My mother always told me that it’s never too late to say “thank you.” With that excellent advice in mind, I’ll thank the fine authors of the Workplace Prof Blog, who included Delaware Employment Law Blog on its list of its readers’ favorite employment law blogs. This is high praise from one of the very best employment law blogs in the legal blogosphere. Be sure to check out the entire list, it’s just the place to update your blog reader. You can also check out our Top 100 Employment Law Blogs.
In Gross v. FBL Financial Services, Inc., the U.S. Supreme Court ruled that a plaintiff claiming a violation of the ADEA must do more than prove that age was "a motivating factor" in the adverse employment action. Rather, the plaintiff must prove that the action would not have occurred "but for" the employee's age, making ADEA cases harder for plaintiffs to win than other kinds of discrimination cases. Legislation to overturn the Gross case has been introduced and is pending in the Senate and House.
That proposal, called "The Protecting Older Workers Against Discrimination Act," would adopt the burden of proof currently used in mixed motive disparate treatment cases under Title VII. Under that approach, once a plaintiff proves that age was a "motivating factor" for the adverse action, he or she would win unless the employer proved by a preponderance of the evidence that the same decision would have been made if age had not been considered.
At Young Conaway’s Annual Employment Law Seminar on April 28, we will discuss the prospects for passage of the POWADA and how it would affect the defense of ADEA cases.
According to a study by Microsoft, 70% of HR professionals have turned down job candidates because of the candidate’s online activity and reputation. On the flip side, approximately 60% of Internet users admit that their online behavior may affect their professional and personal lives. But only 15% of them actually think of the potentially negative impact when surfing the Web and posting content.
The same study showed that online reputation also can have a positive effect on a job applicant’s chances. Approximately 86% of respondents reported that they have given credit to candidates who have a good online blueprint. And half of them said that a good reputation can make a really big difference when it comes to making the final hiring decision.
Maximum PC reported the study, which was published in January.
I'm often asked for a sample social-media policy. I've posted before (see below) about online repositories for such policies and encourage readers to review as many such samples as possible before putting pen to paper and actually drafting your own. Below is a sample policy (a set of guidelines, actually) that is a good starting point for most organizations.
There are numerous additional provisions that could be included but this covers what are the key points for employees' use of social media. Of course, if your organization is subject to additional legal obligations, such as those in the financial sector, additional considerations must be made to ensure compliance. Your employment counsel can assist you in preparing your own internal guidelines.
Previous posts on social media in the workplace:
Who: Molly DiBianca
What: Understanding the Impact of Social Networking on You and Your Clients
When: 1:30 pm to 2:30 p.m. Multiple dates, including April 27 (Mechanicsburg, PA), April 29 (Philadelphia, PA), and August 30 (Pittsburgh)
Where: Mechanicsburg, Philadelphia, and Pittsburgh, hosted by the Pennsylvania Bar Institute
This course addresses the impact of social networking on businesses. Regardless of their specific practice area, attorneys should be aware of the risks of social media faced by clients. Specifically, the variety of employment issues, including the use of SNS for pre-employment screening, potential harassment and discrimination claims that can result from employees’ use of these sites, as well as the risks to trade secrets and confidential company information. There are also intellectual-property issues that are linked to the increasing popularity of the sites. For example, there are potential infringement and ownership issues that can occur when employees generate content on behalf of their organization for its use online, as well as the potential for defamation claims and improper disclosures of private information. This session reviews these issues and provides best-practices examples to avoid risks whenever possible.
Delaware Department of Labor (DDOL) Office of Anti-Discrimination recently released its fiscal-year statistics relating to the charges filed and resolved in FY2009. I posted previously about the stats, including some (hopefully) helpful charts that show the trends over time.
Since the statistics were released, I've had some time to process the data and focus more on what is most relevant to Delaware employers.
Charges, Charges, Charges
If you are an employer who received a Notice of Charge of Discrimination for the first time in 2009, you are not alone. There were more charges filed with the DDOL last year than any other year for which the statistics are published. In FY2009, the DDOL accepted 728 charges—an increase of nearly 20% over FY2008.
