abalelconfI admit it. Misleading headline.

It won’t be EVERYTHING else. But….there were a few other nuggets from the ABA Labor & Employment Annual Conference last week that are worth sharing. For prior posts on the subject, go here and here.

  • At one of the programs, an EEOC attorney suggested that no re-hire clauses in separation agreements may be unlawful. Philip Miles — who I co-presented with at one of the conference programs — has a full recap on his site but the gist is that such a position is unsupported. As Philip posted, “The EEOC attorney’s position was not well-received at the conference, and she acknowledged that zero case law supports the position. One audience member “politely” suggested that if they couldn’t find a single court to side with them in 50+ years, perhaps it was time to move on. The EEOC attorney responded that the agency often seeks to move the law and alter the status quo.”
  • At a program on wellness plans, the speakers highlighted a new development this month — proposed regulations from the EEOC to encompass such plans. As Jon Hyman recapped on his blog, “[T]he EEOC announced that it plans to amend its regulations to the Genetic Information Nondiscrimination Act to permit employees to provide health information about their spouses in exchange for certain financial and other incentives as part of employer wellness programs.”  Employers who use these plans should be particularly mindful that new regulations are on their way.
  • The Wall Street Journal finally got around to writing about the delays in overtime regulation revisions — days after I first reported it. NBC News also picked up on it and quoted me.
  • The EEOC is also in the news for its continuing press on systematic cases. EEOC Chair Jenny Yang said at the conference that the agency had been “transformed” with, as Bloomberg BNA reports, “markedly more agency investigations and litigation aimed at employer policies and practices that operate on a company-wide, industry-wide or nationwide basis.”
  • dinicsThe FMLA continues to be a challenge for employers to enforce properly. At one session, speaker Jeff Novak gave a helpful tip when you outsource FMLA to a 3rd party administrator. Look at their forms to ensure they comply with DOL regs.
  • And finally, Reading Terminal Market has to be one of the best food sites in the country. I would highly recommend getting the roast pork sandwich at DiNic’s. It may not be kosher, but it’s definitely a treat. Don’t forget to add some sharp provolone and broccoli rabe to it. Delish.

A few years back, I had the opportunity to meet Allison West at a conference out in California.  She runs Employment Practices Specialists and does workplace investigations. (She’s also a terrific speaker and I’d highly recommend you go to a session where she is speaking.)

She recently let me know about an Association of Workplace Investigators institute that is coming to Connecticut for the first time in May of this year.  I asked her a few questions about it via e-mail and have edited that conversation here for those that have an interest in the subject.

So Allison, what exactly is the Association of Workplace Investigators? 

Allison: AWI is the premier organization in the nation dedicated to promoting and enhancing the quality of impartial workplace investigations. Its members include professionals from around the country who conduct workplace investigations.

Before I ask about the institute, can you share your thoughts about why companies should hire an outside investigator and in what circumstances?

Allison: Sure.  The law of workplace investigations is evolving and courts and agencies around the country have made it absolutely clear that employers have a legal obligation to conduct prompt, thorough and effective investigations when certain allegations of wrongdoing in the workplace arise.

One of the essential elements of an effective investigation is an impartial investigator.

Sometimes, investigations should be handled internally.

But there are times when it is critically important to bring in an outside investigator.

For example, say an employee makes allegations of harassment by the employer’s top executive. It will be difficult for an HR manager, who ultimately reports up to that top executive, to be (and, just as importantly, to appear to be) impartial and unbiased.

Can you provide some common mistakes you see from companies and its investigators when conducting an investigation?

Allison: We see a lot of mistakes, and they can be quite costly for employers.

One of the most common mistakes is the perceived or actual impartiality or bias of the investigator. Engaging someone who has skin in the game, so to speak, can render even a well-conducted investigation suspect.

Another mistake is a lack of thoroughness. Investigators will sometimes look at some of the evidence, or speak to some of the witnesses, but miss critical pieces. For an investigation to pass legal muster, it needs to account for all of the allegations and the evidence related to them.

Finally, another serious mistake we often see is the investigator doesn’t assess credibility. This is a crucial element in order to effectively reaching findings. Investigators must assess the credibility regarding motive, plausibility of the testimony, corroboration and other factors. Without assessing credibility, the investigator puts his or her own credibility at risk.

Happy to see that Connecticut will host the next institute. Can you tell us a little more about it? Is it open and how do people join?

Allison: You’re right, Dan. AWI is holding its first Institute outside of California for workplace investigators on May 4-8, 2015 in Mystic, Connecticut.

Personally, I think this week-long program is one of the most comprehensive trainings available for workplace investigators. We’ve got a nationally-recognized expert faculty and gold standard curriculum, so this program will provide attendees with a solid foundation and confidence they need to effectively conduct workplace investigations.

As to who should attend, I’d say: New and seasoned investigators; Attorneys, HR professionals, private investigators, security; Professionals from private and public sectors; Internal employee investigators of organizations; Outside, third-party investigators.

