January 2012 Archives

January 31, 2012

Atten-shun! Expanded military leave FMLA rules are coming...

AirplaneThe United States Department of Labor announced here yesterday that it is issuing proposed rules that would expand military family leave provisions under the Family and Medical Leave Act and incorporate a special eligibility provision for airline flight crew employees.

Details and links after the jump...
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January 30, 2012

Your Gen Y employees love mixing business with pleasure online


At least that's what this survey from Millenial Branding says. (It's also on this infographic if you're lazy). According to the survey, which consisted of 4 million Gen-Y (ages 18-29) Facebook profiles from Identified.com's database of 50 million, nearly two-thirds of Gen-Y fail to list their employer on their profiles. However, they average 16 co-worker friends.

More on this, along with some tips for employers, after the jump...

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January 27, 2012

Aloha NFL social-media policy...for one day. #ProBowl

The Associated Press reports here that the National Football League will suspend its social media policy for one day -- Sunday -- to allow players who are participating in the Pro Bowl to tweet during the game.


Under the current NFL policy, players, coaches and football operations personnel can use Twitter, Facebook and other social media up to 90 minutes before kickoff, and after the game following traditional media interviews.

During the Pro Bowl, however, the NFL will set up a computer on each sideline where players are encouraged to use Twitter (and the #ProBowl hashtag) to communicate with fans, teammates and even opponents during commercial breaks and when their offensive or defensive unit is not on the field. 49ers Pro Bowl tackle Joe Staley plans to #tweetlikeaboss.

Players will not be allowed to tweet using mobile devices during the game -- hear that Joe Horn and Daunte Culpepper? -- but, the players can, however, tweet from their phones before the game and at halftime. Denver Broncos tackle Ryan Clady is already using the #ProBowl hashtag to promote a Waikiki boat party. I hope the invites to the '05 Vikings got lost in the mail.

Update: Here is a list of Pro Bowlers and their Twitter handles.

Image credit: thatsdopedaily.com

January 26, 2012

3 ways for HR to avoid unlawful, overbroad social-media policies

nlrb.jpgYesterday, the National Labor Relations Board announced in this press release that it had issued a second social-media report to help provide further guidance to practitioners and human resource professionals.

What does that report say? And how can you bulletproof your social-media policy?

Find out after the jump...

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January 25, 2012

You can't "rummage at will" through employee Facebook accounts

fishing.jpgWell, at least that's what a federal court recently told a defendant-employer in this ruling.

In Tompkins v. Detroit Metropolitan Airport, the plaintiff suffered a slip-and-fall and later claimed back and other injuries. She sued her employer, who subsequently demanded that Tompkins provide full access to her Facebook account. Acknowledging that Facebook information that a user shares only with a few Facebook friends may still be discoverable, the United States District Court for the Eastern District of Michigan, emphasized that there are limits to the Facebook discovery that a party may pursue:

[M]aterial posted on a "private" Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. [T]here must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.

As I've discussed on this blog many times before (e.g., here and here) employers may not engage in the proverbial fishing expedition, in the hope that there might be something of relevance in a plaintiff's Facebook account. The far better practice is to first lay a foundation that the social-media account may contain relevant information and then pursue that information or, if you're feeling lucking, full access to the account.

(h/t: e-Discovery Case Law Update)

Image credit: frank.itlab.us

January 24, 2012

U.S. Department of Labor has new FLSA and FMLA fact sheets

usdollogo.pngLast month, the U.S. Department of Labor published new fact sheets on its website. Employers and employees alike will want to check these out:

Here is a link to the FLSA fact sheet. This fact sheet provides general information concerning the FLSA's prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation.

The FMLA fact sheet, a copy of which you can find here, provides general information concerning the Family and Medical Leave Act's (FMLA) prohibition of retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA.

January 23, 2012

Fact or Fiction: If you don't say "FMLA", you can't take FMLA leave?

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:

That Eddie Employee is a gamer.

While filling up at the Gas-N-Gulp on his way to work, out of nowhere, a punk teen whacked Eddie across the face with a skateboard. Youch! Jaw broken, Eddie got back into his car, drove to work, and somehow managed to stumble into HR. Spitting out blood and teeth, Eddie asked Agatha Administrator for a week off from work to go to the hospital to have surgery to fix his ugly mug and recuperate. However, as Eddie slurred and lisped out his request, he never specifically mentioned the letters "F-M-L-A".

Let's assume that Eddie meets all of the length-of-service requirements under the Family and Medical Leave Act. Can he still take leave under the FMLA, even if he never utters those magic four letters.

You betcha. According to this FMLA fact sheet, Eddie only needs to provide "sufficient information for the employer to understand that the employee needs leave for FMLA-qualifying reasons (the employee need not mention FMLA when requesting leave to meet this requirement, but may only explain why the leave is needed)."

And if the employer fails to designate Eddie's leave as FMLA-leave, guess what? Eddie still has 12 weeks of FMLA leave that he can still use going forward. Although, under certain circumstances, the employer may be able to retroactively designate Eddie's jawbreaker leave as FMLA leave.

