At our Annual Employment Law Seminar, we discussed the NLRB’s adoption of its so-called “quickie-election” rules, which were adopted in December 2011, following the Obama Administration’s failure to obtain passage of the “Employee Free Choice Act,” a statute designed to promote union organizing by providing for fast elections when a union files a petition for certification.

The new administrative rules are designed to speed the election process. While they are not as draconian as the proposed Employee Free Choice Act, they were intended to, and would have, cut the time from the filing of a petition to an election in half. So-called “quickie elections” favor unions because they limit the time an employer has to respond to union propaganda about the alleged benefit to employees from joining a union.

On Monday, May 14, 2012, a federal judge ruled in favor of the U.S. Chamber of Commerce’s request that the quickie elections rules be invalidated. Although a number of issues were raised in the case concerning the NLRB’s rule making power, the court ruled only on the question of whether a quorum was present when the Board adopted the rules.

The quorum issue is more complex that would appear on its face. The Board sometimes acts through “electronic” proceedings. One Board member, Brian Hayes, the Board’s sole Republican, did not take part in the December 16, 2011 NLRB electronic vote to adopt the final rule. Hayes only had a matter of hours to vote on the rule since it was posted for final action on the day it was adopted. The court ruled that since Hayes did not affirmatively take a position on the proposed rules, nor indicate that he was abstaining, there was no indication that he participated in the decision. Without his participation, the Board lacked the required quorum.

In response to the decision issued, the NLRB has suspended the implementation of the rule changes. NLRB chairman, Mark Gaston Pearce, said the Board is reviewing the Court decision but is “determined” to move forward with the rule changes adopting the “quickie election” process. In a related development, acting General Counsel, Lafe Solomon, withdrew the guidance to regional offices he issued concerning the new election procedures. As a result, the Regional offices will follow the election process and practices prior to the revised rules until further notice. Up to 150 election petitions are affected by the suspension of the quickie election rules.

Surely, this is not the end of the story. We’ll keep you posted as the law continues to evolve.

Our Annual Employment Seminar has the topic of presentations on my mind this week. Like many of my employment-law colleagues, I do a lot of public speaking. I recently looked back at my speaking schedule for 2011 and was surprised to see that I averaged almost 1 speaking engagement per week. If it was up to me, I’d likely speak even more often but, again, my day job makes that difficult.

Being a good speaker is not easy–even for those of us who love it. It’s a craft and, like any craft, requires lots of practice and continued improvement. One guaranteed way to improve is to watch yourself–nothing shows flaws like a live video recording. A less traumatic way to improve is to watch other speakers. By paying attention to what they do well and what irks you can be a very effective training tool.

Here are two videos to get you started in your studies. The first is an updated version of Don McMillan’s Life After Death by PowerPoint:

And the second is Every Presentation Ever by Habitudes for Communicators:

Here’s hoping your Friday is as enjoyable as these presentations!

Delaware is one step closer to legislating employers’ ability to manage their workforces. I testified yesterday about the significant flaws in H.B. 308, called the “Workplace Privacy Act.” The members of the Telecommunications, Internet, and Technology Committee nodded along, thanked me for my testimony, and then promptly voted to release the bill as is to the House of Representatives. This, my friends, is why I chose the legal profession over a career in politics.

As a result of the Committee’s decision, the bill will proceed to the House in its very defective state. I’ve posted at length about some of the many, many concerns I have about the unintended consequences this bill would have on employers and employees. But, after my experience at Legislative Hall, I have just one additional thought to share.

It seems increasingly clear that the intention of the bill’s sponsors is far more expansive than simply preventing employers from trying to get employees’ and applicants’ passwords. The intent, it seems to me, is to undo the entire body of case law that has been developed regarding privacy rights. In short, the sponsors are attempting to create a reasonable expectation of privacy in online activities and comments. This is directly opposite of what the law provides and would have tremendous implications on employers in every industry and of every size.

One good thing to come out of today’s hearing, though, the increased awareness of the problems with this bill by the State Chamber of Commerce and its members. I’ll be sure to keep you up to date with any developments over the next two weeks as we get closer to the next step in the legislative process. Until then, though, Delaware residents should consider contacting their state representative and expressing their concerns with the proposed law. Don’t hesitate to direct them to the summary I wrote in my prior posts and the Comment Outline, which is linked in the second of the two posts. See Delaware Proposes Facebook-Privacy Law; and Why Delaware’s Proposed Workplace Privacy Act Is All Wrong.

