November 2012 Archives

November 30, 2012

Boy meets girl, dates girl, breaks up, calls girl "whore," gets fired, sues for discrimination

defleppard.jpgWhen Brian Bond texted his co-worker and former girlfriend, Gina Bullard, that she was a "whore" and later ignored two protective orders that Bullard had taken out against him, I wonder if he was thinking, "Maybe, I'll get fired and parlay that into a winning reverse-gender-discrimination claim."

Indeed, Mr. Bond's actions violated a number of work rules and, ultimately, resulted in his termination. But a winning reverse-gender-discrimination claim? Not so much according to the Third Circuit Court of Appeals (opinion here):

Bond has not demonstrated that the City refused to terminate similarly situated female employees, i.e., female employees that violated the City's violence in the workplace policy, sexual harassment policy, and code of ethics. As evidence of less favorable treatment, Bond submits that the City terminated him, but did not terminate Bullard.

Bullard used a City fax machine to file complaints against Bond and brought a handgun to work for protection -- against Bond. But I digress...

On its face, contends Bond, this disparity in treatment demonstrates that the City has discriminated on the basis of gender. However, Bond was subject to multiple protection from abuse orders, he admitted to sending text messages during work hours that were designed to annoy and alarm Bullard, and was charged with and ultimately pled guilty to harassment. As the District Court acknowledged, the record does not show that Bullard engaged in similar conduct.

Consequently, Bond could not demonstrate reverse-gender discrimination...even in bizarro world.

Usually, I end my blog posts by offering an employer takeaway. This time, I'll toss out an employee takeaway: Don't be like Bond.

Image credit:, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

November 29, 2012

Christian employee + Ramadan bagel party = hostile work environment?

cantmakethisup.jpgYep, someone -- represented by a licensed, practicing attorney -- brought this lawsuit.

***Shakes head // Smiles // Kisses statuette of Blogga-Blogga, the goddess of HR blogging fodder. Love you, boo.***

Bagel party -- whoop! whoop! -- after the jump...

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November 28, 2012

That's what he said: SCOTUS hears argument on who is a "supervisor"

lylepuzzle.jpgMaetta Vance, the only African-American working in her department at Ball State University, claimed that she was subjected to both race discrimination and retaliation. Vance later sued and lost because she could not establish employer liability, which, in turn, depended on whether the alleged harassment was perpetrated by supervisors or coworkers. 

Employers have an affirmative defense when the supervisor harassment does not result in a tangible employment action. If, however, the harassing supervisor fires, suspends, or takes some other similar action against the victim, it's check mate. 

In instances of co-worker harassment, where tangible employment actions wouldn't be at issue (because the harassing co-worker wouldn't have that power), to prevail on a discrimination claim, the plaintiff must show, among other things, that the employer has "been negligent either in discovering or remedying the harassment."

Concluding that the harassment in the Vance case was perpetrated by coworkers, the Seventh Circuit Court of Appeals opined (here) 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 (i.e., hire, fire, demote, promote, transfer, or discipline).

Subsequently, Vance appealed and, Monday, the U.S. Supreme Court heard oral argument. You can get a copy of the transcript here. Also, be sure to check out Lyle Denniston's argument recap at SCOTUSblog here. Based on oral argument, it appears that the more conservative justices are leaning towards adopting the Seventh Circuit's approach. The liberal judges may favor a case-by-case factual analysis to determine who is a Title VII supervisor.

Meyer's prediction: Supreme Court adopts the Seventh Circuit's test.

Image credit:, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

November 27, 2012

The most blunt same-sex sexual harassment judicial opinion...evah!


So captivating that, at 35 pages long, it held my attention for 24 of them. Winning! 

