January 30: FMLA Briefings

Posted by Molly DiBiancaOn December 31, 2008In: Seminars, Past

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Our FMLA breakfast briefing sold out in two days!  Thank you to everyone who registered so quickly for this update on the new FMLA regulations.  If you weren't one of the early birds, don't worry, we're adding a second session. 

Due to the immense popularity, we're adding a second session.  We will conduct the same presentation at 2 pm on January 30, 2009.

Other than the time, everything about the seminar will remain the same.  Same place (the YCS&T offices in downtown Wilmington, Delaware).  Same date (January 30, 2009).  Same great presenters (William W. Bowser, Scott A. Holt, and Molly DiBianca).  And the same maximum attendees per organization per session (2). 

Don't delay, though, the afternoon session is expected to sell out almost as quickly as the morning session did. 

Seminar Update

As promised, we've uploaded our slides from the presentation. And, while we were at it, we also downloaded the DDOL's regs and added them to the PDF so you have all of the FMLA resources in one place. The better-looking version requires Adobe Reader 9, which is a free download that doesn't require administrative rights. If you're using an older version, switch now, you'll love it. If you can't, though, for some reason use Adobe Reader 9, download this version. Thank you again for attending and we'll look forward to seeing you in April at our annual seminar.

Writing Reference #1: 10 Humorous Writing Blogs

Posted by Molly DiBiancaOn December 31, 2008In: Internet Resources

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New Years' resolutions aren't my thing. If they were, I'd resolve to continue to develop my writing skills.   But, since it's not quite January 1, I'll go with something a little more light hearted first.  Here are 10 of my favorite blogs on which I hope my writing is never featured.   Happy New Year!pens

  1. Apostrophe Abuse
  2. Banterist: Grammar Cop
  3. Grammar Blog: I Get Gerund
  4. Literally, a Web Log
  5. Mr. Rewrite
  6. SPOGG
  7. The Blog of Unnecessary Quotation Marks
  8. The Grammar Vandal
  9. The Perplexicon
  10. Language Log

My Finely Tailored New Year's Resolution: Pens & Pinstripes

Posted by Molly DiBiancaOn December 31, 2008In: Internet Resources

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Writing and legal writing in particular are the actual topics of this post.  As mentioned in an earlier post, I don't actually make any resolutions for the new year.  But I'm a sucker for a catchy title, so I'm going to say this series is about New Year's resolutions anyway.  One of my year-round goals ( i.e., my resolutions),  is to improve my writing skills.  Today there is no more powerful tool than the written word.  The written and spoken word is today's pinstripe suit.  


Most of my court appearances today are made via a teleconference with the judge and opposing counsel also on the phone.  It is not uncommon for me to meet a client in person for the first time after having counseled them for more than a year.  With the phone and e-mail, face-to-face encounters have become less and less common. 

As a result, the image of the lawyer in the perfectly presentable pinstripe suit carries far less significance.  If you never see the lawyer, what he or she is wearing becomes close to irrelevant.  What you do "see" is your lawyer's words.  Which is why it is important to me to maintain a proper "word wardrobe," if you will.

I won't deny that I still love a well-made suit, pinstripe or not, and I won't pretend that I have the slightest intention of abandoning my devotion to fashion.  But I recognize that it will suit me best to invest in today's most important accessories--my writing and language skills. 

In this multi-part series, I'll talk about various ways to improve this valuable accessory and the resources that can help.  For today, here are the ways I work on my writing annually, quarterly, and daily. 


I attend one writing seminar a year.  The best I've ever attended, without a doubt, was one by Bryan A. Garner.  If you ever have the opportunity to attend one of his Legal Writing seminars, you should drop whatever you are doing and sign up.  It can revolutionize your writing.  Especially if you've read his books, his seminars are great for putting that theory into practice.


Then, a few times a year, I ask other writers to read and comment on my work.  Our writing-guru-in-residence, John Paschetto, in particular, is an amazing resource.  I can say, without hesitation, that John is the most skilled writer I have ever had the pleasure to meet.  In addition to being a partner in our firm's Business Planning Section, and a remarkably skilled editor, he also has a way of commenting on the written word in such a way that makes the recipient want to get better. 


