Delaware Employment Law Blog

Join Molly DiBianca and Delaware SHRM at 7:30 am on June 8th for an interactive discussion of social media for hiring.  We'll discuss:

• the impact of social media sites on recruiters and hiring managers;
• how social media is changing the nature of recruiting; and
• legal liability and exposure of using social media.

The impact of social media sites like Twitter, Facebook and LinkedIn is undeniable but, also, undefined. Hundreds of millions of Americans now use these sites and others like them for an expanding number of reasons. And it's not just the country's youth online, either. Twitter users are more likely to be Baby Boomers than they are to be youngsters in the 12-to-24 crowd.

So it's no surprise that social media is causing tremendous changes in the way employers recruit and hire new employees. Employers have to look beyond standard recruiting tactics if they hope to secure the most sought-after candidates. But the adventure into the social-media sphere is not without risks. Before you send a friend request to that job applicant, be sure you know how it could expose your organization to legal liability.

Whether you're a master of your Facebook page, or you're still wondering what a "tweet" really is, Molly DiBianca will guide you in the right direction when it comes to social media.

The session will be held at the Christiana Hilton in Newark, Delaware.  Registration is $40 for members and $45 for non-members.

The Employment Law Alliance is holding a webinar that will address the use of noncompete agreements in various jurisdictions, including Delaware. The panel of speakers includes attorneys from the U.S. and Canada, including our own Barry M. Willoughby.  The webinar will be held on June 9, 2010, 3-4:30 p.m. EDT.

In addition addressing the treatment of noncompete agreements, panelists will offer practical and concrete strategies on:

• Drafting and enforcing restrictions on employee competition when doing business in multiple jurisdictions at one time
• How the "duty of loyalty" can be used to stop employees from setting up competing businesses while still employed by you.
• What employers can do to minimize the risk that your employees will walk out the door with your trade secrets
• How to stop competitors from engaging in unfair competition.

Registration is free:  Your Top Talent Walks Out the Door: Now What? How to Stop Your Competitors from Raiding Your Workforce and Engaging in Unfair Competition in the U.S. and Canada

Same-sex harassment is on the rise. Labor and Employment law attorney Teresa A. Cheek will be speaking about same-sex harassment, and about discrimination and harassment based on sexual orientation and gender identity on May 21, 2010, on  The Proactive Employer Podcast.

Listeners can hear the show live via internet streaming on Blog Talk Radio on Friday, May 21, 2010, beginning at 8:30 a.m., or listen to a recorded copy of the podcast later, either at The Proactive Employer website or podcast site, or via iTunes.

Well, it's almost time for our annual employment-law seminar! We had a fantastic turnout last year with great speakers and topics and this year's schedule is certain to be just as exciting.  The registration brochure is posted below with all of the details--just be sure to sign up soon, as seats are limited.

We hope to see you then!

Registration is also available at the (new!) Young Conway website.

Who:  Adria B. Martinelli

What:  Employee Genetic Discrimination: New Legal Pitfalls from GINA

Where:  Your office via audio conference

When:  Tuesday, May 4, 2010  11 a.m. - 12:30 p.m. Eastern

Cost: $247

Registration:  HR Hero website

Learning Objectives:

• What constitutes "genetic information" and the specific rules regarding confidentiality
• How GINA impacts hiring, promotion, and termination practices
• The types of claims employers can expect from this new legislation
• How GINA comes into play with the ADA, HIPAA, and COBRA
• How you should handle information self-disclosed by employees, and how to prevent obtaining too much information
• When GINA and social media collide: How information posted on an employee’s or applicant’s Facebook page could put your organization at risk
• How the legislation's broad language extends to an employee’s "family members" and could add teeth to a caregiver responsibility claim
• How to avoid GINA-based caregiver claims and how to accommodate the needs of the caregiver workforce while minimizing legal risks

Who:  Molly DiBianca

What:   Speaking on social media at Ragan Communication, Inc.'s Corporate Communications Conference

Where:  Hosted by General Motors at Marriott Detroit Renaissance Center

When:  May 5-7, 2010.  Molly will be presenting on May 6

Cost:  Members $945  Non-members $1195

Registration:  Ragan.com

Overview:  The Legal Limits of Monitoring Employees' Tweets, Posts, and Other Social Media Activities

As social media become the communication tools of choice, employees' online activities become an increasing source of potential liability for employers. The need to minimize legal risk has led many employers to monitor the Internet for dangerous, defamatory or downright rude postings by their employees. The law recognizes that the Internet is a public forum, but this freedom to browse is not without limits.

