January 2013 Archives

January 31, 2013

New bill in PA would prohibit unemployment discrimination


In 2011, New Jersey passed a law banning discrimination against the unemployed. Will PA follow suit in 2013?

The ball is rolling....

The PA House introduced its own unemployment-discrimination bill on January 22, 2013, and you can view a copy of it here.

Cliff's notes version:

  1. Employers CAN'T use one's unemployment as a negative factor when considering candidates for job openings.

  2. However, employers CAN consider an individual's employment history or factual and objective reasons underlying an individual's unemployment status in assessing an individual's ability to perform the vacant job.

  3. Employers CAN'T advertise anything resembling "unemployed need not apply."

  4. However, employers CAN assess whether an individual's employment in a similar or related job for a period of time reasonably proximate to the consideration of the individual for employment is consistent with industry practice and necessary to successful performance of the vacant job

Employers that violate the law face fines and potential civil litigation. The statute of limitations is 2 years and taking adverse action against an individual within 90 days of the person's exercise of rights protected under the Act raises a rebuttable presumption of retaliation.

January 30, 2013

Employee posts "I wish I could get fired" on Facebook. Guess what happened?


I'll give you a hint.

The lede from this KTVK report is: "A single sentence posted on Facebook changed Amy McClenathan's life forever."

According to KTVK, Ms. McClenathan made the Facebook post because she was having a rough day near the one-year anniversary of her mother's death. So, I won't pretend to judge Ms. McClenathan for what she was going through that day. And even assuming the post precipitated the firing, I won't critique the propriety of her employer's response -- she was fired, and in case you hadn't figured that out, I'll send Tommy back back there and hit you on the head with a tack hammer.

But, wait just a hot minute! She was complaining about work on Facebook and...she got fired?!? How could that be?

Just remember: an employee griping alone -- by any other name (or medium) -- is still an employee griping alone.

Our social-media snafu du jour reinforces what Dan Schwartz at the Connecticut Employment Law Blog wrote (here) last week. Namely, all this stuff you may have read recently about employees having the blanket right to complain about work online is bullshit.

If anything that the National Labor Relations Board has said recently matters (and that's a BIG if), the rights of employees to gab about work together extends to online speech. But you see that word there -- together -- that's important. Because, generally speaking, while the law gives employees the right to engage in protected concerted activity, it does not protect employees who gripe alone. That's true whether an employee complains online, in person, via telephone, voice mail, email...

Folks, if an employee acting alone sky-writes, "I wish I could get fired" over corporate headquarters, does she keep her job?

Social media is just another form of communication. It's collaborative qualities lend themselves to employees being able to complain or (gasp) praise you together. But an employee who acts alone...

Whether it's Ms. McClenathan asking to get fired on Facebook, or Carly McKinney a/k/a CarlyCrunkBear, a first-year teacher, who tweets half-naked pictures of herself...

{I've logged your IP address and I'm calling your IT Department}

...brags that she tweets when she should be working, and further suggests that she grades papers of her "jailbait" students while stoned {thank you Gawker, thank you} when an employee does dumb stuff online (or offline), an employer has the right to respond --

-- in any way it damn well pleases.

January 29, 2013

Discrimination claims drop in '12; The Employer Handbook go BOOM!

Thumbnail image for ebmpuzzle.jpgKudos to this blog for the drop in discrimination claims. Yeah, I'm giving this blog credit, and so is my mother -- probably.

{Mom couldn't be reached for comment and, strangely, the EEOC press release touting the new FY12 charge statistics is silent about this blog}

The year-end data shows that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, still the most frequently filed charges. However, the total number of claims in FY12 dipped below FY10 levels.

And did I mention that I started blogging just after FY10 ended? 

Coincidence? {Lets' just say that my writting has neevr ben bedder}

In the immortal words of Big Pun...

January 28, 2013

OMG! Must we grant our employee's religious-accommodation request?

cross.jpgAn employer must accommodate the sincerely-held religious beliefs of its employees unless the employer demonstrates that doing so would cause undue hardship for the business.

Undue hardship?!? What the heck is that? And how can you make sure that your managers are prepared to address -- let alone spot -- these issues when they arise.

Whoa, whoa, whoa. Calm down. I've got your back, after the jump...

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Continue reading "OMG! Must we grant our employee's religious-accommodation request?" »

January 25, 2013

Holy smokes! As in, up in smoke for Obama's Labor Board selections


The U.S. Court of Appeals for the D.C. Circuit ruled today that President Obama lacked the power to make three recess appointments last year to the National Labor Relations Board.