And, on a daily basis, I turn to the internet, where writing resources are diverse and plentiful.  Of course, I utilize the current and timely content available in the blogosphere.  I also employ a variety of content-rich websites that cover every topic imaginable and serve as inspiration and motivation when writing becomes more of a chore than a pleasure.   

In subsequent posts in this series, I'll divulge my list of the best resources the web has to offer those who want to improve their writing.  The posts will include:

  1. 10 of the Funniest Blogs About Bad Writing;
  2. 20 Online Dictionaries;
  3. 30 of the Best Blogs About Writing;
  4. 40 of the Best Books About Writing; and
  5. 50 of the Best Writing References Online.

Why Don't Employers Care About Employees' Internet Usage?

Posted by Molly DiBiancaOn December 30, 2008In: Electronic Monitoring

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Employers don't care that their employees browse the internet all day long.  They don't care that employees do their holiday shopping online from the comfort of their offices.  Employers don't care that employees' internet usage exposes their companies to substantial security risks.  I'm convinced--they just don't care. 

Most employers do not have any rules about online shopping during working time.  And, of those employers who do have some sort of web policy that limits employee use, just a few have a program in place to monitor online activities. 

Millennials are the most likely group of employees to put their companies at risk over the holiday season.  An estimated 4 out of 10 U.S. workers aged 18-24 will spend up to five hours shopping online--on their work computers--this holiday season, according to the Shopping On the Job surveyMy Computer

That's more than half a working day!  

Not only are Gen Y employees the most likely to browse the web for that hard-to-find gift but they are also the least worried about the vulnerability of their work computers.  Millennials tend to be less concerned about safe web browsing when compared to their older colleagues. 

Despite the many voices of concern that online activity will have a negative impact on productivity and will expose the company's internal network to serious security risk, there doesn't seem to be much to prevent it. 

Is this because employers really don't understand the amount of potential loss?  Or do they not realize that, without a proactive procedure in place to deal with this risk, employees are not likely to change their habits?  Or maybe employers don't know what types of procedures to implement as a way to combat the potential losses associated with employees' online use during the holiday season. 

Other Posts on Electronic Monitoring in the Workplace:

Survey Says:  Employers' Policies on Technology in the Workplace

Is It Time to Update Your Electronic Communications Policy? If you’re the Mayor of Detroit, the answer is “Yes”

Blogs In the Workplace

Somebody's Watching You:  New Data on Electronic Monitoring by Employers

Would the Economy Be Different If More Women Served on Boards?

Posted by Molly DiBiancaOn December 30, 2008In: Women In (and Out of) the Workplace

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Women who serve on a board of directors do so differently than their male counterparts.  According to two Harvard scholars, there are significant differences between boards with and without female officers. Some of the differences include:

  1. Women are less likely to have attendance problems than men.
  2. The more women on the board, the better behaved are the male directors. 
  3. Women are more likely to sit on monitoring-related committees than male directors. In particular, women are more likely to be assigned to audit, nominating, and corporate governance committees.
  4. Men are more likely than women to serve on compensation committees.
  5. Boards with gender diversity are more likely to hold CEOs accountable for poor stock price performance.

If these conclusions are accurate, would our country's economy be in a better state if only there had been more female directors?  Would women have held corporations more accountable for their conduct?

Spy vs. Spy: New Tools Offer New Ways to Obtain Employees' "Private" Data

Posted by Molly DiBiancaOn December 29, 2008In: Electronic Monitoring

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An employer's right to monitor employees' electronic communications is a very popular topic.  There are numerous questions in this area of the law that remain unanswered.  For example, can an employer can lawfully retrieve an ex-employee's personal e-mails sent and received from the company's computers?  The 9th Circuit took a shot at another big question earlier this year in Quon v. Archer, when it held that an employee's text messages were personal and could not be viewed by the employer--even though the pager used to send and receive the text messages was the employer's property.  Employees' text messages can result in significant consequences for their employment--just ask the former mayor of Detroit. 

