“Twibel” is the sporty little name someone clever has come up with as a way to say “libel via Twitter.”  In other words, if it would be defamation if it is published in a newspaper, it will be defamation if tweeted on Twitter.  And now we have a case that has gone all the way to jury verdict on just this subject.signing twitter bird with bow_thumb

Courtney Love was sued by her former lawyer, Rhonda Holmes, for defamation via Twitter (Twibel is not yet an official cause of action).  Holmes claimed that she had been defamed by the famous singer when Love tweeted that Holmes had been “bought off.”

Love didn’t settle the case, instead choosing to take her defense to a jury.  According to the Hollywood Reporter, Love testified that she believed that her comment was true at the time she posted it.  She also testified that she meant the message to be a private “direct message” to two friends and when she learned that it had been sent to the public, she quickly deleted it.

The jury was asked to decide whether Holmes proved by clear and convincing evidence that Love knew her tweet was false or doubted the truth of it.  The jury returned an answer of “no” and Love prevailed.

So what’s the lesson to be learned?  Well, for one, defamation cases are hard to win, regardless of the medium of the message.  It often comes down to credibility of the witnesses.  And, apparently, the jury believed Love when she said that she didn’t mean to make false statements about her former attorney.   If nothing else, this verdict won’t prompt a wave of Twibel claims to be filed.

The Family and Medical Leave Act has been a part of the workplace for more than a decade, so it’s gotten easier for HR to administer, right?  Not so.  Confusing regulations, coupled with numerous recent changes at both the legislative and regulatory levels and conflicting court decisions, ensure that FMLA continues to be one of the biggest compliance headaches for employers.

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So-called “ban-the-box” initiatives, which limit employers’ inquiries into an applicant’s criminal history, have been adopted by several cities and municipalities.  Philadelphia adopted such a law in the Spring of 2011.  The City of Wilmington joined the ban-the-box bandwagon in Fall 2012, when then-Mayor Baker signed an executive order that removed a question about criminal convictions from job applications.  But that executive order applied only to applicants seeking work with the City of Wilmington.  Other Delaware employers have not been subject to these restrictions.

A bill is pending in the Delaware legislature, though, would change that and more if passed.

H.B. 167 proposes to limit when public employers and government contractors may inquire about or consider the criminal background or credit history.   The employer would not be permitted to ask about this information until “after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.”  Thus, a covered employer would be prohibited from asking about criminal or credit history until at least the first interview-no more checkboxes on job application.

The bill also proposes to limit the specific types of information that can be requested. Covered employers would be permitted to ask only about: (a) felony convictions in the past 10 years; and (b) misdemeanor convictions in the past 5 years.

This means that questions about arrests would be totally off limits-both on applications and in in-person interviews.

Finally, the bill proposes to limit how the information that the employer obtains will impact the hiring decision.  The bill basically adopts a scaled-down version of the EEOC’s multi-factor analysis whereby employers would be required to consider the nature of the crime and its relationship to the position sought, how much time has passed, etc. 

Oddly, the bill offers no specific limits on the use of credit history information other than timing.  In other words, the bill prohibits covered employers from obtaining a credit report for the candidate until a conditional offer has been made.

Even for private-sector employers who do no business with the State or any State agency, the use of background checks as part of the screening process continues to warrant consideration.  Particularly since the laws around the country are still developing, employers should weigh the benefits of this checks against the risks.  (See 5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit).  And, if nothing else, employers should evaluate the process and policies in place for conducting such checks.

Editor’s Note:  This post was written by Timothy J. Snyder, Esq.  Tim is the Chair of Young Conaway’s Tax, Trusts and Estates, and Employee Benefits Sections. 

