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.
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.
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.
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.
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. (SeeEagles 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.
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.
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.
For the first quarter of 2009, the Employee Free Choice Act (EFCA), was front page news, and the subject of scores of seminars, webinars and spirited discussions. Since then, it has virtually disappeared from view. Aside from a few rumors about possible Senatorial compromises, EFCA became a nonevent during the balance of 2009. As we move into 2010, an election year, will we see an effort to revive and enact EFCA in some form? I’m betting we will.
First of all, the current Congressional makeup is likely to be a high-water mark for union supporters that will recede after the November 2010 election. So it may be now or never for EFCA proponents. And now that the heavy lifting has been completed in the Senate on health care reform, and the economy has begun to stabilize, it seems like a more propitious time for President Obama and the Democrats in Congress to turn back to what was first on the unions’ wish list. Andy Stern, president of the SEIU and a regular White House visitor, has said recently that he expects Congress to take up EFCA in the first quarter of 2010. That sounds right.
The version of EFCA that is enacted will probably omit the card-check provision that caused the most angst among opponents. The unions may seek to retain the other major change, requiring interest arbitration of first contracts (after an unreasonably short period of negotiations.) Reducing the time for a union election to be conducted after a union files its petition will certainly remain in the final version. Some companies, anticipating EFCA’s passage, have begun regular union-avoidance training for all employees. Others have held training sessions for supervisors, who act as the early warning system for recognition of union organizing activity. Thoughtful employers who want to remain union-free should be considering their options and taking proactive steps in anticipation of the passage of EFCA in some form.
The line between work and home is hardly visible. To describe it as “blurred” would be inaccurate. The reality (for most of us) is that the line can barely be seen and, for some, only fades into existence occasionally for short intervals. And there seems to be little debate about the validity of this conclusion. The debate begins only when the question is asked whether this reality is a positive or negative one.
For most, I believe it’s perceived negatively. At least it sounds that way when I hear it discussed. Because what normally follows is the argument that, because of the “blurred” line between work and home, a metaphor most commonly described with a visual of a worker whose Blackberry must be surgically removed from his hand, employers must permit employees a bit of “leeway” in their electronic follies. For example, the story goes, because employees may be expected to respond to a client emergency after normal business hours, they should be permitted to do some online shopping during the work day. Or, another story goes, because employees are working more hours than ever before, they have no choice but to do some online banking from their office. The need to send personal e-mails, browse the malls of cyberspace, and update one’s Facebook status takes precedent over the need to [gasp] work.
I just cannot buy into this nonsense. The argument that employees should retain some right of privacy in the e-mails that they send from the account provided to them by their employers, using the computers purchased, maintained, and serviced by their employers, on a network owned by their employers, using bandwith that their employers intended for use for work-related purposes, is a losing one to me.
Those who argue in favor of this alleged entitlement for online detours during the work day must forget that not all employees are exempt. In fact, most workers are non-exempt, meaning that they must be paid (by their employer) for all time worked in excess of 40 per week. (More in some states, mind you.) So , non-exempt employees who take short detours to e-Bay via the information superhighway during working time have one of only two impacts: either they are being paid for something they’re not actually doing—some might call that stealing, or they are getting paid time and a half for it because they need to stay late to get their work completed on time. There’s also a third option: that the employee completes his or her work in a hurry or in a half-done manner to expedite his access to the Internet.
To me, none of these three is an acceptable solution. Has it really become acceptable to demand we be given the choice to not work while at work? Maybe the manufacturing sector is the only one that hasn’t lost its collective mind by taking breaks of designated lengths at designated intervals but actually working during the rest of the work day. Not so novel, really, but seemingly a rarity in the office environment.
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.
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.
Retaliation claims brought by employees who have complained about discrimination or harassment in the workplace have increased dramatically over the past several years. They now account for more than one-third of all claims filed with the EEOC. At the same time, the Supreme Court has issued a series of rulings that have expanded the types of retaliation claims an employee may bring. This presentation will inform you about retaliation claims and give you strategies to avoid liability. When it comes to dealing with employees, revenge is a dish best not served at all.
Attorney Michael P. Stafford will present this 90-minute seminar in our Wilmington office. The cost? Free. First come, first serve, though, so don’t delay. E-mail Felicia G. (be sure to include “Breakfast Seminar” in the subject line) or call 302.571.5718 to sign up today.
I continue to be amazed by some of the less-than-best writing practices of my friends and colleagues. Many of these practices relate to the ways in which they format documents. I recognize that many of these practices derive only from habit--not bad intentions. But that doesn't make them any less annoying. And what makes them more annoying is the irrational devotion they garner.
What are these habits, you ask? Truth be told, there are too many to list here. But there is good news--I am not alone. There are others who feel strongly about the importance of documents done right.
