I think it's selfish for a blogger to ignore the community that is the blogosphere by not recognizing his or her fellow bloggers via a blogroll.  I do realize that the decision often belongs to the firm and not the individual blogger--some firms are reoffenders in this department--and so I don't want to place all the blamed with just the blogger.  Which is why I didn't make having a blogroll a criteria for inclusion.  Well, that, and I wouldn't have even close to 100 blogs!

So, what you'll see below is the list of the top 100 (plus a few), separated into 3 groups.  The first group includes blogs that have a blogroll that includes DELB.  The second group has a blogroll that, in my opinion, is missing one (namely, us!).  And the third group includes those blogs that, for whatever reason, don't have a blogroll. 

And, one last thing.  I wanted the list to be as readable as possible but, at the same time, wanted to give readers the name of the blog author and firm and, where applicable, the author's Twitter handle. But that was just too much information to put on a single (readable) page.  So, as a compromise, I've listed the name of the blogs below, which are hyperlinked to the blogs themselves.  Then, I've attached a spreadsheet (pdf) containing all of the data, including the blog name, author name (hyperlinked to their Twitter handle if available), and the firm name. 

Up & Coming

There are 4 blogs I that I thought worthy of mention but that have not been around long enough to make the official Top 100.  For those long-time readers of The Word on Employment Law, don't be confused that I have that listed in this category.  Many of you may know that our beloved John Phillips, Jr., accepted an in-house counsel position earlier this year and that his former colleagues have stepped into the role of blogger at The Word.  So, although the blog itself is hardly new, without John's voice, it is certain to be a different, albeit surely wonderful, blog.

Didn't Make This Year's List?

If you're not on the list, don't be shy--leave your blog's info as a comment.  I'll add it to my feed reader and hopefully add it to next year's list. 

And One Last Thing. . .

image

If you haven't already voted in this year's ABA Journal's Top 100 Blawgs, there's still time left.  You'll find all five of the honorees in the In Labor category, including Delaware Employment Law Blog, on the Top 100 Employment Law Blog list.

 

So be sure to jump over to the ABA Journal, register, and vote for your favorite--particularly if your favorite is us! 

Congratulations to all 100 of this year's best employment law blogs!

Top 100 Employment Law Blogs

Posted by Molly DiBiancaOn December 19, 2010In: Newsworthy

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For the third year in a row, I'm thrilled to submit to our readers what I consider to be the best of the best when it comes to employment law blogs.  Since this is the third year I've published this list, and practice does make perfect, I've imposed a few more rules this time around.  The "rules" and more details about those on this year's list are found below but, first, . . . drumroll, please. . . the winners . . .

 

