Delaware Employment Law Blog

In an earlier post, I discussed the implications of "friending" by employees.  I suggested that there are a few options for employers and how they handle this sometimes awkward social-networking phenomenon.  One option is to prohibit supervisors from making friend requests to their direct reports.

Patrick Della Valle, of ELinfonet.com, made an excellent point in a comment to the post.  He noted:

I believe that some states (like New York) have "recreational activities" laws that prohibit an employer from discharging an employee for engaging in lawful activity outside of working hours. I don't know whether "friending" qualifies, but it's something to consider.

His point about off-duty conduct laws is such an excellent one that it merits more than just a comment in response. 

Social-media guidelines has been the topic of several recent posts. One of the questions that I suggest employers consider when drafting a social-media policy is "the friending issue."  That's right. 

When deciding on how employees will be encouraged or required to engage online, one point that comes up repeatedly is whether there should be any rules with respect to friending on Facebook. 

There are several possible answers to this question.  I don't advocate that any one of them is the only "right" answer. It will depend, in large part, on your company's culture and the organization's overall approach to social media.  But you should think about them, nonetheless.  Here are the choices:

1.  No rules. Anyone can friend anyone and the employer won't get involved.

2.  Supervisors may not make friend requests to direct reports.  Direct reports may make friend requests to supervisors, in which case the supervisor has the discretion to accept (or not accept) the request.

3.  Supervisors may not make friend requests to direct reports.  Direct reports may not make friend requests to their supervisor. Colleagues may be friends on Facebook.

Although I don't believe any of the 3 are the "best" answer, I do advocate that employers at least consider implementing the second choice, which prohibits supervisors from friending their direct reports.  Common sense dictates that any request that comes from a supervisor is going to be given more consideration. In other words, will the employee really feel free to deny the request?  Likely not.

And what's the potential harm by implementing this rule?  Very little.  The employee can make the request if he wants.  It seems to me that prohibiting a supervisor from being the initiating party, the only thing you're prohibiting is possible undue pressure or coercion.

Follow me on Twitter @MollyDiBi

Related Posts:

Social-Media Policy Ideas

Sample Social-Media Guidelines

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

3 Reasons Why Employers Don't Have a Social-Networking Policy

Another Facebook-as-evidence story, this time from Canada.

The plaintiff sought damages for personal injuries allegedly sustained in a motor-vehicle accident. He claimed that he suffered “debilitating fatigue” as a result of the accident, which precluded him from working, thus contributing to his damages.  The defendant sought production of the plaintiff’s home computer for forensic inspection.  The defendant sought to prove that the plaintiff spent hours, late at night, on his computer using Facebook.  The defendant contended that all of this late night Facebooking contributed to his alleged fatigue.

via All About Information

Follow me on Twitter @MollyDiBi

The 2008 Holiday Gift Guide was so popular, I've been waiting all year to revisit the topic in improved form. This is the first part of the Guide and includes all of the technology that your favorite lawyer (or other thinking professional) could possibly hope to receive this year. Happy gifting!

Amazon Kindle DX $489

With its 9.7" display, the most recent iteration of this wireless reading device is nearly twice as large as its predecessor. Its generous memory enables you to store up to 3,500 books, which you can download wirelessly without any monthly fees, annual contracts, or other subscriptions. Native PDF support allows you to carry and read all of your documents on the go.

If the price tag seems a bit high, you may want to consider the Kindle (sans DX), which, in its most recent version (i.e., the latest "generation"), costs a mere $249. For the significant savings, you'll get a significantly smaller display (6") and memory (1,500 books), but the rest of the package is nearly identical.

The DX was marketed to lawyers and others who have not yet been able to let go of their legal pads. The idea, as I understand it anyway, is that the larger-sized DX model would feel more like a notepad, thus serving as a closer substitute. Whether or not that idea will be successful, I haven't got the foggiest. It comes down to personal preference as to: (1) size; (2) memory; and (3) price.

Kensington SlimBlade Trackball $129

This wireless mouse is downright gorgeous. I own an older model Kensington trackball and couldn't imagine my office life without it. Its stationary design means you don't ever have to move the mouse all around the desk again. Instead, a slight flick of the fingertips enables you to navigate effortlessly across multiple applications and within the most complex documents. Yummy.

Thomas Pink Commuter Tie $100

The classic haberdashery offers a gift perfect for the dapper gentleman who prides himself on maintaining an impeccable image. The tie, available in several colors, is designed with a "small yet subtle pocket" on the back. The pocket is just the right size to house your iPod Nano and an extra-fabric loop keeps all wires out of sight and close to the body, leaving your hands free to read the Journal on the train ride into work. 

