March 2012 Archives

March 30, 2012

EEOC clarifies ADEA "reasonable factors other than age" defense

Thumbnail image for eeoclogo.pngYesterday, the U.S. Equal Employment Opportunity Commission (EEOC) issued its "Final Regulation on Disparate Impact and Reasonable Factors Other than Age" (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA).

Wait, wha, wha, what the heck is an RFOA?  (The Cliff Notes versions because, like, you could click on the link above, dudes.)

Can you tell it's been a long day as I punch out this post? Anyhoo, make with the jump, dawg...

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March 29, 2012

Fact or Fiction: FLSA preempts state wage and hour laws?

Fact or Fiction?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" d/b/a (just for today) "Eric's 36th-Birthday Post"

*** Sigh ***

Ahh...let's get to today's question:

May an employee raise claims in federal court against an employer under both the Fair Labor Standards Act (federal) and a state wage and hour law? Or is the latter preempted by the former, such that an employee may only pursue FLSA claims?

The answer to today's question -- at least in the Third Circuit Court of Appeals -- comes to us from a decision rendered Tuesday in Knepper v. Rite Aid Corp. There, the court recognized that the FLSA "evinces a clear intent to preserve rather than supplant state law." Consequently, it held that state wage and hour laws such as the Maryland Wage and Hour Law and the Ohio Minimum Fair Wage Standards Act -- two laws that track the federal overtime requirements -- are not preempted by the FLSA.

The answer to today's QATQQ is FICTION.

March 28, 2012

6 keys to keeping unpaid internships from becoming a hot wage & hour mess

unpaidintern1.jpgYesterday, I presented "Reducing the Risk of Wage and Hour Litigation" with my partner, Jennifer Platzkere Snyder, at ALM's In-House Counsel Labor and Employment Law Forum. We talked best practices, common mistakes, and Supreme Court.

We also dipped into some hot issues, the hottest of which, by far, based on audience engagement, was unpaid internships. Oh boy, is it easy for companies to potentially screw up unpaid internships. Just ask Charlie Rose and Harper's Bazaar

Want to get 'em right without running afoul of the Fair Labor Standards Act. Six steps to success follow after the jump...

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March 27, 2012

The Ambien alternative a/k/a NLRB FY11 operations statistics


The Acting General Counsel of the National Labor Relations Board recently released a 10-page summary of operations for FY 2011. But, you can find a short summary here.

Here are some stats that caught my attention (relatively speaking, of course):

  • In FY 2011, the Regional Offices issued 1,342 complaints as compared to 1,243 in FY 2010.

  • The Regional Offices recovered $60,514,922 on behalf of employees as backpay or reimbursement of fees, dues, and fines in FY 2011, compared to $86,557,684 in FY 2010.

  • In FY 2011, the median time to proceed to an election from the filing of a petition was 38 days, the same rate achieved in FY 2010, "and well below our target median of 42 days." (NLRB's words, not mine. And they want to "streamline" the election process because...)

March 26, 2012

Relax! Businesses don't want employee Facebook passwords.

Chicken LittleBut, if you think they do -- maybe you read this article last week -- then I have a bridge in Brooklyn to sell you, sucker.

Come on! The sky isn't falling. Demanding social media access from employees and potential hires and is most definitely the exception and not the rule. And I'll set the record straight on this bad business practice after the jump...

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March 23, 2012

So, can a prevailing defendant really recover e-discovery costs?


Remember when I told you that a prevailing defendant could recover all electronic discovery costs? I lied.

Oh, let off some steam and stick around. Allow me to explain. Actually, I'll let Phil Miles at Lawffice Space explain:

Last Friday, the Third Circuit released a definitive opinion regarding taxation of e-discovery costs against losing litigants...Judge Vanaskie (who I'll note is pretty hip to technology issues) largely vacated an order awarding $360,000 in e-discovery costs to the defendant, slashing it by more than 90%.
. . .
Although there may be strong policy reasons in general, or compelling equitable circumstances in a particular case, to award the full cost of electronic discovery to the prevailing party, the federal courts lack the authority to do so, either generally or in particular cases, under the cost statute.