January 20, 2012

NJ officially adopts the Trade Secrets Act

Thumbnail image for nj1.jpgAs reported here in September, the State of New Jersey was recommending passage of the New Jersey Trade Secrets Act.

Well, welcome to the party, pal. (Or is it Powell?). Last week, NJ became the 47th state to adopt a version of the uniform trade secrets act as Governor Christie signed the NJTSA into law. The new law provides for both legal relief (damages for actual loss an unjust enrichment, punitive damages, attorney's fees) in the event of an actual misappropriation of trade secrets, and injunctive relief should there be an actual or threatened misappropriation.

January 19, 2012

Is it whistleblowing when your job is to report violations of the law?

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That is the question that a former Starbucks employee is asking the NJ Supreme Court to answer. More on this case and what it could mean for actions asserted under NJ's Conscientious Employee Protection Act (CEPA) after the jump...

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January 18, 2012

Crime & Punishment: Beware what you ask Philly job applicants

Thumbnail image for phillyskyline.JPGLast year, here and here, I discussed legislation that would prohibit Philadelphia employers from asking job applicants about certain arrests and making any personnel decisions based on records of an arrest that does not result in a conviction. That legislation is now the law. That law is the Philadelphia Fair Criminal Record Screening Standards Act.

Let's practice...

"So, do you have any old arrests for streaking across the field at Citizens Bank Park?" -- Illegal.

"How much would I have to pay you to skate across the ice at the Wells Fargo Center in a nude bodysuit?" -- Stupid. Inviting a sexual-harassment claim. But, technically, legal under the new Act.

For more specifics of the Act, check out this e-Alert from my Dilworth Paxson colleagues, Marjorie Obod and Katharine Hartman.

h/t Janette Levey Frisch

January 17, 2012

Oh, baby? An employee's pre-eligibility FMLA request is protected

Thumbnail image for Thumbnail image for fmla.jpegBack in 2005, a Pennsylvania federal court recognized in this opinion that an employee's FMLA rights become sacrosanct upon requesting FMLA -- even if the employee is not yet FMLA-eligible -- provided that the employee has satisfied all FMLA service requirements when the FMLA begins. Where would this most likely arise? Why with pregnancy, of course. Something like:

  • Female employee starts work;

  • A few months later, she gets pregnant and requests FMLA to commence upon childbirth; and

  • She gets fired before giving birth.

Hey, those sound like the facts of Pereda v. Brookdale Senior Living Communities, Inc., a case decided in the Eleventh Circuit Court of Appeals last week. More on this case, together with a big helping of FMLA tips for employers, after the jump...

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January 16, 2012

PA remains a hotbed of social-media discovery disputes


I've been slacking, folks.

Not since November have I blogged about a defendant's motion to compel a motion to compel an individual's social-media content. Since then, several more Pennsylvania courts have weighed in on this burgeoning area.

I'm sorry to each and every one of you. I have let you down. Will you ever stop judging forgive me? 

Oh, let's kiss and make nice. I'll get you caught up on the social-media-litigation goings-ons after the jump...

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January 13, 2012

And the most ridiculous lawsuit of 2011 was...

According to FacesOfLawsuitAbuse.org, the lawsuit that keeps those lawyer jokes flowing is...

bartsimpsonfrivolous.jpgConvict sues couple he kidnapped for not helping him evade police. A man who kidnapped a couple at knifepoint while he was running from the police is now suing the victims, claiming that they promised to hide him in exchange for an unspecified amount of money. The plaintiff, currently in jail, is seeking $235,000 for the alleged "breach of contract."

And from the ridiculous to the sublime just-about-as ridiculous...

A top runner-up was featured on this blog back in October; thus proving, once again, that the author of this blog has the maturity of an immature 12-year-old. It's the 60-year-old musician who sued for age discrimination and then claimed that the presiding 88-year-old judge was too old to hear the case.

Although, I particularly like the one that also ppears on the ridiculous lawsuit list about the mother who is suing Chuck E. Cheese, claiming that its games encourage gambling in children. Incidentally, I took my two-year-old and 10-month old to Chuck E. Cheese, last month. Although I have yet to find them throwing dice in the alley behind our house, I'm going to keep a close eye on them.

You can read the rest of 2011's most frivolous lawsuits here.

January 12, 2012

SCOTUS: Religious groups nearly exempt from job-bias laws

Thumbnail image for Supreme Court.jpgYesterday, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the United States Supreme Court unanimously held that the Establishment and Free Exercise Clauses of the First Amendment bar employment-discrimination lawsuits by ministers against their churches. More on this decision and some helpful reminders for private-sector employers after the jump...

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January 11, 2012

PA companies offering severance to employees should read this...

Starting this year, employees who receive severance pay in excess of 40% of the average annual wage in Pennsylvania will have their unemployment compensation benefits offset. Currently, that 40% number is $17,853.00.

As Jonathan Segal, Legislative Director for PA State Council of SHRM, notes here, employers should be very careful not to represent anything in a severance agreement that an employee could reasonably construe as suggesting that this change in the law will not apply. He adds here that employers should also consider beefing up their severance-agreement-release language to confirm that the release is effective even if severance is offset or reduced under PA law.

