May 2012 Archives

May 31, 2012

Want a labor-law-legal social media policy? Bookmark this, I guess.

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Yesterday, the National Labor Relations Board's Acting General Counsel Lafe Solomon issued a new report on social media cases brought to the agency, this time focusing exclusively on policies governing the use of social media by employees. It includes a copy of a social media policy that the NLRB found to be lawful.

However, the report, as a whole, left me shaking my head. Inconsistent, overreaching, it's a hot tepid mess. So, before you go all cut and paste on me from that sample policy, read my critical two cents after the jump...

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May 30, 2012

The ADA does not protect medical-marijuana use, but...

weedleaf.jpgAccording to a federal appellate court from California, a state that has embraced marijuana as an effective treatment for individuals who face debilitating pain, an employer may discriminate against an employee because of the employee's use of marijuana. This holds true whether the marijuana use is recreational or medicinal, because the Americans with Disabilities Act does not protect illegal drug use.

However, there are instances in which the ADA does protect medical-marijuana users. For example, an employee who uses medical marijuana to treat glaucoma may be discriminated against because of the employee's marijuana use, but not the glaucoma. Assuming that: (a) the glaucoma is a disability; (b) the employee can perform essential job functions with or without a reasonable accommodation; and (c) and the employer takes an adverse employment action against the employee because of the glaucoma, the employer has violated the ADA. 

For more on the CA case, check out Robin Shea's post at the Employment and Labor Insider. For more on the interplay between medical-marijuana use and state disability-discrimination laws, check out this post I did last year.

And rather than risk offending anyone with a drug-related tune -- Me? Offend my readers? Thursdays. Never. -- I'll play a song that surely ranks number one this week on the Brooks Meyer Countdown. My two-and-three-quarter-year-old readers will love it!

May 29, 2012

Federal legislation reintroduced to promote hiring veterans

iwojima.jpgTo improve the reinstatement rights of returning war veterans, and to add more enforcement teeth to the Uniform Services Employment and Reemployment Rights Act (USERRA), Pennsylvania Senator Robert Casey reintroduced the Servicemembers Access to Justice Act (SAJA) last week.

Details on SAJA and what it could mean for employers follow after the jump...

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May 25, 2012

Fifth of vodka + whiskey + elevator shaft = no workers' comp

My Godfather...From the blog that previously brought you "Smoke pot + grizzly bear bite (in the butt) = collect workers' comp," comes the story of the boozing builder who, well, I'll let the Court of Appeals of Utah explain:

Mr. Wood was engaged in work activities on behalf of Karr during the morning and early afternoon of May 1, 2007. He began drinking alcohol at the work site at about 2 p.m. and continued until he had consumed a small bottle of whiskey and more than half a fifth of vodka. By 4 p.m. he had stopped performing any work duties for Karr and removed himself to a 1st floor closet where he slept for two hours. When he awoke, he made his way up to the 2nd floor but did not resume any work on behalf of Karr. He fell into the elevator shaft and suffered the injuries for which he now claims workers' compensation benefits.

Amazingly, the court was less than blown away by such arguments as:

  • an "intoxicated nap after drinking on the job did not constitute a departure from the course of his employment"; and

  • "even if he did leave the course of his employment during his nap, he returned to that course when he awoke and began moving around the job site."

Plus, the court disbelieved Wood, when he testified that he did not drink any alcohol on the day of his injury and fell down the elevator shaft while masking the trim around the second-floor shaft opening.

While the Marijuana-toking-grizzly-bear-snack Montanan collected workers' compensation, the court in Utah sobered up and denied benefits to the tripping tippler.

(h/t Christian Schappel @ HR Morning)

May 24, 2012

How to lose a disability discrimination case in 5 easy steps...

What started out well for the employer...

On April 29, 2009, Catherine Coffman, an employee of Robert J. Young Company, Inc. ("RJY"), got into a motorcycle accident. RJY provided Ms. Coffman with leave under the Family and Medical Leave Act. Just before Ms. Coffman's FMLA expired, RJY offered to return her to work in a sedentary job that provided the same pay and benefits as her old position. Ms. Coffman rejected the offer because she did not feel that she was able to return to work yet.

D,HO!! or, er, D'oh! Maybe. Well, at least they've tried to correct it.

...Quickly turned bad. Very bad.

Months later, near the end of October, 2009, Ms. Coffman provided RJY with a note stating that she would be able to return to work on November 23, 2009 with minimal restrictions. In response to the note, RJY's Human Resources Director and General Counsel met and decided to fire Ms. Coffman.

