Well, it’s happened again.  The Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country for the fifth consecutive year.  In my world, this is the most prestigious award a legal blogger can receive and it is such an honor to have been selected again.  It is, as the saying goes, truly an embarrassment of riches.

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To those who nominated us for the award, thank you. To all of our readers, thank you.  And to all of the many, many, many employment law bloggers whose posts continue to set an incredibly high standard for the rest of us, thank you.

I share the honor this year with six other employment-law bloggers, each of which does a tremendous job reporting on the various aspects our shared practice area.  Most of you likely already read the blogs of my co-winners but, if you don’t, you should.

Whether a former employee breaches her non-compete and/or non-solicit agreement by publishing her new job with a competitor to her LinkedIn contacts, many of which include “prohibited customers” is an unsettled question.  As you may imagine, the cases that address this question are few.  A recent opinion issued by a Massachusetts Superior Court may have addressed it more than it realized, though.

In KNF&T Staffing, Inc. v. Muller, the defendant-employee was employed by the plaintiff staffing firm for several years.  When she resigned, she was subject to a non-solicitation agreement, which prohibited her from recruiting or referring potential employees for placement in certain fields and industries.  The prohibition was in place for 1 year and applied only to placement with clients within a 50-mile radius of the plaintiff’s offices.  And, as I mentioned, it prohibited only her recruitment efforts for certain fields that she’d been responsible for at her former employer. 

At the time she resigned, she initially took a position in HR, in which she apparently was not charged with recruiting and referral duties, and, therefore, was not in violation of her agreement.  But, about five months after resigning, she went back to the recruiting industry, this time working for a competitor of her former employer.  The former employer sued, seeking to have her enjoined from what the employer asserted was activity in breach of the agreement.

Do employers search social-media sites, like Facebook and Twitter, before hiring a potential employee?  Yes.  Like it or not, they do.  Sometimes as part of an official screening process but, more often than not, the act of Googling is simply second nature and is done without any advance planning or thought.3d man with thermometer in cold weather_thumb

And, as a result of these online searches, do employers screen out candidates for unlawful reasons, such as race, religion, or pregnancy?  Yes, says the results of a recent survey reported by the Wall Street Journal.

According to the study, as many of one-third of employers search for a job applicant’s online activity early in the hiring process.  The survey also claims that candidates whose public Facebook profiles indicated that they were Muslim were less likely to be called for interviews than Christian applicants.

Employees in the private sector do not have free-speech rights in their employment, contrary to popular belief.  Employees in the public sector, on the other hand, do have such rights, although they are not limitless. When it comes to First Amendment challenges to Facebook firings, employers continue to prevail in nearly every case.  Here is another such victory.

The plaintiff worked as a case worker for child-protective services investigating reports of child abuse and neglect.  In that role, she was charged with determining whether a child was safe in his or home.  If she determined that the home was unsafe, she worked with the District Attorney’s Office to petition the court for protective custody.  She testified in court about eight times a month.

In making these determinations, she was not supposed to consider the employment status, religious beliefs, or political beliefs of the adults in the home and was not to concern herself with how they chose to spend their money or furnish their home.

Back by popular demand!  Our FMLA Master Class, presented in conjunction with BLR and HR Hero, is always the most requested seminar from clients and seminar participants.  So, at your request, we’ve brought it back. 

If your organization is subject to the Family Medical Leave Act or if you are nearing 50 employees, you should consider joining us on February 12, 2014, for this in-depth, full-day program. 

You can learn more about the program and register online.  We’ll look forward to seeing you then!

Contrary to popular belief, employees may be lawfully terminated for comments or pictures that they post on social-networking sites. The law also permits employers to make honest mistakes. An employer who makes the decision to terminate an employee based on an honest, but mistaken belief that the employee violated the employer’s policy, is not a basis for liability.comic book oops_3

The same rule applies in the context of social media. Thus, there will be no liability for an employer who lawfully terminates an employee based on online conduct even if it turns out that the conduct did not occur.

Take a recent decision from the Seventh Circuit as an example. In Smizer v. Community Mennonite Early Learning Center, the plaintiff was a teacher’s aide at a church-affiliated daycare center run by his mother. His mother informed the Center’s Board of Directors that the plaintiff had posted “horrible stuff” on his Facebook page and that she no longer felt safe in his presence.

Employee posts “unpleasant” comment on Facebook.  The subject of that comment complains to employee’s employer.  Employer terminates employee.  Employee sues the complaining party-not the employer.  Interesting, right?  Here’s the case.

The plaintiff alleged that she worked as a case manager in San Antonio public schools.  She claimed that she alerted the San Antonio Police Department (SAPD), when she learned that an individual subject to a restraining order had contacted a student in violation of that order.  Officers were dispatched to the student’s home but no action was taken because the officers did not believe there to be a valid protective order in place.  

The plaintiff, believing that an order did exist, was frustrated by her feeling that the officers “did not want to do their job to protect her student.”  From her home later that day, the plaintiff posted to her Facebook account a profanity-laden comment about the “lazy ass, mother-effers on B-shift who don’t care to do their jobs the way they’re supposed to.”

The Wall Street Journal recently reported some eye-opening results of a survey regarding information theft by employees.  Here are some of the most disturbing (though not surprising) findings from the survey:

  • 50 percent of employees kept confidential information post-separation;
  • 40 percent plan to use confidential information in their future employment; and

Technology effects every workplace.  Readers of this blog know this well enough, as many of my posts address the wide variety of problems faced by employers that arise from employee use of technology, particularly social media.  Lawyers, too, face these problems.  The legal profession is, by no means, immune from the woes of social-media or the difficulties of trying to keep up with changing technology.  Technology’s impact on the legal profession is a topic near and dear to my heart.law technology gavel on keyboard_3

Which is why I am so honored to have been appointed to Delaware’s newly formed Commission on Law and Technology.  The Commission was created by the Supreme Court of Delaware in response to a recent amendment to the State’s rules of professional responsibility requiring lawyers to maintain competence in technology.  Supreme Court Justice Henry duPont Ridgely, who will serve as the judicial liaison to the Commission, has explained that the Commission will be charged with creating a set of best practices in a variety of areas, including cloud computing, e-discovery, and, of course, social media.

The purpose of the Commission is to provide Delaware lawyers with sufficient guidance and education in the aspects of technology and the practice of law so as to facilitate compliance with our rules of professional conduct.  Although several states’ bar associations have issued advisory opinions on certain aspects of technology and its use, the opinions can be limited in scope, as they apply only to the specific set of facts posed by the inquiring attorney.  Thus, it is very exciting to be part of an official effort to broaden the information available to Delaware lawyers.

Here’s another Facebook-firing case to add to the “win” column for public-sector employers. [FN1] The plaintiff-police officer, Maria Gresham, posted comments on her Facebook page critical of another officer’s involvement in an arrest Gresham had made. Her Facebook page was “set to private” but, of course, the Department got wind of the comments and an investigation was initiated. bullhorn blue background_3

The plaintiff was alleged to have violated the Department’s work rule requiring that any criticism of a fellow officer “be directed only through official Department channels . . . and not be used to the disadvantage of the reputation or operation of the Department or any employees.” [FN2]

While the investigation was pending, Plaintiff was not able to post for the several promotions that came open. Thus, she sued, alleging that she was not promoted in retaliation for her First Amendment speech on Facebook.

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