October 2012 Archives

October 31, 2012

You be the judge: Can this employer enforce its general release?

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Alright folks. Kindly remove your lawyer and HR hats for a moment and don the judicial robe and gavel.

Your Honor, what you must decide, based on the facts that I will lay out below for you after the jump, is whether the release that the Plaintiff-employee signed is enforceable, such that she is precluded from pursuing discrimination claims against her former employer, the Defendant. 

Click through if you're up to the task...

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Continue reading "You be the judge: Can this employer enforce its general release?" »

October 30, 2012

Salty about Sandy: 20 Hurricane tweets from your employees

Hurricane Sandy: Day 2

To my east-coasters, I hope this post finds you safe and dry. 

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Me? Hey, thanks for asking. Our Philly home kept power throughout and we otherwise made it through unscathed. Still, Philadelphia remains in a state of emergency. The City is essentially shut down. Most of the major surrounding highways have been off-limits. And, for a second day in a row, for the safety of the drivers and the riders, there is no public transportation in the City.

That means that local businesses too opted to close on Monday, and remain closed on Tuesday. Well, most of them. 

To the chagrin of some employees affected by the Hurricane, they had to work. And they have vented on Twitter.

After the jump, what your employees tweeted about working (or, maybe, not so much) during Hurricane Sandy...

[Don't shoot the messenger]

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Continue reading "Salty about Sandy: 20 Hurricane tweets from your employees" »

October 29, 2012

An HR guide to the workplace implications of Hurricane Sandy

I'm punching out this post on Sunday night, from my home in Philadelphia, before the brunt of Hurricane Sandy strikes. Like many of you, I'm locked, stocked, and ready to go, hoping that the impact is far less than is forecasted and the recovery is easy.

Inevitably, however, for you good folks -- especially if you have closed shop on Monday, employment issues are sure to arise. To help you out with some of them, read on past the jump...

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Continue reading "An HR guide to the workplace implications of Hurricane Sandy" »

October 26, 2012

GUEST POST: 5 Disability-Discrimination-Law Basics for Employers

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's one of my readers, Joseph Ginarte. Joseph is an employment lawyer with Ginarte, O'Dwyer, Gonzalez, Gallardo Winograd.

Like his post? Feel free to email him some comments!

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

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Continue reading "GUEST POST: 5 Disability-Discrimination-Law Basics for Employers " »

October 25, 2012

New equal-rights rules for NJ employers take effect next month

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I'd better remember to post this now before I get bitten and turn into a zombie and munch on your face..

[Note to self: Less of "The Walking Dead," more sleep].

On November 19, 2012, this new law will take effect in NJ, which will require employers of 50 or more employees (zombies not included) to notify their workforce about "the right to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment under the 'Law Against Discrimination."

In addition to hanging a poster in a conspicuous location, employers must notify their employees in one of three ways:

  1. Via email;
  2. In print (e.g., paycheck insert, handout); or
  3. Through an internet or intranet website

The notification must contain an acknowledgement that the worker received the notification and has read and understood its terms. And, if a language, other than English, is the primary language spoken in your workplace, then the poster and notifications must be in that language.

Want a copy of the poster/handout? Me too. I suspect that you'll eventually find copies here. Fear not, the posting and distribution requirements contained in the law are not triggered until the Commissioner of Labor and Workforce Development issues the form of notification.

October 24, 2012

Fact or Fiction: FMLA covers a tummy-tuck procedure

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."

An employee is eligible for leave under the Family and Medical Leave Act if the employee has "a serious health condition that makes the employee unable to perform the functions of the position of such employee." An employee has a serious health condition if there is "an illness, injury, impairment or physical or mental condition that involves inpatient care . . . or continuing treatment by a health care provider."

Treatments for cosmetic procedures are not serious health conditions unless complications develop from the procedure or inpatient hospital care is required. So, an employee who takes leave for a tummy-tuck procedure is not covered under the FMLA.

The answer to today's question is fiction.

For more on this, check out Dorsey v. Bellanger.

October 23, 2012

What happens in Vegas, becomes an FMLA claim

fmla.jpegYour employee vacations in Las Vegas. She plays the slots, walks the Strip, does some people watching, eats at nice restaurants. And she claims it's all covered under Family and Medical Leave Act.

