Articles Posted in Newsworthy

Anthony Weiner is in the headlines again. Last week, he told reporters that, since he left Congress in 2011, he’s sent salacious messages to numerous women, according to the NY Daily News. This latest revelation has caused quite the stir but Weiner says that he’ll stay in the race for Mayor of New York City.

The dialogue about whether Weiner should withdraw from the race is an interesting one. The conversation seems to focus on the nature of his “mistakes” and whether or not the public should care about the sexual endeavors of elected officials. Some say that private matters and personal affairs should not serve as qualifications for public office. But I think this argument mostly misses the point.

When making a hiring decision, good employers know that what matters is the candidate’s ability to perform the essential functions of the job. For example, an applicant’s race, religion, gender, disability, etc., should play no part in the decision because none of those characteristics have any relationship to the duties. If it doesn’t indicate the ability to perform the job, it shouldn’t matter.

You may recall our previous post about a young lawyer who sued his former employer. The lawyer, Gregory Berry, had sent an email to the firm’s partners, in which he stated, “it has become clear that I have as much experience and ability as an associate many years my senior, as much skill writing, and a superior legal mind to most I have met.” Not surprisingly, Mr. Berry’s arrogance was not well received, and he lost his job. He then sued his former employer, seeking over $75 million in damages.

Mr. Berry must have been stunned, then, when his lawsuit was dismissed earlier this week. The court dismissed the suit on the grounds that Mr. Berry had executed a valid release of his claims in exchange for a $27,000 severance payment. Consequently, his claims were barred. The court rejected Mr. Berry’s argument that he signed the “unconscionable” agreement under economic duress.

But this story isn’t over! In keeping with the self-aggrandizing attitude evident in Mr. Berry’s email, he left the Courtroom before the Judge had finished issuing her ruling. She has now ordered the parties to attend a hearing on January 24, for purposes of considering a contempt ruling against Mr. Berry, reports Above the Law.

Employers have more resources than ever when it comes to employment-related questions. The Internet is chock full of fantastic references for all things employment law. This blog was selected as one of the best in the country by the ABA Journal for the third time this year (thanks, ABA Journal!!), along with several other terrific employment-law blogs. There’s a connection between this blog and some of the other winners this year, though, that deserves my attention.

Young Conaway is a long-time member of the Employer’s Counsel Network (ECN). Through this affiliation, we publish our monthly Delaware Employment Law Letter (the only monthly newsletter for Delaware employers). The ECN’s presence in the blogosphere has multiplied in the past few years and I’m proud to say that 4 of us were selected as Top 100 blogs this year. In addition to the Delaware Employment Law Blog, the following three ECN members also were 2011 award winners (in alphabetical order):

Arizoneout is the newest addition to ECN’s blogging family. Written by Dinita James of Ford & Harrison, the blog’s focus is narrow but deep–with posts only about the medical marijuana law in Arizona. Dinita’s blog is sure to be a go-to resource for employers across the country who will be dealing with questions about managing card-carrying employees. I have a particular fondness for Dinita’s blog because, so she says, she was, in part, inspired to finally put pen to ink (or fingertips to keys) after hearing me and my fellow ECN bloggers talk about why we love blogging at an ECN meeting last year. Dinita tweets at @Arizoneout.

Did you know that the U.S. Department of Labor is in the blogosphere? Well, it certainly is. The “official blog” of the DOL is named, “Work in Progress.” Catchy, isn’t it? And the social-media engagement doesn’t stop there. The DOL recently announced that it is sponsoring a contest to solicit employment- and employment-law-related apps.

Readers may recall the moment of shock and alarm they felt when we reported that the DOL had released its first timekeeping / FLSA-compliance app, designed for workers to log their time in a system other than the employer’s official timekeeping system.

The DOL’s recently announced contest may give readers a similar feeling. According to the DOL’s blog post announcing the contest, the intended users of the apps include those looking for work, “workers who want to improve their skills,” and “consumers who want to know that the businesses they use value safe, healthy, and fair workplaces.”

It should come as a surprise to no one that the recently-released charge statistics from the EEOC reveal a record-breaking number of charges of discrimination filed against employers in 2010. The continued bleak economy and resulting layoffs in 2009 and 2010 are the most obvious reasons for the increased charges.

