Delaware’s Court of Chancery is the court of choice for employers seeking to enforce non-compete agreements. As Delaware practitioners know, the Court has a long-standing practice of ruling from the bench, particularly in cases in which injunctive relief is being sought and where time is of the essence. See this post on the Delaware Corporate and Commercial Litigation Blog (“Regular readers will know that transcript rulings are often cited in this court as valid authority.”) And this practice means that transcripts are an important, if not critical, source of information about how the court is likely to rule.

Vice Chancellor Glasscock served as a Master in the Court of Chancery for 12 years before being appointed to Vice Chancellor in 2011. Having been on the bench as Vice Chancellor for just a year, his non-compete opinions are limited. Which is why the transcript from a recent preliminary-injunction hearing offers Delaware counsel important insight.

Bridgeport Tank Trucks, LLC v. Smith, involved a non-compete agreement that resulted from the buyout of a business. As a result of the sale, the defendant, Mr. Smith, was subject to a restrictive covenant for a five-year period. The agreement did not contain a geographic restriction.

The Family Medical Leave Act (FMLA) celebrated its 20th birthday this week. And boy, oh boy, was the DOL was ready to celebrate!

And what kind of birthday would it be without a party? Acting Secretary of Labor Harris hosted a commemoration program that featured celebrity special guests, including former President Bill Clinton, former Senator Christopher Dodd, and former labor secretary Hilda Solis, among others. The entire program, which lasts about an hour, is viewable on YouTube.

But wait, there’s more!! On February 5, the actual anniversary of the day the FMLA was signed into law, the DOL issued a final rule implementing expansions that cover military families and airline flight crews. Under the rule, military family members can take leave to care for a covered veteran who is seriously ill or injured. They can now take additional time, up to 15 days of leave, to be with a service member who is on leave from active duty. Additionally, the rule expands the FMLA’s protections to airline pilots and flight crews who were frequently ineligible for FMLA due to their unique work schedule.

“Give Me Some Credit!” Maybe that’s how the EEOC feels these days, after its high-profile suit against Kaplan Higher Education Corp. was dismissed on January 28, 2013. As readers may remember, the EEOC sued Kaplan in 2010, alleging that its pre-employment credit check policies had a disparate impact upon Black job applicants.

In a 23-page opinion, the U.S. District Court for the Northern District of Ohio dismissed the suit on Kaplan’s Motion for Summary Judgment. The Court first excluded the expert witness testimony offered by the EEOC, holding that it was scientifically unsound. Expert witness testimony is key in disparate impact cases, because they rise and fall on the percentage of job applicants from a given classification as compared to the percentage of hires in the same classification. Among the key problems for the EEOC was that Kaplan, like many employers, does not collect demographic information on the race of job applicants. As a result, EEOC struggled to identify the races of those applicants that were rejected due to credit problems. In an effort to remedy the problem, the EEOC subpoenaed records from state DMVs, and used a team of “race raters” to review the DMV photos and assign races to the job applicants. The Court, not surprisingly, rejected this approach and the resulting expert witness analysis.

Next the Court addressed Kaplan’s Motion for Summary Judgment. In the absence of any statistical evidence demonstrating an adverse impact caused by the use of credit checks, the Court held that the EEOC’s case had to be dismissed.

Can an employee be required to get a flu shot? Employers want a healthy workforce and, presumably, employees do not want to be sick. So a flu shot seems like a good idea. And an offer of a free flu shot for employees seems like a great perk.

But the goodwill-nature of a suggestion always seems to change when a suggestion turns into a requirement. Maybe it’s just the rebellious teenager in all of us that reacts negatively to being told that we must do something. Maybe we all have authority issues. I don’t know what it is about being ordered to do something that seems to set off an automatic negative response.

The real trick, though, is how to respond to that negative response. Push back? Stand your ground and insist? Or give in and abandon your request? This is the question that one employer had to deal with when its employee refused to get a flu shot.

Ok, dear readers. No doubt that, by now, you think I’ve abandoned my post. Fear not, loyal readers, fear not. I am entirely certain that I am now, once and for all, through with the bit of illness that managed to slow me down for the first three weeks of the new year. Now that February is here, though, I am absolutely determined to get back to it.

The story featured in today’s post highlights a similar sense of bullish determination of a different sort. The story, which came to my attention courtesy of Evan Brown at Internet Cases, involves a 911 supervisor in New York. The supervisor-petitioner photographed a computer screen containing confidential and privileged information concerning a 911 caller’s complaint of a gynecological emergency.

He also photographed the caller’s name, address and telephone number, all of which he uploaded the image to his Facebook account, along with the caption “[c]an’t make this up.” Actually, what you can’t make up is that the petitioner had the nerve to appeal his termination. Bullish determination, indeed.

