5 Non-Negotiable Provisions for Your Social-Media Policy

Posted by Molly DiBiancaOn February 4, 2010In: Social Media in the Workplace

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Less than one-third of U.S. employers have a social-media policy, according to Manpower in its recent study, Social Networks vs. Management? Harness the Power of Social Media. Not that this is a surprise.  Frankly, I’m more surprised when an employer actually does have a social-media policy in place. The recently published regulations of the FTC regarding employee endorsements and social-media sites may prompt some employers to get working on that policy. And, if that’s the case or if you’re considering a social-media policy for any other reason, here are some tips to help you on your way.

Before You Draft

There are three steps that must be completed before you can get to the heart of it and start to collaborate on the actual content of your policy. I’ve written about these steps before, so I’ll just touch on them here.

First, you have to educate the decision makers about what social media is all about. Likely, this means you’ll need to get at least some of the C-Suite to participate in social media to some degree. A lot of hand-holding is both appropriate and effective. Don’t expect executives to squeeze time into their already crammed schedules to learn about social media just for the heck of it. Work with them by doing the legwork for them. Collect relevant blog posts and send them to the decision maker once a week. Or monitor Twitter for mentions of the company’s name and provide those as part of your regular update. Anything to show them that social media is relevant.

Before putting pen to paper, employers should start with the 3 most important questions: Who, What, and Why. I’ve discussed these in more detail in an earlier post (See Social Media Is Here to Stay: Time to start that social-media policy). Generally, these questions address the following:

First, who will be regulated by the policy—i.e., will certain job titles or departments be excluded altogether or subject to less restrictions?

Second, what will be regulated—will all online activity be subject to the policy or only when the employee somehow associates himself with your organization (for example, by using his company e-mail account in his Twitter profile).

Third, why are you writing a policy in the first place? Is it to encourage employees to get out there and embrace social media, hopefully with some resulting benefits returning to the employer? Or are you trying to regulate online use of social-networking sites because productivity has become an issue? There are infinite variations of those two choices and your organization needs to settle on one before you start hashing out actual policy provisions.

Non-Negotiables

Regardless of what types of activity you decide to regulate with the policy and regardless of who will be subject to the policy’s provisions, there are certain standards that can be applied universally. I call these the “non-negotiables” of social-media use. Truthfully, many are likely to already exist within other company policies, such as an anti-harassment, confidentiality, or privacy policy. But not all of them. And not in one single policy. Here are some of what I consider to be “must-have” prohibitions or restrictions when it comes to employees’ use of social media, a set of “social-media principles,” if you will.

Keep Confidential Information Confidential. Company information should not be shared outside the company. Similarly, any activities that occur at the Company’s facilities should not be shared outside the company. Do not post pictures of Company events or of the interior of the Company’s facilities without express authorization. Do not share any information about clients or customers and do not identify any clients or customers by name or otherwise.

Be Nice. Do not post derogatory, defamatory, or inflammatory content about others for any reason. Disagreeing with another person’s opinions or actions is a legitimate form of expression. But express your disagreement in an intellectual and rational way supported by facts and references and free of any overt or underlying nastiness or hostility. Stay calm even if others post information about you or the Company that is untrue.

Do Not Break the Law. Do not engage in illegal or unlawful activities—at work or at any time. Do not publish pictures or other information about your participation in illegal activities. Similarly, do not publish anything that infers or implies that you are engaging in illegal conduct.

Protect Privacy Rights (of Yourself and of Others). Be very cautious about the ways in which you share personal or private information about yourself with others online. Assume that your coworkers and clients wish to maintain their privacy, as well. Do not post pictures of coworkers without their express permission. Do not share details of others’ personal lives online unless they’ve expressly authorized you to do so. Assume that anything and everything you post online will stay online forever, for anyone to see. If that makes you think twice about posting the information, then don’t.

Standards of Conduct Still Apply. Any conduct that would be grounds for dismissal if performed at work will be grounds for dismissal if performed online. Just as the Company does not tolerate use of race-, religion-, or gender-based slurs in the workplace, an employee’s use of such slurs in cyberspace will be grounds for immediate termination. Similarly, just as workplace harassment will not be tolerated, harassing behavior that is conducted online will not be tolerated. Threats of violence towards others, like hate-based language and harassment, is grounds for termination.

See these earlier posts for more help with your social-media policy:

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

The 3 Principles for Social Media:  How to Be a Good Online Citizen

Sample Social-Media Guidelines

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

Sample Social-Media Policy Ideas

Social Media Policies: What about my “friends”?

