Welcome Pennsylvania and New Jersey employers.

Settle in and read on for easy-to-navigate, clear and concise summaries of the employment-law landscape in PA and NJ. Plus, we highlight the latest legal trends and changes in the law. You can even improve the way you and your employees conduct business with our featured guest commentary and insights from other management-side employment lawyers and human resources professionals.

This isn't your average blog; this is The Employer Handbook. Read it cover to cover.

October 1, 2013

Woman's Kanye-inspired "take this job and shove it" video goes viral. Would YOU hire her?

Here's the video:



Here's the question:


Would you hire this woman? Tell me why or why not in the comments below.


UPDATE: What's good for the goose, is good for the gander.

(h/t Mashable.com)

September 30, 2013

The golden rule of accommodating employees under the ADA

The Golden RuleLast week, I talked about reasonable accommodations under the Americans with Disabilities Act, and the importance of having an open-minded, respectful conversation with a disabled employee who requests an accommodation to perform the essential functions of the job. Ultimately, as I've discussed before, the employer (and not the employee) may insist upon a particular accommodation as will enable the employee to perform the essential functions of his job.

But is that always the best move?

Consider this recent case, in which a diabetic service technician requested that his employer provide him with an air conditioned vehicle to keep his insulin cold. Providing an air conditioned vehicle seems pretty reasonable to me. Instead, however, the company had a policy, which allowed all employees "take breaks at restaurants or other establishments to cool off on hot days." Thus, the company claimed that this policy would be a accommodation and; therefore, the employee should not have refused it.

And maybe it is reasonable. Or maybe the policy, as applied to this diabetic service technician is unreasonable because (1) he cannot wait to take breaks as long as other employees are able to; (2) there might not be places to cool off close to a particular assignment location; and (3) accidents or constructions may delay reaching an air-conditioned place. That's what a jury will have to decide after the court denied the defendant's motion for summary judgment on the plaintiff's failure-to-accommodate claim.

So, just because an employer has an existing policy or, otherwise, can insist upon a particular accommodation, doesn't mean that it should. Instead, when receiving an accommodation request, imagine that it's coming from a member of your family. If the accommodation you propose is something that you wouldn't dream of providing to a family member, then you should probably come up with something else.

September 27, 2013

Telling an employee to "focus on her health" is not disability discrimination

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Rather, it's just being -- oh what's that word -- 'human.'

Like in this case, in which a supervisor with breast cancer was disciplined -- yes, folks, you can reprimand an employee with an ADA "disability" or FMLA "serious health condition" -- for allegedly calling other employees names such as "idiot," "moron," and "dumbass;" and also striking a few of them on the head for good measure. The supervisor-plaintiff was then demoted and given a pay cut commensurate with the other deputy clerks at her position. When told of the demotion and pay cut, her boss also mentioned that "she should probably focus on her health rather than worry about the stress of supervising people."

My heavens! I've caught the vapors. A boss who expresses concern for the welfare of his employees. Sounds like a terrible place to work!

Without the sarcasm, the court determined that suggesting to the supervisor-plaintiff that "she should probably focus on her health" is not disability discrimination:

The fact that Defendant Brown mentioned Plaintiff's ability to focus on her health as a potential positive side effect of no longer having a supervisory role does not require the conclusion that Plaintiff's FMLA leave or her disability were reasons for her demotion. "[G]eneral, vague, or ambiguous comments do not constitute direct evidence of discrimination because such remarks require a factfinder to draw further inferences to support a finding of discriminatory animus." As pointed out by Defendants, this general statement is just as likely to be construed as conciliatory as discriminatory.

We don't have to walk around the office on eggshells, worried that if we ask a co-worker with a sniffly nose how she's feeling, that she's going to document the comment and later use it against us in a subsequent discrimination action. Although, I've been known to give the stink-eye to co-workers who read my blog posts and ask me how much I has to drink the night before.

Look guys, who among us, doesn't enjoy two Baybreeze boilermakers while blogging in bed after a long day? Pardon me for being civilized.

Now, if you'll excuse me, I have some Keeping Up With The Kardashians to watch.

