April 2012 Archives

April 30, 2012

New federal law will bar employer demands for online passwords #SNOPA

A few weeks ago, as reported here, Maryland became the first state to pass legislation that would ban employers from demanding that employees or job candidates turn over their social media passwords.

Could a federal law be soon to follow? Find out, after the jump...

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April 27, 2012

The NLRB's blueprint for "quickie" union elections

"Blueprint"? Word. But, do you know how tough it is to find a blog-appropriate Jay-Z hit? Hmmm...let's try this one.

On Tuesday, the National Labor Relations Board's "quickie" election rules survived a Senate challenge. Next week, April 30 to be exact, they go into effect. Hey! Isn't that when the poster rules go into effect, too? Psyche!

Solitudephoto © 2011 Mortimer62 | more info (via: Wylio)In anticipation of April 30, employers will want to familiarize themselves with this memo from NLRB Acting General Counsel Lafe Solomon -- we are presenting at the same event today -- discussing the new representation case procedures. The guidance covers the entire representation case process from beginning to end, incorporating to the extent necessary the new rules and the procedures that remain unchanged.

And if you don't feel like plowing through a 24-page memo, the General Counsel's office also issued a set of Frequently Asked Questions explaining the Board's revised rules and the procedures.

Although the new "quickie" election rules do not set new, specific timeframes for conducting hearings or elections, it appears likely that the time from petition to election will decrease. So, now is the time to do something about possible unionization of your workforce so that, if a  Representation petition is filed, your business is prepared to respond.

April 26, 2012

5 takeaways from the EEOC's new guidance on use of criminal records

Thumbnail image for jail.jpg

Yesterday, the US Equal Employment Opportunity Commission issued updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. (Title VII is the federal statute that prohibits discrimination in the workplace based on race, color, religion, sex and national origin). You can read a full press release on the updated Enforcement Guidance here.

The press release includes a link to questions and answers about the EEOC's Enforcement Guidance. However, I will summarize the most important points for employers after the jump...

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Continue reading "5 takeaways from the EEOC's new guidance on use of criminal records" »

April 25, 2012

NLRB "quickie" election rule survives a Senate challenge

Foucault PendulumLast week was not so good for the National Labor Relations Board. The DC Circuit iced a Board rule that would have required most private-sector employers to post a notice in the workplace informing employees of their right to form a union.

Yesterday, however, the pendulum swung the other way and employers may soon be feeling the heat as we are now that much closer to expedited union elections.

Feel the heat? Iced a Board rule? Am I firing up a cool tune from Foreigner or Katy Perry after the jump? Guilty as charged. Plus, click through for details on how faster union elections may soon be coming to your workplace, and possibly another unwelcome surprise (hint: four letters, sounds like EFCA)...

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Continue reading "NLRB "quickie" election rule survives a Senate challenge" »

April 24, 2012

Failure to provide timely COBRA notice, retaliation? No, Sensei!!!

cobrakai.jpg Workplace retaliation was the last thing on the mind of Cobra Kai Sensei John Kreese when he told Johnny to sweep the leg

Similarly, workplace retaliation was likely the last thing on the mind of the defendant-employer, in Thompson v. Morris Heights Health Center, when it sent out a late COBRA notice to the plaintiff, a former employee that had filed a Charge of Discrimination with the EEOC. The court held that an employer is not liable for retaliation where the employee: (1) received the opportunity to enroll retroactive to the date the employee's health insurance ends, (2) turned down COBRA in favor of Social Security Disability benefits, and (3) did not seek subsequent employment.

And now that we have that clear...

What do we study here?
 And what is that way?
I can't hear you.

(h/t Liz Goldstein)

April 23, 2012

An HR primer on handling religious-accommodation requests

religion is an imperative statement.Do you know what to do if an employee comes into your office asking for a shift change or some other workplace accommodation because of a sincerely-held religious belief?

A short lesson from a recent federal-court decision and a few tips after the jump...