And, you know what? She may be right. I'll tell you why after the jump...

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Continue reading "What happens in Vegas, becomes an FMLA claim" »

October 22, 2012

Employee's Twitter hatin' costs him unemployment benefits

TwitterLogo.jpgAn employee getting fired for caustic social-media posts is so 2011. Having an application for unemployment-compensation benefits denied because of Twitter stupidity -- that's the new black.

Details of a recent Commonwealth of Pennsylvania decision -- don't tread on me, Idaho -- after the jump...

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Continue reading "Employee's Twitter hatin' costs him unemployment benefits" »

October 19, 2012

10 excuses for missing work that are more creative than yours

Personal Breathalyzer with keysSorry about that hangnail. Get well soon and thank you for fighting through the agony to read this post. I'll make it worth your while.

It's that time of year again: roadtrip with the boys to the FourLoko distillery CareerBuilder's Annual Survey of the "Most Unusual Excuses Employees Gave for Calling In Sick." In last year's survey, "Employee's 12-year-old daughter stole his car and he had no other way to work. Employee didn't want to report it to the police" topped the list.

Find out what made the Top 10 this year, after the jump...

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Continue reading "10 excuses for missing work that are more creative than yours" »

October 18, 2012

144 "N"-words, but black employees can't prove they were offended

Take a few minutes to read this decision. It will blow your mind.

Here's the long and short of it:

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Three black employees sue for race discrimination claiming that they were subjected to a racially-hostile work environment. The court actually did the math:

During the relevant time period, Facer used the word "nigger" or "nigga" almost daily, or at least three to four times per week. Assuming that the Bratchers and Buie worked an average of forty-eight weeks a year, it would mean that Facer used the word "nigger" or "nigga" at the work site at least one-hundred forty-four times per year.

The court described these facts as presenting the "rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct." Also, the court held that the employer's anti-harassment policy was "unreasonable as a matter of law" because it required employees to report harassment to their harassing supervisor.

But here's the kicker: the court found that the plaintiffs could not establish, as a matter of law, that the comments offended them.

For serious?

In its opinion, the court identified 12 separate complaints that the plaintiffs registered, including to the owners of the company. The court also dismissed the "plaintiffs listen to rap music and rappers say 'n---a' a lot" defense. [Almost as bad as the "she was asking for it" defense]. Notwithstanding, the court considered the testimony of 3 witnesses (out of 24 total) who testified that they did not believe that the plaintiffs were subjectively offended by Facer's conduct -- you know, calling them n---er/n---a every day. That was enough to create a dispute of material facts.

So, this case will go to a jury where the plaintiffs will have to prove that they were offended by what the court itself described as a "steady barrage of opprobrious racial comments."

Unreal.

October 17, 2012

Fact or Fiction: Opposing an employee's u/c request may be Title VII retaliation

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 Title VII of the Civil Rights Act, an employer engages in unlawful retaliation when, in response to an employee complaint of discrimination, it acts in a way that may dissuade a reasonable worker from making or supporting a charge of discrimination.

So, let's assume that an individual files a charge of discrimination with the EEOC against her former employer. Thereafter, the employee files for unemployment compensation benefits, and the employer fights the claim for unemployment compensation, claiming that the employee was terminated for gross negligence. Could that be viewed as Title VII retaliation?

According to the this recent PA federal court decision, the answer is fact:

Ms. Stezzi can satisfy the "`adverse employment action' element of [her] prima facie case of retaliation" with her claims regarding Citizens Bank's post-employment conduct if she can show that Citizens Bank's actions negatively affected her future employment opportunities...I find that her complaint sufficiently alleges that Citizens Bank adversely affected her future employment opportunities by ordering Talx to appeal her unemployment compensation benefits....If other employers saw that Talx described Ms. Stezzi as grossly negligent in its appeal, it is reasonable to infer that such employers might refuse to hire Ms. Stezzi.

October 16, 2012

Everything's bigger in Texas. Even the Facebook stupidity.

A Texas court held earlier this month that an employer lawfully fired a paramedic who posted on the Facebook page of a co-worker that she wanted to slap a patient.

