Delaware Employment Law Blog

Working families, especially women who work outside the home, want to know what the presidential candidates have on their respective agendas that will affect the workplace.  Barack Obama has begun to address some of the employment-related portions of his campaign platform.

On July 28, 2008, Barack Obama unveiled the blueprint for his Plan to Support Working Women and Families. In it, Barack promises many changes to improve the lives of working women in America – among them include:

• Expand FMLA coverage to cover employers with 25 or more employees (currently it only covers employers with 50 or more employees) and to cover additional purposes including participation in children’s school-related activities
• Encourage states to adopt paid leave with fund to assist states with start-up costs
• Protect against caregiver discrimination by enforcing the recently enacted guidelines on Caregiver Discrimination
• Expand flexible work arrangements with the federal government leading by example on flexible work arrangements and telecommuting.

If Barack wins the presidency, it will be interesting to see how many of these agenda items he follows through with. Obviously, it could mean big changes for American employers. Stay tuned!

Employee-privacy rights.  Compensation-based jealousy.  Bitter co-workers.  Electronic monitoring.  Gender discrimination.  Clash of the Gen X and Baby-Boomers, even?  The continuing saga involving former news anchors Larry Mendte and Alycia Lane has all of the makings of an employment-law thriller. 

Last we checked in with the two former news anchors, KYW-TV announced its decision to terminate long-time host, Larry Mendte, following a federal investigation and raid of Mendte's home and office.  On Monday, July 21, the U.S. Attorney's office filed a federal criminal information charging Mendte with a single felony count of intentionally accessing a protected computer without authorization.  See the full Information here: 

The allegations, as detailed in meticulous fashion in the Information, are based on the government's claim that Mendte hacked into Layne's personal e-mail accounts and released the info he stole to the press and others.  The hacking is said to have gone on for a period of two years but, last quarter alone, is alleged to have tapped into her accounts approximately 537 times.  Lane's lawyer is reported so say that Mendte was jealous of his younger co-host, who garnered lots of attention and who made $100,000 more than him a year. 

That alleged jealousy could land Mendte with a jail sentence of up to six months.

The Acting U.S. Attorney Laurie Magid, explained the government's interest in the case.  "We live in an age in which many people exchange and share personal, sensitive information by e-mail every day."

This is a great lesson for employers.  Privacy rights are on the minds of employees everywhere.  It's an already-serious issue when employers monitor their employees' e-mail and internet use.  But add to that a potential threat from co-workers and privacy paranoia seems like a very realistic possibility.

For earlier episodes in the soap opera:

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Pardon Me? Anchorwoman’s Cursing Caught on Live TV

What do News Anchors, Sports Figures, and Corporate Executives Have in Common? Employment Agreements and Risk-Avoidance Clauses.

Morality clauses are in the news again.  A Connecticut second-grade teacher was fired after she appeared, with her husband, on Howard Stern's radio show.  The couple participated in a contest called, "Hottest Wife, Ugliest Husband."  She sued her former employer alleging, among other things, sex discrimination and due process violations (under Section 1983).  She has also sued the union for violation of the duty of fair representation with regard to its alleged failure to advocate on her behalf during the grievance process.

The teacher, Marie Jarry, took a sick day from work to participate in the contest (which, by the way, they won first prize and $5,000).  She admits maybe that wasn't the best idea.  When she returned to work, she was told she'd violated the school's "morality clause" and was terminated.  

More details can be found at The Smoking Gun, as well as a link to the full complaint.

For more on morality clauses, see these recent Delaware Employment Law posts:

Prying Eyes: What is "Private" Becomes Even Fuzzier for Employees Who Snoop

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Off-Duty Conduct & Newsmakers:  The Role of Morals Clauses in Employment Contracts

Bad Boys, Bad Boys, Whatcha' Gonna Do When They Work for You?

Off-Duty Conduct, Generally:

Off-Duty Conduct In the News

There's No Hiding Your Own Bad Habits

[Editor's Note: Dan Schwartz of the CT Employment Law Blog always keeps his readers up to date on the hottest employment law topics and stories.  He has a great way of demonstrating how just about everything is related to employment law in some way. Well, being the legal eagle that he is, Dan apparently spotted this story at just the same time as Michael Stafford.  So, although I can't send him a hat tip for the story, I do want to send an equally enthusiastic "great post!" to Dan for his great catch.  I mean, really, sharing is a very important value.  If more managers would give credit where credit is due or share credit where possible, they'd have a much happier group of employees and, in turn, a much easier job.  All of that being said, go check out the CT Employment Law Blog for more on this story and Dan's other great posts! md]

Delaware Governor Ruth Ann Minner's recent judicial nomination triggered an avalanche of employment-law issues.  The man she'd nominated as a Delaware Family Court Commissioner was convicted of selling cocaine to an undercover officer when he was 17 years old. Since then, he'd led an honorable life, going to college, then law school, and, most recently, holding the position of deputy counsel to the Governor. But the state legislators raised questions about whether his criminal record prevented him from sitting on the bench.

