An Employment-Law Perspective on the Anthony Weiner Story

Anthony Weiner is in the headlines again. Last week, he told reporters that, since he left Congress in 2011, he’s sent salacious messages to numerous women, according to the NY Daily News. This latest revelation has caused quite the stir but Weiner says that he’ll stay in the race for Mayor of New York City.

The dialogue about whether Weiner should withdraw from the race is an interesting one. The conversation seems to focus on the nature of his “mistakes” and whether or not the public should care about the sexual endeavors of elected officials. Some say that private matters and personal affairs should not serve as qualifications for public office. But I think this argument mostly misses the point.

When making a hiring decision, good employers know that what matters is the candidate’s ability to perform the essential functions of the job. For example, an applicant’s race, religion, gender, disability, etc., should play no part in the decision because none of those characteristics have any relationship to the duties. If it doesn’t indicate the ability to perform the job, it shouldn’t matter.

So, how does this apply do Anthony Weiner? Well, many of his defenders argue that his sexual escapades are not indicative of his ability to perform the duties of mayor. And this may well be true.

But think of it like this. Weiner got into trouble the first time around because of certain conduct. He stepped away from the political spotlight but returned shortly thereafter, asking for forgiveness for his indiscretions. He told the voting public that he had recognized that his conduct was wrong and, at least implicitly, that he wouldn’t engage in the conduct again.

From an employment-law perspective, the nature of the conduct is irrelevant. What is relevant is that Weiner didn’t keep his promise to refrain from engaging in the conduct. It’s his apparent inability to learn from his mistakes, and the failure to keep his promise, that reflect on his suitability for the job-not the nature of the conduct itself.

Don’t Hate Me Because I’m Brilliant: Part II

You may recall our previous post about a young lawyer who sued his former employer. The lawyer, Gregory Berry, had sent an email to the firm’s partners, in which he stated, “it has become clear that I have as much experience and ability as an associate many years my senior, as much skill writing, and a superior legal mind to most I have met.” Not surprisingly, Mr. Berry’s arrogance was not well received, and he lost his job. He then sued his former employer, seeking over $75 million in damages.

Mr. Berry must have been stunned, then, when his lawsuit was dismissed earlier this week. The court dismissed the suit on the grounds that Mr. Berry had executed a valid release of his claims in exchange for a $27,000 severance payment. Consequently, his claims were barred. The court rejected Mr. Berry’s argument that he signed the “unconscionable” agreement under economic duress.

But this story isn’t over! In keeping with the self-aggrandizing attitude evident in Mr. Berry’s email, he left the Courtroom before the Judge had finished issuing her ruling. She has now ordered the parties to attend a hearing on January 24, for purposes of considering a contempt ruling against Mr. Berry, reports Above the Law.

So what is the lesson to be learned for employers? Well, I suppose there’s the idea that there’s no way to guarantee you won’t get sued. Despite the existence of a valid severance agreement and a substantial cash payent, the law firm still got hit with a lawsuit–and the aggravation and expense that goes with it. If there is a lesson here, it may be that you can never be too selective in your hiring decisions.

Keepin’ It In the (Blog) Family

Employers have more resources than ever when it comes to employment-related questions. The Internet is chock full of fantastic references for all things employment law. This blog was selected as one of the best in the country by the ABA Journal for the third time this year (thanks, ABA Journal!!), along with several other terrific employment-law blogs. There’s a connection between this blog and some of the other winners this year, though, that deserves my attention.

Young Conaway is a long-time member of the Employer’s Counsel Network (ECN). Through this affiliation, we publish our monthly Delaware Employment Law Letter (the only monthly newsletter for Delaware employers). The ECN’s presence in the blogosphere has multiplied in the past few years and I’m proud to say that 4 of us were selected as Top 100 blogs this year. In addition to the Delaware Employment Law Blog, the following three ECN members also were 2011 award winners (in alphabetical order):

Arizoneout is the newest addition to ECN’s blogging family. Written by Dinita James of Ford & Harrison, the blog’s focus is narrow but deep–with posts only about the medical marijuana law in Arizona. Dinita’s blog is sure to be a go-to resource for employers across the country who will be dealing with questions about managing card-carrying employees. I have a particular fondness for Dinita’s blog because, so she says, she was, in part, inspired to finally put pen to ink (or fingertips to keys) after hearing me and my fellow ECN bloggers talk about why we love blogging at an ECN meeting last year. Dinita tweets at @Arizoneout.

