August 2012 Archives

August 31, 2012

GUEST POST: Why Hiring Managers Must Verify College Degrees

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Samantha Gray. Samantha is a freelance writer/researcher for www.BachelorsDegreeOnline.com. Her articles cover issues related both to online and traditional education, as well as student lifestyle, careers and business. Please send any questions or comments her way at SamanthaGray024@gmail.com.

(Want to guest blog at The Employer Handbook? Email me.)

Continue reading "GUEST POST: Why Hiring Managers Must Verify College Degrees" »

August 30, 2012

Kiss the "fluctuating workweek" OT method goodbye in PA

kiss.jpgmmmmmmmmmmmmwah!

What is the fluctuating workweek method of overtime compensation? Why is it no longer good in PA? And why should you care?

I answer all of these hard-hitting questions -- like a BOSS -- after the jump...

Continue reading "Kiss the "fluctuating workweek" OT method goodbye in PA" »

August 29, 2012

No ADA accommodations required for non-disabled employees

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Last week, we had a two-part series on the interplay between the Family and Medical Leave Act and the Americans with Disabilities Act. The former clearly obligates employers to afford leave to an eligible employee to care for a sick child. But, what about the latter? That is, must an employer provide leave from work as a reasonable accommodation to an employee to permit her to care for a disabled child?

In a case decided earlier this month (Magnus v. St. Mark United Methodist Church), the Seventh Circuit Court of Appeals held that the ADA does not require employers to provide reasonable accommodations to non-disabled workers.

However, that does not mean that employers have carte blanche to discriminate against employees who must care for disabled loved ones. Here are a couple of other lessons from the Seventh Circuit:

  1. The ADA forbids an employer from discriminating against an employee because of a known disability of an individual with whom the employee is known to have a relationship or association. This is known as associational discrimination.

  2. An employer may not terminate (or refuse to hire) an employee for unfounded assumptions about the need to care for a disabled person.

  3. The ADA does not preclude an employer from firing an employee who violates an attendance policy, if the reason for the absence is to care for a disabled loved-one. (Editor's note: It may violate the FMLA).

(h/t Eric Sigda @ GT L&E Blog)

August 28, 2012

PA: Forced reinstatement of a sexual harasser violates public policy

Courts analyzing anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act mandate that employers educate employees about discrimination in the workplace and provide a way for them to complain. Then, once made aware of discrimination in the workplace, the employer must take steps that are reasonably designed to end the discrimination. That could mean anything from a verbal warning up to termination of employment. That decision is up to the employer.

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In Phila. Housing Authority v. AFSCME, after investigating a complaint of sexual harassment, a unionized employer with a zero-tolerance policy for sexual harassment fired the alleged harasser. The union subsequently filed a grievance that eventually led to arbitration, at which time the arbitrator deemed the alleged harasser's behavior to be "lewd, lascivious and extraordinarily perverse." Notwithstanding, the arbitrator concluded that a verbal warning would have sufficed, rather than termination, and ordered the alleged harasser reinstated and made whole.

On appeal, the PA Supreme Court blasted the arbitrator's decision, while emphasizing the public policy against unlawful harassment in the workplace.

The issue before the arbitrator was whether there was just cause for this termination, and if not, what would be the appropriate remedy short of termination. The absurd award here makes a mockery of the dominant public policy against sexual harassment in the workplace, by rendering public employers powerless to take appropriate actions to vindicate a strong public policy. Such an irrational award undermines clear and dominant public policy.

The high court then emphasized that employers should have the discretion to determine what step(s) are most reasonably designed to discrimination in the workplace:

A public employer cannot be denied the power to impose consequences for this sort of inappropriate, and facially criminal, conduct. Indeed, with the general notion in mind that recognized rights must generally have some form of remedy, it is clear that there must be a power in public employers to take meaningful steps to vindicate dominant public policy. To allow an arbitration award which finds that an employee engaged in "extraordinarily perverse" physical sexual harassment of a co-worker, yet then simply dismisses the conduct as unworthy of an employer response beyond initial "counseling," and reinstatement with back pay, would eviscerate the ability of employers to enforce dominant public policy.