• Use the best monitoring techniques from the successes (and blunders) of employers who have required employees to disclose social media habits
• Avoid monitoring techniques that will most likely land you in court
• Watch for red flags when monitoring employee Twitter, blogging and Facebook activities
• Communicate your monitoring policy to employees to generate the least amount of backlash

Who:  Molly DiBianca as a panelist.

What:  CLE session presented by the E-Discovery & Technology Law Section of the Delaware State Bar Association on the ethical issues that arise in the context of social media.  Approved for 3.0 hours CLE credit in Enhanced Ethics.

Where:

Live in New Castle County at Delaware State Bar Association
301 N. Market St., Wilmington, DE

Live in Kent County via Simultaneous Broadcast at 
Community Legal Aid Society, Inc., 840 Walker Road, Dover, DE

Live in Sussex County via streaming video at Tunnell & Raysor
30 E. Pine St., Georgetown, DE (Parking lot in back, use back entrance)

Program Description:

This workshop will focus on new technology issues affecting the Courts and the Bar: social media and email. From Chambers to law offices to deliberation rooms, we are all affected. The Rules of Engagement are changing daily. What do the Judges need to know to instruct jurors regarding use of social media during deliberations? Are model jury instructions needed? What are the ethical lines for judges and lawyers regarding their own use of social media? What are the ethical and liability issues regarding the use of email. Is there a need for guidelines?

Registration:  (PDF)

Who:  Adria B. Martinelli and other members of the Labor and Employment Section of the Delaware State Bar Association

What:  Labor and Employment Update 2010 Seminar

When:  May 11  9 a.m. - 4 p.m.

Social Media Plus will be the Mid-Atlantic's largest business summit for professionals interested in learning about the latest in Social Media and web 2.0 technology, and I'm excited to be taking part in it. It's going to be a huge event--they're anticipating 1000 attendees, 50 exhibitors and 28 sessions led by local and national professionals in the fields of technology, marketing, sales and, of course, Social Media.

This one-day business summit is aimed at helping businesses learn how to start incorporating Social Media into their overall business strategy.

Attendees can participate in one of four distinct tracks to ensure they get topics most relevant to their organization.  The tracks include: Executives: HR; IT; and Sales and Marketing.

Registration is open with early-registration savings available until March 31.

CUPA-HR Eastern Pennsylvania and Delaware Spring Chapter Meeting

March 2, 2010 | 9:00 a.m.-3:00 p.m.
Registration Opens at 8 a.m.
Wilmington University
Doberstein Academic Center
320 N. DuPont Highway, New Castle, Delaware 19720

The Eastern Pennsylvania CUPA-HR chapter invites you to join us for our annual Spring Meeting on March 2, 2010. For the first time, the Eastern Pennsylvania CUPA-HR chapter is partnering with the Delaware Chapter of the Society of Human Resource Management(SHRM).

Our topics will be related to Employment Law updates as well as other legal issues. Topics will include: Social Networking and the Workplace, Retaliation & Whistleblower Claims, FMLA/ADA Update, Avoiding Wage and Hour Claims, Getting to Know GINA. The discussions will be led by employment-law attorneys from Young, Conaway, Stargatt & Taylor.

Cost:
CUPA-HR Eastern Pennsylvania Members: Free
CUPA-HR National Members: $15. Non-CUPA-HR Members: $30.
Cost includes continental breakfast, lunch and handouts.

Please RSVP to Vicki Stewart at vstewart [at] ycp.edu by February 20, 2010.

Retaliation claims brought by employees who have complained about discrimination or harassment in the workplace have increased dramatically over the past several years.  They now account for more than one-third of all claims filed with the EEOC.  At the same time, the Supreme Court has issued a series of rulings that have expanded the types of retaliation claims an employee may bring.  This presentation will inform you about retaliation claims and give you strategies to avoid liability.  When it comes to dealing with employees, revenge is a dish best not served at all.