The NLRB, in response to a federal court decision issued on Monday, May 15, has suspended the implementation of the changes to its union-representation-election process.  The NLRB adopted the changes administratively in December of 2011. They took effect on April 30, 2012.  A federal court found the process used to adopt the rules to be invalid because the Board did not have a quorum when it voted on the rules.NLRB white_thumb

NLRB chairman, Mark Gaston Pearce, suspended implementation of the rules in response to the ruling. He said the NLRB is reviewing the Court decision but is “determined” to move forward with the rule changes.  In a related development, Acting General Counsel, Lafe Solomon, withdrew the guidance to regional offices that he had issued before the effective date of the new election procedures.  As a result, the Regional offices will follow the election process and practices prior to the revised rules until further notice.  Up to 150 election petitions are affected by this decision.

It’s only Wednesday but this has been a busy week already. If time allowed, I could write posts on several important employment-law-related topics. But, alas, my day job is keeping me busy, so this short-form recap of some of the more notable items will have to suffice.

Delaware’s Pending Password-Privacy Legislation

As I’ve written recently, there is a bill pending in Delaware’s House of Representatives that is intended to prohibit employers from requesting or requiring that an employee or applicant turn over his or her password. If you’ve read my posts on this topic, you know that I have significant concerns about the scope of the bill and its potential consequences for both employers and employees. This afternoon, the bill will be presented for vote to the Telecommunications, Internet, and Technology Committee.  I will keep you posted about the results of that hearing as soon as possible. Until then, you should consider reaching out to your State Representative and voice any concern you may have with the bill.

Pretexting Via Social Media

I wrote earlier this week about a high-school principal in Missouri, who is alleged to have created a fake Facebook account for the purpose of spying on students in her school. As I stated in that post, using deceit about your identity for the purpose of obtaining information about someone, known as pretexting, is a wholly unacceptable practice.

On her Ride the Lightning blog, Sharon Nelson writes of a story with similarly disturbing facts.  In the case that she discusses, an insurer in a dog-bite case permitted its private investigator to lie about his identity on Facebook so he could spy on the plaintiff-a 12-year-old girl.  Folks, if it’s not obvious already, this type of dishonesty is despicable and those who engage in it should not be surprised at the negative repercussions that result. 

Show Me the Numbers

The EEOC has released a new set of statistics relating to Charges of Discrimination filed in FY 2011.  What is notable about this data is that it marks the first time the EEOC has published private-sector statistics for each of the states and territories.  The statistics provide the total number of charges filed in each state and a breakdown of charge by type of discrimination.  This is the first time that state-specific information has been released and it offers helpful insight on a more granular level.

Lots of blawgers have reviewed this data as it relates to their particular states. For example, Dan Schwartz wrote about the Connecticut numbers and McAfee & Taft’s EmployerLINC blog posted about the Oklahoma stats.  And Chris DeGroff and Matthew Gagnon, of Seyfarth Shaw’s Workplace Class Action blog wrote about the significance of this data.

Another One Bites the Dust

Because I just never seem to grow weary of stories involving smart people who fail to exercise good judgment when using social media, I’ll toss this one to my loyal readers for good measure.  In this social-media saga, it’s a CFO who was terminated for improperly communicating company information through his Twitter feed and public Facebook profile. Jon Hyman and Phil Miles recap the story in more detail.

Reporter Sarah Tressler covered high society and fashion for the Houston Chronicle. She also worked as an exotic dancer on a part-time basis. According to Tressler, she worked as a stripper only “rarely” and did it for the “exercise” since she “didn’t have a gym membership.” So she must have been surprised when her “workouts” got her fired from her day job.

The Chronicle told her that she was being terminated for failing to disclose her side job on her employment application, according to MSNBC.

But Tressler ain’t buying it. She hired celebrity lawyer Gloria Allred, who has filed a charge of discrimination on Tressler’s behalf with the EEOC. The charge alleges that the termination constitutes gender discrimination.

stripper boots.jpg

“Most exotic dancers are female, and therefore to terminate an employee because they had previously been an exotic dancer would have an adverse impact on women, since it is a female-dominated occupation,” Allred said.

And she may just have a point. If Tressler was fired because she worked part-time as an exotic dancer and she can show that male reporters who failed to disclose their part-time employment on their job applications, it may be a viable claim. On the other hand, journalists usually are subject to strict workplace policies. Newspapers and other traditional media outlets impose high standards on their reporters and, if the paper enforced those rules consistently, it may have a solid defense. Either way, it makes for a good story.

For more employment-law stories involving this profession, check out my prior post, Strip Clubs: One Social Event Not to Include In a Summer-Intern Program. If that doesn’t satiate the interest, Dan Schwartz at the Connecticut Employment Law Blog has you covered.