That’s What She Said is another blog written by Ford & Harrison lawyers. This blog is the longest-running among all of the ECN blogs. The blog makes the Top 100 each year but not in the employment category. Instead, it is listed in the Humor category–and for good reason. Posts track the TV sitcom, The Office. Each week, its authors comment on the various workplace missteps that the show’s characters make. They even give estimates of the costs of those missteps if the same facts were to occur in the real world, which surely would result in lots of litigation. The gang can be found on Twitter at @HRHero.

Work Matters is written by our friend, Mike Maslanka, in Dallas. Mike is a prolific writer and constant scholar, who always seems to find the deeper meaning of otherwise everyday events. Mike’s take on employment matters is almost holistic–he tends to analyze issues in a highly insightful way. Follow Mike on Twitter @worklawyer.

Although technically not a member of the ECN, Robin Shea’s Employment & Labor Insider is almost in the ECN family, since she and Mike Maslanka both are partners with Constangy Brooks & Smith. So maybe her blog is a blog-in-law of some sort. Either way, Robin, who practices in North Carolina, writes in a style that is very easy to read and as entertaining as it is practical. She’s been blogging since late 2010 and posts as frequently as ever. Follow her on Twitter @RobinEShea.

Although not in my ECN family, fellow Top 100 bloggers Dan Schwartz and Jon Hyman certainly are members of my blogging family. Dan, who writes the Connecticut Employment Law Blog, is one of true innovators in legal blogging. Jon somehow manages to generate an enormous amount of content on his Ohio Employer’s Law Blog. Each blogger also tweets like crazy. Follow them on Twitter at @danielschwartz and @jonhyman.

Eric Meyer also blogs more frequently than most and his new blog, The Employer Handbook, was honored as a Top 100 this year, as well. Follow him on Twitter at @Eric_B_Meyer.

Finally, there are two other winners this year, each of whom have made my Top 100 Employment Law Blogs list in past years. First, there’s FMLA Insights, written by Jeff Nowak of Chicago. For any employer with 50 or more employees, there is hardly a more relevant topic than the FMLA and the constant challenges that it presents. Follow Jeff on Twitter @JeffreySNowak.

Second, is Donna Ballman’s Screw You Guys I’m Going Home. For reasons that escape me, plaintiff’s employment lawyers are largely absent from the blogosphere. But, of the handful of quality blogs written for employees, perhaps none has a better name than Donna’s. You can follow her on Twitter @EmployeeAtty.

U.S. DOL Seeks New Employment-Law-Related Apps

Did you know that the U.S. Department of Labor is in the blogosphere? Well, it certainly is. The “official blog” of the DOL is named, “Work in Progress.” Catchy, isn’t it? And the social-media engagement doesn’t stop there. The DOL recently announced that it is sponsoring a contest to solicit employment- and employment-law-related apps.

Readers may recall the moment of shock and alarm they felt when we reported that the DOL had released its first timekeeping / FLSA-compliance app, designed for workers to log their time in a system other than the employer’s official timekeeping system.

The DOL’s recently announced contest may give readers a similar feeling. According to the DOL’s blog post announcing the contest, the intended users of the apps include those looking for work, “workers who want to improve their skills,” and “consumers who want to know that the businesses they use value safe, healthy, and fair workplaces.”

There are two DOL-sponsored app contests. The first DOL app challenge seeks an app that uses data from the Bureau of Labor Statistics “help people plan their education, find the skills they need, make informed decisions about potential career changes, know what to expect when the move to a new town, or negotiate better pay and benefits with employers.”

The second, called the “informAction app challenge” seeks apps to “showcase data from Occupational Safety and Health Administration (OSHA) and Wage and Hour Division (WHD).” Although this is even more vague than the first contest, the goal seems to be for “consumers and workers . . . to be able to view inspection and compliance information from the hotels, motels, restaurants and retail stores they shop at, and use it to take educated action.”

