June 2012 Archives

June 29, 2012

Healthcare, what? Eyeball 3 other pending employment law bills

ThreeI heard that there was some Supreme Court decision yesterday about healthcare. Want the scoop? Google it.

They zig, I'll zag with the scoop on some other pending employment-law legislation of which employers should take note...after the jump...

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June 28, 2012

One roughneck's life: sex jokes, gay innuendo, all legal.

Oklahoma PumpjackWhen Harold Wasek signed on to work at an oil rig in Pennsylvania, he had no idea what lay in store for him, especially when one of his co-workers discovered that Wasek would get easily riled with sexually explicit stories, jokes, fantasies, and names.

  • "You've got such a pretty mouth."
  • "Boy you have pretty lips."
  • "You know you like it, sweetheart."

Wasek complained to his supervisor. But the harassment worsened. He was touched in a sexual manner: grabbing his buttocks, poking him in the rear with a hammer handle and something described as a long sucker rod.

So Wasek sued claiming sex discrimination. And he lost. Why? Because his harasser was a straight man.


I'll explain after the jump...

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June 27, 2012

Beer muscles and a #SHRM12 lesson about accountability

hulk.jpegI'm a fairly easy-going guy. My buttons don't get easily pushed, I'm not easily riled, and I rarely get angry. 

But, when I get fired up....look out, sucka!

One thing that really gets me going is when others fail to accept accountability for their mistakes and do nothing to fix them. As I punch out this blog post on my flight back from Atlanta following the SHRM Annual Conference and Expo -- a truly first-class event that both HR professionals and employment lawyers should make it a point to attend at least once -- all I can think about is an incident that occurred at my hotel, of all places.

It's an unexpected reminder, one that separates the truly great from the good, that I'd like to share with you, after the jump...

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June 26, 2012

Who is a supervisor?

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Nah, brotha. This isn't Jeopardy. That's the question that the Supreme Court has decided to answer.

Meyer, what are you talking about? Who cares? 

Well, you should...

The Supreme Court has twice held (here and here) that, under Title VII, an employer is vicariously liable for workplace harassment by a supervisor. What the Supreme Court has yet to clarify, however, is just who is a "supervisor" for purposes of Title VII.

In Vance v. Ball State Univ., the Seventh Circuit joined the First and Eighth Circuits in opining that a Title VII "supervisor" must do more than direct and oversee the victim's daily work. Rather, the supervisor must also have the power to take formal employment actions against victim. Prior to Vance, the Second, Fourth, and Ninth Circuits had held, the "supervisor" liability rule applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work. Meanwhile, in my backyard, the Third Circuit has fashioned it's own two-part test to determine vicarious liability for an employer.

So, here cometh the Supreme Court to answer the question. We'll get some guidance next year.

June 25, 2012

Employer customer lists: "Whatever you say, dude."

See, Hear and Speak No EvilYou're looking to hire a new salesperson. Scott Salesperson comes in to interview. He currently works for your top competitor.

"Scott, do you have a non-competition agreement?"


"Scott, do you have a confidentiality agreement?"

"No. In fact, I have a list of my own customers that I could sell to if you hire me."

Sounds good, right. But, before hiring Scott, do you have any obligation to independently verify the facts that Scott has represented?

New Jersey employers will definitely want to click through because, last week, the New Jersey Supreme Court answered...

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June 22, 2012

Guest Post: The Problem with Safety Awards

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Kristie Lewis. An expert in the construction industry, freelance writer Kristie Lewis offers tips and advice on choosing the best construction management colleges. She welcomes any questions and comments you might have at Kristie.lewis81@gmail.com.

And if you want to guest blog at The Employer Handbook, then email me.

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June 21, 2012

Going to #SHRM12 in Atlanta? You know I'll be there.

shrmlogo.jpgLess than one week to go before the 2012 SHRM Annual Conference and Exposition kicks off. I'll be there. And here's where we can meet up:

Monday night you can find me discussing cutting-edge HR/employment-law issues at The Official #SHRM12 TweetUp & Afterparty powered by SHRM & Glassdoor. And if you believe that, I'll let you buy the first round. I prefer Johnny Blue and Cristal boilermakers. Cuz I'm a baller.

At 10 AM on Tuesday, I'll be bright-eyed and bushy-tailed for Live from the HIVE, Social Media Policy 101, for a Q&A with my buddy Curtis Midkiff. I'll hang out afterwards to discuss any questions you may have. Those who bring me Red Bull Sugar Free will get their questions answered first. Unless, of course, you have cash.

But, if you can't make it down to Atlanta for the event, there are many ways for you to still participate. You can join the #SHRM12 Social Circle, follow the #SHRM12 hashtag on Twitter, follow me on Twitter (@Eric_B_Meyer), or visit the SHRM Annual Buzz site.