But, the plaintiff's rant isn't the worst of it.

facebookbackground.jpgWhen warned by a co-worker that the plaintiff's Facebook post was accessible by the general public, the plaintiff responded -- publicly on Facebook:

Yeah, whatever. YOU weren't there. Whenever I have to have a firefighter ride in with me because of a patient's attitude, and I fear for MY safety, I truly believe a patient needs an attitude adjustment. Think about that the next time YOU correct someone!!

As you can imagine, once the company got wind of this, it fired the plaintiff for being "unprofessional and insubordinate." Subsequently, the plaintiff sued for invasion of privacy.

Invasion of privacy?!? For accessing Facebook posts. That were public. That the plaintiff was told were public. That the plaintiff acknowledged were public. Plaintiff loses. (Decision here)

Did I mention that the Texas court that decided the case was an appellate court? The plaintiff frigging appealed her initial defeat -- one that previously blogged about here.

And y'all wonder why our legal system sometimes gets a bad rap. Oy!


October 15, 2012

172 resources to up employment flexibility in your workplace

ODEP_Logo.jpg1. Yoga
2. Bikram Yoga
3. That other kind of yoga
4. ummmm......

I have three kids three and under. Like I have time on the weekend to come up with 172 anythings...let alone something requiring a scintilla of creativity, save channeling my inner Andy Warhol at the children's museum yesterday -- 4 likes on Facebook for the uncensored version, yo.

So, instead, check out this Workplace Flexibility Kit from the U.S. Department of Labor's Office of Disability Employment Policy. It purports to provide 172 resources (case studies, fact and tip sheets, issue briefs, reports, articles, websites, other toolkits, and frequently-asked questions) all designed to enhance workplace flexibility (e.g., time, location, and manner in which an employee works).

October 12, 2012

Psst...there's a hella-good new blog for HR and employment law

streamers.jpgJanette Levey Frisch, In-House Counsel at Joule, Inc., has guest-blogged here before (here and here). As you know from her posts here, she is a fantastic employment lawyer. Now you can reap more of the benefits by checking out her brand new employment-law blog: The Emplawyerologist (http://theemplawyerologist.wordpress.com/).

Welcome Janette!

October 11, 2012

Utilityman can't climb utility poles, but has ADA claim against utility company

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From the blog that brought you "Can a bridge worker with a fear of heights have a viable ADA claim?," comes news of a recent federal-court decision which -- well -- you read the title to this blog post.

In RRRRRRRRRRRRRRico v. Xcel Energy, Inc. [cue music] the plaintiff, an apprentice lineman working for a utility company, was ordered by his doctor not to climb utility poles due to a back injury suffered on the job. The plaintiff alleges that he sought a transfer and, instead of getting that transfer, was terminated and told to apply for long-term-disability benefits. Plaintiff alleges that the defendant then offered him a job at a lower rate of pay as a "substation electrician," which the plaintiff accepted. The defendant allegedly also eliminated Plaintiff's three years of seniority as an apprentice lineman.

The plaintiff subsequently sued for disability discrimination. The defendant argued that the plaintiff's back injury was not a disability, as defined under the Americans with Disabilities Act Amendments Act. The court, however, disagreed and kept the case alive so that the plaintiff could develop a factual record which may indicate that his back injury "substantially limits [his] to perform a major life activity as compared to most people in the general population."

So, what can we learn from this post?

  1. My song choice was weak, at best.

  2. Under the ADAAA, it's not hard for a plaintiff to prove that he/she is disabled. The Rico Court emphasized that this is not a lofty burden. Therefore, when an employee comes to you requesting a reasonable accommodation for a workplace injury, more likely than not, that employee is disabled. So, focus instead on engaging in an interactive dialogue to determine what reasonable accommodation(s), if any, will allow the employee to perform the essential functions of the position.

  3. Don't lose the forest for the trees. It may seem obvious that an essential function of being a utility worker is to -- you know -- climb utility poles. However, under the ADA, an employer must still consider reasonable accommodations for a disabled employee that can't get up the pole. Maybe, a temporary light-duty restriction. Or a transfer to another open position for which the employee is qualified. (Heck, according to this recent case, accommodation through appointment to a vacant position is reasonable and, absent a showing of undue hardship, an employer must implement such a reassignment policy).
October 10, 2012

Does the Computer Fraud and Abuse Act cover lost LinkedIn business opportunities?

powered by Fotopedia

In the beginning of the year, I wrote here about a federal-court decision, which recognized that LinkedIn connections are not company trade secrets. Earlier this month, that same court, in the same case, was asked to decide whether hijacking an employee's LinkedIn account may violate the Computer Fraud and Abuse Act (CFAA).

