Why NBC Should Have Used Delaware Law In Conan O’Brien’s Employment Contract

Posted by William W. BowserOn January 14, 2010In: Newsworthy

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Yesterday, I wrote that NBC’s dispute with Conan O’Brien might turn on an interpretation of his employment contract. If NBC’s actions were in breach of its agreement, any restrictive covenant preventing Conan from moving to Fox would likely be unenforceable.

Since that post, several commentators have opined that any such restrictive covenant would be unenforceable under either New York or California law—both states have passed statutes prohibiting restrictive covenants in employment contracts.

NBC’s legal position would probably be much stronger if it had included both “choice-of-law” and “choice-of-forum” provisions requiring that Delaware law be used to interpret the agreement and that Delaware courts interpret the agreement. Teresa Cheek’s recent post on this topic details the real advantages of using Delaware law in employment contracts involving executives or key employees.

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What Can Employers Learn From Conan O’Brien and NBC?

Posted by William W. BowserOn January 13, 2010In: Employment Contracts, Newsworthy

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Just a few days ago, NBC announced that it was moving the Jay Leno Show from its current 10 p.m. starting time to 11:35 p.m. This move was prompted by complaints from NBC affiliate stations that the Show’s poor performance was damaging the ratings of their local news programs and their profits. The move of Leno’s show, however, will require moving the start of the Tonight Show to 12:05 a.m. Yesterday, Conan O’Brien released a statement objecting to the changes and threatened to leave the show. What can employers learn from this high profile, high-stakes predicament?

Conan and Leno are employees of NBC and their rights and obligations are governed by employment agreements. As a result, the options of all three parties will be determined by the terms of these agreements.

Conan’s threat to bolt from NBC is likely based on a basic tenet of contract law: a party to a contract is relieved of the duty to perform (no pun intended) if the other party to the contract materially breached the contract first. While I have not seen the terms of Conan’s agreement with NBC, the final resolution of this highly public squabble may well turn on whether NBC’s actions are in breach of its agreement with Conan.

But how does the Conan-NBC contract apply in the real world? Well, Conan’s agreement with NBC, like many employment agreements, probably contains express restrictions on Conan’s ability to jump to another employer. Indeed, rumors are flying that Fox may be interested in bringing his talents to that network. If Conan can show that NBC actions materially breached his contract, he could be relieved his contractual obligation to provide a show for NBC and any restrictions preventing him from jumping to another network.

As a result, an employer should always make sure that any material changes affecting a key employee are in compliance with the terms of any employment agreement with that employee. If not, a court may refuse to enforce any non-competition provisions contained in the agreement.

GINA Presentation to Delaware SHRM

Posted by Adria B. MartinelliOn January 13, 2010In: Genetic Information (GINA)

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I had the pleasure of speaking to the Delaware SHRM membership last night on the topic of GINA, the new federal law protecting against discrimination based on genetic information.  It was a great audience, and a topic of considerable interest.  My handout is below.

Having gone into effect in November 2009, but without any regulations issued yet to help us interpret this brand new protected category, there are many good questions left unanswered.  We will keep you posted on when the final regulations are put into place.

In the meantime, there are some interesting issues and potential scenarios that are worthy of greater discussion.  My plan is to address some additional questions on  GINA issues here in this blog.  Until then, you can read more about GINA in this previous post: Genetic Information Nondiscrimination Act Update.


Handout for GINA Presentation to Delaware SHRM by Adria B. Martinelli

Discrimination Charges Filed With EEOC Remain at Record Levels

Posted by Teresa A. CheekOn January 12, 2010In: EEOC Suits & Settlements

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The U.S. Equal Employment Opportunity Commission (EEOC) reported that it a record number of discrimination charges in FY 2009, the second-highest number in its history. Race and sex discrimination continued to be the most frequently filed, but religion, disability and retaliation claims all reached new highs. EEOC investigates and enforces claims of discrimination under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).

Notable statistics relating to resolved claims (those resolved via settlement, withdrawal, and conciliation), include:

  • EEOC resolved 85,980 charges.
  • Resolved charges resulted in $294.2 million in relief for claimants. 
  • Total relief represented a $20 million increase over FY 2008.


