September 2012 Archives

September 28, 2012

Rapper's Delight: Lil Wayne gives a deposition for the ages [VIDEO]

This.

September 27, 2012

What one employment-law question would you ask Paul Ryan?

paulryan.jpegWe're just a few months away from the Presidential election. That means that the debates are right around the corner.

Monday, started a week-long series of hypothetical debate question for the 2012 candidates for President and Vice President. Here are the questions I asked President Obama, Mitt Romney, and Vice President Biden.

And here's my question for Rep. Paul Ryan:

Your campaign website claims (here) that "unions drive up costs and introduce rigidities that harm competitiveness and frustrate innovation." Both you and Mitt Romney have been critical of the Employee Free Choice Act, a bill that would have made it easier for employees to unionize. Indeed, you once received a 7% approval rating with the AFL-CIO
Do you feel that unions today provide any benefit in America's workplace? 
And, if given the opportunity, would you repeal the National Labor Relations Act altogether?

To see what my fellow bloggers would ask Mr. Ryan, check out:

What would you ask Mr. Ryan at the '12 debates? Let me know in the comments below.

September 26, 2012

What one employment-law question would you ask Joe Biden?

joebiden.jpegWe're just a few months away from the Presidential election. That means that the debates are right around the corner.

Monday, started a week-long series of hypothetical debate question for the 2012 candidates for President and Vice President. Here are the questions I asked President Obama and Mitt Romney.

And here's my question for Vice President Biden:

The White House (here) touts the Lilly Ledbetter Fair Pay Restoration Act as the first piece of legislation -- employment-law or otherwise -- signed into law during President Obama's first term. The President touts fair pay and equal rights, but there hasn't been a second significant employment law passed yet.
Why hasn't there been a second? (Negative points if you blame the Republicans).

To see what my fellow bloggers would ask Mr. Biden, check out:

What would you ask Vice President Biden at the '12 debates? Let me know in the comments below. And be sure to come back tomorrow for a question to Paul Ryan.

September 25, 2012

What one employment-law question would you ask Mitt Romney?

mitt romney.jpgWe're just a few months away from the Presidential election. That means that the debates are right around the corner.

Yesterday, started a week-long series of hypothetical debate question for the 2012 candidates for President and Vice President. Click here to see the softball that I tossed President Obama. 

Let's see if I can raise my game for Mitt Romney:

As you know, the Family Medical and Leave Act provides job-security protections for qualifying employees with serious health conditions, loved ones with serious health conditions, or who need time off to care for a newborn. Presently pending in Congress are bills to expand the scope of the FMLA. For example, the Domestic Violence Leave Act would provide leave for workers to address domestic violence, sexual assault, or stalking and their effects. The Family and Medical Leave Inclusion Act would amend the FMLA to permit leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, grandchild, or grandparent who has a serious health condition. 
These efforts would broaden the law. But what if you had the power to repeal the FMLA altogether. Would you do it? And why?

To see what my fellow bloggers would ask Mr. Romney, check out:

What would you ask Mitt Romney at the '12 debates? Let me know in the comments below. And be sure to come back tomorrow for a question to Joe Biden.

September 24, 2012

What one employment-law question would you ask President Obama?

obama.jpegWe're just a few months away from the Presidential election. That means that the debates are right around the corner.

Back in 2008, around this time, employment-law blogger Daniel Schwartz at the Connecticut Employment Law Blog rounded up some other bloggers to pose hypothetical debate questions to the '08 candidates for President and Vice President.

Four years later, Dan has resurrected this successful series and asked yours truly to join in. Today, the question goes to President Obama:

Protection of women's rights in the workplace seems to have been a priority for you since taking office. In 2009, you signed the Lily Ledbetter Fair Pay Act, which effects the statute of limitations for filing an equal-pay lawsuit, into law. The Patient Protection and Affordable Care Act, signed into law in 2010, includes workplace breastfeeding protections. 
Should you win reelection, what further changes would you make to workplace laws?

To see what my fellow bloggers would ask President Obama, check out:

What would you ask President Obama at the '12 debates? Let me know in the comments below. And be sure to come back tomorrow for a question to Mitt Romney.