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April 20, 2012

Court holds mistaken discrimination is unmistakably illegal


The Americans with Disabilities Act explicitly forbids discrimination against those who are actually disabled or "regarded as" disabled. As a NJ court once recognized, "Distinguishing between actual handicaps and perceived handicaps makes no sense." Indeed, "prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be . . . non-existent."

Does the same maxim apply to workplace discrimination -- a barrage of anti-semitic comments -- directed at employee whom the harassers believe is Jewish, but really isn't?

Is that unlawful?

The answer from a NJ court after the jump...

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Continue reading "Court holds mistaken discrimination is unmistakably illegal" »

April 19, 2012

Even a voluntary demotion can lead to a retaliation claim

Hobson's Choice Victorian punchA maintenance mechanic in Illinois received 28 disciplinary-action forms from his supervisor. Ultimately, he was offered two choices: (1) accept a demotion to a non-mechanic position and take a significant pay cut; or (2) keep the position, fight the discipline, but face potential termination.

On the advice of his union representative, the mechanic took the demotion. He later sued for retaliation, claiming that the demotion, which he voluntarily accepted, was a direct response to a charge of discrimination he previously filed with the EEOC.

Is this retaliation? A federal circuit court gave us the answer yesterday. And I have it for you after the jump...

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April 18, 2012

The NLRB officially delays the mandatory union-poster rule

Remember my post from Monday? The one where I told you that two federal courts were at loggerheads over whether the NLRB could force private employers to post this notice in the workplace.

Well, about that. Eyes on me.

Two other men in black (and one woman in black) have officially changed the game. Dramatically. Click through for the details...

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Continue reading "The NLRB officially delays the mandatory union-poster rule" »

April 17, 2012

ADA potpourri, anyone?

Is this really what Teen Spirit smells like?Smells like patchouli. Or is that teen spirit?

Hey, it's been a long day.

Can an employer insist on regular attendance without violating the ADA? Maybe. says Robin Shea at the Employment and Labor Insider. And forget about indefinite leave as a reasonable accommodation under the New Jersey Law Against Discrimination says the NJ Superior Court Appellate Division. That won't fly under the Americans with Disabilities Act either says the United States District Court of the Western District of Virginia, Danville Division. But, you knew that already. Still, if you need information on Practices and Policies Related to Recruiting and Hiring Employees With Disabilities, SHRM has a new survey. Check it out.

Now, go pay your taxes. 

April 16, 2012

Do we need to post the NLRB poster? Just answer the question!

rights poster.pngI've beaten it to death on this blog.

The National Labor Relations Board created a rule that will require most private-sector employers to post this notice, in a conspicuous location, informing employees of their rights under the National Labor Relations Act, which includes the right to form a union.

Here's the latest...

In March, a DC federal court upheld the rule. On Friday, a federal court in South Carolina shot the rule down. Randy Johnson at Free Enterprise has more on that decision.

Post it? Or don't post it?

If you live is DC, you need to post the notice. And if you live in SC, you can trash it. But what about the rest of us?

Good question. IMH(non-legal-advice-giving-non-attorney-client-relationship-creating)O, I say that, until a court in your state gives the yay or nay, post it. (Although, I would not be surprised to see the NLRB delay the April 30, 2012 posting deadline again).

Put the poster up right next to the other laminated posters that your employees pass by every day and, likely, may have never read. And if you are really concerned about the message it sends, consider a second posting advising employees that while they have the right to unionize, there are many good reasons to remain union-free. Also, train your supervisors and managers about how to address employee questions about unionization, which is something you should be doing anyway.

Ultimately, if you don't give employees a reason to unionize, a 11" x 17" NLRB poster won't mean squat.

April 13, 2012

Mini horse + reasonable accommodation lawsuit = I told you so!

PoniesRemember back in July 2011 when I told you that a miniature horse might be reasonable accommodation under the Americans with Disabilities Act?

Giddy-up! I whinny! 

Ok, I'll quit horsing around.

(I mare or may not be referring to a printed-out list of horse puns as I type this...)

More on this hare-raising story -- rabbit puns too? Really, Eric? -- after the jump...