Group 1

1. Alaska Employment Law

2. Arkansas Employment Law

3. Connecticut Employment Law Blog

4. Daily Developments in EEO Law

5. Defending the Digital Workplace

6. Delaware Employment Law Blog

7. HR Lawyer's Blog

8. Lawffice Space

9. New Jersey Employment Law

10. New York Public Personnel Law

11. Ohio Employer's Law Blog

12. San Antonio Employment Law Blog

13. Strategic HR Lawyer

14. That's What She Said

15. The Laconic Law Blog

16. Thoughts from a Management Lawyer (CA)

17. What's New in Employment Law

18. Wisconsin Employment & Labor Law Blog

Group 2

19. Adjunct Law Prof.

20. Alabama Employment Law Report

21. All About Information

22. Atlanta Employment Lawyer Blog

23. California Wage Law

24. California Workforce Resource Blog

25. Canadian Privacy Law Blog (CA)

26. Charles A. Krugel

27. Colorado Employment Law Blog

28. Employment Law Matters

29. Employment Lawyer Blog

30. Fair Competition Law Blog

31. Florida Employment & Immigration Law Blog

32. Iowa Employment Law Blog

33. Juz the Fax

34. Legal Developments in Non-Compete Agreements

35. Maryland Employment Law Developments

36. New York Labor and Employment Law Report

37. Overtime Advisor

38. Pennsylvania Labor & Employment Law Blog

39. Smooth Transitions

40. Social Networking Law Blog

41. Tennessee Employment Lawyer Blog

42. Texas Employment Law Update

43. Texas Non-Compete Law Blog

44. Virginia Non-Compete Law Blog

45. Wage Law

46. Wait a Second! (2d Cir. Civil Rights)

47. Work Matters

48. World of Work

Group 3

49. Alabama HR Law

50. California Employment Law Report

51. Digital Workplace Blog

52. Doorey's Workplace Law Blog (CA)

53. Drew Capuder's Employment Law Blog

54. EBG Trade Secrets & Noncompete Blog

55. Employee Benefits Legal Blog

56. Employer Law Report

57. Employers Law Blog

58. Employment Essentials

59. Employment Law Bits

60. Employment Law Watch

61. Executive Counsel Blog

62. Fair Labor Standards Act Law

63. Federal Sector FMLA Blog

64. Florida Employment Law Blog

65. FMLA Law Blog

66. George's Employment Blawg

67. Gruntled Employees

68. Healthcare Employment Counsel

69. Human Rights in the Workplace (CA)

70. Jottings By An Employment Lawyer

71. Labor & Employment Law Blog

72. Labor & Employment Law Blog

73. Labor Relations Counsel

74. LawMemo Employment Law

75. Manpower Employment Law Blog

76. Massachusetts Non-Compete Law Blog

77. Michigan Employment Law Connection

78. Minnesota Employment Law Blog

79. Nevada Employment Law Blog

80. New York Employment Lawyer Blog

81. OFCCP Blog Spot

82. Overtime Law Blog

83. Overtime Lawyer Blog

84. Prima Facie Law Blog

85. Privacy & Information Security Law Blog

86. Privacy Law Blog

87. Public Sector Law Blog

88. The FMLA Blog

89. The Proactive Employer

90. Trade Secret / Noncompete Blog

91. Trading Secrets

92. Transgender Workplace Diversity

93. Wage & Hour Counsel

94. Wage & Hour Defense Blog

95. Wage & Hour Development & Highlights

96. Wage & Hour Law Update

97. Washington DC Employment Law Update

98. Workplace Privacy Counsel

99. Workplace Prof Blog

100. Wyatt Employment Law Report

Up & Coming

101. Delaware Noncompete Law Blog

102. FLSA Cases

103. Hawaii Labor Law

104. Iowa Employer Law Blog

105. The Word on Employment Law Blog

*    *    *   *

Update (Dec. 20, 2010, 12:50 p.m.)

Thanks to the readers who noted some of the excellent blogs (current and up-and-coming), that I failed to include.  Be sure to add these to your feed reader, as well:

FMLA Insights, by Francezek Radelet

Labor Relations Today, by Seth Borden, @LRToday

The BELG Blog, by Hirsch Roberts Weinstein, LLP

Additions to the "Up & Coming" Group:

Castronovo & McKinney, LLC, Tom McKinney

Colorado Employer's Law Blog, Jennifer at Ogeltree Deakins

*    *    *   *

The "Rules"

First, employee- and employer- side blogs were eligible, as they have been in the past.  And you'll notice that some excellent employee--side blogs have made it into the list. 

Second, I did include Canadian blogs but made the standard a bit higher for our blogging brothers and sisters to the North so as to keep the list as U.S. focused as possible.

Third, and this was the hardest, I only included blogs that have posted in the last two months. There were some blogs that I really wanted to include that had not posted since the summer.  So, to be fair, I excluded them from the list--this year only, of course--they're eligible now to be included next year. 

And, fourth, I only included blogs written by lawyers, legal professionals, or from a legal perspective.  Non-lawyer consultants account for less than 10 of the blogs on this year's list and each of those write consistently on legal issues. 

The Importance of Sharing (i.e., What the "Groups" Mean)

This year, I also decided to take a stand on something that drives me slightly buggy--blogs without blogrolls.  I'll be honest, I think it's a little selfish.  Ok, so there, I said it.  I think it's selfish for a blogger to ignore the community that is the blogosphere by not recognizing his or her fellow bloggers via a blogroll.  I do realize that the decision often belongs to the firm and not the individual blogger--some firms are reoffenders in this department--and so I don't want to place all the blamed with just the blogger.  Which is why I didn't make having a blogroll a criteria for inclusion.  Well, that, and I wouldn't have even close to 100 blogs!

So, what you'll see below is the list of the top 100 (plus a few), separated into 3 groups.  The first group includes blogs that have a blogroll that includes DELB.  The second group has a blogroll that, in my opinion, is missing one (namely, us!).  And the third group includes those blogs that, for whatever reason, don't have a blogroll. 

And, one last thing.  I wanted the list to be as readable as possible but, at the same time, wanted to give readers the name of the blog author and firm and, where applicable, the author's Twitter handle. But that was just too much information to put on a single (readable) page.  So, as a compromise, I've listed the name of the blogs below, which are hyperlinked to the blogs themselves.  Then, I've attached a spreadsheet (pdf) containing all of the data, including the blog name, author name (hyperlinked to their Twitter handle if available), and the firm name. 

Up & Coming

There are 4 blogs I that I thought worthy of mention but that have not been around long enough to make the official Top 100.  For those long-time readers of The Word on Employment Law, don't be confused that I have that listed in this category.  Many of you may know that our beloved John Phillips, Jr., accepted an in-house counsel position earlier this year and that his former colleagues have stepped into the role of blogger at The Word.  So, although the blog itself is hardly new, without John's voice, it is certain to be a different, albeit surely wonderful, blog.

Didn't Make This Year's List?

If you're not on the list, don't be shy--leave your blog's info as a comment.  I'll add it to my feed reader and hopefully add it to next year's list. 

And One Last Thing. . .

image

If you haven't already voted in this year's ABA Journal's Top 100 Blawgs, there's still time left.  You'll find all five of the honorees in the In Labor category, including Delaware Employment Law Blog, on the Top 100 Employment Law Blog list.

