Delaware Employment Law Blog

Social-media issues faced by employers continue to change and develop. Your social-media policy (or guidelines, if you prefer), should do the same.  An updated social-media policy is provided via the link below for your reference as a starting point for drafting your own workplace policy addressing employees' social-media use.  There are, of course, any number of variations that may be appropriate for your specific workplace.  The sample is intended to be just that--a sample, to give you a running start when you've got your key stakeholders seated at the table ready to discuss the approach that is appropriate for your particular workforce.  You should consult with qualified employment-law counsel before implementing any new policy to ensure legal compliance.
Sample Social Media Policy YCST.pdf

The four-day workweek is no more. Well, at least in Utah, reports NPR. Next week, Utah State employees will return to a traditional five-day workweek. The four-day workweek officially died last week but workers can ease their way into the grueling five-day schedule thanks to the Labor Day holiday.

Former Utah Governor John Huntsman initiated the program in 2008, heralding it as a way to increase efficiency and morale, while reducing costs and conserving energy. As our long-time readers may recall, I was skeptical that the purported benefits of a four-day workweek would be realized fully. It seems that my skepticism was well founded. The State-wide program is being abandoned after a legislative audit revealed that the savings were not as great as had been hoped and residents were dissatisfied with the limited access to government services.

Not all four-day workweeks have been unsuccessful, though. The smaller size of local governments appear to be the key to successful implementation of the so-called 4/10 workweek. With fewer employees and offices, towns and municipalities are able to more effectively adjust the program to fit the needs of residents and demands of employees.

As for me, my opinion is unchanged. Workplace flexibility is a good thing. And that’s exactly why the Utah program did not work. Utah’s four-day workweek was mandatory. “Mandatory flexibility” is an oxymoron. That’s why, in my opinion, mandatory workplace flexibility in the form of a state-wide program doesn’t work.

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.

In addition, you should periodically practice evacuation drills and provide emergency contingency training to familiarize your employees with the proper procedures after an emergency occurs. You should also consider things like which equipment needs to be turned off when an emergency strikes, what your backup power sources are, where first-aid supplies will be kept, and how to communicate instructions to your employees or customers while an emergency is unfolding.

Every employer must keep a list of vital contacts. You should have complete contact information for your employees and corporate officers. A good contact list should also include local and federal emergency telephone numbers, including contact information for the Delaware Emergency Management Agency (whose phone number is (302) 659-DEMA).

On the business side, you should also keep telephone numbers and physical and e-mail addresses for major clients, suppliers, contractors, financial institutions, insurance agents, radio stations and newspapers, and any other individuals or businesses you might need to notify after a crisis occurs. Keep your contact list stored off-site so it's available if your main facility is inaccessible.

In addition, consider setting up a place on your website where employees can log in to indicate they are safe. If internet access is unavailable, the old-fashioned "phone tree" that assigns your employees to contact teams can by put into place. Employees on each contact team will be responsible for communicating with other employees on the team after an emergency. That makes locating employees and confirming their safety a far easier task than having no system at all. Another alternative is designating an off-site location employees can call to get information after a disaster or to notify your company and their family and friends that they're OK.

Include in your contingency plan a timeline of tasks to be accomplished. Your list should include things that must be accomplished before disaster strikes (if you have advance warning, like when a hurricane is predicted) and what must be done afterward.

Protect your records

Most of you can't really imagine how much you depend on the documents, forms, employee records, customer and contact lists, and accounting information you've developed over the years you've been in business. To reduce your losses, you must have adequate backups of all your company's important records, computer data, vendor and customer lists, and other information that is essential to your operations.

Make sure your backups are updated frequently and stored in an off-site location specially constructed for data and record storage. You can have all the backups in the world, but they won't do you any good if they're five years old or if they're stored in your office building when it burns to the ground.

Identify emergency business facilities

In the case of emergencies that disable your facilities for a significant amount of time, you may want to consider alternate facilities you might use to operate if a disaster hits your business. Look for facilities that will rent office or warehouse space for short terms, or consider using your employees' homes if your business can be conducted through telecommuting. Of course, you'll have to have a communication plan in place before disaster strikes so your employees and customers will know you're still operating.

Make provisions for employees' wages, benefits

Employers aren't required to pay hourly nonexempt employees for time away from work because of a workplace disaster. Nevertheless, those employees may be eligible for certain pay benefits, including unemployment compensation. You should be cognizant that under the Fair Labor Standards Act, salaried exempt employees must be paid their full salary for any workweek in which they perform any amount of work — regardless of how many days or hours they actually work. If they aren't, you risk having them lose their exemption.

