December 2011 Archives

December 30, 2011

Your favorite "The Employer Handbook" posts from 2011


As the year draws to a close, let's take a look back at the most popular posts at The Employer Handbook in 2011, based on number of hits:

5. Social media and the workplace. School teacher Natalie Munroe made several appearances on the blog this year. Remember her? She was the blogging school teacher who wrote that her students were "utterly loathsome in all imaginable ways." Although, Ms. Munroe eventually returned to work, her experience is a sound reminder to always think twice before hitting "send." You can read the fifth-most-popular post, "Yes, you CAN discipline employees who abuse social media" here.

4. I'm a poet and I don't even know it. I'm not sure what inspired the fourth-most-popular post. It must have been a slow news day. How else do I come up with the idea to Haiku -- verbing a noun, sorry -- about recent employment-law decisions from the U.S. Supreme Court?

3. FMLA remains a hot issue. This one surprised me. The third-most-popular post is about FMLA legislation in Pennsylvania that never passed.

2. Short and sweet. The second-most-popular post was one of my shortest. I merely announced that the EEOC had finalized its ADAAA regulations. (Note to self: keep it short)

1. Yeah, I know, you only clicked "by accident." This was a runaway. Not even close. To put things in perspective, nearly 4% of all page views at The Employer Handbook were on this one story. Not to come off as too vain -- I'm sure I've done that already in my other stellar posts -- but nearly four times as many viewers checked out the number-one post than my blog biography. What else can I say? In the end, sex sells. (Note to self: keep it sexy).

Thank you to everyone who made The Employer Handbook such a success in its first year. We'll be back on January 3, 2012, the official one-year anniversary of the blog, with something short and sexy employment-law related. But possibly short and sexy.

Image credit:

December 29, 2011

This is why HR should timely document employee issues

Documentation and paying attentionLast week, a federal appellate court (here) allowed a white assistant manager to pursue claims of reverse race discrimination against a bank because the reasons that the bank offered to the court for firing the plaintiff did not jibe with the documentation in its own file. Oh, wait a minute, there was zero documentation in the file.

I smell some trouble for the employer and some good lessons for my business readers, after the jump, of course...

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Continue reading "This is why HR should timely document employee issues" »

December 28, 2011

Age discrimination: It's not rocket science.

The "Science" Section in Borders Oxford Street

Oh, Meyer, where are you going with this one?

Well, it's my chance to play a little GnR after the jump while reminding my awesome employer readers about what it takes for an employee to actually prove a claim of age discrimination.

(Hint: It's not easy)...

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Continue reading "Age discrimination: It's not rocket science." »

December 27, 2011

"Sex-plus" discrimination: Illegal? Yes. But what the heck is it?

baby stroller favor

I have no idea. I was hoping that one of you could help me out.

Oh, wait, I'm supposed to be the expert here. Ok. Fine. I'll play some music and dish the deets -- hint, it has something to do with the picture -- after the jump...

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Continue reading ""Sex-plus" discrimination: Illegal? Yes. But what the heck is it?" »

December 23, 2011

NLRB: Employers can keep that union-rights poster on ice

Presents Under the Tree 138/365 And just in time for Christmas.

The National Labor Relations Board announced today that it has again extended the deadline for covered employers to post this notice, advising employees how to form a union, among other things. The new deadline is April 30, 2012.

The NLRB decided to further delay the posting deadline at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule.

Hey, who loves ya! Happy Holidays from The Employer Handbook.

December 23, 2011

Your employee has migraines and can't work. But is she disabled?

The Americans with Disabilities Act (ADA) prohibits covered employers from discriminating against job applicants and employees on the basis of a disability. What is a disability, you ask? A disability is "a physical or mental impairment that substantially limits one or more major life activities."

If your employee suffers from severe migraines that prohibit the employee from working, does the employee have a disability? Good question. It just depends on what "working" means. Click through and I have a good answer from a recent federal court decision...

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Continue reading "Your employee has migraines and can't work. But is she disabled?" »

December 22, 2011

How will your employees be using social media in 2012?

Question Better yet, what can your business do to capitalize? I've got answers to these questions after the jump.

Continue reading "How will your employees be using social media in 2012?" »

December 21, 2011

Fail! NYU prof fired for giving actor James Franco a "D"?

I need to come clean with y'all. is one of my guilty pleasures. Don't hate!

