June 2011 Archives

June 30, 2011

Philadelphia's Mayor vetoes a proposed mandatory-sick-pay bill

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Yesterday afternoon, in a letter to City Council, Mayor Michael Nutter vetoed the "Promoting Healthy Families and Workplaces" bill. This bill, discussed in a previous blog post, would have required businesses to provide paid sick leave to employees who work a minimum number of hours in Philadelphia County.

On June 16, City Council passed a watered-down version of the bill by a razor-thin 9-8 vote. 

Here is a copy of the amended bill. 

Here is a copy of the old version. 

Here is a comparison of the new bill to the old bill.

It will take a 2/3rds majority to override the veto. So, 3 nays will have to become ayes. Otherwise, we will have to wait to see what happens when new City Council members are seated in 2012.

June 29, 2011

Legislation introduced to expand FMLA coverage in PA

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The Family and Medical Leave Act (FMLA), a federal law, entitles eligible employees of covered employers to take up to twelve workweeks of unpaid, job-protected leave in a 12-month period for:

  • the birth of a child and to care for the newborn child within one year of birth;
  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • to care for the employee's spouse, child, or parent who has a serious health condition; and
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job.

Last week, House Bill No. 1713, otherwise known as the Pennsylvania Family and Medical Leave Act, was introduced and referred to the House Committee on Labor and Industry.

How might this bill impact Pennsylvania's already FMLA-qualifying employers? Find out after jump.

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Continue reading "Legislation introduced to expand FMLA coverage in PA" »

June 28, 2011

Could the Beastie Boys collect overtime pay in Pennsylvania?

If Cochese and Bobby, "The Rookie" were working mall security in Pennsylvania, would their employer have to pay them for the time they spend keeping those uniforms looking 80s-spiffy? If it were up to one Pennsylvania federal court, they would be SOL.

You'll see what I mean once you hit the jump...

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Continue reading "Could the Beastie Boys collect overtime pay in Pennsylvania?" »

June 27, 2011

Last call! Bloggers wanted for the "Employment Law Blog Carnival"

Wouldn't it be nice if you could find a single online resource with links to a slew of topical blog posts about a particular topic or area -- say, employment law? Well, I have a solution. But I need your help...to create a blog carnival.

What is a blog carnival, you ask? It is all explained here. In a nutshell, here's how it will work:

Carnivalphoto © 2010 Paul Newtron | more info (via: Wylio)
  1. To get things started, bloggers submit employment-law-related blog posts to me.
  2. I will aggregate them into a single blog post on The Employer Handbook. (If I'm feeling ambitious, I may created a themed blog post. If I were hosting an HR blog carnival, it would look something like this).
  3. The carnival would occur on a regular schedule, monthly/biweekly/weekly, and the carnival hosts change after each event (i.e., one of you would host the next carnival).

So, if you are interested in writing or hosting the Employment Law Blog Carnival, leave a comment below or use the buttons on the right to drop me a line.

June 24, 2011

Can a bridge worker with a fear of heights have a viable ADA claim?


Today, I get to sleep in because The Employer Handbook has a guest blogger. It's Andrew Kim, a summer associate at Dilworth Paxson LLP:

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Some people have no problem with heights (as seen above). But Darrell Miller, a bridge worker, had acrophobia (a.k.a. the fear of heights). In fact, Mr. Miller had suffered a panic attack due to that very fear while working on the bridge crew for the Illinois Department of Transportation (IDOT). He then sought a reasonable accommodation so that he wouldn't have to work on big bridges. IDOT refused. Did it violate the Americans with Disabilities Act?

Find out after the jump . . .

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Continue reading "Can a bridge worker with a fear of heights have a viable ADA claim?" »

June 23, 2011

EEOC buzz: deliberate discrimination against job seekers

_1070717photo © 2011 Mark Ou | more info (via: Wylio)Yesterday, the EEOC held a meeting to discuss what it deems a "major national problem"; namely, deliberate discrimination against job seekers based on their race, sex, age, national origin or other prohibited basis.

After the jump, I'll summarize the meeting and offer some tips for employers to help them stay off of the EEOC's radar.

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Continue reading "EEOC buzz: deliberate discrimination against job seekers" »

June 22, 2011

BEWARE EMPLOYERS: Overhauled union-election rules may be near

Solitudephoto © 2011 Mortimer62 | more info (via: Wylio)The National Labor Relations Board (NLRB) has proposed amendments to its existing rules and regulations that will vastly change the way union-elections are conducted. The NLRB spin on these amendments is that they will "reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing."

Is this a good thing or a bad thing for employers? I'll detail the proposed changes, after the jump.

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Continue reading "BEWARE EMPLOYERS: Overhauled union-election rules may be near" »

June 21, 2011

What Wal-Mart's High Court win means for employers, large and small

As reported on this blog yesterday, as well as in a gazillion other news outlets -- but probably here first firstish -- the U.S. Supreme Court has overturned certification of a potential class of 1.5 million current and former female employees seeking relief against Wal-Mart for alleged gender discrimination.