The Governor asked the Delaware Supreme Court to issue an opinion answering this question.  The current law states that persons cannot hold state office if convicted of an "infamous crime."  The term has never been defined. 

The state Supreme Court held that the offense, which was committed as a juvenile, should be treated as a "civil delinquency, not [a] crime at all," and certainly not as an "infamous crime."

The juvenile conviction was pardoned in 1999 shortly before he was admitted to practice law in Delaware and New Jersey.  Since then, he has worked as a deputy attorney general and a defender prior to working as legal counsel for the Governor.   His community contributions include being a member of the Metropolitan Wilmington Urban League, and serving in positions on the Delaware Law Related Education Center and the Delaware State Bar Association's Committee on Professional Ethics.

This story serves as an excellent example of the seriousness with which employers should consider an applicant's criminal history.  Employers who do conduct background checks that include criminal records should not presume that a conviction is an automatic bar to employment.  In accordance with EEOC Guidelines, the candidate should be given a full and fair opportunity to explain the conditions of the crime and conviction, as well as how he or she has contributed to the community and society at large as factors for employment. 

See full coverage of this story by Esteban Parra at the Wilmington News Journal's website.

Another important source of information is the EEOC's Fact Sheet on Employment Tests and Screening, which addresses Criminal Background Checks.

Employees' privacy rights.  They're everywhere.  Lately, they've been in the KYW-3 TV Newsroom.  Two former Philadelphia co-anchors have put e-mail privacy in the spotlight.  Larry Mendte, who is accused of reading and leaking Alycia Lane's private e-mail account, was fired today.  His termination comes in the middle of a federal investigation, which involved a raid of Mendte's home and office and the removal of "computer equipment," and follows just days after Lane filed her long-threatened suit against their shared former employer.

This scandal is a big deal in the Philadelphia local news.  And perhaps that has something to do with the fact that Lane had lost her sugary-sweet charm after the third or fourth scandal.  Or maybe it's because Philly is known equally just as much for relentlessly jeering unpopular sports figures as it is for brotherly love.  But maybe it's because this is a story that so many people already know.  They've lived it themselves.

Mendte is suspected of accessing Lane's account "possibly hundreds of times" and then leaking the information to their boss, the news station, or the press.

So what happens to Mendte if it's later found out that he did secretly sabotage his former partner at the news desk?  Not much.  Mendte isn't a supervisor so, unless the station is found to have known about the snooping or somehow endorsing it, the station will not be held responsible for the acts of Mendte.  Obviously, losing his long-time job, where he spent many years enjoying the favor of Philadelphians, is a big deal and probably one of the most severe consequences he could face.

And Lane could certainly sue Mendte, as well as the station.  It's unlikely that she will, though, given the low value of any possible recovery for privacy claims brought against an individual, as opposed to an employer.

But the real question is not who will be victorious in the media or in the courtroom.  The real question is whether your organization faces similar risks to the potential espionage of trade secrets and confidential information or to a Jerks-at-Work campaign where a bully secretly accesses a target-coworkers' emails with bad intentions.

What safeguards do you have in place to automatically monitor technology use of company computers?

What policies do you utilize to ensure employees' data is protected with regular password changes and by communicating that an employee who shares her password with another may be subject to serious discipline?

What about the specifics of what an employee may and may not take from the workplace, which includes sending it out of the organization and into the world wide web?  Have you expressly told employees about the consequences of such action?  Do you know what the consequences are?

Take the Mendte-Lane debacle as a cue for you to review your policies, practices, and how those messages are communicated to employees.

Michael Klein and John Shiffman at the Philadelphia Inquirer, have more on this story.

Prior Related Posts:

More Drama at the News Desk

Employee Embarrasses Employer, Who Fires Employee, Who Sues Employer

What do News Anchors, Sports Figures, and Corporate Executives Have in Common? Employment Agreements and Risk-Avoidance Clauses

Bad Boys, Bad Boys, Whatcha' Gonna Do . . . When They Work for You?

