May 11: DSBA Labor and Employment CLE

Posted by Molly DiBiancaOn March 24, 2010In: Seminars, Past

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Who:  Adria B. Martinelli and other members of the Labor and Employment Section of the Delaware State Bar Association

What:  Labor and Employment Update 2010 Seminar

When:  May 11  9 a.m. - 4 p.m.

May 25: Social Media Plus (PA Convention Ctr.)

Posted by Molly DiBiancaOn March 23, 2010In: Seminars, Past

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Social Media Plus will be the Mid-Atlantic's largest business summit for professionals interested in learning about the latest in Social Media and web 2.0 technology, and I'm excited to be taking part in it. It's going to be a huge event--they're anticipating 1000 attendees, 50 exhibitors and 28 sessions led by local and national professionals in the fields of technology, marketing, sales and, of course, Social Mediaimage


This one-day business summit is aimed at helping businesses learn how to start incorporating Social Media into their overall business strategy. image


Attendees can participate in one of four distinct tracks to ensure they get topics most relevant to their organization.  The tracks include: Executives: HR; IT; and Sales and Marketing.


Registration is open with early-registration savings available until March 31.

Summary of HIRE Act*

Posted by E-LawOn March 23, 2010In: Legislative Update

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The IRS has issued a News Release explaining the new tax benefits that were part of the Hiring Incentives to Restore Employment (“HIRE”) Act. For each worker retained for at least one year, the employer will be entitled to a general business credit of up to $1,000 on its 2011 income tax return, as well as relief from certain employment taxes. These benefits are available to employers who hire and retain certain unemployed workers after Feb. 3, 2010 and before Jan. 1, 2011.

These credits are specifically targeted to help businesses create new positions that will allow them to hire those who are unemployed. If a new hire fills an existing position, the prior employee must have left voluntarily or for cause in order for the employer to qualify for the HIRE Act credits. These credits will be available to a wide variety of employers, including businesses, agricultural employers, tax-exempt organizations, and public colleges and universities. However, household employers cannot claim these benefits. To be eligible, an employee must have been unemployed for at least 60 days, or must have worked less than 40 hours for someone else during such 60-day period, and the employer must obtain a statement certifying this prior period of unemployment from the employee.

Hiring employers will be exempt from paying the employer’s share of Social Security taxes on wages paid to these qualifying workers after the date of enactment, although the employer must still pay its share of Medicare taxes on these wages. Employers must also withhold the employee’s 6.2-percent share of Social Security taxes, as well as income taxes and Medicare taxes on these wages. These employment tax benefits will be claimed on an employer’s federal employment tax return, most of which are filed on a quarterly basis.


*This post was written by guest blogger Jennifer R. Noel.  Jenn is an associate in Young Conaway's Tax, Trusts & Estates Section, where she advises clients with respect to local, state, federal, and international tax issues, the legal aspects of the formation and operation of small and emerging growth business enterprises, and the preparation and negotiation of commercial contracts.

Work-Life Balance Update

Posted by Molly DiBiancaOn March 22, 2010In: Women, Wellness, & Work-Life Balance

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Work-life balance is a hot topic in the world of workplace initiatives. It’s so hot, in fact, that it can be difficult to keep up with the latest developments.  Here are a few items to get you started:



Work-Life Balance Award Act of 2010

This bill was introduced on March 16 by two Democrats on the U.S. House Education and Labor Committee. The Act would establish an annual Work-Life Balance Award to be presented by the U.S. Secretary of Labor based on recommendations from an appointed advisory board. Any private and public employers of any size, except federal agencies, would be eligible for the reward. The list of winners would be published on the U.S. Department of Labor’s website.


Work-Life Balance on NPR

National Public Radio has an interesting series on work-life balance and the need for more flexible work arrangements, done in the context of its impact on children and the education system. You can listen to the program (for free, of course), via the NPR website

Why We Should Dump “Balance” from “Work-Life Balance” Altogether

Cali Williams Yost is the go-to expert in the area of work-life balance and flexible working arrangements. Except that, according to Yost, there’s really no such thing. In an interview with BNet, Yost encourages businesses to drop the word “balance” in favor of “fit.” She says that “balance” suggests that there’s a right way to manage your life and work. But there’s no one right answer for anyone and what’s “right” is likely to change over time, depending on where you are at the moment.

Workplace Prof Blog’s List of the Best Labor & Employment Blawgs

Posted by Molly DiBiancaOn March 22, 2010In: Resources

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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.

What Is the Burden of Proof In Age-Discrimination Cases?

Posted by Sheldon N. SandlerOn March 18, 2010In: Cases of Note, U.S. Supreme Court Decisions

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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.

More Employers Searching Online for the Dirt on Candidates

Posted by Molly DiBiancaOn March 18, 2010In: Social Media in the Workplace

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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. 

Sample Social-Media Policy

Posted by Molly DiBiancaOn March 16, 2010In: Social Media in the Workplace

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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.  red file

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:

Social Media & HR Primer: 3 Key Tools

5 Non-Negotiable Provisions for Your Social-Media Policy

The 3 Principles for Social Media:  How to Be a Good Online Citizen

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

Sample Social-Media Policy Ideas

Social Media Policies: What about my “friends”?

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

Dec 7: CLE on Ethical Issues In Social Media

Posted by Molly DiBiancaOn March 10, 2010In: Seminars

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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

Registration: PBI website  Flyer (pdf)

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.

What the Delaware Charge Statistics Mean for Employers

Posted by Molly DiBiancaOn March 9, 2010In: Delaware Specific, Discrimination

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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.  3-24-2009 8-41-02 PM

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.

Looking Ahead

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).


Also see:

2009 Stats on Delaware Charges of Discrimination

Is Your Qualified Plan (Adequately) Bonded?*

Posted by E-LawOn March 5, 2010In: Benefits

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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.

Sept. 30: Advanced Employment Issues (Nashville, TN)

Posted by Molly DiBiancaOn March 1, 2010In: Seminars, Past

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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!

If You Don’t Ask for Feedback, How Do You Know How You’re Doing?

Posted by Molly DiBiancaOn March 1, 2010In: Performance Evaluations

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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 Top 10

Posted by Molly DiBiancaOn February 26, 2010In: Women, Wellness, & Work-Life Balance

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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.

Have a look at the Four-Day Workweek post, along with the other excellent articles that combine to form the 10 most popular blog posts of the year at the Sloan Work and Family Network Blog.

GINA and Social Media

Posted by Adria B. MartinelliOn February 25, 2010In: Genetic Information (GINA), Social Media in the Workplace

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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:

The GINA's Out of the Bottle--And It's a New Weapon in the Work-Family Arsenal

GINA's Application to Caregiver Scenarios

GINA's Implication on Employers: Pink Ribbons and Yellow Bracelets 

GINA Presentation to Delaware SHRM 

Genetic Information Nondiscrimination Act Update

And, for more about the impact of social media on the workplace: 

Social Media & HR Primer: 3 Key Tools 

5 Non-Negotiable Provisions for Your Social-Media Policy 

The 3 Principles for Social Media:  How to Be a Good Online Citizen

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

Sample Social-Media Policy Ideas

Social Media Policies: What about my “friends”?

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