Hey, I'd love to meet you. Unless, of course, you have leprosy. Keep your distance. Eh, maybe we can work out some sort of reasonable accommodation.

Oh, I kid. I just wanted an excuse to play this song.

Throw 'em up! See you in Atlanta.

June 20, 2012

The NLRB continues preaching to your non-union employees

Union YesAs y'all know, the National Labor Relations Board has taken quite a beating recently in the courtroom. First, the Board was forced to delay requiring employers to post a union-rights poster in the workplace. Then, a federal court voided the Board's "quickie" union-election rules.

But, this Board is resilient. This Board is determined to encourage your employees to seek strength in numbers. How does the Board plan to spread its message? Find out after the jump...

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June 19, 2012

Supreme Court: No overtime pay for pharmaceutical sales reps

Thumbnail image for Supreme Court.jpgUnder the Fair Labor Standards Act, a company must pay overtime to non-exempt employees who work over 40 hours in a particular workweek. Non-exempt, huh? That implies that the FLSA also contains various exemptions from overtime pay for employees who meet those requirements. Indeed it does. One of those exemptions is called the "outside sales" exemption. To qualify for the outside sales employee exemption, all of the following tests must be met:

    1. The employee's primary duty must be making sales (as defined in the FLSA); and

    2. The employee must be customarily and regularly engaged away from the employer's place or places of business.

The pharmaceutical industry is chock full of sales representatives whose job it is to go to doctors' offices and convince physicians to place orders with drug makers. However, these sales reps never actually transfer title to the drugs. That is illegal in the drug industry.

So then, the question is, do these sales reps qualify for the FLSA's outside sales exemption? Well, funny you should ask, because that's what the Supreme Court decided yesterday (here). Details after the jump...

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June 18, 2012

HELP WANTED: Born-again Christians need only apply

Born Again

I'm a firm believer that discussing religion (or politics) at work is a recipe for disaster. On this blog; however, if it's employment-related, then that's how we roll...

And, after the jump, we roll into Oklahoma and discuss whether it's ok for a lighting company to require that it's employees be born-again Christians. (Hint: It's not ok).

(If you'd rather read about the Oklahoma City Thunder and the NBA Finals, I understand).

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June 15, 2012

Your state's family-leave benefits probably suck!

Family FunechaThat according to a a new survey from The National Partnership for Women & Families.

The survey compared how state-based rights and protections compare to the 12 weeks of leave for new and expecting parents provided by the federal Family and Medical Leave Act (FMLA), the protections provided by the Pregnancy Discrimination Act (PDA), and the right to express breast milk at work provided to some nursing mothers under the Fair Labor Standards Act (FLSA).

The report card covers all 50 states, plus the District of Columbia. No state earned an A. Only 1/3 scored a C- or higher, while more than 1/3 flat-out failed. The highest grades went to California and Connecticut, each earning an A-. Locally, New Jersey ranked near the top with a B+, while Pennsylvania scraped by with a D.

(h/t Christian Schappel)

June 14, 2012

Fact or Fiction: Disabilities under the ADAAA cannot be episodic

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."

So, let's get right to it. In Pearce-Mato v. Shinseki, decided earlier this week, a Pennsylvania federal court reminded us that episodic impairments may, indeed, be disabilities under the Americans with Disabilities Act Amendments Act:

The fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity ...  An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

So, the answer to today's question is fiction.

And here's a bonus tip from the same case: a disabled employee does not need to request a reasonable accommodation in writing. Rather, as previously noted in this case, to request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation." The notice merely "must make clear that the employee wants assistance for his or her disability. In other words, the employer must know of both the disability and the employee's desire for accommodation for that disability."

June 13, 2012

4 pending bills that could change the NJ employment landscape

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One of my favorite reads on NJ employment law is Ogletree Deakins's New Jersey eAuthority. The June 2012 issue highlights several pieces of legislation now pending in NJ of which employers should take note. I've summarized four of them after the jump...

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June 11, 2012

Employer's failure to investigate harassment creates retaliation claim

illustration_view-people-magnifierIf an employee complains that her supervisor is sexting her, making unwelcome physical contact, and telling her that she can get a better work schedule in exchange for "small favors," you better damn well investigate that!

Ignore it and you risk losing a valuable defense to sexual harassment claim. This is because, generally, to avoid liability for sexual harassment, an employer must demonstrate that it undertook reasonable care to prevent and promptly correct harassment.

But the failure to investigate could cost an employer even more. Like a dead-to-rights retaliation claim too.

Really? Retaliation too? Yes. I'll explain after the jump...

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June 8, 2012

The teacher who blogged about her "dunderhead" students is back!


And she's making news again...

