Delaware Employment Law Blog

The U.S. Department of Labor (DOL) continues in its initiative to provide employers and employees with online resources and tools designed, according to the DOL, "to help employers understand their responsibilities to report and record work-related injuries and illnesses" in accordance with OSHA regulations.   

From the DOL's press release announcing the new web tool:

The OSHA Recordkeeping Advisor helps employers and others responsible for organizational safety and health quickly determine whether an injury or illness is work-related; whether a work-related injury or illness needs to be recorded; and which provisions of the regulations apply when recording a work-related injury or illness.  To help employers in making these determinations, the OSHA Recordkeeping Advisor relies on their responses to a series of pre-set questions. 

Some related resources:

OSHA Recordkeeping Rules CFR 1904

OSHA Recordkeeping Handbook

OSHA Recordkeeping-Related Letters of Interpretation

Of course, nothing can really top the DOL's Wage and Hour Division's new timekeeping app, which gives employees the ability to keep their own records of time worked, which may or may not match the records provided to the employer.

Employers may want to take advantage of a new online toolkit to facilitate the return-to-work process for employees following a disability-related leave of absence.  The toolkit is intended to provide guidance to both employees and employers with the goal of getting employees back to work as soon as possible. The employer toolkit includes tips for possible accommodations, such as changes to work duties or schedules.  The site also includes suggestions for ways to reduce workers’ compensation costs and improve workplace safety. 

If you need specific information on how to accommodate an employee with a disability, be sure to check out the Job Accommodation Network (JAN).  JAN is a free service with an unmatched library of informative resources.

Any human-resource professional who conducts internal investigations of employee complaints (i.e., discrimination, harassment, bullying) would be well advised to read the new book, The Invisible Gorilla.  The book is written by Christopher Chabris and Daniel Simons, the two minds who collaborated on a famous psychological experiment for which they were awarded the Ig Nobel Prize in Psychology. 

If you haven’t heard of the “gorilla experiment” (also known as a “selective-attention test”), you can (and should) check it out on the authors’ website.  You can watch the video to take the test—but be warned that you may be very, very surprised by the results!  According to the authors:

This experiment reveals two things: that we are missing a lot of what goes on around us, and that we have no idea that we are missing so much.

And they’re not kidding.  As they explain in the the book, we have an amazing ability not to see what’s going on around us.  And, as also explained in the book, we also have an amazing ability to remember facts incorrectly; in other words, we get the story really, really wrong.  More notable, though, is how convinced we become that our memory is accurate. In fact, we are so sure that our recall of a traumatic event is correct that we can’t be convinced even with documentary evidence.

So how does this potentially affect HR?  At a minimum, the authors’ findings will change the way you conduct your next internal investigation. When you’re interviewing potential witnesses, you will be keenly aware of the tricks that our memories can play on us—and how convinced we can be that our memories are not being tricked at all.

Employers are affected by the health-care legislation, also known as the Patient Protection And Affordable Care Act, in numerous ways. One of the lesser-known parts of the Act is Section 4207, which amends the Fair Labor Standards Act (FLSA).  Section 4207, also called Reasonable Breaks for Nursing Mothers, requires employers to provide nursing mothers reasonable breaks to express breast milk and a separate room where they can take the break for up to the first year after the child’s birth. (See FLSA Now Requires Breastfeeding Breaks and a Place to Take Them). 

The law took effect in March but employers have been without any guidance on what the law requires.  Until now, that is.  The Department of Labor has issued an official fact sheet providing some guidance on the specific requirements under the law.  Fact Sheet #73 offers the following guidance:

Who Is Eligible for Breaks

Only non-exempt employees are affected by the law.

Frequency and Duration of Breaks

Breaks must be provided “as frequently as needed by the nursing mother.”  The frequency of breaks and the length of each break “will likely vary.”

Location of Breaks

The Fact Sheet makes clear that a bathroom, even if private, is not considered a suitable location for nursing mothers to express milk.  The Fact Sheet states that, “[i]f the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement.  A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.”

Exceptions to the Rule

Employers with less than 50 employees are not subject to the rule if it would impose an undue hardship. “Hardship” is relative, compared to the employer’s size and financial resources.

Click here to read the entire Fact Sheet #73 (PDF)

Employers and human-resource professionals have been anxiously awaiting the issuance of the final rules interpreting Title II of the Genetic Information Nondiscrimination Act (GINA). We remain hopeful the regulations will address some thorny issues, such as the implications of employers’ use of internet and social media sites, which may in turn reveal the genetic information of an employee or applicant.