In Eagle v. Morgan, the plaintiff, Dr. Eagle, claimed that her former employer had locked her out of her LinkedIn account for 22 weeks. Thus she was "unable to receive 'invitations to connect, business opportunities and ongoing communications with clients, potential clients and other business and personal contacts.'"

Sounds fairly vague to me. Besides, they have this thing called the telephone...

Anyway, the Court put the kibosh on Dr. Eagle's CFAA claim. It recognized that the CFAA permits a plaintiff to recover for loss related to the impairment or damage to a computer or computer system. However, a "loss" does not extend to potential business opportunities, especially speculative ones -- like the kind that may develop from connecting on LinkedIn.

How could all of this have been avoided? By better defining at the outset -- during the employment relationship -- whether Dr. Eagle's LinkedIn account belonged to Dr. Eagle or the company. With respect to issues involving ownership of social media accounts, I'll repeat three tips from a post earlier this year:

  1. Start with a written social-media-specific agreement. This document should clearly set out the rights and expectations of the company and its employee. Also, include social-media language in your other broader-based non-disclosure agreements.
  2. The company should create/register the account. This will indicate that the company has some ownership stake in the account. (Easy, folks. I'm not suggesting that companies should set up personal employee social-media accounts for them -- only those accounts in which the company seeks to maintain an ownership interest). Also, be sure to consider the terms of use that any social-media company has in place for end users.
  3. Change the password when employees leave. Make sure that you know the account password at all times and immediately change it when employees leave your company. That will reduce the risk that your former employee will act first and lock you out.
October 9, 2012

Go jump in the lake! (and then sue for race discrimination)

Mississippi RiverBack in 2010, Douglas Clayton had a rough Summer.

In August, Mr. Clayton was employed as a deckhand on a boat in Louisiana -- that is, until one of his white co-workers allegedly raised a wrench to Clayton and told him to get his "stupid mother f**king n**ger ass" off the boat. Mr. Clayton promptly complained to Human Resources and was transferred to another of the defendant's boats.

In September, Mr. Clayton again reported to Human Resources that his new co-workers continued to say "n**ger," among other comments, around him. Allegedly, HR responded by telling Mr. Clayton to "lighten up." Allegedly, later that day, after telling one of his co-workers to stop using the word "n**ger" on the boat, that co-worker attacked Mr. Clayton from behind.

After the physical altercation, Mr. Clayton skedaddled to another boat and called 911. While waiting for a police response, Mr. Clayton claimed that the co-worker who attacked him yelled out to Clayton, "Come out mother f**ker!"

Out of fear, Mr. Clayton jumped into the water and swam 30-40 feet to the shore.

He then sued for race discrimination, among other things. The employer moved for summary judgment, arguing that Mr. Clayton had not met his burden of establishing a tenable hostile work environment claim. The court (in this opinion), however, disagreed, underscoring that the incidents at issue were pervasive, hostile, and based on race:

Here, while there may be some incidents of hostility towards Clayton that do not deal specifically with his race, the facts provided indicate the majority of the harassment was race-based, and there is evidence that Clayton personally experienced these hostile events...Further, the insults directed towards Clayton are alleged to have occurred numerous times throughout his employment with Defendant.

The Court also questioned whether the employer had an effective mechanism in place to address allegations of race discrimination, noting that it presented no evidence of a strict-harassment policy and failed to even reprimand anyone. The alleged "lighten up" comment probably didn't much either.

Employers: When your employee has to dive into the water and swim to shore in order to avoid his tormentors -- just thinking out loud here -- consider anti-harassment training.

And settling that case.

October 8, 2012

Five pending Supreme Court cases for HR, In-House & the C-Suite to follow

Thumbnail image for Supreme Court.jpg

Earlier this month, the Supreme Court reconvened for its 2012-2013 term.