The EEOC Chair has attributed the rise to other factors as well, including EEOC outreach efforts and changes in the ADA law.  Disability discrimination claims did take a bigger piece of the pie last year, rising from 23% of all claims filed in 2009, to 25.2% of all claims filed in 2010.

EEOC charges on the rise

Some other observations from the statistics:

For the third year in a row, I’m thrilled to submit to our readers what I consider to be the best of the best when it comes to employment law blogs.  Since this is the third year I’ve published this list, and practice does make perfect, I’ve imposed a few more rules this time around.  The “rules” and more details about those on this year’s list are found below but, first, . . . drumroll, please. . . the winners . . .

 

Group 1

1. Alaska Employment Law

2. Arkansas Employment Law

3. Connecticut Employment Law Blog

4. Daily Developments in EEO Law

5. Defending the Digital Workplace

6. Delaware Employment Law Blog

7. HR Lawyer’s Blog

8. Lawffice Space

9. New Jersey Employment Law

10. New York Public Personnel Law

11. Ohio Employer’s Law Blog

12. San Antonio Employment Law Blog

13. Strategic HR Lawyer

14. That’s What She Said

15. The Laconic Law Blog

16. Thoughts from a Management Lawyer (CA)

17. What’s New in Employment Law

18. Wisconsin Employment & Labor Law Blog

Group 2

19. Adjunct Law Prof.

20. Alabama Employment Law Report

21. All About Information

22. Atlanta Employment Lawyer Blog

23. California Wage Law

24. California Workforce Resource Blog

25. Canadian Privacy Law Blog (CA)

26. Charles A. Krugel

27. Colorado Employment Law Blog

28. Employment Law Matters

29. Employment Lawyer Blog

30. Fair Competition Law Blog

31. Florida Employment & Immigration Law Blog

32. Iowa Employment Law Blog

33. Juz the Fax

34. Legal Developments in Non-Compete Agreements

35. Maryland Employment Law Developments

36. New York Labor and Employment Law Report

37. Overtime Advisor

38. Pennsylvania Labor & Employment Law Blog

39. Smooth Transitions

40. Social Networking Law Blog

41. Tennessee Employment Lawyer Blog

42. Texas Employment Law Update

43. Texas Non-Compete Law Blog

44. Virginia Non-Compete Law Blog

45. Wage Law

46. Wait a Second! (2d Cir. Civil Rights)

47. Work Matters

48. World of Work

Group 3

49. Alabama HR Law

50. California Employment Law Report

51. Digital Workplace Blog

52. Doorey’s Workplace Law Blog (CA)

53. Drew Capuder’s Employment Law Blog

54. EBG Trade Secrets & Noncompete Blog

55. Employee Benefits Legal Blog

56. Employer Law Report

57. Employers Law Blog

58. Employment Essentials

59. Employment Law Bits

60. Employment Law Watch

61. Executive Counsel Blog

62. Fair Labor Standards Act Law

63. Federal Sector FMLA Blog

64. Florida Employment Law Blog

65. FMLA Law Blog

66. George’s Employment Blawg

67. Gruntled Employees

68. Healthcare Employment Counsel

69. Human Rights in the Workplace (CA)

70. Jottings By An Employment Lawyer

71. Labor & Employment Law Blog

72. Labor & Employment Law Blog

73. Labor Relations Counsel

74. LawMemo Employment Law

75. Manpower Employment Law Blog

76. Massachusetts Non-Compete Law Blog

77. Michigan Employment Law Connection

78. Minnesota Employment Law Blog

79. Nevada Employment Law Blog

80. New York Employment Lawyer Blog

81. OFCCP Blog Spot

82. Overtime Law Blog

83. Overtime Lawyer Blog

84. Prima Facie Law Blog

85. Privacy & Information Security Law Blog

86. Privacy Law Blog

87. Public Sector Law Blog

88. The FMLA Blog

89. The Proactive Employer

90. Trade Secret / Noncompete Blog

91. Trading Secrets

92. Transgender Workplace Diversity

93. Wage & Hour Coun
sel

94. Wage & Hour Defense Blog

95. Wage & Hour Development & Highlights

96. Wage & Hour Law Update

97. Washington DC Employment Law Update

98. Workplace Privacy Counsel

99. Workplace Prof Blog

100. Wyatt Employment Law Report

Up & Coming

101. Delaware Noncompete Law Blog

102. FLSA Cases

103. Hawaii Labor Law

104. Iowa Employer Law Blog

105. The Word on Employment Law Blog

*    *    *   *

Update (Dec. 20, 2010, 12:50 p.m.)

