October 2011 Archives

October 31, 2011

90,000 women claim Wal-Mart discriminated against them

walmart.jpgBack in June, the United States Supreme Court ruled here that a class of 1.5 million women could not pursue gender discrimination claims together against Wal-Mart because they lacked a common injury.

If, at first, you don't succeed, file this Complaint in California on behalf of a class of only 90,000 plaintiffs. Will this small smaller lawsuit hold up? Find out after the jump...

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October 28, 2011

This employee used a friggin' marching band to quit his job!!!

MarchingBand.jpgThis has been an intense week here at The Employer Handbook. What, with Monday's post on taking the "sex" out of sexual harassment, followed up on Tuesday with the 15 craziest excuses employees have for missing work. You guys seemed to like that one a lot. Then there was the post on an old guy claiming that an older judge is too out of it to rule on the old guy's age discrimination claims. I-ro-ny! And to the three of you who read my post yesterday about the enforceability of arbitration agreements, thank you.

Hard-hitting stuff, no doubt. But, let's kick it up a notch! *** Writes royalty check to Emerill *** I'm going to save the news on a new 90,000-plaintiff Wal-Mart class-action lawsuit for next week. Instead, for your end-of-the-week viewing pleasure, meet Joey. Who's Joey? Well, remember the young woman who, last year, in a series of 34 pictures, quit her job? She's got nothin' on Joey. In August, Joey quit his job at a hotel using a marching band. A MARCHING BAND!

Please -- OH, PLEASE -- leave your comments below and have a great weekend.

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October 27, 2011

Is your arbitration agreement worth the paper it's printed on?

deweytruman.jpgCourts have blessed written agreements between employer and employee to submit federal discrimination claims to arbitration. Here is an example. 

But, there's legal and then there's doing right. After the jump, how one employer got it wrong. Very wrong. Plus, what you can do to make sure that your business does not make the same mistake...

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October 26, 2011

Employee suing for AGE bias claims judge is too OLD to preside


From the sublime to the ridiculous, the NY Daily News reports here that a 60-year-old musician suing for age discrimination claims that the presiding 88-year-old Manhattan judge is too old to hear the case.

According to the NY Daily News story, the plaintiff, who was representing himself before his case was dismissed in October, slammed the judge, calling him "slow-witted and unable to function."

In a pleading filed with the court, the plaintiff also wrote that the judge, who has degrees from Harvard and Columbia Law School, "may have been a very learned jurist in his day, [but] should be removed from the bench, both because of his mental and physical limitations [and because he] could barely see unless he put his face almost on top of a document."

h/t Philip Miles

Image Credit: MommyLife.net

October 25, 2011

The 15 craziest excuses employees have for missing work

doghomework.jpgCareerBuilder.com just released its annual list of most unusual excuses for calling in sick. "Lost track of time browsing TheEmployerHandbook.com" didn't make the list. (Probably because it's sooooooo commonplace). 

"Siri Assistant, what is the greatest labor-and-employment-law blog of them all?"

"I found three stores in your area that sell Altoids."

After the jump, the 15 best excuses...

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October 24, 2011

Equal-opportunity jerks take the "sex" out of sexual harassment


To prove sexual harassment, a plaintiff must have been subjected to pervasive or severe behavior that would make the plaintiff (and a reasonable person in the plaintiff's shoes) believe that the working environment are hostile or abusive.

Wait, I'm forgetting something. Oh yeah, the complained-of conduct must only be on account of the plaintiff's gender. Seems simple enough, right? No sex-based conduct. No sexual harassment. After the break, a recent example that highlights this important element.

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October 21, 2011

The ADA does not force employers to provide indefinite leave

bluecircle.pngBack in June, I discussed here how the EEOC was discussing the use of leave from work as a reasonable accommodation under the ADA. The question I asked back then was how much leave is reasonable? When is enough, enough?

Well, I can tell you now -- and I suppose I could have told you then -- that indefinite leave is generally not an option for employees (unless the employer acquiesces). At least that's what one federal court ruled last week. Details after the jump...