Looks like we shouldn’t hold our collective breaths for the final answer. Deadline after deadline set by the EEOC for its publication of the regulations for Title II of the Act, which applies to employers, has come and gone. Most recently, the EEOC’s Spring 2010 Agency Rule List indicated that GINA regulations were in the Final Rule stage and were expected to be finalized in May. May has come and gone and still no regulations.

In the meantime in GINA news, a new website, http://www.ginahelp.org/ has been created by the Genetic Alliance, the Genetics and Public Policy Center at the Johns Hopkins University, and the National Coalition for Health Professional Education in Genetics through funding by The Pew Charitable Trusts. This online resource on the GINA and its protections in health insurance and employment includes answers to common questions about GINA and hypothetical examples.

The information is fairly basic, but could serve as a helpful resource for those trying to get quickly up to speed on the fundamentals of GINA.

The U.S. Department of Labor (DOL), offers a resource called eLaws Advisors, to help employers and employees understand the many federal employment laws.  The website is actually more of an interactive tool that guides users through a series of question to provide specific information relevant to their particular circumstances.  There are eLaws Advisors on wage and overtime issues, workplace poster requirements, health benefits, federal contractor compliance, and other topics. 

My mother always told me that it’s never too late to say “thank you.”  With that excellent advice in mind, I’ll thank the fine authors of the Workplace Prof Blog, who included Delaware Employment Law Blog on its list of its readers’ favorite employment law blogs.  This is high praise from one of the very best employment law blogs in the legal blogosphere.  Be sure to check out the entire list, it’s just the place to update your blog reader.   You can also check out our Top 100 Employment Law Blogs.

Thanks to iPhone J.D. for alerting us to this new app from Lexis Nexis.  Lawyers, you can now get your case law on the go.  According to iPhone J.D.,’s thorough review, the app doesn’t yet give us access to statutes (odd) but it is free, which is a good thing. 

I continue to be amazed by some of the less-than-best writing practices of my friends and colleagues.  Many of these practices relate to the ways in which they format documents. I recognize that many of these practices derive only from habit--not bad intentions.  But that doesn't make them any less annoying.  And what makes them more annoying is the irrational devotion they garner. 

What are these habits, you ask?  Truth be told, there are too many to list here.  But there is good news--I am not alone.  There are others who feel strongly about the importance of documents done right. 

Minnesota bankrupcty court judge Robert Kressel is one such sympathizer.  Recently, he issued Order Preparation Guidelines for attorneys appearing before him.  The Guidelines spell out a variety of writing misdeeds that Judge Kressel wisely abhors. 

I have two thoughts about these Guidelines.  First, they offer terrific advice that everyone should follow.  Second, they demonstrate how helpful style guides can be and make me wish that there were more such guides in place--both in the judicial system and in the workplace.  

All of the guidelines are great, really.  But a few stand out for me.

The first guideline, for example, instructs parties to submit PDFs that have been converted directly from Word or WordPerfect--instead of by scanning printed paper copies.  Amen!  Why in the world anyone thinks it is somehow better to print a document and then hard scan that document to PDF positively escapes me.  Print to PDF, people.  Please, I beg you!  As Judge Kessler points out, it saves tremendously on the size of the PDF.  And it also provides a far better looking final document, as well as a searchable document.  A document that is printed to PDF (as opposed to scanned) can also accept comments made with commenting tools in Acrobat, such as highlighting and adding "sticky notes."  (See my previous posts on the topic of PDFs for better documents for additional inspiration).

Judge Kessler also reminds lawyers to "limit the use of capital letters to proper names."  I've discussed the "ALL-CAPS disease" before but it bears repeating.  For those of you who have held tight to this habit, please consider resolving to abandon it in the new year.  Words that are typed in all capital letters are very difficult to read.  For an excellent explanation of the phenomenon, see Robin Williams' highly instructive and enlightening book, The PC Is Not a Typewriter. 

There are other resources for those who are open minded and ready to make some positive changes to their document-formatting habits.  Ms. Williams' book is a fantastic place to start.  (The book is closer to a pamphlet than War and Peace and serves as an excellent desk reference.)  The Seventh Circuit has published an excellent and extensive set of guidelines for briefs (pdf).  One of the sources cited in the court's guidelines is Ruth Anne Robbins' journal article, Painting With Print (pdf), which is far more detailed and a truly outstanding scholarly work.  Finally, specific to the legal profession but applicable for all professions is Matthew Butterick's blog, Typography for Lawyers. 