Delaware’s version of a Facebook-privacy law, called the “Workplace Privacy Act” (H.B. 308), will go to hearing on Wednesday before the Telecommunications, Internet, and Technology Committee in Delaware’s House of Representatives. The bill, as amended, purports to prohibit employers from requesting or requiring an employee’s or applicant’s password to his or her social-networking site.

In actuality, the bill would fail to accomplish that single objective but would, at the same time, have implications far beyond the stated objective. I wrote in a more demure tone about some of my concerns regarding this bill. But, after seeing a video update (below) in which Rich Heffron of the Delaware State Chamber of Commerce reports that the bill is likely to pass before the close of the session on June 30, it seems that a more direct approach may be in order.

I’ve outlined my many, many objections to the bill and have attached that document for those readers who may be interested in the more specifics. (HB 308, Full Text, Amendment, and Comments, PDF). For those of you more interested in the short-and-sweet edition, here’s the Executive Summary of what I consider are the most dangerous provisions:

No Friending, Even for Family

The bill would prohibit a supervisor from sending a Facebook-friend request to any other employee in the organization–even if the supervisor worked in one division in Delaware and the friend-to-be worked in a different division in Hong Kong.

A supervisor whose teenaged son works for the same employer would be prohibited from “requiring or requesting” her son’s Facebook password or “other related account information.”

Employers May Not Investigate and Employees May Not Defend Accusations Made Against Them

The bill would prohibit an employer from investigating a report that an employee posted something to his Facebook page, such as: (a) a threat to commit workplace violence; (b) release of information protected by HIPPA and/or the state data-breach laws; (c) communication of trade-secret information; or (d) any number of other wrongdoings.

Not only would the employer be prohibited from asking the alleged wrongdoer about the allegations but the employer would also be prohibited from asking the accuser to support the allegations with proof of what she saw on Facebook that prompted her to make the report. In short, the employer would have no choice but to fie the accused–regardless of whether the individual wanted to clear his name.

The Rule, Though Too Broad, Is Swallowed By Its Exemptions–for Some Sectors

Yet, despite the incredibly overreaching effects of the bill, it is, at the same time, simply insufficient in its narrowness. the bill falls far short of satisfying its supposed purpose–i.e., to prevent employers from requiring employees and applicants to relinquish access to their social-media accounts in the name of a job. The two most glaring failures in this regard include the stated exemptions for:

  • Law Enforcement, who are altogether exempt from the provisions of the bill; and
  • The Department of Corrections, . . . maybe.

The exemption for the Department of Corrections is trickier. Although the bill seems to to exempt the DOC from the prohibitions in the bill, it is not entirely clear because the bill also states that the DOC shall not be prohibited “from accessing an employee’s social networking site for purposes of employee supervision and retention.”

Pardon me? If you think you know what such purposes may include, I’d love to hear about it.

Don’t Say I Haven’t Tried

Lest you think that I am the type who rushes to judgement and who condemns that which I did not create, let me take a preemptive strike against such conclusions. I forwarded my prior post and my comments to the sponsor for the Committee’s consideration and review.

My question is this: Can we see eye to eye on an overly broad, unworkable law that has far-reaching implications for employees and employers? Despite what my business card may say, anyone who knows me knows that I come down squarely in the middle between “employer and employee,” which is the only place I believe anything productive can be accomplished.

One of my biggest concerns about the bill is the scenario discussed above, in which the employee who is wrongly accused but who is unable to defend himself and who loses his employment as a result. Nor can I imagine any legitimate basis for there to be exemptions for law enforcement or the Department of Corrections as they are drafted in the proposed legislation. Thus, the concerns raised on behalf of employees are as strong as the problems raised by the bill for employers.

Call to Action, Delaware Employers and Employees

If you are a Delaware employer, a Delaware employee who uses social media and/or social-networking sites like Facebook, business proponent, or defender of civil liberties, I humbly suggest that you call your state representative between now and Wednesday at 3 p.m. to express the concerns you may have. And feel free to forward along my Comment Outline.

Does Facebook cause smart people to act dumb? Stories of poor judgment via Facebook continue to make the news and continue to amaze me. But there seems to be no end in sight to the incidents of social-media stupidity. A recent story from Missouri may qualify for this category.

A high-school principal in Clayton, Missouri, is alleged to have created a fake Facebook account under the name “Suzy Harriston,” reports the NY Daily News. Before you know it, she had more than 300 friends–many of whom were students at the high-school. A former quarterback outed her, posting her real identity on his Facebook page. The Suzy Harriston account disappeared and, the next day, the school announced that the principal was taking a leave of absence.

The principal resigned following a closed-session meeting of the school board. The school board stated that the district and the principal had “a fundamental dispute concerning the appropriate use of social media.”

