Delaware businesses must have a written electronic-monitoring policy if they want to monitor phone, e-mail, or computer usage by employees. Delaware law requires employers to get either a signed consent from employees or to have a message conveying the policy that is shown to the employee each time he logs on to the computer. And even in states without such laws, unless you have a written policy that communicated to employees, you stand to risk a privacy claim. The key is to ensure that your employees do not have a “legitimate expectation of privacy” in their use of your electronic systems.

And that’s where your policy comes in. Current is the key. The modern trend in electronic-communications policies has been to include provisions specific to blogging, cell-phones, and text messaging. We often counsel clients to improve their policies to reflect the state of technology. It seems that we have a lot in common with the Mayor of Detroit, Maybe Kwame Kilkpatrick.

Mayor Kilpatrick has implemented a new policy that text messages sent on city-owned devices are considered private. As you may recall, Kilpatrick and his ex-top aide face perjury charges for testimony they gave during a whistleblowers’ trial that they didn’t have a romantic relationship. Sexually explicit text messages have contradicted that testimony. Kilpatrick’s lawyers say federal law protects the release of such communications. The policy began Thursday, April 16, 2008.

Past policy had been that electronic communications were public. The mayor’s office said in a statement Thursday that city policies are always subject to change. Hmmm. I suppose that employers might want to ensure privacy in electronic communications is preserved instead of eliminated Especially if they have something to keep very private.

Go to source web page: Crain’s Detroit Business

Workplace Theft requires employers to respond quickly and effectively. Of course, the best tool is prevention. Employers should implement be aware of the best practices for preventing theft in their organization. But, if a theft should occur or a complaint of theft is reported, employers must be prepared to react using predetermined standards and guidelines to ensure consistency and avoid liability.

The Delaware News-Journal is reporting the arrest of a manager of a local Wendy’s restaurant for allegedly taking $1,800 from the till.

Employee theft has been and will probably always be a problem. Recent estimates indicating that it costs U.S. employers anywhere from $4 billion to $40 billion per year.

So what’s an employer to do? How do you prevent — or at least control — employee theft? Our friend, John Philips, at The Word on Employment Law Blog, suggests the following:

1. Watch for telltale signs like an unexplained rise in an employee’s living standards.

2. Hire people you can trust through the use of good background checks.

3. Make it hard to steal by careful supervision, the use of commonsense procedures and controls, and routine auditing.

4. Partner with employees to create an environment in which reporting theft is a job responsibility.

5. Give alternatives to stealing by providing employees with assistance when they get in a real bind with heavy medical expenses and the like.

6. Establish clear written policies on ethical behavior to be signed by each employee and to be enforced consistently, no matter the employee’s position.

Once theft is suspected, John suggests the following to avoid a defamation action by the accused employee:

• Thoroughly consider the source and validity of any information that alerts you to potential theft.

• Obtain as much information or evidence as you can find about the alleged theft before you take action.

• Review all policies that govern this kind of situation to make sure you’re following them.

• Don’t speculate about what the facts could be; find out what they are.

• Consider what you have done with employees in similar situations to be sure that consistency is being applied.

• Consult legal counsel to make sure you’re on solid legal footing before taking action.

Delaware has been ranked first among all fifty states in the quality and fairness of its litigation environment, according to an annual study titled “Lawsuit Climate” published by the U.S. Chamber of Commerce’s Institute for Legal Reform. Delaware has been awarded this honor for six straight years.

The survey polled approximately 1000 corporate attorneys at the nation’s largest employers and took into consideration factors such as judge competence and impartiality, jury fairness, quality of attorneys, and timeliness for trial. Along with Delaware, Nebraska, Maine, Indiana and Utah were ranked in the top-five. Rounding out the bottom five were Louisiana, Mississippi, Alabama, Illinois and West Virginia.

Delaware’s state courts have been named the best in the country for tort and contract litigation. This is the sixth consecutive year the First State has been awarded this honor. In our experience, the same result holds true for employment litigation.