Sexual harassment, retaliation, and constructive discharge. The trifecta of employment-discrimination claims. And all three were the subject of a recent decision from the 3d Circuit. The decision contains lots of interesting discussion points but I’ll limit myself to just one for the purposes of this post.

The plaintiff-employee contended that she resigned because her boss called her a “bitch” during a meeting. The court explained that, to establish a constructive discharge, the employee must show that “the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” In determining whether the employee was forced to resign, the court looks to several factors, including whether she was threatened with discharge, encouraged to resign, demoted, subject to reduced pay, involuntarily transferred to a less desirable position, subject to a change in job responsibilities, or given poor performance evaluations.

So is being called a “bitch” at a meeting so bad that it could force an employee to quit?

An employee who is unlawfully terminated may be entitled to recover damages in a variety of forms, including front pay. Front pay can be a frightening prospect for the employer-defendant–just imagine having to pay a former employee for time he doesn’t work for you. Not pleasant.

But, as is the case in most employment laws, the rules tend to balance out in a fair way. An employee who claims she was unlawfully terminated because of her gender cannot merely sit at home indefinitely and wait to collect a big jury award. The law imposes what is called a “duty to mitigate,” which means that the employee has the duty to mitigate her losses.

duty to mitigate damages.jpgIf an employee fails to look for work at all and, instead, elects early retirement, her damages are tolled. In other words, she will not be eligible for an award of front pay during any period in which she is not actively seeking work. The phrase used by the courts is that the employee must be “ready, willing, and able” to obtain employment. If, instead, she elects to stay home and watch soaps all day, she is considered to have withdrawn from the job market and, as a result, is ineligible to receive an award of front pay.

Employees getting terminated for negative comments posted on Facebook about their supervisors. This, I predict, will be the #1 issue facing employers in 2013. But here’s an unusal twist on that story. What about the manager who rants about employees on Facebook? And not a petty rant or a profanity-laden post, either. Just a post that says something to the effect of, “Why’d you call in sick today if you’re at a picnic?” A district court in Texas didn’t have a problem with it.

facebook logo.jpgPlaintiff Virginia Rodriquez was a manager at a Sam’s Club store in Texas when she was put on a performance-improvement plan so that any subsequent violation would result in her termination. Approximately 9 months after being placed on disciplinary status, Plaintiff viewed pictures of co-workers at a July 4th holiday party. Those same co-workers had called in sick to work that day. Apparently, Plaintiff was less than thrilled when she learned that her coworkers were out having fun while she was stuck at work or, perhaps, she was the only one not invited to the party. Either way, she wasn’t happy about her discovery.

To express her displeasure, she posted on one of the employee’s Facebook page, chastising the group for calling out. (The Court describes the comments as “public” but it is not clear whether they were actually public for all the world to see or only viewable by the user’s Facebook friends.) The employee reported the incident to HR. Following an investigation, HR determined that Rodriquez had violated the company’s Social-Media policy by “publicly chastising employees under her supervision, rather than waiting for the associates to return to work to discuss her attendance concerns.” Because she was on probationary status, Rodriquez was terminated.

What does the NLRB have against handbooks? Doesn’t the Board have policies and procedures for its employees? I imagine it does, don’t you? So why does the Board continue to find fault with employers’ workplace policies?

The Board’s recent Order has my head spinning like I spent the afternoon on a roller coaster. In GCA Services Group, Inc.,, the United Food and Commercial Workers Union Local 99, AFL-CIO, filed a UPL, contesting the legality of various provisions in the employer’s handbook. The employer and the Union resolved the dispute by a Formal Settlement Stipulation, which was approved by the Board on January 16, 2013.

As a result of the Stipulation, the employer must remove the disputed provisions from the hourly-employee handbook, which, according to the Board’s Order, are “overly broad and discriminatory.”

Schools have been dealing with the social-media blues, basically, since Facebook was merely a glimmer in Mark Zuckerberg’s eye. See Social-Media Woes for School Districts and More Social-Media Woes for School Districts. The balancing act is a tricky one. On one hand, you have the First Amendment rights of teachers to live a life outside of the classroom and to post about it on their blogs and social-networking site. On the other hand are the school’s rights as an employer to accomplish its primary mission–to educate students–and to manage its operations effectively.

chalkboard desk green.jpgThere are plenty of news stories about teachers who are disciplined or terminated due to information posted online. And, unlike most areas of the law involving social-media issues, there are several reported opinions on this question. More often than note, the termination decision is upheld, based on the court’s finding that the teacher’s First Amendment rights were outweighed by the school’s interest in maintaining peace and order.

Occasionally, though, a decision comes down the other way, finding that the teacher was unlawfully terminated. One such case involved a first-grade teacher from Paterson, New Jersey. We first reported on this story in November 2011, when parents complained that Jennifer O’Brien had referred to her students as “future criminals” and analogized her job to being a “warden” in posts on her Facebook page.

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