Story of Delaware Medical Examiner Offers Lesson for Employers

Posted by Molly DiBiancaOn March 20, 2014In: Off-Duty Conduct, Policies

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Delaware Chief Medical Examiner Richard T. Callery has made news headlines for his off-duty conduct.  According to The News Journal, Callery is the subject of a criminal investigation relating to his testimony as an expert witness in cases outside of Delaware. 

In short, the claim is that Callery spent a lot of time serving as a paid witness in cases in other States, while neglecting his own duties.  And, to add insult to injury, Callery apparently testified on behalf of the defense in several cases, which, some argue, diminishes his credibility when called to testify in Delaware on behalf of the State.

The lesson to be learned for employers is an important one.  Many employers put limitations on moonlighting by employees.  Such limits may be included in an employment contract or in a personnel handbook. 

The policies vary.  For example, some employers prohibit employees from working in a second job altogether.  Others prohibit only secondary employment in the same field or with the same duties that the employee performs in his or her full-time employment.  And others only prohibit secondary employment that conflicts with the employee’s job duties. 

The State of Delaware, like many employers, does not have such a policy.  But, if it had, it would likely have prohibited Callery from working as an expert witness, even in his off-duty time.  Do you have such a policy?   Should you?

See ME’s side work under criminal investigation, by Jonathan Starkey and Sean O’Sullivan.

Father Learns a Costly Lesson about the Importance of Keeping Promises

Posted by Molly DiBiancaOn March 2, 2014In: Social Media in the Workplace

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When considering whether to settle a lawsuit filed by a current or former employee, many of my employer clients have serious doubts about the usefulness of a confidentiality provision. For good reason, employers don’t want the plaintiff to brag about the settlement, thereby encouraging other potential litigants. But, my clients often ask, will the employee really be silenced? Or will the employee just ignore his confidentiality obligation.  via Shutterstock

My answer has a few parts. First, having a confidentiality provision is better than not having one. Second, if the employer learns of a breach, it will, at least, have some options for holding the employee accountable. A story from last week’s news headlines confirms the validity of both points.

Teenager Dana Snay’s father settled an age-discrimination case brought against his former employer, Gulliver Preparatory School, for $80,000. When the girl learned about the settlement, she did what most teenagers would do—she posted about it on Facebook, broadcasting the news to her 1,200 Facebook friends:

Mama and Papa Snay won the case against Gulliver. . . . Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

Snay was just kidding about her European vacation—there was no such vacation in the works. But that’s probably not what bothered Gulliver. When it learned about the post, it refused to tender the settlement payment to Snay’s father, claiming that the post constituted a breach of the confidentiality provision in the settlement agreement.

And a Florida appellate court agrees. The Miami Herald reports that the court found in favor of the employer when Snay’s father sought to compel payment.

So what are the lessons to be learned, dear readers?

First, don’t underestimate the value of a confidentiality provision.

Second, understand your contractual obligations and abide by them strictly. Although many commentators are blaming Snay for her Facebook chattiness, the real fault lies with her father. He promised that he would keep the agreement confidential and he failed to keep his promise. There are consequences to such failures, which is why we spell them out in written contracts.

Chefs and Employment Law: A Valentine's Day Post

Posted by Molly DiBiancaOn February 14, 2014In: Fair Labor Standards Act (FLSA), Social Media in the Workplace

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Rumor has it that today is Valentine's Day.  Being married to a chef-restaurateur, Valentine's Day doesn't mean "romantic holiday" to me as much as "very, very busy workday."  And, for that reason, I'll dedicate today's post to the food-service professionals who have a long weekend of work ahead of them.

There are plenty of employment-law topics with a chef or restaurant connection.  Here are a few stories from recent history that come to mind.love heart tattoo art

 Wage-and-Hour Claims

Certainly, restaurants are not the only industry subject to wage-and-hour claims by employees.  But there does seem to have been a recent proliferation of settlements of such claims by businesses owned by famous-name chefs. 