Thanks to the readers who noted some of the excellent blogs (current and up-and-coming), that I failed to include.  Be sure to add these to your feed reader, as well:

FMLA Insights, by Francezek Radelet

Labor Relations Today, by Seth Borden, @LRToday

The BELG Blog, by Hirsch Roberts Weinstein, LLP

Additions to the “Up & Coming” Group:

Castronovo & McKinney, LLC, Tom McKinney

Colorado Employer’s Law Blog, Jennifer at Ogeltree Deakins

*    *    *   *

The “Rules”

First, employee- and employer- side blogs were eligible, as they have been in the past.  And you’ll notice that some excellent employee–side blogs have made it into the list. 

Second, I did include Canadian blogs but made the standard a bit higher for our blogging brothers and sisters to the North so as to keep the list as U.S. focused as possible.

Third, and this was the hardest, I only included blogs that have posted in the last two months. There were some blogs that I really wanted to include that had not posted since the summer.  So, to be fair, I excluded them from the list–this year only, of course–they’re eligible now to be included next year. 

And, fourth, I only included blogs written by lawyers, legal professionals, or from a legal perspective.  Non-lawyer consultants account for less than 10 of the blogs on this year’s list and each of those write consistently on legal issues. 

The Importance of Sharing (i.e., What the “Groups” Mean)

This year, I also decided to take a stand on something that drives me slightly buggy–blogs without blogrolls.  I’ll be honest, I think it’s a little selfish.  Ok, so there, I said it.  I think it’s selfish for a blogger to ignore the community that is the blogosphere by not recognizing his or her fellow bloggers via a blogroll.  I do realize that the decision often belongs to the firm and not the individual blogger–some firms are reoffenders in this department–and so I don’t want to place all the blamed with just the blogger.  Which is why I didn’t make having a blogroll a criteria for inclusion.  Well, that, and I wouldn’t have even close to 100 blogs!

So, what you’ll see below is the list of the top 100 (plus a few), separated into 3 groups.  The first group includes blogs that have a blogroll that includes DELB.  The second group has a blogroll that, in my opinion, is missing one (namely, us!).  And the third group includes those blogs that, for whatever reason, don’t have a blogroll. 

And, one last thing.  I wanted the list to be as readable as possible but, at the same time, wanted to give readers the name of the blog author and firm and, where applicable, the author’s Twitter handle. But that was just too much information to put on a single (readable) page.  So, as a compromise, I’ve listed the name of the blogs below, which are hyperlinked to the blogs themselves.  Then, I’ve attached a spreadsheet (pdf) containing all of the data, including the blog name, author name (hyperlinked to their Twitter handle if available), and the firm name. 

Up & Coming

There are 4 blogs I that I thought worthy of mention but that have not been around long enough to make the official Top 100.  For those long-time readers of The Word on Employment Law, don’t be confused that I have that listed in this category.  Many of you may know that our beloved John Phillips, Jr., accepted an in-house counsel position earlier this year and that his former colleagues have stepped into the role of blogger at The Word.  So, although the blog itself is hardly new, without John’s voice, it is certain to be a different, albeit surely wonderful, blog.

Didn’t Make This Year’s List?

If you’re not on the list, don’t be shy–leave your blog’s info as a comment.  I’ll add it to my feed reader and hopefully add it to next year’s list. 

And One Last Thing. . .

image

If you haven’t already voted in this year’s ABA Journal’s Top 100 Blawgs, there’s still time left.  You’ll find all five of the honorees in the In Labor category, including Delaware Employment Law Blog, on the Top 100 Employment Law Blog list.

 

So be sure to jump over to the ABA Journal, register, and vote for your favorite–particularly if your favorite is us! 

