August 2011 Archives

August 31, 2011

Labor Board delivers a three-punch knockout for unions

nlrb.jpgYesterday, the National Labor Relations Board issued three very union-friendly opinions that could have an effect on the way you conduct business. I discuss these opinions and the immediate impact they will have on certain employers after the jump...

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August 30, 2011

ESPN: The worldwide leader in sports, but not Twitter


ESPN, the self-proclaimed worldwide leader in sports, has updated its social-media policy for talent and reporters. You can find a copy of it here. The policy does have its strong points. But, there are certain areas in which it misses the mark. A discussion follows after the jump...

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August 29, 2011

If Lady Gaga tweets your trade secret, is it still a trade secret?

secret.pngIn a matter of minutes, or even seconds, a single tweet may reach thousands or, possibly, millions of people. Now, just imagine if that tweet contained proprietary information. (You know, like if Lady Gaga tweeted the code to Microsoft Windows 7 to her millions of followers). with me here...

But, even in the days before Twitter, publishing content on a blog or a message board meant putting information out in the public domain for anyone -- including a competitor -- to view. What if that information was supposed to be confidential? Does a trade secret lose its legal trade-secret status if it is published on the internet? Find out the answer after the jump...

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August 26, 2011

Sign up! It's The Employer Handbook free NFL Survivor Pool


Are you ready for some football?

Better question: do you think you have what it takes to defeat me, a former 610 WIP SportsRadio Midday Show Survivor Pool Champion?

Now you'll have your chance. The Employer Handbook is hosting a free NFL Survivor Pool, where the winner will take home the picture of Julius Erving and Larry Bird that now hangs in my office -- to the right of Allen Iverson's head. (Yes, that's my office). Here's a close up.

More on how this free contest works -- you needn't be a football fan or know anything about football -- and how you can sign up, after the jump.

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August 26, 2011

Feds force private businesses to tell employees its ok to unionize

nlrb.jpgGood times, huh?

The National Labor Relations Board has issued a Final Rule requiring most private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act, which includes -- you guessed it -- the right to form a union. 

This rule goes into effect on November 14, 2011 and I've got the dirty details after the jump.

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August 25, 2011

The Employer Handbook seeks your feedback

'Forbidden Planet customer suggestions box' photo (c) 2010, Ged Carroll - license:

The Employer Handbook is fast approaching its ninth month. I've had a blast blogging for my readers. And things appear to be running smoothly. But what do I know? I only write this stuff. I don't have to read it. That's up to you. We make great a team, don't we? 

So, let me know...

  • What do you like so far?

  • How can I improve?

  • What employment-law topics would you like to see discussed more?

  • And what should I discard into File 13?

Please email me your comments or leave them below.

Thank you,

The Management.

August 24, 2011

16 best practices for conquering the next natural disaster


Raise your hand if your east-coast business was prepared for yesterday's earthquake

After the jump, I'll tell you why you may not have been ready and offer your business 16 ways to prepare for when the next disaster strikes.

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August 23, 2011

LexisNexis deems The Employer Handbook the best blog ever

lexis.jpg(Maybe, I'm reading a little too much into an email I received from them yesterday). 

Actually, The Employer Handbook has been nominated as one of the LexisNexis Top 25 Labor and Employment Law Blogs of 2011If Because you want to vote for The Employer Handbook, click here. Seriously, if you like what you read, please stuff the ballot box. (You'll need to register first with LexisNexis. But that takes 20 seconds and you can do that here.) Thank you!

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NextBlogger.jpg And in other equally important news, Muammar Qaddafi's regime is clearly crumbling I am now officially blogging for the Society for Human Resource Management's We Know Next. Talk about a fantastic resource for business executives, policymakers and human resource leaders to explore and discuss the latest workforce and workplace trends! I am pleased as punch -- the same laced punch I served to SHRM -- to be blogging both here at The Employer Handbook and at the Next blog.

August 22, 2011

The federal labor law guide to social media (non)compliance

nlrb.jpgOn Friday night, I read the just-released National Labor Relations Board's Acting General Counsel report on social media investigations. In fact, I read it twice cover-to-cover. (No, I won't be winning the "Coolest Person In America In Philly On My Block In My House" Award this year).

Dorkiness aside, I was able to distill the report down to the points that employers will need to know if they hope to avoid federal scrutiny. Those details follow after the jump...

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August 19, 2011

Final score: Pregnant bartender 45,000 - Wild Beaver Saloon 0

I can pinpoint the exact moment that this blog transcended to the next level of internet excellence.


It was back in late March, when I blogged here about a female bartender/server who had sued her employer, the Wild Beaver Saloon, for pregnancy discrimination. The retweets that day were off the heezy fo sheezy, yo. (The hyperlink is a courtesy to my NPR listeners).