There was the $5.25 million settlement forked out by Chef Mario Batali in March 2012, over allegations that servers' tips had been improperly withheld.  Then there was the January 2014 settlement agreement that Chef Daniel Boulud reached with 88 workers who alleged that their pay had been improperly reduced to account for tips, resulting in payment of overtime at an incorrect rate.  The amount of that settlement is confidential.  And, even more recently, there was the $446,500 settlement agreement reached to resolve the wage claims of 130 servers at two NYC restaurants owned by Chef Wolfgang Puck.

Why are so many wage claims against restaurants?  One reason is the complexity of the laws in this area.  The overtime laws are complicated even in the context of an employee who receives hourly wages only.  But, add to that tip credits, earned tips, and tip pooling, and you've got a virtual maze of complex issues.  The laws are not easy to navigate, especially without guidance from experienced legal counsel.

Social-Media Use and/or Misuse

I'd be remiss, of course, if I didn't give at least one social-media related story, too.  So I will end today's post with a reference to a story about a chef who sent a bunch of not-so-nice tweets from the restaurant's official Twitter account after he'd been fired but before (apparently) the restaurant had changed the password on its account.

Chef Grant Achatz, owner of Alinea in Chicago, landed in hot water when he tweeted about a couple who brought their 8-month old to dinner.  I have a definite opinion on this story.  Having been to Alinea, I feel very comfortable saying that it is not a place where an 8-month old needs to be and, if the 8-month old is crying at the top of his lungs, it's not a place where that baby should be.  The restaurant is very expensive, with meals starting at more than $200 per person.  Reservations are wickedly difficult to get with only 80 seats. 

Most important, though, is the nature of the experience.  Diners fight for reservations and pay big bucks for a reason--the meal is something you remember forever.  The food is so far beyond anything else, it's almost an Alice-In-Wonderland experience.  And to have that be ruined by the guests at the table next to you would be, to me anyway, a crushing disappointment. 

So, there.  That's where I stand on the question.  Chef Achatz's tweet did not offend me or make me adore his restaurant any less. 

Delaware Supreme Court Rules On Admissibility of Facebook Evidence

Posted by Molly DiBiancaOn February 12, 2014In: Purely Legal, Social Media in the Workplace

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Employment lawyers know the potential importance of social-media evidence.  I’ve written about numerous cases in which an employee is fired for something he posted on Facebook or other social-media site.  As a general matter, it is not unlawful per se to make an employment decision based on information obtained from a social-networking site.  (Of course, the normal rules apply to social media, too.  Thus, it is unlawful to make an adverse employment decision based on race, religion, gender, etc., regardless of the source of that information.)  Facebook Delaware

So employers may make decisions with social-media “evidence.”  Whether an employer (or other party) has a right to discovery of such evidence during litigation and, if so, how to go about getting it, are two entirely different questions.  (If you’re interested in the answer, here’s a link to an article I wrote last month for the ABA Business Law Section, Discovery and Preservation of Social-Media Evidence). 

Assuming the employer is able to obtain relevant social-media evidence, there is yet another question to be answered—is the evidence admissible in the litigation?  There is a split among courts as to the appropriate standard for admissibility of social-media evidence.  Without oversimplifying it too much, there are two approaches.

First, there is the Texas approach.  That approach requires the proponent of the evidence to make some proffer of authenticity.  In other words, if you want it to come into evidence, you have to make some affirmative showing that it is authentic.  If an employee, for example, denies writing the Facebook post, the employer must offer up some evidence to prove that the evidence is not fraudulent.  In short, under the Texas approach, the proponent does not necessarily need to prove that the social media evidence is authentic, so long as a jury "could reasonably find” the evidence authentic.

