Delaware Employment Law Blog

Most of us will admit that we’ve become unnecessarily agitated by a coworker’s quirks. For whatever reason, or maybe for no reason, your office mate’s habit of dragging his feet while he walks makes you recoil every time he strolls past your door. Or the receptionist who cracks her gum as what is surely an act of passive aggression.

Do you dare confront the annoying employee? Of course not! You’d sound irrational! You’d appear half daft! The annoying conduct is trivial to everyone else—even to you in any setting other than work. But, alas, in the workplace, this seemingly benign habit pushes you nearer and nearer to the line where sanity meets crazy cat lady.

As a rational adult, you keep your insanity in check. You recognize the disproportion of your reaction and you monitor your facial expressions and body language to guard your secret. Other, not-so-rational adults, on the other hand, may not have the same level of self control. They might take their dislikes and pet peeves a little too far. (See What Irks Your Employees? Do You Really Want to Know?)

But wacky and non-wacky employees alike can understand certain fundamental canons of workplace etiquette. And when those cannons are violated, the beast in us can come unleashed. What follows are a few examples of what I consider to be inexplicable acts of discourtesy in the workplace . . .

More employers are addressing their employees' use of social-media sites, such as Facebook, through formal workplace policies. Here are just a few of the employers whose policies have made headlines in the past several weeks:

Ohio state troopers are now prohibited from "posting pictures of themselves or others in uniform and from using the patrol's 'flying wheel' insignia on social-networking sites without approval." As Brian Hall reported, the new rule for uniformed employees of the Ohio State Highway Patrol came to be as a result of a female trooper who posted an "inappropriate" picture of herself and another trooper on her MySpace page. She was not wearing a uniform in the picture but her site did identify her as a member of the Highway Patrol.  The poster apparently did not realize that her site was viewable by the public. 

Takeaway: Policies should include education for employees to explain how to set effective privacy settings.

The NFL implemented a somewhat unpopular policy limiting players' and coaches use of Twitter at game time. The NFL's new guidelines provide that its members can use social-media applications until 90 minutes before each the start of a game and have to wait until traditional media interviews are finished before they resume posting personal messages. The policy was initiated shortly after media-favorite, Bengal's player Chad Ochocinco announced that he would tweet from the sidelines.  When that appeared to be threatened by the pending policy, he said he would have someone else tweet for him at his signal. The NFL wrote a line into the policy prohibiting players from having someone else tweet on their behalf. At first, it was reported that Ochocinco would delete his Twitter account but, not one to be called a quitter, he announced this week that he's found a "loophole" in the NFL's policy and is planning a "surprise" at the team's season opener on Sunday. This summer, the San Diego Chargers reportedly fined cornerback Antonio Cromartie $2,500 for using Twitter to complain about the food served at the team's training camp. 

Driven by concerns about potentially lost business, the League also is attempting to restrict how fans can use social-media applications like Facebook and Twitter to talk about professional football. Under the new rules, the NFL says fans are encouraged to circulate messages about teams and players, but cannot post play-by-play accounts of actual games. 

Takeaway:  Policies that are overly broad are likely to be ignored from the start, making enforcement very difficult. If a policy is obviously ineffective, don't bother.

The Pentagon also has some concerns about the potential impacts of Twitter and similar social media.  In August, Deputy Defense Secretary William Lynn commissioned a report on the pros and cons of social media.  The Pentagon, he said, will review the report and, by the end of September, issue an official policy.  The Marines banned access to Facebook from its computers, citing security concerns.  Marines can access Facebook and Twitter from their personal computers and at internet cafes, though.  The order banning access states: "These internet sites in general are a proven haven for malicious actors and content -- and are particularly high risk due to information exposure, user-generated content and targeting by adversaries."

For more on the love-hate relationship of employers and Facebook, see these earlier posts:

New Statistics on Employers Using Social Media to Research Applicants

Warnings Against LinkedIn Recommendations: Justified or Propaganda?

How to Become an Employer of Last Resort: Require Applicants' Facebook Passwords

Facebook and YouTube Make Employees More Productive. Really??