What seems to get many employees into trouble is their misconceptions about the security of their electronic data.  It seems that many workers don't believe that their employers could access electronic mail and messages, even if the employer was inclined to do so.  Well, that is just plain wrong.  Electronic data can be retrieved.  And it's a lot easier than you may think.  A new product on the market, Sim Card Spy Elite by Brickhouse Security, is a compelling example of this fact. image

The Sim Card Spy Elite is a recovery device that can retrieve "deleted" data from a SIM card.**  Just pop the SIM card out of a cell phone and insert it into the Spy Elite.  Then insert the Spy Elite into your computer and, Voila!  All of the data that you thought had been deleted from the cellphone is instantly restored.  Names, text messages, and last-dialed numbers are given new life.  The data can be viewed, printed, and even edited--all for the low price of $199.95.   

As technology continues to improve, powerful tools like this are going to become easier and easier for the masses to obtain.  No longer are these items accessible only to security insiders.  Not only should employees be wary of the potential use of these tools by their employers but, as the Larry Mendte saga made evident, employers must also be cognizant of the possible use of spy devices by employees as tools for coworker sabotage and espionage.  It's not as fictional as it may sound.  Just ask Alycia Lane.

**A SIM card is a tiny circuit board for cell phones that contains the user's account information. SIM cards are interchangeable between phones, allowing users to program a new phone by just switching the SIM card.

Top 5 Workplace Resolutions for the New Year

Posted by Molly DiBiancaOn December 27, 2008In: Employee Engagement, Newsworthy

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Do you have a New Year's resolution? Truth be told, I actually don't make any resolutions for the new year.  I'm a hyperactive overachiever with a mild case of OCD who sets [too many] goals throughout the year.  I'm never short on "things to accomplish" come January.  But I'm a sucker for ambitious to-do lists, so I'm posting about resolutions anyway.  image

What resolutions do you expect to hear around the water cooler during the first few weeks of the year?  Based on the most popular topics on this blog in 2008, I bet we could guess what the most popular resolutions might be for 2009.


In no particular order, here are the topics and the corresponding resolutions:

  1. Work-Life Balance:  Spend more family time.
  2. Wellness Programs:  Get more exercise.
  3. Jerks at Work:  Make new friends.
  4. Going Green:  Implement eco-friendly policies at work.
  5. Alternative Work Schedules:  Ask to try a four-day work week. 

Why Telecommuting Could Be the Answer to My Cookie Prayers

Posted by Molly DiBiancaOn December 26, 2008In: Alternative Work Schedules, Telecommuting

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In Delaware, courts take a holiday on December 26.  Accordingly, most law firms are closed for the day, including ours.  And, not surprisingly, many Delaware lawyers will work anyway.  Duty calls. 

Is there a way to accomplish those important work tasks without having to sacrifice family time?  Enter telecommuting. image

Technically speaking, telecommuting is one of many flexible work initiatives.  A telecommuter works from home full-time or several days out of the work week.  Telework or telecommuting involves work that normally would have been performed from a central office setting but can now be performed at home or remote location.  Telework requires the use a computer, an internet connection, telephone, scanner, and, perhaps, a fax machine. 

Telecommuting is an employment arrangement that involves moving work to the workers instead of workers to work.

Proponents of telecommuting claim (with good support), that efficiently run programs can offer employers the following benefits:

  • Cost Savings through the reduction of overhead and fixed costs, such as rent.

  • Increased Productivity of 10-40%, due in part to the absence of typical office interruptions.

  • Improved Motivation of employees who see the program as a sign of trust and confidence.

  • Skills Retention when an employee who would otherwise leave the workplace is able to stay. Includes employees on maternity leave, whose families move out of the area, whose disability prevents them from working in the standard office set-up, or who are nearing retirement but who the employer wants to retain as long as possible.

  • Organization Flexibility is substantially improved. Teams can be created without consideration for geography or the need for travel. 

  • Flexible Staffing by reducing the number of hours worked to those with the highest demand.

  • External disruptions, such as natural disasters, inclement weather, traffic problems, and even security issues, have a lesser impact on the organization's ability to operate at a fully functional level.

  • Enhanced Customer Service, which can be extended beyond the working day or the working week without the costs of overtime payments or the need for staff to work non-traditional business hours.

Each of these claimed benefits have at least some legitimacy.  Although telework may not be appropriate for every type of job or every type of workplace, it certainly seems to be attractive on a day like today when there's no need to be in the office and when my mother-in-law's cookies are guaranteed to be gone before lunch!

