Emerging Technology and Risk Management for Educators

Posted by Maribeth L. MinellaOn April 6, 2010In: Public Sector

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Barry Willoughby and I attended Utica National Insurance Group's 2010 School Risk Management Seminar.  During the seminar, the speakers were kind enough to allow us to generally comment on the topic of what school faculty and staff must know about emerging technology to keep staff and students safe.  The conversation was dynamic and attendees asked some timely and tough questions about things like how to handle staff and student use of social networking sites like Facebook, Twitter, and MySpace to how to handle "sexting" at work. 

We will be covering some of these same topics at our 2010 Employment Law seminar.  To give you an idea of what the topic of conversation will be at our Employment Law Seminar, my materials from the School Risk Management Seminar are attached below.  I look forward to seeing you at this year's seminar in the afternoon breakout session, "Special Rules for Schools," which I will be presenting with Michael P. Stafford.


Breach of Noncompetition Agreement Via LinkedIn

Posted by Molly DiBiancaOn April 3, 2010In: Social Media in the Workplace

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LinkedIn, a social networking site targeted towards professionals, can be used as an online Rolodex—a place to store one’s contacts and a vehicle to maintain professional relationships.  As with all social networking sites, LinkedIn and its potential uses should be on the radar of employers.  One of the potential issues that has been discussed is the ability to make a “recommendation” on LinkedIn, whereby one user can make positive comments about another.  Some critics have raised concerns about the problems that could arise should a former employee file suit for wrongful termination and use a positive recommendation left by his supervisor as evidence to support his claim. 

Another, equally serious concern is the ability of employees to upload client and customer lists as LinkedIn contacts and the inherent loss of control over those contacts resulting to the employer. An offshoot of this problem is the subject of a new lawsuit, which demonstrates yet another way that social media is affecting employers.

Portfolio.com reports about a noncompetition lawsuit filed by TEKSystems, an IT-services and staffing company.  In the suit, TEKSystems names three of its former employees and one of their new employers as defendants.  The suit alleges that the employees breached their noncompete and nonsolicitation obligations by contacting at least 20 of TEKSystem’s contract employees.

So far, the allegations are nothing out of the ordinary in the world of noncompete and nonsolicit lawsuits.  Employee promises not to steal customers or other employees when she leaves.  Employee leaves.  Employee tries to steal customers or other employees.  Employer sues. 

But then it gets interesting.  TEKSystems alleges that it can prove the breach with evidence from the defendants’ LinkedIn accounts.  TEKSystems claims that one of the defendants had LinkedIn connections with 16 of its contract employees and sent messages to those connections inviting them to visit her in her new workplace. 

This is the first lawsuit that I’ve heard of that is based in part on evidence from an employee’s LinkedIn account.  It’s a real-life example of the potential for harm to employers that can result from employees’ use of social media and emphasizes the need for employers to take a proactive approach with social media and the workplace.

White House Focuses on Workplace Flexibility

Posted by Adria B. MartinelliOn April 2, 2010In: Alternative Work Schedules, Flextime, Women, Wellness, & Work-Life Balance

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Workplace flexibility has been a hot topic, a highlight of which was President Obama's White House Forum on Workplace Flexibility, televised earlier this week. The forum was designed as an opportunity for labor leaders, CEOs, small business owners, and policy experts to share their ideas and strategies for making the workplace more flexible for workers and their families. During the conference, the President compared flexible work schedules to the early stages of email: some companies have it, some don’t, but eventually, all companies will. Get ready employers – if you haven’t gotten aboard yet, the train may run you over!

Juggle work and home workplace flexibility

With healthcare out of the way, the administration is freed up to focus on other priorities. During the campaign, then-candidate Obama included work-life issues as an important part of his agenda, committing to expand FMLA, to prevent caregiver discrimination, and to offer incentives to employers to expand flexible work arrangements.  The forum indicates  that work-life issues remain a focus of this administration. Although the Obamas now have a personal chef, chauffeurs, and other assistance to make their “balance” a little easier, I am sure that Michelle’s experience managing a demanding career and raising her two girls has helped to ensure this issue remains on the President’s radar screen.

