Delaware Employment Law Blog

The U.S. Department of Labor's (DOL) Working Partners has posted Nine Tips for Employers planning an office celebration this holiday season.  Here's what it suggests:

1. Be honest with employees. Make sure your employees know your workplace substance abuse policy and that the policy addresses the use of alcoholic beverages in any work-related situation and office social function.
2. Post the policy. Use every communication vehicle to make sure your employees know the policy. Prior to an office party, use break room bulletin boards, office e-mail and paycheck envelopes to communicate your policy and concerns.
3. Reinvent the office party concept. Why have the typical office party? Try something new like an indoor carnival, group outing to an amusement park or volunteer activity with a local charity.
4. Make sure employees know when to say when. If you do serve alcohol at an office event, make sure all employees know that they are welcome to attend and have a good time, but that they are expected to act responsibly.
5. Make it the office party of choice. Make sure there are plenty of non-alcoholic beverages available.
6. Eat...and be merry! Avoid serving lots of salty, greasy or sweet foods which tend to make people thirsty. Serve foods rich in starch and protein which stay in the stomach longer and slow the absorption of alcohol in the bloodstream.
7. Designate party managers. Remind managers that even at the office party, they may need to implement the company's alcohol and substance abuse policy.
8. Arrange alternative transportation. Anticipate the need for alternative transportation for all party goers and make special transportation arrangements in advance of the party. Encourage all employees to make use of the alternative transportation if they consume any alcohol.
9. Serve none for the road. Stop serving alcohol before the party officially ends.

For more tips from around the world wide web, see our prior post, 'Tis the Season to Avoid Disaster at the Office Holiday Party.

Every workplace has a standard cast of characters. They're mirrored in sitcoms and movies and are humorous because they're based on truth. The office jokester, the mother hen, the imposing father figure, the meddlesome middle child.  All of these personalities can be seen in just about any workplace.  Some employers have tried to tap into this dynamic as a way to better organize teams and to tackle inter-office personality conflicts.  Recently, T-Mobile commissioned an organizational psychiatrist to delve deeper into its own personality types. 

The resulting data, compiled in the T-Mobile Workplace Motivation Report, concluded that 15% of those interviewed found the "office joker" was an un-motivating influence in the workplace, while 25% said that the can-do attitude has a positive effect on morale.  The NYT recently reported that some companies have retained experts to help executives understand the role that birth order may have in their office politics.  First-borns, for example, have dominant personalities and have a more difficult time accepting directions from others.  Middle children, on the other hand, tend to be peace-makers and often compromise their own needs for the sake of keeping others satisfied.

Pardon me for saying so but, Duh!  Is this really a new insight to Corporate America?  I can't believe it.  If you didn't know that personality types play as big a role on the unofficial (and official) workplace hierarchy, then shame on you.  The workplace is the closest you can get to recreating the annual holiday scene, where all of the extended relatives are gathered together to drive one another totally bonkers--in a good way, of course. 

Does your workplace have an unwritten policy benefiting married employees?  John Phillips, at The Word on Employment Law, asks this question and posits some very interesting answers.  In his post, Holiday Pitfalls: Time Off from Work and Marital Status Laws, John points out the common problem of competing requests for time off during the holiday season.  Let's face it, everyone wants off over Thanksgiving, Christmas, and New Year's.  And, just because someone doesn't celebrate a particular holiday don't mean that they want to sit in the office all day by themselves, as the lone soldier manning the fort.  So who foots the bill when it comes to getting stuck with the holiday shift nobody wants?  John notes:

Single employees may come out holding the short end of the stick when there’s sort of an unwritten policy that married employees, particularly those with children, are given preference on these holiday-related vacation or PTO requests.

He goes on to discuss the application of marital-status as a protected class.  In Delaware, as well 18 other states according to John's count, marital status is a protected characteristic, just like race, religion, gender, and age.  Another characteristic that has received attention in recent years is caregiver status.  Caregiver, or Family Responsibilities discrimination, occurs when an employee is subject to an adverse employment action as a result of his or her caregiving responsibilities at home. In other words, an employee who has an elderly parent at home or who is raising small children may be the target of discrimination if the employer doesn't select him or her for a promotion based on the employer's misgivings about the employee's "split attentions."  

Generally, discrimination is not found where an employee is given better treatment because of a protected characteristic--but this is not always the case. 

Is it a common occurrence around the holidays to hear an employee assert that her request for time off should be granted over the request of another employee because she "has little kids at home"?  If so, is that a fair assertion?  On one hand, it seems fair that a mother with small children has plenty of reasons to be home at the holidays.  But, if you are the employee without children, is it fair that you would be expected to carry the burden of "last man standing" in the office? 

As John concludes, this is an issue of workplace relations more than a legal matter.  But, so often, legal problems are largely derivative of a sense of being treated unfairly that it's unrealistic to separate the two concepts entirely. 

Employee handbooks often include an ethics policy that regulate the giving and receiving of gifts.  These "gifting" policies are not intended to regulate gifts among coworkers as much as the exchange of gifts with vendors, clients, and potential customers.  The provisions of gifting policies are dictated, in large part, by corporate culture. How restrictive your policy should be will be determined by a variety of factors, including how much direct interaction employees have with vendors and customers. 

For employers who may be considering implementing an ethics policy for gifting, the rules for federal employees are a good starting point.  The general rule for federal personnel is that supervisors may not accept gifts from subordinates or personnel who receive less pay.  But there are exceptions to the rule.

During the holidays, federal supervisors may accept gifts from their direct reports so long as the value of the gift is $10 or less.  Cash gifts are not permitted in any value.  The opposite is true when it comes to gifts from supervisors to subordinates--no restrictions apply.  Nor are there restrictions on personnel gift giving between peers.

These rules do not apply to office gift exchanges so long as gifts are chosen at random or recipients are able to trade gifts.  There are no limits on gifts here since the gift buyer does not know who will eventually receive the gift.  But, if the gift exchange is not random, i.e., if names are drawn in advance, the gift value rules apply.

The rules for gift-giving with contractors are only slightly modified.  Federal employees can accept gifts up to $20 in value--no cash gifts may be accepted.  Federal employees who want to give a gift to a contractor must first check with the contractor to be sure he or she does not have any ethics rules that would preclude them from accepting the gift. 

There are also rules regulating the ever-popular office holiday party.  Supervisors can participate in the office party and can accept food and refreshments when those items are being shared by others.  Supervisors can also contribute to the cost of the party.  And, if the subordinate attends a function at the home of a supervisor, the subordinate may give a host or hostess gift of the type and value customarily given.  Supervisors and subordinates can accept an invitation to the other's residence for a holiday party without restriction. 

One prohibition that seems grounded in common sense is the rule prohibiting federal employees from soliciting money from other employees or from contractors for the purpose of buying a gift for a supervisor.  Group gifts are limited to infrequent (as opposed to annual) occasions, such as baby showers and retirements.  And even then, contractors may not participate in the gift giving.

These rules may seem extreme when applied to your workplace.  But they're a good starting point for ideas on just how restrictive such policies can be.  These rules also point out some of the potential areas of concern for employees who may be uncomfortable with the gift-giving and party-circuit traditions in the office environment.

Sound the Cubicle Battle Cry!  You've been victimized once again by the Refrigerator Raider.  After you waited patiently through the tedious morning hours, the noon hour has at long last arrived.  As you speed-walk to the min-cafe, your mouth begins to water at the thought of the heavenly goodness you're about to enjoy in the form of a turkey sandwich, cheese and mustard, on rye toast.  Heaven. 

But, your heat rate quickens as you push through the plastic grocery-store bag that contains a peach-flavored La Yogurt, or a brown bag that is home to a lone single-wrapped slice of American cheese and a can of Diet Coke.  Where is your lunch?  The sandwich that you made with your own two hands--even taking the time to toast the bread.  For the love of God, is there no mercy? 