 

So be sure to jump over to the ABA Journal, register, and vote for your favorite--particularly if your favorite is us! 

Congratulations to all 100 of this year's best employment law blogs!

1-800-UR-Wages: DOL's Referral Program Sends Complainants Directly to Counsel

Posted by Molly DiBiancaOn December 13, 2010In: Newsworthy, Wages and Benefits

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Do not pass go, do not have your claims investigated.  According to the new referral system from the U.S. DOL's Wage and Hour Division (WHD), potential plaintiffs can go directly to legal counsel.  WHD, the agency responsible for enforcing the Fair Labor Standards Act (FLSA) has announced that it is undertaking a new attorney-referral initiative with the American Bar Association. In what is a jolting move to many, WHD has announced that it will begin referring certain cases to private attorneys instead of investigating those claims. Multicolor Rotary Phones

According to the WHD’s website, the new "referral" program is intended to provide legal access to all employees who seek the WHD’s assistance.  WHD is inundated with claims--according to the site, WHD receives more than 35,000 contacts from employees each year alleging wage and hour violations. Despite hiring 350 new investigators, WHD is unable to pursue all of the claims filed.

Under this new initiative, an employee who claim is not pursued by WHD will be given a toll-free number to contact the ABA-Approved Attorney Referral System. The referral system will provide employees with listings for local labor attorneys who have experience with FLSA and FMLA cases. The employee may then contact the attorneys and file a private lawsuit. If the employee elects to retain an attorney, the attorney will be given special access to the WHD’s determination and relevant documents. What types of documents will be provided remains to be seen.

Employers should note that this is not a guarantee of representation. Although this referral system increases the chances that meritorious claims will be pursued, attorneys may still be relied upon to decline weak cases. The WHD’s decision to release documents prompted some attorneys to suggest that employers seek legal representation before responding to inquiries by the WHD. We would likely agree.  If the Department of Labor is going to provide a toll-free number to potential plaintiffs instead of providing a fair and impartial determination of the claims, any potential benefits for employers of having a government-funded investigatory agency seems to be lost entirely.

This post was written by Lauren Moak and edited by Molly DiBianca.  As with all blog posts, none of the opinions expressed herein are those of the writer's or editor's employer, clients, or other attorneys with whom they work.

The Trouble With LinkedIn Recommendations: Confidentiality

Posted by Molly DiBiancaOn December 8, 2010In: Social Media in the Workplace

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Employers often have confidentiality policies that prohibit employees from disclosing the identity of the company's clients, business partners, or vendors.  Some industries and professions are subject to regulations or ethics rules that prohibit such disclosure.  LinkedIn's "recommendations" feature can put a bit of a new spin on an old problem. 

LinkedIn allows users to write recommendations for other users.  Most social-media pros advise users not to make a recommendation unless you do actually know the person you are recommending and would actually recommend him or her if asked offline.  Excellent advice.

But there's more to it in some cases.  Take, for example, me.  As a lawyer, I am bound by certain ethical rules both in and out of the office.  As all rules tend to be, the rules of ethics and professionalism can, at times, be quite nuanced and require more than a passing familiarity in order to comply. One such rule is confidentiality. 

A lawyer may not disclose that he represents Client without Client's express permission.  Only the client can decide to waive this  right.  Here's a social-media scenario where this can become somewhat complicated:

Lisa Lawyer is an employment lawyer.  One of her clients is Acme Co.  She works frequently with Acme's HR Department and Senior Executives, who consult her for legal advice relating to employees and workplace issues. After years of representing Acme, Lawyer has developed close relationships with several of Acme's HR executives.

One of the HR executives sends Lawyer a request for a LinkedIn recommendation.  Lawyer thinks very highly of Eric Executive and is able to recommend him without reservation--he's knowledgeable, professional, has a positive attitude, etc.  Lawyer logs into LinkedIn to write the recommendation for Executive.  To do so, though, it first asks Lawyer to select from her "Experience," how she knows Executive.  Her "Experience" list includes her work history, including her employment as an associate in Firm Fancy.

In order to send the "request for recommendation," Executive had to select how he knows Lawyer and is given the choices from his own Experience List.  Executive indicated that he "had done business with" Lawyer while he was "HR Director at Acme Co."  Now, if Lawyer selects "Associate in Fancy Firm" from her Experience List, the recommendation will display:  Lisa Lawyer, Associate in Fancy Firm, has done business with Eric Executive, HR Director at Acme Co. 

And, just like that, the lawyer has breached her ethical obligation not to disclose the identity of her client. 

And don't be fooled into thinking that, because Executive requested the recommendation, he's given her the go-ahead to disclose the attorney-client relationship.  Not so.  Acme Co.--not Eric Executive--is the client.  And only Acme Co. has the right to authorize the disclosure.  Even if Executive was the owner of Acme and had the authority to authorize Lawyer to disclose the attorney-client relationship, Lawyer would be best advised to confer with Executive before responding to the request to make sure that he is fully aware of her concerns. 