Attorney Michael P. Stafford will present this 90-minute seminar in our Wilmington office. The cost? Free. First come, first serve, though, so don’t delay.  E-mail Felicia G. (be sure to include “Breakfast Seminar” in the subject line) or call 302.571.5718 to sign up today.

I'll be presenting a new HR Hero audio conference, HR's Response to Social Media: Policies for Twitter, Facebook, and Other Popular Sites, on December 10, 2009. 

I'll discuss how to create a policy that will help you legally monitor employee online activity and protect your organization from legal risks associated with Web 2.0 in the workplace.

Specifically, we'll talk about:

• When social media can go terribly wrong -- and why a social medial policy is needed for every workplace

• The specific legal risks of having Facebook, Twitter, and other online tools available at work

• Seven issues that your Web 2.0 policy should address, including how to safeguard your organization's intellectual property and other sensitive company data

• The 24/7 world: Why you may want to govern employee use of social media during working and non-working time.

• How to craft a policy that treats employees like adults and conveys your organization's trust in its workforce

• Policy tips on providing employee guidance for using social media to communicate with those outside your organization

• How to communicate and educate your workforce on your new social media policy

You can register on the HR Hero website.

And, for more about social media in the workplace, see the following posts:

Social-Media Policy Ideas

Sample Social-Media Guidelines

Social Media Is Here to Stay: Time to Start that Workplace Policy

3 Reasons Why Employers Don't Have a Social-Networking Policy

Follow me on Twitter @@MollyDiBi 

[Don't know what a "tweet" is or how (or why) to use Twitter?  Register for my webinar next week on What HR Needs to Know About Twitter]

Adria B.  Martinelli will be speaking about how to accommodate workers who are caregivers and the workplace issues that commonly arise with dementia.  The audio conference is 90 minutes and will cover:

• Helpful ideas for accommodating an affected employee, including EEOC recommendations: reducing hours and responsibilities, having co-workers act as support, and more
• Laws that come into play, and how to meet your obligations under ADA and FMLA
• Sample HR policies that can reduce the burden for your caregiver employees
• What savvy employers are doing to minimize the problem of distracted and absent employees with caregiving responsibilities
• Signs or behavior that could indicate your employee has Alzheimer's or other dementia
• Options for work duties you can legally provide employees with dementia
• And more...

HR Hero is hosting the event and you can learn more or register at the HR Hero website.

If you're using Twitter to search for talented job candidates, you're not alone. The popular microblog received more than 23 million unique visitors just this September and more and more employers are utilizing it in their talent-acquisition efforts.

I'll be teaching a webinar on December 16 for HR Hero, where I'll focus on how Twitter can improve your organization's recruiting, branding, and engagement strategies, and how to avoid the legal issues associated with using microblogs in the workplace.

The seminar, called Recruiting in 140 Characters: Everything HR Needs to Know About Twitter, is 90 minutes and will be conducted via live webinar.  I'll show participants step-by-step instructions for setting up a Twitter account, so you can begin "tweeting" during this live event! You'll get live interactive guidance, so you can learn:

• How to make a tweet compelling enough to attract the most desirable candidates
• Techniques to get followers who will help spread your message and brand
• How you can stay on the cutting edge in your industry by following the right people
• How to find relevant content using hash tags and search functions
• Twitter manners: the dos and don’ts of tweeting
• How to locate passive job candidates online
• Blogging techniques to build brand recognition the RIGHT way and how to make your organization the employer of choice
• How to use Twitter to keep your all-star employees passionate and enthusiastic about their work
• The legal mistakes often made when using Twitter at work, and how you can avoid them
• Special tips and tricks to make sure your blog postings are relevant and how to make tweeting a breeze

Registration is available at the HR Hero website.  Hope to "see" you on December 16!

And, if you're in the Chicago area and want to learn more about social media for employers, check out the upcoming HR Social Media Summit, on December 2-4.  Dec. 2-4: Social Media & HR Summit (Chicago, IL)

Until then, you can follow me on Twitter at @MollyDiBi . . . .

I had the privilege of speaking on recent ADA and FMLA developments at breakfast seminar this morning. The event was presented by the Delaware Employer Council and held at Delaware Park’s beautiful facilities. Over 50 HR professionals attended.

This morning's topic included the regulations proposed last month by the EEOC as a result of the Americans with Disabilities Amendment Act of 2008 (“ADAA”). I also talked about last weeks’ expansion of FMLA military leave by the National Defense Authorization Act of 2010 (“NDAA”).

