July 2012 Archives

July 31, 2012

"An employee walks into a hospital wearing a Jesus lanyard..."

jesuslanyard.pngThey can't all begin with a priest, minister and a rabbi walking into a bar. Then again, it's "Religious Accommodation Tuesday" here at The Employer Handbook. So, after the jump, we'll discuss the test to determine whether an employee may lawfully don religious items at work and find out whether the hospital worker in this case has a potential religious discrimination claim (Hint: he does).

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July 30, 2012

HR Manager emails bolster employee's ADEA and FMLA claims

Gun Smoke Red Documentation is good; smoking-gun emails from the HR Manager not so much.

After the jump, I've got a few doozies which now have a financial institution going to trial on a former employee's age-discrimination and Family and Medical Leave Act claims.

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July 27, 2012

Big changes coming to the Mine Safety and Health Act?

Coal Miners MemorialYesterday, Sen. Jay Rockefeller (D-W.Va.) reintroduced, for a third time, the "Robert C. Byrd Mine and Workplace Safety and Health Act," which would amend the Mine Safety and Health Act.

What does this bill say (CliffsNotes version)? And what are the chances of passage? Find out after the jump...

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July 26, 2012

Egyptian-born FBI agent + post-9/11 transfer = discrimination claim

I am an F....B.....I.... Agent! 

And if anyone wants to get me this iPad case for Christmas...

Wait, what was I supposed to be writing about? Oh yeah, national-origin discrimination. I'll get it together for you after the jump...

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July 25, 2012

Fact or Fiction: The ADA requires creating a new job for a disabled employee

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."

Under the Americans with Disabilities Act, an employer is required to provide a reasonable accommodation, if doing so will allow a disabled employee to perform the essential functions of his job. Could this mean having to create a brand new position for a disabled employee?

Nope. A federal appellate court underscored this last week (opinion here) when if affirmed a lower-court decision to dismiss a plaintiff's claims under the ADA that his former employer had failed to accommodate his disability:

Otto also enumerates several accommodations that he says the City should have provided so that he could perform the job. He suggests that the City could have limited his job to sedentary duties, offered him a part-time job as an ice-hockey rink attendant, or assigned other employees in the Department of Public Works to assist him in carrying out his job. These proposed accommodations are not reasonable. The ADA does not require an employer to create a new position or to eliminate or reallocate essential job functions in accommodating an employee with a disability.

Consequently, the answer to today's QATQQ is FICTION.

July 24, 2012

Recipient of nasty racial slurs from an office friend loses bias claim

Thumbnail image for nj1.jpgWhat if I told you that a female black employee was called "monkey" and "nappy head Raggedy Ann" at work?

What if I then told you that the employee subsequently sued in New Jersey state court; quite possibly the most plaintiff-friendly jurisdiction in the U.S. -- next to California?

And guess what? She lost. Oh my!

What the heck happened and what can employers learn from this recent decision? Find out after the jump...

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July 23, 2012

The EEOC's subpoena power is crazazy broad. Wooo!!!

Ric FlairOn behalf of an illiterate man, the United States Equal Employment Opportunity Commission (EEOC) investigated a Charge of Discrimination against a MD employer, which allegedly had a literacy policy that violated the Americans with Disabilities Act (by discriminating against qualified individuals with learning disabilities). As part of its investigation, the EEOC served an extremely broad subpoena on the employer. The employer fought the subpoena hard. Ultimately; however, it learned that the EEOC has the power.

You'll learn too (and figure out why this post has a picture of Ric Flair)...after the jump...

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July 20, 2012

Booby trapped! No break time for nursing employee; no lawsuit either.

'Expressed breast milk' photo (c) 2007, Hamish Darby - license: http://creativecommons.org/licenses/by/2.0/HEY! Which one of you just threw that breast pump at my head?

[annnnnnnd cue music]

** Dons sensitivity invisibility cloak **

Nearly two years ago, I wrote here about how the The Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (FLSA) to require companies to afford employees a "reasonable break time" in a private room (but, not a bathroom -- ick!) to "express breast milk for her nursing child for 1 year after the child's birth."

But if an employer violates the law by not provide what the FLSA now requires, can an employee sue? The answer, according to an Iowa federal court is: Corn! No.

In Salz v. Casey's Marketing Company, the court held that since: (1) employers are not required to compensate employees while they are expressing milk; and (2) the FLSA limits recovery to unpaid wages, there is nothing for a private litigant, deprived of a place to express breast milk, to recover from an employer. Plus, the Department of Labor, in this Guidance, limits an employee to filing claims directly with the Department.

For some tips on what employers can do to avoid the wrath of the Department of Labor, check out my tips.

UPDATE: The plaintiff's FLSA retaliation claim survived the employer's motion to dismiss.