Ultimately, in Race Tires Am., Inc. v. Hoosier Racing Tire Corp., a copy of which you can find here, the court concluded that converting and scanning electronic files were recoverable costs, while collecting and preserving electronically stored information (ESI), processing and indexing ESI, and keyword searching of ESI for responsive and privileged documents was not. Hasta la vista, baby.

Oh, don't worry. I'll be back...on Monday.

March 22, 2012

Court allows plaintiff a quick peek into defendant's Facebook account

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A state court judge in Pennsylvania has come up with a new way to afford litigants access to social media as part of discovery in a pending civil action. Daniel Cummins at Tort Talk has the details:

The Judge's page long Order does not provide the background on the case leading up to this Motion and Order, or why such discovery was pursued by the Plaintiff.

While the Court did grant the Plaintiff access to the Defendant's Facebook page and ordered the Defendant not to delete any info from the Facebook profile, the Defendant was granted permission to change his login name and password after seven (7) days following his compliance with the Court's Order.
Anyone desiring a copy of this Order may click here.

Not only did the judge create a new way for party-access to social media accounts, but did you notice that a plaintiff received access to the defendant's social-media account. Not that this is entirely that surprising. Indeed, any information (paper, electronic, even social media) that is likely to lead to the discovery of admissible evidence in a civil action may be fair game during discovery for either side.

In the employment context, corporate-litigants should be mindful that if you press hard for a former employee's social media goodies during employment-related litigation, the plaintiff may just fire back with a few social-media requests.

March 21, 2012

#SCOTUS clarifies scope of FMLA coverage for employers

Thumbnail image for Supreme Court.jpg

Yesterday, the U.S. Supreme Court in Coleman v. Court of Appeals of Md. held that state employees have no cause of action under the self-care provision (last bullet point in the hyperlink) of the Family and Medical Leave Act. In plain English, if you work for a State employer, and you need time off work for a serious health condition that leaves you unable to perform the essential functions of your job, the FMLA does not require that your employer give you any time off. 

Yesterday's SCOTUS opinion does not affect the FMLA rights of two classes of eligible employees:

  1. Employees of public agencies; and,

  2. Employees who work for private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year - including joint employers and successors of covered employers.

Also, the Court reaffirmed that states (and the other employers listed above) may still face FMLA liability for violating the family-care provisions of the FMLA (first three bullets in the hyperlink). The Court also did not discuss the right to take leave under the Americans with Disabilities Act or various state leave laws.

I'm pretty sure that this is my wife's least favorite song. No, indeed, I am certain.

March 20, 2012

Distinguishing state & federal disability-accommodation claims

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Let's say you operate a business in NJ. Your disabled employee comes to you requesting an accommodation for his disability. Does the mere failure to provide that accommodation trigger a claim under the New Jersey Law Against Discrimination (NJLAD)? What about under the Americans with Disabilities Act (ADA)?

I have two recent cases and two different answers -- depending on whether you are in state or federal court, plus some general accomodation tips for employers after the jump...

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March 19, 2012

4 new employment-law bills now pending in Congress


Below are summaries of four pieces of legislation of which employers should take note:

  1. Protecting Older Workers Against Discrimination Act. Senator Tom Harkin (IA-D) introduced this bill last week. It would overturn the U.S. Supreme Court's decision in Gross v. FBL Financial Services, Inc. and lower the burden of proof for employees to prove age discrimination claims.

  2. National Right to Work Act. Senator Jim DeMint (SC-R) has introduced this bill to "preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities."

  3. Working Families Flexibility Act. Late last month, Rep. Carolyn Maloney (NY-D) and Senator Robert Casey (PA-D) introduced this bill in both the House and Senate. In effect, it would create a statutory right for employees to request flexible work terms and conditions. Employers who receive such requests must then engage in an interactive dialogue with the employee.

  4. Keep Employees' Emails and Phones Secure Act. This bill from Rep. Sandy Adams (R-FL) would "prohibit the National Labor Relations Board from requiring that employers provide to the Board or to a labor organization the telephone number or email address of any employee."