Highlights of the presentation included:

· The vast expansion of the scope the ADA by lowering the standard for establishing whether an individual has a disability.

· The prohibition against considering the effect of medication or other mitigating measures in determining whether a person is disabled.

· The six rules of construction in determining whether a person is disabled under the ADA

· The ability of families of injured veterans to take FMLA “military caregiver” leave under the NDAA.

· The ability of families of active members of the Armed Forces to take “qualifying exigency” leave under the NDAA.

As promised, my materials are linked below.  ADA FMLA Update

Maribeth L. Minella and Molly DiBianca will present an audio conference on non-compete agreements for Human Resource professionals on Tuesday, Nov. 17. The conference begins at 11 a.m. Eastern and will last for 90 minutes.  HR Hero is hosting the event and registration can be found on the HR Hero website.  Here's the agenda:

• How to draft and implement legally solid noncompete, nonsolicitation, nondisclosure, and confidentiality agreements
• The the typical restrictions built in noncompete agreements
• How widely-varied state laws complicate the issue
• When and how to use nondisclosure and confidentiality agreements and policy statements
• Tactics you can implement NOW to prevent corporate raiding by former employees
• How to handle applicants and new hires with pre-existing noncompete agreements. Are such employees off limits? How do employers know if an applicant or new hire comes with restrictions?
• The latest court precedents relating to enforcement of noncompete agreements. How has the climate changed in light of the economic downturn?
• The dangers awaiting unwary employers talking to potential employees who are under noncompete agreements
• The employer’s options if an employee is under restrictions placed by a former employer

Non-compete agreements have become increasingly popular. If your organization is using them or is considering using them, this is an excellent way to ensure that you've got the key points covered for maximum enforceability.  We hope you can join us!

If you're using Twitter, Facebook, or LinkedIn® to search for talented job candidates, you're not alone. According to Workforce Management, companies like digital advertising agency Organic are incorporating social media as part of their recruiting strategies. And with nearly 7.1 million people now using Twitter (Nielsen NetView), smart employers are utilizing blogs in their talent acquisition efforts. 

But feeding the talent pipeline online can result in costly litigation if a job applicant claims you've invaded her privacy.

Learn how to reap the benefits of online recruiting while minimizing legal risks by participating in the interactive audio conference, 2009 Recruiting: Feed Your Talent Pipeline Using Twitter, Facebook, and Other Social Media. In just 90 minutes, you'll get straight answers to such questions as:

• Is Twitter the best place to find job applicants who "live" online? What's the best way to use Twitter for effective recruiting?
• How can I use corporate branding on the Internet to attract potential job candidates?
• How can I use Twitter, Facebook, or LinkedIn® to get our branding messages out more quickly?
• What's the best way to use Twitter to build a "following" among active and passive job candidates?
• What are the potential legal issues that could arise when using Twitter? How can I avoid posting "tweets" that could be construed as harassing or discriminatory?
• What type of information should I avoid on social networking sites when searching for talent?
• How do I handle information found online that I would NEVER ask about in an interview?
• How can I use a wiki without incurring legal trouble, such as releasing sensitive company and/or employee information?
• What are the legal risks if one of my employees posts content on a company-run blog or social networking site?
• What action should I take if employees post our company logo on their private social networking sites for blogs?
• How can my organization protect itself from potential litigation surrounding employee usage of social media tools?
• How far can I go when keeping tabs on an employee's blogs, instant messages, and social networking sites?

I'll be presenting this audio conference on January 12, 2009. To register, visit the H.R. Hero website.

No matter how you say it, terminations–whether they involve a single employee or a large-scale layoff – are probably one of the least favorite parts of your job. Along with the emotional stress they cause, terminations can also pose enormous legal risks. Make one mistake in the firing process, even an innocent one, and your company may quickly embroil itself in a costly lawsuit.

There are so many different ways to get it wrong:

• You say something to a departing employee in the heat of the moment that is prime lawsuit fodder later on.
• You discover after the firing that the ex-employee’s supervisor has always written glowing performance appraisals for that worker–and the documentation now suggests retaliation.
• You go the extra mile by offering severance payments with waivers to employees being laid off–but a common wording error later renders those waivers unenforceable.
• You make an error calculating a terminated employee’s final paycheck, or you withhold funds from departing workers that you’re not lawfully allowed to deduct.

