Delaware Employment Law Blog

45% of employers now report to using social media to screen job candidates, according to a survey of more than 2,000 HR professionals commissioned by CareerBuilder.com.  11% reported that they expected to incorporate online tactics in their hiring practices in the next year. 

35% of those currently using social media reported that they’d rejected a candidate based on what they’d found in their online search.  And what exactly is it that turns off employers and causes them to reject a candidate?  Here’s what the biggest “no-nos” are, with the percent of employers who reported having turned a candidate based on each:

• 53% provocative pictures or info
• 44% drinking or drugs
• 35% bad-mouthed previous employers, co-workers, or clients
• 29% showed poor communication skills
• 26% made discriminatory comments
• 24% lied about qualifications
• 20% shared confidential information from previous employer
• 14% sent a message using an emoticon such as a smiley face
• 16% used text language such as “GR8”

Employers who are performing or who are considering performing online searches of potential employees should review these items as possible criteria.  Which of these items should be considered?  Which are not relevant?  These are two questions employers should answer before engaging in their Internet searches.

The U.S. Supreme Court has taken another step towards “digital enlightenment.” The Court’s website now includes links to pdf files containing the United States Reports, volumes 502 and later.  The U.S. Reports contain the final and official version of the Court’s decisions, typically three to five volumes per Term. Each volume is between 800 and 1,200 pages long, making each pdf file very large.  Large, but packed with valuable information, including, according the Court’s site:

In addition to all of the opinions issued during a particular period, a volume may contain a roster of Justices and Court officers during that period; an allotment of Justices by Federal Circuit; announcements of Justices' investitures and retirements; memorial proceedings for deceased Justices; a cumulative table of cases reported; orders in cases decided in summary fashion; reprints of amendments to the Supreme Court's Rules and the various sets of Federal Rules of Procedure; a topical index; and a statistical table summarizing case activity for the past three Court Terms.

For those who are familiar with Adobe’s Acrobat can create a tremendous resource for themselves by saving these files locally and creating an electronic index for super-quick searches later.  This appears to be yet another mile marker in the road to more easily accessible legal references.

Jerks at work are a problem. This proposition is not debatable. Just how pervasive the problem is may be subject to some debate. Some say that jerks are everywhere. Others say the jerk population has been reduced (or maybe just quieted) by the economy. Either way, there has been a lot of press about jerk. There's also been an increasing acceptance of the proposition that jerks at work are bad for business.

So I was taken by surprise last night while watching The Next Iron Chef on Food Network. I'm not a major fan of Iron Chef, necessarily, but my husband, a professional chef and restaurateur, likes any show involving chefs, cooking, and competition, so we tuned in. In The Next Iron Chef, contestants battle for the title of Iron Chef. (If you're unfamiliar with the show, it started in Japan, where it became a cult favorite. It was followed by Iron Chef America, which is filmed in the U.S. with Iron Chefs Mario Batali, Morimoto, Cat Cora, Bobby Flay, and the most recent addition, Michael Symon.)

During last night's episode, the first in the newest competition, 10 contestants had to prepare two dishes using an "exotic" ingredient that they'd been assigned. (By "exotic," I mean unlaid eggs, fallopian tube still intact, rooster cockscombs, and similarly appetizing fare.) Of course, this was done under outrageous time restraints in a kitchen in which they'd never worked, with equipment that seemed to fail more often than it worked, etc. Suffice it to say, the conditions were more than difficult.

When the buzzer rang and the host announced, "Knives down!" I nearly clapped I was so proud of the chefs! That pride quickly faded when the chefs were required to critique each others' dishes.

What a terrible way to start the show. For the contestants and for viewers. We could have been riding high, celebrating their first big victory but, instead, had to watch several contests be petty and spiteful, ridiculing other chefs' dishes without regard to professionalism or reciprocity.