September 21, 2012

Telecommuting as an ADA accommodation: Maybe; maybe not

Much has been written lately in the blawgosphere about telecommuting as a reasonable accommodation under the Americans with Disabilities Act for qualifying disabled employees.

Last month, Jon Hyman posted (here) about this case, in which a federal court in Ohio held that telecommuting may be a reasonable accommodation based on the unique facts concerning the employee and the workplace -- and that issue was up to a jury to determine.

telecommute.jpgEarlier this month, I came across another case (EEOC v. Ford Motor Co.), in which a Michigan federal court also recognized that telecommuting may be a reasonable accommodation. However, unlike the prior Ohio decision, the Michigan court recognized that there are some telecommuting arrangements that are just so impractical that no jury would conclude that telecommuting is a reasonable accommodation.

In Ford Motor Co., the court refused to second guess the business judgment of Ford's managers who concluded that the plaintiff could not work from home on a regular basis for up to four days a week. The court further noted that no other employees who held the same position as the plaintiff were allowed to telecommute that often. It also found credible Ford's evidence that frequent, unpredictable absences negatively affected the plaintiff's performance and increased the workload on her colleagues. Consequently, the court dismissed the plaintiff's claim that Ford had failed to accommodate her disability.

The EEOC, which lost the Ford Motor Co. case, has published some guidance on telecommuting as a reasonable accommodation. Jon also has some good tips in his post regarding telecommuting as a reasonable accommodation. Against the backdrop of the Ford Motor Co. decision, Jon's most notable tip is documenting the cost of establishing and monitoring an effective telecommuting program.

Ultimately, each telecommuting request or, for that matter, any reasonable accommodation request, should be analyzed on a case-by-case basis after discussion with the employee about the various reasonable accommodation options.

September 20, 2012

NLRB's 1st social media ruling: Slams Costco policy; greenlights defamation

candycorn.jpegIt's been a while since I've addressed social media policies and the National Labor Relations Act on this blog. Longer than Kim K's marriage to what's his name? Indeed. Methinks things at the National Labor Relations Board have been quiet lately. Maybe a little too quiet.

And then...

Click..click...BOOM! [Cue music]

Earlier this month, for the first...time...evah, the NLRB weighed in on the validity of an employer's social media policy.

I know. I know. Sit down, catch your breath. This is big stuff! Big stuff!!! Mmmm...double stuf. And speaking of Oreos, have you seen these bad-boys? Who wants to send me a package for Halloween?

Wait! What were we talking about again? Was it fantasy football? Should I start Martellus Bennett tonight? 

No, it was NLRB. Dang! What did the NLRB decide about social media policies? WHAT OF SOCIAL MEDIA POLICIES!?!? I won't keep you in suspense any longer. Hit the jump and find out!

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September 19, 2012

That moment right before the pain begins: an EEOC subpoena

bullinthewater.jpeg

Back in July, I blogged here about a federal appellate court recently emphasizing just how broad the subpoena power of the United States Equal Employment Opportunity Commission really is. [Editor's Note: the technical legal term is "crazazy broad"]

Last Friday, as I was hosting the weekly dip-spit distance shot organizing my office, I saw this opinion from the Third Circuit Court of Appeals which further underscored just how far and deep the EEOC's outstretched hand can go into your business.

Yeah, you, dude! The one who is not accused of discriminating against anyone, but who may have information relating to a pending EEOC investigation.

What's in store if you are on the receiving end of that subpoena? Find out after the jump...

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September 18, 2012

Want 5 court-approved workplace anti-harassment tips? Read this...

bullets.jpg

You've got an anti-harassment policy. All managers and employees have copies and you just completed training on the policy for your entire workforce.

Sweet!

But is your policy bulletproof? I mean really bulletproof? 

And if an employee claims that a harasser lurks in your workplace, if sued, will a court agree that the steps you have taken were reasonably designed to end the harassment?

Just how confident are you?

After the jump, some not so obvious pitfalls from a recent federal-appellate-court decision and six ways (5 from the court; 1 from me) to help you stay legal and out of the courtroom.