The program limit is 60 students, and we’re nearly half-full already.  Each previous Institute sold out close to the early registration deadline. That deadline is actually next week — on January 15th! You can get more information and register for the Institute on the AWI website.

People can contact AWI with any questions they might have at admin@aowi.org.

Thanks Allison for sharing the information. Sounds like an interesting program close to home. 


Last month, I wrote about the Home Depot credit card data breach and the importance of protecting company data.  But the issue of protecting employee data is far from new.

Back in 2011, one legal publication had this to say about employee data:

Employers collect a substantial amount of personal information about their employees. Companies need to be aware of their obligations under the profusion of data protection laws and regulations that govern the collection, use and transfer of personal information. This is an especially daunting task for companies that have operations subject to the laws of multiple jurisdictions, as requirements vary widely from country to country and even from state to state. …

Companies use employees’ personal information for a variety of purposes—from evaluating applicants during the hiring process to administering payroll and employee benefit plans to managing separation and other post-employment benefits. And as more employers adopt enterprise-level information management systems and outsource certain human resources administration functions, increasing amounts of personal data is being transferred and shared within and between organizations. Maintaining compliance with applicable data privacy laws is a responsibility employers cannot afford to overlook.

I couldn’t say it better myself.  But don’t take my word for it. There are a whole host of experts coming to speak later this month at a Data Privacy and Cybersecurity Summit that I’ve been planning.  People from companies like ESPN, UTC and GE. And respected government officials from the Connecticut Attorney General’s office and the FBI.

The summit is co-sponsored by my law firm, Shipman & Goodwin LLP and the Connecticut chapter of SHRM.  It is scheduled for October 16th at the Crowne Plaza in Cromwell, CT. You can register for it here. Don’t miss out.

First off, I should let you know that I am a poor substitute for Harrison Ford.

But, don’t let that dissuade you from saving October 16th as the date for a terrific conference that I’m helping to plan.  The title is “Raiders of the Data Ark” and the subject is “2014 Data Privacy & Cyber Security Summit: Practical Tips and Legal Risks for Connecticut Companies”.

It will be held at the Crowne Plaza in Cromwell from 8a-2p and will include breakfast, lunch, and several hours of notable speakers.

The conference, which is being run by both Shipman & Goodwin (my firm) and the Connecticut chapter of SHRM, is designed for operations personnel, in-house counsel, human resources personnel, general managers, finance managers and anyone else interested in solution-oriented approaches to the topic.

Registration will be up soon, so for now, just save the date and watch this space for more information!

For many years, employers set up firewalls at work that prevented employees from going to certain websites.

Didn’t want your employees shopping at Amazon? Block the site.

Didn’t want your employees posting updates at Facebook? Block the site.

But here’s the reality: Smartphones have made those firewalls meaningless.  Information, as I’ve said before, wants to be free.  Employers who attempt to block social media usage are merely putting fingers into the proverbial bursting dam.    Whether you recognize it or not, there’s a massive waterfall of information that is now flowing.

Am I suggesting employers give up? Hardly.  But there needs to be an acknowledgment by employers that social media and technology will continue to infiltrate our workplaces in ways we haven’t even begun to think about.  We need to think about a world where such usage is considered the norm.  How do we rebuild a workplace that is cognizant of these changes and also protects both the core values of the business and the secrets that your company has that allow it to have a competitive advantage in the marketplace?

On October 25th, I’m going to discuss these concepts further as part of a larger presentation my firm is giving on labor & employment law. The session that I will help lead is entitled, “Are You Ready for Instagram, Vine and All the Latest That Social Media Brings Into the Workplace?”

In the presentation, we’ll cover social media policy but also how employers need to address the evolving world of social media.  Ever hear of sites like Whisper or Snapchat? And what do you do when employees take their converations off of your servers and onto instant messaging apps?

Overall, we will address the latest developments in employment law and social media, and provide guidance to employers on dealing with this shifting landscape.  Download a brochure here.

Registration is free, but is done on a first-come, first-served basis.  So be sure to sign up before it fills up.

See you later this month.

The American Bar Association’s Labor & Employment Law Annual Conference is going on right now in Atlanta, Georgia.  As I’ve recapped on this blog before (here, for example), there are some terrific programs and educational opportunities there. 

I wasn’t able to make it down this year, but due to the wonders of technology, I’ve been able to get a lot of the benefits of it without being there.

Why? Two reasons, which I hope you’ll find useful too.

First, and most importantly, all of the conference materials are available online. For free.  And to top it off, no ABA membership is required. 

It’s a great service and one that you ought to take advantage of. Why? Because there are some very good papers that you can download.  Here are some highlights:

These are terrific resources for the in-house lawyer in particular but human resources personnel may get a lot out of it as well.

Second, I also have been following the conference along on Twitter. How so? By doing a search for a hashtag (or keyword).  Do a search for “#abalel” and you will find dozens of tweets about things going on in the conference. You can also follow the ABA Labor & Employment Law Section at @abalel. 