But it got worse during the next phase, when the contestants were judged one by one by the show's judges. The panel included two women and one man. Both women gave feedback that was insightful, intelligent, and knowledgeable. The man, on the other hand, just dished out a bunch of garbage. The jerky judge in question, Jeffrey Steingarten, was snarky, contrary, and negative to the point of disgust. It was just unbearable to watch.

I finally asked my husband, "Why do they even have this guy on the show?" To which my husband replied, "Because he's a famous food writer?" Oh, really? Who cares?

I'll never tune in to another program that has Mr. Steingarten as a judge. He's apparently a world-class writer with a pedigree that outshines those of even the most prestigious and acclaimed in the industry.  But maybe he should consider sticking to what he does so well--writing--and leave the TV stuff to the pros. Every comment was more angry and hostile than the last, leaving me with a taste so bitter that it ruined the entire experience. He takes the title of food critic a bit too literally, in my opinion. 

Lighten up, Mr. Steingarten!  Celebrate food once in a while!  Didn't you get into the food world to celebrate the magic and glory that such wondrous cookery can produce? Certainly you don't eat for a living because you hate the sight of food!  Try to remember the beauty and majesty of it the next time you're given such a unique opportunity to taste the creations of 10 of the country's greatest chefs.  It can't really be as bad as you make it--even if you did think the cockscomb (prepared by Philly hometown favorite, Jose Garces), was too rubbery.

Next time, I hope the producers can find someone to serve as judge who falls more on the sweet side, rather than the tart, as Mr. Steingarten is so apt to do.

In short, I hope Food Network wises up and tosses the jerk from their workplace. Jerks have a way for ruining one's appetite.

Last night’s shocking revelations by David Letterman about an extortion plot threatening to expose his affairs with subordinates reveal to the larger public something human resources professionals have known for years: Romantic workplace relationships can lead to trouble, legal and otherwise. As a result, you should review your policies and practices to ensure that a failed romance ends with only a broken heart, not an empty bank account.

Workplace romance

The typical scenario unfolds like this: A supervisor begins to date a subordinate. They go out, have a good time, and continue to see each other socially. The two employees interact every day at work, and as the relationship grows, some of their romantic behavior seeps into the workplace. They are frequently together behind closed doors, e-mails are exchanged regularly, other employees take notice and begin talking about their questionable conduct, and the office suffers decreased efficiency and productivity.

When two employees having a romantic relationship are in the position of supervisor and subordinate, others become resentful and charges of favoritism arise. The couple may have sexual contact at work or elsewhere, sometimes with embarrassing consequences.
After a few months, one of the employees decides things aren't working out and breaks it off, much to the other's chagrin. The supervisor then unsuccessfully attempts to pick up their business relationship where it left off before the affair or to retaliate against the subordinate.

Things get out of hand, and the subordinate files a sexual harassment claim.
Sexual harassment claims can be extremely expensive, even if you eventually prevail. They're also divisive and sabotage productivity. For an individual employee — victim or accused — a sexual harassment claim can be "professional suicide." Since as many as a third of all consensual romantic relationships begin at the workplace and many end badly, what's a beleaguered employer to do?

When romance sours

Most employees instinctively know when to draw the line on behavior that could be viewed as sexual harassment toward people they know only casually at work. The line gets blurry for some, however, when the questionable behavior was at one time consensual.
Your obligation to stop harassment in that situation is clear. You have no responsibility to seek out a dating couple daily and inquire about the status of their relationship to determine if it's still consensual. But the minute one of them indicates he or she wants the other to stop the contact and makes that known to the company, your duty to stop what has arguably become sexual harassment begins and the liability meter starts ticking. Just because the victim consented to the same or similar conduct at one time, that doesn't absolve your company from liability. The troublesome aspect is, you often may not fully appreciate the fact that the relationship has now become sexual harassment.

Other concerns include the sexual favoritism claims that frequently follow on the heels of a workplace affair. Those claims involve a type of sex discrimination that stems from one employee being treated unfavorably because he or she isn't in a personal relationship with the supervisor. The employee who's involved with the supervisor receives favorable treatment to the detriment of other employees in the department.