July 19, 2012

It's the July Edition of the Employment Law Blog Carnival!

Carnivalphoto © 2010 Paul Newtron | more info (via: Wylio)

The July edition of the Employment Law Blog Carnival is now up and running. You can view it here. Thank you to all who contributed. And a special thank you to Heather Bussing and HRExaminer.com for hosting.

If you would like to participate in future carnivals, email me and I will add you to the distribution list. Participants must be bloggers (so we can link to your blog) and Carnival posts must be HR/employment-law-related. And you must like dill pickles.

Dill, damnit!


July 18, 2012

To minimize FMLA lawsuits, hire slow and fire fast (before the FMLA request)

youarefired.jpgIn the world of Human Resources, "hire slow, fire fast" generally holds true to avoid just about any lawsuit.

Unfortunately, for one NJ employer, it didn't get the memo. And now it finds itself having to defend against FMLA interference and retaliation claims at trial.

What did this employer do wrong and how can you avoid making the same mistake? Find out after the jump...

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July 17, 2012

Retaliatory voodoo, Courtney Love, and lots of unpaid $$$

Sounds like a bad batch of Pennyroyal Tea. Just another Tuesday here at the ole Handbook.

The San Francisco Chronicle is reporting here that Courtney Love, Kurt Cobain's widow, is reuniting the band ** thank you for sparing our ear holes ** being sued by a former assistant seeking, among other things, unpaid overtime. The plaintiff also claims that Love asked her to perform voodoo rituals ** not yet, next paragraph ** unethical duties such as hiring a hacker and forging legal correspondence. The San Francisco Employment Lawyer Blog has more on this case here.

From Hole to holes in a doll pin-cushion, with a hat-tip to @ChaimBook, the Madison St. Clair Record reports here that a Wisconsin woman is suing her former employer for sexual harassment and retaliation. The plaintiff claims that she was forced to look at nude female magazines, calendars and sexually explicit language used by her co-workers and direct supervisor. Fairly standard sexual-harassment fare. What makes this case blogworthy is that, after she complained, the plaintiff allegedly suffered retaliation in the form of two voodoo dolls in her desk, one of which had a black pin stuck into her chest.


    1. Even for the savviest employers, wage-and-hour issues can rear up from time-to-time. If you have not done so yet, or if it's just been a while, consider bringing in outside counsel to conduct a wage-and-hour audit to make sure that your pay practices are squeaky clean.

    2. Since the Supreme Court's decision in Burlington Northern, the bar has been significantly lowered as to the type of behavior that can constitute actionable retaliation. I have little doubt that a voodoo doll delivered to a complaining employee would effectively chill that employee from asserting federal-protected rights. Remind your workforce that behavior both subtle and overt can lead to a retaliation claim. 

    3. Hole sucks.
July 16, 2012

Breaking stupid: A hella-dumb Facebook invasion-of-privacy claim

texasflag.jpgFrom the state that just loves our sloppy seconds -- out-of-work wide receiver who cries about a fumbling quarterback say, "What. It's unfair. That's my quarterback." -- comes this case about a Facebooking emergency medical technician from Texas. 

To protect the innocent -- in the event that you've yet to click on the case link -- we'll call the employee-plaintiff "Misguided." Misguided the EMT was fired after posting on his co-worker's Facebook wall about how he wanted to boot a ultimate fighter patient in the head. 

Instead of just swallowing the bitter pill, Misguided sued his former employer for -- get this -- intrusion upon seclusion. (basically, an invasion of privacy).

Invasion of privacy on a co-worker's Facebook page. And people wonder how I get material for this blog. 

Feel me flow on this steaming pile after the jump...

Continue reading "Breaking stupid: A hella-dumb Facebook invasion-of-privacy claim" »

July 13, 2012

TIP: Remind your employees to update Facebook privacy settings

knowwhatyouaredoing.pngA website called WeKnowWhatYoureDoing.com, which describes itself as a "social networking privacy experiment," has begun compiling publicly available Facebook status updates from your employees, which fall into one of four categories:

    1. "Who wants to get fired?"
    2. "Who's hungover"
    3. "Who's taking drugs"
    4. "Who's got a new phone number?"

Although the content may be crude, the site's mission is noble -- to educate social networkers about Facebook privacy controls:

Just make sure your Facebook privacy settings are sufficient, for example don't publish status updates containing potentially risky material as 'Public'...The problem is how people simply don't understand the risks of sharing everything.

Thus, without even realizing it, your employees may be broadcasting their hatred of you or their affinity for puffing the magic dragon [cue music], neither of which bodes well for your company.

Use this blog post as a reminder to mention in your social media policies and training sessions that social networking sites like Facebook have privacy settings. And while these settings may change from time-to-time, getting your employees keyed in to the idea of setting privacy controls is a good first step.