September 26, 2013

6 keys to having your age discrimination release hold up in court

You're about to have a reduction in force and you're going to offer a severance package to those effected: one week of salary for every year of service in exchange of a full release of all claims. If one or more employees affected by the reduction in force is 40 years of age or older, you'd better make sure that your release language complies with the the Age Discrimination in Employment Act ("ADEA"), as amended by the Older Workers Benefit Protection Act ("OWBPA"). Unlike other general releases, by statute, an ADEA/OWBPA release must have certain required elements for it to be effective.

burningmoney.jpgOne employer, in this recent case, learned the hard way. The employer RIFed the plaintiffs, but failed to inform them "about the group of employees who were being terminated as a result of the reorganization or about employees who were not selected for termination," as the law requires. Consequently, the age discrimination release that the plaintiff signed wasn't worth the paper it was printed on.

Kinda like this blog.

If you are going to lay off anyone over the age of 40, to obtain a release of potential age discrimination claims, you must obtain a knowing and voluntary waiver. This means, at a minimum, your release must include the following six elements:

  1. it must be easy to understand;
  2. it must refer to claims under the ADEA/OWBPA
  3. the employee cannot waive rights or claims that may arise after the date the waiver is executed;
  4. the employee waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled (i.e., you have to incent the employee to agree to the release);
  5. the employee is advised in writing to consult with an attorney prior to executing the agreement; and
  6. the employee has at least 21 days (45 days for a RIF) within which to consider the agreement, and 7 days after signing the agreement in which to revoke it.

Plus, in a RIF situation, the employer is required to provide the following information to the
affected employees: (a) any class, unit, or group of individuals covered by such RIF, any eligibility factors for such RIF, and any time limits applicable to such RIF; and (b) the job titles and ages of all individuals eligible or selected for the RIF, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the RIF.

Unless, you've done this several times before, consider engaging an employment lawyer to walk you through the process. Otherwise, that severance you pay may be used to subsidize a subsequent age discrimination claim against your company.

For more on age discrimination releases, read the statute and review the EEOC guidance.

September 25, 2013

Employee asks court to stop company from making her work Saturdays

Sounds like someone's taken a page out of the Lionel Hutz playbook.

Patrice Williams is a Seventh-Day Adventist. Seventh-Day Adventists believe that the Sabbath runs from sundown Friday to sundown Saturday. Because of her sincerely-held religious beliefs, Ms. Williams requested that her employer not require her to work during the Sabbath, to which the employer allowed her to do so through a combination of swapping shifts with co-workers, using vacations days, using sick days, scheduling doctors appointments, and other means.

But, that wasn't good enough for Ms. Williams. 

So, she sued, asking that a federal court require her employer not to schedule her for work on the Sabbath, ever. She even sought two preliminary injunctions, vis-a-vis two motions creatively styled "Motion for a Temporary "Real" Sabbath Accommodation" and "Motion to Cease and Desist Denial of Regularly Scheduled Off Days and Vacation Days."

Last week, the court, in this opinion, denied both motions, finding it likely that Ms. Williams would lose her lawsuit altogether:

Plaintiff conceded at the evidentiary hearing and in her submissions to the Court that there is currently a shortage of crane operators qualified to operate her crane within her department. Plaintiff proposes that Defendant could solve this problem and never schedule her to work on the Sabbath by removing employees who are qualified to operate her crane from other departments. The issue with this solution is that Plaintiff is asking Defendant to remove individuals with more seniority from their preferred positions in order to accommodate her religious practices. If a reasonable accommodation requires a deviation from an established seniority system, courts have generally considered the accommodation to constitute undue hardship.

Unlike failure-to-accommodate claims presented under the Americans with Disabilities Act, where the employer's burden of proving undue hardship is rather high, in the context of religious accommodations, it's low. The slightest hardship, anything more than a small cost, will suffice.

September 24, 2013

Court ok's firing EAP employee upset with company's workplace investigation

J. Neil DeMasters worked as an EAP counselor for Carilion Clinic. During the course of his employment, a co-worker came to him complaining to have been a victim of sexual harassment. Mr. DeMasters relayed his co-worker's complaint to HR. Then he was fired.

Does Mr. DeMasters have a possible retaliation claim? Nope.

DeMasters' statements to Carilion's human relations department qualify as protected oppositional conduct. There are no allegations in this case that DeMasters played any role in Doe's sexual harassment complaint beyond counseling Doe through the EAP and relaying Doe's complaint to Carilion's human relations department. Merely ferrying Doe's allegations to Carilion's human relations department is in no sense oppositional, and DeMasters did not engage in protected activity in so doing.... DeMasters intended only to relay Doe's complaints to Carilion, not voice his own opposition to any unlawful employment practice, such as the sexual harassment or hostile work environment alleged by Doe.