Delaware’s Mini-COBRA law, enacted in May 2012, allows qualified individuals who work for employers with fewer than 20 employees to continue their coverage at their own cost, for up to 9 months after termination of coverage.  When it was passed, the legislature provided that the provisions of the Mini-COBRA statute:

shall have no force or effect if the Health Care bill passed by Congress and signed by the President of the United States of America in 2010 is declared unconstitutional by the Supreme Court of the United States of America or the provisions addressed by this Act are preempted by federal law on January 1, 2014, whichever first occurs.health carerationale for doing so as follows:

The Mini-COBRA Bill was originally passed as a short-term bill that was needed until the provisions of the Patient Protection and Affordable Care Act (“PPACA”) became applicable to states, which was to occur on January 1, 2014. However, because PPACA’s legislation relating to small employer group health policies now permits insurance companies to impose a ninety (90) day waiting period prior to the effective date of coverage, which was not anticipated when the Mini-COBRA Bill was passed, it is desirable to remove the sunset provision of the Mini-COBRA Bill so that the Mini-COBRA Bill remains in the Delaware Code, at least until a point in time when PPACA or other law may no longer permit an insurance company to impose waiting periods.

I initially thought that the Legislature provided for a January 1, 2014 sunset date because that is the date that coverage begins under the healthcare exchanges, which do not impose waiting periods in the typical COBRA scenario.  Thus, an individual terminated from a small employer could purchase his or her coverage for at least the 90-day waiting period from the exchange rather than requiring the former employer’s insurer to provide the mini-COBRA benefit.  In fact, the U.S. Department of Labor, which oversees regular COBRA benefit administration, has issued revised model COBRA Notices that inform the qualified beneficiaries that they can acquire COBRA coverage through their former employer or they can obtain new coverage from the healthcare exchange.

I spent the first half of my recent vacation in Vienna, Austria.  It was my first visit to to Vienna and I found the city to be absolutely enchanting with it deep roots in the arts, jaw-dropping architecture, and irresistible sweets.  Being the employment lawyer that I am, though, I can’t resist writing a post about some of the HR lessons one could learn from Vienna.

Vienna State Opera House

1.  Get out and walk around

I spent hours each day walking around the city.  Although I had a list of sites I wanted to visit and things I wanted to do, I found that some of my best experiences occurred more or less by accident.  For example, some of the best pictures I took on this trip were taken during unplanned walks.

The concept of “management by walking around” applies in the same way.  You can’t know what your employees are doing or what the general feeling is unless you get out of your office and see it for yourself.

2.  Don’t forget the date

In Vienna, the year of construction is displayed clearly on most buildings.  When I arrived, my driver pointed out the differences between pre- and post-war construction.  This was made significantly easier to do by virtue of the fact that the year can be seen clearly from the street.

Employers are well advised to follow a similar pattern.  Although employment lawyers love documentation, we really love documentation that includes a date.  Although we’ll make do with an undated witness statement, a statement that includes a date and signature is far, far more useful.

3.  Try a new angle

We all get stuck in our ways.  One of the hardest things to do is to look at a situation in a truly objective way without any predetermined opinions and without jumping too quickly to conclusions.  Although this is a very, very difficult thing to do, it is an incredibly valuable skill to have.

Vienna’s historic buildings are awe-inspiring.  They are also everywhere.  To really get a sense of any one building, I had to look at it from as many angles as possible.  The legendary Opera House looks completely different when seen from the ground as it does from the balcony of the Albertina Museum, which is just across the street.  Every view was gorgeous.  But I found that some of best images I captured were taken at angles other than straight on.

When dealing with a problem, take a step back from it.  Look at it from the left, the right, and then look at it up and down before you decide how to proceed.  Sometimes, the best approach may not be the one you’re used to taking.

Every year, I go away for a few days on January 1st in an effort to refresh following the hectic holiday season. Having had enough of winter by January, I usually head south and spend three or four days with friends and family in Florida. But this year, I took a very different approach. Instead of four days in the Sunshine state, I headed overseas for 8 days. I spent the first four in Vienna, Austria, and the second four in Budapest, Hungary. It was a fantastic trip and I returned refreshed in a different way.Molly DiBianca

Here are three of the lessons I learned during my great escape.

