July 2011 Archives

July 29, 2011

Buh bye: Labor board okays firing some Facebook whiners


I teased it in yesterday's blog post about Natalie Munroe.

The National Labor Relations Board is softening its position on employers who fire employees for rants on Facebook.

And I've got the deets after the jump...

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July 28, 2011

Suspended blogging teacher will be back in school this fall

Remember Natalie Munroe? Let me see if I can refresh your recollection.

She's a blogger. She's a teacher. That's right, smarties. She's the blogging teacher who got suspended after her school learned that he had written on her personal blog that she wished she could leave the following comments for students so that parents could gain further insight into how their children were performing in school:

    • "Am concerned that your kid is going to come in one day and open fire on the school. (Wish I was kidding.)"
    • Rude, beligerent, argumentative fuck."
    • Utterly loathsome in all imaginable ways."
    • I called out sick a couple of days just to avoid your son."
    • There's no other way to say this: I hate your kid."

You can read more about the history of Natalie Munroe here and here.

Christina Kristofic of the Bucks County Courier Times reports here that Ms. Munroe will have her job back in the Fall. I spoke with Ms. Munroe's attorney, Steven Rovner, (disclosure: he is my stepbrother) and he confirmed that Ms. Munroe has been reinstated. Ms. Munroe's husband also shared the news on Facebook.

In quasi-related news, the National Labor Relations Board just issued three memoranda (here, here, and here) in which the Board opined that employees who complain on Facebook and other social networking sites may not be protected from disciplinary action, even if those complaints are job related. (More on that tomorrow).

But, for today, sound off below. Should Ms. Munroe have been reinstated?

July 27, 2011

Congress may expand FMLA to include certain bereavement leave

Thumbnail image for fmla.jpeg

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.

Earlier this month, Senator John Tester (MT-D) introduced a bill that would amend the FMLA to provide leave because of the death of a son or daughter.

Details on this bill and what it would mean for employers after the jump...

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July 26, 2011

When hiring: Just because you can ask it, doesn't mean you should

I received a comment to yesterday's post about 29 questions you should never ask a candidate in a job interview.


Laurie Ruettimann, who blogs at The Cynical Girl, questioned the real-world ramifications of making one of my 29 no-no's:

"Hey, Eric. Great list. I once had an employment lawyer tell me that you can ask any question -- you just can't make an employment decision based on the answers. Can you blog about that distinction? Asking versus action? I would love to get your thoughts on that!"

Ask and ye shall receive. Or is it, ye shall receive, yo? (If you don't read Laurie's blog, that last sentence flew right over your head).

Either way, I'll share my thoughts after the jump...

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July 25, 2011

What would Kenny Powers do? Interview questions to avoid


HBO Go may just be the best app ever.

Over the past two weeks, I've gotten current on Entourage and Game of Thrones, and begun watching Eastbound and Down. Watching characters like Ari Gold, Kenny Powers and Tyrion Lannister got me thinking. If these guys were in HR, what kind of questions would they ask potential hires in a job interview?

***You know, this all sounded so much better in my head.***


After the jump, I have 29 questions you should never ask a candidate in a job interview.

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July 22, 2011

HEAT WAVE! 7 lawyers discussing social-media compliance

Look, I'm not one to toot my own horn...

And, God knows, I never like to plug my own work.


But, seriously folks, I would be remiss if I did not mention (again) that the Proactive Employer Podcast, sponsored by Thomas Econometrics, is presenting a special two-part round table discussion where experts answer all of your HR and social media questions. They've lined up an all-star panel of labor and employment lawyers, bloggers and social media adopters who will be sharing their expertise on various aspects of social media and human resources.

The two-part round table discussion will air both today and July 29, 2011 and will be available for on-demand listening at The Proactive Employer website,  via iTunes, or you can just listen right here.

Podcast Powered By Podbean

Now, if you'll excuse me, unless one of you has one of these to give me, I need to remove my hands from the keyboard in order to pat myself on the back. 

Then I'm going to order my new book, "Think Before You Click: Strategies for Managing Social Media in the Workplace" (née HR and Social Media: Practical and Legal Guidance).

July 21, 2011

Fact or Fiction: Miniature horse = reasonable ADA accommodation

Welcome back to "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, is a miniature horse a reasonable accommodation under the Americans with Disabilities Act? Maybe.