No.  There is no mercy when the office thief attacks the fridge and your lunch becomes a fallen victim.

If your lunch has ever been pilfered by a criminally inclined coworker, this is a story for you.  Over the summer, we learned that office workers across the country have had their brown bags burglarized by a stealthy sneak of an employee.  (See Just Put Down the Brown Bag and Slowly Step Away From the Lunch).  According to one survey, workers almost unanimously agree that the lunch-box thief is the lowest of the low.

Well here is a solution--a way to fight back!  Courtesy of Lifehacker, an Anti-Theft Lunch Bag to deter sandwich thieves in corporate office parks across the country.   Instead of trying to prevent them from stealing your coveted mid-day meal, instead, convince the devilish office gremlins that they don't really want to steal your lunch. 

It's brilliant, isn't it?  Rise up, office mates!  Raise up your plastic cutlery in unison!  Demand better!  Demand that your turkey-on-rye never again be snatched from its home on the middle shelf! 

Employees who feel cheated by their employers have their own way of fighting back.  According to a new survey, employees who believe that they are not properly compensated (either in money or in positive feedback), will find other ways of getting paid.  And it starts in the office-supply cabinet. 

The survey reports that nearly 20 percent of American workers take office supplies and only 22 percent of those who do feel bad about it.  But 74 percent knew that stealing is wrong. 

The most popular goods to steal are:

• pens, pencils, and rules (67%);
• paper and Post-its (57%); and
• calculators, staplers and tape dispensers (11%).

The theft of expensive items, though, such as laptops, PDAs, or cell phones, has increased this year from 8% to 15%.

According to HR Executive, theft can be attributed to "stress, long hour, and an inflexible schedule."  People were more likely to adhere to ethical standards if they had a healthy work-life balance.  Employees who don't feel appreciated return the favor by hurting the company in return.

The topic of "Jerks at Work" is one of my favorite. Why co-workers and bosses act like jerks.  Why employees don't get in trouble for being jerks.  What to do about a jerk at work.  And why employers should face jerks at work head on.  

Hand-in-hand with Jerks at Work is the topic of Workplace Etiquette--or lack thereof.  The sheer volume of workplace affronts workers must confront daily can be overwhelming.  Not to mention the incredible variety of crude, rude, and downright discourteous conduct in the workplace is alarming. 

I posted earlier in the week about a report from The Ladders.com about which of these numerous breaches of office etiquette employees took most personally.  I was surprised to learn that the #1 most offensive exhibit of bad manners is lunch theft!  That's right, your coworkers just cannot, will not, shall not, tolerate the extraordinary disrespect they equate with the office refrigerator raider.  Apparently, across the country, rogue employees, surely outcasts of mainstream office-worker society, are sneaking into the closest kitchenette and snatching your left-over lasagna.  (See my earlier post, Put Down the Brown Bag and Back Away From the Lunch).

According to a post earlier today, An Anti-Rudeness Warrior On Handling Jerks at Work, by Tom Weber at the WSJ Blog, there is an "expert" who can speak to both issues--Jerks and Lunch Theft!  Dr. P.M. Forni, author of The Civility Solution and Choosing Civility: The Twenty Five Rules of Considerate Conduct, has started a campaign of sorts to convert the Jerks of the world to conduct themselves with a bit more respect.  You can read all about his mission at the Johns Hopkins website devoted especially to Civility.

But, much to my delight, in Weber's interview with the Doctor of Do-Right, he concurs that the severity of the "sandwich situation" has really gone too far.  He gives the following advice to help us cope:

Buzzwatch: What’s the most common workplace rudeness question you hear?

Dr. Forni: At the very top of the list, a common act of incivility is that of taking credit for other people’s work. At the top of some other lists is the person who takes food from the office refrigerator, or takes a bite from another person’s slice of pizza in the office fridge and then puts it back. That’s not to be taken lightly, but I don’t think it’s as egregious as taking credit for someone else’s work.

Buzzwatch: How would you handle that?

Dr. Forni: Depending on how egregious it was, I would start with the culprit. I would say, give the culprit some benefit of the doubt and say, “You failed to mention that a good part of the report was done by my office under my direction. It was a collaborative effort and I think the boss had the impression instead that the bulk of the work was done by your group. I think we should rectify that impression.” The burden is on that person to send an email to the boss with a carbon copy to you.

If the culprit is reluctant to set the record straight, then you go one rung up the ladder and you explain to the supervisor what happened and say that you owe it to yourself and to your team that she, the boss, know exactly how the plan came into being. You do this without being judgmental about what the colleague did, without using harsh words, without revisiting in a blaming way what your colleague did or did not do. Stay focused on the issue that this is the version of the facts that the boss needs to hear.

Source:  An Anti-Rudeness Warrior On Handling Jerks at Work

100 great blogs all in one place!!  Is it possible? Well, of course.  Right here at Delaware Employment Law Blog! Under the "Resources" tab at the top right of our home page, the "Blog List" gives you access to more than 160 blogs, all in one place.

HR World has done the same thing, so double your blog intake. 

Here are some of my own favorites from each of the categories:

Leadership:  Wally Block's 3-Star Leadership Blog has always regularly updated and sophisticated content on a broad range of topics relating to leadership and business management. 

Creativity & Inspiration:  I've mentioned before my admiration for David Zinger, who's responsible for the Slacker Manager blog.

Self-Awareness:  Be sure to check out the blog of Marshall Goldsmith, executive consultant and author of What Got You Here Won't Get You There.  But don't forget Seth Godin's Blog, which is wildly popular and only getting hotter,  or David Maister's Passion, People, and Principles.

Development, Marketing and Finance:  Managing Leadership, The Strategic Role of the Senior Executive, is a recent addition to my blogroll with insightful and intelligent commentary. 

Using Technology:  The Web Worker Daily is always content-rich--in quantity and in quality.

Getting Results:  Smart Talk on Conversation by Susan Bird focuses on employee and customer engagement with word-of-mouth marketing, interactive dialogue, and social networks.

Branding:  The Engaging Brand Blog: Employee-management tips permeate this blog by Anna Farmery, speaker and social-media coach.

Women:  The Power of the Purse: Fara Warner finesses on how companies can cater to “the world’s most important consumers”— women.

What's the #1 complaint about workplace conditions?  Chilly temperatures.  A segment on the Today Show, "Is Your Office Too Chilly?" confirms William Bowser comments in an earlier post, Is It Just Me Or Is It Hot In Here? What's the Deal With the Office Thermostat? about employees who complain about the frigid conditions they face throughout the year. 

The program featured a segment about the perpetually cold offices and the lengths to which employees will go to warm up.  From fleece jackets, to wooly blankets, to portable space heaters, nothing is much when it comes to temperature. 

The segment also mentioned the study to which Bill earlier referred--that cold temperatures make employees less productive.

And, to end the dispute once and for all (yeah, right), they give us the "ideal temperature" for an office environment:  Between 69-70 degrees.  Even then, though, there will still be 10% of the office population who is unhappy.  5% will be too cold and 5% will be too hot. 

The Office Thermostat Wars will have to continue for now. 

Sunday night, I had a meeting with about 10 people at my office.  When I arrived a few minutes before the meeting was scheduled to begin, it was clear that the air conditioning was not operating correctly.  For those not familiar with Delaware summers, no air condition is not a good thing.   The conference room was stuffy already and bound to get worse. I immediately adjusted the thermostat on the wall, no response.  A call to the night desk for assistance brought the bad news -- "the air-conditioning system is shutdown at 6 o'clock on Sundays until the next morning." 