You can read a copy of the opinion here.

According to the U.S. Supreme Court, a two-member Board is powerless to exercise any authority. At the time of the three recess appointments, the Board only had two members.Therefore, by ruling that Obama's three recess appointments are unconstitutional, today's appellate-court ruling effectively moots every decision from the Board subsequent to the recess appointments, most of which went against employers.

Expect this to be appealed to the Supreme Court.

UPDATE: The U.S. Chamber of Commerce has much more on today's ruling here.

2ND UPDATE: Here is a statement from NLRB Chairman Pearce on today's ruling.

January 25, 2013

The 25 CRAZAZIEST job-interview questions of 2013

Glassdoor.jpgFrom my perspective, Glassdoor.com's Top 25 Oddball Interview Questions For 2013 is one lobbed softball after another. Then again, I'm the guy who, as the interviewer, used to ask law students to name their favorite Supreme Court Justice of all-time.

{Totally a trick question. The only acceptable response is, "Judge Elihu Smails." Never happened. Coincidentally, my tenure on the Hiring Committee was brief.}

But, before we call it a day, I'm sure you're all dying to know how I would have answered four of the oddball questions:

"A penguin walks through that door right now wearing a sombrero. What does he say and why is he here?"
- "I'm here for the drug test. So, where do I--- Hey! Quit staring at my junk!"

"On a scale from one to ten, rate me as an interviewer."
- Tool, err, two.

"What songs best describes your work ethic?"
- Uh, duh! No, wait...

"If you could be anyone else, who would it be?"
- Any one of my awesome blog readers. 

(Am I right? Or am I right?)

January 24, 2013

New app promises to sanitize your employees' Facebook pages

  • The self-congratulatory comments I left below the picture of my awesome seven-story beeramid.

  • My candid review of Cinemax's After Dark lineup from Arbor Day 2011.

  • My plea to George Carlin to go beyond the self-imposed boundaries of seven dirty words.

A new app called FaceWash promises to get rid of all of this from my Facebook account.

Here's how it all works (according to the folks at FaceWash):

FaceWash comes with a precompiled list of words that may be considered offensive or alarming to those viewing your social history. This list spans a broad spectrum of "dirtiness," from sex to drugs to curse words and more (it even includes some seriously abstract crazy things you might have posted). FaceWash also allows you to input your own words that may not have been covered in our list.

With a few clicks, FaceWash performs a search and alerts you to sections of your Facebook page that you may want to delete.

So, basically, my entire Facebook existence -- except for that time I "liked" the photos from my son's 2nd birthday party. Society's loss, I suppose.

Intended for attorneys who exercise questionable discretion in the first 100 or so words of a blog post about FaceWash recent college grads, this service may be useful to other employees (young and old) in your workplace with a tendency for loose-Facebook-lips. 

So, pretty much every Facebook user I have encountered.

Therefore, the next time you train your employees on your social-media policy --

You do train on your policies, right?

** I'll pause for just enough time to allow you to squint and rub your chin and for me to judge **

As I was saying, the next time you train your employees on your social-media policy, pass along two tips from your old buddy Eric:

  1. Remember that Facebook has privacy settings. Explore them and make sure that only those people who can view your page are the ones you want to view your page.

  2. If employees are otherwise concerned about purging some of the dumb stuff they may have posted in the past -- {ahem} -- consider using FaceWash or otherwise reviewing their Facebook history to delete the bad stuff.

Image Credit: FaceWash

January 23, 2013

Fact or Fiction: Your employee's nasty facial scar may be a disability

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."

Your new employee at local pizzeria has what we'll call a "facial deformity." So, rather than having him work the cash register, or otherwise emerge from the kitchen, you mandate that he work in the back so that no customers will ever see him.

Have you violated the Americans with Disabilities Act?

Well, it's probably time to call the lawyer...

Under the ADA, it is unlawful to discriminate against a disabled employee. An individual has a "disability" if he:

  1. has a physical or mental impairment that substantially limits one or more of the major life activities of an individual;

  2. has a record of such impairment; or

  3. is regarded as having such impairment.

The supporting regulations are clear that a cosmetic disfigurement, such as a "facial deformity," qualifies as a physical impairment. And if that physical impairment substantially limits a major life activity such as --- I dunno -- working, we've got an ADA disability. Moreover, if the employer keeps the employee in the back under the pretense of appealing to "customer preferences," then the employee is likely being "regarded as" disabled. 