***Wait. Hold on one sec. I have to take this call from "1993". They say they want their dated hip-hop lingo back. OK, I'm back.***

When I first wrote about the Wild Beaver Saloon, the question was whether a business could make an employment decision based on the preferences of co-workers, the employer, clients or customers. I concluded, in this instance, that the Beave could not get away with it.

Well, the case ended last week. So was I right? Click past the jump to find out if I know my stuff...

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Continue reading "Final score: Pregnant bartender 45,000 - Wild Beaver Saloon 0" »

August 18, 2011

Third Circuit delivers a cat's paw gouging to employers

Note: The original working title for this post was "Yo! A-Yo! Federal courts in Philly and NYC get all catty and stuff". I mention this not because it's a recycled New Yorker headline, but because it puts into context the gratuitous shots I take at NY sports teams sprinkled into this post.

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Back in March of this year, the United States Supreme Court in Staub v. Proctor Hospital recognized that an employee may have a tenable claim for discrimination under USERRA even if the person who fired him did not discriminate. That is, if a supervisor's bias motivates a firing -- even if the firing is carried out by someone else who is both squeaky-clean and higher up in the food chain -- then the firing is discriminatory. This is known as the "cat's paw" theory.

Yankees Suck     Same goes for the MetsSince March, other courts have weighed in. As you know from reading this blog, on June, the Tenth Circuit held that the Staub decision applies to claims of age bias

And, this month, we get cat's paw decisions from the United States District Court for the Eastern District of New York and the Third Circuit Court of Appeals. One of 'em is good for employers. The other, not so much. More on these decisions and what they will mean for local businesses after the jump...

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August 17, 2011

For employers that don't document properly, the jury awaits


In yesterday's post at The Employer Handbook, I discussed a recent federal-court decision to demonstrate why it is crucial for employers to document workplace performance and misconduct.

Today, after the jump, I have another federal-court decision -- one in which an employer's failure to properly paper an employee's leave under the Family and Medical Leave Act, translates into big-time headaches.

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Continue reading "For employers that don't document properly, the jury awaits" »

August 16, 2011

This is why you document employee workplace issues

blueface.jpgManagement-side employment lawyers preach it until they are blue in the face: companies should always document employee performance and disciplinary issues.

Why is this so important? A real-world example follows after the jump...

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August 15, 2011

Sleep with me, or you're fired!

Sex sells.

My most popular posts at The Employer Handbook -- that's based on you reading them (you're all sick I tells ya, sick!!! And remember, I'm logging IP addresses) -- generally involve some element of sexual behavior. You have the Brazilian self-stimulator. Actually, make that sexual behaviour -- there's the Australian hotel sex romp

One of my readers asked if I'd heard about the recent sexual harassment lawsuit in Utah (the home of sex in a supply closet), in which a woman alleged, among other things, that her supervisor distributed a work schedule that included included "Mini-skirt Monday," "Tube-top Tuesday," "Wet T-shirt Wednesday," "No bra Thursday," and "Bikini top Friday." Come on, now. You know me! Just this week, I read five articles (hereherehereherehere) about it. You can find 23 more articles about "No bra Thursday" here.

Sexual Harassment"Guess my high score in Leisure Suit Larry."

Then there's the NY Post story (naturally) about a 23-year-old lesbian who claims that seven staff members in her real estate office groped, slapped, flashed, fondled and subjected her to racial abuse and death threats. One of the staffers allegedly offered her $60 for oral sex and told her all Puerto Rican girls are good at it.

Me? I like writing about these cases because it's a good excuse to use stock sexual harassment photos from Google Images -- like the one on the right, which, given the size of the shoulder pads in the lady's jacket and the dimensions of that desktop computer -- no doubt housing a 5.25 inch floppy disk drive -- is a screencap from L.A. Law.

How about one more sexual harassment case for ya? This time, the Fourth Circuit Court of Appeals gets in on the act and reverses summary judgment in favor of an employer where the plaintiff alleged sexual harassment and retaliation when her boss forcibly kissed her, fondled her leg, propositioned her, asked her sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her (on the day she complained). 

More on this and, of course, lessons for employers, after the jump...

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Continue reading "Sleep with me, or you're fired!" »

August 13, 2011

Social media shenanigans that will get you fired...and maybe jailed


Rapper The Game could face criminal charges after he tweeted the phone number of the sheriff's station in Compton, CA -- but told people it was the number to call for an internship -- causing the station's phone lines to become overrun with calls and delaying emergency services.
According to the Sheriff's Department, they plan on turning over a complaint to the District Attorney's office to possibly file charges -- including delaying or obstructing a peace officer in the performance of their duties.