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Continue reading "Want 5 court-approved workplace anti-harassment tips? Read this..." »

September 17, 2012

GUEST POST: Hiring obstacles that the web poses to college grads

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Lauren Bailey. Lauren is a freelance writer currently writing for bestcollegesonline.com. Among her preferred topics to cover, Lauren loves to write about higher education, tech in the classroom, and the college experience in general. Feel free to email her some comments!

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

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September 14, 2012

Yo, Boss! Did you say "Spacebook" and "Tweeter"?

spacebook.jpgPenn State Kicker Sam Ficken probably had a pretty bad week. Last Saturday, he missed one extra point and four field goals in Penn State's 17-16 loss to Virginia. After the game, he was deluged with online insults.

Thankfully, his coach, Bill O'Brien, came to his defense.

Obviously, I think it's absolutely ridiculous. Not just because it's a 19-year-old college kid. It's just because, I mean, it's anonymous in some ways, and in other ways it's not. But at the end of the day, you know, these guys are really playing hard, giving great effort for us," O'Brien said. "To go on whatever, Spacebook [sic] or Tweeter [sic], or whatever [and] put stuff on there is just absolutely ridiculous to me and very cowardly, to be honest with you. But that's just my opinion . . . I don't know what type of people do that.

It's refreshing to see one's boss (so to speak) go to bat like this. However, it looks like someone could use a little Social Media 101.


(h/t Philadelphia Daily News)

September 13, 2012

Is an employee with managerial duties "similarly situated" to a manager?

rubik.jpg

Maybe it's the luck of the draw, but most of the discrimination cases I defend are hostile work environment cases, where an alleged harasser supposedly has made an employee-victim's life miserable with certain comments, jokes, gestures, touchings, you name it.

Far less often do I encounter disparate-treatment claims. A disparate-treatment claim is one where an employee claims that another similarly-situated employee in another class was treated more favorably because of his/her protected class. For example, a female employee claims that similarly-situated male employees are paid more because they are men.

Sounds like the facts of a recent case decided right in my backyard in the Eastern District of Pennsylvania. This case provides a great opportunity to go back to school on what it means to be similarly-situated...after the jump...

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September 12, 2012

Is "casual conversation" of a parent's health enough to trigger FMLA?

fmla.jpeg

Last month, in this post, I addressed a recent opinion in which the court held that the words "Emergency Room," when uttered by an employee to his employer are enough to put the employer on notice -- at least initially -- that the employee needs leave under the Family and Medical Leave Act to care for a parent with a serious health condition.

In another recent opinion (here), the Seventh Circuit Court of Appeals examined inquiry notice under the FMLA to determine whether causal conversation about a loved one's health -- without mentioning the letters FMLA -- is enough to alert an employer to the seriousness of a health condition so as to trigger the need for FMLA leave.

The Court held that it did not:

Here, the evidence falls short of establishing inquiry notice. Nicholson had one "casual conversation" with Naatz and others about the challenges of dealing with aging parents and may have mentioned her father's condition. This is clearly insufficient as a matter of law to notify Naatz that FMLA-qualifying leave was needed.

So, two takeaways for employers to limit what may be a close-call under FMLA:

  1. Employers should make sure that supervisors are trained to address employee leave that may fall within the scope of the FMLA, especially when the employee does not specifically mention the letters FMLA.

  2. If an employer even senses that employee leave may fall within the scope of the FMLA, confirm it by obtaining medical certification from the employee.

September 11, 2012

Court grants access to plaintiff's social media in discrimination case

lockandkey.jpgMany times on this blog (e.g., here, here, and here), I've discussed the discovery of a plaintiff's social media information in pending litigation. More often than not, these issues arise in personal injury actions where the defendant believes that the plaintiff's injury isn't as a severe as he claims it to be. So, it seeks access to plaintiff's Facebook information where it believes it will find pictures of the plaintiff boozing or frolicking or what-have-you.

Although less common in employment discrimination cases, from time-to-time, social media discovery issues do crop up. I'll discuss a new one decided late last month and offer some related tips for employers after the jump...

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September 10, 2012

POLL: Your employees post THIS YouTube video. What do you do?

Over the weekend, I heard PSY's catchy song Gangnam Style for the first time. Coincidentally, I then read this story from Kathleen Miles on the Huffington Post about 14 Gen-Y lifeguards at a city pool in El Monte, CA, who posted this video (below, left) on YouTube spoofing the original "Gangnam Style" music video (below, right).