To be clear, employment decisions that are based on the discriminatory preferences of customers are just as unlawful as decisions based on an employer's own discriminatory preferences. 

(You may be thinking bona fide occupational qualification. Indeed, religion, sex, or national origin can be a bona fide occupational qualification; the ADA contains no BFOQ defense). 

The answer to today's QATQQ is FACT. And, for more, check out this recent federal-court decision authored by none other than the author of the most blunt same-sex sexual harassment judicial opinion...evah!

January 22, 2013

Supreme Court to decide how an employee must prove Title VII retaliation

What makes retaliation the most common discrimination claim in America?

I suspect it's because other forms of discrimination (e.g., race, gender, disability) are more difficult to prove and don't always result in an adverse employment action, such as termination of employment. And since most people like to keep their jobs, they're more reluctant to rock the boat.

Conversely, retaliation always includes adverse action -- quite often a firing -- and follows what the law terms a "protected activity" (opposition to discrimination or participation in the statutory complaint process). So, you have a situation where an employee suspects discrimination is afoot, complains about it, and then gets fired. 

Retaliation salt rubbed in an open discrimination wound. 

So, any Supreme Court ruling affecting the standard for proving retaliation is big news.

Last Friday, the U.S. Supreme Court agreed (here) to decide what level of proof a plaintiff must establish to prevail on a retaliation claim. Here is the question presented to the Court:

Whether Title VII's retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

To date, courts of appeals are divided 3-2 on this issue.

Having done this for a while now, let me tell you that if an employee's good-faith internal complaint of discrimination or a Charge of Discrimination filed with the EEOC at all factors into your decision to act against an employee, make sure your litigation budget is teeming with Mr. Green. 

January 18, 2013

Where do WEDGIES fit into your progressive discipline policy?

wedgie.jpgI know. I know. Seems more like a "Tuesday" post.

Earlier in the week, I read this article on The Smoking Gun about a man who got busted giving wedgies to movie patrons outside of a Florida theater.

So, it got me thinking. 

Let's say that Chris from Accounting comes to you in HR, underwear flapping in the breeze, still red faced from a Pat-administered wedgie.

{What a day for Chris to forget to don the Rip Away 1000s, eh?}

To date, Pat's wedgie ways have not surfaced in the workplace. In fact, Pat has a clean disciplinary record.

So, what do you do? (And does it matter if Pat & Chris are male or female?)

Yeah, I'd like to know. 

January 17, 2013

Court ok's firing teacher who called students 'future criminals' on Facebook

jail.jpgJennifer O'Brien has a master's degree in education and certifications as an elementary school teacher and supervisor.

All that education and no common sense.

You'll see what I mean after the jump. It's what we wordsmiths call a s&!*storm of a clusterf#%k.

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Continue reading "Court ok's firing teacher who called students 'future criminals' on Facebook" »

January 16, 2013

Who are YOU to tell ME that I'm not offended by sexual harassment?!?

toiletpaper.jpgThe original working title for the post was "The Third Circuit takes a deuce on my 'Pottymouths' post." I meant it in the figurative sense. Otherwise, I would be at a loss for words with IT. 

More so than usual...

{Napalms browser history}

But, fortunately, good taste and high morals -- we're all about that here at the Handbook {cough} {fart} -- prevailed.

Click through to see what a federal appellate court had to say about whether a female plaintiff with an apparent propensity for the cursey-cursey may successfully pursue her sexual-harassment claims.

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Continue reading "Who are YOU to tell ME that I'm not offended by sexual harassment?!?" »

January 15, 2013

HOW TO: Properly address disability accommodation when hiring

Thumbnail image for lifeguardstand.jpg

I was reading this federal court opinion over the weekend. It involves a disability-discrimination claim brought by a deaf man who applied to become a lifeguard at a county pool, but didn't get the job because the county thought his disability would compromise swimmer safety. Plus, the town was not convinced that it could accommodate the deaf applicant because it couldn't be 100% certain that he could safely be on the lifeguard stand alone, without someone constantly by his side.

Folks, I'm guilty.

I'll admit, that when I started reading this opinion, I immediately jumped to the same conclusion as the county-defendant. How could it possibly be safe to employ a deaf lifeguard?

{Then again, my anecdotal knowledge of lifeguarding requirements suggests to me that the real professionals run in slow motion or, at the county-level, have minimal tolerance for pubescent tonsil-hockey schemes}

Well, did you know?