Enter the Americans with Disabilities Act, which prohibits an employer from discriminating against a qualified individual on the basis of disability in regard to the discharge of employees. 

Which brings us to the 5 easy steps employers can take to lose an ADA case.

  1. Make a snap judgment that a disabled employee's request for additional leave is unreasonable. Neither RJY's Human Resources Director nor its General Counsel discussed with Ms. Coffman her impairments, condition or intentions to return to work on November 23, 2009.

  2. Heck, don't even consider additional leave as a possible accommodation. RJY did not consider offering Ms. Coffman additional leave from October 28, 2009 to November 23, 2009 as a reasonable accommodation. RJY also failed to show that additional leave would have caused it an undue burden. The deposition testimony from RJY's HR Director is hella-unbelievable.

  3. Don't engage in any interactive dialogue whatsoever with the disabled employee. RJY did not discuss or conduct an interactive process with Ms. Coffman to determine whether any of her job functions could be accommodated.

  4. Don't request any additional medical information. RJY never requested additional medical information from Ms. Coffman's healthcare providers or consult an occupational physician to determine whether she would be able to perform her job duties.

  5. When you fire the disabled employee, be sure to clearly state in the termination letter, "Due to your long term disability we must terminate your employment." Yeah, that happened too.

Based on the foregoing, a Tennessee federal court determined that there was direct evidence that RJY had discriminated against Ms. Coffman on the basis of her disability. Consequently, the court entered summary judgment in favor of Ms. Coffman.

The case is Coffman v. Robert J. Young Company, Inc.

May 23, 2012

Boss fires HR Manager to whom he sent w-2 (by w-2, I mean lots of porn)

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A long-time county employee in Florida, who served as HR Manager, is set to file a federal discrimination complaint against her former employer, claiming that she was sexually harassed at work and later fired after complaining. The employer claims that it fired the employee for making false sexual discrimination claims to the U.S. Equal Employment Opportunity Commission.

And then there's the porn and dirty texts...which the employee's boss admits sending...to the employee...like 40 times...

Interest piqued? I thought so. Click through...

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May 22, 2012

Now hear this: Hearing loss comments are evidence of age bias

Hearing aid 20080620It is unlawful under the Age Discrimination in Employment Act "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." An employee who alleges that she was fired in violation of the ADEA has a tough time prevailing because she must demonstrate not that "age was a reason" behind the termination decision, but rather that "age was the reason."

In a recent decision, a Mississippi federal court allowed a plaintiff, a former beauty supply company employee who suffered from hearing loss, to take her age discrimination claims to trial because she had presented evidence that that her manager made remarks such as, "Yeah, that's what happens when you get old." 

[I was going to break in here in Alright Hear This, but two f-bomb's and a sh*t preclude that. Instead, we'll try this one.]

The plaintiff also testified that her manager mentioned the need for "new blood in the area," and otherwise questioned why the plaintiff had not retired because "she was old enough to." Additionally, the plaintiff was able to demonstrate that one of the company's legitimate business reasons for terminating her, because she supposedly allowed her husband and sister (neither of whom worked for the company) to perform company work for her, was pretextual. One of the plaintiff's co-workers was not fired for allegedly doing the same thing and testified that the supervisor was ok with it.

Ultimately, even if the company prevails at trial, it is going to have to pay its legal counsel a lot more money to obtain that result. Learn from this. Train employees and managers that ageist (and other similar comments), even if meant in jest, have no place in the workplace.

May 21, 2012

Does the ADA require accommodating an employee's commute to work?

Subway SleepersLet's say you have an employee with narcolepsy. This employee has been working for you for years with no issue. But business needs changed and you reassign this narcoleptic employee to a new shift. Shortly thereafter, the employee comes into HR and requests a shift change. Your response is take FMLA or quit.

Have you violated the Americans with Disabilities Act by failing to accommodate the shift-change request?

Find out after the jump...

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May 18, 2012

That's what they said: "Naked ambition" and a "voyeur boss"? (And more...)

theysaid.jpgAs evidenced by the nature of this blog post and the picture on the right, it's best not to leave me in the office alone, unsupervised, with an iPhone, and App Store credits, as I punch this out at 10:52 at night on a Thursday. (And yet, somehow, the Wall Street Journal deems me quotable).

Rest assured, everything I do, I do it for you. And, best of all, it's all employment-law related. Love my job!