The Washington Post reported on a Congressional Quarterly editor, Brian Nutting, who questioned his employer in a very confrontational email on the recent layoffs of 44 staff members.

Not only did he send the email to his bosses, presumably the decisionmakers, but he also copied “the Newsroom” – which presumably included a whole lot of people. One of the recipients leaked the memo to FishBowlDC, which published it in full.

The company said that Nutting's email had embarrassed it, and fired him for “insubordination.” In the Post article, he claimed that he was a Luddite, and did not anticipate his memo would ever go beyond the newsroom.

The lesson to be learned here, as articulated by Heather Armstrong of dooce.com (whose termination after her blogging on work-related topics coined the term “dooced”), "BE YE NOT STUPID."

Do not address matters of a controversial or potentially embarrassing nature to your employer on a social networking site, blog, or to a large number of recipients, any one of whom could launch the information into the public domain with the click of a button. This type of missive need only be sent to the individuals who need to address it. Better yet, this would be a good instance to go the old-fashioned route and HAND DELIVER the note.

 For more on the topic of e-mail etiquette, see:

ALL-CAPS EMAILS and Other Workplace Annoyances

As of mid-September, there are 300 million Facebook users worldwide. The announcement came just two months after the company reached 250 million users in July. For those of us not inclined to do the math, at the current rate, Facebook is growing to the tune of 25 million new users per month.

Faced with these statistics, it’s hard to deny the reality—social media is here to stay. So it makes sense that more and more employers are (finally) turning their attention to the many implications that sites like Facebook, LinkedIn, and Twitter can have on businesses. Taking a proactive approach makes obvious sense to many of us, especially considering some of the better known blunders that have made their way to the mainstream media.

Despite their good intentions, though, many employers have gotten stalled. They recognize the potential value and potential risks inherently associated with social-media technology. But when they sit down to put pen to paper, they can’t seem to get started. So, since the hardest part is figuring out where to begin, I’m going to provide a quick checklist of fundamentals. Think about these first and the policy will be far easier to create.

What Is the Purpose?

First, what is the purpose of the policy. Is your focus to prevent potential liability or are you more interested in harnessing the power of the web through the voice of your loyal employees?

What Technologies Are Covered?

Second, what technologies will your policy address? Do you have any internal social-networking sites or blogs? If so, will they be covered? Will different rules apply to employee posts on your internal wiki than to employee posts on a personal Facebook page?

In addition to purely internal and purely external sites, there is a third category to consider, as well—public content posted on behalf of the organization. This blog is an example. I am posting on my firm’s nickel but, with any luck, I’m posting in the hopes that someone from outside the firm actually reads it.

Decide which of the three will be addressed in your policy and then identify the specific technologies that will be covered. If the decision makers aren’t familiar with the technologies on a basic level, this is the time for some education in Web 2.0.

Who Is Covered by the Policy?

Third, who will be covered by the policy? All employees? Will some employees be subject to more expansive restrictions? For example, should employees in R & D be subject to different obligations than those in customer service? And what about managers and supervisors? They should be given a larger share of responsibility not only for their own online activities but also for communicating and enforcing the online presence of the members of their respective teams.

The WSJ today recognized the Top Small Workplaces in its third annual report featuring the best small employers in the country.  The fifteen winners, which were complied in partnership with Winning Workplaces, were selected based on their continued investment in their employees.  The winners were selected from nearly 630 nominations, pared down to 35 finalists. 

Congratulations to the 2009 Top Small Workplace winners:

Anthony Wilder Design/Build Inc., Cabin John, Md.

What can you do today to create the kind of workplace that engages employees?

Unemployment is painful for anyone who wants to work but is unable to locate a suitable position.  With the increases in unemployment finally starting to lessen, the aftermath of layoffs has come into focus.  The manufacturing and construction industries were two of the hardest hit by the recession, suffering higher job losses than other industries.  Because these two industries employ disproportionately large numbers of males, men have suffered an equally disproportionate number of job losses. 

