Supervisors and their direct reports are not equals.  If you are a supervisor, I advise that you keep this golden rule in mind.  When you are required to communicate a decision to your subordinate, understand that communicating does not mean “explaining.”  Employees do not want to hear the full story behind the decision. telling secrets_thumb

You are not your employees’ equal.  You are the boss.  And, as the boss, your employees count on you to be the one who holds the ship together.  By over-explaining the reasons for a decision, by seeming too apologetic, you have failed your employees.

This does not mean that you must be aloof and reserved.  But it does mean that you should quit oversharing.  When you try to explain the behind-the-scenes politics, you confuse employees and lead them to believe that there are unanswered questions within the organization.  This can be a costly endeavor.

The wait is over!  Registration is now open for YCST’s Annual Employment Law Seminar.  This year’s seminar will be held on May 8, 2014, at the Chase Center on the Riverfront in Wilmington.   Check out the registration brochure for specific topics, speakers, and schedule.  We hope to see you there!

YCST Emloyment Law Seminar 2014_1

Delaware Chief Medical Examiner Richard T. Callery has made news headlines for his off-duty conduct.  According to The News Journal, Callery is the subject of a criminal investigation relating to his testimony as an expert witness in cases outside of Delaware. 

In short, the claim is that Callery spent a lot of time serving as a paid witness in cases in other States, while neglecting his own duties.  And, to add insult to injury, Callery apparently testified on behalf of the defense in several cases, which, some argue, diminishes his credibility when called to testify in Delaware on behalf of the State.

The lesson to be learned for employers is an important one.  Many employers put limitations on moonlighting by employees.  Such limits may be included in an employment contract or in a personnel handbook. 

When considering whether to settle a lawsuit filed by a current or former employee, many of my employer clients have serious doubts about the usefulness of a confidentiality provision. For good reason, employers don’t want the plaintiff to brag about the settlement, thereby encouraging other potential litigants. But, my clients often ask, will the employee really be silenced? Or will the employee just ignore his confidentiality obligation. comic book spy secret_3

My answer has a few parts. First, having a confidentiality provision is better than not having one. Second, if the employer learns of a breach, it will, at least, have some options for holding the employee accountable. A story from last week’s news headlines confirms the validity of both points.

Teenager Dana Snay’s father settled an age-discrimination case brought against his former employer, Gulliver Preparatory School, for $80,000. When the girl learned about the settlement, she did what most teenagers would do-she posted about it on Facebook, broadcasting the news to her 1,200 Facebook friends:

Rumor has it that today is Valentine’s Day.  Being married to a chef-restaurateur, Valentine’s Day doesn’t mean “romantic holiday” to me as much as “very, very busy workday.”  And, for that reason, I’ll dedicate today’s post to the food-service professionals who have a long weekend of work ahead of them.

There are plenty of employment-law topics with a chef or restaurant connection.  Here are a few stories from recent history that come to mind.love heart tattoo art_thumb

Wage-and-Hour Claims

Employment lawyers know the potential importance of social-media evidence.  I’ve written about numerous cases in which an employee is fired for something he posted on Facebook or other social-media site.  As a general matter, it is not unlawful per se to make an employment decision based on information obtained from a social-networking site.  (Of course, the normal rules apply to social media, too.  Thus, it is unlawful to make an adverse employment decision based on race, religion, gender, etc., regardless of the source of that information.) facebook logo_3

So employers may make decisions with social-media “evidence.”  Whether an employer (or other party) has a right to discovery of such evidence during litigation and, if so, how to go about getting it, are two entirely different questions.  (If you’re interested in the answer, here’s a link to an article I wrote last month for the ABA Business Law Section, Discovery and Preservation of Social-Media Evidence).

Assuming the employer is able to obtain relevant social-media evidence, there is yet another question to be answered-is the evidence admissible in the litigation?  There is a split among courts as to the appropriate standard for admissibility of social-media evidence.  Without oversimplifying it too much, there are two approaches.

Public-sector employees have First Amendment rights.  But those rights are not without limits.  Employers, too, have rights-in particular, the right to operate an effective and efficient workplace.  Law-enforcement agencies get even more protection because the law recognizes the potential for harm to the department’s reputation and the public’s trust.

And how do all of these rights play out in the context of social media?  Usually in the employer’s favor.  As yet another court opinion shows, police officers have very little latitude when it comes to posting controversial views on their personal Facebook pages.

The plaintiff in this case, Deputy Chief Rex Duke, worked for the Clayton State University Police Department for eight years with no performance problems.  Shortly after the presidential election in November 2012, the plaintiff posted a picture of a confederate flag to his Facebook page with the comment, “It’s time for the second revolution.”

Employers continue to struggle with how to deal with the repercussions of employees’ online commentary.  When an employee is critical of his or her employer, supervisor, or coworkers on Facebook or other social-networking site, the employer’s knee-jerk reaction is often to discipline the employee.

Sometimes, that is the appropriate reaction.  And, sometimes, it is not.  How to tell which reaction is appropriate for any given comment (or series of comments) is the hard part.  I encourage employers to handle the situation as if the comments were made at a bar over the weekend or on the sidelines of a softball game-anywhere outside of the workplace-in an effort to put it into context.  I then counsel them that, if they still think a response of some sort is warranted, to proceed just as they would in any other workplace investigation. dislike white on white_3

In other words, it’s best not to get all twisted about the fact that the conduct occurred online or that the comments were made via Facebook.

A recent survey conducted by several of my colleagues demonstrates the speed in which litigants can obtain preliminary relief from the Court of Chancery. The survey included a sampling and analysis of approximately 200 cases between 2009 and 2011, in which the court ruled upon a motion for temporary restraining order or a motion for preliminary injunction. The results reflect the frequency and speed at which the court has granted injunctive relief in recent years:

  • For cases in which the court ruled on a motion for temporary restraining order, the court granted the motion 58 percent of the time. On average, the court granted the motion 7 days after its filing.
  • For cases in which the court ruled on a motion for preliminary injunction, the court granted the motion 30 percent of the time. On average, the court granted the motion 26 days after its filing.

This one is for the litigators in the group.   An article I wrote about the discovery of social-media evidence is now available online at Business Law Today, a publication by the ABA Business Law Section.  My article, Discovery and Preservation of Social Media Evidence, is one of several in a mini-theme issue focusing on Social Media and Business Law. like tweet share follow letterpress_2

Other feature articles include:

The Threat of Social Media Diligence on the Confidentiality of the M&A Process: The Problem and Possible Solutions, by Jonathan D. Gworke

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