Many employers have begun to use online social networking sites, like Facebook and Twitter, for a number of purposes, from recruiting to marketing and sales, to name promotion and branding efforts. Those organizations that have not yet made the steps to go online but are considering it seem to want guidance that is more concrete and definite. The newness of social media, however, makes this difficult.
During the past year, I’ve written a lot, talked a lot, and counseled a lot of employers about social media. I’ve also made the leap into the Twitterverse and become a believer in the potential that Twitter has to offer. Looking back at this experience, I think there are three principles that apply to social media. These three principles can serve as a guide for employers who are considering social media as a business tool but apply equally well to those of us who currently are online to serve as a sort of litmus test. If your online activities serve these three purposes, they’re probably going to fall in the beneficial—as opposed to risky—category.
They would serve an equivalent goal if incorporated into social networking policies, giving employees a good sense of the reasons behind online engagement and providing a sense of purpose for online activity.
The primary reason for social networking is to share. Users share knowledge and information on every topic imaginable. And one of the reasons that social media has become so popular so quickly is its ability to connect individuals in a more direct and immediate way than previously possible. When you’re thinking about potential content, ask yourself whether the information you’re about to share contributes something to the online community.
In any good community, participants understand that the dialogue must go both ways. No one likes someone who talks only about himself. You must listen, as well as talk. This means that you want to answer questions and comment on relevant topics. A successful social media experience is interactive, so avoid trying to always be the star of the show.
In light of the first two themes, this third theme should be self-evident. You’re going to be contributing to the online community with your conversation. Be honest and transparent when engaging in this conversation. If you promote or even discuss your organization, its products, or services, always disclose the affiliation. Don’t “pretend” to be an average-Joe consumer if you actually work for the company. Failure to disclose the true nature of your relationship can cause you to lose all credibility and result in more harm to your organization than the benefits you intended.
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For the first quarter of 2009, the Employee Free Choice Act (EFCA), was front page news, and the subject of scores of seminars, webinars and spirited discussions. Since then, it has virtually disappeared from view. Aside from a few rumors about possible Senatorial compromises, EFCA became a nonevent during the balance of 2009. As we move into 2010, an election year, will we see an effort to revive and enact EFCA in some form? I’m betting we will.
First of all, the current Congressional makeup is likely to be a high-water mark for union supporters that will recede after the November 2010 election. So it may be now or never for EFCA proponents. And now that the heavy lifting has been completed in the Senate on health care reform, and the economy has begun to stabilize, it seems like a more propitious time for President Obama and the Democrats in Congress to turn back to what was first on the unions’ wish list. Andy Stern, president of the SEIU and a regular White House visitor, has said recently that he expects Congress to take up EFCA in the first quarter of 2010. That sounds right.
The version of EFCA that is enacted will probably omit the card-check provision that caused the most angst among opponents. The unions may seek to retain the other major change, requiring interest arbitration of first contracts (after an unreasonably short period of negotiations.) Reducing the time for a union election to be conducted after a union files its petition will certainly remain in the final version. Some companies, anticipating EFCA’s passage, have begun regular union-avoidance training for all employees. Others have held training sessions for supervisors, who act as the early warning system for recognition of union organizing activity. Thoughtful employers who want to remain union-free should be considering their options and taking proactive steps in anticipation of the passage of EFCA in some form.
The line between work and home is hardly visible. To describe it as “blurred” would be inaccurate. The reality (for most of us) is that the line can barely be seen and, for some, only fades into existence occasionally for short intervals. And there seems to be little debate about the validity of this conclusion. The debate begins only when the question is asked whether this reality is a positive or negative one.
For most, I believe it’s perceived negatively. At least it sounds that way when I hear it discussed. Because what normally follows is the argument that, because of the “blurred” line between work and home, a metaphor most commonly described with a visual of a worker whose Blackberry must be surgically removed from his hand, employers must permit employees a bit of “leeway” in their electronic follies. For example, the story goes, because employees may be expected to respond to a client emergency after normal business hours, they should be permitted to do some online shopping during the work day. Or, another story goes, because employees are working more hours than ever before, they have no choice but to do some online banking from their office. The need to send personal e-mails, browse the malls of cyberspace, and update one’s Facebook status takes precedent over the need to [gasp] work.
I just cannot buy into this nonsense. The argument that employees should retain some right of privacy in the e-mails that they send from the account provided to them by their employers, using the computers purchased, maintained, and serviced by their employers, on a network owned by their employers, using bandwith that their employers intended for use for work-related purposes, is a losing one to me.