For more information on telecommuting or other flexible work schedules, be sure to see the Working TIme category, under Telecommuting.

The Risk of Identity Theft Is Higher Than Ever This Holiday Season

Posted by Molly DiBiancaOn December 23, 2008In: Privacy Rights of Employees

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Identity theft refers to all types of crime in which someone wrongfully obtains and uses another person's personal data in some way that involves
fraud or deception, typically for economic gain.  Identity theft is a serious crime, the effects of which can take years to correct, not to mention the enormous amounts of time and the overall inconvenience that are required. 

Identity theft is a serious enough topic that there is good reason to write about it any time of year.  But right now, there are more reasons than ever.  First, there's the current state of the economy.  In difficult economic times, theft traditionally increases as people become more desperate in the search for resources.  Second, it's the holiday season, when the need for extra money increases, right along with depression rates and anxiety levels. Third, internet shopping continues to be a popular alternative to the stressful hustle and bustle of the mall.  Add these factors together and it's difficult to imagine identity theft rates slowing down significantly any time soon.  image

Just last week, a coworker mentioned that she had recently had her credit card number "skimmed" at a gas station.  She didn't realize the theft had occurred, though, until Monday morning when she checked her online bank account and was stunned to see that the account was substantially overdrawn!  Another coworker said that she too had been subject to a similar fraud, though the credit card company had not been able to determine exactly how it had occurred. 

I experienced the same type of theft recently when my credit card number was used to make thousands of dollars in online purchases over the course of a few hours.  The number of purchases triggered my bank's security alerts and I was called to confirm the purchases.  Thankfully, the bank's quick efforts prevented any damage from being done.  But this conversation between three coworkers shows how surprisingly common identity theft really is. 

When it comes to protecting your personal information, awareness is key.  Below is a short summary of some of the basics about identity theft.  Employers should keep themselves and their employees in the loop by circulating this type of information during the holiday season.

How Does the Thief Get the Identity Information?

  • Steals credit cards, wallets, or purses.
  • Steals mail to obtain checks and credit-card numbers.
  • Rummaging through trash to find documents containing personal identifying information.
  • Completes a change-of-address form on behalf of the victim, thereby diverting the individual's mail.
  • Use personal-identifying information obtained on the internet.
  • Theft of business records either by stealing records or files or by bribing an employee to do the same.
  • E-mail "phishing"-- a scam where the thief pretends to a bank or the government.
  • Obtaining a copy of the victim's credit report by posing as a landlord or other person who would have a lawful right to the information.

What Does the Thief Do With the Identify Information?

  • Go on spending sprees using your credit card
  • Open new credit card accounts
  • Open new checking accounts using your name,date of birth and social security number to write
    bad checks
  • Change the address on your credit card accounts
  • Take out auto loans in your name
  • Rent a home in your name
  • File for government benefits using your name (unemployment insurance)
  • Give your name to police during an arrest
  • Establish phone and wireless service in your name
  • Declare bankruptcy in your name to avoid paying debts or eviction

Some of the national resources available to learn more about preventing, reporting, and correcting identity theft include the Identity Theft Resource Center, the Federal Trade Commission, and the U.S. Department of Justice

In Delaware, the Office of the State Bank Commission has developed several helpful outreach and education programs.  And, for additional information specific to employers trying to assist employees who've been subject to a data security breach, see What to Do If Your Employees' Private Data Is Stolen.

Predicting Job Trends under the Obama Administration

Posted by Molly DiBiancaOn December 23, 2008In: Newsworthy

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One of the Obama administration's stated employment goals is to create or save 2.5 million jobs in the before January 2011.  Jobfox has predicted the job sectors where most of these new jobs can be expected to go.  According to Jobfox, the most wanted new jobs can be broken into categories that correlate to Obama's major initiatives.