If you're like most employers, some of the most important benefits you provide your employees are health, disability, and life insurance. If any of your employees or their beneficiaries are injured or killed during a disaster, those benefits may be their (and their families') only lifeline of hope. Consequently, make sure you provide whatever help they or their families need to file their health insurance or workers' compensation claims. Injured employees may also need help filing claims under your short-term or long-term disability policies.

Here are some helpful things you can do:
• Let your employees know about pertinent deadlines. Be sure to provide them with the correct forms promptly and help them fill out the paperwork if necessary.

• If an employee's injuries prevent her from filing a claim, contact her spouse or another family member to advise her which benefits are available.

• If an employee is temporarily or permanently disabled, work with her to determine whether there's a reasonable accommodation that will allow her to return to work.
Address employee leave

Keep in mind the proper application of your company's leave policies — and the various laws that protect employees who are injured or whose family members are injured. Take care to apply your sick, personal, vacation, paid time off, and bereavement leave policies uniformly and with compassion.

Injuries sustained during a disaster may qualify someone to take leave under the Family and Medical Leave Act to care for himself or a family member. If an employee needs to take a leave of absence for nonmedical reasons, check your policies and let him know what his options are. Even if you don't usually allow nonmedical leaves of absence, storm cleanup may be an extenuating circumstance that will allow you to grant leave now. Just remember to treat all employees fairly when doling out leave.
Prepare for emotional component

Finally, the stress of a disaster takes a tremendous toll on everyone, both physically and emotionally. If you're prepared to target the fears and concerns of your workforce, you'll be better prepared to recover from a disaster. Managers should have plans to address those concerns and understand that people respond differently during crises. You must accept the fact that performance and productivity will drop, and some employees may have increased absences and difficulty concentrating on their work.

Contact your employee assistance program (EAP) provider for counseling information for stressed workers and their families. Alert your provider that employees will be contacting it. Remind employees about the EAP, and provide them with its phone number.

Bottom line

It appears that the earthquake felt in Delaware did not harm anyone or significantly impact businesses, but it’s a good reminder of what you need in place in case it had. Planning for the unthinkable is the smart thing to do from a business standpoint. Because every business is unique, employers are well advised to consult with employment counsel to help develop a disaster-preparedness and crisis-management policy best suited to your needs.

Employers who are preparing to adopt a social-media policy would be well advised to read an excellent post on Mashable.com, titled, HOW TO: Get Your Employees On Board With Your Social Media Policy.  The piece, which is written by Maria Ogneva, who is the Head of Community at Yammer, offers some terrific suggestions for making your social-media policy work.  

She makes a number of suggestions about ways to implement a social-media policy effectively.  All of the suggestions are top-notch.  But a more important message underlying the post is this: no matter how well drafted your social-media policy is, it’s worth nothing unless your employees know about and understand it.  Compliance is always the single most important objective to consider when drafting any kind of workplace policy.  The goal for a social-media policy is no different.

The purpose is not to have a written document that you can use as a basis for disciplining employees when they violate the rules you’ve prescribed.  Instead, you’re trying to avoid having employees violate those rules in the first place.  The key to compliance is education.  Making sure your workforce is not only aware of the policy (which is, by the way, an important component of the process), but, also, that they truly understand the policy and what it is trying to prevent and protect against. 

Consider engaging in some dialogue with employees as part of the roll-out of your policy.  You may be surprised at the insight they’re able to offer.

Social-media policies are on the mind of employers everywhere. I taught my first social-media policy workshop in 2009 and have been talking about them ever since. It's only been in the last 12-18 months, though, that I've seen a real movement towards adopting and implementing social-media policies, as opposed to just talking about them.

In the coming months, I will be giving a number of presentations about social-media policies. I'll be speaking to the Virginia Bar Association's Labor & Employment Section's annual CLE in Richmond on May 5 and just outside of D.C. on May 12. Then I'll be back in Delaware on May 18 for a CLE hosted by the Delaware Bar Association's Technology and Corporate Counsel. At each of these seminars, I'll be talking about social-media policies.

Although not specific to policy drafting, I will also be speaking about the ethical issues relating to social media for the Pennsylvania Bar Institute on April 21 in Pittsburgh and on April 27 in Philadelphia.

Although the sessions listed above are for legal professionals, human-resource professionals will have their chance, too. On May 11, at Young Conaway's Annual Employment Law Seminar, which is not to be missed for Delaware employers, Bill Bowser and I will be giving an encore presentation of our popular social-media policy workshop. (If you haven't registered yet, do it now--it looks like the event will likely sell out this year). Then, this Fall, I'll be speaking again at both of M. Lee Smith's Advanced Employment Issues Symposiums. The first one is in October in Nashville, Tennessee; the second is in Las Vegas in November.

