Delaware Employment Law Blog

"Unfriend," according to the New Oxford American Dictionary, is the word of the year. According to CNN.com:

"Unfriend" beat out a tech-heavy field that included "netbook," "hashtag" and "sexting" to take the annual honor.

"It has both currency and potential longevity," said Christine Lindberg, a language researcher for Oxford's U.S. dictionary program. "In the online social networking context, its meaning is understood, so its adoption as a modern verb form makes this an interesting choice for Word of the Year."

Oxford defines "unfriend," a verb, thusly: "To remove someone as a 'friend' on a social networking site such as Facebook."

If this doesn't solidify the place of social media in modern culture, I don't know what would. It's just one more reason why employers are best advised to stop running and face the social-media-music. 

See also:

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

Adria B.  Martinelli will be speaking about how to accommodate workers who are caregivers and the workplace issues that commonly arise with dementia.  The audio conference is 90 minutes and will cover:

• Helpful ideas for accommodating an affected employee, including EEOC recommendations: reducing hours and responsibilities, having co-workers act as support, and more
• Laws that come into play, and how to meet your obligations under ADA and FMLA
• Sample HR policies that can reduce the burden for your caregiver employees
• What savvy employers are doing to minimize the problem of distracted and absent employees with caregiving responsibilities
• Signs or behavior that could indicate your employee has Alzheimer's or other dementia
• Options for work duties you can legally provide employees with dementia
• And more...

HR Hero is hosting the event and you can learn more or register at the HR Hero website.

Careerbuilder has a new survey about some of the “most memorable requests” made by employees via the office suggestion box.  As you may guess, the requests were a bit, well, odd.  Here are a few samplers:

• Allow people to change clothes in their cubicles
• Put beer in the vending machine
• Replace the employee’s desk with a futon so he could lay down and work
• Institute “bikini Fridays”
• Permit family medical leave for jail time

I’m certain that I’ve heard odder requests but I’ll save that story for another day.

Follow me on Twitter @MollyDiBi

If you're using Twitter to search for talented job candidates, you're not alone. The popular microblog received more than 23 million unique visitors just this September and more and more employers are utilizing it in their talent-acquisition efforts.

I'll be teaching a webinar on December 16 for HR Hero, where I'll focus on how Twitter can improve your organization's recruiting, branding, and engagement strategies, and how to avoid the legal issues associated with using microblogs in the workplace.

The seminar, called Recruiting in 140 Characters: Everything HR Needs to Know About Twitter, is 90 minutes and will be conducted via live webinar.  I'll show participants step-by-step instructions for setting up a Twitter account, so you can begin "tweeting" during this live event! You'll get live interactive guidance, so you can learn:

• How to make a tweet compelling enough to attract the most desirable candidates
• Techniques to get followers who will help spread your message and brand
• How you can stay on the cutting edge in your industry by following the right people
• How to find relevant content using hash tags and search functions
• Twitter manners: the dos and don’ts of tweeting
• How to locate passive job candidates online
• Blogging techniques to build brand recognition the RIGHT way and how to make your organization the employer of choice
• How to use Twitter to keep your all-star employees passionate and enthusiastic about their work
• The legal mistakes often made when using Twitter at work, and how you can avoid them
• Special tips and tricks to make sure your blog postings are relevant and how to make tweeting a breeze

Registration is available at the HR Hero website.  Hope to "see" you on December 16!

And, if you're in the Chicago area and want to learn more about social media for employers, check out the upcoming HR Social Media Summit, on December 2-4.  Dec. 2-4: Social Media & HR Summit (Chicago, IL)

Until then, you can follow me on Twitter at @MollyDiBi . . . .

Ah, Facebook in the courtroom. It's a relationship that appears to have a long and tumultuous future ahead.

In Wilgus v. F/V Sirius, Inc., (decision below), the jury returned a verdict for the defense and against the plaintiffs, who alleged personal-injury and wrongful-death claims.  Four days after the verdict was returned, the plaintiff's lawyer received an e-mail from one of the jurors, which stated:

[D]id you know your plaintiff[s] advocated the use of mushroom and week smoking, and binge drinking all over the internet? . . . It['s] really sad what happened but with all the work going into this don['t] you think you should have address[ed] this issue and known such things so they could clean up their acts before court? I'm just trying to help.[]  [If you want more info and insight [I] will help you.

The lawyer filed a notice of juror contact and filed a Motion to Conduct Post-Trial Voir Dire of the juror. The judge had explicitly told the jury "more than once" not to do Internet research about the case or the parties but the e-mail implied that the author may have done just that. 