The discussion has taken different varied focuses over the years, but the bottom line is this: for many reasons, in order to retain employees in the modern workforce, employers have to reinvent the old model of an ideal worker. Flexible work schedules are over and over again focused on as the reasonable way to accommodate the needs of both employer and employee. The impetus for employers to engage in this discussion has  evolved a bit over the years.

First, employers were interested in the topic primarily due to the economics of investment in skilled workforce (particularly professional women), who often left the job because unable to balance their work and family responsibilities. Then Gen Y came along, with both males and females placing a greater value on “down” time, whether with family or pursuing other activities. Gen Y consistently ranks workplace flexibility among the most desirable employment benefits. With the economic downturn, the discussion turned to how flexible schedules could immediately help the bottom line (4-day workweeks, voluntary reduction in hours for reduction in pay, etc.).

Law and politics have not shied away from the discussion: both Republican and Democratic administrations have made important advancements to the cause of work-life balance. In 2007, the EEOC under the Bush administration issued it Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiver Responsibilities. In 2009, Obama’s administration issued  Employer Best Practices for Workers with Caregiver Responsibilities, which focused primarily on flexible work arrangements. The White House Forum has work-life balance advocates everywhere eager to see what will come next!


See these related posts for more about work-life balance:

Resources for Work-Life Balance and Flexible Work Arrangements

Maybe It’s Not All Gloom and Doom for Work-Life Balance

Looking a Flexible-Schedule Gift Horse in the Mouth

Caregiver Discrimination: The "Sandwiched Generation"

5 Steps Toward a More Flexible Workplace

April Fool's Day for Employment Lawyers

Posted by Molly DiBiancaOn April 1, 2010In: Just for Fun

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Courtesy of Someecards, home of some of the most sarcastic, yet endearing, online greeting cards around:

Happy April Fools Day Employment Law Style

Happy April Fool's Day!

Health FSA Uniform Coverage Rule Precludes Recoupment

Posted by E-LawOn April 1, 2010In: Benefits

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In 1989, when the Internal Revenue Service wrote the first proposed regulations for health flexible spending accounts (“FSAs”), it came up with the requirement that health FSAs must exhibit the “risk-shifting and risk-distribution characteristics of insurance”. This concept has been translated into of the “uniform coverage” rule.

The uniform-coverage rule requires that the maximum amount of an employee’s elective contributions to a health FSA must be available from the first day of the plan year to reimburse the employee’s qualified medical expenses. This means that if an employee elects to contribute to the health FSA $100 per month for the year, the employee must be reimbursed for qualified medical expenses up to the full $1,200 from the first day of the year, regardless of the amount actually contributed to the plan at the time that reimbursement is sought.

Under the uniform-coverage rule, an employee can potentially terminate employment having been reimbursed under the health FSA for more than she contributed up to the time of her termination. This rule has caused most employers to limit the amounts that employees can contribute to a health FSA, even though, prior to the effective date of provisions in the recent healthcare reform legislation ($2,500 annual cap after 2012), there is no statutory limit on contributions to health FSAs.

On March 26, 2010, the IRS released Chief Counsel Advice No. 201012060 (pdf), in which the Chief Counsel concluded that, if an employee's reimbursements from a health FSA exceed her contributions to the health FSA at the time of the termination of her employment, the employer cannot recoup the difference from the employee. Neither the previous proposed regulations nor the current proposed regulations regarding health FSAs (Prop. Treas. Reg. § 1.125-5(d)(1) (pdf)) stated explicitly that such recoupment is not permitted. This has always been known by practitioners to be the rule, much to the chagrin of our clients. Any attempt at recoupment of this sort will remove the risk shifting/risk distribution and result in the loss of favorable tax status for the benefits paid under the health FSA.



*This post was written by Timothy J. Snyder, Esq.  Tim is the Chair of Young Conaway’s Tax, Trusts and Estates, and Employee Benefits Sections.  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.

Sure, You Can Use Facebook at Work . . . We’ll Just Monitor What You Post

Posted by Molly DiBiancaOn March 31, 2010In: Social Media in the Workplace

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NYT technology blog, Bits, reports on new technology being marketed to employers who want to keep tabs on their employees’ social-networking activities during working time. Joshua Brustein reports:

The software, called Social Sentry, will automatically monitor Facebook and Twitter accounts for $2 to $8 for each employee, depending on the size of the company and the level of activity being monitored.