In the social-media context, confidentiality is one of the ethical issues that seems to come up most often--lawyers included.  There are all sorts of stories about confidentiality breaches and leaks when employees post information they shouldn't online.  And confidentiality breaches aren't committed only by bad-intended employees.  The real danger is the accidental or innocent disclosure.  A disclosure is still a disclosure, remember; and, once information is published, it cannot be retracted, so intentions become largely irrelevant.  Social media is a new media and presents lots of old questions in new ways. 

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Thank you to the ABA Journal for selecting Delaware Employment Law Blog as one of the Top 100 legal blogs for the second year in a row!  Readers can show their support by voting for us in the "In Labor" category at the ABA Journal's website. Registration is just name and e-mail, takes just a second, and won't result in any annoying advertisements.

The EEOC Celebrates Its 45 Anniversary With Seminar

Posted by Molly DiBiancaOn December 7, 2010In: Locally Speaking, Seminars

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On Wednesday, December 8, 2010, the EEOC will commemorate its 45th anniversary by hosting a public seminar discussing its continued efforts to eliminate workplace discrimination. The free event will be held at the National Constitution Center, Kirby Auditorium, from 1:00 p.m. to 4:30 p.m.eeoc

The theme of the program is "EEOC at 45: Charting a Path toward Equal Employment."  Current EEOC Chair Jacqueline A. Berrien, and former Chair William H. Brown, III, will participate in a discussion, "Reflections on the Past, Present and Future of the EEOC."  Scott F. Cooper will moderate a panel discussion "Charting a Path toward Equal Employment", featuring attorneys and stakeholders: Mark Dichter, Sidney Gold, Juan Laureda, Rosalyn O'Neale, Matt Rubin, and Patricia Folino.

    To reserve a seat at this exciting commemoration, hosted by the Philadelphia Bar Association and the Philadelphia Federal Executive Board, please call 215-440-2671 or e-mail mary.tiernan@eeoc.gov.

    UK Bishop Suspended for Facebook Quip

    Posted by Molly DiBiancaOn December 3, 2010In: Social Media in the Workplace

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    The engagement of Prince William and Kate Middleton has the whole world talking. And posting.  On Facebook, that is.  Although most of the talk is pleasantries and speculation, it appears that not everyone is giddy about the impending nuptials.  A bishop in the Church of England posted about the royal engagement on his Facebook page, predicting that the marriage would last only seven years and that the event would be surrounded with “nauseating tosh.”

    As do all regrettable online comments, the bishop’s post soon went public and, according to Mashable.com, “incited the dismay of politicians and fellow members of the Church.”  The bishop apologized but he was suspended indefinitely nevertheless.

    Certainly this is not the first time that an employee’s Facebook post has landed him in hot water with the boss.  Surely it won’t be the last.

    Congratulations All Around

    Posted by Molly DiBiancaOn December 2, 2010In:

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    I am pleased to announce that the Editors of the ABA Journal have again selected Delaware Employment Law Blog as one of the top 100 best law blogs. imageThe recognition means a lot to us--almost as much as the recognition that our readers show us each time they read our humble blog.  Readers are being asked to vote for their favorites in any (or all) of the 12 categories--DELB is one of five blogs in the "In Labor" category. 

    We are in excellent company this year, to be sure.   To vote, please visit The 2010 ABA Journal Blawg 100. You do need to register to be able to vote but registration is free. If you are already registered, all you have to do is sign in and vote. Voting ends at close of business on December 30, 2010.

    Although we do greatly appreciate each and every vote, we are most appreciative for those of you who so loyally visit our blog, share your thoughts and comments, and work hard year round to improve workplaces everywhere.  Thank you for your support!

    3d Circuit: Untimely Failure-to-Promote Claim Is Not Saved by Ledbetter Fair Pay Act

    Posted by Molly DiBiancaOn December 1, 2010In: Cases of Note, Equal Pay

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    The Third Circuit Court of Appeals has issued an important decision limiting the scope of the Ledbetter Fair Pay Act, which was passed in 2009 in response to the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber, Co., Inc.  In short, the Fair Pay Act provides that "in pay discrimination matters," the statute of limitations is tolled each time an individual is "affected by application of a discriminatory compensation decision."  In other words, if a female employee is not given the same pay raise as her male colleagues because of her gender, every time she receives a paycheck thereafter serves to toll the statutory period.  Indefinitely. 

    Since its passage, the Act has been a source of legitimate concern for employers, who worry that they will be called to explain a decision made many years earlier by a former supervisor under different policies or pay practices, etc.   The Third Circuit's decision in Noel v. Boeing Co. puts some of those concerns to rest.

    Noel claimed that he had not been promoted in September 2003 as a result of unlawful discrimination.  Therefore, he would have had to have brought a charge of discrimination with the EEOC or Pennsylvania Commission within 300 days of the decision.  But Noel waited to file his charge until March 2005, about a year too late, according to the defendant-employer and the trial court, which dismissed Noel's failure-to-promote claim.  Noel appealed, arguing that the Act tolled the limitations period and saved his claim.