Learn from this decision. Employers should make sure that their anti-harassment policies emphasize zero tolerance. Then, err on the side of harsher discipline. There is no place in the workplace for unlawful discrimination.



August 27, 2012

New model jury rules specifically address use of social media

Social media dataflowsGot a jury trial coming up? Concerned about jurors using social media to discuss the case or conduct independent research during trial? As you may recall from this blog post, if you are counting on the court to independently instruct jurors not to get their Twitter on, well, don't hold your breath.

Instead, consider including this new two-page model jury instruction addressing juror use of social media during trial. You'll note that jurors are instructed twice about social-media use. According to this official press release, the new rules emphasize that a single instruction to refrain from using social media to discuss/research the trial is not enough:

The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial. Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines.

One additional suggestion: remember that technology is ever-changing. Today's Facebook may be tomorrow's TheEmployerHandbook.com.

Yeah...

The point here is that you shouldn't hesitate to tailor these model jury instructions to emphasize those sites and tools that your jurors are likely to utilize to make sure that they don't.


August 24, 2012

FMLA may require you to adjust employee performance standards

Thumbnail image for fmla.jpegI'm back, jack.

And I have some hella-tough shoes to fill, following Janette Levey Frisch's killer two-part guest-blogger series on the interplay between the Family and Medical Leave Act and the Americans with Disabilities Act. You can find Part One here and Part Two here.

So, we all know by now that if a disabled employee requests that his employer afford him a reasonable accommodation to allow the employee to perform the essential functions of his position, the employer must do so (assuming a reasonable accommodation exists). That's ADA 101.

But, let's shift gears a bit and talk FMLA. Assume an employee has an FMLA-qualifying condition and will be out on FMLA leave for several weeks. Does the employer violate the FMLA by: (a) failing to make a reasonable adjustment to its employment expectations to account for the FMLA-protected leave, and then: (b) terminating the employee for failing to meet those unadjusted expectations.

According to the Seventh Circuit Court of Appeals in Pagel v. TIN, Inc. (opinion here), the answer is yes. Here's the explanation:

The FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.
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At summary judgment, Pagel presented evidence showing that TIN terminated him in part for not meeting sales expectations, even though he had missed a number of days for FMLA treatment....He also presented evidence showing that Kremer relied on inaccurate data in finding that Pagel did not meet some of the company's reporting requirements. TIN subsequently admitted to some of these inaccuracies....Based on this evidence, Pagel has presented enough evidence to meet his initial burden.

A plaintiff's lawyer will salivate at this fact pattern. Me? I know I'll have my work cut out for me. Putting aside the obvious -- the employer apparently failed to adjust performance requirements to account for FMLA-qualifying leave -- it further appears that the employer failed to hire slow and fire fast. That is, if the employee was having performance issues pre-FMLA and not meeting numbers, then the employer should have acted on it quickly before that FMLA request was made. Because now it looks fishy. 

And the jury will be left to question the timing.

You may also enjoy this post from Jon Hyman at the Ohio Employer's Law Blog addressing whether asking an employee to take a psychological examination could create problems under the ADA.

August 23, 2012

GUEST POST: FMLA & ADA: Never the twain shall meet? (Part II)

guestblogger.jpgToday, Janette Levey Frisch is back as guest blogger to wrap up her two-part series on the interplay between the between the Americans with Disabilities Act and the Family and Medical Leave Act. (You can read Part One here).

Janette is In-House Counsel at Joule, Inc. where she provides comprehensive legal representation and support to a staffing company with five subsidiaries throughout the East Coast. You can connect with Janette on Twitter here and on LinkedIn here.

Click through to read more about how the FMLA and ADA may cross paths in your workplace....