Yesterday, September 8, 2009, was the official start date for the mandatory E-Verify program for federal contractors and subcontractors. The U.S. Citizenship and Immigration Services has just created and published a Supplemental Guide for Federal Contractors to explain the new requirements.

The Guide provides background information, describes the E-Verify program, and provides fairly detailed information about compliance, including timelines and charts. It is user friendly and I recommend that all employers with federal contracts or subcontracts read it to find out whether they are subject to the new rule, and if so, to learn the basics about how to comply. Federal contractors and subcontractors who are subject to the rule but who do not comply risk loss of current contracts and debarment (loss of their ability to obtain future federal contracts and subcontracts).

Related Posts:

OFCCP Delays the Start Date for Mandatory E-Verify Yet Again

News on E-Verify for Federal Contractors

Federal Contractor E-Verify Rule Is Final!

Attention Government Contractors!! You Are Being Ordered to Use E-Verify!

CareerBuilder's most recent survey has interesting statistics on the number of employers who report that they currently use social-media sites, such as Facebook and LinkedIn, to research potential job candidates. 22% reported that they used social media in the 2008 survey, which more than doubled this year, up to 45%.  An additional 11% reported that they planned to start using social media as a background check tool.  That would push the number far past the half-way mark. 

Here's a quick visual.

Last year . .  .

And, this year. . .

I think that the increase is inevitable--employers will continue to utilize these sites for their recruiting and hiring processes more and more as more and more HR and recruiting professionals become accustomed to using the sites.

Want more?  Here are some earlier posts on the topic of social media in the workplace:

Facebook Set to Overhaul Its Privacy Settings

Job applicants required to submit Facebook passwords for background checks

More Stories from the Facebook Frontier

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

Facebook and YouTube Make Employees More Productive. Really??

The answer to this question is critical. If the answer is “yes,” the employer must comply with the myriad of obligations imposed by the FMLA. The answer is “yes” if the employer has 50 or more employees in 20 or more workweeks in the current or preceding calendar year.[1]  

The determination of whether an organization meets this 50-employee requirement is not an easy one, though, especially for employers with a high turn-over rate and employers who utilize temporary or seasonal help. Here’s a short breakdown of the analysis to help you determine if your organization is a “covered employer” for purposes of the FMLA.

• Start with the correct time period. You should look to the payroll records of the current and preceding calendar year. (For example, if we were to perform the calculation today, we would need to look at the records for 2008 and 2009).
• For this period, determine how many employees the organization had who were employed for a total of 20 or more weeks. The week is based on a calendar workweek. Workweeks need not be consecutive.
• From this number, remove employees who were subject to layoff, whether temporary, indefinite, or long-term.
• Do not remove an employee who was on leave of absence or suspension but who has a reasonable expectation of returning to active employment.
• Remove any employee working at a location outside of 75 miles from the location for which the determination is being made.

Once a private employer satisfies the 50-employee and 20-week threshold, the employer remains covered until it no longer has 50 employees during 20 workweeks in both the current and preceding calendar years.

[1] Joint employers and successors in interest of covered employers, public agencies, and private elementary and secondary schools are also covered.

See other posts on the FMLA's requirements and prohibitions:

New FMLA Regulations Restrict Substitution of Paid Leave for FMLA

So You Thought You Understood the Final FMLA Regs?

Employer Notice Requirements Under the Final FMLA Regulations

FMLA Seminar Materials: PowerPoint Slides, Handout, and DDOL Forms

10 Most Important Changes to the FMLA Regulations

I can’t sing a lick. But that doesn’t stop me from trying. I love music. All kinds of music. Some of the concerts I saw in 2009 includes musicians as diverse as Fleetwood Mac, Jay-Z, and The Police. And don’t forget Broadway. I’m a sucker for a musical any day of the week. So, despite my total inability to carry a tune, I can turn pretty much anything into a song at the drop of a hat. My husband just loves it when I belt out Don’t Forget to Buy Stamps Today, which is set to the music of A Day In The Life by The Beatles.