In response, the City fired the 14 lifeguards for using City property, including the pool and their uniforms, for private use. Sure, the City was within its rights to fire these employees. But, was that the ideal response?

Let's pretend that you are the decisionmaker for El Monte, CA. What would you do? Let me know in the comments below.

September 7, 2012

"How can I keep the white girl?"

blackjack.jpg[Editor's Note: Because "Playing the Race Card" was already taken]

The title of this post is comprised of the seven poorly-chosen words from a Vice President of Operations at a Detroit casino right before the casino terminated a white employee for allegedly botching supervision of a dealer card shuffle.

What do you think? Do we have a live race-discrimination claim? Oh yeah, we do! Details after the jump, as well as thoughts on employers who strive to maintain racial balance in the workplace...

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Continue reading ""How can I keep the white girl?"" »

September 6, 2012

Save the turtles, skip poison ivy, vote The Employer Handbook!

True story: In the wake of last year's stupid turtle ploy to elicit votes for The Employer Handbook in the ABA Blawg 100 Amici, I spent over an hour in a Harrisburg hotel room on Tuesday night trying to one-up (one-down?) myself by programming a talking computer avatar with an Irish brogue to encourage you to vote for The Employer Handbook in this year's ABA Blawg 100 Amici.

vote.jpegNow, I have done some stupid stuff in my life (see; e.g., the turtle; rubbing poison ivy on my face in the fourth grade because I didn't believe that the shiny green leaves of three that the kid with the baggie on his hand was holding was actually poison ivy) . Heck, while my wife was laboring in the delivery room last month, I was on the couch Googling for turkey crockpot recipes. (Perhaps, I should have kept that one to myself). But the talking avatar thing tops this week's list -- so far (I still have a few more days to go).

But seriously, here is the link, take a few seconds, vote Handbook. Tomorrow is the voting deadline. So, cast your vote today and then cackle with me as I mercilessly crush the competition. WHAT!

Then listen to me try to one-up my avatar idiocy this afternoon on this week's episode of The Proactive Employer. Stephanie Thomas will be hosting me, Jon Hyman, Phil Miles, Robin Shea as we answer your HR and workplace law questions. 

The show will air live today at 3 PM Eastern / 12 Noon Pacific on BlogTalkRadio. During the show, you can Tweet your questions using the hashtag #TPESHOW or call in at 1-888-553-6673.

And there's a twist.

According to the Stephanie's show promotion, "No issue is out of bounds, no question is too challenging, no situation is too bizarre for our panel of labor and employment attorneys! " She has further requested that we provide "candid advice" to such workplace conundrums as: "One of my employees posed for a Playboy spread. That's not the image our company wants to portray - can I legally fire her?"

[Editor's note: That sound you just heard was my malpractice carrier's head exploding]

Hopefully, the carrier voted Handbook first.

September 5, 2012

Ethics charges for two lawyers over Facebook friending a litigant

facebutton.pngIt was bound to happen sooner or later...

Mary Pat Gallagher of the the NJ Law Journal reports here (subscription required) that two NJ defense lawyers face ethics charges after their paralegal allegedly friended an attorney-represented plaintiff in a personal injury case.

Details on the allegations and some takeaways for both lawyers and HR professionals after the jump...

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September 4, 2012

ADA does not require indefinite break from essential job functions

Chilaquiles.jpeg

Readers of this blog know (here, here, and here) that if a disabled employee requests an indefinite leave of absence from work, the Americans with Disabilities Act does not require you to provide it. Why? Because that accommodation is not reasonable.

[Editor's note: Obsessed much, Eric? Three posts about the same topic?!? Why don't you just share with your readers about how you refused to drink anything other than water for hours after yesterday's Labor Day lunch of chilaquiles, just so you could continue to savor the satisfying burp-flavor of red sauce and refried beans. TMI, Eric. TMI....]

To the two remaining readers who made it this far, I'll school you on requests for an indefinite reprieve from essential job functions after the jump...

*** belches, draws dirty look from wife, smiles ***

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Continue reading "ADA does not require indefinite break from essential job functions" »