For the next several months, I'll be living and breathing (and talking a lot about) social-media policies. To make it a truly well-rounded experience, I'll also be writing about them here on the blog. Specifically, I'll be writing an extensive series of posts about the specific considerations that are involved in drafting a social-media policy. These posts will address the details of social-media policies, as opposed to the big-picture considerations that I have written about in the past. All of the posts in this series will be titled, "Drafting Considerations for Social-Media Policies," making them easy to identify.

Kenneth Kratz, district attorney of Calumet County, Wisconsin, sent 30 text messages to a 26-year-old domestic-abuse victim.  Odd choice of medium, one might say, for an attorney to communicate with a witness.  I can't say that I generally communicate with clients or witnesses via text message.  But that may be because I tend to communicate with clients and witnesses about case-related issues--and do so in a professional context.  Not Mr. Kratz.

DA Kratz is reported to have sent these text messages in an attempt to solicit her for a romantic relationship.  In other words, he "sexted" her.  The content of the messages are salacious and, well, obnoxious.  For example, he wrote in one message, "Are you the kind of girl that likes secret contact with an older married elected DA ... the riskier the better?" 

Remember, he is sending these messages to a woman whose ex-boyfriend he was also prosecuting on charges that the ex-boyfriend nearly choked her to death.

Katz did not deny sending the message but, instead, defended himself, saying that the state's disciplinary board had cleared him of any misconduct.  He is reported as being angry that the "non-news story" of his sexting worried him because of its potential effect on his "reputational interests."  

The story came to light after Katz failed to take the witness' lack of interest seriously, leading her to report the messages to the police.  The police department released the messages to the media at the request of the Associated Press. 

[H/T Sharon Nelson, Ride the Lightning]

So, what are some of the numerous lessons for employers to learn from this story?  (Read on after the jump to find out)

The Navy has released its second handbook on social media.  The first was directed to ombudsmen and was released this summer.  The second was released last week and is directed to commanding officers. The handbook offers guidelines and suggestions for safe social-media use. Here are some of the most transferrable points from the new handbook, which employers may want to consider when drafting their own social-media policies:

• Protect the safety of your family’s personal information;
• Be familiar with the privacy settings of your account;
• Keep sensitive information safe.

The social-media handbook also addresses how to respond if your account is hacked and what to do if you find that inappropriate comments have been posted to a Naval social-media account.

One particularly interesting section addresses the issue of friend requests between a commanding officer and those in his chain of command.  Regarding online relationships with subordinates, the handbook states:

If your social media presence exists simply to engage with people on a professional basis then becoming a friend of one of your Sailors or following them is less of an issue. However, if you use social media actively to communicate with your close friends and family then including Sailors who work for you is a more difficult decision. However you approach your connecting with subordinates from your command, it is up to you to lead by example and ensure that the relationship remains on a professional level and that deference to your rank and position is respected online and in the real world.

This is one of the better social-media handbooks I’ve encountered and is an excellent starting point for those employer who are beginning the process of writing a similar policy for their workplace.

See also:

Sample Social-Media Policy for Employers

Employers heard the word “pandemic” more often then they’d ever imagined during last year’s outbreak of the H1N1 strain of the flu, also known as Swine Flu. While the World Health Organization declared an end to the H1N1 pandemic in June 2010, employers should still be aware of the ways that a pandemic can impact a workforce. The flu is not the only reason to have a pandemic policy in place in your office.

MSNBC has just reported three cases of a new “superbug” in the United States. The bug is actually a gene that is capable of being easily incorporated into many bacteria. Once the gene has been incorporated into a strain of bacteria, the bacteria become resistant to nearly all antibiotics, including doctors’ antibiotics of last resort.

With this newest of medical scares, employers should once again revisit the idea of a pandemic policy. If your business does not have one, consider one of the many policies available online, from your attorneys, or from human resources consultants. If you already have a policy, make sure your employees are properly trained to comply with the policy—it won’t work if they don’t follow it! In today’s ever-more-connected world, pandemics are a reality of life. But they don’t have to cripple your business.

How important is office space to employees?  Very important, apparently, according to this article discussing a "summer office swap" conducted at a Boston-area advertising agency.  During the summer months at this forward-thinking firm, nearly every employee switches office space based on a lottery system.