Suffice it to say, a similar incident in the workplace could easily cost an employee his job. And maybe more...

Image credit:

August 12, 2011

I have a turtle named Sparky. And Sparky is going to die.

'Baby Turtle' photo (c) 2006, Tim - license: September 9, 2011, I am going to carve up Sparky and make a nice turtle soup, unless...

...Unless every one of my readers nominates me for the ABA Journal's Blawg 100 Amici (a/k/a the 100 best damn law blogs on the interwebs). The nomination deadline is September 9.

I know what you're thinking. Moron is a cold, heartless bastard recycling a stupid internet bit. And you would be right. I don't own a turtle. My wife had a turtle once. It smelled and it bit her sister.

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No, what I have been doing is secretly logging IP addresses of The Employer Handbook visitors. Oh, you didn't read The Employer Handbook fine print -- it's in white and you need a UV light and a Cap'n Crunch decoder ring to decipher it. But allow me to summarize:

All visitors pay a $5 access fee...per click.

Trust me. The folks in Legal tell me it's a binding contract. But, I'm offering each of you an out. Nominate my blog for the ABA Journal's Blawg 100 Amici, and I will forgive your questions asked.

So here's what you do:

  1. Click this link.
  2. Fill out the form. For suggestions on how to fill out the form, click here.
  3. Email this page to 5 friends. Mention the turtle, not the contract. I need the money.

The whole process takes 30 seconds. You will have saved a turtle and a few bucks as well. But seriously, if you dig this blog and you are not my dad -- dads are not eligible to nominate -- then take a few seconds and cast a vote for The Employer Handbook.

Thank you and have a great weekend.

August 11, 2011

Six super social media and HR reads from this week

'Pupu platter' photo (c) 2007, Nikchick - license: of good stuff on the interwebs this week about social media and human resources. Rather than breaking it up into a bunch of different blog posts, after the jump, I offer you a combination platter to enjoy with your morning coffee...

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Continue reading "Six super social media and HR reads from this week" »

August 10, 2011

Calling all Bloggers: The Employment Law Blog Carnival returns

Carnivalphoto © 2010 Paul Newtron | more info (via: Wylio)

The next edition of the Employment Law Blog Carnival is coming up on August 17, 2011, where Jon Hyman will be hosting at his Ohio Employer's Law Blog.

If you would like to participate in this month's carnival, by Friday, August 12, please email John ( a link to a recent employment-law-related blog post. It does not matter if your post is written from the employer perspective or the employee perspective. But it must be employment-law-related and it must be a link to a post on your blog.


August 10, 2011

Fact or Fiction: Retaliation requires job-related action (e.g., firing)


That's right folks. It's time for another 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".

Until about five years ago, a plaintiff had to prove a materially adverse employment action in order to recover for retaliation. (I addressed the complete three-part test for retaliation in yesterday's post).

Not so anymore. As explained briefly after the jump, the rules for retaliation have changed.

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August 9, 2011

Apparently, sex in a supply closet is not sexual harassment

'There's Even a Drawer for the Cat' photo (c) 2006, Peyri Herrera - license: least that's what a federal court in Utah opined.

I promise that this is not a prurient post gratuitously conceived to drive internet traffic to The Employer Handbook.

And this case has nothing directly to do with Pennsylvania, New Jersey or Delaware employers

(Ok, that last line was shameless. Google, please do not index this post).

Oh, what the heck, index away. After the jump, I'll even throw in some good employer takeaways for all employers, including those in Pennsylvania, New Jersey and Delaware.

Darn it. I did it again...

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Continue reading "Apparently, sex in a supply closet is not sexual harassment" »

August 8, 2011

New federal bill would greater protect breastfeeding employees

Rep. Carolyn Maloney [D-NY14] is at it again.

A sponsor of a bill that would greatly expand the scope and reach of the FMLA, Rep. Maloney has co-sponsored another bill, the Breastfeeding Promotion Act of 2011, which would amend both the Fair Labor Standards Act and Title VII of the Civil Rights Act of 1964 to protect breastfeeding by nursing new mothers.

'Expressed breast milk' photo (c) 2007, Hamish Darby - license: the Pregnancy Discrimination Act, which is part of Title VII, it is already illegal to discriminate in the workplace "because of sex" or "on the basis of sex," which includes, but is not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions. The Breastfeeding Promotion Act of 2011 would amend Title VII to explicitly include "lactation."

The proposed legislation would also expand the breastfeeding provision of the Fair Labor Standards Act to cover salaried office workers.