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October 20, 2011

An honest belief is all it takes to fire a suspected FMLA abuser

detective.jpgThe Family and Medical Leave Act affords eligible employees up to 12 weeks of unpaid leave during any 12-month period because of a serious health condition that makes the employee unable to perform his/her job.

Let's say that you have an employee who requests FMLA for a medical procedure that will keep him laid up for a while. But, you're suspicious. So, you hire a PI to follow the employee and record his every movement. You view the videotape and see that the employee is walking, driving, and even shopping. What the hell?!? Naturally, you think the employee is scamming the company so you fire him.

Legal? Or FMLA interference? Find out after the jump...

Continue reading "An honest belief is all it takes to fire a suspected FMLA abuser" »

October 19, 2011

A teacher is on the hot seat over "perverted" Facebook remarks

teacherfacebook.jpegOne of my favorite bloggers, Jon Hyman, was just saying recently that social media and privacy cannot coexist. Even on their own time -- out of the office -- what employees say and do online can have an impact on the workplace.

Teachers are prime examples. After the jump, yet another educator has found the headlines for being outspoken online...

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October 18, 2011

Paid-sick leave may become a requirement in Philly after all

phillyskyline.JPGOn June 29, The Employer Handbook reported here that Philadelphia Mayor Michael Nutter vetoed the "Promoting Healthy Families and Workplaces" bill. This bill would have required businesses to provide paid sick leave to employees who work a minimum number of hours in Philadelphia County.

Ah, but the times, they are a-becoming quite different. Right Connecticut and Seattle?

BNA reports here (subscription required) that Mayor Nutter is expected to sign this narrower paid-sick-leave legislation into law. If passed, it would require certain city contractors to provide workers with one hour of paid sick leave for every 40 hours worked, up to to certain maximums based on number of employees. The new law, if passed, will take effect on July 1, 2012.

For more information about whether your business may qualify, subject to the standard disclaimer, drop me a line.

Photo Credit: Politics.Gather.com

October 17, 2011

Employer Alert: FMLA for domestic violence victims

purpleribbon.gifLast week, Rep. Lynn Woolsey (D-CA) reintroduced the Domestic Violence Leave Act, which expands paid leave options for victims of domestic abuse, sexual assault, or stalking. Details on the pending legislation and what it would mean for employers if it passes after the jump...

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October 14, 2011

Remember this? The most unique way to quit your job.

whiteboard.JPGI get 15 16 minutes of fame.

Earlier this week, one of my readers forwarded an email to me reminding me about the young woman above who, last year, in a series of 34 pictures, told her employer to take her job and shove it

Nice! Although I'm not sure that it is better than this absolutely epic letter from the Cleveland Browns to one of their disgruntled fans.

The whiteboard resignation turned out to be a hoax. But, talk about a way to quit your job! Has anything [remotely] like this happened in your office? Tell me about it in the comments below.

Have a nice weekend.

October 13, 2011

Doggone-it. Must employers give leave to employees with hurt pets?

Thumbnail image for sleepingdog.jpegWorst. Pun. Ever.

In some states, employees who become victims of domestic violence, or whose family members are victims of domestic violence, are entitled to take a short unpaid leave from work. In one state, companies need to be aware of possible legislation that would require them to afford time off to employees whose pets are victims of violence or threats of violence.

Find out which state -- you have a 1 in 50 chance -- after the jump...

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October 12, 2011

What's new on the interwebs in HR and employment law?

I hope you enjoyed yesterday's Simpsons post. I had a blast writing it but, damn, it sapped the life out of me. So, after the jump, I'm sending you out into the blogosphere for your daily dose of employment law and HR news...

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October 11, 2011

Can Homer Simpson sue Mr. Burns for disability bias, and win?

homer.jpgIn yesterday's post, we looked at whether a morbidly-obese employee is protected under the Americans with Disabilities Act. 

Today, let's apply yesterday's discussion to a "real-world" example. Is Homer Simpson disabled? And is the Springfield Nuclear Power Plant legally obligated to offer him a reasonable accommodation? The answers after the jump...

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October 10, 2011

Is morbid obesity a disability under federal employment law?