There were a small number of managers with offices, and regardless of how high their pick was, they could not keep an office. However, who did get the office appeared to depend on an elaborate bartering system, which resulted in more lowly office types offering services such as babysitting, car washing, and coffee retrieval in exchange for a seat in a coveted manager office.

The article is a good reminder of how important office space is to employees. More than a few employment discrimination lawsuits have been based, in part, on the office (or cubicle) an employee is assigned to.

In 2003, there was a Delaware case involving a plaintiff who filed a federal lawsuit which entailed, among other things, his objection to an office space “auction” at University of Delaware – where the best offices would go to the highest bidder and the money raised would go into a fund for use of the Department.

More recently, I had a case where among a plaintiff’s evidence of “retaliation,” were claims that she was given a “dirty, dusty cubical walls filled with dust mites.” And of course, who can forget the movie Office Space, and Milton, whose most prized possession was his Swingline stapler, and whose cubicle was continually moved until he was eventually wound up in a dimly lit basement among the boxes.

The legal profession is one of the last standouts where a good portion of the employees – lawyers and paralegals – typically have real offices with doors: associates have window offices, partners have bigger window offices, and paralegals have interior window-less offices. I know this is unusual for most of corporate America. But as the Boston Globe article illustrated, even among cubicles there is a hierarchy: those closest to the window, most shielded from foot traffic, etc.

Employers should keep in mind the importance of office space to employees, and what a difference small changes can make. In this era of layoffs and belt-tightening, there may be simple and relatively inexpensive ways to reward your employees and keep them happy: think about small ways their work environment can be improved. Many (indeed most) employers are not cut out for the “summer office swap” conducted by the Boston firm – if this was ever attempted in a law firm, I’m quite certain it would result in a revolt that would make the Pakistani lawyers revolt look tame. Nevertheless, consider what might work for your workplace: access to natural light, modest levels of privacy, can go a long way to build employee loyalty.

Delaware’s law banning calling and texting while driving takes effect in January. Eric Ruth, of the Wilmington News Journal, details what Delaware's new no-cell-phone law does and does not require and, with a few suggestions from Adria B. Martinelli, offers ways that employers can begin to prepare.

Adria also offers some tips for employers who will need to update their policies:

• Ban all cell phone use while driving company-owned vehicles -- even hands-free devices can distract drivers.
• Specifically ban texting and e-mailing while driving. If text messaging must be used, incorporate a strict policy requiring drivers to first find a safe area to park the vehicle.
• Make an exception for emergencies that require police or medical attention.
• Also require all occupants of company-owned vehicles or private vehicles driven on company business to wear seat belts.
• Monitor and enforce the policy.

Delaware Governor Jack Markell declared a state of emergency and instituted a driving ban limiting driving to emergency vehicles only as a result of the record-setting snow storms that hit the Northeast this week. While State government strongly urged employers to consider their employees’ safety and close their businesses for the duration of the state of emergency, nothing prohibited employers from opening for operation during the storm.

But employers should consider more than employee safety when choosing to open their businesses during a state of emergency. At least one case, decided by the Delaware Superior Court after the blizzard of 1996, noted that an employer could be liable for an employee’s injuries if the employee was called in to work during a state of emergency.

While the general rule is that an employer is not responsible for an employee’s injuries if those injuries are sustained outside of the employer’s property, there are exceptions. One such exception is that an employer may be liable for an employee’s injuries, sustained while travelling to the employer’s property, if the employee is called to work when he was not otherwise expected at work. This exception has not yet been applied to a case where an employee is injured coming into work during a state of emergency.

In the end, while it may be financially costly, employers will garner employee good will and avoid liability for employee injuries by closing during a state of emergency.

Garrison v. State, No. 96A-05-004, 1996 Del. Super. LEXIS 443 (Del. Super. Ct. Oct. 8, 1996).

With the weather forecast predicting record-setting snowfall in the Northeast, many employers are preparing to close operations again tomorrow. But how to handle snow days when it comes to calculating payroll? Here's the run-down.

The Fair Labor Standards Act (FLSA) prohibits employers from reducing the pay of any exempt employee based on the quantity or quality of his work or when he is ready, willing, and able to work but no work is available. Applying that basic principle, the U.S. DOL has taken the position that employers that decide to close because of weather conditions must pay exempt employees their regular salaries for any shutdown that lasts less than one full week.