Managers, be thankful that you don't work in news television.  Apparently, news anchors aren't the easiest employees to manage.  Local news celebrities just might have the market cornered on employee off-duty conduct that causes employers the biggest headaches.  And now, employees' off-duty conduct is at the heart of an employee-versus-employer lawsuit.

Oh, those crazy news anchors!  Always making news of their own! You may recall from earlier posts the saga involving the once anchorwoman for KYW-TV Philadelphia.  Hmmm. Scandals, actually, would be more accurate. 

Let's start with Alycia, seeing as she's the trophy-holder in the scandal department.  First there was the "Dr. Phil episode." She spilled her heart (and lots of tears) on national television during an appearance on the Dr. Phil Show and discussed in detail her failed marriage and the prospect of dating.  Then she was busted sending pictures of herself clad in a skimpy bikini to NFL Network sports anchor Rich Eisen. Eisen's wife was the so-called busting party. 

Then, in December 2007, Lane was arrested in New York and charged with assaulting a police officer.  There also were allegations that she'd verbally attacked the female officer with degrading and homophobic slurs. 

The officer was in plainclothes when the incident occurred.  Oops.

KYW terminated her a month later and issued a fairly quiet (and gentle) press release. 

Then, last month, after the story trail had gone cold, Lane was back in the news.  But this time, it was her former co-anchor, Larry Mendte, who had the spotlight.  In May, FBI officials searched Mendte's home and office computers triggering speculation that Lane may have pointed the finger at Mendte for leaking the Eisen email.  It hasn't been confirmed by Lane, Mendte, or the FBI that the search may have been the result of suspicion that he'd secretly read Lane's emails or otherwise accessed her computer.

The latest?  Lane has filed suit in Philadelphia against KYW.  The lawsuit against her employer alleges that the station's management had a pattern of "deep-seated gender-discriminatory animus" towards women in the workplace. 

Today's Wilmington News Journal reports:

The lawsuit says the station told Lane to interview TV psychologist Phil McGraw in 2004 and suggested that she talk about some of her past relationships. She said she understood that inappropriate personal elements would be removed and was mortified when footage of her crying about her divorce was included in a heavily promoted KYW newscast.

The suit says that because of those decisions, Lane "was branded in the press as someone who sought to make herself the news, rather than to merely report the news.

The defamation suit alleges that the station invaded her privacy and spread malicious gossip that eventually caused her to lose career opportunities and destroying her reputation. 

Stay tuned, viewers, I feel that it's safe to say there's more to come in this drama suited for prime-time TV.

Will Bunch of the Philadelphia Daily News at Philly.com:  Alycia Tells Her Side In Suit

(AP) The Wilmington News Journal:  Alycia Lane Sues Former Reporter

Related Posts:

What do News Anchors, Sports Figures, and Corporate Executives Have in Common? Employment Agreements and Risk-Avoidance Clauses

Bad Boys, Bad Boys, Whatcha' Gonna Do . . . When They Work for You?

Good leaders are difficult to come by.  Good leadership in government, some might say, is even more difficult to find.  I'd guess that some of the citizens of the Illinois town of Cahokia might just feel that way right about now. 

Cahokia Mayor, Frank Bergman, filed a workers' compensation claim after taking a fall down the stairs while fulfilling his duties as a civil servant. This claim has resulted in payment to Mayor Bergman for more than $20,000. 

And what's wrong with that, you ask?  Certainly, there is nothing un-leader-like about utilizing a government service for its intended purpose. 

But, the trouble here is, Mayor Bergman appears to be an unusually clumsy government official. This was his fourth workers' comp claim since he began working for the small town. In all, the Mayor has collected no less than $145,000 in workers' comp payouts since he came to work for local government in 1986.  The Mayor's annual salary is $40,000. 

Well, maybe the Mayor can try to avoid walking under ladders and crossing paths with black cats in the future.  Surely, bad luck must be to blame for his ongoing series of unfortunate accidents. 

Source: Chicago Tribune:  Small-town mayor gets $20,000 for his 4th workers' compensation claim

Delaware employers who've not heard of "The Construction Industry Independent Contractor Act" should pay close attention to this post.  Every business with employees working in Delaware should be aware of this bill, HB 468, introduced yesterday in the Delaware General Assembly, and the many repercussions it could cause. 

Proposed Bill Would Target Delaware Employers in the Construction Industry

"The Construction Industry Independent Contractors Act,” apparently is on the fast track for approval at the state legislative level.  Although its name indicates that it reaches construction-industry employers, the proposed bill has potential implications for all employers.

