Most supervisors have dealt with an employee who believes his work performance is better than what it actually is. It’s a minority of employees who believe they are less than a “four-star” performer. But an employee who is so convinced of his personal value that he sues his employer for $75 million is a rarity, indeed. Yet, rare or not, that is precisely the case in Berry v. Kasowitz, Benson, Torres & Friedman, LLP.

According to Berry, he had a “distinguished” and “remarkable” career in the technology sector. Having “conquer[ed] Silicon Valley,” he decided to turn his talents to the legal profession, abandoning his technology endeavors to attend the prestigous University of Pennsylvania Law School. Upon graduation, he accepted a position with an equally prestigous law firm, Kasowitz, Benson, Torres & Friedman. Ready to conquer the world of private practice, according to Berry, he “immediately began doing superlative work,” and “repeatedly found ways to improve the efficiency of work, or even the outcome of cases.” Unfortunately, though, he feels his genius went unappreciated.

Berry claims that he was terminated after he sent an email to the firm’s partners requesting additional work. In the email, Berry stated that it had “become clear that I have as much experience and ability as an associate many years my senior, as much skill writing, and a superior legal mind to most I have met.” Interestingly, prior to sending the email, Berry had been expressly warned not to “be so arrogant.” Apparently, he did not heed that advice.

Workplace bulletin boards will be a bit more crowded this Fall, thanks to a new rule issued by the National Labor Relations Board (NLRB). The new rule, which becomes effective on November 14, 2011, will require most employers to post a notice detailing employee rights under the National Labor Relations Act.

The required notice will inform employees of their right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It will also provide examples of unlawful employer and union conduct and instruct employees how to contact the NLRB with questions or complaints.

In addition to posting the notice on a bulletin board, employers who customarily post personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites.

Many Delaware residents experienced their first earthquake today. From Virginia to New York, floors were trembling and windows were shaking. The employees in my high-rise office building in Wilmington, Delaware reacted to the experience quite differently: some sat planted in our chairs stunned, later wandering into the hallways to see if anyone else felt the odd sensations, some immediately sought to flee the building, and others were convinced we were in mortal danger and upset the building was not evacuated. How, as an HR professional, do you advise your management to handle these crises-whether fleeting, or one that results in a more drastic impact?

Develop a communication and contingency plan

The key to handling crises, whether natural or man-made, is to have a Crisis Management and Disaster Preparedness Plan in place before the disaster strikes. Disorganization and a lack of well-thought-out emergency procedures pose almost as great a risk to employee safety in a time of crisis as the underlying catastrophic event itself. As a result, you should consider distributing to your employees a clearly articulated and easy-to-understand communication and contingency plan. At a minimum, your policy should explain what your employees should do and where they should go in the event of an emergency. For example, it should provide information about how they’re to exit the facility if there’s a fire or another type of disaster.

LexisNexis has selected Delaware Employment Law Blog as a nominee for its Top 25 Labor and Employment Law Blogs. We’re very honored to have been selected and are in very good company, along with 58 or so other excellent employment law or Human Resources-related blogs that also were nominated. According to LexisNexis, readers are encouraged to leave a comment in support of their favorit blog–each comment is counted as one “vote” and can be submitted through September 12, when the top 25 are announced.

Honestly, the biggest reward that we could hope for is your continued readership. Ok, well, the kind words some of you send to us once in a while don’t hurt, either–I mean, who doesn’t appreciate a compliment now and then? So we won’t ask you to vote for us but certainly wouldn’t object if you were inclined to do so anyway. To vote, you must be registered, so there is a prerequisite. If that doesn’t stop you from wanting to support the Delaware Employment Law Blog, we thank you for your dedication. And, if not, thanks anyway! We’re glad to have you stop by the blog anytime, voting or no voting!

The cat’s-paw theory of liability in the context of an employment-discrimination claim was upheld by the Third Circuit last week in McKenna v. City of Philadelphia last week. The case has far-reaching consequences, though-about $9.1 million farther.

At trial, the jury awarded the three plaintiffs a total of $10 million dollars. The trial-court judge reduced the verdict to $300,000 each, for a total of $900,000, in accordance with the compensatory-damage cap prescribed by Title VII. The plaintiffs argued that the damages should not have been reduced because the applicable state law, the Pennsylvania Human Rights Act, does not provide for caps on damage awards. The judge disagreed and found that the time to amend the complaint was before the jury returned the damages award. The Third Circuit affirmed the decision and the plaintiffs’ significantly reduced damages remain in place.

Many employee-plaintiffs allege a claim under federal law, as well as under the applicable state law, when filing a complaint of discrimination against their current or former employer. But, if they don’t, there can be significant consequences-more than $9 million worth in this case.

In McKenna v. City of Philadelphia, No. 09-3567 (3d Cir. Aug.17, 2011), the Third Circuit affirmed a jury award in favor of a fired Caucasian Philadelphia police officer, who claimed he had been retaliated against for complaining to his supervisor about racially discriminatory treatment of minority officers. The City claimed that even if the supervisor’s conduct was retaliatory, the City was insulated from liability because the termination decision was made by an independent Police Board of Inquiry (“PBI”) after a hearing.