Electronic Windshield De-Icer $25

Even those people who are crazy about winter (ugh!) don't like to stand in the cold in the mornings just to scrape the ice off of their car windows. This handy gadget makes the snowy weather that much more bearable for all of us. 

The de-icer plugs into the car's outlet and has a 14' cord, which is long enough to reach the front and rear windows of most vehicles. The retractable handle means you can store it easily in your trunk and there's even a built-in light, which is particularly convenient for those pre-dawn trips to work.

Flip UltraHD Minicam $199

Please don't say that you don't have a Flip minicam and please, please, please don't say that you don't know what it is. Flip makes pocket-sized camcorders that are so easy to use, you'll hardly believe that it's a descendent of those mammoth-sized camcorders of yesterday that were lugged in carrying cases the size of suitcase to soccer games and Grandma's house. T

hey cost next to nothing and easier to use than most point-and-shoot digital cameras. Granted, you can shoot just 60 or 120 minutes (depending on the model) of footage but, really, who needs more? 5 minutes of precious memories is probably more than enough. And after you yell "Cut!", you simply plug the camera into your laptop's USB port and, Voila!--you're video is saved on your computer and ready to upload to YouTube. What could be simpler?

If you don't have a Flip camera yet, now is the time. Just in time for your holiday spending, Flip has introduced a new and improved line of its "minicams" with HD--nothing but the best for your techie, right? It comes in a 60 minute ($149) or 120 minute ($199) format.

If you want to be really sporty, go for the MinoHD.  For $229, you can get 120 minutes of HD video in tiny package and even customize it with your own picture on the shell. (pictured above).

Other, holiday-related posts:

'Tis the Season to Avoid Disaster at the Office Holiday Party

Alcohol and the Office Holiday Party: Tips from the Dep't of Labor

The Risk of Identity Theft Is Higher Than Ever This Holiday Season

Follow me on Twitter @MollyDiBi

I'll be presenting a new HR Hero audio conference, HR's Response to Social Media: Policies for Twitter, Facebook, and Other Popular Sites, on December 10, 2009. 

I'll discuss how to create a policy that will help you legally monitor employee online activity and protect your organization from legal risks associated with Web 2.0 in the workplace.

Specifically, we'll talk about:

• When social media can go terribly wrong -- and why a social medial policy is needed for every workplace

• The specific legal risks of having Facebook, Twitter, and other online tools available at work

• Seven issues that your Web 2.0 policy should address, including how to safeguard your organization's intellectual property and other sensitive company data

• The 24/7 world: Why you may want to govern employee use of social media during working and non-working time.

• How to craft a policy that treats employees like adults and conveys your organization's trust in its workforce

• Policy tips on providing employee guidance for using social media to communicate with those outside your organization

• How to communicate and educate your workforce on your new social media policy

You can register on the HR Hero website.

And, for more about social media in the workplace, see the following posts:

Social-Media Policy Ideas

Sample Social-Media Guidelines

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

3 Reasons Why Employers Don't Have a Social-Networking Policy

Follow me on Twitter @@MollyDiBi 

[Don't know what a "tweet" is or how (or why) to use Twitter?  Register for my webinar next week on What HR Needs to Know About Twitter]

The eBoss Watch Worst Bosses of 2009 award is one that you probably don't want framed above your desk. There are 25 "winners" selected by a panel of experts on workplace behavior, bullying, and civility. 

Here's the description of one of the 25 worst bosses of the year:

Water distribution superintendent, City of Monroe, Monroe, Louisiana
Benton’s employees recorded a four hour meeting that took place late last year where Benton used hundreds of obscenities and ordered one of the supervisors to physically attack an equipment operator.

For more on Jerks at Work, see these related posts:

Abusive Bosses Should Watch Their Backs

Everything You Needed to Know About Your Toxic Boss

Could an Ombudsman Help You Squelch Bullies in the Workplace

5 Costs of Coworker Bullying

Work-life balance, toxic bosses, and generation gaps, this week in BusinessWeek

Inside the Mind of a Super Jerk

Disrespectful Workplace Costs State $314k

How Crazy Is Your Boss? No, really, how crazy?

"My Boss Is Killing Me": Why this just may be true

It's Friday and Your Boss Is a Total Tool

The Truth About Workplace Revenge

Women Bullies In the Workplace

Jerks at Work and on the Web

Now's a Great Time for Workplace-Civility Initiatives

Follow me on Twitter at @MollyDiBi

At the AON Social Media & HR Summit conference this week, the topic of social-media policies has come up repeatedly.  Attendees at this event are very savvy with respect to the multitude of ways that social media can be used in Human Resources and by employers, generally.  But a question that keeps coming up is “Ok, so now what?”  HR professionals seem to be embracing the many ways that social media can be used but know that there needs to be a set of guidelines for acceptable and appropriate use. 