    He argued to the appellate court that, each time he received his paycheck, he was being subject again to the effects of the decision not to promote him in 2003.  The Third Circuit did not agree, finding that the Act can toll the period only for claims involving pay discrimination--not for a claim alleging failure to promote.  The court also explained what it considers to be a true pay-discrimination claim for the purposes of the Act.  Specifically, the plaintiff must be alleging that he or she received less pay for doing equal work and that the difference was due to a discriminatory bias. 

    The decision is an important one for employers. Although the application of the Act remains unsettled to some degree, this case at least eliminates one type of claim from an indefinitely extended statute of limitations. 

    Noel v. Boeing Co., No. 08-3877 (3d Cir. Oct. 1, 2010).

    2010 Holiday Gift Guide: Coworkers and Office Mates

    Posted by Molly DiBiancaOn November 29, 2010In: Just for Fun

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    Back by popular demand is this year's edition of the Holiday Gift Guide--ideas for gifts you don't want to buy for people who don't want to receive them. Ah, don't you just love the holiday season?  And, this year's shopping list is posted appropriately on Cyber Monday--the day that 20% of Americans are expected to be shopping online--many of them from the comfort of their office.

     Holiday Gifts for the Office

    First up is the Blabber Meter.  This is a gift that everyone can use.  We all have at least one office mate or coworker who just doesn't seem to understand that the workday means that there's work to do.  You know, the one who, when he walks the halls, everyone suddenly grabs their phones, shuts their doors, or tries to appear to be deep in thought in the hopes that the conversationalist will bypass their cubicles and they can actually get some work done. 

    The Blabber Meter purports to help solve the problem of the overly chatty coworker.  Next time the blabbermouth stops by "just to say 'hello,'" start the Meter running.  The desk clock converts into a meter to track the cost of the time wasted by endless blabber.  Lawyers know that every minute matters--this is a great tool to help others see the clock in the same way. $24.99

     

     

    Holiday Gifts for the Office

    The second gift on this year's Gift Guide is the ID Blocker.  Although it may look like a gag gift, this is an incredibly practical tool.  Basically, it's a stamp (that's right, the kind you use with real ink).  Instead of shredding documents that contain sensitive information, such as social-security numbers, financial accounts, or other confidential data, you can use this nifty low-tech gadget to "redact" it.  Just stamp over the information you want to hide - the stamp contains "thousands of tiny symbols that block out whatever is under them."  In this day of oversharing and ever-evading privacy controls, this is a great solution to a problem anyone who uses paper all day faces regularly.  $19.99

     

     

    Holiday Gifts for the Office

    Third on the list is a particularly snarky gift--my favorite kind.  There are 47 different cards in The Daily Mood, each representing a different mood.  On the front of the card is a Smiley, which alerts your office mates to your mood that day.  On the back of the card, which faces you at your desk, are informative quotes and definitions.  The way I see it, communication is key.  If you're feeling snarky, your best bet is to let others know about it in advance.  With this gift, your coworkers will never again have to guess the answer to the question, "How are you today?"  $9.95

     

     

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    Fourth on the list is the I'll Be Back Notepad.  There's nothing wrong with keeping your personal life personal.  But that doesn't mean that your coworkers don't need to know when you'll be back.  Don't keep them guessing--it's annoying.  Instead, stick one of these notes on your door or computer monitor to let others know when you'll be available and, of course, that you're sorry you missed them.  $4

     

     

     

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    The fifth gift on the list this year is one near and dear to my heart--the Deluxe Lunchbox.  Anyone who knows me knows that I never leave home without food.  Ever.  I have no qualms with lugging a small Igloo cooler with me to a day-long training session.  Of course, this accessory makes me look more like a construction worker than a lawyer, so I'm particularly excited about the idea of legitimate, "grown-up" version of the lunchbox--especially a version that is actually large enough to hold enough food to keep me in a good mood through a long day of seminars.  The stacked design is all about functionality--4 small and 1 large containers stack together and prevent food from being tossed around or mixed together on the road.  You can even fit a bottle under the strap on the lid of the box.  $30Holiday Gifts for the Office  

     

    The last gift on this year's list is the To Do Tatoo.  I'm a notorious list maker, as many of my readers surely are.  One thing I don't do, though, is scribble on my hand--although I've certainly been tempted.  With this kit, you get 12 "To Do" forms that you can apply to your hand, or elsewhere, and a skin-safe washable ink gel pen with which to fill in the various items.  It's a perfect gift for someone in your office who constantly misses appointments or due dates--or who is always asking to borrow a piece of paper to make a note.  $7

     

     

    See also:

    2009 Holiday Gift Guide: Technology Edition

    2008 Gift Guide: Office Mates & Coworkers

    A Season for Giving: How Ready Is Your Ethics Policy for the Gift Season?