The guard at the desk then added, "it's hot down here too."  Misery loves company.

As I suffered through the meeting, with the lights dimmed to keep the conference room as tolerable as possible, my mind began to wonder.  I began thinking about how office temperature is a very frequent topic in our office.  Somebody is always complaining that it's either too hot or too cold.

After the meeting, I did some quick surfing of the Internet.  Turns out that the Sunday New York Times has an article on the topic of office temperature.  The article explores why some workers (usually female) are more likely to be cold and why some (usually male) employees complain that the office is hot.  It also cites a Cornell University professor who says that raising the office temperature from a chilly 64 to a balmy 77 increases productivity and lowers mistakes. 

As I type this post, everything has returned to normal. The thermostat in my office is appropriately turned down to 65 and the office is becoming nicely chilled.  It won't belong before someone enters with the familiar refrain "what do you have this thing set at?"  In the past, my usual response has been, "I don't know, I didn't touch it."  

But maybe a new response is appropriate, given my obsession with going green at work and at home, and my new-found knowledge about the correlation between office temperature and employee productivity?  . . . Naaaaaah.

Employees in cubicles across the U.S. take lunch very seriously.  Especially when it's their lunch.  And especially when their lunch is swiped from the fridge in the lunchroom.  Nearly 98% of employees surveyed said that eating someone else's food from the office fridge was unacceptable. 

When asked what was the most offensive breach of office etiquette, respondents were nearly unanimous in their agreement.  The "fridge raid" took the first-place prize for the Number 1 worst office behavior. 

Taking second place at 96% is bad hygiene.   And a variety of bad-manner conduct made up the rest of the most cited offenses.  The bad habits that are most likely to get you fired include:

1. Drinking on the job;
2. Wastefulness with paper;
3. Swearing in the office;
4. Cooking smelly food in the office microwave; and
5. Using Blackberry devices at meetings.

I was surprised to see #2, wasting paper, on the list.  I wouldn't have guessed that coworkers paid that much attention to others' paper usage.  But I think it's a positive sign.  Yes, really.   I'd dare to say that the fact that wastefulness with paper appears on this list is actually a strong indication of engaged employees. 

What's the connection?

Wasting paper is wasting company resources.  If employees are getting angry with their coworkers who waste company resources, it seems to me that they are invested in the company's fiscal health. Conversely, when employees flip over to the dark side and become disengaged and bitter, there's almost a satisfaction in wasting company resources.  It's a silent, albeit relatively small, way to "get back" at their employer.  So take it as a positive sign if employees take offense when others engage in miniature assaults against the organization.

Good documentation practices during the hiring process can help employers avoid a failure-to-hire claim.  And that's a good thing, considering that failure-to-hire claims are costly. Just ask Perdue.  The poultry company has agreed to a pay out of more than $800k to settle a claim of disparate impact arising from what the DOL concluded to be systematic discrimination against non-Hispanic job applicants. 

Disparate Impact Claim

A Labor Department news release states an evaluation in 2005 and 2006 by the Office of Federal Contract Compliance Programs (OFCCP) found the Salisbury-based company failed to comply with federal employment laws at its poultry processing plants in Rockingham, N.C., Dillon, S.C., and Monterey, Tenn. (The OFCCP has jurisdiction because Perdue supplies poultry under a federal contract to the U.S. Department of Agriculture.)

The settlement agreement will require Perdue to pay $800,000 in back wages and interest to 750 women and minorities who were not hired during the relevant time period.  The company also will make employment offers to some of those who were not hired but who are still interested in employment with Perdue.  In those cases, the employees will receive retroactive company service dates for purposes of benefits and promotion rights. 

Documentation Regrets

Perdue officials denied the allegations on the basis that many applicants were unqualified for employment or withdrew from consideration for employment.  They stated that the company agreed to a settlement only to avoid protracted litigation, according to the company. The VP of HR said in a company statement:

Perdue is committed to treating all job applicants fairly. We regret we did not more carefully document our hiring process for production associates, which led to these concerns by the OFCCP and, ultimately, to this settlement.

Perdue has implemented new procedures to ensure it retains all relevant documentation of its selection processes and is also conducting training of its human resources staff to assure appropriate implementation of Perdue's hiring and employment practices, according to the company statement.

Interviewing Best Practices

Interviewing is one of the most neglected areas in employment law.  When I teach seminars on lawful interviewing, I will inevitably see faces filled with shock and despair as they realize just how many of the best practices have not been implemented in their organization. 

Documentation is key in hiring.  If you keep notes and records only on the people you hired, you will have nothing to refer to in a failure-to-hire claim.  And let's be honest, the ones you didn't hire are likely the ones who were the least memorable.  Can you remember candidates you interviewed and rejected in 2005 and 2006? 

Without an established and consistent documentation and record-retention policy for the hiring policy, a failure-to-hire claim can be nearly impossible to defend.  Just ask Perdue.

Source:  Delaware News Journal, Gwenn Garland

There are good reasons to terminate an employee.  There are also plenty of bad reasons.  And then there are really bad reasons.  This story is an example of the latter. 

A waitress in Owen Sound, Ontario, was "laid off" after she had her head shaved for a cancer fundraising event.

Stacey Fearnall (pictured) raised more than $2,700 for charity, but when she showed up for work and refused to sport a wig for her shift, her boss told her to take the summer off.

Her employer, Dan Hilliard, says his restaurant has certain standards prohibiting men from wearing earrings and requiring employees to keep their hair at a reasonable length.  Should she agree to wear a wig during her shifts, she's welcome to return.  If not, she should consider herself unemployed until her hair regrows to a "reasonable length."

Hillard acknowledges that his decision to not let Fearnall return to work has been a bit of a public relations disaster. But he stands by it nonetheless, insisting that he has received support from some customers who agree with him and say they would have been "appalled" to have been served at Fearnall's table. 

He also claims that Fearnall, a 27-year-old mother who also works a a plant nursery and as a caterer, was told in advance that the restaurant owners wouldn’t be pleased if she participated in the fundraiser and suggested she find alternative ways to support the cause.

Maybe it's just me but do any of these "reasons" sound legitimate?  This is yet another example of when something can be legally viable and just plain dumb at the same time. 

Source:  TheStar.com

Dress codes prefer males over females.  Ok, maybe not. But it's hard to deny that men who work in jobs that expect traditional, corporate-minded attire, certainly have far fewer choices than women.  And fewer choices can mean fewer mistakes.  Let's face it, a suit is a suit is a suit.  Granted, men can make some pretty bad choices about their tie-shirt combos but it's quite different than selecting accessories like earrings, necklaces, scarves, shoes, and the list goes on.

I recently read a post by Laurie Ruetimann at Team Building Is for Suckers, which talked about an article in The WSJ  on the issue of women's choice for work wear and the effect it really has on their success.  Her post raised some interesting questions about whether there is a double standard when it comes to fashion choices by men and women. 

Among practicing attorneys, the belief that lawyers should "look like lawyers" remains firmly in place.  Even less conservative attorneys that I know would never consider going to see a client or giving a seminar in anything other than the traditional blue or black suit.  Brown doesn't cut it, for those of you who were wondering.

Personally, I have many times struggled with "what not to wear" as the show's title goes.  I, for one, take my fashion choices pretty seriously.  Ok, maybe even too seriously. But, knowing that I tend to be far more fashion forward than fashion conservative, I try to be especially aware that I don't cross the line--wherever that may be. 

The most grounding experience I've ever had regarding professional attire occurred before I ever was a professional.  The "memorable" and eye-opening encounter occurred during law school when I participated in a intra-school "moot court" competition (think debate team for lawyers in training).  My female teammate and I burned through our competition during the early rounds and suddenly found ourselves, unexpectedly, in the semi-finals. 

