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.

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

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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

 

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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.

Community

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.

Conversation

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.

Transparency

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

 

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