    Mining Facebook Pages of Police-Officers-To-Be

    Posted by Molly DiBiancaOn November 21, 2010In: Social Media in the Workplace

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    Can employers search Facebook and other social-networking sites for information about applicants as part of a background search?  This has been the question I’m asked the most when it comes to social media in the employment context.  I’ve written about it extensively on this blog for the past 3 years and speak about it regularly to employers in all industries.  My short answer is, “Yes, provided you’re searching only publicly available information.”  The longer answer involves a procedure that employer should put into place if they decide to conduct a social-media search for potential new employees.

    One of the fundamental rules that I suggest is not to request an applicant’s password in order to gain access to their site.  There are a number of alternative ways to gain access to the information sought—including requiring candidates to grant your friend request for 24-48 hours.  Another option, which is currently being used in the financial sector, is to have the candidate log in to his or her Facebook page during the interview in the presence of the HR professional.  There are, however, certain caveats to conducting these searches, but I’ll let you read about them in my previous posts. 

    The number of reasons to consider using social-media mining during the hiring process are too many to list here.  And they differ between industry and job position being sought.  Law enforcement officers are an excellent example of this.

    The International Association of Chiefs of Police (IACP) recently reported the results of a survey of 782 police chiefs and found that more than 1/3 of those surveyed are currently using social-media searches to vet candidates.  There are at least two reasons why social-media activity can be so important to law-enforcement employers.  First, the wrong kind of postings by law-enforcement officers can undermine the officer’s credibility, thereby compromising an investigation or criminal prosecution. Second, it can undermine the integrity of the police force and damage law enforcement’s reputation within the community.  For some disturbing real-life examples of these possibilities, see this prior post on Police Officers Online: Web 2.0 Worries for Public Employers.

    Although I appreciate the purposes behind the Police Chief’s decision to search candidate’s social-networking profiles, I do disagree with those police departments who require applicants to turn over their social-networking passwords, especially when there are equally effective alternatives. 

    Teachers’ Union Sues Over Proposed Social-Media Policy

    Posted by Molly DiBiancaOn November 18, 2010In: Public Sector, Social Media in the Workplace

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    You may have heard about the Teamsters’ complaint, filed with the NLRB, which alleges, in part, that a Connecticut employer’s social-media policy constitutes an unfair labor practice under Section 8 of the National Labor Relations Act.  In short, the Union contends that the employer, American Medical Response Team, has a social-media policy that prohibits employees from disparaging their supervisors online, which, the Union contends, is overly broad so as to effectively preclude employees from engaging in protected concerted activity of discussing workplace conditions and terms of employment.  The Union also contends that the employer disciplined an employee pursuant to the policy when she and other employees disparaged their supervisor on the disciplined employee’s Facebook page.

    Well, the Teachers’ Union in Manatee County, Florida, has filed a similar complaint—this one alleging that a proposed social-media policy is overly broad so as to violate their right to free speech pursuant to the 1st Amendment. 

    The First Amendment protects individuals from government action—which means that non-government employees (i.e., those employed in the private sector), cannot make out a constitutional claim based on free speech.  In the public sector, though, such as in public-school districts, employees do have constitutional rights.  But those rights are not unlimited. 

    The basic free-speech analysis asks three questions.  First, is the speech on a matter of public concern?  If not, constitutional protections do not attach.  For example, if the policy prohibits employees from discussing standard workplace grievances, such as work schedules or budget issues, the speech is not of a public concern and not protected. 

    Second, is the employee speaking as a citizen or as an employee?  This step of the analysis is relatively new and derives from the Supreme Court’s Garcetti decision.  The newness of the question means that the courts are still navigating the exact contours and the decisions vary greatly.  Generally speaking, though, if an employee speaks only to his or her supervisor or coworkers, as opposed to, for example, writing a letter to the editor of a local newspaper, the speech is said to have been made as an employee and is not therefore protected. 

    Third, if the speech is on a matter of public concern and is made by an employee speaking as a citizen, the courts conduct a balancing test to determine whether the government’s interest in maintaining an effective, non-disruptive workplace outweighs the employee’s right to speak freely. 

    If the Florida case proceeds, the court will have to determine whether the proposed policy has the effect of prohibiting what would otherwise be protected speech.  One problem for the Union, though, is whether the case will proceed at all.  It is only a proposed policy, so there may be an issue of justiciability—whether the court has jurisdiction to hear the case when there has not yet been any harm to the plaintiff.  Some may argue that, by merely filing suit instead of trying to negotiate the terms of the policy, the Union has acted in an unreasonable manner designed more for media attention than to effectuate meaningful change.  We’ll have to wait to see what the court decides. 

    GINA Follow Up

    Posted by Adria B. MartinelliOn November 16, 2010In: Genetic Information (GINA)

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    I had the pleasure of speaking on the Genetic Information Nondiscrimination Act, including the final GINA regulations (issued by EEOC last week), last week in Las Vegas at the Advanced Employment Issues Law Symposium.