(h/t Phil Miles @ LawfficeSpace.com)

July 12, 2012

PA to require public-works contractors & subcontractors to use E-Verify

everify.jpgLast week, Governor Tom Corbett (R) signed the Public Works Employment Verification Act. The Act goes into effect on January 1, 2013, and will require contractors and subcontractors on PA public-works projects to confirm the employment eligibility of newly hired workers using the federal E-Verify program. E-Verify is a free Internet-based system that allows businesses to determine where employees may legally work in the United States - either U.S. citizens, or foreign citizens who have the necessary authorization.

A first offense will result in a warning. A second offense will result in 30-day debarment from public work and a small fine. All subsequent violations will get you a public-work bar of between 180 and 365 days. Any willful violation may result in a 3-year public work ban.

Moreover, the Department of General Services of the Commonwealth will be conducting both complaint-based and random audits of covered employers to determine compliance with the Act.

So check yourself before you wreck yourself.

July 11, 2012

It's tough to prove age bias after getting caught sleeping on the job

Sleep at workI was reading this Third Circuit decision yesterday about an employee who got demoted for sleeping on the job, and all I could think of was Homer Simpson. For not unlike Homer J., a nuclear safety technician, this employee was responsible for monitoring his plant's equipment to prevent malfunctions that could result in explosions, property damage, injuries, and fatalities. Except, unlike Homer, the former employee was allegedly found sleeping on the floor of his office, with a pillow, blankets, and an alarm clock nearby. Now that's what I call an all-out Costanza! All that's missing here are the empty calories and male curiosity, eh Georgie?

Instead, we are left with a baseless age-discrimination lawsuit from a employee, claiming that when he was demoted, it wasn't for sleeping on the job. Rather, it was because of his age and an unwritten policy "to get rid of older employees," premised upon a single stray remark and slipshod investigation into the sleeping incident.

Smell that? Yeah, me too... (And it's not what The Rock is cookin')

To prove age discrimination, an employee must demonstrate, at a minimum, that the employment action taken occurred under circumstances that give rise to an inference of discrimination. One stray remark and a poor investigation -- even if true -- do not indicate that age was the motivating reason behind an employment decision, which is the burden that a plaintiff must meet to prove age discrimination.

What's the lesson to be learned here? If you are going to sleep at work, don't get caught, of course. Or maybe do your sleeping at home...in a bed.

Continue reading "It's tough to prove age bias after getting caught sleeping on the job" »

July 10, 2012

HR 101: Don't suggest "No More Hysterectomies" to a woman on FMLA

D`ohIn my years of practicing employment law, I've drafted several employee handbooks and Family and Medical Leave Act (FMLA) policies for employers. The policies I draft are thorough. But just the other week, it occurred to me that I should probably add some language to the effect that supervisors should refrain from recommending the book No More Hysterectomies to any female employee who requests FMLA leave, especially to have a hysterectomy.

That recommendation would be stupider than stupid stupid. And, wouldn't you know it, a company in Ohio appears to have managed to screw that up.

I couldn't make this stuff up if I wanted to. Well, except for the part about the policy revision. That's pure BS. But the screw-up is not. Details after the jump...

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July 9, 2012

U.S. Department of Labor has a new FMLA guide and webinar

FMLA Employee GuideLate last year, the US Department of Labor issued this fact sheet, which 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.

Last month, the DOL followed up with the "Family and Medical Leave Act Employee Guide," a copy of which you can download here. A related webinar, which the DOL held on June 27, includes a list of frequently asked questions. You can view it here.

Although geared towards employees, these are both nonetheless good reads for HR professionals looking to hone their FMLA chops.

July 6, 2012

NJ reaffirms that officers may be personally liable for unpaid wages

Ilya BryzgalovWant another reason not to enter into a long-term contract with an employee? Click through...

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July 5, 2012

Pennsylvania to relax OT requirements for hospitals


Last week, Pennsylvania's Governor, Tom Corbett was presented with this bill that will allow hospitals and other medical care facilities in Pennsylvania to better control the scheduling of employees to control payment of overtime. Details after the jump...

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July 3, 2012

PA bill will protect privacy of employee social media passwords

Thumbnail image for facebookprivacy.jpg

On June 18, 2012, the Pennsylvania House of Representatives introduced the Social Media Privacy Protection Act, which would protect the privacy of employee online user names and passwords.

A summary of the bill, and what this could mean for PA employers, follows after the jump...

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July 2, 2012

Paid sick leave now in effect in Philadelphia

As of yesterday, July 1, 2012, covered employers in Philadelphia are now required to afford sick leave to certain employees. Here is a copy of the new law. You'll also need to read this bill to have any chance at making heads or tails of the new sick-leave requirements. 

But, I'll give you a brief summary of the new law after the jump...

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