Retaliation Claims Continue to Reign as Enemy #1
It may not come as a surprise that the most-often filed charge was a retaliation charge. Charges of discrimination alleging retaliation constituted more than 70% of the charges filed last year. One reason for such a high number is that retaliation is often added as a second allegation in charges alleging other types of discrimination. Also, once a charge has been filed, it can be amended to add other claims. So, if an employee files a charge alleging gender discrimination and is subsequently terminated, she is likely to amend her charge with an additional charge of retaliation.
The increase in the number of charges filed that contain a retaliation claim is staggering. In FY2008, approximately 30% of all charges filed with the DDOL contained a retaliation claim—even less in FY2005-2007. Those numbers went up by 130% over the last fiscal year. It is fair to say that retaliation claims are, by any measure, an employer’s number one biggest threat in the context of discrimination claims.
Race- and gender-based claims enjoyed equal growth over last year—both accounting for an additional 40% of all claims filed. After retaliation, race (56.9%), and gender (46.4%) discrimination ranked as the second and third most commonly filed claims.
Defining “Success”—Reasonable Cause Findings Issued in FY2009
There is some good news for employers among these statistics. Overall, there number of reasonable cause findings issued by the DDOL remains small. On average, only 1.5% of all claims filed resulted in a cause finding. The DDOL’s long investigation periods, though, may skew these numbers. Because the average processing time for a charge is nearly a year, the reasonable-cause findings issued in FY2009 were likely issued for charges filed in FY2008.
The most successful claims in FY2009 were those based on age—reasonable cause was found in just less than 4% of all age claims filed. National origin was the second-most successful, with reasonable cause findings issued in 2.5% of those claims.
No reasonable cause findings were issued in three types of claims: (1) gender discrimination claims filed by males; (2) Asian-race claims; and (3) religious-discrimination claims.
The lesson to be learned from this data for Delaware employers is this:
The increased likelihood that your organization will be named in a charge means that you must be ever diligent in documenting the events of the workplace and being on high alert for potential issues as they arise and, especially, when dealing with an employee who complains of discrimination or harassment (formally or informally).
The IRS recently announced the results of two special audit programs it conducted. The first program involved audits of approximately 50 Form 5500 filings for defined contribution plans with asset values greater than $100,000 but less than $250,000. The second program audited 50 401(k) plans covering three to eight participants. Surprisingly (maybe not, given our experience), the most common error revealed by both projects was the failure to have the plan adequately bonded as required by ERISA section 412.
The amount of bond required by ERISA is 10% of the assets in the plan but not less than $1,000 and but not more than $500,000 ($1,000,000 for plans that hold employer securities). The bond must cover all persons, including fiduciaries, who handle funds or other property of an employee benefit plan. The purpose of the bond is to protect the employee benefit plan from risk of loss due to fraud or dishonesty on the part of persons who handle plan funds. The United States Department of Labor’s Field Assistance Bulletin No. 2008-04 discusses the bonding requirements in an FAQ format.
Note that an ERISA fidelity bond, which is required, is not the same as fiduciary liability insurance, which is not required. Fiduciary liability insurance covers the fiduciaries of the employee benefit plan in the event of a breach their fiduciary duties, which may involve imprudence but may not rise to the level of fraud or dishonesty. If there is no bond available when a defalcation occurs, those responsible for obtaining the bond could be liable to the plan for its losses. An ERISA bond can usually be obtained through your property and casualty insurance broker.
*This post was written by guest blogger, Timothy J. Snyder, Esq. Tim is the Chair of Young Conaway’s Tax, Trusts and Estates, and Employee Benefits Sections. His primary area of practice is employee benefits, which involves both the benefit provisions of provisions of the Internal Revenue Service and ERISA. He represents business and professionals in establishing, monitoring, and administering employee-benefit plans, new comparability retirement plans, non-qualified deferred-compensation plans, health, disability and life benefits, COBRA, HIPAA, ADA and ADEA.
This year, Adria B. Martinelli and I will be speaking at the Advanced Employment Issues Symposium in Las Vegas, Nevada, on November 11-12. If you can't join us in Vegas in November, maybe you can swing a trip to Nashville, Tennessee, where the Advanced Employment Issues Symposium will be presented on September 30-October 1.