Historia-249And you should have seen the beaming smile on my face on Monday when when I got some blogging gold as TMZ ran a story about a former college professor at NYU who claims that the school discriminated against him by firing him for, among other things, giving actor James Franco a "D".

The monkey's out of the bottle now! More after the jump...

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December 20, 2011

One blueprint for requiring employees to arbitrate FMLA claims

A NJ court recently held that a business can force an employee to arbitrate FMLA claims -- even if the arbitration agreement that the employee signs does not contain a specific FMLA waiver.


How does this all work?

Well, according to the NJ Superior Court in Flores-Galan v. J.P. Morgan Chase & Co., N.A., "an agreement to arbitrate statutory anti-discrimination claims must be specific enough to put the employee on notice of the claims encompassed." However, "an arbitration clause need not specify every conceivable statute that it covers."

Ultimately, according to the court, an arbitration agreement that forces an employee to forgo litigation of certain employment claims must satisfy two criteria:

  1. It should contain a waiver of rights provision that, at the very least, "provide[s] that the employee agrees to arbitrate all statutory claims arising out of the employment relationship or its termination.

  2. The agreement should also reflect that the employee understands the type of claims included in the waiver, e.g., workplace discrimination claims.

Keep in mind that laws may vary from state to state. Best to contact an employment attorney before having an employee sign any arbitration agreement.

December 19, 2011

Nothing good comes of forcing employees to go to brothels

redlightdistrict.jpgAnd, then, there are those that allegedly do. It is on those occasions that this blog can practically write itself.

Take, for example, AutoNation. According to a complaint recently filed in California state court -- well, let's just say that AutoNation better have some good lawyers.

A copy of the complaint and some crazazy unlawful harassment -- allegedly, of course -- follows after the jump. Along with a few employer tips on same-sex harassment.

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Continue reading "Nothing good comes of forcing employees to go to brothels" »

December 16, 2011

Guest Post: Facebook's Privacy Problem

facebookprivacy.jpgI'm taking the day off. I think I deserve it.

So, after the jump, we have a guest post from Angelita Williams. Angelita writes on the topics of online courses. She welcomes your comments at

(BTW - If any of you lovely readers are interested in guest posting here at the ol' Handbook, email me).

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Continue reading "Guest Post: Facebook's Privacy Problem" »

December 15, 2011

When your employee works OT on the QT, must you pay it?

overtime.jpgThat was the question that the Seventh Circuit Court of Appeals faced in an opinion released yesterday. I'll provide the answer and some analysis after the jump...

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December 14, 2011

Fact or Fiction: Courts recognize retaliation against ex-employees

Thumbnail image for ffiction.pngThat'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". So, let's get right to today's question:

Let's say I have a former employee who files a charge of discrimination with the EEOC. If a potential new employer comes calling from a job reference and I...

    1. give my former employee a bad reference;
    2. to get back at the employee for filing the charge; and,
    3. because of my bad reference, the former employee is not hired...

Have I engaged in actionable post-employment retaliation?

You bet I have! So, the answer to today's QATQQ is "FACT".

Consistent with the U.S. Supreme Court's decision in Robinson v. Shell Oil Co., here in the Third Circuit (PA, NJ, DE, USVI) post-employment retaliation is bad, bad, bad. In this Third Circuit decision, the court held that "an ex-employee may file a retaliation action against a previous employer for retaliatory conduct occurring after the end of the employment relationship when the retaliatory act is in reprisal for a protected act and arises out of or is related to the employment relationship."  Many state courts are on boards with this too (For example, check out this case from the NJ Supreme Court). A former employer engages in retaliation where its action results in discharge from a later job, a refusal to hire the plaintiff, or other professional or occupational harm. In essence, post-employment retaliation must involve some harm to an employee's employment opportunities.

December 13, 2011

Twitter costs four their jobs and saves another from death row

makeasandwich.jpgIs there anything that Twitter can't do?

*** Twitter, make me a sandwich! ***

Anyway, after the jump, news of three congressional aides who could use a job, a mixed-martial artist whose bosses don't appreciate tweets about "rape vans," and a convicted murderer on death row who is going to get a new trial because of a juror's tweets...