Even the subsequent criticism Mr. DeMasters voiced concerning the company's handling of the subsequent investigation was not enough to create a viable claim.

DeMasters' statements to Carilion that Carilion was mishandling Doe's complaints are not protected oppositional conduct. DeMasters' complaints about the manner in which Carilion handled Doe's investigation do not concern a practice made unlawful under Title VII. Because DeMasters' criticism was directed to Carilion's processing of Doe's complaints, rather than the substance of those complaints, it is not actionable oppositional conduct.

Thinking about firing the employee who is critical of the way you investigate employee complaints of harassment? Do so at your own risk. Instead, for more egregious workplace harassment complaints, consider using a trained outside investigator to look into them. It's generally money well spent. 

The case is DeMasters v. Carilion Clinic.

September 23, 2013

Does the ADA mandate transfer preferences for disabled employees?

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Last Friday, I had the pleasure of speaking at the National Employment Lawyers Association - New Jersey Annual Conference.

I must admit that I was a bit leery. While it sounded legitimate enough -- they asked me to speak on a panel addressing accommodation issues under the Americans with Disabilities Act -- being the guy with The Employer Handbook blog, I half expected to be chloroformed upon arrival, and buried under a jughandle, left to be constantly trampled by folks making left turns from the right lane.

But, instead, I spoke to a sharp, engaged audience and met some wonderful people. (NJ management-side lawyers: there's a reason we get paid the big bucks. These employee-side folks don't make it easy!)

Our panel addressed a variety of different reasonable accommodations for disabled employees needing a little extra help to perform the essential functions of their jobs. While the bulk of the session focused on leave as a reasonable accommodation; specifically, how much is reasonable, we also touched upon job transfers. Here, the law is quite clear that a transfer to a vacant position for which the disabled employee is qualified is a reasonable accommodation.

However, what happens of the only open position available is one for which the disabled employee is barely qualified and you have another candidate for the same position, but with impeccable credentials? Must you accommodate the less-qualified disabled employee with the transfer, if no other reasonable accommodation is available?

*** makes sure lawyers hat is snug on head ***

The answer depends on where you operate your business.

In the Eighth Circuit (AR, IA, MN, MO, NE, ND, SD), the company may fill the position with the more qualified candidate. The same used to be true in the Seventh Circuit (IL, IN, WI), but not anymore. ADA also trumps in the Tenth Circuit (OK, KS, NM, CO, WY, UT, parts of MT and ID), and the DC Circuit.

For companies in the remaining states, your guess is as good as mine. And since I went with the Minnesota Vikings this week in my NFL survivor pool, I'm not feeling too lucky today. However, I can offer this: when discussing accommodations with employees, be respectful. It's not easy for someone with a disability to open up about their disability to anyone -- let alone their employer. And have an open-minded conversation with that employee. Work together to explore various options available. Maybe, that way, you won't find yourself in the position of having to make the difficult call on a transfer, but instead, arrive at a solution that works for everyone.

September 20, 2013

Your resume is in Klingon, plus 11 other ways not to impress the hiring manager

Last week, CareerBuilder.com released its survey and study of resume do's and don'ts. The one I received on used toilet paper was both a do-do and a don't. But, at least she used 12-point Times New Roman. Still, that didn't make the list. Here's what did...

khanmeme.jpg

How long should a resume be?
Two pages max; one page if you are a recent college grad.

Top 5 Most Common Resume Mistakes?

  1. Typos
  2. Too Generic
  3. Don't list skills
  4. Mimic the job posting
  5. Inappropriate email address

Most Outrageous Resume Mistakes

  • Resume was submitted from a person the company just fired
  • Resume's "Skills" section was spelled "Skelze"
  • Resume listed the candidate's objective as "To work for someone who is not an alcoholic with three DUI's like my current employer"
  • Resume included language typically seen in text messages (e.g., no capitalization and use of shortcuts like "u")
  • Resume consisted of one sentence: "Hire me, I'm awesome"
  • Resume listed the candidate's online video gaming experience leading warrior "clans," suggesting this passed for leadership experience
  • Resume included pictures of the candidate from baby photos to adulthood
  • Resume was written in Klingon language from Star Trek
  • Resume was a music video
  • Resume didn't include the candidate's name
  • On the job application, where it asks for your job title with a previous employer, the applicant wrote "Mr."
  • Resume included time spent in jail for assaulting a former boss

In the comments below, tell me your biggest resume pet peeve and the craziest resume item you ever read from a job applicant.