Crafting a social-media policy is no easy task.  There are so many variables and possible risks that can and should be addressed before you roll out your social-media initiatives.  I’m going to be speaking again on a panel at the conference here in Chicago in about 20 minutes, so I won’t have time to outline all of the possibilities, so I’ll give you an idea of the first three steps in the process of creating a social-media process.

1.  Familiarize the Decision Makers

Unless and until the relevant decision makers understand what social media is, you’re going to have very little luck with getting any program in place.  The first step has to be to get those with the decision-making power comfortable with the possibilities.  So set up a Twitter account for your C-Suite and let them listen to the conversation first so they know what they can expect when the organization makes the move towards social media.

2.  Select Key Players

Identify the individuals who will participate in the policy-drafting process.  Who will be your core group?  Consider getting stakeholders from various departments involved.  In addition to HR, consider involving representatives of Corporate Legal, Marketing / PR / Communications, and IT also participate in drafting the guidelines. Will you have a core group draft an outline and then permit employees comment on the draft like IBM did?  Participation does wonders for buy-in of the policy.

3.  Determine Objectives

Policy decisions can’t be made unless you have a clear mission and true understanding of what your underlying objectives are.  You can think of it on a spectrum.  On one end of the spectrum, you have an objective of keeping employees away from social media when it comes to their work.  If that’s the objective, you’re going to focus on banning the use of social media in the workplace.  At the other end of the spectrum is the objective of getting your employees fully engaged in social media, using employees as brand advocates and key recruiters.  If these are key goals, then you want to share and include, not censor and prohibit. 

More to come on social media policies. . .

Social-media policies are a really hot topic. I spoke today for 3 hours (and 20 minutes, to be exact) about what things an organization should consider when preparing to draft a social-media policy. (To follow the conference on Twitter, use the hashtag #aonsocial09). After the talk, several of the attendees commented that they appreciated the substantive nature of the presentation; i.e., that it was more of a roll-up-your-sleeves type of presentation as compared to more theory-based. This was probably a result of the length of the session. With three hours, it was easier to get into the real heart of the topic instead of an overview.

In any event, I promised during the session that I would post some links to sample policies that are circulating around the web, and I’ve done that below. Because of the high-level of interest in the topic of social-media policies and guidelines, I’m also going to post about some of the more critical things to include in your policy, and, separately, about how to go about preparing a social-media policy. Honestly, there were a number of topics that we discussed that I’d like to share with our blog readers. In the meantime, you can whet your appetite with some leisure reading...

Media Organizations

BBC Guidelines Personal use of Social Networking and other third party websites 

Associated Press Social Networking Q&A (PDF via Wired.com)

NPR News Staff Social Media Guidelines

Technology Industries

IBM Social Computing Guidelines

Intel Social Media Guidelines

SAP Social Media Guidelines 2009

Sun MicroSystems Guidelines on Public Discourse

Online Repositories and Collections of Links

Social Media Governance Database

TechRepublic Links to Social Media Policies

About.com Sample Blogging Policy

Laurel Papworth’s Collection of Social Media Policies from 40 Enterprises

See these prior related posts:

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

3 Reasons Why Employers Don't Have a Social-Networking Policy

Follow me on Twitter @MollyDiBi

According to a report released today by the FDIC, a shocking 26 percent of U.S. households have little or no access to banking service, and the problem hits poor and minority families the hardest. As a result, these individuals must often pay to have their payroll checks cashed.

Delaware employers should be aware that payroll debit cards may be a good way  to help  "unbanked employees" to avoid check cashing charges.

For many years, efforts to use payroll debit cards were thwarted by Delaware law. Under the Delaware Wage Payment and Collection Act, employers must pay all wages "in lawful money of the United States or checks provided suitable arrangements are made by the employer for cashing such checks for the full amount of the wages due at a bank or other business establishment convenient to the place of employment." The Act further defines a check as being "a draft drawn on a bank and payable on demand." In combination, those provisions appeared to preclude the use of payroll debit cards for wage payment.

Delaware Department of Labor regulations interpreting the DWPCA, however, were amended in 2004 to specifically authorize the use of payroll debit cards. The regulations state that an employer may issue "a payroll debit card which provides the functional equivalent of cash or a check."  It is the employers' responsibility "to effectuate a payroll debit card system which will allow full payment of wages on the employee's regular payday and without cost to the employee."