I'll whet your whistle with the opening paragraph of EEOC v. The McPherson Cos., Inc.:

This Title VII case revolves around repeated churlish, childish, gross, sordid, vulgar, foul, disgusting, profane utterances in the workplace. The question in the case, however, is not how vile and obnoxious this workplace language was. It was vile and obnoxious enough to score nine on a scale of ten. This will become apparent as the story unfolds. The question for the court is rather whether this verbal mayhem morphed from a competition to see who could beat whom in the foul-mouth game into a cause of action under Title VII by an offended employee for same-sex sexual harassment.

After jump, I'll keep my babbling to a minimum and, instead, highlight the matter-of-fact prose of Judge William M. Acker, Jr. from the Northern District of Alabama. And we'll answer the question: Does the reach of Title VII preclude same-sex sexual harassment where offensive workplace language is not directed at a man because he's a man?

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Continue reading "The most blunt same-sex sexual harassment judicial opinion...evah!" »

November 26, 2012

If your employees did THIS on Facebook, what would you do?

facebutton.pngbone·head [bohn-hed]

  1. a foolish or stupid person; blockhead.
  2. This moron!

On a business trip, two employees visited the Tomb of the Unknowns at Arlington National Cemetery, where one snapped that photo of the other. Then, the photographed employee posted the picture on her Facebook page.

Let's assume these knuckleheads work at your company. You, the Human Resources Manager, learn about the photograph and the surrounding circumstances. How do you handle the situation?

Please let me know in the comments below.

P.S. - Here is how the employer responded, and how the employee dealt with the backlash from the picture.

November 21, 2012

Carnival of HR: Cyber Monday Edition

Cyber MondayHi there.

To the two of you who are reading this today, welcome. And hello to the rest of you who are three drumsticks to the wind, joining us on Monday between incognito searches in office of's Cyber Monday Deals.

(I won't tell...)

But check it. While you browse back and forth on the qt, I'll fill you up after the jump with leftover sweet-potato casserole dozens of great posts from some of the best HR bloggers around. And since it's the season of giving, I'll even hook you up with some shopping deals too.

It's the Carnival of HR: Cyber Monday Edition!

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November 20, 2012

Four lessons employers can learn from the Petraeus scandal

David H. Petraeus 2004Yeah, I know, this post would have been timely if posted last week, when the Petraeus news actually surfaced.

Well it is -- err, was --  timely. That is, my Dilworth Paxson colleague, Sehyung Lee, did post "Attennnnn-tion! 4 Important Lessons From the General Petraeus Scandal" over at the White Collar Defense Update Blog last week. I just didn't get around to reading it until last Friday and, by then, it was too late to link to it from this blog, and...

You get the point right? (I'm too lazy to offer you any original content today).

Sometimes Generally, you get what you pay for with this blog. Maybe if you sent me a few dollars now and again, I'd step up my game.

(Kidding. Compliments Twinkies Bearer bonds only.)

November 19, 2012

Racially hostile work environment? Depends on which "n"-word.

Helene Tyrrell worked as a line chef at a jockey club in Arkansas during the Winter of 2010. She claimed that immediately after she started working, and pretty much throughout her employment, the word "nigger" was bandied about like you and I would say "hello" and "goodbye." However, only once was the "n"-word hurled in her direction.

But it wasn't nigger. No, that's discriminatory.


Rather, according to the court in Tyrell v. Oaklawn Jockey Club, the "comment directed at Plaintiff and one other co-worker happened after the kitchen crew nearly mused getting breakfast out one Sunday. The comment, was according to Plaintiff, 'I told you niggas we could get this done. I told you we could do this. Y'all my niggas.'" 

And nigga, according to the State of Arkansas, is not a racist term.

So, although Ms. Tyrell claimed that the repeated use of "n"-words, whether in her presence or directed specifically at her, created a hostile work environment, the court was left scratching its proverbial head.

[T]he Court has trouble seeing how an objective person in the Plaintiff's position would have found her co-workers' jesting "extreme in nature." By all appearances, the terms was not used derogatorily at all. It might have offended Plaintiff, but viewed objectively, the language was at most course [sic] jesting.