(And if this awesome two-part series inspires you to want to guest blog at The Employer Handbook? Email me.)

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Continue reading "GUEST POST: FMLA & ADA: Never the twain shall meet? (Part II)" »

August 22, 2012

GUEST POST: FMLA & ADA: Never the twain shall meet? (Part I)

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Janette Levey Frisch. Janette is In-House Counsel at Joule, Inc. where she provides comprehensive legal representation and support to a staffing company with five subsidiaries throughout the East Coast. You can connect with Janette on Twitter here and on LinkedIn here.

Part one of Janette's post on the interplay between the Americans with Disabilities Act and the Family and Medical Leave Act, an HR-compliance must-read, follows after the jump...

(Want to guest blog at The Employer Handbook? Email me.)

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Continue reading "GUEST POST: FMLA & ADA: Never the twain shall meet? (Part I)" »

August 21, 2012

Pierce Cameron Meyer

We interrupt this labor & employment law blog for an important announcement...

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It's got a nice ring to it...

August 17, 2012

D-I-S-M-I-S-S-E-D! Court punts Playboy-posing cheerleader's bias claims.

Fans enjoy the cheerleaders

[If you listen carefully, you can actually hear the sound of page-hits and prurient reader interest cascading at The Employer Handbook. It's got a little funky Salt n' Pepa beat to it...]

Last May, I slobbered over blogged here about a former Indianapolis Colts' cheerleader who sued the team claiming that the Colts discriminated against her on the basis of her race (Asian) and national origin (Indonesian).

Earlier this week, the court ruled on the Colts' motion to dispose of the case. While I think we can all agree that this sort of hard-hitting blog fodder is better suited for a Monday post, I'm going to blog the heck out of the Court's decision...after the jump. (It's a long post, but it's soooooo worth it).

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Continue reading "D-I-S-M-I-S-S-E-D! Court punts Playboy-posing cheerleader's bias claims." »

August 16, 2012

Horseshoes, hand grenades and....FMLA eligibility?

horseshoes and hand grenades And here I thought close only counted in the first two...

Who knew that close enough is good enough under the Family and Medical Leave Act (FMLA) when meeting the 1,250-hour eligibility requirement? Apparently, the Second Circuit Court of Appeals in this recent decision. I'll break it down and provide some related FMLA best practices after the jump...

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Continue reading "Horseshoes, hand grenades and....FMLA eligibility?" »

August 15, 2012

Employer wins lawsuit despite a "pattern of systematic sexual harassment"

sexharass.jpgIn Mann v. Staples, Inc., a female employee received unwelcome comments about her appearance and physique, was kissed and groped, and called a "skank ass bitch." The New Jersey Superior Court, Appellate Division, described this as a "pattern of systemic sexual harassment" -- one in which the alleged harasser appeared to have never received any anti-harassment training.

So, what did the court do? It affirmed summary judgment for the employer and dismissed the plaintiff's Complaint.

What?!?

Find out why, after the jump...

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Continue reading "Employer wins lawsuit despite a "pattern of systematic sexual harassment"" »

August 14, 2012

The 3rd Circuit's new FLSA joint-employment test...in HAIKU

bonsai_treephoto © 2007 Zest-pk | more info (via: Wylio)I just re-read yesterday's blog drivel. What the hell was that?!? As much as I do love the two great tastes that taste great together, that was an utter FAIL and I vow never to incorporate Reese's Peanut Butter Cups into a blog post again. Unless, of course: (a) a makeshift Peanut Butter Cup bra is prominently featured in a reported sexual harassment case; or (b) Hershey's wants to discuss some strategic product placement on The Employer Handbook. What can I say? YOLO and even this blogger has his price.

[Editor's note: I was determined to work YOLO into this blog post. Be nice. Although, my blogging chops are generally sharp, I'm about three months behind on the lingo.]

Focus, Eric. Short blog post. You can handle haiku

Arrgh! I cannot believe that Haiku-themed blog post, 17 syllables, would require readers to click through past the jump. Ah, whatever. Click through and someone call my editor...