And I’ve often thought how invigorating  it would be if, every workday, at around 3 p.m., we could blast music through our office intercom system. Some examples of appropriate songs might include Pump Up the Jam by Salt ‘n Peppa, Queen’s classic, We Are the Champions, or Eye of the Tiger by Survivor (made famous in the movie Rocky III). In fact, I’m such a believer in the power of song to lighten up the mood and rally the troops, I’ve even championed the idea of replacing all workplace speech with song. Just think of how much better the day would be if your department performed a rendition of We Go Together from the musical, Grease, at the conclusion of a weekly team meeting!

John Phillips, blogger extraordinaire at The Word on Employment Law, found a video demonstrating this idea in action. The employee in the video, admittedly, is a little annoying—but only because the rest of his office mates just don’t seem to appreciate the value of setting words to music. Maybe they should just lighten up!

Employees love social networking. Some employers also love social networking, especially in the context of recruiting, onboarding, and engagement efforts. But employers are not so crazy about the use of Web 2.0 tools by employees.  The question is often asked whether employers may lawfully access an employee's (or applicant's) social-networking page.  And the answer, as any lawyer worth his oats surely will tell you, is "it depends."

There are a number of different contexts in which this question can arise and each has a different response.  For example, in the hiring context, employers often want to conduct a DIY background check by Googling a candidate or searching for the candidate's Facebook profile.

I've already said plenty on this topic and won't rehash it here.  (See More Good Advice on Best Practices for Use of Social Networks for Employers, Free Podcast: Employers' Use of Facebook, MySpace, and Other Social Networking Sites).  But, generally speaking, this presents only minor (and avoidable) potential legal issues.   

A different context occurs when an employer wants to view a current employee's Facebook or MySpace page.  Add to that the situation where the employer doesn't want the employee to know about it's "investigation" or where the employer sees something it doesn't like and takes adverse action because of it, and you've got an entirely different set of circumstances and associated legal issues.

A recent case in the U.S. District Court in the District of New Jersey is the perfect "flare-gun" case--sending a poignant warning to employers considering similar actions.  In Pietrylo v. Hillstone Restaurant Group, a waiter at the employer's Houston's restaurant created a MySpace page and group.  The group was private--only those who were invited by its creator could access the site. The waiter, Pietrylo, gave access to co-workers, who could then read postings or create postings themselves.

In July, Delaware Governor Jack Markell signed into law an amendment to Delaware’s employment-discrimination statute. The amendment prohibits discrimination based on sexual orientation. Not surprisingly, many employers are concerned about the potential for increased litigation in light of the new law. Some employers may be surprised to learn that current federal law has been used to achieve a similar level of protection. A recent decision from the federal appeals court demonstrates the extent that such protection is provided under Title VII of the Civil Rights Act (Title VII).

The U.S. Court of Appeals for the Third Circuit, which has jurisdiction over the federal courts of Delaware, Pennsylvania, New Jersey, and the Virgin Islands, ruled in late August that a homosexual employee could proceed with his claim that he was harassed and fired because of his “effeminate behaviors.” The unanimous decision of a three-judge panel in Prowel v. Wise Business Forms, Inc., has made headlines across the country as an extension of Title VII’s sex-based discrimination provisions. Brian D. Prowel brought the claim after he was terminated by his employer after 13 years with the company. He alleges that Wise told him that he was being terminated for lack of work as part of a workforce reduction. 

According to Prowel, his termination actually was a result of “gender stereotyping.” Unlawful gender stereotyping in the workplace occurs when an employer discriminates against an individual because the individual fails to conform to a certain perception about how the gender should look and act.

Prowel claims that his coworkers called him “Rosebud” and “Princess” because he was well dressed and well groomed and did not engage in rowdy and distasteful behavior like his male colleagues. Coworkers, Prowel claims, left items such as a pink, feathered tiara and anti-gay religious pamphlets on his desk. In other words, Prowel claims that he was harassed and eventually terminated because he didn’t act “manly enough.”

Although the Prowel Rule May Be New, A Much Older Rule Still Applies

Organizations with employees in Delaware, Pennsylvania, and New Jersey should be mindful of the court’s ruling in Prowel, not because it stands for an expansion of the anti-discrimination laws, but because it strongly supports a principle that is much older than Title VII: Do unto others as you would have them do unto you. If an individual is being harassed, he will likely be able to characterize the harassment as being based on some protected characteristic. If no harassment occurs in the first place, there will be no need to split hairs over the true reason that he harassment occurred. Thus, to avoid being faced with a claim of unlawful harassment, the best practice is to strictly prohibit any kind of taunting, mockery, or from occurring in your organization’s workplace.