The U.S. Equal Employment Opportunity Commission (EEOC), announced on that it is now enforcing the Genetic Information Nondiscrimination Act of 2008 (GINA), which was enacted in May 2008 and went into effect on November 21, 2009. The EEOC's summary of GINA says:

Title II of the Genetic Information Nondiscrimination Act of 2008 protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers' acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases or disorders in family members (family medical history); and requests for or receipt of genetic services by applicants, employees, or their family members.

The EEOC issued proposed regulations for the enforcement of GINA for public comment earlier this year. The regulations are now in the review process.

CCH Workday just published a helpful employer alert explaining GINA's basics and an interesting summary of some of the comments submitted to the EEOC that highlight employer concerns about the implications of the law.

The New York Times published an editorial applauding the Act for "removing a significant obstacle to genetic testing, which can help prevent and treat serious illnesses."

Employers should also take note that the EEOC has revised its employee rights poster to include GINA. Employers may print and post the GINA supplement, or print and post the revised version of the poster. Employers can also order the poster from the EEOC Clearinghouse, but the poster is on backorder so there may be a delay in shipment.

Glass-ceiling research shows women continue to be harmed by gender stereotypes.  Managers continue to discriminate against female subordinates because they incorrectly perceive women as having greater conflicts between their family responsibilities and their work responsibilities than men, reports The Academy of Management Journal. Somewhat surprisingly, both male and female managers harbor this misperception.

The study, entitled "Bosses' Perceptions of Family-Work Conflict and Women's Promotability: Glass Ceiling Affects," was conducted by members of the University of Illinois at Chicago's Department of Managerial Studies. Lead author Jenny Hoobler commented that she expected that "[w]hat we're talking about ... is one of the subtle, entrenched forms of discrimination that make up the glass ceiling."

The study cautions women about using company-sponsored programs such as on-site child care, flex time or paid parental leave, which are designed to assist employees with work-life balance. The problem is that managers may view use of such benefits as confirmation of women's greater susceptibility to work-family conflicts, and then view such women as less committed to the company and less promotable than their male counterparts who do not make use of such benefits.

The authors recommend that to reduce the potential that gender stereotyping will affect workplace decisions, companies should educate managers about their own possible biases and should be aware of and guard against allowing "biased perceptions of caregiving roles" to affect promotion decisions.

Thanksgiving may have officially occurred last week but the authors of the Delaware Employment Law Blog have a new reason to continue giving thanks.  In something akin to a holiday-movie miracle, we were voted one of the Top 100 Blawgs (aka legal blogs) by the ABA Journal yesterday.  Winners were selected by the ABA Journal's editors, based on submissions by readers. 

When the opportunity to nominate blogs was announced, lots and lots (and lots) of blog authors campaigned their readers to submit their blogs as nominees. As tempting as that idea may have been, I passed on it because, honestly, we didn't stand a chance.  Or so I thought.  As it turns out, you thought differently. And boy aren't we thankful.

Please be sure to check out the other 99 amazing blogs on the list and, if you're so inclined, you can vote for your favorite blog in each of the several categories, including DELB in the "Geo" category, between now and December 31.

Below are summaries of three recent employment-discrimination cases involving multi-million-dollar awards for the plaintiff-employee. Don’t shoot the messenger.

Marcus v. PQ Corp. $6.2 million

Two scientists were awarded a total of $6.2 million (not including attorney’s fees, motions for which are now pending), by a federal jury in Pennsylvania. The plaintiffs alleged that they were laid off due to their ages, instead of other, non-discriminatory criteria.

The total is so staggering for a few reasons. First, the plaintiffs were awarded approximately $667,000 and $190,000 in back pay. The layoffs occurred in 2005, so the plaintiffs were able to recover for back pay lost as a result of finding other work for less pay or for not finding work at all. These amounts were doubled because the jury found that the discrimination was willful.

The plaintiffs also received front pay damages in the amounts of $670,000 and $375,000, presumptively as compensation for the time they would have worked past the date of the verdict had they not been wrongfully discharged. Add to that amount emotional-distress damages of $1.5 and $2 million each to get to a total award of $6.2 million. (via Law.com)

Susel v. Dix & Eaton $1.03 million

The plaintiff alleged that she was fired at age 59 for complaining about age discrimination. She claimed that she went to the HR manager and reported her suspicions that she was being set up to be terminated because of her age. She filed suit after she was fired five months later. In all, she took 5 counts to an Ohio state-court jury, which ruled in her favor on only the retaliation claim, ordering the defendant to pay $1.03 million.