1. Make the Time

I’m sorry to say, this is not a skill I’ve developed very well. The last true vacation I took (meaning more than a long weekend without answering emails and doing legal work) was more than 9 years ago. I cringe at the thought but it’s true. It always seems so hard to get away-there is always so much to do and never enough time. But the idea of work-life balance is that you are supposed to have a life. Vacation (i.e., a time free of work), is part of that balance.

2. Step Out of Your Comfort Zone

Instead of my standard trip south, I chose, instead, to go somewhere entirely different. To two cities I’ve never seen in two countries I’ve never visited. The perspective gained from stepping out of your comfort zone is well worth the initial anxiety about not speaking the language or knowing your way around. Plus, as the saying goes, “nothing risked, nothing gained.”

Challenge yourself and your employees to try new things if you want to promote growth and development.

3. Embrace Independence

My traveling companion had to back out of the trip at the last minute, letting me know about six days before our scheduled departure. As you may expect, I was not exactly thrilled about the change. It’s easier to travel with a companion and I worried that I wouldn’t be up to the challenge of traveling abroad by myself.

I mentioned the change to a friend, who responded, “So go by yourself-you’re sociable!” And right he is! So I took his advice and went by myself.

And I am so glad that I did. It was great to choose my agenda each day based only on what I wanted to do and to see. Would it have been fun with someone to share the adventure? Definitely. But sometimes it’s important to accomplish something on our own.

Teamwork is important but don’t underestimate the value of the solo experience. Being a “party of one” has its benefits.

Ah, Facebook. I wonder, sometimes, what I’d write about it Facebook hadn’t made its way into the workplace. There’s another recent decision involving an employee’s misuse of Facebook and the consequences of his decision.

The facts of the case-as opposed to the legal analysis-are what captivated me.  They offer an excellent example of the problems that arise when employees vent their frustrations on social-media sites, such as Facebook.

The plaintiff was employed as an Assistant Professor at the University of Southern Mississippi.  His employment was at-will and his contract was subject to non-renewal “for any reason.”

In 2010, the plaintiff was teaching an online course that included a “chat component.”  This enabled students to type comments and questions in a dialogue format.  During one of these chats, the plaintiff was logged out, so, to those students who were still logged in, it appeared that he was not viewing the the discussion.  But, alas, he was.

During one of these chats, a student made disparaging comments about the plaintiff, apparently not realizing that he was still online and could view the comments.  After the chat ended, the same student sent an email to an administrator, complaining about the quality of the plaintiff’s instruction. 

The next day, the plaintiff told a graduate assistant about the student’s comments made during the chat.  The assistant, apparently concerned with the way the plaintiff responded to the comments, reported the matter to the plaintiff’s direct supervisor, who, in turn, reported it to her supervisor.  The decision was made to remove the plaintiff from campus until the matter could be further investigated.  As a result, the plaintiff was placed on paid administrative leave.

While on leave, the plaintiff sent messages to students and others via email and Facebook requesting that they provide support for him in his dispute with administration.  The plaintiff also posted on Facebook the letter placing him on administrative leave, as well as the written statement of the graduate assistant, which had been obtained during the course of the investigation.

At the conclusion of the investigation, the plaintiff’s contract was not renewed.  In part, the decision was based on the plaintiff’s Facebook campaign initiative to get students’ support.  The plaintiff brought a variety of constitutional claims contesting the non-renewal decision. 

The court dismissed the claims but made specific note of the Facebook posts.  The court noted the disruptive nature of the posts.  The court also pointed out that the plaintiff “understood that a Facebook friend could forward his posts to anyone.”  If I were to summarize the lesson to be learned, as indicated by the court, they’d be as follows:

If you take your case to the streets and try to rally support, understand that you may lose  and be prepared to accept the loss.