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Continue reading "Twitter costs four their jobs and saves another from death row" »

December 12, 2011

Can an employer discriminate against an obese employee?

tapetummy.jpgThere is no federal law that specifically prohibits obesity discrimination. But is the Americans with Disabilities Act broad enough to cover discrimination against the obese? Well, if you read my blog regularly -- Hi Dad! -- you know that a hyper-obese Homer Simpson is not disabled, but this 680-pound Texas may be. So, we need a tiebreaker! And, it just so happens that I have one, after the jump...

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Continue reading "Can an employer discriminate against an obese employee?" »

December 9, 2011

What are the consequences of ignoring a written handbook policy?

employeehandbookblue.jpgWhat's the point of having a written handbook policy if you aren't going to follow it? Better yet, what are the consequences of not following that handbook policy?

(Hint: they're bad).

Find out why after the jump...

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December 8, 2011

Will ya just retire already? No, but I'll sue for age discrimination.

retirement.jpgBack in August, I blogged about a case where a federal court held that an employer inquiring about an employee's retirement plans, alone, does not discriminate on the basis of age. But what about relentlessly browbeating a plaintiff into retiring? Could that be age discrimination? What do you think, Brett? Find out after the jump...

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Continue reading "Will ya just retire already? No, but I'll sue for age discrimination." »

December 7, 2011

Carnival of HR - Two Turntables and a Microphone Edition (Word!)

Play it loudphoto © 2011 Dr Garageland | more info (via: Wylio)WTH were you expecting? HR compliance?


Hit my music, son...

...and then hit the jump, because DJ E-$killz is on the one and two, mixing beats with some of the best that the HR blogosphere has to offer.

Beleeeeeeeeeee dat! It's the Carnival of HR, yo...

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Continue reading "Carnival of HR - Two Turntables and a Microphone Edition (Word!)" »

December 6, 2011

Employees who share porn and take FMLA lose retaliation claims

Thumbnail image for Thumbnail image for fmla.jpegSo, yeah, in cased you missed it, yesterday, was part one of a gripping two-part series about how employees who share XXX at work tend to get the short-end of the litigation stick should they later decide to sue their employers.

Today, we conclude this series -- thankfully -- with a look at a hospice nurse who felt it appropriate to share cell phone shots of her boyfriend's wee-wee with some of her patients. She then takes FMLA leave and, yeah, you can see where this is headed (after the jump...)

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Continue reading "Employees who share porn and take FMLA lose retaliation claims" »

December 5, 2011

Older employees who share porn at work lose age bias claims

Your employees view pornography. Well, some of them do.

I know this may be a shock to some. And if you are one of those people, and you run a business in one of the mid-Atlantic states, give me a call. We should talk sometime. Then, I'll hit you over the head with a proverbial tack-hammer.

Until then, over the next two days, I'll address two recent examples of where nekkid pix caused employees to lose lawsuits against their former employers. The first case -- an age discrimination matter -- follows after the jump

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Continue reading "Older employees who share porn at work lose age bias claims" »

December 2, 2011

ABA Journal names The Employer Handbook a top law blog!

Thank you to everyone who voted for The Employer Handbook as one of the ABA Journal's Top 100 law blogs. They also drank the Kool-Aid listened and the blog made the top 100! I am truly honored.

11Blawg100_VoteBlogSmallBlu.jpgNow, top 100 is great and all, but I want to be Number 1. And here's how you can help in three easy steps:

    1. Click here and complete a simple online form. It'll take you 15 seconds.

    2. Then, click here and scroll about halfway down the page until you see the words "Labor and Employment"

    3. Click on the words "Labor and Employment" and vote for The Employer Handbook. 

It's a simple as that! (And you know I would do the same for you). Just make sure to vote by December 30. So why not vote today? I'm talking right now!

Thank you again to those who voted the first time around to put The Employer Handbook into the Top 100 and to those who vote now to make The Employer Handbook the number-one employment-law blog. I truly appreciate it.
December 1, 2011

72 ways to prevent an office party from creating an HR hangover

hangover.jpgIf you read this blog, then I trust you read other HR/Employment-law-related blogs. And, if you do that, prepare for a December-deluge of "Ten Tips for a Safe, Fun, and Legal Holiday Party."

Screw all that! Ten tips is so last year. 

*** Big dork say "what" ***

"What! What!" After the jump, I've collected 72 ways to hold an office holiday party that won't interfere with you ending the year on an HR high-note...

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Continue reading "72 ways to prevent an office party from creating an HR hangover" »