Congratulations to all 100 of this year’s best employment law blogs!

Do not pass go, do not have your claims investigated.  According to the new referral system from the U.S. DOL’s Wage and Hour Division (WHD), potential plaintiffs can go directly to legal counsel.  WHD, the agency responsible for enforcing the Fair Labor Standards Act (FLSA) has announced that it is undertaking a new attorney-referral initiative with the American Bar Association. In what is a jolting move to many, WHD has announced that it will begin referring certain cases to private attorneys instead of investigating those claims. Multicolor Rotary Phones

According to the WHD’s website, the new “referral” program is intended to provide legal access to all employees who seek the WHD’s assistance.  WHD is inundated with claims–according to the site, WHD receives more than 35,000 contacts from employees each year alleging wage and hour violations. Despite hiring 350 new investigators, WHD is unable to pursue all of the claims filed.

Under this new initiative, an employee who claim is not pursued by WHD will be given a toll-free number to contact the ABA-Approved Attorney Referral System. The referral system will provide employees with listings for local labor attorneys who have experience with FLSA and FMLA cases. The employee may then contact the attorneys and file a private lawsuit. If the employee elects to retain an attorney, the attorney will be given special access to the WHD’s determination and relevant documents. What types of documents will be provided remains to be seen.

Delaware will join the many states that ban cell-phone use while driving.  The law, signed by Gov. Markell on July 6, will take effect on January 2, 2011. The new law bans texting while driving and the use of hand-held cell phones – meaning a hands-free device will be required to talk on the cell phone while driving. It also bans the use of pagers, PDAs, BlackBerry devices, laptops, games or portable computers, and two-way communication devices while driving. In addition, drivers cannot browse wirelessly or read, write, or send messages while driving.pda 2

There are a few exceptions, including for law enforcement, firefighters, EMS technicians, or other operators of emergency vehicles. In addition, two-way mounted radios can be used to communicate with other employees or a central dispatch.

Any violation is primary offense and a civil penalty. The fine for the first offense is $50 and subsequent penalties are between $100 and $200 dollars.

Although my schedule recently has left little time for blogging, my fellow employment-law bloggers have been busy keeping readers up to speed with the latest and greatest stories impacting human-resources and management professionals. Here’s a sampling:

Social-Media and Employers

There’s an interesting article at Kroll OnTrack about social-media investigations. I’m often asked about best practices for employers to follow when conducting these investigations. Here’s what the author says about one of the biggest risks of social-media investigations:

Anyone who works with me knows that I place a lot of emphasis on litigation hold letters. In the most general sense, litigation hold instructions are invaluable because they cause everyone involved to pause and think about what they are doing with relevant information. The primary purpose of litigation hold instructions is to make sure that evidence, whether it be a hard-copy document or an e-mail, is preserved. Litigation hold instructions can be used defensively (e.g., sending hold instructions to your team after a you have been altered to a potential for litigation) or offensively (e.g., sending instructions to your opponent to make sure that they dred life preserver rafto not despoil any evidence).

It will be interesting to see how the significance of litigation hold instructions evolves in BP Oil Spill litigation, particularly if reports about BP’s alleged knowledge of potential safety issues are true. On June 8, 2010 Newsweek reported that documents about BP’s internal safety investigations, leaked to ProPublica, show an alleged pattern of negligence and a culture which purportedly silenced whistleblowers. If these allegations are true, it is arguable that BP had a duty to preserve evidence when it first learned of any potential problems with Deep Horizon, and long before the April 20, 2010 explosion. Thus, even before any court opines on whether BP issued proper litigation hold instructions, there is an important lesson to be remembered by all employers – your preservation duties kick in before a complaint is filed.

Electronic discovery experts already predict that litigation associated with the BP Oil Spill will become the largest electronic discovery event in history, and I agree. The sheer volume of electronically stored information, combined with accusations of negligence, the extensive damage suffered by the Gulf Coast region, and the fact that the explosion on the Deep Horizon killed eleven people, has created the perfect e-discovery storm. No matter the circumstances, however, the lesson remains the same. Consider your litigation hold duties early and often, and before a complaint is filed.

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