Second, there is the Maryland approach.  This approach imposes a higher standard and requires that the proponent of the evidence offer some sort of evidence to show that the posts are authentic.  For example, the proponent could ask the supposed author (i.e., employee) if he or she created the profile or post, search the internet history and hard drive of the purported creator’s computer, or obtain information from the social-networking site itself.  Those courts that have followed the Maryland approach cite to a concern that social-media evidence could be fake or otherwise inauthentic.

The Supreme Court of Delaware has now weighed in on the question.  In Parker v. State of Delaware, decided last week, the state’s highest court adopted the Texas approach.  Specifically, the Court acknowledged that social-media evidence could be falsified but concluded that such evidence should be treated like other forms of evidence.  In other words, where a proponent seeks to introduce social-media evidence, he or she may use “any form of verification” available under the Rules of Evidence, including:

witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question.

This is, in my opinion, the correct approach.  Social-media evidence should not be made more difficult to authenticate merely because it is “possible” to falsify such evidence.  All evidence can be falsified.  To make the proponent attempt to authenticate a Facebook post by obtaining some kind of verification from Facebook is more than highly impractical—it can be close to impossible since Facebook will not release much, if any, user information absent a criminal subpoena or written consent from the user himself. 

This ruling is an important one—in Delaware and in those jurisdictions where the issue has not yet been decided—and I hope more courts adopt a similar finding. 

Parker v. State of Delaware

, No. 38, 2013 (Del. Feb. 5, 2014).

Demoted for Posting Picture of Confederate Flag on Facebook Page

Posted by Molly DiBiancaOn February 6, 2014In: Public Sector, Social Media in the Workplace

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Public-sector employees have First Amendment rights.  But those rights are not without limits.  Employers, too, have rights—in particular, the right to operate an effective and efficient workplace.  Law-enforcement agencies get even more protection because the law recognizes the potential for harm to the department’s reputation and the public’s trust.

And how do all of these rights play out in the context of social media?  Usually in the employer’s favor.  As yet another court opinion shows, police officers have very little latitude when it comes to posting controversial views on their personal Facebook pages. 

The plaintiff in this case, Deputy Chief Rex Duke, worked for the Clayton State University Police Department for eight years with no performance problems.  Shortly after the presidential election in November 2012, the plaintiff posted a picture of a confederate flag to his Facebook page with the comment, “It’s time for the second revolution.”

confederate flag

His Facebook profile and posts were accessible only to his Facebook friends. His profile did not indicate that he was employed by the Police Department or even that he was a police officer. And he took the post down within an hour after posting it.

But that hour was long enough for one of his “friends” to send a screenshot of the post to the local TV station. A story ran that evening on the local news about the post and the plaintiff’s position as Deputy Chief.

The Police Department received anonymous complaints about Plaintiff, prompting an investigation. Following he investigation, the plaintiff was demoted in rank and duties and his pay was cut. The plaintiff sued the Police Department, alleging First Amendment retaliation.

The court upheld the demotion, finding no unlawful imposition by the employer on the plaintiff’s right to free speech.  The basis for the court’s opinion was the potential disruption and/or actual disruption caused by the plaintiff’s posts.  In most circuits, including the 11th Circuit, potential disruption can be sufficient justification for an employer’s interference with an employee’s right to free speech.  Here, the court explained, there was not only potential for disruption caused by the plaintiff’s post but there was actual disruption, as well, as evidenced by the complaints the Department received. 

Are these consequences harsh?  Most definitely.  Remember, the post was not publicly accessible and was up only for an hour.  But that doesn’t mean that the consequences were unlawful. 

Duke v. Hamil, No. 1:13-cv-01663-RWS, 2014 U.S. Dist. LEXIS 13388 (N.D Ga. Feb. 4, 2014).

Disruptive Facebook Posts Warrant Termination

Posted by Molly DiBiancaOn February 3, 2014In: Social Media in the Workplace

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Employers continue to struggle with how to deal with the repercussions of employees’ online commentary.  When an employee is critical of his or her employer, supervisor, or coworkers on Facebook or other social-networking site, the employer’s knee-jerk reaction is often to discipline the employee.

Sometimes, that is the appropriate reaction.  And, sometimes, it is not.  How to tell which reaction is appropriate for any given comment (or series of comments) is the hard part.  I encourage employers to handle the situation as if the comments were made at a bar over the weekend or on the sidelines of a softball game—anywhere outside of the workplace—in an effort to put it into context.  I then counsel them that, if they still think a response of some sort is warranted, to proceed just as they would in any other workplace investigation.  Facebook firing

In other words, it’s best not to get all twisted about the fact that the conduct occurred online or that the comments were made via Facebook. 

A recent case from the 10th Circuit is a great example of that advice applied.  In Debord v. Mercy Healthy System of Kansas, Inc., the employee, Ms. Debord, was criticized by her boss, Mr. Weaver, after which, he tried to give her a hug.  (Hugging is, in my opinion, not all right at work.  I am not alone in this position, either.  See NPR, “A New Rule for the Workplace: ‘Hug Sparingly’”). 

In response, Debord posted—from her workplace computer, during working time—several posts to her Facebook page.  The posts contained comments critical of her employer, of Weaver, and of co-workers.  And some of the posts accused Weaver of unlawful and/or unethical behavior.  Several co-workers saw the posts and reported them to management.

Later that day, Debord was meeting with the company’s HR Director about an unrelated issue when Weaver interrupted and confronted Debord about the posts.  Debord denied having written any such comments.  Weaver brought in his laptop and showed the HR Director the posts on Debord’s Facebook page.  Debord again denied writing them. 

The HR Director met with Debord two days later and she again denied that she had written the posts on her Facebook page.  She finally relented, though, and admitted to her conduct.  She was suspended for one day without pay for acting in a manner inconsistent “with a high degree of personal integrity and professionalism.”  After it was determined that the allegations about Weaver were without any basis, Debord was terminated for “disruption, inappropriate behavior, and dishonesty.”

Debord sued on a number of bases but her termination was upheld by the district court and on appeal.  In other words, the 10th Circuit didn’t take issue with the termination of an employee because her Facebook comments caused disruption in the workplace.  Nor should there be an issue.  The employee used company resources to make false allegations about her boss, which were seen by several of her co-workers.  This conduct, to be sure, resulted in a disruption. 

Where there is an actual disruption caused by an employee’s activities—online or offline, there may be a legitimate basis for discipline.  But not always.  Here, the employee’s comments were elevated to a more serious level because they accused her boss of unlawful and/or unethical conduct.  That is a legitimately serious issue that the employer should address appropriately. 

Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642 (10th Cir. 2013).

Survey of Chancery Court Cases Shows Most Litigants Obtain Expedited Relief

Posted by Scott HoltOn January 29, 2014In:

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A recent survey conducted by several of my colleagues demonstrates the speed in which litigants can obtain preliminary relief from the Court of Chancery. The survey included a sampling and analysis of approximately 200 cases between 2009 and 2011, in which the court ruled upon a motion for temporary restraining order or a motion for preliminary injunction. The results reflect the frequency and speed at which the court has granted injunctive relief in recent years:

  • For cases in which the court ruled on a motion for temporary restraining order, the court granted the motion 58 percent of the time. On average, the court granted the motion 7 days after its filing.
  • For cases in which the court ruled on a motion for preliminary injunction, the court granted the motion 30 percent of the time. On average, the court granted the motion 26 days after its filing.
  • The survey also looked at cases from the sample that involved trade secret claims and in which the court ruled on a motion for temporary restraining order or preliminary injunction. In those cases, the court granted the motion for temporary restraining order 88 percent of the time and granted the motion for preliminary injunction 75 percent of the time.

Based on these statistics, there seems to be little doubt that the court will order injunctive relief on an expedited basis in cases where circumstances require expedition, including those involving noncompete agreements and misappropriation of trade secret.

A copy of the full article drafted by my colleagues and published by BNA can be obtained on the Young Conaway Stargatt & Taylor website.

Discovery and Preservation of Social Media Evidence

Posted by Molly DiBiancaOn January 27, 2014In: Purely Legal, Social Media in the Workplace

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This one is for the litigators in the group.   An article I wrote about the discovery of social-media evidence is now available online at Business Law Today, a publication by the ABA Business Law Section.  My article, Discovery and Preservation of Social Media Evidence, is one of several in a mini-theme issue focusing on Social Media and Business Law.  like tweet share follow letterpress

Other feature articles include:

-The Threat of Social Media Diligence on the Confidentiality of the M&A Process: The Problem and Possible Solutions, by Jonathan D. Gworke

-10 Tips for Avoiding Ethical Lapses When Using Social Media, by Christina Vassiliou Harvey, Mac R. McCoy, Brook Sneath

-Privacy and Social Media, by Theodore F. Claypoole

Enjoy!

No Love for Twibel Lawsuit Against Courtney Love

Posted by Molly DiBiancaOn January 27, 2014In: Social Media in the Workplace

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“Twibel” is the sporty little name someone clever has come up with as a way to say “libel via Twitter.”  In other words, if it would be defamation if it is published in a newspaper, it will be defamation if tweeted on Twitter.  And now we have a case that has gone all the way to jury verdict on just this subject. signing twitter bird with bow

Courtney Love was sued by her former lawyer, Rhonda Holmes, for defamation via Twitter (Twibel is not yet an official cause of action).  Holmes claimed that she had been defamed by the famous singer when Love tweeted that Holmes had been “bought off.”

Love didn’t settle the case, instead choosing to take her defense to a jury.  According to the Hollywood Reporter, Love testified that she believed that her comment was true at the time she posted it.  She also testified that she meant the message to be a private “direct message” to two friends and when she learned that it had been sent to the public, she quickly deleted it.

The jury was asked to decide whether Holmes proved by clear and convincing evidence that Love knew her tweet was false or doubted the truth of it.  The jury returned an answer of “no” and Love prevailed. 

So what’s the lesson to be learned?  Well, for one, defamation cases are hard to win, regardless of the medium of the message.  It often comes down to credibility of the witnesses.  And, apparently, the jury believed Love when she said that she didn’t mean to make false statements about her former attorney.   If nothing else, this verdict won’t prompt a wave of Twibel claims to be filed.

FMLA Master Class: Feb. 12, 2014

Posted by Molly DiBiancaOn January 22, 2014In: Fair Labor Standards Act (FLSA), Seminars, Past, Wages and Benefits

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The Family and Medical Leave Act has been a part of the workplace for more than a decade, so it’s gotten easier for HR to administer, right?  Not so.  Confusing regulations, coupled with numerous recent changes at both the legislative and regulatory levels and conflicting court decisions, ensure that FMLA continues to be one of the biggest compliance headaches for employers.

Let us help you clarify the confusion surrounding the numerous legislative and regulatory changes to the FMLA and get answers to all your FMLA questions at this advanced-level seminar just for Delaware employers.  Learn More.

Register now for the one-day seminar, and you'll learn:

  • The latest expansion, so you don’t risk noncompliance
  • What recent FMLA court decisions really mean, so you can adjust your policies accordingly
  • Why FMLA record-keeping continues to trip up even the savviest human resource managers, and effective solutions to avoid similar mistakes
  • How to tame the intermittent leave and reduced schedule beasts, and put a stop to abuse and fraud
  • How FMLA, ADA, and your state's leave and workers’ comp laws overlap, so you don’t violate any statute
  • What to expect when an employee’s expecting, so you can balance your business needs with her personal requirements, all within the spirit and letter of the law
  • How to judge a "serious health condition" the way a real judge would, and eliminate disputes about what does and doesn’t constitute it
  • And more...