Our opponents, two men, were friends of mine.  They were also very good oralists and were taking the competition very seriously. The panel of judges were actually "real" judges, who volunteered their Saturday afternoon to attend the event, fire questions during our arguments, critique the speakers, and, in the end, declare the winners.  Our panel included two male and one female state court judges.  The men ranked significantly higher than the woman in the judicial hierarchy.

Our opponents went first and, without a doubt, were outstanding.  Then, it was our turn.  We gave an equally outstanding performance.  I was thrilled.  My family had come to watch and I was so proud to have made what I knew was a finalist-worthy argument.  I was excited to hear the critique of the judges but, honestly, did not particularly care whether we advanced or not. 

The satisfaction of performing at my best was satisfaction enough.

The judges gave our adversaries their critiques first.  As is the norm, they included both good and bad points.  Hearing the comments, I knew we were going to be declared the winners--all of the points where they had done poorly, we had performed at a top level. 

Finally, it was our turn and my teammate and I walked to the podium to hear from the judges. There was a true audience in attendance, too.  The family and friends of each of the four participants, as well as participants who had been knocked out in earlier rounds, and the hosts and volunteers running the event were seated in the auditorium style seats behind us.  I was beaming with pride.

The male judges spoke first. Each of their points were right on target.  They'd caught us when we'd struggled for answers or tried to evade their questions.  They commented on our demeanors and our use of eye contact. 

The female judge was the last to speak.  She began with my partner and then turned her comments to me.  She made a few, half-hearted introductory points, like, "Overall, your presentation was very competent."  Then the niceties were over.  She glared at me, looking over the rim of her eyeglasses, which sat perched at the end of her nose.  And, without emotion, she announced that we would not be proceeding to the final round. 

Without hesitation, she declared that she had voted for our opponents because I had not worn a skirt. 

A skirt. 

That's right.  I had worn a pants suit to the argument.  For no reason other than, at the time, it was the nicest suit I owned.  The one skirt suit I had was fairly worn and I wanted to make sure that I presented the best appearance possible. 

She explained in an almost angry tone that, if this was the real United States Supreme Court (instead of the mock trial version), would I have really shown up in pants?  She almost shuddered in disgust when she finished the sentence.  

Clearly, she went on, I had not taken this competition seriously.  It was a flagrant act of disrespect for me to make the fashion choice that I had made so flippantly. 

She continued on about the trials that the women before me had been forced to endure so that I could even attend law school today or have any shot at success in my chosen profession. She continued on. 

But, by that point, I was no longer listening.  I was fuming.  It took every ounce of self-control I could muster not to react.  I wanted to cry over the sheer humiliation I felt as she berated me in front of my mother, my father, and an entire room full of strangers.  More than that, though, I wanted to tell her that it was women like her that would force my daughters and granddaughters to continue to fight for true equality in the workplace.  Not the two men who sat beside her--they had been courteous and genuine when they spoke.  It was clear that they believed in each of the participants and felt a kind of true joy to see what would develop into the next generation of lawyers.

It was her, the only woman on the panel, and women like her, that the future generations had to worry about.

And what about now?  Now do I wear a skirt suit or a pants suit when I go before the Court?  I'll be honest and say that it is something I consider each and every time.

Flexible work schedules (aka "alternative work schedules" or "flextime schedules") enable employees to work at varying times instead of the typical 9 to 5, 8-hour workday. This arrangement became popular as more career-women found they need some flexibility to deal with the hectic schedules of their families.  Not inclined to forego either, they forged the frontier of alternative schedules.  The future of flextime remains unclear.

A few days ago, my colleague, Adria Martinelli, posted on the results of a recent survey (New Employer & Workplace Study on Flexible Schedules), which indicate the decline of flexible work schedules.  The survey reflects statistics from the last 10 years and reflects employers of various sizes located across the country. 

Adria raised an excellent point--is the decline in alternative schedules linked to the sinking economy?  Certainly, one can imagine that, right or wrong, some employers may believe that it is more costly to employ workers on a flextime program. 

Historically, there has been a common theory that it was not profitable to use this model because of the cost of overhead per employee.  In other words, every employee, regardless of whether they work 60 or 28 hours per week still needs an office or workstation and are still entitled to benefits such as health care and employer-sponsored savings plans.  It was thought that the administrative costs incurred in running the business remained flat while the bottom line earnings of the company could decrease as more employees worked less time.

But what if the troubled economic times actually caused an increase in flextime or alternative working schedules?  As the cost of gasoline has risen, so has the cost of living.  The American workforce has had to become more and more cautious about their expenditures, some employees even taking second jobs to stay afloat in the rocky financial waters.

To cut the costs associated with the daily commute, employees have started carpooling, taking public transportation, and increasingly turned to more gas-efficient cars instead of the beloved SUV.  But what if these measures are not enough?  How many more alternatives can there really be for employees overwhelmed by the cost of fuel?

One idea that may surface in the not-so-distant future is an alternative work schedule.  A four-day workweek, where workers pack 10-hour workdays into the first four days of the week and have the fifth day off, could become a popular option for the cost-conscious commuter.

In that case, a flextime schedule would save travel time (as much as 2 hours a week for many employees who drive into a city from the suburbs), gas money, and would give them an opportunity to work on that "work-life balance" they've heard so much about. 

E-mail has become the modern-day medium for union solicitation. Employers who restrict employees' use of company e-mail must do so in a way that does not violate Section 7 of the National Labor Relations Act (NLRA).  The National Labor Relations Board (NLRB) was asked to determine the limits of these restrictions in a case decided in December 2007, The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (Dec. 16, 2007) (Register-Guard). But the decision may have raised more questions than it answered.

The NLRB's Decision

In Register-Guard, the Board was asked to rule on the circumstances under which an employer may discipline an employee for personal use of the business' e-mail account. Restrictions, the union argued, constituted an unfair labor practice based on its discriminatory effect on union solicitation.

The Board determined that an employer who restricted the use of its e-mail system to work-related business did not violate section 8(a)(1) of the NLRA when it applied this rule to Section 7 activity. The Board majority held that an employers email system is company property that employees have no statutory right to use. Although the decision offered some insight into the limits of e-mail usage policies, it was not the definitive resolution many had hoped for.

The Application of Register-Guard to the Unionized Workplace

Then, on May 15, 2008, NLRB General Counsel Ronald Meisburg issued a memorandum describing the Boards application of the holding in Register-Guard. Since the Register-Guard decision, Regional Officers have submitted discrimination cases involving company property to the Division of Advice. Labor and employment law blog, the Washington Labor & Employment Wire reports on the determinations reached by the Division of Advice:

1. An employer did not violate the Act by enforcing a rule that barred union officials from sending e-mails to company managers outside of the facility. The union used the company's e-mail system to send broadly distributed messages to company managers outside the facility. The Division determined that the company' rule was lawful because it concerned how the union was permitted to use the employer's e-mail system and did not otherwise prohibit the union from engaging in protected communications.
2. An employer's rule that prohibits solicitation for any purpose during work hours was unlawful when applied to union activity.  The employer inconsistently enforced this policy by permitting non-union-related solicitation activity including institutional and individual commercial solicitations, school fundraising solicitations, and personal solicitations. The Division reasoned that an employer may not discriminatorily enforce a facially valid no-e-mail-solicitation rule.
3. A rule that was re-promulgated after union organizing activities began at the employer's site was a violation of the Act. After an employee sent emails about a union meeting, the employee was disciplined for misusing the employer's email system. Prior to sending the email, the employee checked with the employer's IT director to determine what was considered abuse of the employer's computer system. The IT director did not inform the employee that personal email or email solicitation was against employer policy.     The case initially settled after an investigation revealed that the employee was disciplined because of union activity. Subsequently, the employer again disciplined the same employee for sending another email with union-related content. The Division concluded that the employer re-promulgated its email rule for anti-union reasons, and discriminatorily enforced the rule against union activity.
4. An employer violated the Act when it discriminatorily enforced its electronic communications policy against an employee. The employer terminated the employment of an employee after the employer learned that the employee was the author of an email sent to the employer's Board of Directors that listed concerns that employees had about working conditions. The employer alleged that the employee was terminated for inappropriately using the employer's computers in violation of its policy.           The Division found that the employer unlawfully discharged the employee for engaging in protected activities. The Division noted that the employer's email policy allowed reasonable personal use of the employer's computer and the employer permitted employees' use of the Internet, email, and other company equipment for personal purposes. Thus, the Division concluded that the employer disparately enforced its email policy.
5. An employer violated the Act when it discriminatorily prohibited use of its employee bulletin board. A union organization event was held at one of the employer's stores during which union material was placed on a bulletin board within the store designated for employees. The bulletin board was used for personal and general non-work related matters. The union material was taken down and the employer later turned the bulletin board into a management-only posting site. The Division concluded that the facts established an anti-union motive because the timing of the employer's conduct and the actions themselves were directly in response to the union activity.

These decisions reinforce the presumptive rule: an employer may not use facially neutral rules to effectuate anti-union animus nor may an employer discriminatorily enforce rules to prohibit protected collective activity.

What Other Employment-Law Blogs Are Saying

Since the General Counsel's memo was released, several employment-law bloggers have given additional discussion to the limits of workplace policies on personal e-mail usage. Some of the most informative posts include The Manpower Employment Law Blog's post, "Everything You Ever Wanted to Know About the New Union Email Rules," which was subsequently picked up by The Laconic Law Blog. The Ohio Employers' Law Blog tells us "How to Apply the New E-Mail Solicitation Rules."   And, earlier in the month, the Workplace Profs Blog posted about the General Counsel's Memo.

Delaware busineses, like the rest of the country, have felt the pinch of a slowed economy. Delaware employees are no exception. Secondary employment or moonlighting has become common as a result.

The continually increasing and record-high price of gas has made it difficult for some to make ends meet. The Department of Labor (DOL) reports that the number of workers working two jobs has increased 5% since last year. Some workers have resorted to a second job in an effort to protect themselves from financial devastation. Others want to maintain a certain lifestyle and have taken additional employment to ensure they are able to make nonessential purchases. Despite how commonplace moonlighting may become, the practice has real consequences for employers, especially for the business where the employee works full-time.

Employers should consider implementing a moonlighting policy if they don't have one already in place. Some policies prohibit moonlighting outright. Of course, the risk of this is that your employees may be forced to find a full-time job that doesn't have sucha restriction--especially if the employee's financial state is particularly serious.

Other policies permit secondary employment but require the employee to obtain approval in advance. This enables the employer to addres any potential conflict of interest in advance if, for example, the employee wanted to work part-time for a competitor. Another benefit of pre-approval disclosure is that it gives the employer the opportunity to offer additional overtime hours or even a wage increase to keep the employee working only at the primary job.

There are two main concerns for employers when their workers seek additional employment. First, by adding more working time to their already difficult schedules, employees are more likely to experience high levels of stress or burnout. That is why some policies permit moonlighting but warn that, if the employee's performance suffers as a result, he may be required to resign from his second job.

Another, less prevalent concern is the type of work the employee may take. For example, some businesses in the professional services industries, such as law, medicine, and finance, may be uncomfortable with the idea of a female employee working as a cocktail waitress at the local pub.

A different set of problems can occur if the employee takes part-time work with a competitor. In that case, the employer risks losing what may be a highly valued worker to the secondary employer. But you also risk the possibility that confidential information or trade secrets may be disclosed, whether inadvertently or intentionally.

If you do permit employees to moonlight, be sure you have a policy in place that clearly communicates the conditions and consequences, if any, that come with secondary employment.

Any of the employment lawyers in our Wilmington, Delaware office can assist you in drafting your moonlighting policy.

Don't know the difference?  Residents of Delaware, Maryland, New Jersey, and Pennsylvania sure do.  "The Shore" refers to the New Jersey Shore and all of the wonderful towns that it includes.  "The Beach," on the other hand, refers to the Maryland and Delaware Beaches, including Ocean City, Maryland (not to be confused with Ocean City, NJ, of course), Rehobeth, and Lewis, Delaware, to name a few. 

Any self-respecting East-Coast native knows that Memorial Day weekend is synonymous with the start of the summer.  And with the summer comes the shore or beach, depending on your current geography. 

And what, you ask, does this have to do with employment law?  Lots, actually.  Just ask the blogosphere.

Dan Schwartz, at the Connecticut Employment Law Blog, for one, can point to three e-law items with strong ties to the beach season.  All three are right on target.  He reminds employers to take a refresher course in vacation and paid-time-off policies.  Because, let's face it, the major highways aren't log jammed on Fridays at 1 p.m. by mere coincidence. 

Dan also points out the need to be aware of the very common summer parties where interns may bring a bit more casual approach.  Hey, let's face it, once August comes around, it's not their problem anymore.  Permanent employees, though, must carry with them the effects of their conduct at the end-of-summer BBQ. 

In fact, the only difference between the pool party or the Margaritaville fiesta and the office holiday party is that one involves, in fact, expects, there to be a lot fewer layers of clothing. 

Just looking at this combination alone, you can derive several potential concerns. 

1. Young summer interns.  Remember, the EEOC is watching over them and watching you in the meantime.
2. Summer parties that start at 8 p.m. instead of the holiday party, which starts at 4 p.m.  No one can leave the office early during the summer workweek (Monday - Thursday) because they need to get enough done not to feel guilty when they take a half day on Fridays.
3. Margaritas, Daiquiris, and other fruity concoctions go down easy all year round but most especially when it's 85 degrees and 89% humidity.

Of course, I love summer as much as the rest of the East Coast summer junkies and, by no means, am I trying to spoil anyone's fun in the sun.  But employers beware.  The cocktail above serves up a legitimate legal liability.

Have a great holiday weekend!

You’ve recruited top-notch Millennials and are actively managing them in your organization. Now you must retain and develop your Millennial talent. In the final post in this series, we list four tips for retaining your Millennial talent, some of which demystify the Millennial mystique.

1. Millennials have a solid work ethic.

Because Millennials are more peer-oriented and seek instant gratification, their work ethic can be self-centered. They ask, “what is my job?” and figure out the most efficient way to accomplish it. The result is that Millennials respond well to organizations that offer paid time off, as opposed to a year-end bonus, in their reward structure. This also plays into the Millennials’ need for work-life balance. The more your organization can offer mechanisms to achieve a balance between work and personal life, the more likely Millennials will be to stay with you.

2. Have a plan for Millennial advancement.

Although Millennials tend to think shorter-term than their Baby Boomer or Gen X counterparts, that’s not to say that they don’t need a plan. They just need a shorter plan. Millennials will not stay with an organization that has long advancement tracks, and Millennials loose interest in organizations that promise quick advancement opportunities and fail to follow through on such promises. Consider offering small rewards along the way, stringing the accomplishments together, and laying the groundwork for a Millennial to develop seniority.

3. Millennials don’t value “face time.”

Recently Millennials have garnered a poor reputation because they don’t put in the face time like their predecessors, which may not be a bad thing. Employees are indeed more satisfied if they feel valued, which for employers can mean acknowledging that your employees have a life outside of work. A difference between Millennials and their predecessors is that they want to accomplish a task as efficiently as possible (which usually means implementing their significant ability to multi-task) and build their reputation on substantive accomplishments rather than long work hours. For employers, this means that your reward structure needs to match the Millennials’ expectation that if they perform well, they will advance, regardless of how long it took them to finish a project.