Notable statistics relating to "merit" lawsuits (suits filed by EEOC against employers who refuse to comply with information requests or who allegedly breach settlement agreements), include:

  • EEOC filed or intervened in only 281 “merit” lawsuits
  • This is the lowest number of new merit cases for a fiscal year since 1997, according to the EEOC’s online statistics, and is down from a high of 438 merit cases in 1999.
  • EEOC resolved 321 “merit” cases, for a total of $82.1 million, a decrease of about $20 million from FY 2008.

The Delaware Department of Labor (“DDOL”) handles most discrimination charges filed against Delaware employers. The DDOL and EEOC have a work-sharing arrangement. The DDOL has a mediation program for newly filed charges in which employers can participate before filing a substantive response to the charge. Mediation can result in a low-cost settlement with a minimum of disruption and negative publicity. Neither the DDOL nor EEOC publicizes settlements reached during the administrative process--another reason to consider settlement at this stage of the dispute. Employers who are curious about the types of cases that the EEOC likes to file can review its press release page, where it publishes, on a daily basis, news releases about cases it has filed and settled.

Example of Electronic Discovery in Employment Law

Posted by Molly DiBiancaOn January 12, 2010In: Purely Legal

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For the uninitiated, electronic discovery has changed the nature of how litigation is conducted and the obligations imposed on litigants when it comes to the preservation of electronically stored information.  A litigant who fails to take the necessary steps to preserve his electronic data can be sanctioned for this conduct, also known as “spoliation.” 

Sanctions for spoliation can be extreme.  Stories abound and there are cases that show how severe the sanctions can be.  It’s not that common to read e-discovery cases in the context of employment litigation.  And, when e-discovery and employment law mix, it’s usually the employer that pays is on the receiving end of sanctions—most often by way of the improper deletion of e-mails. 

So, when a case comes along that deals with e-discovery and employment law but where it’s the employee-plaintiff who is being sanctioned, it’s particularly noteworthy.  Jason Shinn, at Defending the Digital Workplace, writes about just this type of case.  According to Jason, the Michigan Court of Appeals affirmed a trial court’s decision to dismiss a plaintiff’s sexual-harassment lawsuit with prejudice.

In Gillett v. Michigan Farm Bureau, Mich. Ct. App., No. 286076, (Dec. 22, 2009), the Court a Appeals affirmed the dismissal, which was granted as a sanction for  the plaintiff’s deletion of digital evidence.  The case began when the plaintiff’s attorney wrote a demand letter to the employer.  The employer’s attorney responded with a letter of his own, instructing the plaintiff to preserve his personal e-mails. 

To say that the plaintiff failed to preserve his e-mails would be putting it mildly.  To read the details about just how egregious this failure was, you’ll have to hop over to Jason’s informative post.  But the lesson that I want to emphasize here is simple: failure to preserve electronic data can lead to very serious consequences, including a total defeat in litigation. 

Do you have a document-retention and –preservation plan in place?  Do you have an action plan for communicating that a litigation hold has been issued, if the need arises?  If you don’t, now is the time to consult with your in-house IT professional and your employment or corporate counsel to get an effective plan in order.

Learn by Example: Top Social Brands of 2009

Posted by Molly DiBiancaOn January 7, 2010In: Social Media in the Workplace

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The best way to learn about social media is from the examples of others.  This includes both good and bad examples--you can learn quite a bit by studying the social-media blunders of organizations, as well as how they responded to the blunder.  So anytime I talk to organizations and, specifically, to HR professionals about how they can put social media to use, I try to give examples of organizations that are getting it right.  (Sodexo and Deloitte & Touche are two of my consistent favorites).

Virtue, a social-branding company, has published its "Top 100 Social Brands of 2009."  The list is an ideal place to start when trying to see what others are doing in the world of social media. 

Interestingly, neither of my two favorites are on the list.  But this is largely a result of the way values were assigned.  I'm interested in companies' uses of social media for hiring, recruiting, and engagement.  Virtue's perspective, as I understand it, is largely product based (i.e., a hard-dollar return). 

Nonetheless, it's a great starting point to get some very innovative ideas for what can be done in the world of social media.