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

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Inappropriate Comments In the Workplace Cause Problems in the White House

Posted by Lauren Moak RussellOn February 3, 2010In: Newsworthy

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President Obama’s Chief of Staff has caused quite a stir. Reportedly, in a fit of frustration, Rahm Emanuel called participants in a White House meeting “ f---ing retarded.” Sarah Palin, who has a son with Down’s Syndrome, quickly spoke out about the inappropriate nature of the comment  on Facebook. The statement drew additional attention because this is the second time that a member of the Obama Administration has had to apologize for making an insensitive comment regarding the mentally disabled.

Emanuel apologized for the comment to Tim Shriver, who heads the Special Olympics.  The organization has launched a campaign urging people to stop using the term "retarded" as an insult, "Spread the word to end the word."

There is a valuable lesson to be learned from Rahm Emanuel’s comments. Political correctness for its own sake can make personal interactions unnecessarily burdensome. Instead of trying to be politically correct, try to be kind.  A little sensitivity and forethought can help to avoid embarrassing foot-in-mouth moments.

This post was written by Lauren Moak, an associate in Young Conaway Stargatt & Taylor’s Employment Law Department.

U.S. DOL to Ramp Up Enforcement Against Misclassified Workers

Posted by Scott A. HoltOn February 2, 2010In: Independent Contractors

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President Obama’s administration will seek more funding for the U.S. Department of Labor (DOL), including more funds to enforce wage and hour laws and pursue employers who misclassify employees as independent contractors. In a press release yesterday, Secretary of Labor Hilda L. Solis outlined the president's fiscal year (FY) 2011 budget request for the DOL, which is built around the vision of "good jobs for everyone."

The FY 2011 budget requests $117 billion, with the majority to be used for unemployment insurance benefits for displaced workers and federal workers' compensation. The DOL's discretionary request of $14.0 billion overall includes $1.7 billion for worker protection programs, a four percent increase over the prior year's budget.

According to Secretary Solis, “[t]he FY 2011 budget will help to make the vision of good jobs for everyone a reality for America's workers. This budget invests in innovation and reform that will play a critically important role in building long-term economic security for workers. At the same time, the budget reflects our commitment to fiscal responsibility, investing in what works and carefully evaluating our programs to make sure that we obtain results that produce good jobs."

The DOL seeks to hire more than 350 new employees, including 177 investigators and other enforcement staff, many of whom will be bilingual to better communicate with employees. The 2011 budget builds on the 2010 budget policy of returning worker protection programs to FY 2001 staffing levels, after years of decline. The Wage and Hour Division of the DOL will receive $244 million, an increase of almost $20 million from the prior year, including funding to hire 90 new investigators.

One particular area that will be the target of enforcement is the use of independent contractors by employers. When workers are misclassified as "independent contractors," they are deprived of benefits and protections to which they are legally entitled,” said the DOL. For example, independent contractors do not receive overtime and are ineligible to receive unemployment benefits. The FY 2011 budget includes an additional $25 million for a Misclassification Initiative to target misclassification with 100 additional enforcement personnel and competitive grants to boost states' incentives and capacity to address this problem. (This $25 million includes the nearly $20 million increase for the Wage and Hour Division discussed above.)

Independent contractors, by definition, are self-employed and because they are not “employees” are not covered by employment, labor, and various tax withholding laws. In some instances employers reclassify employees as independent contractors in order to avoid taxes, payment of overtime and benefits, and workers’ compensation liability. However, whether or not a worker is covered by a particular employment, labor, or tax law hinges on the definition of an “employee.”

The IRS uses a 20-factor, right-to-control test to assess an employers’ tax liability. The DOL often relies on the so-called “economic realities test” or a hybrid of the right-to-control and economic realities test to determine independent contractor status. Some believe the economic realities test makes it harder to classify an employee as an independent contractor, since, in addition to considering the degree of control the employer exercises, it takes into account the degree to which the workers are economically dependent on the business.

The DOL’s efforts to crack down on the use of independent contractors is just the latest in a series of federal initiatives and state laws that have made this issue come under increasing scrutiny. For instance, in December 2009 legislation was introduced in the U.S. Senate that would make it more difficult for employers to classify workers as independent contractors for employment tax purposes. In October of last year, Maryland passed the Workplace Fraud Act, which made it a violation of law to fail to properly classify workers as employees and imposed penalties on those employers who knowingly misclassify their workers.

In July 2009, Delaware passed its own law imposing stiff penalties on construction industry employers who improperly classify employees as independent contractors to save on business costs and avoid paying appropriate taxes.