4. Provide challenges and opportunities quickly.

Now that you’ve painted your organization as a challenging, satisfying place to work, you need to make sure your Millennial talent does not loose interest quickly. Instead, find ways for your Millennial talent to have a meaningful role in their projects and with their team and encourage Millennials to contribute new ideas. The notion that Millennials are valued for their contributions fits well with their perspective that each Millennial is special and unique. Foster an environment that allows new hires to take on increasing responsibilities as their performance improves.

Retention that works.

The key to retaining Millennial talent is to understand how Millennials view the world and their role in your organization. If you’ve done your homework recruiting Millennials, then you should have a good understanding of what Millennials want from their employers. Millennials often leave their jobs because it is not challenging, rewarding, or both. Millennials will, however, stay with organizations that value their professional growth and provide personal satisfaction.

Prior Posts in this Series, What HR Needs to Know About Your Company's Millennial Assets; include Recruiting Gen Y; and Managing Gen Y.

Okay, you’ve recruited talented Millennials.  Now you actually have to manage them!  Knowing that Millennials’ values and goals are different from those held by Baby Boomers or Gen Xers means that managing and mentoring Millennials is also different.

Here are some tips for managing your Millennial talent:

1. Provide a structured, supportive work environment.

Because Millennials are team oriented, they work well in a hierarchy. This is a significant upside, because Millennials are also easily “teachable;” they like to know how the team works and who’s in charge. Keep in mind, however, that this needs to be balanced with their need for instant gratification. A Millennial will quickly loose job satisfaction if they are a part of a team which fails to acknowledge each member’s contributions. Similarly, Millennials will loose interest if there is no payoff for accomplishing mundane tasks.

2. Create interactive relationships.

This is not your old mentoring relationship. When your organization selects mentors for Millennials, you need mentors who are willing to actually mentor – they must be willing to take the time to teach, advise, and contribute to a Millennial’s work experience. Lunching with your Millennial just before an annual review is not enough.

3. Be prepared for high demands and high expectations.

The tables have turned a little bit here. Whereas Baby Boomers and Gen Xers were willing to put in their time and ask few questions about their future, Millennials are likely to ask about how they can advance in your organization sooner rather than later. This means that your organization needs to be prepared to answer such questions, or risk loosing your Millennial talent. This does not mean, however, that you need to promote Millennials before they are ready. Instead, be prepare to reasonably manage Millennials’ expectations so that they have answers to their questions regarding rewards and promotions. One of the keys to managing Millennial talent is to develop and communicate multiple career paths.

Managing your Millennial talent is imperative to your organization’s success. With respect to Millennials, management means more than making sure your new hires are showing up for work and meeting deadlines. Much like your recruiting practices, your organization will need to commit to creative and strategic ways to manage your Millennial talent. Don’t spend time wishing that the Millennials fit into the same management mold as your Baby Boomer or Gen X employees. Instead, remember that flexibility and change can bring new successes to your workforce.

Other posts in this series:

Recruiting Millennials

Why Millennials Should Matter

Recruiting has never been easy. It's not getting easier. Organizations across the country are facing a double dose of hiring difficulty. The workforce is facing a brain drain as Baby Boomers near retirement. And, as one generation prepares for its exit, another is preparing its entrance. The challenges that this generation brings are novel. Smart recruiters are using creative solutions to manage these new challenges.

1. Get to Know Them. Recruiting to Millennials means you have to get to know who they are, what they like, and what they are looking for in a career. Before you recruit Millennials, go out and meet some Millennials. Find out what they want from an employer, how they think they would get it, and what makes an organization appealing to them. Remember, Millennials are not motivated by the same things as either Baby Boomers or Gen-X-ers, so before you set out to recruit some Millennials you need to know what your organization has or does to make it attractive to the best Millennial talent.

2. Think Digital. There is no doubt that Millennials are wired into all things digital. In order to reach the best candidates, you need to adapt your recruiting practices to their digital world. That's not to say that you need to launch text-messaging recruiting; however, you do need to seriously consider the best way to attract Millennials to your organization. You also need to promote how tech savvy your organization is, otherwise, Millennials will not consider your organization at all.

3. They are Team-Oriented. Millennials are peer-oriented and are accustomed to working in teams. Instead of trying to recruit a Millennial to your whole organization, consider recruiting Millennials to more discreet areas of your business which already work as a team. Also, make sure when you promote your organization's atmosphere, you emphasize group dynamics rather than individual performance. Millennials don't necessarily like to "go it alone."

4. They are Civic-Minded. Millennials are likely to grow up like their civic-minded Baby Boomer elders, which means that recruiting Millennials is a great way to boost your company's community profile. If your business is already involved with charitable organizations, make sure you highlight those efforts when you recruit a Millennial. If your organization is not involved with charitable efforts, consider allowing employees to create opportunities for your organization to do so. The result may be that your new hires are quickly folded into your organization's culture and they have an immediate attachment with their peers and their new boss. Plus, your organization gets the PR benefit.

5. They are the Future. Finally, your organization's leadership must understand how important Millennials are to your business's future. Despite the bad rap Millennials seem to be collecting (i.e., the new MBA who won't travel without advance notice or the new hire who won't look at his Blackberry on the weekends), they are unavoidable. Employee recruiting, management, and retention will absolutely change as a result of the infusion of Millennials into the workforce. HR experts predict that more employees will seek out companies that allow flexible schedules, reward creativity (rather than long hours), and provide meaningful challenges (rather than merely putting in time to climb the corporate ladder). The consequence is employers may need to re-vamp their culture and commit to some of the changes Millennials demand. In short, your organization's leadership needs to buy into the idea that in order to recruit the most talented new hires, you may need to emphasize different aspects of your organization's culture and reward structure.

The bottom line is Millennials remain a largely untapped asset and your organization will benefit from their talent. As long as you remain creative and strategic, your company has the opportunity to recruit the most talented Millennials.

Recruiting, Managing, and Retaining Millennials

The HR world has been abuzz with discussion about the generational dynamic between the aging baby boomers and the Web 2.0 world of Millennials. This five-part series is designed to give the rest of us some perspective.

A "Millennial," demographically speaking, is a person born after 1980. They are the youngest members of today's workforce. Experts estimate that by 2010, Millennials will outnumber both Baby Boomers and Gen Xers. Millennials (a/k/a "Gen Y") are our society's "digital residents," which means that they have enjoyed the luxuries of digital technology their entire lives, including the massive world of video games. Their digital residence has given their generation characteristics employers never seen before.

Some sociologists believe that as a result of their residence in the digital world (think instant messaging, Facebook, and MySpace), Millennials are significantly peer-oriented and constantly seek instant gratification. The bottom line: Millennials don't necessarily buy into the idea that in order to succeed at work, you need to get in early, stay late, and consistently work hard.

These characteristics can make it difficult for employers to adapt how and who they recruit, and how they manage and retain their new human resource. In short, Millennials are changing the way employers do the business of, well, employment. The next three installments provide tips on how your organization can tap into Millennial talent.

For more insight on Millennials and how they fit into your organization, consider the text "Millennials Incorporated" by Lisa Orrell. Ms. Orrell hosts the blog "Lisa's Generation Relations Blog." And, on May 20, 2008, HRHero.com will host Dr. Diane Gayeski, contributor to the Wall Street Journal and consultant to some of America's top employers, in an audio conference titled "Are you ready for the Millennials? What HR Needs to Know to Recruit and Manage the IPod Workers."

The focus of the next post in this series is Recruiting Strategies for the Next Generation.