After the jump, a break down of the Opinion and what it means for employers, big and small.

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Continue reading "What Wal-Mart's High Court win means for employers, large and small" »

June 20, 2011

BREAKING: Supreme Court reverses Wal-Mart v. Dukes class action

Thumbnail image for Supreme Court.jpgThe United States Supreme Court has just overturned a Ninth Circuit decision that would have allowed 1.5 million female employees to pursue a class-action gender discrimination lawsuit against Wal-Mart Stores, Inc. You can read a copy of the Supreme Court's opinion here.

I'll have more on this decision tomorrow at The Employer Handbook.

June 20, 2011

$1,000 fine per day for not posting notice of harassment verdict


There once was an employer in Racine.
With a manager whose antics were racy.
The court said, "You lose!"
Now, tell everyone the news.
And if you disobey, it'll cost you big money.

*** Although I feel rhyming "Racine" with "racy" was pure Shakespeare, I'm fairly certain that Edward Lear's corpse just pissed itself ***

After the jump, it's the employer, found liable for sexual harassment, that refused to abide by a court-ordered notice requiring it to inform its employees about the verdict...

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Continue reading "$1,000 fine per day for not posting notice of harassment verdict" »

June 17, 2011

Juror + defendant + Facebook = 8 months in prison

In the workplace, messing around on Facebook may earn an employee a pink slip. In the political arena, Facebook faux pas can cost a Congressman his seat in Congress -- although it could result in a job with Hustler. [SFW].

But, in the courtroom, Facebook shenanigans may lead to hard time in the clink. This is especially true in the UK, where the BBC reports that a juror who contacted a defendant via Facebook, causing a £6m drug mistrial, has been jailed for eight months for contempt of court.


The juror allegedly wrote to the defendant, "cant get anywaone to go either no one budging pleeeeeese dont say anyhting cause jamie they could call mmiss trial and i will get 4cked to0".

Maybe, she can use her time away to work on her spelling and grammar for reflection.

h/t Adam Michaelson (good luck on the bar exam)

June 16, 2011

The Boston Bruins are Stanley Cup Champions!!!


Come on, folks. What else did you expect?

Photo Credit: Elsa/Getty Images

June 15, 2011

What to know about providing disabled employees time off work


The Americans with Disabilities Act (ADA) prohibits discrimination in the workplace against disabled individuals. By law, if an employer knows that an employee or applicant is disabled, it must reasonably accommodate the known disability, if doing so would not impose an "undue hardship" on the operation of the employer's business. There are many types of reasonable accommodations, from modifying facilities to reassignment to a vacant position. 

Leave from work may also be a reasonable accommodation. But how much? And how much is too much?

Find out, after the jump...

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Continue reading "What to know about providing disabled employees time off work" »

June 14, 2011

Fact or fiction: Federal law recognizes "reverse age discrimination"

old-people.jpgWelcome to the inaugural edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post".

So, I was recently asked whether a younger employee may have a federal age-discrimination claim against his employer if the company treats a similarly-situated older employee better.

The answer is no. In 2004, the U.S. Supreme Court in General Dynamics Land Systems, Inc. v. Cline held that the Age Discrimination in Employment Act of 1967 (ADEA) does not forbid discriminatory preference for the old over the young.

Update: Some readers on LinkedIn wisely noted that, notwithstanding the federal position on "reverse age discrimination," some states and municipalities have laws on the books that do recognize claims based on discriminatory preference for the old over the young. New Jersey is one of those states.

Image Credit: HollywoodRepublican.net

June 13, 2011

Does an employer's computer policy trump the marital privilege?


Let's assume that your company -- as many do -- has a computer-use policy, which underscores that electronic communications sent over your network are not private and the company has the right to monitor all such electronic communications. 

Under federal law, communications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged. What if a husband and wife who work for your company email each other over your network? Are these emails subject to the marital privilege, or does the computer-use policy eviscerate it?

Find out after the jump.

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Continue reading "Does an employer's computer policy trump the marital privilege?" »

June 10, 2011

The Carnival of HR rolls into town again


For those of who have yet to check it out or have never heard of the Carnival of HR, shame on you!

The Carnival of HR is dedicated to bringing together the best posts from the HR blogging community. This week, the Women of HR blog is hosting the Carnival. You'll find links to 23 blog posts on various HR topics from "The Secret to Successful Job On-Boarding" to "The New Black of Benefits."

So click on on over to this week's carnival and have a great weekend.

June 9, 2011

A "social media specialist" gets fired for a Twitter gaffe at work

Fueled by the remaining adrenaline from the Bruins 4-0 beating of the Canucks -- 2 more wins... just 2 more -- I am banging out this blog post just before the clock strikes 12. I have news of a new Twitter firing involving a "social media specialist" and an update on an NLRB action from May condoning the firing of a newspaper reporter for abusing Twitter.