At least one other court has noted that a plaintiff may, in certain instances, regard "nigga," as no different than "nigger." Wikipedia further notes (here) that "its use and meaning are heavily dependent on context." So, I can't help but feel that the Tyrell Court's overwhelming confidence that a jury would condone the use of the word "nigga" is misplaced, and creates a very dangerous precedent, especially when the Court conceded that the Plaintiff, herself, was offended.

If you are a supervisor, manager, in Human Resources, or otherwise in a position to address complaints of discrimination in the workplace, please do not condone the use of either "n"-word. Maybe the "victim" is not offended by its use; but, maybe he/she is. Don't second-guess it. Just make sure it doesn't happen again.

(h/t Employment Discrimination Report)

November 16, 2012

Confession & Profession: When a co-worker overshares...

Do you call HR when someone says something you don't like? What about if they confess a secret? What if you over hear something that wasn't meant for your ears? 

And what should HR do about it?

Last night, labor-and-employment-law attorney Daniel Schwartz, who blogs at the Connecticut Employment Law Blog, Liz Ryan, founder and CEO of Human Workplace, and I joined The Huffington Post's Nancy Redd on HuffPost Live answering these and other related HR/workplace questions. 

The video is embedded below (or you can view it here).

November 15, 2012

Social Media SHOW (and Tell)

On Tuesday night, I was in Las Vegas.



Actually, I had the pleasure of participating in a Google+ Hangout for an interactive Q&A on social media topics that took place in Last Vegas from #KronosWorks12. Along with NPR's Lars Schmidt, Jonathan Brewer, Director of Awesome -- yes, that is his title -- for B2C Revolutions, and Master of Ceremonies, Curtis Midkiff, SHRM's amazing Director of Social Engagement, we discussed some of the hot topics in social media and HR, including social media policy, social recruiting, employee engagement, cool tools and more!

I embedded the video below. Or you can watch the replay by clicking here.

November 14, 2012

Employment Law Blog Carnival: Hollywood Casting Call Edition

Casting CatsWelcome everyone to the Employment Law Blog Carnival: Hollywood Casting Call Edition.

[Editor's Note: The original theme for this post was the "Employment Law Blog Carnival: Sex, Drugs, and Rock & Roll Edition." I had this bright idea to begin by cutting and pasting the lyrics to Guns N' Roses' "My Michelle," and, let's just say I bailed after the first line.]

So that leaves us with Plan B, where, after the jump, I have aggregated some of the best, recent posts from around the employment-law blogosphere and fit them together into a single theme: an open casting call.

Because just the other day, this theme came to me after waking from a Codeine/Claritin-D/Mucinex DM-induced slumber, in which I dreamt about casting a recent post of mine -- the one where an employee lost out on an FMLA retaliation claim when her employer fired her after finding Facebook photos of her drinking at a local festival -- while on FMLA. My movie will star Kim Kardashian, in her silver screen debut, as the employee. And Alan Thicke, who played Dr. Jason Seaver on "Growing Pains," could play the company decision-maker. We'll call it "FML Aye Yai Yai!"

[Editor's NoteI'm throwing Thicke a bone here. Don't you think? According to, he just finished production on "Fugget About It", in which ex New York mobster Jimmy Falcone joins the Witness Protection Program and is relocated, with his family, to Regina, Saskatchewan, Canada. Fugget about it, indeed.]

So that's the idea. More great posts and imaginative casting decisions, after the jump...

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Continue reading "Employment Law Blog Carnival: Hollywood Casting Call Edition" »

November 13, 2012

That's what he said: Attorney Tips for Seeking Social Media Discovery


I'm gearing up to host the Employment Law Blog Carnival on Wednesday, so I'm mailing it in today with a quick shout out to Venkat Balasubramani posting over at Eric Goldman's Technology and Marketing Law Blog.