The Advanced Employment Issues Symposium is in it's 15th year and is recognized as one of the leading employment-law conferences for forward-thinking human resource professionals, executives, and in-house counsel. This year, there are three featured tracks: Employment Law Enforcement; FMLA & ADA; and Talent Management.
Registration for the Employment Issues Symposium is open now, with early-registration discounts until March 31. If you aren't able to attend either of this year's programs, you can order the materials from the registration website, as well.
Hope to see you then!
Ahh, feedback. It's a tricky pill to swallow, isn't it? When performance-review time comes around and you're making a list of all of the areas in which you want your employees to improve, maybe you should ask yourself a few questions first. Have you really done everything that you can to address problems as they arise? Or have you waited until formal reviews to bring up those little problems that have become bigger problems?
The best leaders know that regular feedback is essential to an effective working relationship.
If you are looking for a creative way to get and receive feedback, there's a website for you. BetterMe gives users a way to give "private, anonymous feedback." You can give feedback to anyone--even if they're not registered with the site. You can also ask for feedback from others. Good idea? Well, an interesting one, indeed.
Sloan Work and Family Network published a list of the Top 10 Posts from its blog for 2009 and I am so honored that my post, The Four-Day Workweek and the Death of the Flexible-Workplace Initiative, ranked #1! The four-day workweek got a lot of publicity in the latter half of 2008 and early 2009 but lost its fizzle as the economy continued to worsen. Although the concept was touted by advocates as a way to promote a flexible work schedule, I argued that it served the exact opposite purpose and served to create an inflexible workplace.
GINA, the Genetic Information Nondiscrimination Law of 2009, is the first new federal discrimination law in decades.
Although EEOC regulations are promised (the proposed regulations were published back in March 2009 and the comment period has been closed since May 2009) , they have yet to issue, leaving employers on their own to interpret this brand new statute.
One area which presents an interesting question is the role of social media in GINA. Unlike other discrimination laws, GINA makes illegal the mere acquisition of genetic information, which is defined broadly to include, among other things, information about manifested diseases of family members. There are many exceptions to this rule, including “commercially and publicly available information,” such as newspapers, magazines, periodicals, and books. The EEOC specifically invited public comment on whether “commercially and publicly available information” should include personal Web sites or social networking sites.
If these are NOT included within the exclusions, it would mean that if an employer reviews an applicant or employee’s Facebook or MySpace page, and learns genetic information in the process, it is in violation of GINA. Given GINA’s broad definition of “genetic information,” this could easily occur. For instance, discovering on Facebook that an employee marched in a Susan G. Komen Race for the Cure on behalf of her mother would reveal genetic information.
If this advertent act (review of Facebook, Google name search, etc.) inadvertently produced genetic information – the employer would still be on the hook unless social media is included within the “publicly available” exclusion. Therefore, if information obtained from social media is NOT considered to be “publicly available,” employers will have to reconsider how they conduct background checks, since even the most rudimentary background checks currently include a “Google” search and review of any online information it turns up.
Even if the regulations specify that social media is excluded from the acquisition portion of the statute, the thornier issue is what happens after an employer has this information, whether deemed advertent or inadvertent under the statute. As a result of GINA, any adverse employment action which occurs after an employer has such information may be suspect. Just like any other discrimination, timing and stray comments may each play a role in developing causation between the membership in a protected class and the adverse employment action. As discussed in my previous post, Pink Ribbons and Yellow Bracelets, “genetic information” is everywhere. It will be hard for employers NOT to learn this type of information about their employees.
Thus, employers and their managers must understand the significance once this type of information is learned by the employer. It does not mean that the employee has to be treated better than other employers. It does mean, however, that employers need to be on alert once genetic information is learned about an employee. Like any other protected class, employers need to be cognizant of suspicious timing and mindful that documentation regarding any legitimate performance issues is in order, before taking any adverse employment action.