Some recent reports about law firms trying to persuade associates to dress better, and even hiring coaches for them, are a reminder that the pendulum seems to have swung back from the days when even old timers were “dressing down” to try and “connect” with the wealthy young techie entrepreneurs.

I, for one, am pleased to see a move toward more moderate dress.

There has been silliness on both sides of the continuum. Some years ago, the Delaware Supreme Court, in its infinite wisdom, issued an edict that lawyers appearing before it had to wear white shirts. So much for sartorial creativity.

But if I were seeing a lawyer, I’d feel more confident if he or she were wearing a white shirt than jeans or running pants. While I don’t think we need to force associates to pore over “Dress For Success,” I think that dressing up a bit is a step in the right direction, both for the lawyer’s self-image and the clients’ confidence in the attorney. Maybe ties can be optional, especially in the summer, but there’s nothing like a suit or at least a sport jacket to establish a tone of authority (deserved or not).

Interviews are the usual starting line for pregnancy-discrimination suits and, more recently, FRD claims. I often get questions from clients or seminar attendees about the perils of interview questions.  A common theme is why is it that they shouldn't ask candidates about their family, i.e., spouse, kids, etc. 

It seems natural. "Oh, I see you volunteer at the North East community center.  My kids take swimming lessons there.  Do your kids take any classes there?" Heck, I can give you a real-life example that happened to me last week. 

I was at the local greeting-card store.  As I was checking out, the [female] employee looks up and says enthusiastically, "Do you have any little ones at home?" 

I nearly choked on my Lifesaver.  I kid you not.  (No pun intended, really).  I stood there, mouth open, speechless. 

She turned around and grabbed a toy Schnauzer from a counter lined with little stuffed animals.  "You get one of these for free for a purchase of $20 or more."  I lifted my chin off the ground and nodded while she stuffed the toy toy (ok, pun intended) into my shopping bag. 

The employee was probably all of 23 years old.  She had no intention of forming opinions of me based on my answer to to her question.  She was just trying to give me the free toy.  But the question caught me off my guard. 

I can almost guarantee that if you went back to the store and asked her about it, she would have positively no idea who I was--one of many customers she'd seen that night.  She certainly would not recall what she'd said to me. 

It's that easy.  Despite best intentions, it is so easy for an interviewer to ask a question that leads to a lawsuit.

Pregnancy Discrimination, Maternal Profiling, Family Responsibilities Discrimination (FRD), and Mother's Day.  A natural combination.  You can add one more to that list.  Off-limit interview questions. 

When I teach seminars about best hiring practices, I usually get at least a few dirty looks when I talk about interview questions that should be avoided.  Employers and HR professionals often comment that interviews should be conversational to put the candidate at ease so the interviewer can get to know the "real" candidate.  Not a good idea.

Here's why:

1. Every candidate that you interview except one is going to be rejected.  Remember that.  Every candidate except one goes home a loser. 
2. No one thinks they're a loser.  No candidate who made it as far as the interview thinks that they shouldn't get the job. Of course they should get the job! 
3. When rejected, blame-shifting is inevitable.  Do the logic.  If they were sure they were hiring-material but they don't get hired, what can be the explanation?  Someone else made a mistake. (Namely, you, The Employer).
4. The interview becomes the target.  Well, what else is there?  The candidate had only one face-to-face interaction with The Employer--the interview.  Every word, every gesture, every question is analyzed to try to find what went wrong. 
5. Lawsuit. 

Sure, nobody likes a story with a sad ending.  But "it's for your own good," ok? 

Interviewers (often untrained in employment discrimination) are just trying to make the candidate feel natural and at ease.  They want to know whether the interviewee will be a good fit, whether they have the technical skills needed, whether they understand the job's requirements, etc.  They aren't angling for prohibited information. 

But when a candidate doesn't get hired, every question becomes suspect and the potential starter for a discrimination lawsuit. 

For those of you who want to know how to solve this problem, the best way to find out is to attend one of our seminars, especially those on lawful interviewing.  For now, I'll say this: Every interviewer at every interview for every candidate should (no, must) use a script of pre-prepared questions.  And that script should be the same one used by every other interviewer for every other interview (at least for the same position). 

Autonomy in interviewing is a bad idea.

Employers need to plan for the aging workforce—the "gray-haired demographic" is here to stay.

Aging Workforce News (AWN) talks about a newly introduced piece of legislation, the "Incentives for Older Workers Act." The proposed bill is designed to provide incentives and eliminate barriers for older Americans wishing to stay in the workforce longer, and encourage employers to recruit and retain older workers. AWN explains some of the bill's highlights:

Given the statistics on Baby Boomers in the workplace, this law could help employers deal with what Forbes.com calls the "Gray-Haired Workforce." By 2010, the number of workers aged 35 to 44--or those typically moving into upper management--will decline by 19%; the number of workers aged 45 to 54 will increase 21%; and the number of workers aged 55 to 64 will increase 52%. These statistic show that the workforce will include more and more employees aged 45 and over for several years to come. And they're not going anywhere—AARP reports that 79% of baby boomers say they have no plans to retire any time soon.

Workplace Theft requires employers to respond quickly and effectively. Of course, the best tool is prevention. Employers should implement be aware of the best practices for preventing theft in their organization. But, if a theft should occur or a complaint of theft is reported, employers must be prepared to react using predetermined standards and guidelines to ensure consistency and avoid liability.

The Delaware News-Journal is reporting the arrest of a manager of a local Wendy’s restaurant for allegedly taking $1,800 from the till.

Employee theft has been and will probably always be a problem. Recent estimates indicating that it costs U.S. employers anywhere from $4 billion to $40 billion per year.

So what's an employer to do? How do you prevent — or at least control — employee theft? Our friend, John Philips, at The Word on Employment Law Blog, suggests the following:

1. Watch for telltale signs like an unexplained rise in an employee's living standards.

2. Hire people you can trust through the use of good background checks.

3. Make it hard to steal by careful supervision, the use of commonsense procedures and controls, and routine auditing.

4. Partner with employees to create an environment in which reporting theft is a job responsibility.

5. Give alternatives to stealing by providing employees with assistance when they get in a real bind with heavy medical expenses and the like.

6. Establish clear written policies on ethical behavior to be signed by each employee and to be enforced consistently, no matter the employee's position.

Once theft is suspected, John suggests the following to avoid a defamation action by the accused employee:

• Thoroughly consider the source and validity of any information that alerts you to potential theft.

• Obtain as much information or evidence as you can find about the alleged theft before you take action.

• Review all policies that govern this kind of situation to make sure you're following them.

• Don't speculate about what the facts could be; find out what they are.

• Consider what you have done with employees in similar situations to be sure that consistency is being applied.

• Consult legal counsel to make sure you're on solid legal footing before taking action.

AMERICANS WANT NEXT PRESIDENT TO FOCUS MORE ON SAVING U.S. JOBS AND HEALTHCARE; LESS ON IMMIGRATION REFORM

With the spotlight of the political world shining on the Delaware Valley today, a new “America at Work” national opinion survey by the non-partisan Employment Law Alliance (ELA) shows that Americans overwhelmingly want their next President to focus more on improving their standard of living, providing universal healthcare, and stemming the outsourcing of jobs overseas than making it easier for immigrants to live and work in the United States.

The poll is based on a sampling of 1,125 working Americans surveyed between April 4 and 9 and is believed to be the only national survey to date focusing exclusively on a wide range of workplace-related issues that will likely confront the next President.*

You can not walk outside today and not hear people talking about Wednesday's debate and the impact of the upcoming elections on jobs and healthcare. Life in the workplace is often the centerpiece of concern for so many Americans getting ready to elect a new president.

While issues such as immigration get much of the press, I believe that the poll shows that what a typical voter is interested in might vary.