Nov. 11-12: Advanced Employment Issues (Las Vegas, NV)

Posted by Molly DiBiancaOn February 1, 2010In: Seminars, Past

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This year, Adria B. Martinelli and I will be speaking at the Advanced Employment Issues Symposium in Las Vegas, Nevada, on November 11-12.  (If you can't join us in Vegas in November, maybe you can swing a trip to Nashville, Tennessee, where the Advanced Employment Issues Symposium will be presented on September 30-October 1.) 

The Advanced Employment Issues Symposium is in it's 15th year and is recognized as one of the leading employment-law conferences for forward-thinking human resource professionals, executives, and in-house counsel. This year, there are three featured tracks: Employment Law Enforcement; FMLA & ADA; and Talent Management. 

Registration for the Employment Issues Symposium is open now, with early-registration discounts until March 31.  If you aren't able to attend either of this year's programs, you can order the materials from the registration website, as well.

Hope to see you then!

Another Reason Employers Need a Social-Media Policy: New FTC Regulations

Posted by Molly DiBiancaOn January 29, 2010In: Social Media in the Workplace

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What are the legal reasons that an employer needs a social-media policy? That's a question that I get a lot when discussing social media with clients and others. And, maybe more often, "Are there any reasons that I need a social-media policy?"  This is a complicated question, really. And there are lots of possible answers. But there's at least one new legal reason for employers to stop procrastinating, get the idea out of committee, and get to work on such a policy.

Recently, the Federal Trade Commission (FTC), issued regulations that affect nearly every business--at least every business with a workforce that has access to a computer (either on or off working time). The FTC is the government agency charged with the responsibility of protecting consumers against false and deceptive advertisements, among other things.  The FTC's newest regulations, called the Guides Concerning the Use of Endorsements and Testimonials in Advertising (PDF), sets fairly strict restrictions on employees' use of social media to talk about a product or service offered by their employers.

Section 255.1(d) of the Guides provides that:

Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers. Endorsers also may be liable for statements made in the course of their endorsements.

The key language in this section is that an "endorser" must disclose any "material connection" between himself and the company that sells the product or service being endorsed. In other words, if I am married to a local restaurateur, I must disclose that connection any time I endorse the restaurant. An "endorsement" is any advertising message, including verbal statements, that consumers are likely to believe reflects the opinions, beliefs, or experiences of a party other than the sponsoring advertiser. See Section 255.0(b). So, if I say that my spouse's restaurant, hands down, serves the best braised short ribs a girl could ever have, then I need to add a disclaimer such as, "Of course, I may be a bit biased, since I happen to be married to the chef."

What is the impact on employers?

Under the new regulations, any time an employee endorses your product or service, he is required to disclose his employment relationship. This means that employees must disclose their material connection any time they promote or defend the organization, its products, or its services.

The world of social media provides for an unlimited number of circumstances for this situation to occur. A comment left on a blog, or a tweet on Twitter, or even a few words of praise posted on an employee's Facebook profile could be construed as an endorsement if it "reflects [the employee's] opinions, beliefs, or experiences" about a product or service offered by the employer.

What if the employee fails to disclose the employment relationship?

If an employee tweets about his employer's pizza being the best around, he must do so in compliance with the regulations. Failure to do so and both the employee and the employer are on the hook. Both can be held liable if the comment or statement is false or unsubstantiated. So, if the pizza really is the best in town and you've got the studies to show it, then there's no real risk of liability. But, if an employee leaves a comment on a blog about a particular brand of laundry detergent that works wonders on grass stains, and another person reads the comment, buys the detergent, and isn't satisfied with its stain-fighting powers, there may be problems.

There is no private right of action under the FTC Act but the organization is exposed to investigation or suit by the FTC.

How to prevent potential liability

The critical take-away from the new FTC Guides is this: Employers must have a social-media policy that addresses the ways employees talk about their employers. The social-media policy should make very clear that employees are not permitted to talk about the company or its products or services unless they provide a clear disclaimer stating their affiliation with the organization.

One thing that the Guides fail to address is what constitutes a sufficient disclosure in the social-media context. The examples that are provided in the Guides are scenarios that occur in the context of television ads, when the speaker (endorser) has an opportunity to state his affiliation. This is not possible in 140 characters or less. Is it enough that the employee includes a disclaimer that states his connection to the company in his Twitter profile? Maybe. The Guides do not address this situation and don't give any guidance about how the regulations would be applied in this context.