Blount v. Stroud $3.08 million (1.18 million fees)

The Illinois Appellate Court affirmed a verdict returned in favor of the plaintiff and awarding damages in the amount of $3.08 million, plus an award of attorney’s fees and costs in the amount of $1.18 million. The jury found that the plaintiff had witnessed racial discrimination and sexual harassment of another employee and had agreed to testify on the coworker’s behalf. The plaintiff claimed that she was terminated in retaliation for agreeing to testify.

Follow me on Twitter @MollyDiBi

Bad things can happen when you fail to proofread. For example, I previously wrote about surprisingly severe consequences that resulted from less-than-perfect legal filings. (See 3 Reasons to Proofread that Document One More Time). Little did I know how common these stories actually are. Apparently, the longing desire for better writing is a popular sentiment. Here are a few recent stories demonstrating the trend:

Double-Spacing Is for Suckers

Defense lawyers in the Blackwater case were put on notice that single-spaced documents just won’t cut it. Federal Judge Ricardo Urbina ordered the attorneys, who had filed a memo in single-spaced type, to comply with the court’s typeface rules, which require that submissions be double-spaced in Times Roman or Courier font. Judge Urbina may have been more generous than necessary when he described counsel’s submission as “an apparent attempt to include more information . . . than would otherwise be permitted.” At the risk of being dubbed a cynic, I think Judge Urbina’s conclusion may be unavoidable. What else could explain such a failure to comply with the most basic of formatting rules—line spacing—in court documents? (via the ABA Journal)

The Case of the Harmful Staple

A motion for default judgment was denied due to the “negligent stapling” of the motion papers. In his order denying the plaintiff’s motion, New York Supreme Court Justice Charles J. Markey wrote, “[T]he poor stapling of the papers was so negligent as to inflict, and did inflict repeatedly, physical injury to the court personnel handling them. . . . Such negligence on the part of counsel shows a lack of consideration.” (via Law.com)

An Obvious Absence of Simplicity

In Nazir v. United Airlines, the parties submitted a whopping total of 5,415 pages in support of their positions on a motion for summary judgment. That’s right—more than 5,000 pieces of paper were submitted on a single motion. The motion was filed by the defendant, who sought to have the race-discrimination case dismissed before trial. Although the trial court granted the motion, the decision was overturned by a California appellate court. The decision on appeal makes sense, after all, because the standard for summary judgment—that there be no material fact genuinely in dispute—seems unlikely at best. After all, if there were no material facts at issue, what were they writing about in their novel-length briefs? It was, the court said, "a record the likes of which we have never seen." (via Lowering The Bar)

Follow me on Twitter @MollyDiBi

Employers are struggling to develop effective social-media policies. And for good reason--it can be hard to draft a policy that is intended to address issues that are unfamiliar and that arise from technology that many employers don't quite understand.  Which may explain why some employers have been making news headlines with their Facebook and Twitter policies.

One of the reasons that employers implement (and should implement) social-media policies is to help mitigate the risk of liability.  When given an unrestricted forum in which to "express" oneself, people often write things that they shouldn't.  The anonymity of the Internet makes this risk all the more real because things we would never say to another person in conversation become much easier to "say" online. The fact that our online expression comes in the form of the written word further exacerbates the potential problem because what we write online is as permanent as permanent can be.

This "perfect storm" of potential liability came to fruition with the postings of NFL player, Larry Johnson, who, at the time, played for the K.C. Chiefs.  First, Johnson took on Chiefs Head Coach Haley, tweeting about what he perceived to be Haley's lack of credentials.  If there's one thing we should know by now about social media, it's that tweeting bad things about your boss is generally a bad idea.

But, for Johnson, it got worse.  One of his followers engaged Johnson in a series of tweets, heckling him about his comments. The heckler apparently was effective--getting Johnson so agitated that he tweeted back with a gay slur.  As a result, he was suspended and fined $213,000, the amount he would have been paid had he not been sidelined for his inappropriate conduct. 

Johnson was released from his contract with the Chiefs on November 9, making him one of the first professional athletes to be fired for his Twitter activity.  He was later picked up by the Bengals.

The big-picture lesson here is that employers must consider whether they need a social-media policy.  But the real take-away is this: if you have employees who are in the public eye (for whatever reason), they may need to be subject to stricter or at least more specific rules for their social-media activity.  The larger the audience, the greater the potential harm when an employee missteps and conducts himself in a way that does not reflect the organization's views or culture. 

Hat tip to Rob Radcliff, whose Texas blawg, Smooth Transitions, made my list of 2009 Top 100 employment law blogs.