Since December 2007, men were at the receiving end of more than 74% of cuts.  Women, on the other hand, hold nearly 50% of payroll jobs, making them less vulnerable to financially motivated layoffs.  In June 2009, a record 1.4 million men left the labor force, as compared to a near-record 1.2 million women. 

The highest unemployment rate for men since the Great Depression was 10.1% in 1982.  In June, that number reached 10%. Post-Great Depression, the record for women was in 1982, 9.3%. Currently, it’s 7.6% today.

What is less easy to quantify is the impact this shift has had on workplace and home-life dynamics.  As more and more women find themselves in a position of the sole wage earner, societal attitudes inevitably will be affected in some way, even if it's not immediately noticeable.

Becky Beaupre Gillespie, of Good Enough Is the New Perfect, wrote a very insightful post detailing the struggle she and her husband have experienced in navigating their roles since he was let go from his job with a national law firm.  Her journey is surely one that many working women are experiencing across the country.  How it will impact the gender roles is yet to be seen.

While in law school, I was defeated in the semi-final round of a moot court competition.  The reason for the loss?  My outfit. I'd worn a pantsuit and a female judge, who was a judge in real life, also, ridiculed the choice, telling me that no "real lawyer" would ever have worn pants to argue before the U.S. Supreme Court, which was who we were "pretending" to argue before in the competition.  The harsh criticism came as a total shock to me and I've never forgotten it. 

Well, after these many years, I've finally been vindicated. In her first argument before the country's highest court, Solicitor General Elena Kagan, former Dean of Harvard Law School, wore a navy blue pantsuit and light blue blouse. So it seems that my judge was wrong.  A woman would and, in fact, did wear pants before the Supreme Court after all.  Does this brazen fashion choice signify a coming of age for women in the legal profession? 

Well, almost.

It would have been a far more remarkable silent victory but for the fact that it wasn't silent at all.  Kagan's choice was all over the legal newsboards.  Above The Law ran a story detailing the choice and discussing the outfit at length. The fact that her clothing garnered so much attention lessened the potentially important impact of what was surely a high point in Kagan's legal legacy.  Had the media not found it so remarkable, Kagan's pantsuit choice may have been a much more significant symbol of how far women have come in our profession.  But, by spotlighting it as a key point of interest, the news stories just reminds us that our fashion choices do matter--at least to the interested public. 

Nonetheless, the fact that Kagan was not dissuaded in her selection by the media's interest does give me a great deal of satisfaction.  Would I follow Kagan's lead?  I'd like to think so but I dare not speculate.  After all, an attorney with Kagan's pedigree has plenty of reasons to be as confident as she was--she's got the legal acumen to back up any outfit she "dares" to wear. 

See also:

Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

Are Women Attorneys Being Stricken by a Pantsuit Pandemic?

The Pantsuit Pandemic Part II

I recently reported that a staggering 45% of employers use social-media sites, like Facebook and LinkedIn, to research job applicants. I do not oppose this trend, provided there are safeguards in place to prevent unfairness and discrimination in the hiring process.

There are some opponents to the practice, though, who claim that it could give rise to a claim of invasion of privacy brought by the applicant. I disagree.

There cannot be a viable claim of invasion of privacy unless the plaintiff had a reasonable expectation of privacy in the information that allegedly was “invaded.” In the world of the internet, once it’s online, it’s no longer private. This is especially true when the plaintiff himself was responsible for posting the so-called “private” information on the world wide web.

Some scholars have argued that there should be a claim where the individual consented to share the information only to a limited extent and the “invader” exceeded the scope of that consent. This argument has been limited, for the most part, to academics and has not been well received by the courts. A recent decision from a California court of appeal reinforces the traditional notion that, once posted online, information is in the public domain. 

In Moreno v. Hanford Sentinel, Inc., the plaintiff-appellant sued for invasion of privacy and intentional infliction of emotional distress when an article she’d posted on her MySpace page was submitted to a newspaper for republication. The appellate court affirmed the trial court’s dismissal of the privacy claim and held that, “once posted on myspace.com, this article was available to anyone with internet access.”