Next week, I’ll be speaking at the HR Compliance Conference in San Francisco on “Hiring Without Headaches: Ten Things You Need To Know About Hiring in the 21st Centry“.  It’s not too late to join us and I hope, if you read this blog, that you’ll say hi when I’m out there. 

The program description is as follows:

The days of picking the right candidate based on the color she used to print her resume are over. In its place: A hyperconnected world where information (and, in many cases, too much information) is just a Google search away. But what are the limits on using online information for searches and are Facebook pages of candidates becoming off-limits for employers? In this session, attorney Daniel Schwartz will highlight the latest legal risks and developments in the area and provide you with the best practices to using technology to find the best candidate.

But here’s a little secret: Despite all the new notions, the fact remains that most of our laws are rooted in 20th century principles.  In other words, while there may be some new issues (like asking for Facebook passwords) in play, we can’t rule out some of the existing rules of the road. 

The Fair Credit Reporting Act is a prime example.  Even that law is subject to new twists; in fact, employers need to update their FCRA notices by January 1, 2013 with some fairly minor revisions. 

What else should employers be worrying about? I’ll relay more next week at the Conference. Hope to see you there.

This afternoon, I’m speaking at Workforce HR’s Techweek Conference on “Going Mobile”.  It’s not too late to join us here as it is an online conference.

Oh, and did I mention that it’s FREE.  There, got your attention.

One of the topics that I’ll be talking on is the legal risks involved with “going mobile” for employers.  I’ve tackled the subject in several posts throughout the years but the one that keeps popping up time and again is the wage & hour issue.

A piece I quoted in 2009 remains applicable today (except that smartphones have replaced “PDA” as the preferred word of choice):

After-hours PDA use increases an employer’s exposure for overtime and record-keeping liabilities, as well as the possibility that nonexempt employees will not be properly compensated for all time actually worked in violation of the FLSA and state wage laws. The practices and policies that many employers currently have in place for after hours work may no longer “fit” today’s PDA environment.

Employers must reexamine their current policies and procedures and revise them to reflect PDA usage. They must also reexamine their employees’ exempt versus nonexempt status. Once appropriate policies governing PDA usage are in place, they must be adequately communicated to employees and then enforced. Policy violators should be subjected to appropriate discipline. Following these steps should limit the risks PDAs pose to employers under the sate and federal wage laws.

No doubt that many employers are still oblivious to this and require non-exempt employees to “check e-mail” while at home without compensation.

What else might be risky for employers? Listen in and hear from several HR experts as well.

A confession.

I’m a little tired about writing about social media and labor law.  Perhaps you are a little tired about reading about it too.

Unfortunately for us both, expect a lot more about it over the next years because the National Labor Relations Board has social media in its sights and its not letting go anytime soon.

Why am I so confident? Because of what I heard repeatedly at the ABA’s 5th Annual Labor & Employment Law Conference in Seattle earlier this month.  Speaker after speaker — including members of the NLRB’s leadership — all indicated that this was an area of undisputed focus for the NLRB.

This is important for two reasons: First, the NLRB takes the position that it can enforce its laws against unionized employers and non-unionized ones too. Thus, an active NLRB is something that all employers need to be concerned about.

Second, the NLRB is going after policies not just actions.  In other words, even if the employer is otherwise complying with the law, it may bring actions against employers who have over broad policies that restrict an employee’s right to engaged in protected concerted activities.  Of course, the NLRB hasn’t said exactly what language in a policy WILL pass muster so its up to employers to seek legal advice to figure out if their policies are over broad.

But all hope is not lost for employers. One case highlighted by the speakers was decided in the employer’s favor last month.  The case involved in a Chicago-area BMW dealer that fired an employee over his Facebook post. But the uncertainty that surrounds this area will continue for some time.

As another speaker joked at the meeting, that may mean lots of work for employment lawyers for myself. But its bad news for employers who just want some certainty.

If you’d like some resource materials, the ABA has posted some sessions online here. I would strongly recommend the program entitled:  “Using the Control Key—How Far Can and Should Employer Social Media Policies Go.”  Good stuff.


UPDATE: The Conference has been postponed until Fall 2011.  

I’m looking forward to next week’s BizBuzz Social Media Conference at the Connecticut Convention Center. I’ll be speaking on the "CEOs Who Blog" panel discussing this blog along with some tips to companies who are considering jumping into the social media scene.

For those unfamiliar with BizBuzz, it is a full-day event that will explore the impact social media has on marketing, advertising and public relations as well as the latest tools to engage the public. Participants will learn how to use social media for marketing, customer service, and public relations. There will be three tracks available for conference participants: Nuts and Bolts, Marketing, and Business Management. The event will be held at the Connecticut Convention Center in Hartford from 8:00 am to 5:00 pm

If you’re going, stop by the panel and please feel free to introduce yourself.  They’re expecting over 500 attendees.