Minnesota bankrupcty court judge Robert Kressel is one such sympathizer. Recently, he issued Order Preparation Guidelines for attorneys appearing before him. The Guidelines spell out a variety of writing misdeeds that Judge Kressel wisely abhors.
I have two thoughts about these Guidelines. First, they offer terrific advice that everyone should follow. Second, they demonstrate how helpful style guides can be and make me wish that there were more such guides in place--both in the judicial system and in the workplace.
All of the guidelines are great, really. But a few stand out for me.
The first guideline, for example, instructs parties to submit PDFs that have been converted directly from Word or WordPerfect--instead of by scanning printed paper copies. Amen! Why in the world anyone thinks it is somehow better to print a document and then hard scan that document to PDF positively escapes me. Print to PDF, people. Please, I beg you! As Judge Kessler points out, it saves tremendously on the size of the PDF. And it also provides a far better looking final document, as well as a searchable document. A document that is printed to PDF (as opposed to scanned) can also accept comments made with commenting tools in Acrobat, such as highlighting and adding "sticky notes." (See my previous posts on the topic of PDFs for better documents for additional inspiration).
Judge Kessler also reminds lawyers to "limit the use of capital letters to proper names." I've discussed the "ALL-CAPS disease" before but it bears repeating. For those of you who have held tight to this habit, please consider resolving to abandon it in the new year. Words that are typed in all capital letters are very difficult to read. For an excellent explanation of the phenomenon, see Robin Williams' highly instructive and enlightening book, The PC Is Not a Typewriter.
There are other resources for those who are open minded and ready to make some positive changes to their document-formatting habits. Ms. Williams' book is a fantastic place to start. (The book is closer to a pamphlet than War and Peace and serves as an excellent desk reference.) The Seventh Circuit has published an excellent and extensive set of guidelines for briefs (pdf). One of the sources cited in the court's guidelines is Ruth Anne Robbins' journal article, Painting With Print (pdf), which is far more detailed and a truly outstanding scholarly work. Finally, specific to the legal profession but applicable for all professions is Matthew Butterick's blog, Typography for Lawyers.
So, wonderful readers, go forth into the new year with standards set high and paragraph alignment set to Left (please, no more justified paragraphs!). These are resolutions that, if kept, truly would help make the world a better place, one document at a time.
The eligibility for the COBRA premium subsidy was about to expire for those individuals who are involuntarily terminated and become eligible for COBRA benefits after December 31, 2009. However, on December 21, 2009, the President signed legislation that extends the eligibility for the subsidy to those individuals who are involuntarily terminated and become eligible for COBRA coverage before February 28, 2010.
The legislation also extends from 9 months to 15 months the length of the subsidy period and the extension applies to those who became eligible for the subsidy after February, 2009, even if their initial nine months has already expired. The extension is retroactive for those individuals who lost COBRA coverage because they stopped paying the premiums due to the expiration of their subsidy. Thus, individuals who became eligible for the subsidy in March were subsidy eligible through November 30, 2009. If such an individual did not pay his or her December, 2009 COBRA premium because the subsidy expired, the individual can re-enroll in COBRA and receive the subsidy for December, 2009 (without any gaps in coverage) and another 5 months until May, 2010.
The COBRA subsidy extension was attached to H.R. 3326, the Department of Defense appropriations bill for the fiscal year ending September 30, 2010 which passed by an overwhelming vote in the House of 395 to 35. According to Rep. Charles Rangel, D-N.Y., chair of the House Ways and Means Committee, “This bill ensures that workers who have lost their jobs through no fault of their own will not lose the unemployment and health benefits they rely upon to provide for their families. The immediate benefits and assistance provided in this bill help provide some measure of economic security for millions of our fellow Americans struggling during this holiday season, helping ease their pain as they search for their next job opportunity.”
More to come as details of the legislation emerge.
*Written by guest author Timothy J. Snyder, Esq. Tim is the Chair of Young Conaway’sTax, Trusts and Estates, and Employee Benefits Sections. His primary area of practice is employee benefits, which involves both the benefit provisions of provisions of the Internal Revenue Service and ERISA. He represents business and professionals in establishing, monitoring, and administering employee-benefit plans, new comparability retirement plans, non-qualified deferred-compensation plans, health, disability and life benefits, COBRA, HIPAA, ADA and ADEA.
Delaware Employment Law Blog ("Blog") is intended for informational purposes only and does not contain any legal advice. The authors of the Blog are attorneys in the law firm of Young Conaway Stargatt & Taylor, LLP, and the views expressed by one or more of the authors, including comments posted by registered visitors, solely reflect the opinions of those authors and not those of the firm or its clients. The publication of and posting to the Blog does not create an attorney-client relationship and the authors assume no liability for the dissemination of attorney-client or confidential information posted on the Blog by registered or unauthorized visitors. The Blog is not intended to be advertising of legal services or any other service. The authors assume no responsibility for inaccuracies.
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