The plaintiff, Cynthia Moreno, posted “An ode to Coalinga” and posted it in her online journal. The article was a rant about her dislike of her hometown, Coalinga, California. Moreno removed the article from her MySpace page after just six days but, one day later, learned that the principal of Coalinga High School had submitted it to the local newspaper. The article was posted in the Letters to the Editor section of the paper and was attributed to Moreno. The community reacted with death threats to Moreno’s family, who later moved and closed their 20-year-old family business.

The court’s decision is an important one. It states that the fact that Moreno removed the article from her online journal after just six days was “of no consequence” to the determination that no privacy violation had occurred. Instead, by posting it on a publicly accessible web page, she opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.

Previous, related posts:

Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

How to Conduct Online Background Searches With Google

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Top 10 Reasons Why Employers Should Screen Their Applicants

And for employers who are considering the practice of Online Applicant Screening but who don't know where to start, be sure to catch the easy-to-understand video, Video Resources: How to Set Up a Facebook Account for Applicant Screening, available under the Resources > Video Resources tab at the top of the page.

A Florida state judge recently dismissed with prejudice a lawsuit alleging civil fraud involving the sale of a condo tower. During the trial, the plaintiff sent a text message to his employee, while the employee was testifying on the witness stand in that case. The texter, Yizhak Toledano, CEO of the company that had filed suit, texted the company’s CFO while the attorneys were in sidebar. Not only was the case dismissed, but the plaintiff, thanks to the CEO’s text message, was ordered to pay the defendant’s attorneys’ fees and costs.  

It seems painfully obvious that texting your witness while he’s testifying is a very bad idea. What makes it more painful is that the plaintiff had improperly texted a witness during deposition just two months earlier, resulting in a reprimand from the magistrate judge.

[H/T Evidence Prof Blog]

Other Posts on the Intersection of Technology and the Law

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

Hopeful New Lawyers Will Be Subject to a Social-Media Review

Delaware's Indian River School District Bans Cell Phones

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

In the U.S., about half of the people who have health insurance get it through employment. (The others who have insurance get it from the government, through programs such as workers’ compensation, Medicare, Medicaid, and the Veterans Administration). The reliance in the U.S. on employment-related health insurance is very different from what happens in other industrialized countries, according to this interesting article by Princeton economics professor Uwe Reinhardt.

Most people don’t know that the dominance of employment-based health care insurance was not planned; instead, according to Professor Reinhardt, it was the result of efforts to evade World War II wage controls. Members of the armed services weren’t paid much, so Congress decided that civilian pay should also be kept low. A gaping loophole in the wage control legislation was the failure to include employer-paid fringe benefits in wages, and Congress also allowed companies to deduct the cost of their contributions to health insurance premiums from their taxes. Employment-based health insurance took off. Things have changed since then, and one writer recently argued that employer-based health care is dying.

On August 27, the Ohio Supreme Court Court issued its opinion in Allen v. Totes/Isotoner Corp.  In its two-page opinion, the majority said that the employee was fired for not following company policy on breaks, period. End of story, plain and simple. Apparently not so, judging on the uproar this decision has created in the blogosphere:

• “Oh, Those Lactation Regulations”
• “Ohio to Nursing Mothers: Get Those Breasts on a Schedule” 
• “Lactate on Your Own Time Lady” via Salon
• “Lactation, Breastfeeding, Discrimination and Accommodation” via Law Profs Blawg
• When Breast Milk Production Doesn’t Fit Like a Glove With an Employer’s Schedule via Feminist Law Prof

It appears many out there misapprehend the nature of the protections provided under the Pregnancy Discrimination Act. On the federal level, the PDA was an amendment to Title VII, enacted in 1978, which clarified that discrimination based on “sex,” included discrimination based on “pregnancy or related conditions.” Most states, including Ohio, have amended their state law similarly, and follow federal law on the interpretation of their statute.