All this, after the jump.

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Continue reading "A "social media specialist" gets fired for a Twitter gaffe at work" »

June 8, 2011

Supreme Court limits an employer's ability to recoup attorney's fees

Thumbnail image for Supreme Court.jpgIn an employment discrimination action asserted under federal law, an employee-plaintiff may recover a reasonable attorney's fee if the plaintiff prevails. So too may an employer-defendant recover fees if it prevails and the court determines that the plaintiff's suit is frivolous.

But what happens if an employee-plaintiff asserts multiple claims against an employer-defendant and only some of them are deemed frivolous? What, if anything, may the defendant recover in attorney's fees?

The answer after the jump...

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Continue reading "Supreme Court limits an employer's ability to recoup attorney's fees" »

June 7, 2011

Social-media shenanigans and Anthony Weiner drinking games

"I just want to advise people watching at home, playing that now-popular drinking game of you take a shot whenever the Republicans saying something that's not true: Please assign a designated driver. This is going to be a long afternoon." 
--- Anthony Weiner (from the House Floor on 1/19/11)

You can't make this stuff up, yo.

For some employment-law implications and practical tips concerning Anthony Weiner's gaffes -- both online and offline -- check out this post from employment attorney and blogger Philip Miles at Lawffice Space.

Image credit: Anthony "@RepWeiner" Weiner

June 6, 2011

Will a new NFL CBA include social media restrictions for players?

I'm guessing that social media is not at the top of either side's list of demands.

However, player tweets like this and, in particular, this one from Pittsburgh Steelers running back Rashard Mendenhall following the death of Osama bin Laden have some speculating that a new collective bargaining agreement could include restrictions on player use of social media.

What could those restrictions be? And will the players agree to them? 

More after the jump.

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Continue reading "Will a new NFL CBA include social media restrictions for players? " »

June 3, 2011

"Cat's Paw" doctrine applies to claims of age bias

Wednesday night was crazazy, yo!


I had this dream that was I slaloming down a snowy mountain towards a giant fortress under a hail of gunfire. But the next thing I know, I wake up and I'm falling down this elevator shaft. And, just as I'm about to bite it, I find myself in a car submerged underwater, having just taken a 100-foot fall from the bridge above.

And then I'm in my bed. 

It's 3 am and I am dripping sweat. I tap the Joe Beimel bobblehead on my nightstand -- I know I shouldn't have told you about my totem but, damnit, I love my readers.

Just as I'm starting to get my bearings, what hit me next was ten times as powerful as any three-tiered Inception dream and it kept me up for the rest of the night:

Could the United States Supreme Court's decision in
Staub v. Proctor Hospital, in which the Court affirmed the
theory of subordinate bias -- or "cat's paw" --  in an
action under USERRA, equally apply to claims brought
under the Age Discrimination in Employment Act (ADEA)?

But, oh hells-to-the-yeah, the Tenth Circuit, sensing my angst, issued an opinion on Thursday answering all of my questions. So, while I grab my meds, you hit the jump and find out if the cat's paw doctrine applies to ADEA claims.

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Continue reading ""Cat's Paw" doctrine applies to claims of age bias" »

June 2, 2011

POLL: Would you ever announce your retirement online?

Yesterday afternoon, Shaquille O'Neal (@Shaq) put an end to an illustrious 18-year NBA career in a single tweet:


As I type this post -- during the second intermission of the Stanley Cup Finals -- the hashtag #ShaqRetires is still trending on Twitter.

So, the question is, would you ever use social media to announce your retirement? 

June 1, 2011

Is a non-compete agreement signed months after work begins enforceable?


I was reading a blog post from Jennifer L. Gokenbach at the Colorado Employer's Law Blog, discussing how, as of yesterday, Colorado deems continuation of at-will employment to be sufficient consideration to support a non-competition agreement. In non-lawyer speak, that means that if an employee signs an agreement not-to-compete in Colorado after the employee starts working, on the condition that if the employee does not sign the agreement then the employee will be fired, the employer may later enforce that agreement.

That's now the law in Colorado. Is that also the law in PA, NJ, and DE?

Delaware: Yes. Research & Trading Corp. v. Powell, 468 A.2d 1301, 1305 (Del.Ch.1983).

New Jersey: Yes. Hogan v. Bergen Brunswiq Corporation, 153 N.J.Super. 37, 378 A.2d 1164 (App.Div. 1977).

Pennsylvania: No. An agreement not to compete with a former employer must be supported by new consideration; i.e., a change in the conditions of employment (e.g., a raise, promotion, or other financial benefit). Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279, 280 (Pa. 1974).

Continue reading "Is a non-compete agreement signed months after work begins enforceable?" »