Continue reading "The 3rd Circuit's new FLSA joint-employment test...in HAIKU" »

August 13, 2012

Peanut butter cups for everyone! Thank you, Third Circuit!

Reese's!After seeing Fatboy Slim perform in a bubble at the Olympics Closing Ceremony, I had trouble falling asleep last night. 

I tossed. I turned. But, I eventually drifted off into a deep sleep; a wonderful slumber. I dreamt that the Third Circuit Court of Appeals decided two cases under the Fair Labor Standards Act (FLSA), and then I blogged about them in a single blog post. Like peanut butter and chocolate, it was the Reese's Peanut Butter Cup of blog posts.

What a sweet, decadent dream. Or was it a dream? Find out after the jump... 

[Hint: no dream, no chocolate, just two FLSA decisions (one of which I'll blog about tomorrow, because I ramble a bit after the jump, much like I'm droning on now). Maybe this is all just an excuse to play Katy Perry. Yeah, this all makes sense. About as much as having Russell Brand sing "I am the Walrus" from on top of a psychedelic VW bus in front of a worldwide audience of millions. Just jump.]

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Continue reading "Peanut butter cups for everyone! Thank you, Third Circuit!" »

August 10, 2012

There are employee perks. And then there are Google-employee perks...

google.jpg

Yesterday, I came across this article from Meghan Casserly on Forbes.com, which discusses the benefits that Google provides its employees and their families. One of my favorite bloggers in the HR/employment-law space, Mark Toth, lives by the mantra that companies that really love their employees are the best places to work. Well, then, look out Disney World, because Google must be the happiest place on earth!!!

Find out just how great it is after the jump...

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Continue reading "There are employee perks. And then there are Google-employee perks..." »

August 9, 2012

Appeals court revives disability bias claims of one-handed bus driver

Weird School BusTammy Rosebrough was born without a left hand. In September 2007, she applied for a cook position at Buckeye Valley North High School. However, due to a shortage of bus drivers, the school encouraged Rosebrough to become a bus driver. Rosebrough accepted.

Rosebrough claimed that, during her training, her trainer made discriminatory comments to her about her disability on two separate occasions. Rosebrough reported the comments and was informed that her concerns would be addressed.

Later, during her training, Rosebrough was informed that she would need a commerical driver's license (CDL). She scheduled a CDL test with the State, but later cancelled when her trainer was unavailable to take her to the test. Over the next several months, Rosebrough contacted several other testing centers and school districts but learned she could only be trained by the school district that ultimately hired her. Rosebrough never contacted Buckeye Valley again to return and finish her training.

On March 11, 2009, Rosebrough filed suit against Buckeye Valley asserting violations of the Americans with Disabilities Act. The lower court granted summary judgment to Buckeye Valley when it concluded that Rosebrough was not qualified to perform her job. Specifically, the court opined that Rosebrough was not qualified because she failed to obtain her CDL.

The Sixth Circuit Court of Appeals, in this decision, reversed. It reasoned that Rosebrough was not hired as a bus driver, but rather as a "bus driver trainee." And, the ADA covers discrimination in job training. Further, as Buckeye Valley conceded that Rosebrough "was qualified to be a 'trainee,' was in fact a 'trainee,' and was given the training," having a CDL was not necessary for Rosebrough to perform the essential functions of her training position. Therefore, Rosebrough was qualified to perform the essential functions of her job. 

The Sixth Circuit remanded the case to the lower court to consider the other elements of Rosebrough's ADA claim.

August 8, 2012

What do Ravishing Rick Rude and sex discrimination have in common?

trashdumpster.jpegA federal court described Charles "Chuck" Wolfe, a crew superintendent in of an all-male construction crew, as a "world-class trash talker" and a "master of vulgarity." One of the members of Wolfe's crew was Kerry Woods, a straight male. Woods claimed that his supervisor, Wolfe another straight man, had engaged in unlawful "same sex" harassment, in violation of Title VII of the Civil Rights Act of 1964, by referring to him in "raw homophobic epithets and lewd gestures."