I can’t say that I find this to be very surprising. Lots of employees seem to be offended at the idea that employers may block access to social-networking sites.  But the reality is that employers are responsible for what employees do while on company time.  And, in certain circumstances, employers also can be held liable for off-duty conduct of employees.  An employee who posts racially hostile remarks on his Facebook page can cause the organization to lose a case alleging a racially hostile work environment.  So it makes good business sense for employers to either block access to these sites altogether and/or monitor usage to prevent liability and attempt to protect productivity. 

The article also reports that, according to the latest survey by the American Management Association and the ePolicy Institute, more than 60 percent of the companies that responded have a social-media policy in place to help guard against these risks.  It seems like a logical next step to engage in some level of monitoring to ensure that employees comply with that policy.

FLSA Now Requires Breastfeeding Breaks and a Place to Take Them

Posted by Molly DiBiancaOn March 30, 2010In: Benefits, Fair Labor Standards Act (FLSA), Legislative Update

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The Patient Protection and Affordable Care Act signed last week by President Obama will affect employers in numerous ways, many of which have not yet been explored in detail, owing to the newness of the law.  One provision of the law that is certain to have a very real impact on employers across the country but that we have heard virtually nothing about is Section 4207.  Section 4207, titled, Reasonable Break Time for Nursing Mothers amends the Fair Labor Standards Act (“FLSA”).  Because it is born to the FLSA, its provisions apply to almost all employers—every employer engaged in interstate commerce of at least $500,000 per year, hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies. 

So, what does the new law require?  Quite a bit. The Act adds the following to Section 7 of the FLSA as a new subsection (r):

An employer shall provide:

(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth; and
(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

There are some exceptions to these requirements.

First, employers are not required to pay employees who take a breastfeeding break—unless, of course, there is a state law that says otherwise.  Second, an employer with less than 50 employees is exempt from the requirements if the requirements would “impose an undue hardship” by causing it “significant difficulty or expense” as compared to the employer’s size, resources, and the structure of its business. 

Workplace Bullies Are Just Big Babies

Posted by Molly DiBiancaOn March 29, 2010In: Jerks at Work

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In a post titled, Create a Bully-Free Workplace, Nathanael Fast writes about the findings of a study he and Serena Chen conducted on workplace bullying. He reports some interesting findings from the study.  For example, he links bullying to significant costs to organizations.  Specifically, he says that bullying causes reduced creativity, low morale, and increased turnover, “all factors that weigh heavily on the bottom line.”

But what I found most interesting were his conclusions on the reasons for bullying—why bullies act like such, well, bullies. He concludes that the “simultaneous pairing of power with feelings of inadequacy” is what led bosses to become bullies.

In our studies, the power holders who felt personally incompetent became aggressive, not because they were power hungry or had domineering personalities but because they were trying to overcome ego threat. Put simply, bullying is a cheap way to nurse a wounded ego.

In other words, big babies who don’t like themselves take it out on others. 

Retaliation and the FLSA: U.S. Supreme Court Grants Cert

Posted by Molly DiBiancaOn March 25, 2010In: Fair Labor Standards Act (FLSA), Retaliation, U.S. Supreme Court Decisions

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Wage-and-hour lawsuits filed under the Fair Labor Standards Act (FLSA), are the hottest thing going for plaintiffs’ lawyers. And a worst-case scenario for an employer named as a defendant. FLSA cases can be very difficult to defend; the law imposes what is almost strict liability under most circumstances. So, when a court issues a decision in favor of an employer, it is worthy of notice. And when the U.S. Supreme Court grants certiorari of such a decision, it’s definitely worthy of notice. U.S.S.C. Building

In Kasten v. Saint-Gobain Performance Plastics Corp., a Wisconsin factory worker filed suit alleging that he was unlawfully terminated in retaliation of his FLSA-protected activity (i.e., an FLSA-retaliation claim). The protected activity, he alleged, was his oral complaint about the placement of time clocks. Specifically, he alleged that he complained that employees were not being properly compensated for “donning and doffing time” because of the location of the time clocks.