During the judge's investigation, the judge determined that a post-verdict response to a juror questionnaire stated that one of the plaintiffs "was a party drug [illegible] animal" and that the handwriting on the response was similar to the handwriting on the pre-jury selection survey that the e-mailing juror had completed.

The jury foreperson did not recall any discussion of material from the Internet during deliberations. The foreperson did, however, remember that someone on the jury had wondered aloud whether the plaintiffs had Facebook pages but said that "nothing else came of that."  The judge asked the juror what information the juror had found on the Internet, to which he answered:

After the jury duty was over and the case was decided, I did the research that you said we couldn't do during the case.

He found the information about two of the plaintiffs on Facebook.  He gained access to those plaintiffs' Facebook pages by sending them friend requests, which the plaintiffs apparently accepted.  On their Facebook pages, the juror said that he found pictures that provoked the allegations in his e-mail. 

The juror insisted that he found the pictures "a day or two after . . . it was all over" and that he had not otherwise contacted or communicated with the plaintiffs. He denied that the information he'd learned online had ever been discussed during deliberations.

The court determined that there was no evidence to conclude that the juror discovered the Facebook pictures (or any other information from the Internet) during the trial or deliberations, and denied the plaintiffs' motion for a new trial, finding no evidence that juror misconduct actually occurred.

Wilgus v. FV Sirius, Inc. (D. Me. 2009) Order Denying Motion for New Trial Due to Juror Misconduct

For more on the relationship of social media and the courts, see:

Use Facebook, Get Arrested. Use Twitter, Get Fired.

In Case It's Not Obvious: Don't Text Witnesses During Trial

Michigan's Supreme Court Bans Jury Members from Mid-Trial Twitter Use

More Stories from the Facebook Frontier

Ethical Implications of "Friend-ing" a Witness on Facebook

Discoverability of Facebook Profiles

Searching MySpace and Facebook for Job Applicants and . . . Judges?

Employers Use MySpace for Hiring and, Now, Defending Discrimination Claims

Our seminar today on social media for employers was great. Thanks to everyone who attended (live and online with apologies for the short interruption in audio to those online). As promised, the handout is posted below for downloading.  As is my standard, the handout is not a copy of my slides but, instead, is intended to be a reference for future use and deals with some to the resources and statistics that I touched on but did not go into great detail on. 

There are, though, some noteworthy statistics from the presentation that stood out, so I'll post them later today in a separate post.  Again, thanks for attending and I'm looking forward to hearing about all of the great ways that everyone puts social media to work for their organizations, so keep me posted!

Social Media for Employers: Presentation Handout

A reported 4.1 billion text messages are sent each day in the U.S., according to CITA, the International Association for the Wireless Telecommunications Industry. The popularity of text messaging or "texting" has seen explosive growth in the past few years.  But are employers really in touch with this tool and its potential legal risks? 

One employer has.  Alachua County, Florida, has banned County employees from sending text messages for County business.  The prohibition was announced after County official  became concerned that text messages constituted public records that are subject to a FOIA-type request.  FOIA laws require public entities to produce official records when a proper request is made. 

Textual harassment has gotten quite a bit of press lately, and for good reason.  According to the National Conference of State Legislatures, 46 states, including Delaware, currently have an electronic harassment or "cyberstalking" law. 

The Delaware law provides that a person is guilty of criminal harassment when, with the intent to harass, annoy, or alarm another, the person . . . communicates by telephone. . . or any other form of written or electronic communication in a manner which the person knows is likely to cause annoyance or alarm. 

When an employer learns of a possible hostile environment, it must comply with fairly strict rules relating to how and how quickly to respond.  Textual harassment adds another layer to the process because employers must determine whether any electronic evidence of harassment (or evidence that disproves harassment) exists on computers, laptops, and, now, cell phones.

Employer should consider whether their employees are using work (or personal) phones to send text messages about work during working time.  If so, you are obligated to take active steps to preserve these messages once you have reason to believe there may be potential litigation. If you're not in a position to do that, you may want to consider implementing a "no-texting" rule for all business-related correspondence.

I had the privilege of speaking on recent ADA and FMLA developments at breakfast seminar this morning. The event was presented by the Delaware Employer Council and held at Delaware Park’s beautiful facilities. Over 50 HR professionals attended.

This morning's topic included the regulations proposed last month by the EEOC as a result of the Americans with Disabilities Amendment Act of 2008 (“ADAA”). I also talked about last weeks’ expansion of FMLA military leave by the National Defense Authorization Act of 2010 (“NDAA”).

Highlights of the presentation included:

· The vast expansion of the scope the ADA by lowering the standard for establishing whether an individual has a disability.

· The prohibition against considering the effect of medication or other mitigating measures in determining whether a person is disabled.

