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.

Where:

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.

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:

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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)

Details:
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.