    One question came up in the seminar that I promised to follow up on in the blog. Although my presentation was focused on employer obligations under Title II, the question related to Title I of the statute, which addresses insurers’ obligations under GINA. In general, Title I of GINA provides that health insurers cannot collect genetic information or discriminate based on it in connection with a group health plan. “Genetic Information” is defined to include family medical history. Therefore, a group health insurer cannot require participants to provide family medical history. Nor can they adjust a premium or contribution amount based on genetic information.

    This prohibition requires to a health insurance issuer offering group health insurance coverage in connection with a group health plan. It does NOT apply to life insurance, long-term care insurance, or disability insurance. A specific question was asked at the conference regarding AFLAC, because it was believed that AFLAC collected detailed family medical information. AFLAC would most likely be considered disability insurance, not group health insurance; therefore they would be exempted from GINA’s prohibitions on collecting family medical history.

    In addition, other questions raised individually after my presentation pointed to a fundamental misconception about GINA as it applies to health insurers. Once an employee has manifested a disease him or herself, we are not talking about genetic information covered by GINA. Therefore, if an employee has, for instance, angina that runs in the family: that is current medical information, not genetic information. A health insurer can “discriminate” by charging higher premiums, etc., based on this information (subject to existing laws on pre-existing conditions) and that would not be a violation of GINA. GINA deals with the potential to acquire diseases in the future, a potential that may be revealed either through genetic tests or a review of family medical history.

    Employers, Don’t Despair. Social-Media Policies Are Not Prohibited by the NLRA

    Posted by Molly DiBiancaOn November 15, 2010In: Social Media in the Workplace, Union and Labor Issues

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    The NLRB’s recently filed complaint against an employer, in which it alleges that the employer’s social-media policy violates the National Labor Relations Act, has caused quite a stir in the blogosphere. See, for examples, Jon Hyman’s post at the Ohio Employer’s Law Blog, collecting various posts discussing the case. Despite the near hysteria that the American Medical Response Team complaint has caused, the truth is that social-media policies are not doomed, nor are employers who enforce them. 

    In December 2009, the NLRB’s Office of the General Counsel issued an Advice Memorandum in Sears Holdings, C.A. 18-CA-19801, which specifically approved an employer’s social-media policy and recommended dismissal of a complaint that alleged that the policy violated Section 8 of the National Labor Relations Act (“NLRA”).

    In June 2009, Sears issued a social-media policy regarding its employees’ use of blogs, social networks, and other social media.  The introductory section of the policy stated that its purpose “was not to restrict the flow of useful and appropriate information, but to minimize
    the risk to the Company and its associates.”  The policy went on to list several “prohibited subjects,” which employees were not permitted to discuss online, including:

    • Company confidential or proprietary information;
    • Confidential or proprietary information of clients, partners, vendors, and suppliers;
    • Embargoed information such as launch dates, release dates, and pending reorganizations;
    • Company intellectual property such as drawings, designs, software, ideas and innovation;
    • Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects; 
    • Explicit sexual references;
    • Reference to illegal drugs;
    • Obscenity or profanity;
    • Disparagement of any race, religion, gender, sexual orientation, disability, or national origin.

    The Union filed an unfair-labor-practice charge with the National Labor Relations Board (“NLRB”), shortly after the policy was issued, alleging that the policy, particularly the section in bold, above, violated the NLRA.  The Advice Memorandum recommended that the charge be dismissed, concluding that the policy did not conflict with the right to engage in protected concerted activities.

    The NLRA prohibits an employer from promulgating workplace rules or policies that would “reasonably tend to chill employees in the exercise of their Section 7 rights.” A rule that does not expressly restrict protected activities will violate Section 8(a)(1) in three conditions:

    1.  Employees would reasonably construe the policy’s language to prohibit Section 7 activity;

    2.  The rule was promulgated in response to union activity; or

    3.  The rule has been applied to restrict the exercise of Section 7 rights.

    Because there’d been no allegation that the policy was enacted in response to union activity and because there’d been no claim that any employee had been disciplined pursuant to the policy in response to their union or protected activity, only the first condition was at issue.

    The Memorandum explained that, when reviewing an employer’s policy, including social-media policies, a review of the complained-of policy requires that the policy is evaluated as a whole, instead of parsing it out in small pieces, to ensure that the context of the language is not ignored.

    The Memorandum referred to an earlier decision, in which a rule proscribing “negative conversations” about managers was unlawful.  In that instance, the rule was contained in a list of policies regarding working conditions, with no further clarification or examples.  The Board held that, in the absence of further guidance from the employer, an employee could reasonably construe the rule to limit his or her Section 7 right to engage in protected protest.

    By contrast, in a different case, the Board found that a rule forbidding “statements which are slanderous or detrimental to the company” which appeared on a list of prohibited conduct including “sexual or racial harassment” and “sabotage” could not be reasonably understood to restrict Section 7 activity. 