(My wife has to be cool with me using our wedding song for this blog post, right? Love ya, baby! "Take me as I am....")

And that's what they said...

Now, you'll have to excuse me as I try to beat the locksmith to my house (kidding...)

May 17, 2012

EEOC now publishes charge data, by state. Have a look...

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You can access the state-by-state charge data here. And view it all in a single downloadable spreadsheet here.

In the Commonwealth of Pennsylvania, individuals filed 4,302 charges of discrimination in FY2011, which amounts to 4.3% of the total number of US charges filed. As with Americans across the country, retaliation was the most popular box checked (37.2% of all charges) in Pennsylvania. However, disability was number two in PA (31.1%) versus a national average of 25.8%, which pales compared to race and sex, nationally. Rounding out the top five in PA were: (3) sex (30%); (4) race (27.3%); and (5) age (27.3%).

Across the river in New Jersey, which has two-thirds the population of PA, residents filed less than half the number of charges (1,841) with the EEOC in FY2011 as were filed in PA. The reason? I suspect it is because individuals who have claims under the New Jersey Law Against Discrimination, which is very similar to the federal discrimination laws, do not need to file a claim with the New Jersey Division on Civil Rights, the state's administrative agency, before going to court. The top five boxes checked on NJ EEOC charges were: (1) retaliation (35.1%), (2) race (33.9%); (3) disability (25.8%); (4) sex (24.8%); and (5) age (23.3%).

And now, for the state of love and trust, play us out, Pearl Jam.

May 16, 2012

How North Carolina's Amendment One Will Affect Employee Benefits

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Today we have a guest blogger at The Employer Handbook. It's Audrey Porterman. Audrey is the main researcher and writer for doctoralprograms.org. Her most recent accomplishment includes graduating from Ohio State, with a degree in business management. Her current focus for the site involves an online phd program and english doctoral programs.

If you have comments on this blog post, you can email them directly to Audrey. And if you want to guest blog at The Employer Handbook, then email me.

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Continue reading "How North Carolina's Amendment One Will Affect Employee Benefits" »

May 15, 2012

That was fast: Court voids NLRB "quickie" union-election rules

smokinmask.jpgThe U.S. Chamber of Commerce is hot! 

How hot is the Chamber? Hotter than Paris Hilton humming an 80's Buster Poindexter tune. (Actually, she abandoned her trademark exclamation "That's Hot!" for "That's Huge!").

Maybe not quite Josh Hamilton hot. But, way hotter than the mature offspring of an encounter involving Zac Efron traveling back in time to impregnate an early-90s Cindy Crawford. I would not want to stand next to the Chamber's fire right now. Sammmmmokin'!

I teased it two weeks ago, the day after the NLRB's election rules took effect, when I posted that the new rules may get derailed. Well, sho-nuf, that's what happened yesterday as a DC federal court ruled (here) that the National Labor Relations Board lacked authority to implement its new "quickie" election rules. (This on the heels of the Chamber winning an injunction against the NLRB's union-rights poster requirement).

And why did the NLRB lack authority to implement these rules? The DC court explains by citing Woody Allen:

According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters - even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.

Put simply, it takes three Board members for the Board to do business. So says the U.S. Supreme Court in New Process Steel, L.P. v. NLRB. As to the new election rules, the DC court recognized that the Board only had two members participating in approving a final version of the rule. So, those rules don't count.

Expect this decision to be appealed. In the meantime, the new quickie election rules get tabled.

UPDATE (5/15/12; 3:21 PM): The NLRB has just announced that it has suspended implementation of "quickie" election rules based on the court's ruling.

May 14, 2012

U.S. Senate now has its own FB password bill; NJ nears similar ban

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Well, that didn't take long.

Late last month, I reported on a bill that had been introduced in the U.S. House of Representatives, known as the Social Networking Online Protection Act (SNOPA), that would prohibit employers, schools, and universities from requiring someone to provide a username, password or other access to online content.

Now, it's the U.S. Senate's turn to get in on the act with its own password bill. Plus, after the jump, I'll have an update on similar legislation winding its way to Governor Christie in New Jersey...

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May 11, 2012

A Facebook firing? An employer in hot water? Ya don't say...

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Yesterday, I gave my social media in the workplace spiel to a great crowd in Hershey, PA, at the Banyan Consulting 12th Annual Conference. Not surprisingly, the majority of questions posed involved the attention that the National Labor Relations Board has paid to social-media-related employee discipline. And that reminded me that a case I discussed earlier this week, the one involving overly-broad handbooks policies that restricted employee discussions of wages, had a second component worth discussing; namely, an unlawful Facebook firing. More after the jump...