Job candidates are often unaware of the importance of their resumes. It surprises me, really, how little attention seems to be paid to not just the content of resumes but the appearance of resumes.  When I encounter a beautiful resume, I take notice.  And if I interview a candidate with a flawless resume, I'll ask the candidate how they went about creating it.  Did they have it reviewed by a teacher or career services?  A candidate who responds that she sought advice of multiple people, in academics and in the professional world scores very well.  It tells me that she's passionate about the way she presents herself and takes great pains to get the details just right.

So you can understand my dismay when I read a question from a reader sent in to the excellent blog, Ask a Manager.  The reader asked whether the font used on a resume really matters.  And, specifically, whether a resume created using the font Comic Sans can ever really be taken seriously. This is an example of Comic Sans.

The answer, in short, is "no."  Comic Sans was a font created by Vincent Connare for Microsoft in 1994. The font was intended to be used in the Microsoft Bob program, which was intended for children.

Despite Connare's insistence that the font was not designed as a typeface, it's been used as one ever since its release--much to the dismay of typography enthusiasts.   Comic Sans is a font that says frivolity, light-heartedness, and playfulness. Comic Sans does not say professional, serious, or knowledgeable.  So, unless  you're applying for a job at a day-care center, please, please, respect your document and skip the kiddie fonts.  To learn what you should do with your resume, check out Typography for Lawyers, where Matthew Butterick puts out some terrific posts on this very topic.

(Need more proof that Comic Sans is no laughing matter?  Check out the Ban Comic Sans website.  There's an entire movement devoted to eradicating the professional world of this silliness.)

Applicants' social-networking sites may now be reviewed as part of the Character and Fitness process for applicants to the Florida State Bar Association.  According to the ABA Journal, the Florida Board of Bar Examiners voted to review applicants' social-media activity on a case-by-case basis. The board will review sites like MySpace and Facebook only for candidates who have a demonstrated history of troubling conduct.  

What's my take on this news?

1.  It was inevitable.  It was only a matter of time before it happened.  The President required applicants to disclose their online activities, so why wouldn't the state bar associations?

2.  It's not a terrible idea.  If the state intends to have a truly effective screening process, the more information gathered, the better.

3.  I'm not crazy about the idea of only looking at the sites of "problem" candidates.  Having not given it too much thought, my first inclination is to argue for a random selection process instead of selecting only candidates who have a history of issues.

4.  I am also inclined to disagree with the decision not to make an up-front request to all applicants for access.  The bar association says that "if applicants are required to provide access to their social websites, they are likely to delete any derogatory material before staff has the opportunity to review it."  As I've previously argued, it's the ones who are warned in advance and still don't remove potentially offensive material that we should really be concerned about.  I think this is a more effective checks and balances on exactly what conduct or behavior will count "against" an applicant (for bar admission or employment).

Related posts:

Job applicants required to submit Facebook passwords for background checks

More Stories from the Facebook Frontier

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

How to Become an Employer of Last Resort: Require Applicants' Facebook Passwords

There is much hype about the power of social media. A quick search of the Internet will generate countless links to countless websites where self-named social-media gurus profess the benefits of engaging in various Web 2.0 media, such as blogs and microblogs like Twitter.  Building business, getting referrals, finding new clients, and getting positive publicity are all possibilities, so they say.

But an article on ABA Journal questions the value of legal blogs at all.  One blogger conducted an "unscientific survey" and concluded that legal blogs are very short lived.  Several of the blogs he reviewed had stopped posting after just a few months. Why the sudden death for so many of my potential blogging peers?  Too much work, too little return, says the article.

I recently read The Carrot Principle, an absolutely fantastic book about motivating employees through reward and recognition. It was such an incredible book that I immediately bought five more copies, which I sent to some of my clients who are particularly in tune with the wonders of an engaged workforce.  The recently published second edition of The Carrot Principle includes a wealth of research that supports what I know to be true:  Happy employees are the key to a successful organization.  And happy employees are those who receive consistent recognition for the work they do.