It's been nine long months since I blogged about a favorite of The Employer Handbook: Natalie Munroe. You can read about her here, here, here, and here.

She is the PA teacher who, on her blog, described her students as argumentative f*cks who may engage in Columbine-style shootings. She got  suspended, but was later reinstated, and taught during this school year.

Well, it appears now that Ms. Munroe may not be teaching for much longer -- at least not for her present employer. Christina Kristofic of The Intelligencer reports here that the school board could vote before the end of this month to fire Ms. Munroe. Her lawyer (remember, he's my stepbrother), however, smells a rat. He claims that the district is violating Munroe's constitutional free speech rights. Whether that holds true remains to be seen...

What continues to amaze me is the polarizing response to Ms. Munroe. Scroll to the bottom of Ms. Kristofic's story and click on "Phillyburbs Comments". You'll see responses ranging from: "She deserves to be fired. She has no features that make her a good teacher. Her 'entitled attitude' is written all of her smug face. The free ride is over..." to "Instead of attacking a truthful educator, why not decipline [sic] the kids as they should be. The parents are clearly at fault in this case."

Is it ok for a teacher to be this critical of her students online? What if it were your employee going off on your customers? What do you think? Sound off in the comments below...

June 7, 2012

Do employees have protected privacy rights in Facebook postings?

Spy vs Sci 558John and Mary are co-workers. They are also Facebook friends. And both John and Mary have adjusted their respective Facebook privacy settings such that only Facebook friends can view what they post online from their individual accounts. Consequently, John and Mary can view each other's Facebook posts, but Sam the Supervisor, who is also on Facebook, cannot. Neither John nor Mary are Facebook friends with Sam.

ABC Company, John and Mary's employer, wants access to Mary's Facebook account. On behalf of ABC, Sam demands that John login to his Facebook account on a work computer and then allow Sam to shoulder surf as John views Mary's Facebook postings. Fearing for his job, John relents.

Does Mary have a claim against ABC Company for invasion of privacy?

The answer follows after the jump...

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June 6, 2012

Paycheck Fairness Act fails in the Senate, plus other news...

moneyBilled as a way to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, the Paycheck Fairness Act, did not make it out of the Senate yesterday. The Paycheck Fairness Act earned 52 votes in favor of proceeding to final consideration, eight votes shy of the 60 votes necessary for cloture. The vote came down strictly along party lines, with the two independent senators voting with the Democrats and Sen. Mark Kirk (R-Ill.) not voting. Senate Majority Leader Harry Reid (D-Nev.) changed his vote so that he could bring the bill up again.

In other news...

  • The Eleventh Circuit Court of appeals ruled on Monday that Title VII of the Civil Rights Act of 1964 permits claims for retaliatory hostile work environment. The decision brings the Eleventh Circuit in line with everyone else.

  • The EEOC is touting a rare summary judgment victory in a Title VII retaliation case. A federal judge ruled that an employer unlawfully retaliated against an employee for refusing to waive his rights to file a discrimination charge as a part of a "last chance agreement."

  • And here's a weird one, a woman in Florida is suing for unpaid OT. That's not so weird. What is; however, is that, although she appears on the payroll, no one remembers hiring her, and no one remembers her ever working for the business.

June 5, 2012

No flush, but two of a kind win in a workplace toilet dispute

toiletHey employers! You know what's stupid? My tongue-in-cheek pun on despicable workplace conditions. Depriving employees of bathroom privileges. Even dumber is firing them after they complain to state regulators about the lack of an onsite toilet. 

One company recently learned this lesson the hard way. Details after the jump...

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June 4, 2012

The golden rule on forwarding emails at work

I'm with the Stupid network"An employee who emails pictures of Trayvon Martin's head cropped onto the body of a dead police officer is a thought-leading change agent." 

-- Absolutely nobody in HR

No, he gets fired.

According to this story from Chris Biele at FOX40 News in California, an employee in the state's Employment Development Department forwarded that picture with the message, "Would it make people feel any different if this face was on a dead pig?" And of course, the picture made it onto Facebook.

Just terrible.

Here's my simple golden rule on forwarding emails at work:

"If you would feel at all uncomfortable about having to explain from the witness stand to a federal judge or jury why you forwarded that email, it's best not to hit send."

June 1, 2012

That's what they said: "29 different ways to say 'I quit'"

theysaid.jpgYesterday, I came across this post at EmployerLINC, which reprints this news release from OfficeTeam, offering up the many ways that an employer can be told, "Screw you guys, I'm going home." (Donna Ballman, I owe you a nickel in royalties).

The reasons for quitting ranged from mere boredom to a desire to join the circus. One employee even quit to join a rock band.

Hey, I'd love to be a rock superstar. (Not really, but it's the only chance I'll get to play Cypress Hill on this blog...like ever.)

Have a nice weekend...