Admittedly, I have fallen behind on updating you, my loyal readers, on the world of social media and discovery. Mostly, because the most recent jurisprudence has been from outside of the Pennsylvania and everything pales in comparison to this great Commonwealth. Except, most recently, for the Philadelphia Eagles.

Speaking of which, have you heard this one?

At divorce court, a family is eagerly waiting for the judge to grant custody of little Johnny. The judge asks Johnny, "Do you want to live with your dad?" Johnny replies, "No, he beats me!" So, the judge asks, "Johnny, do you want to live with your mommy?" Johnny says, "No, she beats me too!" Exasperated, the judge asks, "Then with whom do you want to live?" To which Johnny replies, "The Philadelphia Eagles. They don't beat anyone!"

Boy, do I have a tendency to get sidetracked. Anyway, to get my attorney-readers caught up on how to get access to litigant social media pages, check out Venkat's article here.

November 12, 2012

Obama's re-election evokes ugly Facebook-racism from some employees

Stamp Out Racism, August 2010To all the haters of social-media policies:

If nothing less, the social-media policy reminds employees that if they act the fool online, it may impact their standing in the workplace, and, ultimately, cost them their jobs.

Some employees, however, are just so ignorant. Thus, I doubt that any employer policy will impact how they behave online.

Two despicable examples from this past week follow after the jump...

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November 9, 2012

Guest Post: 5 Basics Every Employer Should Know about the ADA

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Mary Ellen Ellis. May Ellen writes for Paralegal 411, a career resource for individuals interested in starting a career in the paralegal field.

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

Continue reading "Guest Post: 5 Basics Every Employer Should Know about the ADA" »

November 8, 2012

Facebook pics of employee boozing at a festival ruin her FMLA claim

london  great british beer festival: Wentworth Bumble beer About a year-and-a-half into Sara Jaszczyszyn's employment with Advantage Health Physician Network ("Advantage"), she began taking intermittent FMLA leave for back pain that which she stated left her "completely incapacitated."

About five weeks into her leave, several of her coworkers saw pictures of her on Facebook consuming adult beverages at a local Polish beer festival. (Although she doesn't appear to be "completely incapacitated," she does appear to be having a good ol time, doesn't she?)

Yadda, yadda, yadda, Advantage fires Ms. Jaszczyszyn and she claims FMLA retaliation.

Who wins? That's easy. Remember folks. An honest belief is all it takes to fire a suspected FMLA abuser. That is, so long as the employer truly believes in its reason for terminating an employee on FMLA -- and that reason is not FMLA-motivated -- , the employer wins even if its reason is ultimately found to be mistaken, foolish, trivial, or baseless.

As the Court explained (in this opinion), Advantage wins:

Advantage "rightfully considered workplace [FMLA] fraud to be a serious issue," and its termination of Jaszczyszyn because of her alleged dishonesty constituted a non-retaliatory basis for her discharge. While Jaszczyszyn relies heavily upon a significant amount of after-the-fact medical evidence (such as the deposition of her treating physician) in trying to cast Advantage's justification as pretextual, Advantage's investigation was adequate and turned in large part on Jaszczyszyn's own behavior at the termination interview, which she does not address at all. She did not refute Advantage's honest belief that her behavior in the photos was inconsistent with her claims of total disability. Thus, as a result of her fraudulent behavior, her claim of FMLA retaliation fails.

A word of caution to employers: Don't use the "honest belief" rule as a reason not to investigate suspected FMLA fraud. Advantage did the right thing. After it learned about the Facebook photos, it investigated by, among other things, allowing Jaszczyszyn to explain the discrepancy between her claims and the photos. But Jaszczyszyn repeatedly failed to respond at all, let alone offer such a justification. So Advantage fired her.

(h/t Chad Hatmaker)

November 7, 2012

Paying banana boxes of food as OT is not an a-peeling option

bananas for those cramps[brrrring brrrring]

"Eric Meyer."

"Uh, yeah, Eric. I just learned that we've got facilities managers who have been working overtime 'off the clock' and...."