What publicly available wage-and-hour data is going to help consumers make more informed choices, I am not sure.

There’s a hefty cash prize for the winners but the deadline is short: September 14. If you’re a developer interested in taking on either of these government-sponsored app “challenges,” you can visit http://developer.dol.gov/ for more information.

If you’re an employer, you only can wait with eager anticipation to see what the next employment-law-related app will be.

EEOC Statistics Reveal Jump in Discrimination Charges

It should come as a surprise to no one that the recently-released charge statistics from the EEOC reveal a record-breaking number of charges of discrimination filed against employers in 2010. The continued bleak economy and resulting layoffs in 2009 and 2010 are the most obvious reasons for the increased charges.

The EEOC Chair has attributed the rise to other factors as well, including EEOC outreach efforts and changes in the ADA law.  Disability discrimination claims did take a bigger piece of the pie last year, rising from 23% of all claims filed in 2009, to 25.2% of all claims filed in 2010.

EEOC charges on the rise

Some other observations from the statistics:

There has been a lot of discussion/speculation that older Americans were hit worst by the layoffs. It is interesting that, while the overall number of age discrimination charges rose slightly, the percentage of the total number of charges that were based on age discrimination actually decreased from 2009 to 2010, from 24.4% to 23.3% of all charges filed.

The brand new Genetic Information Nondiscrimination Act (GINA), which went into effect at the end of 2009, resulted in 201 charges filed. I expect that the regulations, which were released at the very end of 2010, and continued publicity and awareness of the law, will result in significantly more charges filed in this area in 2011.

Retaliation claims (which can be based on exercising one’s right under any of the protected categories) for the first time surged past race discrimination claims, which were previously the highest percentage of charges filed. In 2010, retaliation claims accounted for 36.3% of all charges filed, and race charges 35.9%. At the Delaware Department of Labor, charges filed based on retaliation have exceeded other types of charges substantially for some time.  See 2009 Stats on Delaware Charges of Discrimination; and What the Charge Statistics Mean for Delaware Employers.

Looks like Delaware was ahead of the curve on this one.  They don’t call us the First State for nothing!

What does all this mean for employers? Brace yourselves. Charges filed in 2010 may well lead to lawsuits in 2011. Unfortunately, the time from termination to lawsuit can be a lengthy one. Although the economy may be on its way to recovery in 2011, employers may just be starting to see the lawsuits resulting from layoffs several years ago.

Top 100 Employment Law Blogs

For the third year in a row, I’m thrilled to submit to our readers what I consider to be the best of the best when it comes to employment law blogs.  Since this is the third year I’ve published this list, and practice does make perfect, I’ve imposed a few more rules this time around.  The “rules” and more details about those on this year’s list are found below but, first, . . . drumroll, please. . . the winners . . .

 