To the victor goes the spoils.

Klinger v. Univ. of S. Miss., No. 12-150-KS-MTP, 2013 U.S. Dis. LEXIS 171515 (S.D. Miss. Dec. 5, 2013).

Public-sector employers can add yet another “W” in the “Win” column on the Facebook-firing scorecard.  The victory comes by way of a federal court in Mississippi where, earlier today, a judge granted summary judgment to the City of Greenville in a First Amendment claim brought by a former police officer, Susan Graziosi.

Graziosi was employed by the Greenville Police Department for 26 years at the time she posted a series of comments on her Facebook page and the Facebook page of the then-mayor, complaining that the Chief of Police had not sent police-officer representatives to the funeral of an officer killed in the line of duty. 3d police officer

The comments weren’t outrageous, frankly.  No profanity, for example.  They were, however, decisively negative about the Chief’s leadership of the Department. 

Upon learning of the comments, the Chief spoke to the City Attorney and expressed concern about his ability to lead the Department in light of Graziosi’s posts.  Her employment was subsequently terminated for her violation of several Department policies, including Supporting Fellow Employees, Insubordination, and Discipline & Accountability. 

Graziosi appealed to the City Council but the termination decision was upheld and she filed a First Amendment retaliation claim in federal court.  Regular readers of this blog are likely more familiar than they’d like to be with the applicable test for a First-Amendment claim.  But, hey, it’s a classic, so bear with me while I go through it again.

In order for a public-sector employee to state a claim under the First Amendment in a “Facebook-firing” case, the court must determine that the speech at issue is entitled to constitutional protection and that the employee’s free-speech interests outweigh the employer’s interest in maintaining an efficient and effective workplace.  A review of any of the cases discussed in my previous posts (see the links, below), shows that the analysis usually comes out in the employer’s favor.  This is especially so in police and other paramilitary institutions because the law recognizes the need to maintain discipline and good working relationships amongst employees. 

And that is precisely what the court determined in this case, too. The court held that Graziosi’s venting on Facebook did not enjoy First Amendment protection.  Moreover, the Chief’s interest in maintaining his authority and preserving close working relationships outweighed any constitutional protection Graziosi’s speech may have had.  Thus, the court concluded, Graziosi’s termination was entirely lawful. 

Another win for employers in the workplace battle involving social media.

Graziosi v. City of Greenville, No. 4:12-cv-68-MPM-DAS, 2013 U.S. Dist. LEXIS 172581 (N.D. Miss. Dec. 3, 2013).

See also

Fed. Ct. in Oregon Upholds Facebook Firing of DHS Employee

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees’ speech, including speech made via Facebook).


And, if you haven’t yet cast your vote for the Delaware Employment Law Blog in the Labor & Employment category in this year’s ABA Journal Top 100 Blawgs, there’s still time!  Voting closes next Friday, December 20, though, so don’t delay.  And thank you!

Many employment agreements contain forum-selection clauses naming the state or the court in which any disputes must be litigated, and what state’s law will govern. Employers often name Delaware state courts as the exclusive forum, due to the high quality of Delaware courts and large number of corporations and other entities created in Delaware, and name Delaware law as the governing law.

Some courts have refused to enforce forum-selection clauses on the ground that another state would be more convenient than the named forum, based on the location of witnesses or documents. In a unanimous decision, the U.S. Supreme Court has strongly endorsed enforcement of these clauses. While the facts did not involve an employment dispute, the Court’s reasoning will apply with equal force to such disputes.

The facts involved a construction contract between a firm in Texas and one in Virginia, for work to be performed in Texas. The contract contained a clause naming Virginia as the appropriate forum. When the Texas firm filed a lawsuit in Texas, the Fifth Circuit refused to enforce the forum-selection clause, explaining that the convenience of the parties justified keeping the case in Texas notwithstanding the clause. The Supreme Court reversed. The Court observed that a forum-selection clause must be

given controlling weight in all but the most exceptional cases. . . . When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a [motion to transfer] be denied.

Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct., No. 12-929 (U.S. Dec. 3, 2013).

Significantly, the Court pointed out that whether the forum-selection clause names another federal court or a state court, the same standard applies, that is, the existence of the clause is to be given great weight. Delaware has a specific statute on choice of law that should be invoked in any forum-selection clause. That statute, 6 Del. C. § 2709, applies to contracts involving $100,000 or more and sets out the language to be used in a forum-selection clause in order to establish the requisite relationship with Delaware. Especially in agreements with senior-level employees, employers would be well advised to consider the use of forum-selection clauses.

Can employee theft be a protected activity? Unfortunately, yes.  As I’ve written previously, employee theft of data and documents is so common it’s frightening-or should be-to any employer.  See Your Employees Are Stealing Your Data; Your Employees Are (Still) Stealing Your Data.

When an employer discovers that a recently separated employee has taken with him or her the employer’s data in electronic and/or paper format, there are a few possible outcomes.  Frequently, legal counsel is able to get the documents returned and an affidavit signed by the employee certifying that he no longer has any of the employer’s property in his possession, custody, or control, and that, should he later discover that he does still have such property, that he will contact the employer immediately and cooperate fully in returning it.  In these cases, it is up to the employer whether or not to “go after” the documents (and/or the employee who stole them).  data thief robber_3

But this is not always the case.  Employees have stolen the employer’s documents only to then attempt to use those documents in litigation against the employer.  Yes, this is as horrible as it sounds.

Here’s the nightmarish scenario.  Employee sues employer, alleging that employee was subject to unlawful discrimination based on age.  While still employed, employee steals a copy of her personnel file and the personnel file of the younger co-worker who employee claims was promoted instead of employee.   During discovery in the litigation, employee produces copies of these stolen documents and claims that they support her age-discrimination claim.

You now know that the employee wrongfully accessed the co-worker’s (confidential) personnel file, made a copy of it, and retained that copy (presumably giving a copy to her lawyer, who then produced it to you during discovery).  The rational employer would likely respond to this information by terminating (or at least wanting to terminate) the employee for breaching all sorts of policies.  And, if the file contained certain personal data, the employer would likely have a legal duty to notify the affected co-worker, as well.

But, alas, the law is never as obvious as one may hope.  There is a small body of cases that held that problems can arise if the employer does what most rational employers would want to do-i.e., fire the thief-employee.  For example, in a 2010 decision, the New Jersey Supreme Court held that it was, in fact, unlawful to terminate the employee for precisely the conduct described above.  The court found that the employee gave the documents only to her lawyers, that the documents were directly relevant to the employee’s claim of discrimination, that the disclosure of the documents did not threaten the company’s operations, and the employee had a reasonable basis to believe that the documents would not have been produced during discovery.   Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010).

Ugh.  I should hope that it goes without saying but, wow, that is disturbing.

Thankfully, there are cases and courts that disagree with that approach.  For example, in an opinion from the normally employee-friendly Ninth Circuit, the court held that the plaintiff-employee could not support his age-discrimination claim with documents taken from his supervisor’s office.  Instead, the court explained,

[W]e are loathe to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation. The opposition clause protects reasonable attempts to contest an employer’s discriminatory practices; it is not an insurance policy, a license to flaunt company rules or an invitation to dishonest behavior.

O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756 (9th Cir. 1996).   The Ninth Circuit is not alone in rejecting the idea that an employee’s theft should be endorsed by the courts.   The Sixth Circuit reached a similar result in Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 718 (6th Cir. 2008).

Nevertheless, if you thought that your employees could not use stolen information against you, you may want to think again.  And then think about whether you have solid confidentiality and privacy policies in place.  More and more employers require employees to sign a confidentiality agreement every year.  And, with cases like Quinlan, this idea seems to be a prudent one.

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