Not surprisingly, Delaware and the other four states that ranked highest, Nebraska, Maine, Indiana and Utah, appoint their judges, and the three states that ranked at the bottom, West Virginia, Louisiana and Mississippi, all elect their judges.

So maybe democracy isn’t what its cracked up to be?
Or maybe it’s a bit more complicated.

Unlike the other branches of government, the courts are not supposed to simply reflect the will of the people. Judges are required to apply the law, whether “the people” like it or not. And that’s where it gets messy for elected judges. As we can easily glean from what goes on in our neighboring state of Pennsylvania, judges have to spend large sums of money to get elected, and they get most of that money from interested constituencies like trial lawyers and unions. So when a large donor, in the form of an attorney as advocate, or a union as litigant, appears before the judge, . . .

. . . Will the judge “bite the hand that feeds him?”
Human nature has the answer.

That is not to say that Delaware and other states that appoint judges do so free of politics. But the politician in Delaware who appoint the judges, Delaware’s governor, has for many years recognized that Delaware stands to gain from maintaining its preeminent position as a quality court system, and governors of both parties have made a point of appointing capable jurists rather than political hacks. What that means is that all parties in a lawsuit get a fair shake based on the merits of the case, rather than money talking to tip the scales in favor of the largest contributors.

And that is how a real democracy should work.

Inter Alia, (a/k/a) the Best Legal Research Blog, features Delaware Employment Law Blog as the Blawg of the Day

Inter Alia is the favorite weblog for legal research and reference (if you didn’t already know). Each day, Tom Mighell, blogger extraordinaire, posts about a legal research “blawg” (law + blog). Today, the Blawg of the Day is the Delaware Employment Law Blog!! Many gracious thanks to Tom for the recognition.

As a side note, for those of you who may still be new to the world of blogging, Inter Alia is the ultimate resource to find blogs of interest as you develop your list of feeds.

But, wait! There’s more! Tom also publishes Internet Legal Research Weekly, an e-newsletter readers can subscribe to for free, that covers anything and everything legal research, and then some. It often contains great information about other resources, such as Web 2.0 and other online tools. The current issue of the ILRW is available online or via subscription, and, when you have something specific in mind, check out the Internet Legal Research Weekly archives.

Really, there’s more! Tom and his co-author, Dennis Kennedy, recently published the hottest book in the world of Legal Technology and Law Firm Practice Management, The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together. Published by the ABA, the book is written in plain-English suitable for both the tech savvy and the not-so-tech savvy and provides detailed information on how to effectively collaborate using the multitude of online tools availble in today’s internet-driven world.

The book is the talk of the blogosphere at: Between Lawyers, at David Maister’s Passion, People, & Principles Blog, and the Illinois Trial Practice Weblog, just to name a few.

And Dennis Kennedy has a comprehensive post on his blog with lots of information about the book.

Delaware’s Governor Minner received the Wallace M. Johnson award from the New Castle County Chamber of Commerce in March 2008. The award recognized the Governor’s work to reduce cancer incidence and mortality and increase prevention and screening efforts in the First State. On the Governor’s blog, she reciprocated the praise by spotlighting some of the groups and individuals who helped change the State’s approach to cancer treatment and prevention.

Among those mentioned is our own Bill Bowser, a partner in the Employment Law Department at Young Conaway. Bill is the Chair of the Delaware Cancer Consortium, the group that Governor Minner credits as one of the central reasons for the State’s successful initatives.

The Governor writes:

In 2001, we approached a vested group of legislators, business leaders, medical professionals, and concerned Delawareans to form the Delaware Cancer Consortium, which was charged with making recommendations to help reduce our cancer rate. Their recommendations included the Clean Indoor Air Act, the Delaware Cancer Treatment Program, Screening for Life, the Nurse Navigator program, and the Delaware QuitLine, among many others. Because of their help and the leadership of chairman Bill Bowser, we have been able to help families and save lives.