A jury heard Woods's claims and awarded him nearly $500,000. The Fifth Circuit Court of Appeals heard the employer's appeal, threw out the jury award, and dismissed the complaint (in this opinion).

Why? Find out after the jump...

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Continue reading "What do Ravishing Rick Rude and sex discrimination have in common?" »

August 7, 2012

Facebooking about "naked Twister" may doom one's sexual harassment claims

TwisterAnd some of you wonder why I enjoy blogging about HR and employment law.

More after the jump...

(What I won't do for my loyal readers....)

Continue reading "Facebooking about "naked Twister" may doom one's sexual harassment claims" »

August 6, 2012

Can the words "Emergency Room" trigger an FMLA request?

Thumbnail image for fmla.jpegAs you know from this post, an employee who wants leave from work under the Family and Medical Leave Act (FMLA), does not need to use the word, "FMLA." Instead, the employee need only provide enough information for the employer to understand that the employee needs FMLA leave.

So what about the words, "Emergency Room"? That is, if an employee calls her supervisor and says:

"I am currently in the emergency room. My mother has been brought into the hospital via ambulance, and I am unable to work today."

Can that trigger an FMLA request? Find out after the jump...

Continue reading "Can the words "Emergency Room" trigger an FMLA request?" »

August 3, 2012

413,000 reasons for HR to avoid inconsistent employee discipline

Thumbnail image for fmla.jpegInconsistent discipline is bad. But, when an employee's request for leave under the Family and Medical Leave Act precedes the inconsistent discipline by only 48 hours,  damn, that's not just a lawsuit, that's jury-verdict material.

The details on this bloodbath and a few lessons for my employer-readers after the jump...

Continue reading "413,000 reasons for HR to avoid inconsistent employee discipline" »

August 2, 2012

Snoop Dog becomes Snoop Lion! And news of a new employee Facebook law

Snoop DogCalvin Broadus a/k/a Snoop Dogg is now the artist formerly known as Snoop Dogg. During a recent trip to Jamaica, Snoop was apparently *** afraid to add snarky strikethrough for fear of losing job ***  "born again" and is now Snoop Lion. 

But in even BIGGER news --

Drop it like it's hot!

Yesterday, Illinois became the second state, after Maryland, to make it unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information to gain access to an online account. 

Fo' shizzle!

Under Illinois' "Right to Privacy in the Workplace Act," it is now also unlawful for an employer to require that an employee or prospective employee log into their online account so that the employer may gain access.

*** Searches for other Snoopisms -- finds nothing blog-appropriate ***

The Act does have a few carve-outs for employers. Employers may still maintain lawful workplace policies governing the use of the employer's electronic equipment, including policies regarding Internet use, social networking site use, and electronic mail use. And if employers want to monitor usage of the employer's electronic equipment and the employer's electronic mail without requesting passwords, then by all means.

No word from Snoop Lion if he approves of Illinois' new law. But, like you, he is welcome to sound off in the comments below.

*** Sets blog-comments-spam-filter to "volcano" ***

August 1, 2012

A scary NLRB decision threatening the integrity of workplace investigations

nlrb.jpgHR heads are still spinning as they try to digest what the National Labor Relations Board has tried to accomplish this year.

The Acting General Counsel has issued confusing reports on social media. The Board has also attempted to create quickie union elections, and require companies to abide by a union-poster rule. Why, just a few weeks ago, the Board ruled that an "at will" provision in an employee handbook may violate the National Labor Relations Act. That one is still a head-scratcher for me.

But the National Labor Relations Board has really stepped in it again, dealing another crushing blow to HR. I think you'll agree with me when you read on after the jump...

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Continue reading "A scary NLRB decision threatening the integrity of workplace investigations" »