    • A deaf man holds the record for most lives saved (over 900!) in his lifeguarding career.
    • The ability to hear is unnecessary to enable a person to perform because distressed swimmers exhibit visual signs of distress, which a deaf person scanning his or her assigned area can detect.
    • In a noisy swimming area, recognizing a potential problem is almost completely visually based.  Individuals who become deaf before age three have better peripheral vision than hearing individuals.
    • According to the American Red Cross, there have been no reported incidents of drowning or near drowning of any individuals over whom a deaf lifeguard was responsible.

It turns out that if the county had made in an individualized inquiry regarding the applicant's ability to perform the job -- he passed all the lifeguard tests with flying colors -- or engage in an interactive process to determine whether he could be reasonably accommodated, it could have avoided litigation that progressed to one step shy of the U.S. Supreme Court.

That's an expensive lesson to learn.

Here are two ways for you to avoid the same mistake:

  1. Conduct an individualized inquiry to determine whether an applicant's disability or other condition disqualifies him from a particular position. Put simply: don't jump to conclusions -- unless, of course, you like defending lawsuits.

    In the case noted above, the County's physician entered the examination room, briefly reviewed the applicant's file, and declared, "He's deaf; he can't be a lifeguard." This, from a physician with no education, training, or experience in assessing the ability of deaf individuals to work as lifeguards. An outside consultant further opined that the deaf applicant would be able to perform perfectly "100 percent of the time." But that's an impossible standard! 

    Learn from these mistakes.  The Americans with Disabilities Act requires the individualized inquiry. Employers must avoid acting based on stereotypes and generalizations about a disability. Instead focus on the the actual disability and the effect that disability has on the particular individual's ability to perform the job. And remember that individuals with disabilities cannot be held to a higher standard of performance than non-disabled individuals. Instead, have someone who is familiar with not only the applicant's disability but also the requirements of the position conduct the individualized assessment to determine whether the applicant is otherwise qualified.

  2. Engage in an interactive dialogue. We've talked about this before. Covered employers have a duty to engage in an interactive process with a disabled employee or applicant, which requires communication and good-faith exploration of possible accommodations. The purpose of this process is to 'identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. Unless providing an accommodation would cause undue burden to the employer, it must do so.

    So, talk with the applicant and get a sense of what will and won't work to allow him/her to perform the essential functions of the job. You don't have to accept the accommodation that you are asked to provide. However, you do have to provide an accommodation it is reasonable.
Follow these two steps and you'll not only cut your risk of disability-discrimination claims, but greatly expand your employee talent pool.

January 14, 2013

School-bus driver calls student "little bitch" on Facebook, gets fired, and sues?!?

Thumbnail image for yellowschoolbus.jpgOf course she does.

What does the Complaint say? And what can employers take away from it? Find out after the jump...

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Continue reading "School-bus driver calls student "little bitch" on Facebook, gets fired, and sues?!?" »

January 11, 2013

ADA reasonable accommodations for these Looney Tunes

Medical Afflictions of the Cartoon World

Where did you think I was going with this post? 

(And you call yourselves Human Resource professionals). 

Just kidding. You know I love you.

Let me know in the comments below what kind of interactive dialogue / accommodation ideas you have in mind for these characters, and, ba-dee, ba-dee, ba-dee, that's all folks! 

Have a nice weekend.

Image credit: mcw026

January 10, 2013

Court countenances canning complainers of consensual canoodling

In Centucky Kentucky, it's not retaliation to fire employees who complain about sexual favoritism.

Then again making apple-pie moonshine and using a butcher cleaver to slice off the arm of a Detroit gangster isn't frowned upon either. At least, that's what watching Justified teaches me.

But even in Kentucky, they have laws. No, it's true. 

After the jump, you'll see a KY federal court's rationale for the latest sexual-favoritism ruling. And I'll provide some tips for dealing with employees who complain about cushy assignments given to employees who get freaky with management.

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Continue reading "Court countenances canning complainers of consensual canoodling" »

January 9, 2013

3 essential FMLA tools for your HR-compliance arsenal


Three easy ways to tackle FMLA issues, without having to call someone like me. I'll explain after the jump...

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Continue reading "3 essential FMLA tools for your HR-compliance arsenal" »

January 8, 2013

This is my new go-to social-media-discovery judicial opinion

Thumbnail image for facebookprivacy.jpgI assure you that what inspired this post had nothing to do with the facts of the case; namely:

  1. the female plaintiff claiming that her female-lawyer boss groped her; or

  2. the plantiff's Facebook posts about pole-dancing and calling her breasts "milk factories".