So, wonderful readers, go forth into the new year with standards set high and paragraph alignment set to Left (please, no more justified paragraphs!).  These are resolutions that, if kept, truly would help make the world a better place, one document at a time.

[Hat tip to the Lawyerist]

Judges Order Re Writing Mistakes in Court Filings

Follow me on Twitter . . . @MollyDiBi

I host a bi-monthly “lunch and learn” for the staff in my department; attendance is voluntary.  In advance of the meeting, attendees suggest and vote on the session’s topic.  Topics range from software-specific, like Adobe Acrobat or PowerPoint, to soft skills, such as time management, and just about anything else they find relevant and productive. At the most recent session, we had a mixed bag of topics but ended with a quick review of some grammar and usage “troubleshooting tips.”

This particular topic was at my suggestion and was urged not by anything I’d been seeing in their writing but more by the stories circulating the legal blogs over the last few weeks. Let me say that these stories are almost hard to believe, not because I have a hard time imagining legal writing that is just plain bad—trust me, that’s the easy part.  But I do have a hard time imagining the court that actually responds in the ways described in these stories. 

Part of me loves the idea of a court that takes legal citations very seriously and part of me cringes.  I mean, everyone makes mistakes.  I am hopeful that I don’t make the “mistakes” that the lawyers in the stories below made.  But everybody has bad days, right?

In any event, here are a few stories that scare me enough to review Garner’s The Redbook: A Manual of Legal Style, by Bryan A. Garner one more time before I file that brief.

#1:  Bad Writing Can Cause Public Humiliation

Although public humiliation may seem like the least terrifying of the three reasons listed here, it also seems like the worst.  It’s the most likely to happen; after all, what are the chances that your writing is going to get you tossed into jail?  It’s a bit difficult to imagine (thankfully).

But having a judge be so irritated by grammatical and typographical errors that he red pens the document and publishes it on the official court docket for all the world to see is much closer to reality, making it all the more horrifying.  A federal judge in Florida, apparently, was just that irritated over errors in an attorney’s brief.  The errors ranged from “excess spacing” to typos to incorrect capitalization to word choice.  Here’s one example, cited by the ABA Journal: “[the plaintiff] had attended on filing” this action, instead of saying the plaintiff had “intended” to file an action

#2:  Bad Writing Can Lead to Monetary Fine

The ABA Journal brings us a great story about a Wisconsin lawyer who was fined $100 for submitting a brief that contained an incorrect citation, which led the court on a wild goose chase to hunt down the case that should have been cited.  I’ll confess, this strikes me as nothing more than justice at work.  Erroneous case citations are enough to drive even the most even-tempered to the edge.

#3:  Bad Writing Can Result in Jail Time

Carl Smith, an attorney is Missouri was charged with criminal contempt and sentenced to 120 days in jail for language used in court filings.  In his papers, Smith said that certain events indicated a “personal interest, bias, and purported criminal conduct” by and between the judge, the prosecutor, and other court officials. The ACLU is one of several organizations that came to Smith’s defense, claiming that the punishment of an attorney based on his legal filings would have a chilling effect on free speech in the justice system. 

If these stories motivate you to polish up your writing skills, you can get a great start by checking out our post on the 10 Funniest Writing Blogs, 20 Online Dictionaries, and Top 30 Blogs on Writing.

The Top 100 Employment Law Blogs is back and updated for 2009. Ok, so it’s the Top 110 this year. There were just too many great blogs that 100 wouldn’t do the trick. The list, of course, is totally subjective and based only on my personal opinion. One criteria that I did use this year, though, was a most-recent-post criteria. Blogs that hadn’t posted more recently than September weren’t eligible for the list. If you write a blog that addresses with employment-law issues and I’ve missed it, please let us know by posting a comment.

[Updated Nov. 13] Alterted by their comments and duly impressed with their sites, I'm going to add two more to the list--really, what difference will 2 more make, we've already got 110.

Social Networking Law Blog

Overtime Advisor

I give a lot of presentations. And I take them seriously. Which may explain why my slides often get noticed as being "different" than many of the other presentations my clients see. I subscribe to the style of presenting advocated by Cliff Atkinson, known as Beyond Bullet Points.  Nancy Duarte and Garr Reynolds are two other visionaries in the field of visual communication who lead by example. In short, the principle theory behind my slide design is to present only one idea per slide and to present it with images instead of words.