Title I of the ADA covers employers discriminating against qualified individuals with disabilities in terms, conditions, and privileges of employment. There is nothing explicit in Title I or its supporting regulations that suggests that a miniature horse is or is not a reasonable accommodation for an employee. (Miniature horses generally range in height from 24 inches to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds.) That said, if the request is reasonable (i.e., would not cause the employer undue hardship) and there is no other reasonable alternative, then giddy-up.

'Bay and miniature horse in field in Arlington' photo (c) 2006, Derrick Coetzee - license: http://creativecommons.org/licenses/by/2.0/The final regulations implementing the ADA for title II (State and local government services) and title III (public accommodations and commercial facilities), which went into effect earlier this year, have a new, separate provision about miniature horses that have been individually trained to do work or perform tasks for people with disabilities.

Entities covered by title II and III of the ADA must modify their policies to permit miniature horses where reasonable, subject to a four-factor test found here.

July 20, 2011

Welcome to the Employment Law Blog Carnival: Jukebox edition!

Play it loudphoto © 2011 Dr Garageland | more info (via: Wylio)The Employment Law Blog Carnival has finally rolled into town.

What is a blog carnival? It is a collection of links on a particular topic -- here, employment law -- that bloggers have submitted to me, which I then arrange around a particular theme.

For this edition of the Carnival, it's DJ-ESkeelz on the one and two, with a music-themed employment-law blog carnival. I've got 13 hot joints (read: 13 links to employment-law articles from some of the blogosphere's best...)

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July 19, 2011

Demystifying Federal and New Jersey Family Leave Laws

Folks, you are in for a treat today.

Today we have a guest blogger at The Employer Handbook. It's Janette Levey Frisch. Janette is In-House Counsel at Joule, Inc. where she provides comprehensive legal representation and support to a staffing company with five subsidiaries throughout the East Coast. You can connect with Janette on Twitter here and on LinkedIn here.

And if you want to read a great piece about the interplay between the Family and Medical Leave Act and the New Jersey Family Leave Act, then hit the jump...

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July 18, 2011

Badge, gun, social media policy: Philly cops now have all three

Thumbnail image for police.jpgPhiladelphia Police Department has enacted a social media policy. You can view it here.

A couple of noteworthy points about this policy:

  • It recognizes that social media plays an important "business" role within the Department. The Department gets it by endorsing the "secure use of social media to enhance communication, collaboration, and information exchange; streamline processes; and foster productivity."
  • Employees may not use City property to engage in personal social networking activities. That includes cellphones, laptops and other portable devices that may be used outside of the office. In fact, employees may not even use social media on their own electronic devices while on duty.
  • The policy underscores that there is no reasonable expectation of privacy when engaging in social networking online. As such, the content of social networking websites may be obtained for use in criminal trials, civil proceedings, and departmental investigations.
  • Employees must get prior consent before engaging in Department-authorized use of social media. This is defined as the employment of such instruments for the specific purpose of assisting the department and its personnel in community outreach, problem-solving, investigation, crime prevention, and other department-related objectives. The PPD is unionized and, as you know from reading this blog, the National Labor Relations Board has taken an aggressive approach against employers who enact policies that may chill union-related speech. On its face, this rule appears to be designed as a safety measure, rather than a means to quell discussion about terms and conditions of employment. Plus, the Fraternal Order of Police, as public sector employees, would not be covered under the NLRA. Still, the policy lacks any explicit mention of the right to engage in protected-speech. 

July 15, 2011

Bad Biz 101: Impersonating an employee on Twitter and Facebook

One year for Halloween when I was in law school, no, actually, I was in law school, I dressed up as Mr. T. 

I had the gold, the overalls, the mohawk. People stopped me on the street to take their picture with me. Although, the highlight of the night was when I ran into someone dressed up as -- wait for it --- Hannibal Smith


Where am I going with this? Ah, yes. While I tried my best to pull off Mr. T, there was never any risk of confusion. I was 160 pounds soaking wet, my "gold" was actually tin foil, and I'm white. 

However, fast-forward 10 years. I'm a partner at a law firm. And I have a personal blog where I write about the law. *** Only in America *** So, as I advise my employer-clients to do with employees who blog and use other forms of social media to discuss work-related products and services, I include a disclaimer to alert readers that my opinions are mine and not my employer's. In fact, this is a must in any good social media policy. 