"Off the clock, you said?"

"Yeah, and instead of paying time-and-a-half---"


"We've been giving them banana boxes."

"Did you say, banana boxes?"


"Hold please."

[Chuckles. Calls in five colleagues. Puts phone on speaker]

"Say that again. Sloooooooowly."

"Yeah, we've been giving banana boxes of food to employees who work off-the-clock overtime. Is that, uh, ok?"

"You're f***ing with us, uh, me, right?

"No, really."


"I'm going to email you this case I read yesterday from the Northern District of Mississippi. Wouldn't you believe that these two facilities managers were working 'off the clock' OT and getting paid with banana boxes of food. Yadda yadda yadda. You're screwed."

Folks, don't monkey around -- couldn't resist again, could I -- with OT. Non-exempt hourly employees work over 40 hours in a workweek; it's generally best to pay them money.

November 6, 2012

2 tips to help your social media policy withstand NLRB scrutiny

policyhighlight.jpgNotwithstanding three social media advice memoranda, and another ruling from the National Labor Relations Board slamming Costco's social media policy, you'd think employers would have a better idea how to revise their social media policies so as not to risk violating the National Labor Relations Act.

Well, not so much.

Except, the Board has recently issued guidance which attempts to clarify certain policy issues for employers. Does it? Well, sort of. It's worth a read. Click through...

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Continue reading "2 tips to help your social media policy withstand NLRB scrutiny" »

November 5, 2012

SURVEY: When it comes to politics at work, mum's the word

Monty Brewster may be telling your co-workers to vote "None of the Above", but, chances are, you have no clue who they are voting for tomorrow in the Presidential election.

According to this survey released today, although four out of five employees intend to vote on Tuesday, only one-third share their political affiliation at work. That number drops to one in five Gen-Y employees.

Nearly three in ten employees said they feel like they need to keep their affiliation secret around the office. Indeed, for every 100 employees, only 2 will display U.S. Presidential campaign items or decorations on display in their office. I refuse to hang out with either of them.

Who will I be voting for tomorrow? I'm going to vote early and often for

November 2, 2012

It's not disability discrimination when you don't know about the disability.

Books of Knowledge

William Wengert is HIV-positive. He worked as a certified nursing assistant for Phoebe Ministries, until he was terminated last year following an incident in which a resident suffered a broken leg. The company claimed that the incident with the resident precipitated the firing. Conversely, Wengert alleged that the company violated the Americans with Disabilities Act by terminating him because of his HIV-positive status.

Now, let's pause there for a second. I think we can all agree that just because a disabled employee -- unquestionably, being HIV-positive is an ADA-disability -- is fired, does not mean that the employer has violated the ADA. There could be many legitimate business reasons that could trigger an adverse employment actions (e.g., $$$, performance, discipline, etc.).

Legitimate business reasons aside, the Wengert Court (opinion here) highlighted that "disabilities are often unknown to the employer." Therefore, "the requirement that plaintiff show he is disabled implies a requirement that the plaintiff show employer knew of employee's disability." In Wengert, the plaintiff could not demonstrate that anyone involved in his firing knew that he was HIV-positive. Therefore, Wengert's disability could not have motivated his termination. Thus, no disability discrimination.

Knowledge is power, except when it's not.

And if you don't know, now you know...

November 1, 2012

NLRB breathes new life into your "at-will" employment disclaimers

nlrb.jpgJust Google it.

The National Labor Relations Board has been drawing a lot of attention for its heightened scrutiny of at-will employment disclaimers. For example, in a case involving the American Red Cross, a Board ALJ found that the American Red Cross broke the law by having an employee handbook policy that stated, in part, "I further agree that the at-will employment relationship cannot be amended, modified or altered in any way."

But new guidance from the NLRB's Acting General Counsel confirms what I've been saying: Don't even think about scrapping those employee handbook at-will employment disclaimers. (Maybe a small tweak may do the trick).

More after the jump...

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