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Continue reading "Mini horse + reasonable accommodation lawsuit = I told you so!" »

April 12, 2012

Do your confidentiality agreements pass muster with the NLRB?

ConfidentialLast week, Jon Hyman at the Ohio Employer Law Blog was on point with this good post discussing a recent National Labor Relations Board Administrative Law Judge decision. The case involved what the NLRB General Counsel believed was an overly-broad social media policy in two regards:

  • It banned employees from using social media to comment on work-related legal matters; and

  • It required company-permission be given before employees post images/video online.
Make sure to read Jon's post for the full-scoop. I promise not to give away the ending (until later in this post, when I give away the ending). But, after the jump, I'm going to examine another aspect of the case; namely, a confidentiality provision that the ALJ deemed overly broad. I'll also add a few ideas for you to keep your confidentiality provisions compliant with the National Labor Relations Act.

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Continue reading "Do your confidentiality agreements pass muster with the NLRB?" »

April 11, 2012

Who are all these people in your (government's) workplace?

Fondue Fribourger StübliIt was either the Mr. Rogers approach or the Seinfeld approach. In the end, I chose Jerry to add some levity to what is otherwise going to be a very boring blog post.

You've been warned.

According this report released last month from the U.S. Equal Employment Opportunity Commission, the complexion of the federal workforce really isn't changing all the much. In FY 2010, there were over 2.8 million people employed by the federal government, of whom 56% were men and 44% were women. Of that total:

65.4% were White,
17.9% were Black or African American,
7.9% were Hispanic or Latino,
5.9% were Asian,
1.6% were American Indian or Alaska Native,
.08% were persons of two or more races, and
.04% were Native Hawaiian or Other Pacific Islander.

Additionally, the participation rate of individuals with targeted disabilities remained at 0.88%. Targeted disabilities include deafness, blindness, missing extremities, partial or complete paralysis, convulsive disorders, intellectual disabilities, mental illness, and distortion of the limb and/or spine.

In hindsight, I probably should have cut this post after the first paragraph and called it a day. Oh well. Don't discriminate and here's Jerry and Kenny talking about Ovaltine.

April 10, 2012

And the first state to ban asking for employee Facebook passwords is...

marylandflag.jpegIt's Maryland. (Now if only they would do something about this).

Details after the jump...

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April 9, 2012

Uneven severance packages may create discrimination claims

personalbelongings.jpgA severance agreement helps to allow businesses to ensure that former employees don't sue. The concept is fairly simple: in exchange for $X, the former employee agrees to release the company from every claim under the sun from the beginning of time through the date the former employee signs the agreement (or seven days after the agreement is signed in cases where the employee releases claims under the Age Discrimination in Employment Act).

Where am I going with this? Let's take a hypothetical. Assume that ABC Company decides to lay off two employees: Bob and Mary. Both worked the same position, have the same seniority, and reported to the same supervisor. However, ABC offers Bob six weeks of severance and Mary only three weeks of severance. Does Mary have a potential gender discrimination claim against ABC?

The answer follows after the jump...

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Continue reading "Uneven severance packages may create discrimination claims" »

April 6, 2012

Meyer(s) on Pending Employment Bills, Social Media, and Slides

On Employment Legislation:
Just when you thought you had the employment law landscape figured out, along comes pending legislation that could change everything. From age discrimination claims to workplace flexibility to unionization and labor organizing, new bills in the House and Senate may change the way you run your business. Here I am discussing all that jazz with Stephanie Thomas at the Proactive Employer.

On Social Media:
Last week, Jennifer King got my take on employers using social networks to check up on potential job candidates. Jennifer is an HR Analyst who writes about human resources systems for Software Advice, a company that compares and reviews HR software. She writes about trends, best practices, and technology in the HR market. Read the full article, "The Internet Persona: What Recruiters Want to Know About You", on her HR blog.

On Slides:
Last, but not least, it's Brooks Meyer starring in "That 70s Slide Show", featuring Ivy Meyer on the mat and yours truly in his directorial debut. Now, I'm only one SAG card and a few dozen credits behind my cousin.

April 5, 2012

Is a workplace "English-only" rule legal?