That's all purely coincidental. Indeed, it sounds like something out of Costanza's desk drawer

Actually, I'm posting this to share a very well-reasoned social-media-discovery judicial opinion that is a big win for employers. You'll see what I mean after the jump...

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Continue reading "This is my new go-to social-media-discovery judicial opinion" »

January 7, 2013

By far, the WORST job in America (allegedly, of course)

Lincoln GreenNo doubt, an early contender for 2013. 

Kind've like The Lincoln Lawyer -- except way less glamorous and with far more bounced paychecks and ejaculate. Yes, definitely more of those. Allegedly.

Read all about it here.

January 4, 2013

Religious accommodation required for an employee's veganism? Maybe.

Be Like Popeye: Eat Canned Spinach!?!
"Well, blow me down. Wimpy inspires a UK fast food chain,
and all I get is this crappy can. Why I oughta...

In anticipation of the current flu season, you decided to mandate that all employees get immunized. The problem is that one of your employees, a vegan, who won't ingest any animal or animal by-products -- especially not the microwaveable scrapple-wrapped tripe pops I keep in the lunchroom freezer -- refuses to get a flu shot because it's against her religious and philosophical beliefs.

What's her religion, you ask? Why veganism, of course.

WTH?!? Surely, you have no obligation to accommodate this "religion." In fact, you suddenly have the urge to brush her teeth with my frozen pops.

*** Ducks cauliflower ***

Well, guess what, carnivore? If you fire the employee for not getting the shot, you may have a religious-discrimination claim on your hands. 

So says an Ohio federal court in this recent decision. Indeed, an employer must accommodate an employee's sincerely-held religious belief, unless doing so would pose an undue hardship to the employer. When considering whether veganism qualifies, the Ohio court emphasized that "whether or not a practice or belief is religious is not an issue. . .religious practices . . . include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views." Plus, it didn't hurt that the plaintiff quoted the scripture when requesting a flu-shot accommodation from her employer.

*** And I plan to quote Biggie Smalls at compensation time ***

Ultimately, the court accepted that an employee may subscribe to veganism with a sincerity equating that of traditional religious views. Consequently, in certain curcumstances, a vegan can avoid an otherwise mandated flu shot, unless it would post an undue hardship to the employee. But I'm thinking a surgical mask could solve that problem.

Now, if you'll excuse me, somebody has a craving for thawing pops.

Me, that somebody is me.

UPDATE: If you're a California vegan, you're out of luck. As two readers noted on LinkedIn, in this case, a California Court of Appeal -- yes California?!? -- refused to recognize Veganism as a religion requiring accommodation under anti-discrimination laws. For more on the CA decision, go here and here.

January 3, 2013

The Employer Handbook turns 2; and the NLRB keeps hatin' on employers

two candles.jpgWhatcha get the blog for its birthday? Was it an iTunes subscription to Season One of Amish Mafia?

Don't judge the blog. The blog doesn't like to be judged.

After the jump, the selfless blog got you a recap of seven recent National Labor Relations Board decisions affecting your workplace...

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Continue reading "The Employer Handbook turns 2; and the NLRB keeps hatin' on employers" »

January 2, 2013

With employers like THIS, it's gonna be a busy 2013 for the lawyers.

System Failure, WhoaSame s**t; different year.

In 2010, an Ohio temp agency paid $650K as part of a Consent Agreement with the EEOC to settle claims that it had used code words in considering and assigning (or declining) job applicants. The code include words such as "chocolate cupcake" for young African American women, "hockey player" for young white males, "figure skater" for white females, "basketball player" for black males, and "small hands" for women in general.

Fast forward...

Cameron Langford at Courthouse News reports (here) that a Human Resources Manager just sued her former employer, a Texas temp agency, for what she claims was a wrongful discharge. Specifically, she alleges that she was fired after opposing the use of code words to fill placements. According to the article, the code words used included:

  • "blue eyes" and "no sunscreen" = African-American
  • "work all day" = Hispanic
  • "Heavy lifting" = men (i.e., not women)
  • "Energetic" = young (i.e., not old)


It's no wonder that the EEOC will emphasize addressing discrimination in hiring over the next several years. Assuming that your business isn't using code words -- because you're not total scumbags -- now is the time to review other hiring criteria to make sure they do not disparately impact a particular protected class and are otherwise truly business-related.

Or, you can just wait until the EEOC comes knocking at your door. Your choice.