Gun to my head, none of these bills pass. But, all are worth watching. And speaking of watching, in the spirit of this post, below is the "I'm Just a BIll" Schoolhouse Rock video. You can also find the Simpsons parody here.

Huge h/t to the Washington DC Employment Law Update for some of these goodies (not the video, just the bills).

March 16, 2012

Baseball has a new social media policy. And it may be unlawful.

I'll tell you why, after the jump...

Continue reading "Baseball has a new social media policy. And it may be unlawful." »

March 15, 2012

Arbitration agreement tips for PA employers from the 3rd Circuit

Early in my legal career, a colleague taught me the expression: pigs get fed; hogs get slaughtered. Essentially, be agressive. But push too hard, and you may lose it all.

Some PA companies require their new hires to sign an agreement requiring them to arbitrate any claims that arise out of the employment relationship. The U.S. Supreme Court has held that agreements requiring employees to arbitrate employment-related claims are ok. However, in Pennsylvania (as in other states), when those agreements are too one-sided, courts deem them unconscionable and, therefore, unenforceable.

So remember, pigs get fed; hogs get slaughtered. And thanks to a decision the Third Circuit Court of Appeals handed down yesterday, PA employers now have a better blueprint as to how to avoid unconscionable arbitration agreements. Details after the jump...

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March 14, 2012

Score! PA Senator pushing to legalize March Madness at work.

marchmadness.pngWill office pools be legal in Pennsylvania this year? One State Senator is trying to make it so. 

Jealous, New Mexico? Yeah, you're jealous.

Details after the jump...

Continue reading "Score! PA Senator pushing to legalize March Madness at work." »

March 13, 2012

Flyer claims Chick-Fil-A asks potential hires about sexual history

Over the weekend, I read this story by Laura Hibbard at the Huffington Post about a phony job flyer handed out by two men in red blazers posing as Chick-Fil-A employees [link to video] on the campus of New York University. The phony flyer states:

Remember Chick-Fil-A is a Christian company. We strive to have our values reflected in our employees. Please be prepared to discuss your religion, family history, personal relationships etc. upon interviewing. Chick-Fil-A reserves the right to question, in detail, your sexual relationship history. The Bible and Chick-Fil-A, define a traditional relationship as consisting of a man and woman. Anyone living a life of sin need not apply. The Chick-Fil-A Foundation. God, Family, Tradition.

The flyer and video have since gone viral. However, Chick-Fil-A, which has a stated corporate purpose to "glorify God by being a faithful steward of all that is entrusted to us," responded by posting on the wall of its Facebook Fan page (incidentally, 4,960,921 people "like" Chick-fil-A) that the flyer and video were BS. Given the company's religious leanings, the comments beneath Chick-Fil-A's status update are rather polarizing.

But since this an employment-law blog, there is an employment-law point to be made. Just because you technically can ask certain questions during a job interview, doesn't mean you should. Indeed, you may want to consider steering clear of these other 29.

But feel free to watch the vids below...

March 12, 2012

Here's a tip. Don't post Peyton Manning's dinner bill on the 'net.

Peyton ManningBecause it'll cost you your job.

Dale Gibson of The Triangle Business Journal reports here that a waiter at The Angus Barn in Raleigh, NC posted on the internet a copy of Peyton Manning's credit card receipt from a recent dinner there. Manning may not have a job, but he tips like a boss! Not like Mr. Pink. (Go to YouTube and search for "Reservoir Dogs - Tipping Scene" -- you'll find a number of hysterical, albeit completely NSFW videos about tipping etiquette).

Back to Peyton, according to the TBJ article, once the owner of The Angus Barn learned about the check, she quickly fired the waiter. "This goes against every policy we have," said the owner. "It's just horrible."

Well, I don't know about every policy, but certainly the social media policy. Not a bad idea to include in that policy a guideline for employees to refrain from sharing information about customers that the customers themselves would not share with the world -- like patient x-rays, for example.

(h/t Jon Hyman)

March 9, 2012

More child labor for The Employer Handbook

three meyers.jpgI usually save my best posts for Monday, but what the heck...