There have been recently been several displays of incivility in the workplace worth a moment of reflection. Three incidents in particular come to mind.

The Conduct

First, there was the outburst by S.C. GOP Rep. Joe Wilson during President Obama's congressional address last week. On Good Morning America the next day, George Stephanolopous was asked whether he had ever witnessed similar conduct. Stephanolopous immediately responded that no, he had not.

Then, during the women's finals at the U.S. Open, tennis great Serena Williams threw her racket and, in the same match, cursed and pointed at the line official who penalized Williams for a foot fault. Williams' opponent, Kim Clijsters, was awarded an extra point when Williams walked away only to turn around and come back at the official, finger pointing and profanities flying. In a press conference, she was positively unapologetic, even trying to justify her behavior, responding to a reporter's inquiry by saying that everybody treats line people that way.

Then there was Kanye West's "performance" at the MTV Video Music Awards when he bombarded 19-year-old Taylor Swift, snatching the microphone out of her hand during an ill-fated acceptance speech. The look on Swift's face was heart wrenching. She looked like a child who couldn't process how terrible people could be.

The Apologies

Each of the three offenders issued an apology. Wilson called his apology into the White House the day after his disrespectful display. Williams, after booed off the court and being smacked with a $10,000 fine, has apologized several times via the press. And West was first redeemed by Beyoncé, who won for best video of the year but kindly turned over her time at the microphone to the slighted Swift, giving Swift the chance to finish her acceptance speech. Then West made an appearance Monday night on the premier episode of the new Jay Leno Show. Before performing with Jay-Z and Rihanna, West sat down with Leno and seemed deeply troubled by his behavior.

Each incident occurred in the respective person's workplace. Yet, despite having some familiarity with their surroundings, each of the three conducted themselves in a manner far too horrible to be described as inconsiderate. The displays were inappropriate and downright mean. They were embarrassing, even shameful, really. But what do they say about our society?

Mikula v. Allegheny County of Pennsylvania is a new decision from the Third Circuit Court of Appeals, interpreting the Lilly Ledbetter Fair Pay Act (“the Act”).

Facts of the Case

Plaintiff Mary Lou Mikula was hired by Allegheny County Police Department as its grants coordinator in 2001. In September 2004, Mikula wrote a memo to the Police Superintendent asking him to change her title to “Grants and Project Manager” and make her salary equal to or greater than that of a male colleague whose title was “Fiscal Manager.” The fiscal manager was making $7,000 a year more than Mikula at that time. The county did not respond to Mikula’s request. In October 2005, Mikula renewed her request for a raise. The county again did not respond.

In March 2006, Mikula filed an internal complaint alleging gender and age discrimination, stating that she was paid $7,000 a year less than a comparable male colleague and that the pay discrimination had started when she was hired. She also filed a lawsuit in federal district court alleging that her rights under the Equal Pay Act had been violated. In August 2006, the County’s Human Resources department notified Mikula that it had completed its investigation of her complaint and did not agree with her allegations of discrimination.

The Timeliness Argument

In April 2007, Mikula filed a discrimination charge with the U.S. Equal Employment Opportunity Commission alleging pay discrimination based on sex under Title VII of the Civil Rights Act of 1964 (“Title VII”). When she received a right-to-sue letter, she added the claim to her federal court case. In response, the County filed a motion arguing that the Title VII claim should be dismissed because Mikula had waited too long to assert the claim.

Under Title VII, claimants in most states must file their discrimination charges within 300 days of the allegedly discriminatory act. The County argued that the pay decision had been made in 2001 when Mikula was hired, and that even if the court allowed an extension of time until 2004, when Mikula found out about the difference between her pay and the fiscal manager’s pay, she had still waited more than 300 days before filing a charge. Mikula argued that the Human Resources department’s decision in August 2006 on her internal complaint of discrimination was itself a pay decision and that she had filed a charge within 300 days after receiving the decision.