Also worth noting for employers, the Consortium has implemented a workforce/workplace initiative. The Workforce/Workplace Committe is committed to its mission to:

Improve clinical and support services in the workplace to better manage symptoms and rehabilitation and accommodate disabilities associated with the disease. As a result, employers can increase the numbers of cancer survivors who successfully return to work. The dynamics in the workplace—just as in the routine of living—change dramatically for a cancer survivor. Inability to work regular hours can affect finances and health insurance. Social connections may be lost. Professional selfr-espect, self-esteem and satisfaction can suffer. For the employer, productivity may be affected. If there are physical limitations, the employer may alter job assignments, which can enhance employer-employee relations.

Bill’s many years of hard work and dedication to the First State’s fight against cancer is appreciated by many and the effects of his work have been felt by countless Delaware citizens.

AMERICANS WANT NEXT PRESIDENT TO FOCUS MORE ON SAVING U.S. JOBS AND HEALTHCARE; LESS ON IMMIGRATION REFORM

With the spotlight of the political world shining on the Delaware Valley today, a new “America at Work” national opinion survey by the non-partisan Employment Law Alliance (ELA) shows that Americans overwhelmingly want their next President to focus more on improving their standard of living, providing universal healthcare, and stemming the outsourcing of jobs overseas than making it easier for immigrants to live and work in the United States.

The poll is based on a sampling of 1,125 working Americans surveyed between April 4 and 9 and is believed to be the only national survey to date focusing exclusively on a wide range of workplace-related issues that will likely confront the next President.*

You can not walk outside today and not hear people talking about Wednesday’s debate and the impact of the upcoming elections on jobs and healthcare. Life in the workplace is often the centerpiece of concern for so many Americans getting ready to elect a new president.

While issues such as immigration get much of the press, I believe that the poll shows that what a typical voter is interested in might vary.

A summary of the results reveal:

· 87% of Americans want their next President to focus on increasing the proportion of the workforce earning at least a living wage, closely followed (86%) by making it tougher for companies to outsource U.S. jobs to foreign countries, and (83%) rounding out the Big Three, providing healthcare coverage for all U.S. citizens.

· 76% of Americans are also concerned - but not at the same intensity level - with having the next President work toward increasing workplace safety regulation, 70% support focusing on expanding family leave rules and 69% think beefing up enforcement of workplace discrimination laws should be a priority.

· In sharp contrast, 40% said they are concerned that their next President focuses on immigration issues, ranging from making it easier for professionals to work in the U.S. to granting amnesty for illegal aliens.

· Workers were also significantly split along racial lines regarding both views on workplace issues and immigration reform with, for example, 55% of non-whites supporting relaxing immigration laws for professionals versus 36% among whites.

· Geographically, 46% of workers in Western states thought the President should make increasing legal immigration a priority compared to a low of 25% among Midwestern workers.

· 45% of Americans want to make it easier for unions to organize workers.

ELA members concentrate on labor and employment law issues in every American state and more than 75 countries. The survey was conducted prior to Wednesday’s democratic debate at the National Constitution Center in Philadelphia and the Pennsylvania primary on April 22nd.

“The message to the next President is raising the standard of living and getting better healthcare is more of a priority than organizing unions or immigration concerns,” said Sandler.

Dr. Ted Reed, President of Philadelphia-based Reed group and Poll Director for ELA, said the input from ELA’s attorneys around the country was invaluable in shaping the questions for the survey. According to Dr. Reed, “This survey is important because of the extent of demographic detail, including gender, race, income, education, and geography. The focus on pocketbook issues across the board as a Presidential priority is unmistakable.”

*The error interval is +/- 2.99% at a 95% level of confidence.

********************************************************************
Sheldon N. Sandler, a partner in the Employment Law Department at Young Conaway Stargatt & Taylor in Wilmington, Delaware, members of ELA.

Young Conaway Stargatt & Taylor, LLP, one of Delaware’s largest law firms, counsels and represents national, international and local clients, handling sophisticated advisory and litigation matters involving bankruptcy, corporate law and intellectual property. Now in its fifth decade, Young Conaway also guides regional businesses and individuals through a myriad of employment, real estate, tax, estate planning, environmental, and banking issues from the firm’s offices in downtown Wilmington.

