September 2010 Archives

September 25, 2010

Facebook makes a damn fine litigation tool

carnac_2D00_756908.jpg

I am not related to Carnac the Magnificent.

Several months ago, when I posted How Facebook Can Make or Break Your Case, I offered a series of tips about how attorneys representing companies can use Facebook to sleuth out some A-1 information about employee-plaintiffs.


Continue reading "Facebook makes a damn fine litigation tool" »

September 18, 2010

What happened to our healthcare Flexible Spending Accounts?

In March of this year, I finally wised up and opened a health care Flexible Spending Account (FSA) through my job.

Continue reading "What happened to our healthcare Flexible Spending Accounts?" »

September 17, 2010

Facebook Posts Cost School Superintendent His Job

At the Connecticut Employment Law Blog, Daniel Schwartz wrote a two-part piece about a Connecticut school superintendent who was forced to resign after making some lighthearted remarks on Facebook. The comment that appears to have gotten the superintendent in the most trouble was this one referring to a personnel matter:

(After the jump...)

Continue reading "Facebook Posts Cost School Superintendent His Job" »

September 17, 2010

New Jersey: No Adverse Employment Action Required for a Failure to Accommodate Disability Claim

There are plenty of good reasons that plaintiff's lawyers heart the New Jersey Law Against Discrimination (NJLAD). It has a wide scope of coverage for employees with disabilities. It's remedial purposes are incredibly broad. A plaintiff can go directly to court with a claim under the NJLAD without vetting it with a state administrative agency first. A plaintiff can stay out of federal court where the odds of losing on an employment discrimination case on summary judgment are much higher than they are in state court.

As if the plaintiff's bar didn't need any further reasons to love the NJLAD.

Well, here's one more...

Continue reading "New Jersey: No Adverse Employment Action Required for a Failure to Accommodate Disability Claim" »

September 13, 2010

Unions can hang banners (slow news day)

I'll admit it. Posts about union protests are boring. It's true.

So I pick and choose my moments. Like the time I wrote about a union and its 10-foot inflatable rat. That was interesting quirky somewhat eventful.

Hmmm....

Continue reading "Unions can hang banners (slow news day)" »

September 12, 2010

Should employers monitor Facebook use of second-chance offenders?

A few weeks ago, I came across an article by Terrence O'Brien on switched.com, "Facebook 'Subscribe to' Feature Lets You Follow Your Friend's Every Move."

Facebook is testing a new feature that lets you subscribe to a specific user's content. In practice, this means receiving a notification every time that user updates their status, posts a new photo, link, video or note, and Mashable aptly dubs it the 'Stalker Button.' Taken at face value, this would appear to be a direct answer to the ability to "follow" a user on Twitter...

after the jump...

Continue reading "Should employers monitor Facebook use of second-chance offenders?" »

September 12, 2010

A wake-up call to employers who raise vanilla affirmative defenses

Over at Texas Lawyer, Mike Maslanka has a short, but very important post about a recent case out of the United States District Court for the Eastern District of Virginia.

In Francisco v. Verizon South, Inc., 2010 U.S. Dist. LEXIS 77083, the court sustained a plaintiff's motion to strike affirmative defenses that an employer-defendant raised because the defenses failed to meet the federal pleading standard enunciated by the Supreme Court in Bell Atlantic Corp. v. Twombley and Ashcroft v. Iqbal. In all, the court struck ten affirmative defenses:


Continue reading "A wake-up call to employers who raise vanilla affirmative defenses" »

September 12, 2010

Is it sexual harassment if a visitor masturbates in the office?

So far, I love Justia.  Not only have they designed and set me up with The Employer Handbook, but every week I get an email from them suggesting labor and employment law stories that would make great blog posts.

Its storybook time, folks. Let's read the juicy complaint together after the jump

Continue reading "Is it sexual harassment if a visitor masturbates in the office?" »

September 11, 2010

5 ways for Pennsylvania employers to prevent workplace violence

I remember about a month ago reading a post on Daniel Schwartz's Connecticut Employment Law Blog about a shooting involving a Connecticut employer. Actually, at the time, I only skimmed the article. Nine dead. Tragic event. But it happened several hundred miles away.