But should a social media policy also include language to the effect that the employer will not use an employee's personal social media accounts to promote the employer's business without permission? After the jump, a recent decision which makes a good argument for it...

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July 14, 2011

Pornographers need employment lawyers too, you know.

Welcome everyone to the first last edition of T&A Thursday, where I update you on all that's going on in the world of porn and employment law.

After the jump, it's all the news that's barely fit to print. (At least it's safe for work)...

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July 13, 2011

Tweet this! More employers now allow social networking at work

Social Media Buzzphoto © 2010 Widjaya Ivan | more info (via: Wylio)In a new survey conducted by Robert Half Technology, 1400 chief information officers (CIOs) from companies across the United States with 100 or more employees were asked: "Which of the following most closely describes your company's policy on visiting social networking sites, such as Facebook and Twitter, while at work?"

  • Prohibited completely
  • Permitted for business purposes only
  • Permitted for limited personal use
  • Permitted for any type of personal use
  • Don't know/no answer

I'll cue up the music and list the results after the jump...

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July 12, 2011

Fact or Fiction: A "general release" settles all discrimination claims

Welcome back to "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". But before I dispense with the brevity, allow me to pat myself on the back as, yesterday, both the ABA Law Journal and the Wall Street Journal recognized one of my recent blog posts.

***A-thank you. Thank you very much. You're all too kind.***

On the heels of this case from the Second Circuit that I read about yesterday, I figured that today we should discuss releases. Cue the music...

Let's begin with a hypothetical. Robert Rank-And-File has sued his former employer, Pennsylvania-New Jersey-Delaware, Inc., asserting various discrimination claims against the company (race, age, retaliation). After months of scorched-earth litigation, the two sides agree to settle. Pennsylvania-New Jersey-Delaware, Inc. prepares a settlement agreement which provides that in exchange for a settlement sum, Robert agrees to release all claims against the company. The agreement even includes the language, "THIS IS A GENERAL RELEASE."

Guess what, folks? If that is the extent of the release language, then Pennsylvania-New Jersey-Delaware, Inc. likely just funded the balance of Robert's age discrimination action against the company because Robert has not released his age-bias claim.

How could that be? Well, in 1990, Congress amended the Age Discrimination in Employment Act (ADEA) to impose specific requirements for releases covering ADEA claims, so that a person waiving rights under the ADEA would do so in a manner that is both "knowing and voluntary." In order for an ADEA waiver to be both "knowing and voluntary," it must contain seven elements:

    1. A waiver must be written in a manner that can be clearly understood. EEOC regulations emphasize that waivers must be drafted in plain language geared to the level of comprehension and education of the average person eligible to participate. So dump the legalese and technical jargon. 
    2. A waiver must specifically refer to rights or claims arising under the ADEA. EEOC regulations specifically state that the waiver must expressly spell out the Age Discrimination in Employment Act by name.
    3. A waiver must advise the employee in writing to consult an attorney before accepting the agreement. This is an easy one to take for granted if you know that the employee has already retained counsel. But, you still need it in the agreement.
    4. A waiver must provide the employee with at least 21 days to consider the offer. If the employee wants to sign the agreement before Day 21, that's fine. But, if material changes to the final offer are made, the 21-day period starts over. (Note: if a waiver is requested in connection with an exit incentive or other employment-termination program offered to a group or class of employees, the individual gets 45 days in which to consider the agreement).
    5. A waiver must give an employee seven days to revoke his or her signature. Whereas, the employee may waive the 21-day requirement above by returning a signed a agreement before Day 21, the 7-day revocation period cannot be changed or waived by either party for any reason. 
    6. A waiver must not include rights and claims that may arise after the date on which the waiver is executed. This provision bars waiving rights regarding new acts of discrimination that occur after the date of signing, such as a claim that an employer retaliated against a former employee who filed a charge with the EEOC by giving an unfavorable reference to a prospective employer.
    7. A waiver must be supported by consideration in addition to that to which the employee already is entitled. For example, withholding an employee's last paycheck on the condition that he/she agrees to release any potential age discrimination claim will not work.