Those who argue in favor of this alleged entitlement for online detours during the work day must forget that not all employees are exempt. In fact, most workers are non-exempt, meaning that they must be paid (by their employer) for all time worked in excess of 40 per week. (More in some states, mind you.) So , non-exempt employees who take short detours to e-Bay via the information superhighway during working time have one of only two impacts: either they are being paid for something they’re not actually doing—some might call that stealing, or they are getting paid time and a half for it because they need to stay late to get their work completed on time. There’s also a third option: that the employee completes his or her work in a hurry or in a half-done manner to expedite his access to the Internet.
To me, none of these three is an acceptable solution. Has it really become acceptable to demand we be given the choice to not work while at work? Maybe the manufacturing sector is the only one that hasn’t lost its collective mind by taking breaks of designated lengths at designated intervals but actually working during the rest of the work day. Not so novel, really, but seemingly a rarity in the office environment.
As you may know, our little blog was named 1 of the top 100 law blogs by the American Bar Association. We are so honored to have been chosen! We're in the "Geo" (as in "geographic-specific") category with 9 other excellent legal blogs. And, until tomorrow at 5 p.m., you can cast your vote for us as the best in our category--an honor we'd be thrilled to have.
To vote, you'll have to register with the ABA Journal.com site but it takes just a minute to sign up. All you'll need to provide is an e-mail and a password.
So please, take a minute or two and get registered and vote for our blog. And then pass this e-mail along to your friends, family, local postman, kid that cuts your grass, or anyone else with Internet access.
Thank you, thank you, and thank you again!!
The Equal Employment Opportunity Commission has issued proposed regulations for ways to improve how discrimination complaints are processed. I'll beg your pardon if the first thought that comes to mind when I hear this is, "Improve it for whom, exactly?". The sarcasm didn't stop there. The more I read, the more questions I have, each tinted with at least a hint of snarkiness. (The snarky comments are denoted in blue).
Peggy Mastroianni, EEOC's deputy legal counsel, said the working group that issued the recommendations decided to proceed with incremental changes and would tackle only issues on which the group could reach consensus.
If a bureaucratic "working group" with no mandated checklist of required objectives or enforcing agency to ensure the completion of objectives, is going to work only on the objectives that they can agree upon, I'd say it's a safe bet that none of those objectives is likely to ever get done. Oh, heck, they may never get started. When was the last time you were in a group setting where all persons in the group reached consensus on anything?
Among the process updates outlined by the EEOC in a Federal Register notice published on Monday was a requirement that agencies file responses to complaints electronically.
Congratulations! Federal courts have been filing dockets electronically since, what, around 2005?
Another proposed regulation would require an agency to notify the complainant when its investigation would be complete. This requirement would be triggered "only" if the investigation was not completed within 180 days from filing. The notice, of course, also would inform the employee that he has a right to file a lawsuit once the 180-day mark has passed.
I honestly cannot recall an investigation being completed in 180 days. Certainly not in the past 2 years but maybe not even in the past 5 years. I have clients who responded to charges filed more than 2 years ago without having received any indication that a decision would be rendered any time in the near--or distant--future. So this proposal seems like a guarantee that each complainant will be reminded that they can skip the process altogether and go directly to the courthouse steps. Remind me again, isn't the purpose of this process somehow linked to the idea that completing it may have desirable benefits to all involved?
A final note of irony can be found in the portion of the notice that explains that the EEOC "intends to provide a mechanism for reviewing and seeking compliance from agencies that fail to comply with the requirements" of a number of EEO directives. In other words, it wants to attempt to get its own house in order. This may be related to the claim that only about 50% of federal departments and agencies actually follow some of the "mandatory" reporting requirements.
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Delaware attorney and blogger Francis G. X. Pileggi of the always popular Delaware Corporate and Commercial Litigation Blog has posted an outstanding discussion with Delaware Supreme Court Chief Justice Myron Steele.
It's well worth stopping by Francis' excellent blog to read the insightful commentary of the Chief Justice.
Retaliation claims brought by employees who have complained about discrimination or harassment in the workplace have increased dramatically over the past several years. They now account for more than one-third of all claims filed with the EEOC. At the same time, the Supreme Court has issued a series of rulings that have expanded the types of retaliation claims an employee may bring. This presentation will inform you about retaliation claims and give you strategies to avoid liability. When it comes to dealing with employees, revenge is a dish best not served at all.
Attorney Michael P. Stafford will present this 90-minute seminar in our Wilmington office. The cost? Free. First come, first serve, though, so don’t delay. E-mail Felicia G. (be sure to include “Breakfast Seminar” in the subject line) or call 302.571.5718 to sign up today.
I continue to be amazed by some of the less-than-best writing practices of my friends and colleagues. Many of these practices relate to the ways in which they format documents. I recognize that many of these practices derive only from habit--not bad intentions. But that doesn't make them any less annoying. And what makes them more annoying is the irrational devotion they garner.
What are these habits, you ask? Truth be told, there are too many to list here. But there is good news--I am not alone. There are others who feel strongly about the importance of documents done right.