Recently, the EEOC sued a Texas company, alleging that the company engaged in disability discrimination, in violation of the Americans with Disabilities Act, when it fired a 680-pound worker because he was morbidly obese.

Is that right? Can being overweight be considered a "disability" under federal law? And, if so, what can companies do to find themselves staring down the barrel of loaded ADA lawsuit? I'll answer these questions after the jump.

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October 7, 2011

A little ambiguity creates a BIG retaliation headache for employers

retalation.jpgRetaliation claims have become the leading cause of action for employees. In fiscal year 2010, retaliation charges filed with the EEOC nationwide accounted for 36.3% of all filings, at 36,258. There are three essential elements of a retaliation claim:

  1. Employee Protected Activity - opposition to discrimination or participation in the statutory complaint process;
  2. Employer Adverse Action - any adverse treatment (beyond a petty slight or a trivial annoyance) that is based on a retaliatory motive and is reasonably likely to deter protected activity; and
  3. Causal Connection - between the protected activity and the adverse action.

What makes retaliation claims so common? Well, it's not so much because they are are easy for employees to prove. In my opinion, it's because retaliation claims are tough for employers to disprove prior to trial.

Case in point after the jump...

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October 6, 2011

Get answers to your social media and hiring questions

Maybe it's that good feeling I still have after eating some hella-good spicy fried chicken at Bolton's Spicy Chicken & Fish in Nashville, TN last night.

Oh no, wait, that's heartburn.


In any event, I'm feeling generous. I feel like giving back some of the love. Later today, I will be speaking at the Advanced Employment Issues Symposium in Nashville, TN, where I will be presenting Using Social Media To Make Hiring and Firing Decisions: What's Legal? What's Not?. If you have social-media hiring-related questions that you would for like for me to answer, fire away! You just need to do two things for me.

  1. Read this disclaimer. (Focus very carefully on Numbers 3 and 4).
  2. Post your questions in the comments below or tweet them to @Eric_B_Meyer with the hashtag #AEIS11.

I will do my best to address them today and then post answers below or via Twitter.

October 6, 2011

NLRB puts the temporary kibosh on its mandatory union-rights poster

nlrb.jpgThe National Labor Relations Board announced yesterday afternoon that it has pushed back its deadline for covered employers to post this notice, advising employees how to form a union, among other things. 

More details, including the new deadline, after the jump...

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October 5, 2011

Employee drug testing and bashful bladders; it's a wicked pissah!


Your business drug tests job applicants as a condition of employment. What would happen if a male applicant refused to take a urine test because he claimed that he had paruresis, otherwise known as "shy bladder syndrome" or "bashful bladder syndrome"? Would you have to accommodate the applicant with a different type of drug test? Or could you just refuse to hire the applicant?

The EEOC recently addressed this topic and I have the answer -- along with some self-deprecation -- after the jump...

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October 4, 2011

Ever wondered what professional athletes are allowed to tweet?

loganmorrison.jpgThe other day, I came across this great article on ESPN.com, which outlines all of the social-media policies currently in effect for several sports leagues worldwide. What struck me most is that several organizations, including the NCAA, have no social-media policies for their athletes. And at the other end of the spectrum, the Ultimate Fighting Championship actually rewards its athletes based on number of Twitter followers.

This further supports a point that I like to hammer (e.g., here and here): ultimately, for any business, a social-media policy is never a "one-size-fits-all." Instead, the social-media policy -- and all companies should have one -- must be tailor-fit to the objectives and goals of the company.

For additional insight into drafting social media policies, I suggest Think Before You Click: Strategies for Managing Social Media in the Workplace.

Image Credit: Logan Morrison (a/k/a @LoMoMarlins) on Twitpic.com

October 3, 2011

Pyrrhic Victory: Judge ok's firing for Facebook post, but...


Last week, a National Labor Relations Board Administrative Law Judge (ALJ) ruled, for the first time, that an employer could legally fire an employee based on Facebook activity. In Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, the ALJ okayed a BMW dealership firing an employee who posted pictures (accompanied by some snarky comments) about a neighboring Land Rover dealership.

So what's up with the title of this blog post? And why should employers be concerned with this decision? Find out after the jump...

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