What if the employee's profile lists a company e-mail address (i.e., Joe@BestPizza.com)? Is that enough to put the average consumer on notice of a "material connection"? Probably not. The Guides do make clear that the disclaimer has to be reasonably apparent to the average person. Asking the reader to imply from an e-mail address that a "material connection" exists is probably hoping for too much.

Until the specifics are known, employers are best advised to take a very proactive approach in order to avoid potential liability. They should include in their social-media policies a provision that specifically addresses expectations for conduct when an employee discusses the company when online. Employers should then train employees on the policy and should not turn a blind eye to a report that the policy has been violated.

The potential exposure to employers for employees' online conduct can seem overwhelming. But the reality is that Web 2.0 is here to stay. It's best to get a policy in place now, rather than wait with eyes closed and hope that the issue simply disappears.

 

Other posts on social media and its impact on employers:

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

The 3 Principles for Social Media:  How to Be a Good Online Citizen

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More Proof that Happy Employees Give Their Employers Lots of Reasons to Smile

Posted by Molly DiBiancaOn January 22, 2010In: Employee Engagement

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Fortune's Best Companies to Work For list is back. And the results are as fascinating as ever.

Software giant SAS landed top honors this year, jumping into first place from 13th in 2009. Although the top slot may be a new position for SAS, it's very familiar with the list--it's been named a "Best Company" for each of the 13 years the honor has been awarded. image

As the largest privately held software business, SAS employs more than 4,000 people in its headquarters outside Raleigh, North Carolina. The company hired 246 new employees in 2009. This statistic is notable not just because of the dismal economy and job market as a whole but also because of the company's incredibly low turn-over rate (2% compared to the industry average of 22%). For every available position, the company received 100 resumes.

The unusually high retention rate can be explained, at least in part, by the perks the company offers its employees. 100%-paid health-care, two on-site day care centers for up to 600 children, as well as summer camp, subsidized cafeterias are just some of the benefits. Google modeled its renowned program after SAS, if name dropping is of any interest. The incredible perks may help explain why the average employee takes only 2 sick days each year.

But SAS says there is another reason for the enduring dedication of its workforce--trust. Most employees set their own schedules and no one keeps tabs on who arrives first in the morning or is first to leave at the end of the day. The company explains that this feeling of trust is a result of an engrained mentality not to treat employees "like criminals."

In short, SAS's strategy of keeping workers happy has generated a fiercely strong and long-lasting sense of loyalty, which, in turn, has meant global success for the entire enterprise. More proof that a happy and engaged workforce means a fiscally healthy organization. So, what are you doing to keep your employees happy and engaged today?

What Can Employer’s Learn From Conan O’Brien’s Severance Agreement?

Posted by William W. BowserOn January 21, 2010In: Employment Contracts, Newsworthy

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It now appears the Conan and NBC saga is coming to the end. It is being reported that Conan will leave NBC with a boat load of cash and will be free to have a new show on another network in the Fall. The specific terms of the deal have not yet been released, but they will definitely be detailed in a contract between Conan and NBC. Such a contract, often called a severance agreement, is used in high risk terminations as a means of avoiding costly and distracting litigation.

The key elements of a severance agreement include:contractguy

  • A provision detailing the nature of the separation. Employees usually want it characterized as a resignation. This allows the employee to search for new work without the stigma of a termination on his or her record. This provision should, of course, describe the last day of work.
  • A discussion of how much money is going to be paid to the employee and how it is going to be paid. This is obviously a key provision for both the employee and employer. While it is unlikely that an employee will be receiving $33 million like Conan, it is likely that some payment will be made. Such a payment may be in a lump sum or paid on some schedule agreed to by the parties.
  • A release of all claims the employees may have against the employer. This release must be broad enough to ensure that the settlement is truly the end of the matter. As a result, it should be drafted in a way that covers all entities and people who may be the target of a lawsuit. It should also cover any particular state or federal statute or claim that can be brought by an employee against a former employer. Special care must be given when drafting a release involving a claim under the Age Discrimination in Employment Act (ADEA). A federal law, the Older Workers Benefits Protection Act (OWBPA), requires that the employee: be provided notice that ADEA claims are being released ; allowed at least 21 days to consider the release; be given 7 days to rescind the release; and be advised that they should consult an attorney.
  • A provision detailing payments for any accrued but unused sick or vacation pay.
  • Provisions detailing the treatment of confidential and proprietary information. It is crucial that the obligations of the employee be spelled in a way that both parties know what is expected of them. For example, it is reported that Conan will be required to leave behind the various characters he and his team developed through their years at NBC. All employees should be required to return any company papers, computers, and the like.
  • Terms describing when and how the departing employee can compete with his old employer. Key employees, like Conan, often have an employment agreement containing a restrictive covenant limiting their ability to work in the future. The scope of such a covenant is often modified during the negotiations involving the employee’s departure. In Conan’s case it appears that he will be able to launch a new show sometime in September. You can bet, however, that there was a lot of discussion over what Conan could do in the interim.
  • A term discussing whether the employer will oppose the employee’s unemployment compensation claim
  • A discussion as to whether the employer will continue the employee’s health care coverage and for how long. Such continuation may be for a number of months or until the employee obtains new coverage from an new employer.
  • A discussion of how the employer will respond to requests for references from potential new employers. Consideration should be given requiring the employee to direct all such inquiries to a specific person who will respond in an agreed upon way.
  • The agreement should require that the terms of the agreement remain confidential or, at a minimum, provide what will be provided to the press or public. Such a provision is especially important in high profile terminations in which each party will need to “save face.”