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May 10, 2012

Pregnant Workers Fairness Act introduced in Congress

Celia at workEarlier this week, Representatives Jerrold Nadler (D-NY), Carolyn Maloney (D-NY), Jackie Speier (D-CA) and Susan Davis (D-CA), introduced the Pregnant Workers Fairness Act.

What's in the bill and how will it affect employers? Find out after the jump...

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May 9, 2012

That's what he said: "Oktoberfest" & "No OT for you!"

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Cool image, huh? I drawed it myself. The fact that I took the time to do that suggests that I am in no condition to blog intelligently. Plus, Pandora is on the fritz, so I am all sorts of pissy. Therefore, before I turn out the lights and lock the door at the office, how about some Slipknot -- anger issues, Eric? -- and "That's what he said" after the jump...

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May 8, 2012

NLRB: Barring employees from discussing salary is a bad idea

ConfidentialSection 7 of the National Labor Relations Act protects the rights of employees to discuss wages and other benefits with each other and nonemployees. By maintaining a rule that restricts employee freedom in this regard, an employer violates Section 8(a)(1) of the Act.

How does this play out in the real world? Find out after the jump...

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May 7, 2012

Report: Employees share WAY more Facebook info than they think

FacebookMaryland has a new law forbidding employers from demanding that job applicants and employees divulge online passwords. Two weeks ago, the federal government proposed similar legislation. And, last week, news surfaced that Delaware may be placing the same restrictions on employers.

But who needs to demand online passwords, when, according to this report from Consumer Reports, your employees are sharing way more information on Facebook than they realize.

Some of the highlights from the report and a few related tips for employers follow after the jump...

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May 4, 2012

That's what she said: A hairy religious discrimination claim is settled

If only I had a nickel for every time someone asked me, "How do you have time to blog every day?" The answer is simple: Jolt Cola Juleps and rogue Keebler Elves I just enjoy writing. But even so, it can get tiring sometimes.

I was discussing this with a few HR blogger friends over dinner a few Fridays ago. They empathized. And then, I smiled, as whatever the opposite of writer's block is overtook me faster than a fat kid at a cake buffet:

I'll just do a post called "That's what she said."

Boom! Plagiarism! Double entendre + less work for me = one happy blogger dork.

I've struck gold...after the jump...

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Continue reading "That's what she said: A hairy religious discrimination claim is settled" »

May 3, 2012

No FMLA claim for employee who mistakenly thought he was fired

Thumbnail image for fmla.jpegStop me if you've heard this one before...

    • Employee gets bad performance review.
    • Employee laments to HR about the pressures of work.
    • Employee emails a company vice president requesting that he stop propagating company "propaganda".
    • Employee accuses another employee of "dismantling the Spanish Department"
    • Employee attempts to mass email the company.

Oh, it gets better..after the jump...

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May 2, 2012

More office romances; more anti-harassment training

Thumbnail image for broom closet.jpgA recent survey by Workplace Options, shows that most Generation-Y employees believe that an office romance will have a positive influence on performance and overall workplace morale.

Sounds like a Cialis commercial. 

Who says I need to wait for Valentine's Day for this post? Losers, that's who. Lock the broom closets and click through for more on this survey and ways to address the office romance...

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May 1, 2012

New NLRB election rules may get derailed; plus more on SNOPA

Two quick updates for you today; one labor, one employment.

Word has trickled in that the U.S. District Court for the District of Columbia held a conference call with lawyers from the National Labor Relations Board, the U.S. Chamber of Commerce, and the Coalition for a Democratic Workplace, and informed them that the Court would rule by May 15 on a pending challenge to the NLRB "quickie" election rule changes. You can view those rule changes in this post I did last week.

And in case you missed yesterday's post on new federal legislation that would bar employer demands for online passwords, be sure to check it out. Late in the day, I scored a copy of the bill, known as Social Networking Online Protection Act (SNOPA), and added a link. We know now that employers that violate the law will be subject to civil fines of up to $10K. The Secretary of Labor may also seek injunctive relief. However, the federal law does not mention a private cause of action for individuals.

Unlike the legislation passed in MD, there is no safe-harbor that would allow an employer to require or request that an employee provide the employer with access to a social media account to investigate, for example, an allegation that the employee downloaded the employer's proprietary data without authorization.

Additionally, the federal legislation would also prohibit grade schools and universities from getting social-media login information from students.