    Similarly, the Board concluded that Sears’ rule against the “[d]isparagement of company’s . . . executive leadership, employees, [or] strategy . . . .” could chill the exercise of Section 7 rights if read in isolation, the Policy as a whole provides sufficient context to preclude a
    reasonable employee from construing the rule as a limit on Section 7 conduct. The Advice Memorandum explained:

    The Policy covers a list of proscribed activities, the vast majority of which are clearly not protected by Section 7. . . . [T]he rule appears in a list of plainly egregious conduct, such as employee conversations involving the Employer’s proprietary information, explicit sexual references, disparagement of race or religion, obscenity or profanity, and references to illegal drugs. The Policy preamble further explains that it was designed to protect the Employer and its employees rather than to “restrict the flow of useful and appropriate information.” Taken as a whole, . . . the Policy contains sufficient examples and explanation of purpose for a reasonable employee to understand that it prohibits the online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints about the Employer or working conditions.

    Thus, the policy was found not to violate the National Labor Relations Act.  Lesson to be learned for employers is this:

    1. Implement a social-media policy.
    2. Have your employment counsel review the policy.
    3. As with any workplace policy, the key objective should be compliance. 
    4. Thus, if your policy is so broad that employees cannot really comply with it in any effective manner, it’s no good—toss it and start over. It may also be in violation of the National Labor Relations Act. 

    Facebook Unfriending as Workplace Retaliation?

    Posted by Molly DiBiancaOn November 13, 2010In: Social Media in the Workplace

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    I spoke about social media and employment law last week at the Advanced Employment Issues Symposium last week in Las Vegas. I always find that I learn as much as I teach at these events—both from attendees and from other presenters.  One of the most interesting stories I heard in the social-media context was from another employment lawyer.  The story that she shared illustrated yet another reason for employers to consider prohibiting (or at least discouraging) supervisors from being Facebook friends with their direct reports. 

    In her case, the supervisor and employee were, indeed, Facebook friends.  Until, that is, the employee filed a charge of discrimination with the EEOC.  At that point, the supervisor became nervous about what the employee might disclose about the suit on her Facebook profile, prompting the supervisor to “unfriend” the subordinate. I can imagine that I would conclude something similar—that, once a complaint has been made, it may not be appropriate for the two individuals to  have access to one another’s “private” thoughts and personal commentary.  And, if I were counseling the employer and was asked whether the supervisor should “unfriend” the employee, I can imagine that I’d likely respond, “yes.”

    In this case, though, the employee later added a retaliation charge to the EEOC complaint—which is far more common than most employers seem to realize.  Once the claim proceeded to litigation, the employee-plaintiff was asked to identify the facts that prompted her to conclude that she’d been subjected to unlawful retaliation in her workplace.  Once of the facts she cited was, as you may by now have guess, the fact that the supervisor immediately unfriended the employee upon learning that the employee had filed a charge of discrimination. 

    The employee felt that the “unfriending” was the equivalent of what getting the “cold shoulder”—just in a virtual or electronic context.  Although the cold shoulder is not the traditional type of workplace retaliation, it can constitute an adverse employment action under the Burlington Northern standard—especially when it’s one of several “bad facts” tending to show that the employee was singled out after filing a complaint.

    See also:

    Judge Shows Why Supervisors Shouldn’t Facebook Friend Employees

    Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

    Social Media Policies: What about my “friends”?

    EEOC Issues Final GINA Regulations for Employers

    Posted by Adria B. MartinelliOn November 9, 2010In: Genetic Information (GINA)

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    GINA, the Genetic Information and Nondiscrimination Act, took effect nearly a year ago.  After several delays, the EEOC has published final regulations that interpret and implement the nondiscrimination provisions of the Act, which apply to employers.  Those employers who have been paying attention to GINA and its requirements won't be surprised at the regulations, as they are substantially similar to the proposed regulations.  They do , however, offer specific examples applicable to employers. 

    I'll surely have more detailed commentary after I've reviewed the regs in full; but, until then, here are a few of the highlights:

    Medical Information

    The regs offer employers specific language for use in medical-exam and -inquiry forms:

    The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

    The purpose of this "boilerplate" language?  It's an insurance policy, of sorts.  So long as the employer uses this language, it will not be held to have violated GINA if the medical provider discloses genetic information in spite of the warning.

    Social Media

    I've posted before on some of the potential GINA-specific risks of social-media "background checks" conducted by employers.  The regs may alleviate some of these concerns.  The final regulations provide that, in general, an employer who obtains protected genetic information inadvertently probably does not violate the statute.  For example, if the information is learned via a Google search performed using the employee or applicant's name, the receipt of the information is considered inadvertent. 

    The regs also provide that genetic information learned from an employee's Facebook or other social-networking site will be deemed inadvertently obtained, provided you have permission to access the information on that site (i.e., if the employee or applicant has accepted you as a Facebook friend).

    The final GINA regulations (29 CFR Part 1635) take effect on January 9, 2011.  We'll surely have more comments in the meantime but, if you need to get up to speed on this important law affecting employers, see these previous posts: