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.

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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).

Facebook Posts by Police Officer Not Protected by the 1st Amendment

Posted by Molly DiBiancaOn December 10, 2013In: Public Sector, Social Media in the Workplace

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Public-sector employers can add yet another “W” in the “Win” column on the Facebook-firing scorecard.  The victory comes by way of a federal court in Mississippi where, earlier today, a judge granted summary judgment to the City of Greenville in a First Amendment claim brought by a former police officer, Susan Graziosi.

Graziosi was employed by the Greenville Police Department for 26 years at the time she posted a series of comments on her Facebook page and the Facebook page of the then-mayor, complaining that the Chief of Police had not sent police-officer representatives to the funeral of an officer killed in the line of duty. 3d police officer

The comments weren’t outrageous, frankly.  No profanity, for example.  They were, however, decisively negative about the Chief’s leadership of the Department. 

Upon learning of the comments, the Chief spoke to the City Attorney and expressed concern about his ability to lead the Department in light of Graziosi’s posts.  Her employment was subsequently terminated for her violation of several Department policies, including Supporting Fellow Employees, Insubordination, and Discipline & Accountability. 

Graziosi appealed to the City Council but the termination decision was upheld and she filed a First Amendment retaliation claim in federal court.  Regular readers of this blog are likely more familiar than they’d like to be with the applicable test for a First-Amendment claim.  But, hey, it’s a classic, so bear with me while I go through it again.

In order for a public-sector employee to state a claim under the First Amendment in a “Facebook-firing” case, the court must determine that the speech at issue is entitled to constitutional protection and that the employee’s free-speech interests outweigh the employer’s interest in maintaining an efficient and effective workplace.  A review of any of the cases discussed in my previous posts (see the links, below), shows that the analysis usually comes out in the employer’s favor.  This is especially so in police and other paramilitary institutions because the law recognizes the need to maintain discipline and good working relationships amongst employees. 

And that is precisely what the court determined in this case, too. The court held that Graziosi’s venting on Facebook did not enjoy First Amendment protection.  Moreover, the Chief’s interest in maintaining his authority and preserving close working relationships outweighed any constitutional protection Graziosi’s speech may have had.  Thus, the court concluded, Graziosi’s termination was entirely lawful. 

Another win for employers in the workplace battle involving social media.

Graziosi v. City of Greenville, No. 4:12-cv-68-MPM-DAS, 2013 U.S. Dist. LEXIS 172581 (N.D. Miss. Dec. 3, 2013).

See also

Fed. Ct. in Oregon Upholds Facebook Firing of DHS Employee

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

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And, if you haven’t yet cast your vote for the Delaware Employment Law Blog in the Labor & Employment category in this year’s ABA Journal Top 100 Blawgs, there’s still time!  Voting closes next Friday, December 20, though, so don’t delay.  And thank you!

SCOTUS Ruling on Forum-Selection Clauses Good News for Employers

Posted by Sheldon N. SandlerOn December 9, 2013In: Delaware Specific, U.S. Supreme Court Decisions

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Many employment agreements contain forum-selection clauses naming the state or the court in which any disputes must be litigated, and what state's law will govern. Employers often name Delaware state courts as the exclusive forum, due to the high quality of Delaware courts and large number of corporations and other entities created in Delaware, and name Delaware law as the governing law.

Some courts have refused to enforce forum-selection clauses on the ground that another state would be more convenient than the named forum, based on the location of witnesses or documents. In a unanimous decision, the U.S. Supreme Court has strongly endorsed enforcement of these clauses. While the facts did not involve an employment dispute, the Court's reasoning will apply with equal force to such disputes.

The facts involved a construction contract between a firm in Texas and one in Virginia, for work to be performed in Texas. The contract contained a clause naming Virginia as the appropriate forum. When the Texas firm filed a lawsuit in Texas, the Fifth Circuit refused to enforce the forum-selection clause, explaining that the convenience of the parties justified keeping the case in Texas notwithstanding the clause. The Supreme Court reversed. The Court observed that a forum-selection clause must be

given controlling weight in all but the most exceptional cases. . . . When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a [motion to transfer] be denied.

Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct., No. 12-929 (U.S. Dec. 3, 2013).

Significantly, the Court pointed out that whether the forum-selection clause names another federal court or a state court, the same standard applies, that is, the existence of the clause is to be given great weight. Delaware has a specific statute on choice of law that should be invoked in any forum-selection clause. That statute, 6 Del. C. § 2709, applies to contracts involving $100,000 or more and sets out the language to be used in a forum-selection clause in order to establish the requisite relationship with Delaware. Especially in agreements with senior-level employees, employers would be well advised to consider the use of forum-selection clauses.

What Your Employees Steal May Be Used Against You In a Court of Law

Posted by Molly DiBiancaOn December 3, 2013In: Privacy In the Workplace

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Can employee theft be a protected activity? Unfortunately, yes.  As I’ve written previously, employee theft of data and documents is so common it’s frightening—or should be—to any employer.  See Your Employees Are Stealing Your Data; Your Employees Are (Still) Stealing Your Data.

When an employer discovers that a recently separated employee has taken with him or her the employer’s data in electronic and/or paper format, there are a few possible outcomes.  Frequently, legal counsel is able to get the documents returned and an affidavit signed by the employee certifying that he no longer has any of the employer’s property in his possession, custody, or control, and that, should he later discover that he does still have such property, that he will contact the employer immediately and cooperate fully in returning it.  In these cases, it is up to the employer whether or not to “go after” the documents (and/or the employee who stole them).   data thief employee

But this is not always the case.  Employees have stolen the employer’s documents only to then attempt to use those documents in litigation against the employer.  Yes, this is as horrible as it sounds.

Here’s the nightmarish scenario.  Employee sues employer, alleging that employee was subject to unlawful discrimination based on age.  While still employed, employee steals a copy of her personnel file and the personnel file of the younger co-worker who employee claims was promoted instead of employee.   During discovery in the litigation, employee produces copies of these stolen documents and claims that they support her age-discrimination claim.

You now know that the employee wrongfully accessed the co-worker’s (confidential) personnel file, made a copy of it, and retained that copy (presumably giving a copy to her lawyer, who then produced it to you during discovery).  The rational employer would likely respond to this information by terminating (or at least wanting to terminate) the employee for breaching all sorts of policies.  And, if the file contained certain personal data, the employer would likely have a legal duty to notify the affected co-worker, as well.

But, alas, the law is never as obvious as one may hope.  There is a small body of cases that held that problems can arise if the employer does what most rational employers would want to do—i.e., fire the thief-employee.  For example, in a 2010 decision, the New Jersey Supreme Court held that it was, in fact, unlawful to terminate the employee for precisely the conduct described above.  The court found that the employee gave the documents only to her lawyers, that the documents were directly relevant to the employee’s claim of discrimination, that the disclosure of the documents did not threaten the company’s operations, and the employee had a reasonable basis to believe that the documents would not have been produced during discovery.   Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010).

Ugh.  I should hope that it goes without saying but, wow, that is disturbing.

Thankfully, there are cases and courts that disagree with that approach.  For example, in an opinion from the normally employee-friendly Ninth Circuit, the court held that the plaintiff-employee could not support his age-discrimination claim with documents taken from his supervisor’s office.  Instead, the court explained,

[W]e are loathe to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation. The opposition clause protects reasonable attempts to contest an employer’s discriminatory practices; it is not an insurance policy, a license to flaunt company rules or an invitation to dishonest behavior.

O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756 (9th Cir. 1996).   The Ninth Circuit is not alone in rejecting the idea that an employee’s theft should be endorsed by the courts.   The Sixth Circuit reached a similar result in Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 718 (6th Cir. 2008).

Nevertheless, if you thought that your employees could not use stolen information against you, you may want to think again.  And then think about whether you have solid confidentiality and privacy policies in place.  More and more employers require employees to sign a confidentiality agreement every year.  And, with cases like Quinlan, this idea seems to be a prudent one.

ABA Journal Top 100 Legal Blogs: An Embarrassment of Riches

Posted by Molly DiBiancaOn November 26, 2013In: Delaware Specific, YCST

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Well, it’s happened again.  The Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country for the fifth consecutive year.  In my world, this is the most prestigious award a legal blogger can receive and it is such an honor to have been selected again.  It is, as the saying goes, truly an embarrassment of riches. 

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To those who nominated us for the award, thank you. To all of our readers, thank you.  And to all of the many, many, many employment law bloggers whose posts continue to set an incredibly high standard for the rest of us, thank you.

I share the honor this year with six other employment-law bloggers, each of which does a tremendous job reporting on the various aspects our shared practice area.  Most of you likely already read the blogs of my co-winners but, if you don't, you should. 

Here's the list of winners—we’re all repeat honorees, except for Trading Secrets, which we extend a warm welcome to the Winner’s Circle:

I’ve said it before but will say it again here because it’s more true than ever—I am in awe of my fellow honorees.  The time and work that they consistently devote to their blogs is just amazing.  I continue to be humbled by the company I have been permitted to keep. 

Writing a legal blog is a labor of love. And, by that, I mean that it doesn't pay the bills. To consistently put up quality posts that are original and interesting to readers is no easy feat--especially when the demands of our day jobs can be, well, demanding. To be recognized for the hard work that goes into writing a legal blog really does mean so much. Almost as much as knowing that our readers find value in the content that we generate.

You can vote for your favorite in the employment-law category at the ABA Journal site . . . but no pressure, really. You can find all of the Top 100 bloggers on Twitter through the ABA Journal's list. So, as Frank and Ed used to say in those classic Bartles & James commercials, "Thank you for your support."

Violation of Non-Solicitation Agreement Via LinkedIn

Posted by Molly DiBiancaOn November 26, 2013In: Non-Compete Agreements

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Whether a former employee breaches her non-compete and/or non-solicit agreement by publishing her new job with a competitor to her LinkedIn contacts, many of which include “prohibited customers” is an unsettled question.  As you may imagine, the cases that address this question are few.  A recent opinion issued by a Massachusetts Superior Court may have addressed it more than it realized, though.

In KNF&T Staffing, Inc. v. Muller, the defendant-employee was employed by the plaintiff staffing firm for several years.  When she resigned, she was subject to a non-solicitation agreement, which prohibited her from recruiting or referring potential employees for placement in certain fields and industries.  The prohibition was in place for 1 year and applied only to placement with clients within a 50-mile radius of the plaintiff’s offices.  And, as I mentioned, it prohibited only her recruitment efforts for certain fields that she’d been responsible for at her former employer. 

At the time she resigned, she initially took a position in HR, in which she apparently was not charged with recruiting and referral duties, and, therefore, was not in violation of her agreement.  But, about five months after resigning, she went back to the recruiting industry, this time working for a competitor of her former employer.  The former employer sued, seeking to have her enjoined from what the employer asserted was activity in breach of the agreement.

Specifically, the employer alleged that she had attempted to solicit an employee from one of the employer’s customers.  The court found that, even if the solicitation had occurred, it would not have violated the agreement because the individual was not in one of the covered fields.  Thus, she was free to solicit as she liked.

Now, here’s where the LinkedIn twist comes in.  In a footnote, the court wrote that the same rule would apply “to the evidence that [the employee] currently has a LinkedIn profile disclosing her current employer, title, and contact information, and counting among her ‘Skills and Expertise’ such things as ‘Internet Recruiting,’ ‘Temporary Staffing,’ ‘Staffing Services,’ and ‘Recruiting.’”

The employee was free to recruit (i.e., solicit) in all fields and industries except those specifically identified in the non-solicitation agreement.  Thus, by posting on her LinkedIn profile that she recruited, as a general matter, did not violate the agreement.  What the footnote does not say directly but does seem to imply is that the answer may have been different if she’d included the prohibited fields and industries in her LinkedIn profile. 

Or at least that’s what a lot of my colleagues have written, anyway.

In reality, that’s not the case.  Even if she had included the prohibited fields in her LinkedIn profile, she would not have been in violation of the agreement unless she actually “solicited, recruited, or hired away” an employee in one of the prohibited fields and within the 50-mile radius.  Posting that this was a “skill or expertise” doesn’t mean that she’d actually engaged in it.  Considering it or advertising those skills would not violate the contract.  Only if she successfully put those skills to work to hire away an off-limits person would there be a potential breach of the contract.

Lesson Learned?  Non-solicitation and non-competition agreements are generally disfavored by courts.  Even in a state like Delaware, which is one of the most employer-friendly courts in this area of the law, will enforce contracts only to the extent that the contract requires it.  In other words, the words matter—a lot.  Have your contracts reviewed by trusted employment counsel.

KNF&T Staffing, Inc. v. Muller, No. 13-3676-BLS1 (Mass. Super. Ct. Oct. 24, 2013).

Winter Woes: Employment Discrimination Via Facebook

Posted by Molly DiBiancaOn November 24, 2013In: Hiring, Social Media in the Workplace

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Do employers search social-media sites, like Facebook and Twitter, before hiring a potential employee?  Yes.  Like it or not, they do.  Sometimes as part of an official screening process but, more often than not, the act of Googling is simply second nature and is done without any advance planning or thought. Cold weather woes

And, as a result of these online searches, do employers screen out candidates for unlawful reasons, such as race, religion, or pregnancy?  Yes, says the results of a recent survey reported by the Wall Street Journal

According to the study, as many of one-third of employers search for a job applicant’s online activity early in the hiring process.  The survey also claims that candidates whose public Facebook profiles indicated that they were Muslim were less likely to be called for interviews than Christian applicants. 

Perhaps it’s because the weather has turned cold in the Northeast and it’s put me in a cantankerous mood, but I take issue with the implications of these results. 

First, if a hiring manager has a bias, either consciously or subconsciously, against a particular class of candidates, he is no more likely to act on that bias merely because he learns that an applicant falls into the class via Facebook.  There are numerous studies that show that a candidate’s surname can impact whether he is called for an interview. 

Second, this discriminatory screening happens only if a candidate’s online information can be seen by the hiring manager.  The most recent data of which I am aware says that less than 25% of Facebook users maintain a public profile.  Good digital citizens who are seeking employment know not to keep their Facebook page public for all to see. 

Third, the WSJ article concludes with a quote from an employment lawyer, who reports that he "advise[s] employers that it’s not a good idea to use social media as a screening tool.”  Well, I’ve been saying it since 2005 and I’ll continue to say it now, hogwash.  The hiring decision should be made with great care. Internet searches for applicant information can be excellent tools, provided they are conducted in a legally defensible manner.  

Moreover, employers should not deny the reality that their hiring managers are searching online for information about a potential candidate.  Instead of turning a blind eye to this reality, employers are best advised to address it by implementing best practices to prevent unlawful discrimination, while still ensuring the best possible hiring decisions. 

See also, Screening Job Applicants with Facebook: Parts 1, 2, and 3

Another Facebook Firing Is Upheld

Posted by Molly DiBiancaOn November 11, 2013In: Public Sector, Social Media in the Workplace

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Employees in the private sector do not have free-speech rights in their employment, contrary to popular belief.  Employees in the public sector, on the other hand, do have such rights, although they are not limitless. When it comes to First Amendment challenges to Facebook firings, employers continue to prevail in nearly every case.  Here is another such victory.

The plaintiff worked as a case worker for child-protective services investigating reports of child abuse and neglect.  In that role, she was charged with determining whether a child was safe in his or home.  If she determined that the home was unsafe, she worked with the District Attorney’s Office to petition the court for protective custody.  She testified in court about eight times a month.

In making these determinations, she was not supposed to consider the employment status, religious beliefs, or political beliefs of the adults in the home and was not to concern herself with how they chose to spend their money or furnish their home.

Plaintiff, of course, had a Facebook page.  In her profile, Plaintiff identified herself as a case worker for the Department of Human Services (DHS).  Her Facebook profile did not include a disclaimer that the opinions were her own and not those of her employer.  Plaintiff had hundreds of Facebook friends, including a judge, at least three deputy district attorneys, several defense lawyers, and more than a dozen law-enforcement officers.

She posted several negative comments about clients who drove luxury vehicles or had expensive home-entertainment systems.  In another post, she proposed a set of “rules for society,” which included:

(1) If you are on public assistance, you may not have additional children and must be on reliable birth control . . . (2) If you’ve had your parental rights terminated by DHS, you may not have more children . . . (4) If you are on public assistance, you may not own a big flat screen television; . . . (6) If you physically abuse your child, someone should physically abuse you.

A copy of the posts were forwarded to the Director of HR at DHS.  When confronted with the posts, Plaintiff admitted that she had written them and that she did hold some of the opinions that she’d expressed in the posts.  She was put on administrative leave while the matter was investigated.

As part of the investigation, the Director of HR spoke with the attorneys at the District Attorney’s office and Department of Justice that plaintiff worked with most often.  The attorneys expressed concern that the Facebook posts would be subject to discovery and that they would have to be disclosed to defense attorneys in any case involving physical abuse.  They also said that she would likely be questioned about the posts, which would be detrimental to the agencies’ ability to effectively prosecute these cases.  In effect, they said, the credibility and neutrality required of a DHS case worker had been all but destroyed, rendering her virtually useless a witness for the prosecution.  As a result, her employment was terminated.

She filed suit, alleging that her termination constituted a violation of her constitutional right to free speech.  The suit was dismissed on summary judgment.  The court explained that, even assuming the speech was subject to the protections of the First Amendment (i.e., that it was on a topic of public concern), the employer’s interests outweighed the employee’s. 

This case serves as a good reminder to public- and private-sector employers alike that, when presented with information about an employee’s Facebook or other social-networking posts, the best course of action is a calm and rational one.  Investigate like you would with any other complaint.  If the online conduct impairs the employee’s ability to perform the essential functions of the job or if it causes real disruption to the employer’s operations, discipline may be in order.

Shepherd v. McGee, No. 03:12-02218-HZ, 2013 U.S. Dist. LEXIS 159432 (D. Ore. Nov. 7, 2013).

See also

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

FMLA Master Class: Feb. 12

Posted by Molly DiBiancaOn November 5, 2013In: Family Medical Leave, Seminars

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Back by popular demand!  Our FMLA Master Class, presented in conjunction with BLR and HR Hero, is always the most requested seminar from clients and seminar participants.  So, at your request, we’ve brought it back. 

If your organization is subject to the Family Medical Leave Act or if you are nearing 50 employees, you should consider joining us on February 12, 2014, for this in-depth, full-day program. 

You can learn more about the program and register online.  We’ll look forward to seeing you then!

Oops! My Bad! Facebook Firing Based on Mistake

Posted by Molly DiBiancaOn November 5, 2013In: Social Media in the Workplace

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Contrary to popular belief, employees may be lawfully terminated for comments or pictures that they post on social-networking sites. The law also permits employers to make honest mistakes. An employer who makes the decision to terminate an employee based on an honest, but mistaken belief that the employee violated the employer’s policy, is not a basis for liability.oops

The same rule applies in the context of social media. Thus, there will be no liability for an employer who lawfully terminates an employee based on online conduct even if it turns out that the conduct did not occur.

Take a recent decision from the Seventh Circuit as an example. In Smizer v. Community Mennonite Early Learning Center, the plaintiff was a teacher’s aide at a church-affiliated daycare center run by his mother. His mother informed the Center’s Board of Directors that the plaintiff had posted “horrible stuff” on his Facebook page and that she no longer felt safe in his presence.

She asked that the plaintiff be fired for “creating a hostile work environment” and then “set about gathering the evidence to dismiss him.” The plaintiff was later fired for “insubordination and unprofessional conduct” based on his alleged Facebook posting. The plaintiff, however, denied writing the post. And the Center never produced a copy of the alleged post.

The plaintiff sued, alleging he was terminated for a variety of discriminatory reasons. His termination was upheld, though, showing yet again that, so long as the termination is not based on unlawfully discriminatory reasons, no liability will attach.

Smizer v. Comm. Mennonite Early Learning Ctr., No. 13-1828 (7th Cir. Oct. 25, 2013).