Initiative: Construction of Roads, Bridges, Transit and Rural Broadband
Key Jobs:
1. Construction managers
2. Project managers
3. Civil engineers
4. Computer-aided drafting specialists
5. Telecommunications engineers

Initiative: Greater Oversight of Financial Markets
Key Jobs:
1. Compliance accountants
2. Internal auditors
3. Tax accountants
4. Government regulators

Initiative: Energy Independence
Key Jobs:
1. Electrical engineers
2. Mechanical engineers
3. Power grid managers
4. Biofuels chemists
5. Sales and marketing

Initiative: Healthcare Modernization
Key Jobs:
1. Nurses
2. Information technology specialists
3. Bioinformatics specialists
4. Information security specialists
5. Software developers

Initiative: Volunteerism and Community Involvement
Key Jobs:
1. Social workers
2. Administrators
3. Translators

Resource from the Department of Labor For Military-Spouse Employees

Posted by Molly DiBiancaOn December 23, 2008In: Internet Resources, National Defense Authorization Act (NDAA), Uniformed Services (USERRA)

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The National Defense Authorization Act (NDAA), amended the Family Medical Leave Act (FMLA) on January 1, 2008.  The NDAA is one of several laws that obligate employers to provide special protections to employees who are members of the Armed Forces.  The Uniformed Services Employment and Reemployment Rights Act (USERRA), is another such law offering similar, but not identical protections to employees who serve in the uniformed services. 

In these times, military service is a reality for many employers who must navigate the labyrinth-like leave laws.  Employers also want to provide their employees with the support they need to transition successfully and safely between the workplace and active duty.  We've posted before about some of the many resources and services offered by the U.S. Department of Labor (DOL), each of which is marketed towards a specific audience. 

Yet another resource provided by the DOL is specifically designed for military spouses and the special employment challenges they face as a result of their marital ties to the military. MilSpouse.org is an online library for military spouse employment, education, and relocation information.  The DOL provides links to employment-related information and other resources for military spouses and military families.  The site is a collaborative project between the DOL's Women's Bureau, the Employment and Training Administration, and the Office of the Assistant Secretary for Policy, in cooperation with the Department of Defense.

A few examples of the many resources include:

  • Information on portable career fields and options available with them;
  • Career Center database of hundreds of thousands of jobs, scholarships, and training opportunities;
  • Access to the DOD's website, Military HOMEFRONT, which offers information on Quality of Life.

These are just a few of the resources available, all designed to assist troops and their families.  Provide your military employees with free access to a number of resources by referring them to this website. Your employees will thank you!

Reverend Al Sharpton Speaks Out Against Employee Free Choice Act

Posted by Molly DiBiancaOn December 22, 2008In: Union and Labor Issues

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The Employee Free Choice Act (EFCA) has drawn substantial criticism from employers who worry about the bill's card-check and arbitration provisions. But the Obama administration has not given any indication that it will back away from its pro-union position.  With the nomination of Democrat Hilda L. Solis as the new Secretary of Labor, there is even more support for the EFCA. 

But not all Democrats are in favor of the EFCA.  Reverend Al Sharpton described the effect of the EFCA as "coercion" and expressed concern about how the legislation would impact minority-owned small businesses.  He was clear about his overall commitment to the right to organize but stated that the EFCA could go too far.  National Review Online's Peter Kirsanow has a great summary of why the position of EFCA-advocate Secretary of Labor nominee, Hilda Solis, is directly at odds with Sharpton's.  In short, Kirsanow argues that you must be a supporter of small and minority-owned businesses or of the Employee Free Choice Act--but you cannot be proponents of both.  image

Under the proposed EFCA, businesses would have 120 days to negotiate a collective bargaining agreement once the union has made a demand for bargaining.  Failure to reach an agreed-upon CBA will divert power to an arbitrator, who becomes responsible for the contract.  Negotiating any contract in 120 days is difficult.  But a first contract, it can be near impossible.  And if you are an employer without a sophisticated and experienced bargaining team already in place, the impossibility becomes even more likely.  If nothing else, the negotiating "team" is likely to have multiple other business demands put on his or her time even though negotiating will necessarily take the top place on the list. 

According to Kirsanow, the EFCA won't make it impossible to successfully negotiate a first contract in 120 days but that one of the following two scenarios will occur:

1) In an effort to avoid arbitration, the small businessman without prior labor negotiating experience concedes to union demands that he would reject if he weren't compelled to reach an agreement in 120 days (under current law, the parties aren't required to reach agreement within a specific timeframe); or

2) The small businessman goes to arbitration. (Interest arbitration isn't cheap. It can go on for months and the legal fees alone can be substantial). The arbitrator writes a "contract" that the businessman would never have agreed to if he'd had the opportunity to bargain with the union in the context of their respective economic leverages. The business is saddled with uncompetitive labor costs and restrictive contract terms after having expended tens of thousands in arbitration.