According to a press release from Rep. Maloney, the Breastfeeding Promotion Act of 2011 would cover an additional approximate 13.5 million executive, administrative, and professional women in the workplace.

Employers that need more information on breastfeeding in the workplace, can check out these other posts at

August 5, 2011

Inquiring about retirement plans = age discrimination?

'Carla Carpenter Retirement Party' photo (c) 2004, Grant Laird Jr - license:

Let's say that a company holds a meeting for older employees (all are over 49 years old). And the purpose of the meeting is to discuss the future expectations of the employees in attendance, including retirement options at the company. Then throw in a stray remark from the company, something like, "When people get older, they tend to slow down."

What if one of the meeting attendees is later laid off? Is that age discrimination?

If the employer has any non-age-related reason for the layoff, then the answer is no, according to this federal court in Arkansas.

The court was presented with no case support for the position that a meeting to discuss retirement options is inherently unlawful or discriminatory. As for the stray remark, it would constitute circumstantial evidence that, when considered with other evidence, may give rise to a reasonable inference of age discrimination. However, if that stary remark is not directed specifically at the plaintiff, then its probative value is nil.

So, essentially...

The bar for age discrimination is hella-high.

For there to be age discrimination, age has to be the "but for" cause of termination. That is, the employee must show that any legitimate business reason espoused by the employer to justify the discharge is not only false, but also that age was the real reason for the firing.

August 4, 2011

Pottymouths don't usually win sexual harassment lawsuits


A federal court has bounced a woman's sexual harassment claims against her former employer because the court believed that the woman was not offended by the conduct about which she complained.

Some analysis and employer lessons after the jump...

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Continue reading "Pottymouths don't usually win sexual harassment lawsuits" »

August 3, 2011

Like? Philly courts to use social media to communicate with parties

'Philadelphia City Hall' photo (c) 2008, Kent Wang - license: I was getting my shoes shined yesterday, something caught my eye. 

According to this article in the Metro Newspaper from Alexandra Wigglesworth, Philadelphia's First Judicial District plans to use Facebook, Twitter, and text messaging to send out reminders about court dates.

The court's shift towards embracing social media is consistent with a recent survey which shows that over half of employers believe that using social media for business purposes is a good thing. 

So, is your business communicating with employees via social media? Does your business use social media in the workplace? (Most do). Do you have a social media policy? (Nearly half of all businesses do not).

Whether you are ahead of the curve, wrestling with social media in the workplace, or are just starting to give it some thought, I have something that will help. A new book to which I contributed, "Think Before You Click: Strategies for Managing Social Media in the Workplace", provides a comprehensive examination of the opportunities and risks of social media, with particular focus on seven areas:

  • What Is Social Media?: An examination of the "Big Four" in social media (blogs, Facebook, Twitter, and LinkedIn): how they are used today, and what's on the horizon for tomorrow.
  • Drafting the Workplace Social Media Policy: 10 considerations every employer needs to think through before drafting and implementing a workplace social media policy.
  • Hiring and Recruiting: How employers are using social media to locate, vet, and screen potential employees and new hires.
  • Privacy Protections: How privacy and social media interact in the workplace, and the various constitutional, statutory and common law privacy rights implicated by social media.
  • Post-Employment Covenants and Trade Secret Claims: How best to protect confidential information and trade secrets from disclosure via social networks by current and former employees.
  • Litigation: How lawyers are using social media as evidence in litigation against employers.
  • Labor Law: The meaning of protected, concerted activity, anti-solicitation policies, and how the National Labor Relations Board is applying these long-standing principles in an attempt to gut employers' attempts to regulate what employees about saying about them online.

The book is available in electronic form (naturally) and a hardback is in the works. It's the next best thing to calling me for social-media advice. (And it won't cost you nearly as much).

August 2, 2011

OSHA wants employees to blow more whistles

whistleblower.jpgIn a press release issued yesterday, the U.S. Department of Labor's Occupational Safety and Health Administration announced that it is implementing additional measures to strengthen the Whistleblower Protection Program.

A brief rundown of these new measures follows after the jump...

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Continue reading "OSHA wants employees to blow more whistles" »

August 1, 2011

Ba-chicka-wa-wa! Woman hurt during hotel sex sues...her employer.

Thumbnail image for intimate.jpg

From that employment-law blog that brought you the incredible story of the female accountant who won the right to legally masturbate at work, comes news of a woman who has sued her employer after she was struck in the head by a light fixture during sex in a hotel room that her employer paid for.

You can't make this stuff up, yo. (And, ironically, I am typing this post in a Ramada Inn).

I feel a Pulitzer. More after the jump...

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Continue reading "Ba-chicka-wa-wa! Woman hurt during hotel sex sues...her employer." »