So, friends, what is the lesson to be learned here? Dishonesty is unacceptable. And dishonesty by a person in a position of trust and leadership is deeply troubling. It is, despite this principal’s apparent belief, dishonest to pretend you are someone you are not for the purposes of obtaining information about another. It’s called pretexting.

Don’t engage in pretexting. Don’t be dishonest. And don’t endorse dishonest conduct by your employees or by your leaders. The rules are the same, even if the medium has changed.

I had the pleasure of attending an event last week at which humorist Dave Barry was the keynote speaker. As you may be able to deduce from my lunatic-like grin, I am a big fan of Mr. Barry’s. I was very excited about hearing him speak and had been looking forward to the event for several months. I wasn’t disappointed. Dave Barry was hilarious. The audience was doubled over in their chairs with laughter for most of his talk.


After the event was over, I reflected on the lessons that could be excavated from his talk. What words of wisdom could be parsed from the humor and held like fragile gems of truth to be used later? If you’ve read Dave Barry’s work, either as a columnist for the Miami Herald or as the author of a few dozen books, you likely know the answer already. None.

That’s right. Dave Barry didn’t impart any words of wisdom or gems of truth. He didn’t lecture about the ways in which we could all work to improve the world. And he didn’t prosthelytize any political position. He just made us laugh. He told funny stories that were funny because they were true. And the stories made us laugh.

So, what does this have to do with employment law, or human resources, or the modern workplace? In some ways, a lot. I don’t know about you, but there are days at work that I wish would be over sooner rather than later. Work can be stressful. And so can life. But the things that raise our blood pressure, usually, are trivial when viewed from the right perspective. The key is in getting the right perspective.

The next time you find yourself grinding your teeth over the day-to-day aggravations of life, try to take a deep breath and relax. Maybe tell yourself (or someone else) a lousy joke that makes you laugh. Or pick up a Dave Barry book and laugh out loud as you read. And remember, things are almost certainly not so bad.

Legislation, both state and federal, prohibiting employers from requesting an employee’s or applicant’s password continues to make progress. In Particular, the pending bills in California and New Jersey passed to the next level of their respective legislatures yesterday. The first two federal bills of this type of failed but, fear not, a new version has been introduced. Gone is SNOPA; the Password Protection Act of 2012 was introduced earlier this week. In an effort to keep up, I’ve put together the list below, which includes a reference to each of the states with pending legislation of which I’m aware:

Bill: Social Media Privacy Act Date: May 10 Status: Unanimiously passed the State Assembly Applies to: Employers; Post-secondar educational institutions Other: Prohibition against “otherwise asking for access” to an account

Bill: HB 308 Date: Apr. 26 Status: Referred to Committee Applies to: Employers Other: Multiple other provisions

Bill: Password Protection Act of 2012 Date: May 9 Status: Introduced Applies to: Employers Other: Prohibits requests for “access”

Bill: HB 3782 Date: Mar. 29 Status: Passed House; pending in Senate Applies to: Employers Other: “or other account information for the purpose of gaining access”

Bill: SB 433 Date: Apr. 9 Status: Approved by Gov.; Enacted Applies to: Employers Other: Prohibits: (a) any request for access to an account; (b) request for user name.

Bill: HD 4323 Date: Mar. 23 Status: Filed Applies to: Employers Other: Prohibits any request for access to an account

Bill: HB 5523 Date: Mar. 29 Status: Introduced; referred to Committee Applies to: Employers; Educational Institutions Other: Prohibition against requesting user to “disclose access information

Bill: HF 2963; HF 2982; SF 2565
Date: Mar. 26; Mar. 29; Mar. 27 Status: Referred to Committee Applies to: Employers Other: None

New Jersey
Bill: Bill A-2878 Date: May 10 Status: Approved by Committee Applies to: Employers and Educational Institutions Other: Prohibits asking if user has an account; law-enforcement exemption

New York
Bill: Sen. 6983 Date: Apr. 13 Status: Referred to Committee
Applies to: Employers Other: (a) Prohibits asking for (i) log-in name, or (ii) “other means for accessing; (b) Exempts accounts owned by employer

South Carolina
Bill: HB 5105 Date: Mar. 29 Status: Referred to Committee Applies to: Employers Other: Prohibition against asking for “other related information” to access an account

Bill: SB 6637 Date: Apr. 11 Status: Reintroduced Applies to: Employers Other: Prohibition against asking for “other related information” to access an account

Delaware employers should be most interested (and concerned) with the legislation introduced by Rep. Darryl Scott (Dover). As I’ve written previously, I believe the proposed law goes far beyond what is necessary and would have significant negative implications for Delaware employers.

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