The hardship this law could impose on small businesses, which, given this economy, could be the final blow. 

2008 Gift Guide: Office Mates & Coworkers

Posted by Molly DiBiancaOn December 22, 2008In: Just for Fun

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No gift for your coworkers yet?  Don't worry, it's never too late to buy a cheap piece of plastic just dripping with cynicism and call it a "gift."  If you're still reading, you have the right sense of humor to appreciate the office gift ideas, below. 

Continue reading "2008 Gift Guide: Office Mates & Coworkers" »

Facial Hair: Style Statement of the Unemployed

Posted by Molly DiBiancaOn December 21, 2008In: Dress & Attire

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Male workers who are laid off are letting their hair down--in a rhetorical sense, anyway. Christina Binkley of WSJ.com's Life and Style  section, claims this to be true.  In her recent post, Growth Area: Beards on Laid-Off Executives, Binkley says that men are donning beards as a sort of act of rebellion, a way of breaking ties with their former corporate selves. Man Shorts @ Delaware Employment Law Blog

Sure, the fashion move may be liberating, I guess, but does it serve them well when trying to return to the workforce?  There's a good bit of opinion on this.  John Phillips, at The Word on Employment Law is not a supporter of the facial-hair movement, it we want to call it that.  Neither is Kelly Lynn Anders, associate dean at the Washburn University School and author of The Organized Lawyer.  Anders, who is quoted in the WSJ post, advises students to present themselves in their best light, which, to her, means clean-shaven.  

My thoughts?  Well, I suppose I think that the idea just isn't that important.  Some men look better with a beard and, for them, a beard doesn't seem as much like a fashion statement as it does common sense.  For those who are trying the style on for size while waiting for the next employment opportunity, I say, sure, why not?  I like to wear flip-flops at the beach but Lord knows I'd be caught dead before I wore them to the office or to a client meeting, nevertheless to a job interview.  Everyone has the inclination to go casual when the time is right--the question is whether one man's definition of "casual" is another man's "sloppy." 

For those of you who have toyed with the idea of bearding up for the winter, I say "Cheers."  If it looks good, all the better.  If it looks bad, I'd be willing to bet that you hear about it--people really aren't very shy when it comes to their thoughts on another's changed appearance.  And for those of you who may be unemployed and, for that reason, are "brazen" enough to give facial hair another look, so be it.  Whether you shave for a job interview depends, I'd say, on how badly you want the job.  If you want it badly enough, I would think you wouldn't take the risk that your new "fashion statement" could mean the difference between getting hired and getting a rejection letter.

For the skeptics, just think, a beard on any day is better than the man-short anytime.

Union Advocate, Hilda Solis, Named as Next Secretary of Labor

Posted by Molly DiBiancaOn December 21, 2008In: Newsworthy, Union and Labor Issues

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Rep. Hilda Solis was named Friday as President-Elect Obama's choice for Secretary of Labor.  He nominated the Democratic congresswoman at a news conference on Friday, December 19, 2008.   The Hilda nomination was very popular with the unions.  The four-term politician has voted pro-union nearly 100% of the time during her eight-years as congresswoman in Los Angeles, California.  image

And Solis isn't shy about her union loyalties.  At the conference, she stated, "I am humbled and honored. . . As secretary of labor, I will work to strengthen our unions."  American Rights at Work Executive Director Mary Beth Maxwell called Solis "a great choice” who “brings the expertise and leadership required to a department in desperate need of reform and will champion common sense policies like the Employee Free Choice Act to restore balance and create an economy that works for everyone.”

The unions have lots of good things to say in return, too.  See the following union websites for the glowing reviews: SEIU, Unite to Win, American Rights at Work, and Change to Win.

Solis is also known for her successful campaign to increase California's minimum wage from $4.25 to $5.75 in 1996.  In addition to her deep roots in the union movement, Solis has long been branded as an ardent environmentalist, who has pushed hard for the "green job movement."