· The six rules of construction in determining whether a person is disabled under the ADA

· The ability of families of injured veterans to take FMLA “military caregiver” leave under the NDAA.

· The ability of families of active members of the Armed Forces to take “qualifying exigency” leave under the NDAA.

As promised, my materials are linked below.  ADA FMLA Update

Maribeth L. Minella and Molly DiBianca will present an audio conference on non-compete agreements for Human Resource professionals on Tuesday, Nov. 17. The conference begins at 11 a.m. Eastern and will last for 90 minutes.  HR Hero is hosting the event and registration can be found on the HR Hero website.  Here's the agenda:

• How to draft and implement legally solid noncompete, nonsolicitation, nondisclosure, and confidentiality agreements
• The the typical restrictions built in noncompete agreements
• How widely-varied state laws complicate the issue
• When and how to use nondisclosure and confidentiality agreements and policy statements
• Tactics you can implement NOW to prevent corporate raiding by former employees
• How to handle applicants and new hires with pre-existing noncompete agreements. Are such employees off limits? How do employers know if an applicant or new hire comes with restrictions?
• The latest court precedents relating to enforcement of noncompete agreements. How has the climate changed in light of the economic downturn?
• The dangers awaiting unwary employers talking to potential employees who are under noncompete agreements
• The employer’s options if an employee is under restrictions placed by a former employer

Non-compete agreements have become increasingly popular. If your organization is using them or is considering using them, this is an excellent way to ensure that you've got the key points covered for maximum enforceability.  We hope you can join us!

BYU researchers claim that improved morality can be linked to Windex. No kidding. Kate Liljenquist and her team tested individuals' reactions when introduced to a room that smells like Windex, the popular blue window cleaner.

According to the results, participants in the room that smelled like Windex were significantly more interested in volunteering than those in the room without Windex.  

In another scenario, 22% of participants in the Windex room said they would like to donate money, compared to only 65 in the comparison room.

Based on this research, does it follow that employers seeking to guard against ethical improprieties should encourage staff to clean windows?  Likely not.

If you’re an associate at the law firm Quinn Emanuel, the answer is “very, very often.”  According to legal tabloid, Above the Law, clients of the firm expect their attorneys to be on call 24/7.  Well, according to a memo written by a partner and circulated to associates, 24/7 may be “something of an exaggeration—but not much.”

In fact, the memo tells associates, they should check their e-mail while they’re in the office, as well as during off-duty time.  Specifically, unless there is a “good reason not to,” which the memo defines as “when you are asleep, in court, or in a tunnel,” associates are expected to check their e-mails once an hour. 

How would your employees respond to a directive like this? How would such an instruction affect morale, not too mention productivity.  This means that, when out to dinner, associates would have to check their Blackberries twice, maybe more, during the meal.  How romantic.

I host a bi-monthly “lunch and learn” for the staff in my department; attendance is voluntary.  In advance of the meeting, attendees suggest and vote on the session’s topic.  Topics range from software-specific, like Adobe Acrobat or PowerPoint, to soft skills, such as time management, and just about anything else they find relevant and productive. At the most recent session, we had a mixed bag of topics but ended with a quick review of some grammar and usage “troubleshooting tips.”

This particular topic was at my suggestion and was urged not by anything I’d been seeing in their writing but more by the stories circulating the legal blogs over the last few weeks. Let me say that these stories are almost hard to believe, not because I have a hard time imagining legal writing that is just plain bad—trust me, that’s the easy part.  But I do have a hard time imagining the court that actually responds in the ways described in these stories. 

Part of me loves the idea of a court that takes legal citations very seriously and part of me cringes.  I mean, everyone makes mistakes.  I am hopeful that I don’t make the “mistakes” that the lawyers in the stories below made.  But everybody has bad days, right?

In any event, here are a few stories that scare me enough to review Garner’s The Redbook: A Manual of Legal Style, by Bryan A. Garner one more time before I file that brief.

#1:  Bad Writing Can Cause Public Humiliation

Although public humiliation may seem like the least terrifying of the three reasons listed here, it also seems like the worst.  It’s the most likely to happen; after all, what are the chances that your writing is going to get you tossed into jail?  It’s a bit difficult to imagine (thankfully).

But having a judge be so irritated by grammatical and typographical errors that he red pens the document and publishes it on the official court docket for all the world to see is much closer to reality, making it all the more horrifying.  A federal judge in Florida, apparently, was just that irritated over errors in an attorney’s brief.  The errors ranged from “excess spacing” to typos to incorrect capitalization to word choice.  Here’s one example, cited by the ABA Journal: “[the plaintiff] had attended on filing” this action, instead of saying the plaintiff had “intended” to file an action

#2:  Bad Writing Can Lead to Monetary Fine

The ABA Journal brings us a great story about a Wisconsin lawyer who was fined $100 for submitting a brief that contained an incorrect citation, which led the court on a wild goose chase to hunt down the case that should have been cited.  I’ll confess, this strikes me as nothing more than justice at work.  Erroneous case citations are enough to drive even the most even-tempered to the edge.