Geno's Steaks - Philadelphia, Pennsylvania 6

Unfair treatment because of one's language may be related to race or national origin discrimination. Indeed, language may be used as a covert basis for discrimination.

But that's not always so. A recent case and some helpful nuggets on English-only rules after the jump...

Continue reading "Is a workplace "English-only" rule legal? " »

April 4, 2012

Employment discrimination by the numbers: Foreign Edition

hollowglobe.jpgNow in autotune.

(Betcha didn't expect that).

Yesterday, we were rapping (without the benefit of autotune) about immigration status and unlawful discrimination and concluded that Title VII of the Civil Rights Act of 1964 does not prohibit workplace discrimination on the basis of immigration status (although national-original discrimination is unlawful). And we know from a super-hot "Fact or Fiction" post last year that Title VII covers Americans who are employed abroad. It was so hot.

Now, get ready for the hat trick, Gretzky.

Late last month, a federal court in Michigan recognized that foreign employees of a foreign employer should not be counted as employees for purposes of Title VII. Who cares, right? Well, you should. As you know from this post, you need 15 employees to be covered under Title VII. If ABC Company has 14 employees working at a US facility and 1 more employee, a Canadian resident, who works exclusively for ABC in Canada, ABC is not covered under Title VII.

This could also become an issue, as it did in the Michigan case, where an employer is right up against a statutory damages cap. Caps are placed on compensatory damages according to the size of the employer. The limits on damages are as follows:

15 to 100 employees: $50,000
101 to 200 employees: $100,000
201 to 500 employees: $200,000
501 employees or more: $300,000

Notwithstanding the foregoing -- or something legalese like that -- state laws covering workplace discrimination and damages caps may vary. So, mind your p's and q's. Or maybe you just shouldn't discriminate at all.

April 3, 2012

Are aliens protected from illegal workplace discrimination?

Led Zeppelin 2203730020I had this song in my head for about two hours on Sunday.

Then I listened to the Trent Reznor version, ick....

This blog post has a point, right? Oh yeah, discrimination. A little reminder from a recent Eight Circuit case, Guimaraes v. SuperValue, Inc., that when it comes to employees with green cards, discrimination under Title VII on the basis of national origin is illegal. However, Title VII discrimination based on citizenship or immigration status is not:

Guimaraes conflates citizenship or immigration status with national origin. Her green card process shows her intent to change her citizenship or immigration status by becoming a lawful permanent resident. True, a reasonable jury could find the "green card" statement evinces an intent to terminate Guimaraes because she is not yet a lawful permanent resident. The Supreme Court has held, however, that while aliens are protected from illegal discrimination under Title VII, nothing in Title VII makes it illegal to discriminate on the basis of citizenship or alienage.

Of course, employers that do discriminate on the basis of immigration status do so at their own risk -- like the risk of getting sued for national-origin discrimination.

Update: As adroitly noted in the comments below, the scope of this post is limited to Title VII. 

April 2, 2012

The risk of waiting to enforce arbitration agreements with employees

HourglassIt was just last month that I blogged about arbitration agreement tips for PA employers from the 3rd Circuit. I hate to leave NJ employers out of the loop, so today's post is for you.

Last week, the NJ Superior Court, Appellate Division, in Cole v. Jersey City Medical Center denied a company's attempt to enforce an arbitration provision in its employee contract because it waited too long to do so after being sued:

As a matter of litigation strategy, Liberty opted to participate in the suit brought in the Superior Court for a period of twenty months and did not raise the issue of arbitration until three days before the case was scheduled for trial. During this time, the parties completed their reciprocal discovery obligations and the case was ready for trial. This indicates a knowing and deliberate decision by Liberty to forgo raising arbitration as a forum to adjudicate plaintiff's claims. Under these circumstances, Liberty is equitably estopped from compelling plaintiff to submit her claims to arbitration.

NJ employers (and others too) must remember that if they get sued by an employee and they have arbitration agreements, whether in employee handbooks, employment agreements, or otherwise, don't delay in moving to compel arbitration. Otherwise, your fate may end up in the hands of the jury.