Although not chock full of pending employment-law cases, this term will see several important issues decided which could affect your workplace. Below, I have a collected a series of links to stories on these cases:

Of the five employment-law cases on the Court's docket, the one in which I am most interested is Vance v. Ball State Univ., where the Supreme Court will clarify just who is a "supervisor" for purposes of Title VII.

October 5, 2012

GUEST POST: 3 Reasons to Consider Job Applicants with Online Degrees

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Caroline Ross. Caroline is a former educator who writes for accreditedonlineuniversities.com and specializes in distance education platforms and online program accreditation. She is an avid reader and advocate for global education and equality. Please submit any comments or feedback in the section below! Feel free to email her some comments!

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

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Continue reading "GUEST POST: 3 Reasons to Consider Job Applicants with Online Degrees" »

October 4, 2012

$$$ reasons to have a second-language anti-harassment policy

Bilingual signsWhen an employer is faced with a sexual-harassment lawsuit, one of its best defenses is that the company took reasonable care (e.g., policy, training) to prevent sexual harassment (and then addressed complaints in a manner that is reasonably designed to end the sexual harassment)

In EEOC v. Spud Seller (opinion here), the employer had an anti-harassment policy that detailed what constitutes sexual harassment and how to report it. Further, it specifically advised employees that, "You can feel state that your complaint will receive immediate attention and if the facts support your complaint, the offender will be disciplined."

Sounds good to me.

Except...the policy was printed only in English. And in Spud Seller, nine Spanish-speaking employees claimed that they were victims of sexual harassment. So, did the company take "reasonable care" to prevent sexual harassment? According to a Colorado federal court, maybe not...

The Handbook that contained the policy was in English, and there is no evidence that its provisions were translated into Spanish or that written translations were supplied to Spanish speaking employees...Second, there is a question as to whether the policy itself was sufficient - both on its face in English, and as to whether it provided a meaningful remedy for Spanish speaking employees...Due to the makeup of the workforce, assuming that a Spanish speaking employee had a complaint, she could not bring it directly to the persons identified in the policy because they did not speak Spanish.

The court further noted that the primary bilingual person who customarily explained the policy and interpreted for Spanish speakers was the alleged harasser.

If you have a multilingual workplace, please make sure to have your anti-harassment policy translated into multiple languages. Also, make sure that non-English speaking employees know to whom they can report claims of unlawful harassment.

October 3, 2012

New bill would require accommodations for pregnant employees

Pregnant woman2Does an employer have to provide a reasonable accommodation to a pregnant employee to allow her to perform the essential functions her job?

Let's see.

Americans with Disabilities Act? No. Pregnancy is not a disability. Title VII of the Civil Rights Act? Well that depends. The Pregnancy Discrimination Act is part of Title VII. But the current state of law is such that employers need only treat pregnant employees as they would other employees with temporary disabilities. However, most employers do afford accommodations (e.g., light duty) to employees with temporary disabilities. So, they would have to do the same for pregnant employees too.

But do I smell some duplicative federal legislation after the jump? I sure do. Click through for details...

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Continue reading "New bill would require accommodations for pregnant employees" »

October 2, 2012

In its first Facebook-firing decison, the NLRB backs an employer

All Saints church - flying pig - geograph.org.uk - 1692162Look out for that flying pig!!!

No, it's true. I've got proof after the jump...

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Continue reading "In its first Facebook-firing decison, the NLRB backs an employer" »

October 1, 2012

CA enacts workplace social media protections; NJ gets closer

Thumbnail image for facebookprivacy.jpgLast week, CA became the third state to pass a law that bans employers from requesting online usernames and passwords from employees and job candidates. Maryland was the first state to pass such a law; Illinois was the second.

As in the other two states, not only is it illegal to request online information, but also CA employers may not retaliate against anyone who refuses to turn it over.

There are two carve-outs in the CA law to protect legitimate employer interests. An employer may:

  1. require an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations; or

  2. require or request an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

Meanwhile, in NJ, the Senate Labor Committee voted 4-0-1 in favor of a similar bill. Under the proposed NJ legislation, the aggrieved party may seek injunctive relief, compensatory damages, counsel fees and court costs. According to Law.com (here), the 1 absention came from a Republican Senator who wishes to amend the bill by removing that private cause of action.

That legislation now goes to Governor Christie for signature.