Minnesota bankrupcty court judge Robert Kressel is one such sympathizer. Recently, he issued Order Preparation Guidelines for attorneys appearing before him. The Guidelines spell out a variety of writing misdeeds that Judge Kressel wisely abhors.
I have two thoughts about these Guidelines. First, they offer terrific advice that everyone should follow. Second, they demonstrate how helpful style guides can be and make me wish that there were more such guides in place--both in the judicial system and in the workplace.
All of the guidelines are great, really. But a few stand out for me.
The first guideline, for example, instructs parties to submit PDFs that have been converted directly from Word or WordPerfect--instead of by scanning printed paper copies. Amen! Why in the world anyone thinks it is somehow better to print a document and then hard scan that document to PDF positively escapes me. Print to PDF, people. Please, I beg you! As Judge Kessler points out, it saves tremendously on the size of the PDF. And it also provides a far better looking final document, as well as a searchable document. A document that is printed to PDF (as opposed to scanned) can also accept comments made with commenting tools in Acrobat, such as highlighting and adding "sticky notes." (See my previous posts on the topic of PDFs for better documents for additional inspiration).
Judge Kessler also reminds lawyers to "limit the use of capital letters to proper names." I've discussed the "ALL-CAPS disease" before but it bears repeating. For those of you who have held tight to this habit, please consider resolving to abandon it in the new year. Words that are typed in all capital letters are very difficult to read. For an excellent explanation of the phenomenon, see Robin Williams' highly instructive and enlightening book, The PC Is Not a Typewriter.
There are other resources for those who are open minded and ready to make some positive changes to their document-formatting habits. Ms. Williams' book is a fantastic place to start. (The book is closer to a pamphlet than War and Peace and serves as an excellent desk reference.) The Seventh Circuit has published an excellent and extensive set of guidelines for briefs (pdf). One of the sources cited in the court's guidelines is Ruth Anne Robbins' journal article, Painting With Print (pdf), which is far more detailed and a truly outstanding scholarly work. Finally, specific to the legal profession but applicable for all professions is Matthew Butterick's blog, Typography for Lawyers.
So, wonderful readers, go forth into the new year with standards set high and paragraph alignment set to Left (please, no more justified paragraphs!). These are resolutions that, if kept, truly would help make the world a better place, one document at a time.
[Hat tip to the Lawyerist]
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The eligibility for the COBRA premium subsidy was about to expire for those individuals who are involuntarily terminated and become eligible for COBRA benefits after December 31, 2009. However, on December 21, 2009, the President signed legislation that extends the eligibility for the subsidy to those individuals who are involuntarily terminated and become eligible for COBRA coverage before February 28, 2010.
The legislation also extends from 9 months to 15 months the length of the subsidy period and the extension applies to those who became eligible for the subsidy after February, 2009, even if their initial nine months has already expired. The extension is retroactive for those individuals who lost COBRA coverage because they stopped paying the premiums due to the expiration of their subsidy. Thus, individuals who became eligible for the subsidy in March were subsidy eligible through November 30, 2009. If such an individual did not pay his or her December, 2009 COBRA premium because the subsidy expired, the individual can re-enroll in COBRA and receive the subsidy for December, 2009 (without any gaps in coverage) and another 5 months until May, 2010.
The COBRA subsidy extension was attached to H.R. 3326, the Department of Defense appropriations bill for the fiscal year ending September 30, 2010 which passed by an overwhelming vote in the House of 395 to 35. According to Rep. Charles Rangel, D-N.Y., chair of the House Ways and Means Committee, “This bill ensures that workers who have lost their jobs through no fault of their own will not lose the unemployment and health benefits they rely upon to provide for their families. The immediate benefits and assistance provided in this bill help provide some measure of economic security for millions of our fellow Americans struggling during this holiday season, helping ease their pain as they search for their next job opportunity.”
More to come as details of the legislation emerge.
See also, ARRA COBRA Subsidy Information
*Written by guest author 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.
The EEOC announced last week that large grocery store chain Albertsons has agreed to pay $8.9 million to settle three lawsuits in which the EEOC alleged that it had engaged in race, color and national origin discrimination, and retaliation, at a distribution center in Aurora, Colorado.
According to the EEOC lawsuits and a news report, 168 minority employees were subjected to racist and anti-Semitic derogatory epithets, slurs and graffiti. Allegedly, supervisors were aware of and even participated in the harassing conduct. One African-American employee whose leg was broken by a piece of equipment at work was allegedly left lying on the warehouse floor for thirty minutes by a white supervisor who told him that was what he got for being black. Albertsons denied that it had engaged in discrimination or harassment.
The $8.9 million settlement will be divided among the 168 employees who complained about harassment between 1995 and 2008 (an average of about $53,000 per person).