To catch up on the Conan/NBC saga, see my previous posts, Why NBC Should Have Used Delaware Law In Conan O’Brien’s Employment Contract, and What Can Employers Learn From Conan O’Brien and NBC?

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Blogging Towards a More Productive Workday

Posted by Molly DiBiancaOn January 15, 2010In: YCST

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Just a short announcement that I’ve started a second blog, which is now live, called Going Paperless.  There, I’ll be posting about the ways we can put technology to use for improved productivity and efficiency at work.  There are so many times that I come across helpful tips or tutorials but, until now, haven’t had a forum through which I could share them.  Some of the content will be legal-centric, with an eye to productivity for lawyers and legal professionals, but most of the tips will be equally applicable for anyone who wants to make work easier. 

I hope you’ll join me in the exciting conversation at my new blog.  And, of course, you can keep up to speed on what’s happening at Going Paperless and at DELB via my Twitter feed by following me at @MollyDiBi.

New Study on Organizational Use of Social Media

Posted by Molly DiBiancaOn January 15, 2010In: Social Media in the Workplace

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The Ragan video featuring Mayo Clinic, which I described in the last post, is well timed.  Earlier this week, Cisco announced the findings of a study on social networking and its adoption in the enterprise.  Based on interviews with more than 100 companies , the study explores the primary tools being used, which areas of business are adopting them and how they're putting them to use, and some of the challenges that are arising.

One of the lead researchers, Neil Hair of the Rochester Institute of Technology, discusses two of the study's most interesting findings:  the proliferation of social media tools to new areas of the business and the growing need for governance models.  Both are issues facing the modern employer.

 

For more examples of great social-media ideas, see these related posts:

Learn by Example: Top Social Brands of 2009

Social-Media Policy Ideas

Sample Social-Media Guidelines

 

 

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Learn by Example: How Mayo Clinic Keeps Employees Engaged with Social Media

Posted by Molly DiBiancaOn January 15, 2010In: Social Media in the Workplace

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If your organization is considering putting social media to use but is struggling with innovative ways to use these new tools, there's no need to reinvent the wheel.  Instead, look to others who have come up with these ideas and implemented them in their workplace.  In a short video On My Ragan TV.com, Mayo Clinic's Linda Donlin discusses how the hospital uses video, enewsletters, blogs, and other tools to keep staff informed about strategic initiatives and to keep personnel engaged at work. 

 

 

For more examples of great social-media ideas, see these related posts:

Learn by Example: Top Social Brands of 2009

Social-Media Policy Ideas

Sample Social-Media Guidelines

 

 

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U.S. DOL Job Tools Voting Ends Tomorrow

Posted by Teresa A. CheekOn January 14, 2010In: Internet Resources

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The U.S. Department of Labor (DOL), has been conducting an interesting online initiative designed to identify the best online job search and career advancement tools. They currently have 610 tools (!) posted on their site and are seeking input from people who have used the tools.

The tools fall into categories such as general job boards, niche job boards, career tools, career exploration guides, and web 2.0 / social-media sites that specialize in job searches or postings. Visitors to the site are encouraged to try the tools, comment on them, and recommend the ones they like. In a YouTube video on the website, Secretary of Labor Hilda Solis explains the initiative. The DOL promises to publish the tools that rank the highest on its website and also to encourage the creation of a nationwide network of “One-Stop Career Centers.” Voting ends on January 15.


Anything that the DOL can do to help job seekers is a good thing.

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.