The employer argued that the oral complaint was not sufficient—that only written complaints were protected by the FLSA. The trial court disagreed, finding that oral complaints were protected but the Seventh Circuit reversed and held that only a written complaint could trigger the protections of the FLSA. (Kasten v. Saint-Gobain Perform. Plastics Corp., No. 08-2820 (7th Cir. Oct. 15, 2009)) (pdf)

The law prohibits employers from retaliating against an employee “who has filed any complaint” against the employer. The Seventh Circuit concluded that an oral complaint cannot be “filed.” The conclusion seems perfectly logical, based on the plain language of the statute.

But, on the other hand, other employment laws do extend retaliation protection to oral complaints. For example, under Title VII, an employee is protected from unlawful retaliation for making an oral complaint about discrimination or harassment in the workplace.

The Supreme Court’s decision could redirect the course of FLSA litigation, either expanding the types of suits commonly brought to include retaliation claims—or by preventing retaliation claims from becoming the next-big-thing in employment-law litigation.

Scott Holt, Adria Martinelli, and I will be sure to cover this development in our panel discussion, Wage and Hour Update, at the Annual Employment Law Seminar on April 28, 2010. We hope to see you there!

More Men Filing Sexual Harassment Claims

Posted by Molly DiBiancaOn March 25, 2010In: Harassment, Sexual

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WSJ Online reports on an increase in the number of sexual-harassment complaints filed by men.

I can’t say that I’m surprised, especially in light of the parallel increase in the number of males who have been laid off or terminated for economic reasons. The unavoidable reality is that individuals are more likely to file a claim or a lawsuit when they’re out of work and, especially, when work is hard to find. Since September 2008, twice as many men have lost their jobs as compared to women. Which could explain the 12% increase in harassment claims brought by men since 2006.73971625

The claims brought by males are somewhat different than those brought by females, though. According to WSJ’s Dana Mattioli, claims brought by men often allege harassment in the form of “horseplay” or “rough-housing” in the workplace. Apparently, it’s no more fun to get beat up in the workplace than it was in the high-school locker room. Go figure.

Male-on-male harassment can look very much like bullying and can involve verbal and physical abuse. In November 2009, the Cheesecake Factory settled a sexual harassment suit filed by six male employees, who alleged that they’d been groped and otherwise subjected to physical attacks by male coworkers. The settlement came at a heft cost of $345,000.

To prevent these suits, employers should take the following steps:

1. Have a valid and effective anti-harassment policy;

2. Train employees on the prevention of harassment and be sure to include examples other than the traditional male-boss-harasses-female-secretary scenario; and

3. Do not tolerate workplace harassment by dismissing it as a “personality conflict” or justifying it by saying that “boys will be boys.”

Terri Cheek and Lauren Hudecki will be speaking on the issue of male-on-male harassment, as well as other gender-related workplace issues at our Annual Employment Law Seminar on April 28, 2010.

See these related posts:

Employee Handbooks: Anti-Harassment Tip Sheet

3d Circuit: Who Is a “Supervisor” for Purpose of Imputing Harassment Liability

The Death of a Sexual Harassment Policy

Apr. 28: Annual Employment Law Seminar

Posted by Molly DiBiancaOn March 25, 2010In: Seminars, Past

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Well, it's almost time for our annual employment-law seminar! We had a fantastic turnout last year with great speakers and topics and this year's schedule is certain to be just as exciting.  The registration brochure is posted below with all of the details--just be sure to sign up soon, as seats are limited.

We hope to see you then!


Registration is also available at the (new!) Young Conway website.

May 4: GINA Audio Conference

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

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Who:  Adria B. Martinelli

What:  Employee Genetic Discrimination: New Legal Pitfalls from GINA

Where:  Your office via audio conference

When:  Tuesday, May 4, 2010  11 a.m. - 12:30 p.m. Eastern

Cost: $247

Registration:  HR Hero website

Learning Objectives:

  • What constitutes "genetic information" and the specific rules regarding confidentiality
  • How GINA impacts hiring, promotion, and termination practices
  • The types of claims employers can expect from this new legislation
  • How GINA comes into play with the ADA, HIPAA, and COBRA
  • How you should handle information self-disclosed by employees, and how to prevent obtaining too much information
  • When GINA and social media collide: How information posted on an employee’s or applicant’s Facebook page could put your organization at risk
  • How the legislation's broad language extends to an employee’s "family members" and could add teeth to a caregiver responsibility claim
  • How to avoid GINA-based caregiver claims and how to accommodate the needs of the caregiver workforce while minimizing legal risks