Related posts:

Social-Media Policy Ideas

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

3 Reasons Why Employers Don't Have a Social-Networking Policy


  Follow me on Twitter @MollyDiBi

Why the Philadelphia Eagles (Still) Need a Social-Media Policy

Posted by Molly DiBiancaOn January 7, 2010In: Social Media in the Workplace

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The Philadelphia Eagles have already had at least one negative experience with social media.  You may recall that, in March 2009, the organization received a lot of negative publicity following its termination of an employee who made less-than-favorable comments about the team's decision to trade Philly favorite, Brian Dawkins--those comments were posted on the employee's Facebook page.  (See Eagles Employee Gets Benched for Comment on Facebook Page). 

Despite the negative pushback, the organization stuck with its decision to terminate the employee.  So you'd think that it would have taken the initiative to draft a social-media policy (or at least some guidelines) for employees' use going forward.

Well, either the policy never got written or an employee violated it because the Eagles have made the news again with another social-media snafu. An employee decided it would be a good way to show team enthusiasm, I guess, to spit (yes, spit) on the midfield star at the Dallas Cowboy's new stadium. Not only to spit (twice, to be specific), but to video tape himself spitting. Oh, wait, it gets better.  He posted the video to the team's web site

Wow.  How many things are wrong with that story?

The employee, who also is the team's web site editor, posted an apology on the site on Wednesday and the video was removed from the site.  As proof of the maximum that everything that is posted on the Internet is permanent, the video was grabbed and posted on You Tube. The apology included the disclaimer that he was acting "alone and without permission from the Eagles organization."

This story is an example of several important principles.  Here are a few that come to mind:

1.  Have a social-media policy that prohibits employees from disparaging anyone, including competitors or rival organizations.

2.  Educate employees on what constitutes good and poor judgment.  This conduct should have been an obvious example of what not to do, in my opinion, but, the painful reality is that it wasn't.  As evidenced by the fact that the employee posted the video on the team's web site. 

3.  Use this example as a teaching experience.  Communicate to other employees in the organization what went right and what went wrong here and use this as a learning opportunity. 


Related Posts:

Social-Media Policy Ideas

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

3 Reasons Why Employers Don't Have a Social-Networking Policy

Social Media Policies: What about my “friends”?

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies




    Follow me on Twitter @MollyDiBi

Lexis-Nexis Brings Cases to the iPhone

Posted by Molly DiBiancaOn January 5, 2010In: Resources, Tech Tips

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Thanks to iPhone J.D. for alerting us to this new app from Lexis Nexis.  Lawyers, you can now get your case law on the go.  According to iPhone J.D.,’s thorough review, the app doesn’t yet give us access to statutes (odd) but it is free, which is a good thing. 

The 3 Principles of Social Media: How to be a good online citizen

Posted by Molly DiBiancaOn January 2, 2010In: Social Media in the Workplace

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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.


Related Posts:

Social-Media Policy Ideas

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

3 Reasons Why Employers Don't Have a Social-Networking Policy

Social Media Policies: What about my “friends”?

Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies



Follow me on Twitter @MollyDiBi

Whatever Happened to the Employee Free Choice Act?

Posted by Sheldon N. SandlerOn December 31, 2009In: Union and Labor Issues

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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.

When Did Working at Work Become Optional?

Posted by Molly DiBiancaOn December 31, 2009In: Privacy In the Workplace, Social Media in the Workplace

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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.

Oh, hogwash.

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.

Last Chance to Vote in ABA's Top 100 Blawgs

Posted by Molly DiBiancaOn December 30, 2009In: Delaware Specific

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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.

Click here to register to vote. 

Click here to see the list of all 100 blogs.

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!!

EEOC Proposes to Fix Its Broken System [Insert Snarky Comment Here]

Posted by Molly DiBiancaOn December 30, 2009In: EEOC Suits & Settlements

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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. 



Follow me on Twitter @MollyDiBi

Interview with Delaware Supreme Court Chief Justice

Posted by Molly DiBiancaOn December 29, 2009In: Delaware Specific

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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 Steeleimage

It's well worth stopping by Francis' excellent blog to read the insightful commentary of the Chief Justice. 

Jan. 29 Breakfast Seminar: Retaliation

Posted by Molly DiBiancaOn December 28, 2009In: Seminars, Past

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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.