Visit HRhero.com to see your full Agenda.

http://www.hrhero.com/img/2014_FMLA_MC.jpg

How to Register:

  • Register Now online or call (800) 274-6774.
  • Please mention Seminar Code S1694A when calling

Bill Would Limit Use of Criminal Histories for Delaware Employers

Posted by Molly DiBiancaOn January 17, 2014In: Background Checks, Delaware Specific, Hiring, Legislative Update

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So-called “ban-the-box” initiatives, which limit employers’ inquiries into an applicant’s criminal history, have been adopted by several cities and municipalities.  Philadelphia adopted such a law in the Spring of 2011.  The City of Wilmington joined the ban-the-box bandwagon in Fall 2012, when then-Mayor Baker signed an executive order that removed a question about criminal convictions from job applications.  But that executive order applied only to applicants seeking work with the City of Wilmington.  Other Delaware employers have not been subject to these restrictions.

A bill is pending in the Delaware legislature, though, would change that and more if passed.

H.B. 167 proposes to limit when public employers and government contractors may inquire about or consider the criminal background or credit history.   The employer would not be permitted to ask about this information until “after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.”  Thus, a covered employer would be prohibited from asking about criminal or credit history until at least the first interview—no more checkboxes on job application.

The bill also proposes to limit the specific types of information that can be requested. Covered employers would be permitted to ask only about: (a) felony convictions in the past 10 years; and (b) misdemeanor convictions in the past 5 years.

This means that questions about arrests would be totally off limits—both on applications and in in-person interviews.

Finally, the bill proposes to limit how the information that the employer obtains will impact the hiring decision.  The bill basically adopts a scaled-down version of the EEOC’s multi-factor analysis whereby employers would be required to consider the nature of the crime and its relationship to the position sought, how much time has passed, etc. 

Oddly, the bill offers no specific limits on the use of credit history information other than timing.  In other words, the bill prohibits covered employers from obtaining a credit report for the candidate until a conditional offer has been made.

Even for private-sector employers who do no business with the State or any State agency, the use of background checks as part of the screening process continues to warrant consideration.  Particularly since the laws around the country are still developing, employers should weigh the benefits of this checks against the risks.  (See 5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit).  And, if nothing else, employers should evaluate the process and policies in place for conducting such checks.

Delaware Mini-COBRA Law Grows

Posted by Molly DiBiancaOn January 15, 2014In: Benefits, Delaware Specific, Legislative Update

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Editor's Note:  This post was written by Timothy J. Snyder, Esq.  Tim is the Chair of Young Conaway's Tax, Trusts and Estates, and Employee Benefits Sections. 

Delaware's Mini-COBRA law, enacted in May 2012, allows qualified individuals who work for employers with fewer than 20 employees to continue their coverage at their own cost, for up to 9 months after termination of coverage.  When it was passed, the legislature provided that the provisions of the Mini-COBRA statute:

shall have no force or effect if the Health Care bill passed by Congress and signed by the President of the United States of America in 2010 is declared unconstitutional by the Supreme Court of the United States of America or the provisions addressed by this Act are preempted by federal law on January 1, 2014, whichever first occurs.health care

I'm not sure what the Legislature meant when they provided that the Mini-COBRA statue would be preempted by federal law on January 1, 2014 but the intent was for the Mini-COBRA law to sunset on that date. However, in a little-publicized move in July of 2013, the legislature eliminated the January 1, 2014 sunset date for Mini-COBRA. They described their rationale for doing so as follows:

The Mini-COBRA Bill was originally passed as a short-term bill that was needed until the provisions of the Patient Protection and Affordable Care Act ("PPACA") became applicable to states, which was to occur on January 1, 2014. However, because PPACA's legislation relating to small employer group health policies now permits insurance companies to impose a ninety (90) day waiting period prior to the effective date of coverage, which was not anticipated when the Mini-COBRA Bill was passed, it is desirable to remove the sunset provision of the Mini-COBRA Bill so that the Mini-COBRA Bill remains in the Delaware Code, at least until a point in time when PPACA or other law may no longer permit an insurance company to impose waiting periods.