#3:  Bad Writing Can Result in Jail Time

Carl Smith, an attorney is Missouri was charged with criminal contempt and sentenced to 120 days in jail for language used in court filings.  In his papers, Smith said that certain events indicated a “personal interest, bias, and purported criminal conduct” by and between the judge, the prosecutor, and other court officials. The ACLU is one of several organizations that came to Smith’s defense, claiming that the punishment of an attorney based on his legal filings would have a chilling effect on free speech in the justice system. 

If these stories motivate you to polish up your writing skills, you can get a great start by checking out our post on the 10 Funniest Writing Blogs, 20 Online Dictionaries, and Top 30 Blogs on Writing.

The Top 100 Employment Law Blogs is back and updated for 2009. Ok, so it’s the Top 110 this year. There were just too many great blogs that 100 wouldn’t do the trick. The list, of course, is totally subjective and based only on my personal opinion. One criteria that I did use this year, though, was a most-recent-post criteria. Blogs that hadn’t posted more recently than September weren’t eligible for the list. If you write a blog that addresses with employment-law issues and I’ve missed it, please let us know by posting a comment.

[Updated Nov. 13] Alterted by their comments and duly impressed with their sites, I'm going to add two more to the list--really, what difference will 2 more make, we've already got 110.

Social Networking Law Blog

Overtime Advisor

Last week, I posted twice on the recent controversy surrounding service animals. (See Table for Two, Please--Me and My Seeing-Eye Horse; Quit Monkeying Around: Court Rules Monkey Is Not a Service Animal).    Apparently, I'm not the only one who finds the issue interesting. Over the weekend, the New York Times' Week In Review feature included a piece on the same topic.  In Good Dog, Smart Dog, Sarah Kershaw writes about service animals that provide "psychiatric service." Certainly, the animals discussed in Kershaw's article appear to provide far more meaningful services than those discussed in some of the news pieces I cited last week.  

Although it is not clear how these animals are able to do it, they are said to have certain cognitive powers that enable them to detect the onset of conditions, such as seizures, minutes before they begin. The abilities of these animals is tremendous, to say the least.  It appears that they have the ability to save the lives of their owners in remarkably astonishing ways.  Take, as an example, the labradoodle who has been trained to:

anticipate seizures, panic attacks and plunging blood sugar and will alert his owner to these things by staring intently at her until she does something about the problem. He will drop a toy in her lap to snap her out of a dissociative state. If she has a seizure, he will position himself so that his body is under her head to cushion a fall.

The piece is timely and fascinating.  It is well written and insightful and provides an entirely unexpected perspective of an already complex issue.

If you're using Twitter, Facebook, or LinkedIn® to search for talented job candidates, you're not alone. According to Workforce Management, companies like digital advertising agency Organic are incorporating social media as part of their recruiting strategies. And with nearly 7.1 million people now using Twitter (Nielsen NetView), smart employers are utilizing blogs in their talent acquisition efforts. 

But feeding the talent pipeline online can result in costly litigation if a job applicant claims you've invaded her privacy.

Learn how to reap the benefits of online recruiting while minimizing legal risks by participating in the interactive audio conference, 2009 Recruiting: Feed Your Talent Pipeline Using Twitter, Facebook, and Other Social Media. In just 90 minutes, you'll get straight answers to such questions as:

• Is Twitter the best place to find job applicants who "live" online? What's the best way to use Twitter for effective recruiting?
• How can I use corporate branding on the Internet to attract potential job candidates?
• How can I use Twitter, Facebook, or LinkedIn® to get our branding messages out more quickly?
• What's the best way to use Twitter to build a "following" among active and passive job candidates?
• What are the potential legal issues that could arise when using Twitter? How can I avoid posting "tweets" that could be construed as harassing or discriminatory?
• What type of information should I avoid on social networking sites when searching for talent?
• How do I handle information found online that I would NEVER ask about in an interview?
• How can I use a wiki without incurring legal trouble, such as releasing sensitive company and/or employee information?
• What are the legal risks if one of my employees posts content on a company-run blog or social networking site?
• What action should I take if employees post our company logo on their private social networking sites for blogs?
• How can my organization protect itself from potential litigation surrounding employee usage of social media tools?
• How far can I go when keeping tabs on an employee's blogs, instant messages, and social networking sites?

I'll be presenting this audio conference on January 12, 2009. To register, visit the H.R. Hero website.