You can read more on the change in the law here.

January 10, 2012

Say cheese! Thank you for supporting organized labor.

photographer.jpgNo inflatable rats here, folks. Just some organizing shenanigans.

Last week, the National Labor Relations Board was tasked with determining whether a union may use the photograph of an employee, without his authorization, on union-organizing materials. Click through to find out how the NLRB decided this one...

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January 9, 2012

Can ADA-disabled employees be required to work overtime?


To prove disability discrimination under the Americans with Disabilities Act (ADA), a plaintiff, at a minimum, must prove that:

  1. she is disabled;

  2. she is otherwise qualified to perform the job requirements, with or without reasonable accommodation; and

  3. she was discharged (or otherwise suffered an adverse employment action) solely on account of her disability
After the jump, I have a recent federal court decision from Michigan which addresses the second prong above; specifically, whether and when working a minimum number of hours a week is an essential job function, such that if a disabled employee can't work those hours, she can be fired -- legally.

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January 6, 2012

10 of most common interview questions...and 5 of the crazaziest!

body language in job-interviewRecently, Glassdoor.com poured through thousands of interview questions and posted 50 that come up more often than not.

Here are the Top 10:

1. What are your strengths?
2. What are your weaknesses?
3. Why are you interested in working for [insert company name here]?
4. Where do you see yourself in 5 years? 10 years?
5. Why do you want to leave your current company?
6. Why was there a gap in your employment between [insert date] and [insert date]?
7. What can you offer us that someone else can not?
8. What are three things your former manager would like you to improve on?
9. Are you willing to relocate?
10. Are you willing to travel?

Glassdoor also listed 25 additional interview questions that are sure to blow your mind. These five would definitely freak me out:

    1. "Are you exhaling warm air?" (Asked at Walker Marketing).
    2. "How do you feel about those jokers at Congress?" (Asked at Consolidated Electrical).
    3. "You're in a row boat, which is in a large tank filled with water. You have an anchor on board, which you throw overboard (the chain is long enough so the anchor rests completely on the bottom of the tank). Does the water level in the tank rise or fall?" (Asked at Tesla Motors).
    4. "Does life fascinate you?" (Asked at Ernst & Young).
    5. "Just entertain me for five minutes, I'm not going to talk." (Asked at Acosta).
What about you? What's the wildest interview question you've ever heard? Let me know in the comments below.

January 5, 2012

Who owns the LinkedIn account you maintain for an employee?

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Yesterday, we looked at a recent federal-court decision to determine whether LinkedIn connections are considered trade secrets. Today, after the jump, we look at whether your business has any protectible interest in a LinkedIn account that you create and maintain for your employees.

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January 4, 2012

Re-open for business: Obama recess-appoints three to the NLRB

Well, color me surprised (I think that's purple).

Today, President Obama exercised his executive power to "recess" appoint -- actually, to be technical about it, no one is on recess -- three new members to the National Labor Relations Board, thus bringing the Board up to its full capacity of five members.


The recess appointees are Sharon Block (Dem.), Richard Griffin (Dem.), and Terence Flynn (Rep.). You can read more about them here in a White House release. And here is a release from the NLRB.

In this press release, the U.S. Chamber of Commerce denounced the NLRB appointments:

"The NLRB's credibility has suffered greatly during this administration due to an aggressive agenda favoring the unions. The president could have chosen to work with the Senate and stakeholders to see if a package of nominees could be confirmed that would help restore the agency's independence and credibility. Instead, today's steps will simply further poison the well with regard to labor-management issues pending in front of the Board and on Capitol Hill."

The Board had been operating in 2012 with just two members, after the term of Craig Becker, President Obama's prior recess-appointee, expired. According to the U.S. Supreme Court, a two-member Board is powerless to exercise any authority. Thus, we have the recess appointments.

Correction: This post has been updated with a new quote attributed to the U.S. Chamber. The original post referenced a quote from this article, criticizing President Obama's decision to recess-appoint Richard Cordray as head of the Consumer Financial Protection Bureau.

January 4, 2012

Are employees' LinkedIn contacts considered your trade secrets?

Over the past several weeks, you probably read about this case involving a company suing one of its former employees whom it alleges misappropriated a Twitter account and, along with it, 17,000 Twitter followers that the company believes it owns. A video about the case follows below:

Late last month, I learned of another case (h/t TechDirt), in which a former high-level executive and her prior employer are currently duking it out to see who owns the connections on the executive's LinkedIn page. More on this story and whether LinkedIn contacts are even trade secrets at all, after the jump...

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January 3, 2012

The curious case of a high-speed ambulance-chasing whistleblower

'First Birthday cake and cupcakes' photo (c) 2011, kristin_a (Meringue Bake Shop) - license: http://creativecommons.org/licenses/by-nd/2.0/But before I get to that, did you know that The Employer Handbook turns one today? It's true. Help me blow out the candle -- hey, kid! Save some for the rest of us.


Just click through because I've got a crazazy one for you. It's a true story about a police officer - slash - ambulance driver who started a high-speed ambulance chase to serve a restraining order on a co-worker's ex-boyfriend and then...

Yeah, just hit the jump...

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