We are expecting our third child in August.

March 9, 2012

More on obesity and ADA discrimination

Back in December, I wrote here about a federal court in Louisiana recognizing that a morbidly-obese plaintiff may have a physical impairment which, if it substantially limits one or more major life activities, would bring that plaintiff within the scope of the ADA (the pre-ADAAA version).

As an update to that post, last week, the same Louisiana federal court granted summary judgment, in part, to the EEOC, who was asserting the claim on behalf of the employee. Specifically, the court ruled that the EEOC had affirmatively established that the employee, who was morbidly obese, had a "disability" within the meaning of the ADA.

Disclaimer: I serve as an EEOC mediator.

March 8, 2012

What's cookin' in celeb chef Paula Deen's kitchen? Discrimination?

Allegedly, of course.


Details after the jump...

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March 7, 2012

7 things I learned presenting on social media at #SHRMleg

359/366On Monday I had the privilege of presenting "Social Media for HR: Practical Guidance from a Generation Y Attorney" to a packed house at the SHRM 2012 Employment Law and Legislative Conference in Washingon, DC. I killed (naturally) and the audience of attorneys and HR professionals was fantastic. During the course of this interactive session, some of what the audience had to say really surprised me. And it may surprise you too. Click through to find out what real HR pros are doing to address social media in he workplace...

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March 6, 2012

Can one anti-Semitic email make a tenable employee bias claim?

number 1 (From 191)When an employee sues his former employer alleging a religiously hostile work environment, he must prove, among other things, that he was subjected to harassment based on his religion and that the harassment was either severe or pervasive.

What do you think? Is the email below from a company General Manager severe enough for ya?

Can I just say something I shouldn't to you here -- he is SUCH A JEW! In a BAD way. He's what gives Jews a bad name. He's smarter. He's better. He's owed. He will do anything to keep from opening his wallet -- right down to not eating!!!! And I am DEAD serious here!!! That's why he expenses every single thing he can because he won't pay anything! I have not seen him bring one single thing into this office in all the time he's been here -- period. (that he paid for) IF he does bring something in he expenses it. . .I COULDN'T say to him what I just did to you -- that HE is what gives Jews a bad name!!!

Let's see what a NJ court said, after the jump...

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March 5, 2012

Up with NLRB employee-rights posters, or suffer ze consequences

rights poster.pngBack on August 26, in this post, I gave the heads up that the National Labor Relations Board would require most private-sector employers to post this notice (a super-sized version of the one on the right), in a conspicuous location, informing employees of their rights under the National Labor Relations Act, which includes the right to form a union.

And then some employer groups went to court because they don't like NLRB posters. In response, the NLRB slowed its roll not once, but twice, delaying the postponing the posting deadline until April 30, 2012.

Now a federal court has weighed in on the posting requirement. What did it say? And will your business have to post something by April 30, 2012. Find out after the jump...

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March 2, 2012

Will states outlaw demanding online passwords from employees?

A password key?About a year, I wondered whether employers should ever require job applicants to divulge Facebook passwords. Ultimately, I concluded then -- and still believe now -- that while employers may choose to use social media as part of a background-check process, you're playing with fire if you start asking job applicants to divulge social-media passwords to make it easier to vet them.

Two states are now taking steps to make it illegal to force job candidates to reveal online user-names and passwords. One of those states is taking it one step further...

What two states and what they doing?!? (And what's with that creepy image on the right). Aaaaah!!!! Click through to find out...

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March 1, 2012

USERRA + ADAAA = 11 letters and many more HR issues

Thumbnail image for eeoclogo.pngQuick quiz: 

  1. What protections does the ADA provide to veterans with disabilities?

  2. When is a veteran with a service-connected disability protected by the ADA?

  3. May an employer ask if an applicant is a "disabled veteran" if it is seeking to hire someone with a disability?

So, how did you do? (I went if!)

If you're stumped or confused, the U.S. Equal Employment Opportunity Commission has your back. Earlier this week, the EEOC released this guide for employers, about protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations. 

So, take a few minutes and educate yourselves. They even have an employment guide for wounded veterans as well.