The lesson for employers is clear, according to the EEOC’s press release. “EEOC Acting Chairman Stuart J. Ishimaru said, ‘Employers simply cannot overlook or tolerate this kind of outrageous discrimination and retaliation. The EEOC certainly won’t. We will aggressively pursue employers who violate the laws we enforce. And we’ll insist on substantial and meaningful relief for the victims before settling these cases.’” Albertsons also agreed to four years of court-supervised monitoring and a training program for its managers.
Employers who suspect or know about harassing behaviors in the workplace must act promptly to stop them to avoid liability, and should train all employees regarding compliance with equal employment opportunity laws.
The following is an advisory opinion issued in October by the South Carolina Advisory Committee on Standards of Judicial Conduct that addresses the use of social-networking sites by a magistrate judge:
A magistrate judge has inquired as to the propriety of being a member of Facebook, a social networking site. The Magistrate is friends with several law enforcement officers and employees of the Magistrate’s office. The Magistrate is concerned about the possibility of an appearance of impropriety since the list of Facebook subscribers is vast.
A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.
A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(A), Rule 501, SCACR. However, the commentary to Canon 4 states that complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge. Thus, a judge may be a member of a social networking site such as Facebook.
[via Legal Profession Blog]
The South Carolina opinion is more permissive than the more recent Florida advisory opinion, which provides that judges may not friend lawyers who may appear before them.
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Marital Status Discrimination: First Comes Love . . . Then Comes Marriage . . . Then Comes Preferential Treatment at Work?
Delaware has long since included “marital status” in its list of categories (along with race, sex, gender, religion, and sex) protected by the state’s anti-discrimination statute. But what is marital status discrimination? Does it really occur, and has an employee ever filed a claim based on alleged marital status discrimination? A new Policy Briefing from the Sloan Work and Family Research Network (pdf) gives some insight into this area of discrimination rarely discussed.
Marital-status discrimination occurs when a person is granted or denied rights based on his or her marital status. It appears there is no written decision in Delaware where an employee has claimed discrimination based on his or her marital status. Several cases have been brought in other jurisdictions and they give Delaware employers a bit of insight into their potential exposure under the statute. As noted in the Policy Paper, cases have been brought by a male employee alleging he was denied a promotion because he was unmarried, and a single mother who alleged she was discriminated against based on her unmarried status.
Studies have shown that employers often treat employees differently based on their marital status in the following ways:
- Married men are paid more and offered promotions more than single men (even when controlling for work performance and seniority);
- Employers may subsidize health benefits for spouses and sometimes domestic partners, but no offer no additional compensation for single employees;
- Work-family policies are often written to address married employees with children; and
- Unmarried and single workers without children are expected to travel more for work; they also feel that they have to work at times that are not expected for working parents. In addition, parents are more likely to get time off from work than nonparents.
It is interesting because many of these differences seem to relate more to parental status, rather than marital status. Indeed, a divorced or unmarried worker with child-care responsibilities may well be afforded accommodations in the workplace based on these responsibilities that a childless worker is not. Because parental status is not a protected category (although assumptions about a worker’s performance because of their childcare responsibilities may present a sex discrimination claim under Title VII), an employer may be able to defend a claim by presenting evidence that differential treatment was not the result of marital status, but parental or caregiver status.
Nevertheless, an employer would still face exposure if single employees were not afforded the same protections and accommodations in the workplace as married employees. With work-life balance remaining a popular topic of discussion, and lots of layoffs resulting in bitter former-employees looking for a payout – we are sure to see more discrimination lawsuits, and more creative causes of action.
So what can you do now to make sure your company is not exposed to marital status discrimination?
1. Expand dependent health care coverage not only to domestic partners, but also to other extended family members or household occupants.
2. Encourage work arrangements such as flexible work schedules and telework for all employees – not just married employees with families. Avoid “work-family” label for policies and instead use “work-life.”
3. Train your human resources officers and managers that marital status should not be considered in any employment-related decision (e.g. hiring or promotion) or staffing/scheduling decisions. For instance, employers should not make the assumption that a married male employee should be promoted over a single one because he will be more dependable, has a mortgage and mouths to feed (or will soon in the future). Nor should the single employee always get the worst shifts or travel schedules because they don’t have a spouse or family at home.
For information about family-responsibilities discrimination, see this previous post:
As 2009 winds down, it’s a good time to reflect on the most important employment law developments in what has been a very busy year. Here are my top 10:
Many companies require high-level managers, salespeople, researchers and other key employees to sign confidentiality, non-solicitation and/or non-compete agreements, also known as “restrictive covenants.” These agreements are intended to prevent key employees from capitalizing on proprietary knowledge they learned or developed and relationships with customers and employees that they formed in the course of their employment for their own benefit or the benefit of competitors and against the interest of their former employers.