A summary of the results reveal:

· 87% of Americans want their next President to focus on increasing the proportion of the workforce earning at least a living wage, closely followed (86%) by making it tougher for companies to outsource U.S. jobs to foreign countries, and (83%) rounding out the Big Three, providing healthcare coverage for all U.S. citizens.

· 76% of Americans are also concerned - but not at the same intensity level - with having the next President work toward increasing workplace safety regulation, 70% support focusing on expanding family leave rules and 69% think beefing up enforcement of workplace discrimination laws should be a priority.

· In sharp contrast, 40% said they are concerned that their next President focuses on immigration issues, ranging from making it easier for professionals to work in the U.S. to granting amnesty for illegal aliens.

· Workers were also significantly split along racial lines regarding both views on workplace issues and immigration reform with, for example, 55% of non-whites supporting relaxing immigration laws for professionals versus 36% among whites.

· Geographically, 46% of workers in Western states thought the President should make increasing legal immigration a priority compared to a low of 25% among Midwestern workers.

· 45% of Americans want to make it easier for unions to organize workers.

ELA members concentrate on labor and employment law issues in every American state and more than 75 countries. The survey was conducted prior to Wednesday's democratic debate at the National Constitution Center in Philadelphia and the Pennsylvania primary on April 22nd.

“The message to the next President is raising the standard of living and getting better healthcare is more of a priority than organizing unions or immigration concerns,” said Sandler.

Dr. Ted Reed, President of Philadelphia-based Reed group and Poll Director for ELA, said the input from ELA's attorneys around the country was invaluable in shaping the questions for the survey. According to Dr. Reed, “This survey is important because of the extent of demographic detail, including gender, race, income, education, and geography. The focus on pocketbook issues across the board as a Presidential priority is unmistakable.”

*The error interval is +/- 2.99% at a 95% level of confidence.

********************************************************************
Sheldon N. Sandler, a partner in the Employment Law Department at Young Conaway Stargatt & Taylor in Wilmington, Delaware, members of ELA.

Young Conaway Stargatt & Taylor, LLP, one of Delaware's largest law firms, counsels and represents national, international and local clients, handling sophisticated advisory and litigation matters involving bankruptcy, corporate law and intellectual property. Now in its fifth decade, Young Conaway also guides regional businesses and individuals through a myriad of employment, real estate, tax, estate planning, environmental, and banking issues from the firm's offices in downtown Wilmington.

The Employment Law Alliance is the world's largest integrated, global practice network comprised of premier, independent law firms distinguished for their practice in employment and labor law. Comprised of more than 3,000 lawyers, there are member firms in every jurisdiction in the United States and over 75 countries around the world. For further information, including access to the survey charts and graphs, visit: www.employmentlawalliance.com

The Los Angeles Times recently reported that more than two dozen UCLA Medical Center employees are in the hot seat for illegally accessing Britney Spears’ medical records. The breaches reportedly occurred when Spears was admitted in January.

While the employees were unable to access the troubled pop star’s psychiatric records, they did snoop through records from her previous visits to the facility (including records from when she gave birth to one of her sons). At least 13 employees, none of whom are doctors, will be fired, while 12 others, including several doctors, will be disciplined.

It seems the nosy employee has struck again.

How to Curb the Curiosity?

There is no doubt that privacy can be hard to maintain in the workplace. Have you ever watched Jim or Dwight try to make sales calls on The Office? It seems that nobody’s personal or professional life is protected. Nosy employees love to be a part of everyone’s business, and they love to spread their knowledge down the gossip super-highway. Let’s face it, those UCLA Medical Center employees were not trying to view Spears’ medical records as a part of their continuing medical education.

Here are a few tips to curb curiosity in the workplace and increase your employees productivity.

1. Don’t Tell. Teach your employees to be close-lipped. My mom always said, if you want something to stay secret, then don’t tell…anyone. So, don’t. Also, the juvenile “I’ll tell you, but don’t tell anyone else,” never works. Bottom line, keep it to yourself.

2. Air the Laundry. If you have a secret, let it out. A nosy employee loves secrets. What fun is spreading gossip if it’s not supposed to be kept secret? This is particularly important with respect to big business announcements like promotions, demotions, and relocations. Get out in front of the potential rumor and ensure accurate information is spread.

3. Stand Up for Yourself. Have you ever watched two cowboys stare each other down? Good. Now tell your employees to do that to their nosy colleagues. Just kidding, we all know it’s better to take the high road here. Instead of staring, simply instruct your employees to reply to the Nosy Employee that the subject matter is personal and none of their business. Sure, the Nosy Employee will go elsewhere, but if the source is practicing Tip Number 1, there should be nothing to talk about.

4. Turn the Tables. Teach your employees to reply with a witty (but not juvenile or rude) response, like: “Why are you asking? What have you heard?” Then, refer to Tips Numbers 1, 2, and 3.

Privacy is an important issue for everyone. If your employees feel secure about their business, whether professional or personal, then it’s likely that they will be less distracted and more likely to, well, work.

Every time we undertake the defense of a discrimination charge or lawsuit filed by a current or former employee, one of the first things we do is ask our client for a copy of every piece of paper, e-mail message and computer file they can find that has to do with their relationship with the employee. What makes us the happiest is when our client sends us documents that we can use to demonstrate to the government, the court, or the jury that the company has adopted basic employment policies, has been conscientious in the hiring process, has monitored the employee’s performance, and, if there were conduct issues, has taken steps to correct them.

Employers, no matter how small, that do not keep basic employment records will face a greater challenge in defending claims by employees than those who do. In Delaware, employers who have as few as four employees can be sued in state court for discrimination!

Even if you don’t have a Human Resources Department and feel that you are too busy to fool around with what you might think of as useless and time-consuming paperwork, you will do yourself a big favor if you use, at the very minimum, the following:

1. An employment application

2. An employee handbook

3. Performance evaluations

4. Disciplinary action forms

You should also keep in mind that certain documents are legally mandated, including I-9 forms, state and federal employment law posters, and tax documents such as W-4 forms. I would also recommend that you make a photocopy of each employee’s social security number card to avoid problems with mismatched social security numbers. Using these basic documents will help you avoid liability for discrimination, hiring illegal aliens, and hiring employees who harm others, and may help you reduce the number of successful claims for unemployment compensation benefits.

Sen. Barack Obama’s speech on race yesterday opened up many discussions on this sensitive topic, and the workplace is not insulated from this dialogue. As a result of Obama’s speech, race relations may well be a topic at your water cooler as we speak.

For many reasons, now is a good time for all employers to audit their EEO practices. In addition to avoiding costly lawsuits, employers risk losing talented employees due to workplace bias. According to the 2007 Corporate Leavers Survey, over 2 million managers and professionals leave their jobs every year solely due to workplace bias.

To avoid these significant risks, ensure your workplace has the following basics covered:

1. Policies: do you have a written EEO policy? Does it include all the protected categories including those unique to your state? (In Delaware, marital status and genetic information are protected.)

2. Complaint Channels: do you provide clear complaint channels so that employees know where to go should they perceive they’re being harassed or discriminated against on the basis of their race?

3. Training: training has to be mandatory and should include training on discrimination or harassment based on any protected category. Most larger companies conduct training on sexual harassment, but not other types of discrimination. Your written policies are worthless if no one has read or understands them. Consider separate training on diversity.

4. Reporting Requirements: make sure you comply with any reporting requirements – for example, filing EEO-1 forms depending on the size and status of your company.

5. Commitment from the top: obviously, you can be successful at none of the above without a commitment from the highest level of leadership. We recommend that the President, Executive Director, or highest level executive available introduce any training to demonstrate the corporate commitment.

With these basics in place, hopefully Barack’s speech will generate only positive and constructive dialogue in your office!