Thumbnail image for sw.jpg

On September 9, in Northeast Philly, my backyard, an employee who claimed she was fed up with years of constant harassment from neighbors and co-workers, returned to work after her shift had ended clutching a .357 magnum. According to a news report from Philly.com, she pointed the gun at two unarmed security guards -- the employer had already taken some precautions against a potential episode of workplace violence -- and ordered them to the gate. After the guards allowed the armed employee to enter, she went to a break room where she found four employees. After ordering one to leave, the disgruntled employee opened fire on the other three. Two died at the scene. One is in critical condition

I offer five preventative solutions after the jump...

Continue reading "5 ways for Pennsylvania employers to prevent workplace violence" »

September 9, 2010

Massachusetts is cuckoo, but I still love the Red Sox

Note: This article has nothing to do with the Red Sox. Nothing at all. Just Massachusetts. And Massachusetts employment law at that. It's ok, though. Still worth a read IMHO. Good advice for my PA, NJ, and DE readers.

I was checking out Jay Shepherd's great employment blog Gruntled Employees -- get it? "gruntled" ... as in the opposite of disgruntled ... yeah, anyway -- and I came across a recent post about how the Commonwealth of Massachusetts has adopted a new law requiring companies to notify employees about any potentially negative information added to their personnel files.

Hear me out. I'm on a roll with this...after the jump.

Continue reading "Massachusetts is cuckoo, but I still love the Red Sox" »

September 8, 2010

How Facebook Can Make Or Break Your Case

Facebook has over 400 million active users.

Twitter users are, in total, tweeting an average of 55 million tweets a day.

If an employee files suit against your client, what are the odds the employee uses social media? I'd say they're pretty good.

Continue reading "How Facebook Can Make Or Break Your Case" »

September 8, 2010

In PA, NJ, and DE, when does religious expression take a backseat to workplace safety?

Your employee wears a head-covering. The employee's head-covering is part of her religious practice.

You're not one to interfere with an employee's religious expressions, but you're concerned that this head-covering creates a safety risk for both the employee and others. And maybe you run a prison and the head-covering could be used to smuggle in contraband.

After jump, I have some practice tips for you.

Continue reading "In PA, NJ, and DE, when does religious expression take a backseat to workplace safety?" »

September 7, 2010

Gary Oldman Would Have Trouble Landing A Security Job

Quick! Name three people with dreadlocks.

Easy.

    1. Gary Oldman as Drexl Spivey in "True Romance"
    2. Jon Favreau as Gutter in "PCU"
    3. Bob Marley

Of the three, how many practice the Rastafarian religion?

How the hell does this relate to employment law..let alone a security job? Find out after the jump...

* * *

Continue reading "Gary Oldman Would Have Trouble Landing A Security Job" »

September 7, 2010

Another Juror Who Can't Resist Facebook's Siren Song

This is a labor and employment law blog. From time-to-time -- ok, a LOT -- I'll post about social media policies and employee use of social media. A juror making a Facebook post during a trial has nothing to do with labor and employment law. However, I'm a sucker for these stories. So you'll just have to suffer through it.

Continue reading "Another Juror Who Can't Resist Facebook's Siren Song" »

September 7, 2010

Third Circuit Employment Law 101: Who Does The FMLA Cover?

My blog designers told me that if I want to build SEO -- that's Search Engine Optimization to you rookies -- I'd better write about employment law issues affecting Pennsylvania, New Jersey and Delaware (duh!) and "optimize" my blog post titles with the keywords near the front.

Learn more about which employees are covered after the jump.

Continue reading "Third Circuit Employment Law 101: Who Does The FMLA Cover?" »

September 7, 2010

Third Circuit Employment Law 101: Constructive Discharge

In some cases, a plaintiff will argue as part of his Title VII discrimination action that his former employer didn't fire him. But rather he was constructively discharged. That's fancy speak for being forced to resign.

Continue reading "Third Circuit Employment Law 101: Constructive Discharge" »

September 7, 2010

Third Circuit Employment Law 101: Quid Pro Quo Harassment

Robert Rank-And-File, an employee of Pennsylvania-New Jersey-Delaware, Inc., claims that Sally Supervisor told him, "Sleep with me, or you're fired!" Robert declines Sally's advances only to have Sally fire him. If Robert decides to pursue an action under Title VII against Pennsylvania-New Jersey-Delaware, Inc., how can he prevail at trial?