May 5-7: Corporate Communications Conference

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

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Who:  Molly DiBianca

What:   Speaking on social media at Ragan Communication, Inc.'s Corporate Communications Conference

Where:  Hosted by General Motors at Marriott Detroit Renaissance Center

When:  May 5-7, 2010.  Molly will be presenting on May 6

Cost:  Members $945  Non-members $1195

Registration:  Ragan.com

Overview:  The Legal Limits of Monitoring Employees' Tweets, Posts, and Other Social Media Activities

As social media become the communication tools of choice, employees' online activities become an increasing source of potential liability for employers. The need to minimize legal risk has led many employers to monitor the Internet for dangerous, defamatory or downright rude postings by their employees. The law recognizes that the Internet is a public forum, but this freedom to browse is not without limits.

  • Use the best monitoring techniques from the successes (and blunders) of employers who have required employees to disclose social media habits
  • Avoid monitoring techniques that will most likely land you in court
  • Watch for red flags when monitoring employee Twitter, blogging and Facebook activities
  • Communicate your monitoring policy to employees to generate the least amount of backlash

May 7: Ethical Issues Relating to Social Media, the Courts, and the Bar

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

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Who:  Molly DiBianca as a panelist.

What:  CLE session presented by the E-Discovery & Technology Law Section of the Delaware State Bar Association on the ethical issues that arise in the context of social media.  Approved for 3.0 hours CLE credit in Enhanced Ethics.

When:  Friday, May 7, 2010 • 9:00 a.m. - 12:15 p.m.


Live in New Castle County at Delaware State Bar Association
301 N. Market St., Wilmington, DE

Live in Kent County via Simultaneous Broadcast at 
Community Legal Aid Society, Inc., 840 Walker Road, Dover, DE

Live in Sussex County via streaming video at Tunnell & Raysor
30 E. Pine St., Georgetown, DE (Parking lot in back, use back entrance)

Program Description:

This workshop will focus on new technology issues affecting the Courts and the Bar: social media and email. From Chambers to law offices to deliberation rooms, we are all affected. The Rules of Engagement are changing daily. What do the Judges need to know to instruct jurors regarding use of social media during deliberations? Are model jury instructions needed? What are the ethical lines for judges and lawyers regarding their own use of social media? What are the ethical and liability issues regarding the use of email. Is there a need for guidelines?

Registration:  (PDF)

3d Cir. Upholds Discipline of Student Based on Out-Of-School Conduct

Posted by Molly DiBiancaOn March 24, 2010In: Public Sector

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J.S. v. Blue Mountain School District is a First Amendment claim in the school-law context. The case was filed by J.S., a student at a middle school in Pennsylvania’s Blue Mountain School District. The student claimed that she had been suspended for 10 days in violation of her right to free speech. The suspension was in response to a fake MySpace profile the student had created.

The fake profile purported to be her school’s principal. It contained his picture, which she obtained from the school’s website. It did not identify him by name but did identify him as a middle-school principal.

The profile was written in the first-person so the comments on the page would be attributed to the person pictured (i.e., the unknowing principal). The content of the profile contained profanity to make most adults blush in the presence of mixed company, was sexually graphic, and even indicated that the principal was a pedophile.

The student initially left the page as public, but later changed the settings to private. The student invited others to view the page, though, and those students invited yet more students. The principal learned about the profile from one of the students. After viewing the site, he met with the appropriate members of the district and then suspended the two students responsible. One student (through her parents) then sued.

The district court found that the suspension had not violated the student’s First Amendment rights under Tinker because the school “could reasonably have forecasted a substantial disruption of or material interference with the school.” The Third Circuit affirmed the decision and agreed with the trial court’s analysis.

The student also argued that the district violated a Pennsylvania statute, which limits the conditions under which a school may impose discipline. She claimed that the statute prohibited the school from disciplining a student based on conduct that occurred off of school property and time. The district court rejected that argument because: (1) the student was enrolled in the district when she created the profile; and (2) the principal punished the student “to prevent interference with the educational process.”

It is a powerful decision for the education-law context but also demonstrates the courts’ willingness to discipline students for conduct outside the school walls. This is a logical progression, especially considering cases upholding the discipline of teachers for their off-duty conduct. It seems like a natural progression as the line between home and work (or school) continues to blur.