Although not technically a requirement, a best practice when settling the claims of a current or former employee is to call a capable employment-law attorney.

July 11, 2011

Five things to keep in mind when providing FMLA leave

The Family and Medical Leave Act (FMLA) affords eligible employees up to 12 workweeks of leave during any 12-month period for, among other things, a serious health condition that renders the employee unable to work. A company that fires an employee in the middle of approved FMLA leave has engaged in what the law deems "FMLA interference."

However, there are some ways around the FMLA-interference claim. If the employer can show that it would have fired the same employee had the employee never taken leave, then the employer has a viable defense. Similarly, if the evidence shows that the employer did not prejudice the employee when it fired him, then the employee cannot prevail on his FMLA-interference claim.

Let that sink in for a second. Employer fires employee and employee suffers no prejudice?!? I'll explain after the jump...

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Continue reading "Five things to keep in mind when providing FMLA leave" »

July 8, 2011

Job candidate bolts from a drug test; sues for disability bias

Empty Drug Testphoto © 2008 Micah Baldwin | more info (via: Wylio)Stop me if you've heard this one before:

  • Job candidate is told that any job offer is contingent upon passing a drug test.
  • On d-day, job candidate bolts from the drug-testing facility, claiming that he has trouble in confined spaces.
  • No drug test means that job candidate is disqualified from the position.
  • Job candidate sues claiming a violation of the Americans with Disabilities Act for failure to accommodate.

Folks, I couldn't make this stuff up if I tried. Just another day in the life of an employment lawyer.

After you hit the jump, you'll find out whether the job candidate prevailed...

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July 7, 2011

This term's top 5 employment-law Supreme Court rulings...in haiku

bonsai_treephoto © 2007 Zest-pk | more info (via: Wylio)Last month, the Supreme Court handed down - if not the most important - certainly, the highest-profile decision of this term with Wal-Mart v. Dukes. However, in addition to this headline-grabber, this term saw four other significant employment-law decisions from the High Court about which employers must take note.

After the jump, I revisit each case...in haiku.

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July 6, 2011

Fact or Fiction: WARN applies to parents and affiliates

Welcome back to "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".

As you know, if you read yesterday's post, the Worker Adjustment and Retraining Notification Act (WARN), a federal law, protects workers by requiring most employers with 100 or more employees to notify them 60 calendar days in advance of plant closings and mass layoffs. But did you know that many states have their own mini-WARN acts? New Jersey is one of them. Here is a chart comparing the difference between the federal and NJ WARN laws.

So, does NJ's mini-WARN apply to parent and affiliated companies? The answer is yes, if they satisfy the U.S. Department of Labor's five-factor test

  1. common ownership;

  2. common directors and/or officers;

  3. de facto exercise of control;

  4. unity of personnel policies emanating from a common source; and

  5. the dependency of operations.

This is the same test applied under the federal WARN law. For more on this test, and how it may apply in NJ, check out DeRosa v. Accredited Home Lenders, Inc.

July 5, 2011

Legal? Replacing over 100 workers without any sort of notice

youarefired.jpgIn December 2006, 247 union workers went on strike at the Kohler manufacturing plant in Searcy, Arkansas. Three months later, Kohler hired 123 replacement workers.

Kohler and the Union settled their dispute in March 2008. As part of the settlement, Kohler agreed to reinstate the striking strikers. Kohler then fired the replacement workers and returned 103 of the original 247 striking workers to their former positions. 111 of the replacement workers then filed suit under the Worker Adjustment and Retraining Notification Act ("WARN") alleging that they should have been given at least 60-days notice before being laid off.

Did Kohler violate WARN? Find out after the jump...

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July 1, 2011

An employer blueprint for how to screw up at-will employment

Promise?photo © 2007 Carmella Fernando | more info (via: Wylio)

In most states, absent a contract of employment, an employee is considered at-will (i.e., he or she can be fired for any reason or no reason at all). Many employers reinforce -- in very prominent locations in employee handbooks -- that their employees are at-will

What happens, however, when an employer later promises an employee that she can take 12 months of leave and then return to her job?

Can the employer later renege and rely upon the at-will employment doctrine as a basis not to reinstate? Or is the employer SOL? Find out, after the jump...


Continue reading "An employer blueprint for how to screw up at-will employment" »