The Employment Law Alliance is the world’s largest integrated, global practice network comprised of premier, independent law firms distinguished for their practice in employment and labor law. Comprised of more than 3,000 lawyers, there are member firms in every jurisdiction in the United States and over 75 countries around the world. For further information, including access to the survey charts and graphs, visit: www.employmentlawalliance.com

U.S. ICE raids Poultry Plants, Doughnut Factory, Mexican Restaurants and Arrests Managers and Hundreds of Workers

I’ve previously posted about the issue of undocumented workers and talked about it a bit at our Annual Employment Law Seminar yesterday, so the AP story in today’s Wilmington News Journal is especially timely. The article
describes the latest raids by the Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security on workplaces with large numbers of illegal alien employees. The raids included arrests of an owner and 10 managers of one company.

As I said yesterday, one reason that business owners and managers should be paying close attention to this issue is to stay out of jail!

ICE arrested 300 workers for identity theft, document fraud and immigration violations at Pilgrim’s Pride chicken processing plants in five states. The company itself reported identity theft issues to ICE and cooperated in the enforcement action. It uses the E-Verify online database to check the documentation of new employees, and fires employees who do not correct documentation problems. But, as a company spokesperson pointed out, that doesn’t help with cases of outright identity theft. This is at least the fourth round of raids and arrests on poultry plants since 2005.

No charges were filed against the company itself. On the other hand, yesterday’s arrests included the owner and 10 managers of a chain of Mexican restaurants located in four states (New York, Pennsylvania, Ohio and West Virginia), who were charged with employing illegal immigrants. Forty-five restaurant workers were also arrested on immigration charges.

30 people were arrested in a raid of a Houston doughnut factory. Many of the individuals who were arrested were housed in a company dormitory. No word yet on whether owners or managers of the factory will face criminal prosecution.

The article concluded with a report that a grand jury in Atlanta had indicted 10 people from employment agencies there for placing illegal aliens at locations in six states. The agencies were charged with developing a network to “recruit and exploit” illegal workers.

My previous posts on this topic include, “The Safe-Harbor Rule for No-Match Letters,” Parts 1, 2, and 3, as well as “Get the Jump on No-Match Letters and Suspicious Documents.” Those articles provide you with comprehensive explanations of what No-Match Letters are and how they can impact your business.

The moral of this story is that employers must be proactive in protecting themselves from this type of situation.

If you know or suspect that your workers are using false documents, don’t just sit on your hands and hope for the best. You should sign up for and start using E-Verify for new hires, and use the Social Security Number Verification System (SSNVS) provided by the Social Security Administration to find out the extent to which your current workers’ social security numbers and names do not match Social Security Administration records. Develop a policy for dealing with this issue, including terminating all employees (whether they “appear” to be illegal immigrants or not) who fail to straighten out no-match issues within a reasonable time.

Employers must tread carefully when creating a policy to avoid discrimination issues. Contact me if you’d like some help.

That’s right, March Madness is here. Again, it’s the the time of the year eagerly anticipated by college basketball fans. The entire college basketball season packed into 63 action-packed games.

And what does all of this frenzied excitement have to do with employers? Lots.

$3.7 billion lost to March Madness basketball?

First, there’s the cost. March Madness costs employers big bucks. It’s estimated that the average American employee spends 13.5 minutes per day surfing the web for college basketball updates, video, and betting forums. I’m sure there are some who would say that estimate is fairly low. But, at even 13.5 minutes per day, 58.5 million college basketball fans times the average American hourly wage equals $1.7 billion, spread out over the 16 basketball tournament days.

That’s right, $1.7 billion in 16 days.

Other Financial Costs
Lost productivity is obviously a monster-sized problem for employers. But that’s not the only cost incurred during the tournament season. With games being broadcast both live and recorded on the internet, employees don’t have to worry about the trouble of finding a television within viewing distance. Instead, they’ve got the whole world wide web of sports action at their fingertips. And, while productivity goes down, so does your network’s speed. It doesn’t take many employees watching live-streaming video to slow your system to a crawl.