Want to learn more about GINA and its implications for employers? There are many opportunities: I will be presenting on GINA at the CUPA/SHRM conference on March 2; in an audioconference on May 4, sponsored by M. Lee Smith; and at the Annual Seminar on Employment Law hosted by the Delaware State Bar Association on May 11. Stay tuned for more details on the audioconference and DSBA event.
Until then, learn more about GINA with these earlier posts:
And, for more about the impact of social media on the workplace:
After months of moribundity, the Employee Free Choice Act (“EFCA”) is showing signs of life. Or at least alternative means of imposing some of the major changes included in EFCA, such as greatly decreasing the time of an election campaign and limiting employers’ ability to actively participate in union elections, are being considered. It all depends on the possible confirmation of Craig Becker, whose nomination to the NLRB has been stalled in the Senate but was recently voted out of committee on a party line vote.
The theory goes that if Becker, who is currently Associate General Counsel of the SEIU, is confirmed by the full Senate, giving former union lawyers a 3-2 majority on the Board, strange (and bad) things may occur. Becker’s past published writings include such one-sided suggestions as excluding employers from participating in pre-election hearings to determine an appropriate bargaining unit, preventing employers from alleging that union campaign conduct coerced employees, and prohibiting employers from conducting mandatory meetings of employees at any time during the campaign (instead of only during the 24 hours before the election, as at present).
Given Becker’s extreme views, the theory goes, new NLRB Chairperson Wilma Liebman should have no trouble getting the majority of the Board to agree to embark on expanded rulemaking and in that fashion, impose many of the EFCA changes indirectly. Liebman has made no secret of her interest in having the Board expand its rulemaking activity, instead of limiting itself to ruling on cases presented to it.
CUPA-HR Eastern Pennsylvania and Delaware Spring Chapter Meeting
March 2, 2010 | 9:00 a.m.-3:00 p.m.
Registration Opens at 8 a.m.
Doberstein Academic Center
320 N. DuPont Highway, New Castle, Delaware 19720
The Eastern Pennsylvania CUPA-HR chapter invites you to join us for our annual Spring Meeting on March 2, 2010. For the first time, the Eastern Pennsylvania CUPA-HR chapter is partnering with the Delaware Chapter of the Society of Human Resource Management(SHRM).
Our topics will be related to Employment Law updates as well as other legal issues. Topics will include: Social Networking and the Workplace, Retaliation & Whistleblower Claims, FMLA/ADA Update, Avoiding Wage and Hour Claims, Getting to Know GINA. The discussions will be led by employment-law attorneys from Young, Conaway, Stargatt & Taylor.
CUPA-HR Eastern Pennsylvania Members: Free
CUPA-HR National Members: $15. Non-CUPA-HR Members: $30.
Cost includes continental breakfast, lunch and handouts.
Please RSVP to Vicki Stewart at vstewart [at] ycp.edu by February 20, 2010.
Delaware Department of Labor (DDOL), has published its yearly statistics for FY2009 relating to the charges of discrimination filed with its Office of Anti-Discrimination. Here are some highlights:
It may not come as a surprise that the most-often filed charge was a retaliation charge, making up just over 70% of all charges filed. Where a charge alleges more than one basis, each basis was counted separately, which explains why the total is higher than 100%. It also indicates that retaliation is very often added as a second basis to a charge that alleges other types of discrimination.
Again, not surprisingly, DDOL had a very busy year, with intakes at a five-year high.
Electronic monitoring is a very hot topic in employment law these days. But what about other types of electronic monitoring by employers? A case filed in the U.S. District Court for the Eastern District of Pennsylvania alleges a much more unusual sort of electronic monitoring. The suit alleges that Lower Marion School District distributed over 1,800 laptops to its students. So far, so good.
But, according to the Complaint (via Above the Law), the laptops were equipped with webcams.
How could this not end badly?
The suit alleges that school administrators remotely activated the webcams. One is alleged to have gone so far as to discipline a student for “improper behavior in his home." Funny, I've never seen that one in a student code of conduct. It is also alleged that the District was also tracking all the students' online activity.
Employers commonly provide employees with laptops for business-related use. If your organization is one such employer, maybe consider skipping the upgrade to the models with webcams.