In affirming the verdict, the court cited the recent “cat’s-paw” decision, Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), in which the U.S. Supreme Court held that, if an action by a biased supervisor is the proximate cause of a worker’s termination, an employer can be held liable even if the supervisor did not make the ultimate decision. Since the supervisor in McKenna had testified at the PBI hearing, the Third Circuit concluded that the jury could reasonably have decided that the supervisor’s retaliatory animus bore a direct and substantial relation to the termination, and the PBI’s decision was not independent and was foreseeable.

The case has special significance for Delaware employers. Delaware recognizes the implied covenant of good faith and fair dealing, including a subcategory that is markedly similar to the cat’s paw theory. In Delaware, if an employee’s employment record is falsified or manipulated by a supervisor in order to bring about the employee’s termination, the employer can be held liable even if the employer is unaware of the supervisor’s animus.

Can a prospective employer be held liable under the retaliation provision of the FLSA? Not according to the Fourth Circuit and its decision in Dellinger v. Science Applications International Corp..

The case arose when Ms. Dellinger applied for work with Science Applications. Science Applications made Ms. Dellinger a job offer, contingent upon her providing certain information-including a list of pending civil litigation in which she was a party. Shortly after revealing that she was involved in FLSA litigation against her former employer, Science Applications withdrew the job offer to Ms. Dellinger. Ms. Dellinger then filed suit against Science Applications, alleging that it violated the retaliation provisions of the FLSA. Science Applications moved to dismiss the suit on the grounds that the FLSA protects employees only, not prospective employees. The District Court dismissed the suit, and Ms. Dellinger appealed.

The Fourth Circuit affirmed the District Court decision. In its opinion, the Court emphasized that the FLSA’s anti-retaliation provision relates to circumstances in which an employee alleges a violation by the employer. Given that context, the Court found that the retaliation provision cannot be expanded to cover prospective employees who have made no allegation against the prospective employer.

The legal maxim, “bad cases make bad law” was applied in full in a recent decision by the Ninth Circuit. In Pitts v. Terrible Herbst, Inc., the plaintiff-employee, Gareth Pitts, filed a complaint in Nevada state court, alleging that his employer, Terrible Herbst, Inc., had failed to pay him and other similarly situated employees overtime and minimum wages in violation of the FLSA, state labor laws, and state breach-of-contract laws. The employee alleged a mere $88 in unpaid wages.

Procedural Background

The employer removed the case to federal court and the district court entered a scheduling order. The employee served a discovery request in which he sought a list of the names and addresses of all of Terrible’s employees “who work or have worked in [its] retail locations . . . on an hourly . . . basis.” Terrible refused to produce the information. The case law on this question-whether, in a collective FLSA action, an employer must produce the names and contact information of all employees in the putative class before a class has been certified-differs between jurisdictions. Some courts require that this information be produced, even when no class has been certified and others do not require it until there has been at least a conditionally certified class.

The NLRB’s position on “Facebook Firings” (i.e., when an employee is terminated for comments posted on Facebook), remains a hot-button issue for union and non-union employers alike. The Board’s General Counsel recently issued three opinions in favor of employers who had been charged with violating the National Labor Relations Act (NLRA) when they terminated or disciplined an employee for social-media activity.

But that hasn’t calmed the many employers who worry about the consequences they could face if the NLRB takes a hard stance against a workplace social-media policy. So what is the worst-case scenario in the event the NLRB takes aim at your policy? A decision by Chairman Liebman and Members Becker and Pearce, issued on August 2, gives real insight into the answer.

In Bay Sys Technologies, LLC, Case 5-CA-36314, the employer initially filed an answer to the Charge, which was brought by former employee, Dontray Tull, but later withdrew it. When an employer withdraws its answer to an Unfair Labor Practice Charge, it is deemed to have defaulted and all of the allegations in the Charge are taken as true. According to the Charge (and, because the employer withdrew its answer, the Board’s Decision), the facts are as follows:

Delaware’s Workplace Fraud Act , passed in July 2009, currently prohibits employers in the construction services industry from misclassifying employees as independent contractors. An employer who misclassifies its employees-intentionally or unintentionally-may be subject to civil penalties of up to $5,000 per misclassified employee; restitution obligations; stop-work orders; debarment from public contracts; and civil suit by the aggrieve employee(s).

Two bills currently under consideration by the Delaware General Assembly would amend and expand the Workplace Fraud Act. House Bill 221 would significantly expand the scope of the Act to cover all employers in the State. It would also make individual business owners jointly and severally liable with the business entity for any violation of the Act. House Bill 222 would allow the Department of Labor to publish a list of employers who had been found to have violated the Act.

Both Bills are currently in committee, and have not yet been put to a vote. It is unclear whether the bills have sufficient support to be passed by the General Assembly. But one thing is clear-passage of the bills would greatly impact Delaware employers using independent contractors!

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