Now, all of the employees who actually aren’t watching the games can’t do work, even if they wanted to.

Other Employer Considerations

Productivity issues require employers to make (or avoid) decisions about internet usage monitoring. But there are other issues, as well. For one, there’s the issue of the office pool. Is gambling at work illegal? Does it put employers at risk legally? Well, it is unlikely that your workplace will be surrounded by a SWAT team in an ambush attack on your illicit gambling ring over an office basketball pool.

Yet, employers should decide what exactly their position actually is. If an employer allows staff to participate in a pool, the company cannot take any of the funds from the pool. The ante should be small, $5 or less. And the pool must be strictly voluntary. Persons who have a religious objection to gambling, for example, should not be made to feel “left out” of the comraderie just because they declined to toss their $5 into the pot.

And there is another, broader legal implication. Someone set up the pool. Someone is collecting money from participants for the pool. Someone is monitoring the status of the pool. And, likely, everyone is e-mailing about the pool. Also likely is that all of this hard work and dedication (towards non-work activities) is happening during working time.

This is where it really doesn’t pay to be the nice guy, just this once. This is soliciting at work. Just like employees who sell their daughter’s Girl Scout cookies is soliciting. Just like asking for donations to a charity is soliciting. Just like an employee who hands out catalogues and ordering forrms for a “jewelry party” (the modern-day incarnation of the Tupperware party) she is hosting soliciting.

And just like union salters who try to plant the seeds for a union campaign is soliciting.

The reason employers have non-solictitation policies is to avoid all of the above. By permitting employees to solicit at work, even just this one time, you risk liability later when the union representative wants to solicit your employees to go union.

But There is an Up Side

Okay, okay. I know that I’ve painted such a grim picture of such a fun time but have faith. Here’s the upswing. Employers need to know about these risks and consciously decide how to handle each one. But, by “handling it,” I don’t necessarily mean firing everyone who participates in the pool or scans the web for the latest updates. There are more reasonable alternatives.

For example, get involved. Instead of being on the outside looking in trying to scope out the secret world of workplace spoots pools, companies can consider organizing the pools. Of course, this isn’t a free ticket to ignore the rules of the game, as discussed above. But you could put a positive spin on it.

Why not have a portion of the winnings go to a local charity. Maybe one that the company has a history of supporting. Or maybe the pool winner(s) get to decide. Or even assign charitable organizations to each team and, when that team wins, the charity wins.

Another example might be sanctioned viewing. If you are inclined to restrict internet access to sports websites, announce that the restrictions are lifted and employees are free to view the games at certain designated times.

If your workplace has televisions in conference rooms or the cafeteria, make it a company-sponsored social time. Sporting events are as much “team-building” as any nature hike or rock-climbing experience. At Young Conaway, I’m proud to say that we practice what we preach. On Monday evening, before the game, our firm hosts a now annual Alumni event. All of the former attorneys who have gone on to don a black robe, opened their own practice, or went off to any other adventure, are welcomed back to talk sports and law, and eveything in between, and, while they’re at it, to catch up with former colleagues. We have a tremendous turn-out for what has become a really great event.

So, the moral of the story is, make a decision, communicate the decision, and, whenever possible, include comraderie in the solution. It’s a win-win all around.

Some thoughts from others in the know:

The Baltimore Sun discusses the upside to March Madness and how employers can utilize the basketball season to bring employees together. See the full article here.

The HR Capitalist has some quick-witted insight on the unavoidability of March Madness at http://www.typepad.com/t/trackback/817654/27180064.

The N.Y. Times has an informative Q & A on the office pool here, which Representing Management discusses with a legal focus here.

The Beazley Source tackles the cost of March Madness to productivity and the bottom line here. CNN’s Money page does the same here.

Our friends at H.R. Hero were nice enough to select one of my articles for HR Line, their national e-zine. The e-zine is great . . . except that you can’t see it without a subscription. Don’t worry, I’m posting a copy of the original article below.