In short, the bill purports to penalize employers who improperly classify construction employees as independent contractors.

In essence, it provides that all construction industry workers are “deemed to be” employees unless:

1. the workers are “free from control or direction;”
2. the work is “outside” the employer’s usual business; and
3. the person is “customarily engaged in an independently established trade, occupation, profession, or business."

Employers Could Face Jail Time for Misclassification

An employer who fails to “properly classify” a person as an employee, even unwittingly, is subject to fines and imprisonment for up to 90 days. If done knowingly, the fine can be as much as $10,000 and the prison term as much as 6 months. In addition, the Secretary of Labor can impose administrative penalties, debar the employer from state projects, and even require the employer to cease operations.  And as if those measures aren't enough, an individual who claims to be the victim of misclassification, or his or her union, can bring a civil action for damages, including a class action.

This draconian legislation, if enacted, would expose construction industry employers to financial ruin. Class action lawsuits are invited, and the language is constructed in such a way that virtually every person who works on a construction project would be viewed as an employee.

The Potential Consequences of the Independent Contractors Act

But why stop with construction employers? The same rationale would seem to be applicable generally to employers, so the next step would seem to be to expand the scope of the legislation to cover all employers. Interested businesses and business associations beware – this bill must be stopped!

The full text of the bill can be seen at the Delaware General Assembly website.

Federal contractors are now required to use E-Verify, an Internet-based system operated by the Department of Homeland Security (DHS) & the Social Security Administration (SSA) that allows employers to electronically verify the employment eligibility of their newly hired employees.  E-Verify is a free and, until last week, voluntary way to determine the employment eligibility of new hires and the validity of their Social Security Numbers.

On Friday, June 6, 2008, President Bush signed an executive order amending Executive Order 12989, which is entitled “Economy And Efficiency In Government Procurement Through Compliance With Certain Immigration And Naturalization Act Provisions.”  Sounds important, right? This is in fact very big news for government contractors, who must now revamp another part of their hiring process to ensure that they don’t lose their contracts.

The original Executive Order 12989, "Economy & Efficiency in Government Procurement Through Compliance with Certain Immigration & Naturalization Act Provisions", was signed by President Clinton on February 13, 1996.  It stated that if a government contractor violated the Immigration and Naturalization Act’s prohibition on hiring illegal or undocumented aliens, the contractor could be “debarred.”  Debarment means that the contractor loses its current government contract and is shut out from future contracts for the duration of the debarment period.

The amended E.O. 12989 goes a step further, requiring all government contractors to use the DHS electronic verification system (currently known as “E-Verify”)  to ensure that “all persons hired during the contract term by the contractor to perform employment duties within the United States” are authorized to work in the United States. This requirement apparently extends to all newly hired employees, not just employees hired to work on the government contract. In addition, the Executive Order requires the contractor to use an electronic verification system to verify the employment eligibility of “all persons assigned by the contractor to perform work in the United States.”

The Order instructs the Secretary of Homeland Security to “modify as necessary and appropriate the electronic employment eligibility verification system....” On June 9, 2008, DHS announced that E-Verify is the system designated for use by federal contractors for compliance with E.O. 12989.  According to DHS, “Agencies responsible for federal acquisition regulations (FAR) will send a Notice of Proposed Rulemaking (NPRM) to the Federal Register today soliciting public comment on proposed changes to these regulations. Comments will be accepted for 60 days.”

DHS also assured employers that using E-Verify will not be too painful: “More than 69,000 employers currently rely on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in fiscal year 2008. Of those queries, 99.5 percent of qualified employees are cleared automatically by E-Verify.” E-Verify is a free service that, according to DHS, usually verifies an employee’s work authorization in seconds.

As the DHS E-Verify System is currently designed, it may be used only for newly hired employees but legislation introduced by Senator Chuck Grassley on June 5, 2008, would expand the program to cover current employees also.  You can read more about the E-Verify System on the DHS website as well as in prior posts on this blog.

Contractors must still take care to avoid discriminating against applicants and employees who are simply suspected of being undocumented workers. As Procurement Executive Janice Sposato pointed out in April 1997 after the promulgation of the original E.O. 12989, there are various laws that prohibit discrimination based on citizenship status and national origin discrimination. Accordingly, contractors may not “single out or otherwise treat individuals differently because they are foreign born, ‘foreign-looking,’ have ‘foreign sounding names,’ or have accents. All individuals must be treated in the same way during the part of the hiring process in which work authorization documentation must be provided and inspected.