I initially thought that the Legislature provided for a January 1, 2014 sunset date because that is the date that coverage begins under the healthcare exchanges, which do not impose waiting periods in the typical COBRA scenario.  Thus, an individual terminated from a small employer could purchase his or her coverage for at least the 90-day waiting period from the exchange rather than requiring the former employer's insurer to provide the mini-COBRA benefit.  In fact, the U.S. Department of Labor, which oversees regular COBRA benefit administration, has issued revised model COBRA Notices that inform the qualified beneficiaries that they can acquire COBRA coverage through their former employer or they can obtain new coverage from the healthcare exchange.

3 HR Lessons I Learned In Vienna

Posted by Molly DiBiancaOn January 13, 2014In: Just for Fun

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I spent the first half of my recent vacation in Vienna, Austria.  It was my first visit to to Vienna and I found the city to be absolutely enchanting with it deep roots in the arts, jaw-dropping architecture, and irresistible sweets.  Being the employment lawyer that I am, though, I can’t resist writing a post about some of the HR lessons one could learn from Vienna.

Vienna State Opera House

1.  Get out and walk around

I spent hours each day walking around the city.  Although I had a list of sites I wanted to visit and things I wanted to do, I found that some of my best experiences occurred more or less by accident.  For example, some of the best pictures I took on this trip were taken during unplanned walks.

The concept of “management by walking around” applies in the same way.  You can’t know what your employees are doing or what the general feeling is unless you get out of your office and see it for yourself.

2.  Don’t forget the date

In Vienna, the year of construction is displayed clearly on most buildings.  When I arrived, my driver pointed out the differences between pre- and post-war construction.  This was made significantly easier to do by virtue of the fact that the year can be seen clearly from the street.

Employers are well advised to follow a similar pattern.  Although employment lawyers love documentation, we really love documentation that includes a date.  Although we’ll make do with an undated witness statement, a statement that includes a date and signature is far, far more useful.

3.  Try a new angle

We all get stuck in our ways.  One of the hardest things to do is to look at a situation in a truly objective way without any predetermined opinions and without jumping too quickly to conclusions.  Although this is a very, very difficult thing to do, it is an incredibly valuable skill to have.

Vienna’s historic buildings are awe-inspiring.  They are also everywhere.  To really get a sense of any one building, I had to look at it from as many angles as possible.  The legendary Opera House looks completely different when seen from the ground as it does from the balcony of the Albertina Museum, which is just across the street.  Every view was gorgeous.  But I found that some of best images I captured were taken at angles other than straight on.

When dealing with a problem, take a step back from it.  Look at it from the left, the right, and then look at it up and down before you decide how to proceed.  Sometimes, the best approach may not be the one you’re used to taking.

3 Lessons I Learned On Vacation

Posted by Molly DiBiancaOn January 10, 2014In: Just for Fun

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Every year, I go away for a few days on January 1st in an effort to refresh following the hectic holiday season. Having had enough of winter by January, I usually head south and spend three or four days with friends and family in Florida. But this year, I took a very different approach. Instead of four days in the Sunshine state, I headed overseas for 8 days. I spent the first four in Vienna, Austria, and the second four in Budapest, Hungary. It was a fantastic trip and I returned refreshed in a different way.Molly DiBianca

Here are three of the lessons I learned during my great escape.

1. Make the Time

I’m sorry to say, this is not a skill I’ve developed very well. The last true vacation I took (meaning more than a long weekend without answering emails and doing legal work) was more than 9 years ago. I cringe at the thought but it’s true. It always seems so hard to get away—there is always so much to do and never enough time. But the idea of work-life balance is that you are supposed to have a life. Vacation (i.e., a time free of work), is part of that balance.