And, while I could go on for many posts about the topic of effective presenting skills but I'll save that for another day.  Instead, I'll refrain from the evangelical sermon and, instead, offer a tiny bit of practical help.

One of the bigger stumbling blocks involved in this type of presenting is where to get the graphics you'll use instead of words on your slides.  There really are an unlimited number of ways to create images for this purpose. 

Of course, you can simply purchase them from stock photo sites.  I use Shutterstock to buy images and buy a one-month subscription to save on the cost. 

You also can surf the web to find images.  Google Images works great for this and so does Bing's image search. But beware of "borrowing" images--just because they're available online does not mean that they're publicly available.  You must determine if you're lawfully able to use the pictures that you find. Dave Paradi recently listed 10 excellent government sites that offer bunches of beautiful photographs for free!

One seriously underestimated tool is PowerPoint.  I use it constantly to create my own images--everything from simple stick-figure drawings to more substantial 3d graphics.  If you don't believe that this is possible for mere mortals (i.e., non-designers), just have a look at the wonderfully instructive blog, Slides that Stick for some excellent tutorials.  You may be amazed!

One of the greatest resources, though, is right at your fingertips--or, even better, they are your fingertips!  Pick up a pen and start drawing. Don't be "fancy"--really, it's best if you just avoid even attempting anything that will look even close to "artistic."  Just stick with the basics.  You'd be surprised at how well you can communicate using those same skills that you picked up as a toddler.  Need inspiration? Check out Dan Roam, who just won the World's Best Presentation Contest at Slideshare.net--using, you guessed it, simple marker drawings! 

Have you ever wanted to carry the entire Delaware code in your pocket? Have there been times you’d wished you’d had Title 19, Delaware’s labor statutes available when you’re not at your computer or near a law library?  Well, if you are the owner of an Apple iPhone, now you can.  The entire Delaware code is now available as an app via the iTunes store for just $19.95.  That’s insanely inexpensive compared to the price of the multi-volume book set you’d have to buy to get the Code in print.  The app gives users access to the full Code in a searchable format, making it easy to find that obscure cite in a flash.

Of course, law firms have been very reluctant to the adaptation of the iPhone, so many lawyers who have iPhones also have to lug around a Blackberry to check their work e-mails.  Still, a Blackberry is substantially less bulky than a couple of shelves worth of hard-bound legal books. Oh, what will technology give us lawyers next?

In case you’re not yet an iPhone user, you can always search the Delaware Code for free online, made available on the State of Delaware’s website.

The U.S. Supreme Court has taken another step towards “digital enlightenment.” The Court’s website now includes links to pdf files containing the United States Reports, volumes 502 and later.  The U.S. Reports contain the final and official version of the Court’s decisions, typically three to five volumes per Term. Each volume is between 800 and 1,200 pages long, making each pdf file very large.  Large, but packed with valuable information, including, according the Court’s site:

In addition to all of the opinions issued during a particular period, a volume may contain a roster of Justices and Court officers during that period; an allotment of Justices by Federal Circuit; announcements of Justices' investitures and retirements; memorial proceedings for deceased Justices; a cumulative table of cases reported; orders in cases decided in summary fashion; reprints of amendments to the Supreme Court's Rules and the various sets of Federal Rules of Procedure; a topical index; and a statistical table summarizing case activity for the past three Court Terms.

For those who are familiar with Adobe’s Acrobat can create a tremendous resource for themselves by saving these files locally and creating an electronic index for super-quick searches later.  This appears to be yet another mile marker in the road to more easily accessible legal references.

Yesterday, I posted my thoughts on typos in cover letters and resumes.  Although I am in the camp of thinkers who believe that resume mistakes are big red flags, I also believe that we are keepers of our own destinies. So, instead of complaining about the lack of proofreading and editing skills, I’ll point you to a great article on this very same topic.  Lisa A. Mazzie has an outstanding article, titled, Be Wise: Revise, posted at the State Bar of Wisconsin’s Wisconsin Lawyer.

The article includes a Sample Revision Checklist,which is on the simple side but an excellent way to make sure your writing hasn’t lost its focus—especially as that filing deadline approaches.  The checklist is a great reference for new associates starting this fall. 

[H/T to Legal Writing Prof Blog]

And if you really want to improve your writing skills, the blogosphere contains a jackpot of resources. Start with our list of The Top 30 Blogs on Writing.