If you are a manager who is worried that recognition will create an "entitled" workforce, whose demands increase the more recognition they receive, read this book. Your worries will be disproved.

If you are a manager who does not have a formal system for recognizing and rewarding your direct reports but you fundamentally believe that recognition is valuable, read this book.  You will learn why you need a real system to ensure recognition is done effectively. 

If you are a manager who already has a formal system in place for recognition and reward, buy this book and send it to your manager, the President, or CEO of your organization.  Help them learn why recognition must be in place throughout the company.

And, if you're not a manager, read this book. Everyone can make a difference by showing gratitude to others every day. Gratitude is a grass-roots movement and it takes just one person to start an engagement revolution.

The start date for the mandatory E-Verify program for federal contractors and subcontractors is now set for September 8, 2009. Further postponements are not expected. The U.S. Citizenship and Immigration Services has posted a Frequently Asked Questions page to help contractors understand the new requirements, and I highly recommend that all employers with federal contracts or subcontracts read it. All employers are permitted to participate in E-Verify, but federal contractors and subcontractors who do not comply risk debarment (loss of their ability to obtain federal contracts and subcontracts).

Related Posts:

OFCCP Delays the Start Date for Mandatory E-Verify Yet Again

News on E-Verify for Federal Contractors

Federal Contractor E-Verify Rule Is Final!

Attention Government Contractors!! You Are Being Ordered to Use E-Verify!

Yesterday, I posted my thoughts on typos in cover letters and resumes.  Although I am in the camp of thinkers who believe that resume mistakes are big red flags, I also believe that we are keepers of our own destinies. So, instead of complaining about the lack of proofreading and editing skills, I’ll point you to a great article on this very same topic.  Lisa A. Mazzie has an outstanding article, titled, Be Wise: Revise, posted at the State Bar of Wisconsin’s Wisconsin Lawyer.

The article includes a Sample Revision Checklist,which is on the simple side but an excellent way to make sure your writing hasn’t lost its focus—especially as that filing deadline approaches.  The checklist is a great reference for new associates starting this fall. 

[H/T to Legal Writing Prof Blog]

And if you really want to improve your writing skills, the blogosphere contains a jackpot of resources. Start with our list of The Top 30 Blogs on Writing.

Legal Writing Prof Blog says that it may and it may not. I agree in theory.  In reality, though, I must respectfully disagree.  The answer to the question posed in the title is "Yes." 

I've seen it happen too many times to count.  A candidate makes it past the initial screening process but is eliminated during the first-round interviews, not because of anything that goes on in the actual interview.  Instead, the hiring manager spots a typo in the candidate's cover letter or resume and makes the decision not to hire her before the interview even begins.

Do I agree with this method of elimination?  Well, it depends.  If the candidate pool is entry-level college graduates, I tend to be a lot more forgiving. My experience has been that undergraduate students and recent graduates have not been taught the make-or-break nature of proofreading.  As a result, I tend not to make an elimination decision based on a single typo.

Now, when it comes to law students, it's a different story.  I don't expect law students to have perfect proofreading skills. But, what I do expect, is for them to take advantage of the resources available to them.  Law schools provide any number of resources to their students for this purpose, including career-center services and even resume-review services. My alma matter has a whole day devoted to resume reviews, when students can stop in to have their resume reviewed by practicing lawyers and professors alike.  I've been asked by a number of job-seeking students to critique their resumes.  In short, a resourceful student with the foresight to plan ahead and the initiative to be creative enough to find a sufficiently broad pool of potential reviewers, will not have a single typo in any document they provide to a potential employer.*

I also must take issue with the statement that a student with an outrageously good resume can escape the negative effect of a flawed resume. If a resume is brimming with very prestigious credentials but contains a typo, the typo doesn't get overlooked.  Instead, the overlooked mistake indicates that the candidate, who otherwise appears brilliantly qualified, must not be interested enough in the position to put those qualifications to work. A mistake by someone who doesn't know any better is, to me, less of a turn off than carelessness by someone who does.  Carelessness is a sign that the candidate must not want the job, after all.