2. Step Out of Your Comfort Zone

Instead of my standard trip south, I chose, instead, to go somewhere entirely different. To two cities I’ve never seen in two countries I’ve never visited. The perspective gained from stepping out of your comfort zone is well worth the initial anxiety about not speaking the language or knowing your way around. Plus, as the saying goes, “nothing risked, nothing gained.”

Challenge yourself and your employees to try new things if you want to promote growth and development.

3. Embrace Independence

My traveling companion had to back out of the trip at the last minute, letting me know about six days before our scheduled departure. As you may expect, I was not exactly thrilled about the change. It’s easier to travel with a companion and I worried that I wouldn’t be up to the challenge of traveling abroad by myself.

I mentioned the change to a friend, who responded, “So go by yourself—you’re sociable!” And right he is! So I took his advice and went by myself.

And I am so glad that I did. It was great to choose my agenda each day based only on what I wanted to do and to see. Would it have been fun with someone to share the adventure? Definitely. But sometimes it’s important to accomplish something on our own.

Teamwork is important but don’t underestimate the value of the solo experience. Being a “party of one” has its benefits.

The Risk of Fishing for Support in an Employee Discipline Matter

Posted by Molly DiBiancaOn December 18, 2013In: Social Media in the Workplace

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Ah, Facebook. I wonder, sometimes, what I’d write about it Facebook hadn’t made its way into the workplace. There’s another recent decision involving an employee’s misuse of Facebook and the consequences of his decision.

The facts of the case—as opposed to the legal analysis—are what captivated me.  They offer an excellent example of the problems that arise when employees vent their frustrations on social-media sites, such as Facebook.

The plaintiff was employed as an Assistant Professor at the University of Southern Mississippi.  His employment was at-will and his contract was subject to non-renewal “for any reason.”

In 2010, the plaintiff was teaching an online course that included a “chat component.”  This enabled students to type comments and questions in a dialogue format.  During one of these chats, the plaintiff was logged out, so, to those students who were still logged in, it appeared that he was not viewing the the discussion.  But, alas, he was.

During one of these chats, a student made disparaging comments about the plaintiff, apparently not realizing that he was still online and could view the comments.  After the chat ended, the same student sent an email to an administrator, complaining about the quality of the plaintiff’s instruction. 

The next day, the plaintiff told a graduate assistant about the student’s comments made during the chat.  The assistant, apparently concerned with the way the plaintiff responded to the comments, reported the matter to the plaintiff’s direct supervisor, who, in turn, reported it to her supervisor.  The decision was made to remove the plaintiff from campus until the matter could be further investigated.  As a result, the plaintiff was placed on paid administrative leave.

While on leave, the plaintiff sent messages to students and others via email and Facebook requesting that they provide support for him in his dispute with administration.  The plaintiff also posted on Facebook the letter placing him on administrative leave, as well as the written statement of the graduate assistant, which had been obtained during the course of the investigation.

At the conclusion of the investigation, the plaintiff’s contract was not renewed.  In part, the decision was based on the plaintiff’s Facebook campaign initiative to get students’ support.  The plaintiff brought a variety of constitutional claims contesting the non-renewal decision. 

The court dismissed the claims but made specific note of the Facebook posts.  The court noted the disruptive nature of the posts.  The court also pointed out that the plaintiff “understood that a Facebook friend could forward his posts to anyone.”  If I were to summarize the lesson to be learned, as indicated by the court, they’d be as follows:

If you take your case to the streets and try to rally support, understand that you may lose  and be prepared to accept the loss.

To the victor goes the spoils.

Klinger v. Univ. of S. Miss., No. 12-150-KS-MTP, 2013 U.S. Dis. LEXIS 171515 (S.D. Miss. Dec. 5, 2013).