Related E-Verify & Immigration Law Posts:

Getting the Jump on No-Match Letters and Suspicious Document Notices

Safe-Harbor Rule for No-Match Letters: Part 1

Safe-Harbor Rule for No-Match Letters: Part 2

Safe-Harbor Rule for No-Match Letters: Part 3

Wilmington City Council has passed legislation clarifying and updating Wilmington’s Earned Income Tax code, commonly referred to as the City’s "wage tax." This is the first major amendment to the Earned Income Tax code in almost 40 years.

The new amendments include:

• taxpayer protest procedures;
• jeopardy assessments (the right of the City to demand immediate payment if collection of a tax would be jeopardized by a delay);
• accuracy related penalties (authorizing the City to assess a 25% penalty for substantial underpayment or underreporting of tax); and
• safe harbor provisions for armed forces personnel actively serving in military combat zones.

Wilmington, the cultural and financial hub of Delaware's New Castle County, has made collection of the wage tax a priority in recent years. Since January of 2006, the City has performed over 3,000 wage tax audits and collected more than $5.5 million in unpaid wage tax. According to City Finance Director Ron Morris, Wilmington expects to conduct approximately 12,000 tax audits over the next few years and add $2.1 million in new revenue in Fiscal Year 09 alone.

The wage tax is currently set at 1.25%.

Any person who works in the City of Wilmington or conducts business in the City from which he derives wages or business income, is subject to the City’s Earned Income Tax, regardless of whether he lives inside the City.

In addition, all residents of the City of Wilmington are subject to the wage tax. City residents must pay the tax on all earned income (whether derived from wages or business income) regardless of where residents work.

More information about the wage tax is available online at www.WilmingtonDE.gov. or by calling the City of Wilmington Finance Department, Earned Income Division, (302) 576-2418.

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

"The four-day workweek, with 10-hour workdays for the first four days of the week and a fifth day off, could become a popular option for the cost-conscious commuter."  In my post earlier this week, How the Current Economy Could Affect the Future of Flextime, I considered whether the price of fuel might push employers to be more permissive of alternative and flexible schedules.

Well, I hate to say "I told you so," so I'll say instead that, "Great minds think alike." There has been a flurry of similar speculations in the news all week. 

Ohio's Kent State University has already made the switch, permitting custodial employees to elect to work a four-day week.  And municipal governments across the country, from Hollywood, Florida, to the Webster Parish in Louisiana, to St. Lawrence County in N.Y. are considering making the change. 

The N.Y. Times reports that even school districts are moving to a shortened week to help cut fuel costs.

USA Today has the following to report:

In Alabama, the city of Birmingham decided to adopt a four-day week for employees starting July 1.

"We are doing it in an effort to help employees save some money on gasoline," says Deborah Vance, chief of staff to the mayor. "Offices and departments that deal directly with the public will maintain their five-day schedule."

On June 2, road crews in Walworth County in Wisconsin will start working four-day shifts. Shane Crawford, a deputy administrator, said his county experimented with four-day workweeks last summer. Crews spent less time on the road driving to and from work sites, reducing fuel and overtime costs.

Starting June 1, Avondale, Ariz., will move to a four-day workweek at City Hall. That eliminates one day of commuting for about 150 employees. Claudia Whitehead, the town's economic development director, who says her monthly gas costs were starting to rival her car payments, spends about two hours a day commuting. "It'll have a real positive impact," she says.

Among businesses, 26% are offering a flexible schedule to help employees with high gas prices, a May survey by the Society for Human Resource Management (SHRM) found. And nearly half of professionals say higher gas prices have affected their commutes, according to a recent survey by Robert Half International, up from 34% two years ago in a similar survey.

Some employers that can manage it are moving to shut down for one day. For one day a week, vehicles used for work can sit idle, or air conditioning can be kept off.

Can I read my employees' e-mails? Labor and employment attorneys get this question often. It's not as common, though, that the possible cyber-sleuth is a co-worker rather than a member of management. Recent drama at the news desk of Philadelphia's CBS 3 fits this unusual profile. 

The First of the Fallen Anchors

Long-time CBS news anchor, Larry Mendte, is under federal investigation.  He is suspected of reading the e-mails of former co-anchor, Alycia Lane.  After Lane was involved in several scandals of her own, her employment contract was terminated after she allegedly assaulted a plain-clothes police officer in New York City, and using a homophobic slur. See my earlier post,