Group 1

1. Alaska Employment Law

2. Arkansas Employment Law

3. Connecticut Employment Law Blog

4. Daily Developments in EEO Law

5. Defending the Digital Workplace

6. Delaware Employment Law Blog

7. HR Lawyer’s Blog

8. Lawffice Space

9. New Jersey Employment Law

10. New York Public Personnel Law

11. Ohio Employer’s Law Blog

12. San Antonio Employment Law Blog

13. Strategic HR Lawyer

14. That’s What She Said

15. The Laconic Law Blog

16. Thoughts from a Management Lawyer (CA)

17. What’s New in Employment Law

18. Wisconsin Employment & Labor Law Blog

Group 2

19. Adjunct Law Prof.

20. Alabama Employment Law Report

21. All About Information

22. Atlanta Employment Lawyer Blog

23. California Wage Law

24. California Workforce Resource Blog

25. Canadian Privacy Law Blog (CA)

26. Charles A. Krugel

27. Colorado Employment Law Blog

28. Employment Law Matters

29. Employment Lawyer Blog

30. Fair Competition Law Blog

31. Florida Employment & Immigration Law Blog

32. Iowa Employment Law Blog

33. Juz the Fax

34. Legal Developments in Non-Compete Agreements

35. Maryland Employment Law Developments

36. New York Labor and Employment Law Report

37. Overtime Advisor

38. Pennsylvania Labor & Employment Law Blog

39. Smooth Transitions

40. Social Networking Law Blog

41. Tennessee Employment Lawyer Blog

42. Texas Employment Law Update

43. Texas Non-Compete Law Blog

44. Virginia Non-Compete Law Blog

45. Wage Law

46. Wait a Second! (2d Cir. Civil Rights)

47. Work Matters

48. World of Work

Group 3

49. Alabama HR Law

50. California Employment Law Report

51. Digital Workplace Blog

52. Doorey’s Workplace Law Blog (CA)

53. Drew Capuder’s Employment Law Blog

54. EBG Trade Secrets & Noncompete Blog

55. Employee Benefits Legal Blog

56. Employer Law Report

57. Employers Law Blog

58. Employment Essentials

59. Employment Law Bits

60. Employment Law Watch

61. Executive Counsel Blog

62. Fair Labor Standards Act Law

63. Federal Sector FMLA Blog

64. Florida Employment Law Blog

65. FMLA Law Blog

66. George’s Employment Blawg

67. Gruntled Employees

68. Healthcare Employment Counsel

69. Human Rights in the Workplace (CA)

70. Jottings By An Employment Lawyer

71. Labor & Employment Law Blog

72. Labor & Employment Law Blog

73. Labor Relations Counsel

74. LawMemo Employment Law

75. Manpower Employment Law Blog

76. Massachusetts Non-Compete Law Blog

77. Michigan Employment Law Connection

78. Minnesota Employment Law Blog

79. Nevada Employment Law Blog

80. New York Employment Lawyer Blog

81. OFCCP Blog Spot

82. Overtime Law Blog

83. Overtime Lawyer Blog

84. Prima Facie Law Blog

85. Privacy & Information Security Law Blog

86. Privacy Law Blog

87. Public Sector Law Blog

88. The FMLA Blog

89. The Proactive Employer

90. Trade Secret / Noncompete Blog

91. Trading Secrets

92. Transgender Workplace Diversity

93. Wage & Hour Coun
sel

94. Wage & Hour Defense Blog

95. Wage & Hour Development & Highlights

96. Wage & Hour Law Update

97. Washington DC Employment Law Update

98. Workplace Privacy Counsel

99. Workplace Prof Blog

100. Wyatt Employment Law Report

Up & Coming

101. Delaware Noncompete Law Blog

102. FLSA Cases

103. Hawaii Labor Law

104. Iowa Employer Law Blog

105. The Word on Employment Law Blog

*    *    *   *

Update (Dec. 20, 2010, 12:50 p.m.)

Thanks to the readers who noted some of the excellent blogs (current and up-and-coming), that I failed to include.  Be sure to add these to your feed reader, as well:

FMLA Insights, by Francezek Radelet

Labor Relations Today, by Seth Borden, @LRToday

The BELG Blog, by Hirsch Roberts Weinstein, LLP

Additions to the “Up & Coming” Group:

Castronovo & McKinney, LLC, Tom McKinney

Colorado Employer’s Law Blog, Jennifer at Ogeltree Deakins

*    *    *   *

The “Rules”

First, employee- and employer- side blogs were eligible, as they have been in the past.  And you’ll notice that some excellent employee–side blogs have made it into the list. 

Second, I did include Canadian blogs but made the standard a bit higher for our blogging brothers and sisters to the North so as to keep the list as U.S. focused as possible.

Third, and this was the hardest, I only included blogs that have posted in the last two months. There were some blogs that I really wanted to include that had not posted since the summer.  So, to be fair, I excluded them from the list–this year only, of course–they’re eligible now to be included next year. 

And, fourth, I only included blogs written by lawyers, legal professionals, or from a legal perspective.  Non-lawyer consultants account for less than 10 of the blogs on this year’s list and each of those write consistently on legal issues. 

The Importance of Sharing (i.e., What the “Groups” Mean)

This year, I also decided to take a stand on something that drives me slightly buggy–blogs without blogrolls.  I’ll be honest, I think it’s a little selfish.  Ok, so there, I said it.  I think it’s selfish for a blogger to ignore the community that is the blogosphere by not recognizing his or her fellow bloggers via a blogroll.  I do realize that the decision often belongs to the firm and not the individual blogger–some firms are reoffenders in this department–and so I don’t want to place all the blamed with just the blogger.  Which is why I didn’t make having a blogroll a criteria for inclusion.  Well, that, and I wouldn’t have even close to 100 blogs!