On the other hand, nothing prohibits an employer from requiring employees, including exempt ones, to use accrued vacation time or other time off to cover the missed work. The FLSA doesn't require you to provide vacation or leave time at all, so there's nothing to prevent you from giving your employees vacation or paid time off (PTO) but then requiring them to take it on certain days. A private employer may therefore deduct the period of absence due to bad weather from an employee's remaining vacation or leave time, whether the absence is a full day or a partial day, so long as you pay exempt employees their regular salaries for that time.

The practical problem, of course, is that when bad weather hits, some exempt employees may not have any vacation or leave time left. Or they may have already scheduled to take off — and received approval to use — whatever vacation or leave time they have remaining. Even if an exempt employee has no time off remaining, she still must be paid her regular salary when the organization is closed because of bad weather for less than a week. The DOL has made it clear that you must pay employees in those circumstances, even if you offer no vacation or PTO benefits at all and even if you provide those benefits but the employee has no remaining accrued leave available.

There's no legal prohibition against applying PTO to days missed because of a facility closure and canceling part or all of approved vacation time for exempt employees who have time remaining but have approved plans to use their PTO on other days. You should first consider the inevitable negative effect of that practice on employee morale, however.

According to a report released today by the FDIC, a shocking 26 percent of U.S. households have little or no access to banking service, and the problem hits poor and minority families the hardest. As a result, these individuals must often pay to have their payroll checks cashed.

Delaware employers should be aware that payroll debit cards may be a good way  to help  "unbanked employees" to avoid check cashing charges.

For many years, efforts to use payroll debit cards were thwarted by Delaware law. Under the Delaware Wage Payment and Collection Act, employers must pay all wages "in lawful money of the United States or checks provided suitable arrangements are made by the employer for cashing such checks for the full amount of the wages due at a bank or other business establishment convenient to the place of employment." The Act further defines a check as being "a draft drawn on a bank and payable on demand." In combination, those provisions appeared to preclude the use of payroll debit cards for wage payment.

Delaware Department of Labor regulations interpreting the DWPCA, however, were amended in 2004 to specifically authorize the use of payroll debit cards. The regulations state that an employer may issue "a payroll debit card which provides the functional equivalent of cash or a check."  It is the employers' responsibility "to effectuate a payroll debit card system which will allow full payment of wages on the employee's regular payday and without cost to the employee."

A reported 4.1 billion text messages are sent each day in the U.S., according to CITA, the International Association for the Wireless Telecommunications Industry. The popularity of text messaging or "texting" has seen explosive growth in the past few years.  But are employers really in touch with this tool and its potential legal risks? 

One employer has.  Alachua County, Florida, has banned County employees from sending text messages for County business.  The prohibition was announced after County official  became concerned that text messages constituted public records that are subject to a FOIA-type request.  FOIA laws require public entities to produce official records when a proper request is made. 

Textual harassment has gotten quite a bit of press lately, and for good reason.  According to the National Conference of State Legislatures, 46 states, including Delaware, currently have an electronic harassment or "cyberstalking" law. 

The Delaware law provides that a person is guilty of criminal harassment when, with the intent to harass, annoy, or alarm another, the person . . . communicates by telephone. . . or any other form of written or electronic communication in a manner which the person knows is likely to cause annoyance or alarm. 

When an employer learns of a possible hostile environment, it must comply with fairly strict rules relating to how and how quickly to respond.  Textual harassment adds another layer to the process because employers must determine whether any electronic evidence of harassment (or evidence that disproves harassment) exists on computers, laptops, and, now, cell phones.

Employer should consider whether their employees are using work (or personal) phones to send text messages about work during working time.  If so, you are obligated to take active steps to preserve these messages once you have reason to believe there may be potential litigation. If you're not in a position to do that, you may want to consider implementing a "no-texting" rule for all business-related correspondence.

Workplace Prof Blog reports that, last week, Congress designated October as National Work and Family Life Month.  The primary force behind the measure was the Alliance for Work-Life Progress, and the purpose was to encourage employers and employees to seek flexible work environments to better balance the needs of work and families.

October is also Workplace Politics Awareness Month.  So, how can we put these two noble causes together? 

How about by creating an “official” work-life policy.  An often-heard complaint is the lack of transparency in part-time or remote-work policies. Many organizations, especially in professional-services fields, negotiate reduced-hour schedules on a case-by-case basis. This often results in unequal application of the policy.  The uncertainty also causes some employees to avoid the discussion altogether. In other words, those “in the know” is more likely to request a flex or reduced-hours schedule than someone outside the loop, only because the employee in the know feels more confident that they’ll get an answer they’re expecting.

To prevent unfairly preferential treatment of those with access to the key information holders (i.e., the “favorites”), create a policy on flex schedules for circulation to all employees.