Join Maribeth L. Minella on October 29 for this 90-minute webinar presented by Business & Legal Resources to learn:

• The most common termination-related mistakes employers make–and how to avoid repeating them
• Why you must prepare for the possibility of termination even before you hire an employee
• The specific policies and practices you need in place to lawsuit-proof your company before you terminate another employee
• What you should always say–and what you must never say–when letting an employee go
• How to review your severance agreements to make sure they’re binding, and what risky language to avoid
• The crucial post-termination steps you should take to stay out of legal trouble
• What to do when an employee fired for cause later asks you for a job reference
• The unique risks involved in group layoffs, as well as terminations involving older workers
• What you can – and cannot – deduct from a terminated worker’s last paycheck

To learn more or register for this webinar, please visit the event’s webpage at BLR’s website.

I give a lot of presentations. And I take them seriously. Which may explain why my slides often get noticed as being “different” than many of the other presentations my clients see. I subscribe to the style of presenting advocated by Cliff Atkinson, known as Beyond Bullet Points.  Nancy Duarte and Garr Reynolds are two other visionaries in the field of visual communication who lead by example. In short, the principle theory behind my slide design is to present only one idea per slide and to present it with images instead of words.

And, while I could go on for many posts about the topic of effective presenting skills but I’ll save that for another day.  Instead, I’ll refrain from the evangelical sermon and, instead, offer a tiny bit of practical help.

One of the bigger stumbling blocks involved in this type of presenting is where to get the graphics you’ll use instead of words on your slides.  There really are an unlimited number of ways to create images for this purpose. 

Of course, you can simply purchase them from stock photo sites.  I use Shutterstock to buy images and buy a one-month subscription to save on the cost. 

You also can surf the web to find images.  Google Images works great for this and so does Bing’s image search. But beware of “borrowing” images—just because they’re available online does not mean that they’re publicly available.  You must determine if you're lawfully able to use the pictures that you find. Dave Paradi recently listed 10 excellent government sites that offer bunches of beautiful photographs for free!

One seriously underestimated tool is PowerPoint.  I use it constantly to create my own images—everything from simple stick-figure drawings to more substantial 3d graphics.  If you don’t believe that this is possible for mere mortals (i.e., non-designers), just have a look at the wonderfully instructive blog, Slides that Stick for some excellent tutorials.  You may be amazed!

One of the greatest resources, though, is right at your fingertips—or, even better, they are your fingertips!  Pick up a pen and start drawing. Don’t be “fancy”—really, it’s best if you just avoid even attempting anything that will look even close to “artistic.”  Just stick with the basics.  You’d be surprised at how well you can communicate using those same skills that you picked up as a toddler.  Need inspiration? Check out Dan Roam, who just won the World’s Best Presentation Contest at Slideshare.net—using, you guessed it, simple marker drawings! 

EEOC’s “Best Practices” on Caregiver-Responsibilities, issued in April 2009, presents an excellent opportunity to discuss the topic of family-responsibilities discrimination (FRD).  Adria B. Martinelli will discuss the impact of the new guidance at our next Breakfast Briefing, on September 18.  Adria will discuss the subtleties of this evolving area of the law. 

Attendees will learn:

• Why the EEOC issued the Caregiver Discrimination Guidance
• When or how unlawful disparate treatment of caregivers can occur
• How you can recognize bias in your own workplace
• How you can structure policies and train managers to avoid claims and protect your company

Registration

As always, there is no cost to attend our Breakfast Seminar.  However, conference space is limited and therefore, we suggest that you register as soon as possible.

Two Ways to Register:

1.  You may click here to register by email.  Be sure to include "Breakfast Seminar" in the subject line and your name and contact information in the email text, OR

2.  You may telephone Felicia at 302.571.5718. 

 

An email containing driving directions and parking options will be sent to all registrants closer to the event.

Please mark your calendars and join us for our last Breakfast Seminar of 2009 on Friday, November 13, 2009.

As always, information regarding employment law issues is available on the Delaware Employment Law Blog.  Moreover, two of our employment attorneys, Molly DiBianca and William Bowser, are Tweeting about current employment topics. They can be followed: @MollyDiBi  and  @WBowser.