So, what you’ll see below is the list of the top 100 (plus a few), separated into 3 groups.  The first group includes blogs that have a blogroll that includes DELB.  The second group has a blogroll that, in my opinion, is missing one (namely, us!).  And the third group includes those blogs that, for whatever reason, don’t have a blogroll. 

And, one last thing.  I wanted the list to be as readable as possible but, at the same time, wanted to give readers the name of the blog author and firm and, where applicable, the author’s Twitter handle. But that was just too much information to put on a single (readable) page.  So, as a compromise, I’ve listed the name of the blogs below, which are hyperlinked to the blogs themselves.  Then, I’ve attached a spreadsheet (pdf) containing all of the data, including the blog name, author name (hyperlinked to their Twitter handle if available), and the firm name. 

Up & Coming

There are 4 blogs I that I thought worthy of mention but that have not been around long enough to make the official Top 100.  For those long-time readers of The Word on Employment Law, don’t be confused that I have that listed in this category.  Many of you may know that our beloved John Phillips, Jr., accepted an in-house counsel position earlier this year and that his former colleagues have stepped into the role of blogger at The Word.  So, although the blog itself is hardly new, without John’s voice, it is certain to be a different, albeit surely wonderful, blog.

Didn’t Make This Year’s List?

If you’re not on the list, don’t be shy–leave your blog’s info as a comment.  I’ll add it to my feed reader and hopefully add it to next year’s list. 

And One Last Thing. . .

image

If you haven’t already voted in this year’s ABA Journal’s Top 100 Blawgs, there’s still time left.  You’ll find all five of the honorees in the In Labor category, including Delaware Employment Law Blog, on the Top 100 Employment Law Blog list.

 

So be sure to jump over to the ABA Journal, register, and vote for your favorite–particularly if your favorite is us! 

Congratulations to all 100 of this year’s best employment law blogs!

1-800-UR-Wages: DOL’s Referral Program Sends Complainants Directly to Counsel

Do not pass go, do not have your claims investigated.  According to the new referral system from the U.S. DOL’s Wage and Hour Division (WHD), potential plaintiffs can go directly to legal counsel.  WHD, the agency responsible for enforcing the Fair Labor Standards Act (FLSA) has announced that it is undertaking a new attorney-referral initiative with the American Bar Association. In what is a jolting move to many, WHD has announced that it will begin referring certain cases to private attorneys instead of investigating those claims. Multicolor Rotary Phones

According to the WHD’s website, the new “referral” program is intended to provide legal access to all employees who seek the WHD’s assistance.  WHD is inundated with claims–according to the site, WHD receives more than 35,000 contacts from employees each year alleging wage and hour violations. Despite hiring 350 new investigators, WHD is unable to pursue all of the claims filed.

Under this new initiative, an employee who claim is not pursued by WHD will be given a toll-free number to contact the ABA-Approved Attorney Referral System. The referral system will provide employees with listings for local labor attorneys who have experience with FLSA and FMLA cases. The employee may then contact the attorneys and file a private lawsuit. If the employee elects to retain an attorney, the attorney will be given special access to the WHD’s determination and relevant documents. What types of documents will be provided remains to be seen.

Employers should note that this is not a guarantee of representation. Although this referral system increases the chances that meritorious claims will be pursued, attorneys may still be relied upon to decline weak cases. The WHD’s decision to release documents prompted some attorneys to suggest that employers seek legal representation before responding to inquiries by the WHD. We would likely agree.  If the Department of Labor is going to provide a toll-free number to potential plaintiffs instead of providing a fair and impartial determination of the claims, any potential benefits for employers of having a government-funded investigatory agency seems to be lost entirely.

This post was written by Lauren Moak and edited by Molly DiBianca.  As with all blog posts, none of the opinions expressed herein are those of the writer’s or editor’s employer, clients, or other attorneys with whom they work.