Continue reading "Third Circuit Employment Law 101: Quid Pro Quo Harassment" »

September 7, 2010

Third Circuit Employment Law 101: ADA Mixed-Motive Disparate Impact Claims

Look what just arrived in today's mail. It's a charge of discrimination from the United States Equal Employment Opportunity Commission. Looks like Robert Rank-And-File -- the guy Pennsylvania-New Jersey-Delaware, Inc. fired from data entry -- alleges that the company terminated him because he's disabled.

I'll show you after the jump.

Continue reading "Third Circuit Employment Law 101: ADA Mixed-Motive Disparate Impact Claims" »

September 7, 2010

Third Circuit Employment Law 101: ADA Defenses - Direct Threat

Can an employer terminate a disabled employee because accommodating the employee would create a significant risk of substantial harm to the employee or others in the workplace?

Continue reading "Third Circuit Employment Law 101: ADA Defenses - Direct Threat" »

September 7, 2010

Third Circuit Employment Law 101: What is a Bona Fide Occupational Qualification?

Ever been to a Gentlemen's Club?

(Pause...)

(Wait for it...)

Me neither. But I hear that dancers tend to have a few physical characteristics in common. Or how about a Chinese restaurant? Ever notice that the employees are all...Chinese? Is that why my job applications always end up in the circular file?

Ladies and gentlemen. After the jump, may I present to you: the BFOQ.

Continue reading "Third Circuit Employment Law 101: What is a Bona Fide Occupational Qualification?" »

September 7, 2010

Third Circuit Employment Law 101: "Regarded as" Disabled under the ADA

The are two classes of plaintiffs who may assert claims under the Americans with Disabilities Act:

  1. Those who have a "disability"; and
  2. Those who not have a disability but who, nonetheless, are "regarded as" disabled by their employer.
We know that a disability is an actual impairment that substantially limits one or more major life activities. But "regarded as" disabled? What's up with that?!?

Continue reading "Third Circuit Employment Law 101: "Regarded as" Disabled under the ADA" »

September 7, 2010

Third Circuit Employment Law 101: Title VII Liability for Non-Supervisors

Our old buddy Robert Rank-And-File from Pennsylvania-New Jersey-Delaware, Inc. is having problems at work again. This time, however, the culprit is not Sally Supervisor. It's Lisa Leadperson.

What is your company's potential exposure here? Find out after the jump.

Continue reading "Third Circuit Employment Law 101: Title VII Liability for Non-Supervisors" »

September 7, 2010

Third Circuit Employment Law 101: Failure to Rehire as an Adverse Employment Action

Did you know that in Pennsylvania, New Jersey and Delaware, under Title VII, an employer that fails to renew an employment contract or "at will" employment arrangement violates Title VII if the reasons for the employment action violate Title VII (e.g., are on the basis of a protected class)? It's true.

Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315, 320 (3d Cir. 2008).

September 7, 2010

Third Circuit Employment Law 101: Title VII and ADA Damages

As some of you know, I serve as a pro bono mediator for the United States Equal Employment Opportunity Commission. Even though I've only been at it for about year, I'm starting to see the same faces. Most of the attorneys know the EEOC-enforced discrimination laws like the back of their hand -- some even put me to shame. Others, not so much.

So, allow me to break those down for you after the jump.

Continue reading "Third Circuit Employment Law 101: Title VII and ADA Damages" »

September 7, 2010

Third Circuit Employment Law 101: ADA Reasonable Accommodation

It's Monday morning. Johnny Lifts-A-Lot, an employee of Pennsylvania-New Jersey-Delaware, Inc. tells his manager that he's going in for minor back surgery in a week and will have trouble lifting heavy objects for the foreseeable future thereafter. What are Pennsylvania-New Jersey-Delaware, Inc.'s obligations under the Americans with Disabilities Act? Find out after the jump.

Continue reading "Third Circuit Employment Law 101: ADA Reasonable Accommodation" »