September 19, 2013

That's what they said: Facebook "Like" under the First Amendment, same-sex marriage benefits, plus a carnival

theysaid.jpgNow, where did I put the mustard for my deep fried Red Bull battered Twinkie dog? (Like I would ever use ketchup for that?!?)

While I search for the spicy brown, after the jump, I'll get you caught up on the latest employment-law news...

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Continue reading "That's what they said: Facebook "Like" under the First Amendment, same-sex marriage benefits, plus a carnival" »

September 18, 2013

DOL provides guidance on home care workers and law firm internships

DOLlogo.pngI remember back in the good old days, when law-firm internships meant private jets, caviar lunches and....toilet paper? As if!.

But now, times are tougher. Some firms find themselves forced to forego paying law students in lieu of offering volunteer pro bono opportunities to enable them to receive work experience. This recent advice letter from the Department of Labor sorts out the circumstances in which not paying these interns will pass muster on the Fair Labor Standards Act.

But the DOL wasn't done there. Yesterday, it announced a final rule extending the Fair Labor Standards Act's minimum wage and overtime protections to most of the nation's workers who provide essential home care assistance to elderly people and people with illnesses, injuries or disabilities. There is also a new set of answer to Frequently Asked Questions here.

September 17, 2013

How ordering cheesesteaks can help employers with disability-accommodation requests

PatsCheesesteak.jpg

In Philadelphia, we're known for certain things, such as cheesesteaks. Ordering the cheesesteak is a bit of an art form. For example, I could order a "Cheese steak, with Cheez Whiz and fried onions." 

Or, I could simply say, "Cheese wit." As most anyone around her knows that Cheez Whiz is the default "cheese" and "wit" means "with fried onions.

[Those of you who are giving me that disdainful Cheez Whiz stink face through your computer -- right back at ya, when you order the "Philly Cheesesteak" on your local dinner menu. For there is nothing "Philly" or "Cheesesteak" about that sludge, right down to the Swiss cheese and mayo. Ya heathen!]

Like ordering a cheesesteak, your workplace has similar buzzwords that may mean something more. 

For example, I could go into HR and request leave under the Family and Medical Leave Act. Or, I could simply tell HR that I have cancer and need time off for chemotherapy. And even though I never utter the letters F-M-L-A, I have certainly done enough be afforded FMLA protections.

And the same holds true under the Americans with Disabilities Act. That is, once an employer learns that an employee has a disability, it then has an affirmative obligation to discuss reasonable accommodations with that employee. Indeed, a recent federal court case reminds us that an employee does not need to use the words "disability" or "ADA" or "accommodation" to trigger this employer response:

The threshold question is whether Suvada successfully triggered GFC's duty to engage in the interactive process. GFC suggests in its opening brief that Suvada did not trigger its duty to accommodate because at the time Suvada told Slouka of her diagnosis, she had no treatment plan, was not subject to any medical restrictions, and did not mention what type of cancer she had. Therefore, the Defendant's argument goes, GFC could not have engaged in any meaningful interactive process because Suvada had not informed GFC of her purported accommodation needs. But the law requires very little of the employee to trigger the employer's duty to engage in the interactive process; all that is required is that the employee notify the employer of her disability. Here, Suvada told Slouka that she had been diagnosed with cancer, which is enough to put GFC on notice of Suvada's disability and ask follow-up questions.

Facts like these present several takeaways for employers:

  1. Make sure that your employee handbook educates disabled employees about how to request a workplace accommodation;

  2. Train managers to identify these inquiries, especially when the accommodation request is less than obvious; and

  3. Recognize when leave requests may overlap both the FMLA and ADA, thereby triggering independent obligations under each statute.

Image credit: Wikipedia

September 16, 2013

Lady Gaga may owe her former assistant a lot of unpaid OT

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We're talking a lot of money honey.

[Bravo, Eric. You couldn't even make it one line without a stupid Gaga pun].

Pun free after the jump...

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Continue reading "Lady Gaga may owe her former assistant a lot of unpaid OT" »

September 13, 2013

Body shots + booty shorts + live office sex = no sexual harassment

Sounds like one crazy party. Or just another Thursday at the Pine Woods Apartments.

Kristen Glemser had no idea...

On December 7, 2006, Kristen Glemser, a marketing/leasing agent for Pine Woods showed up for work, just like she would any other day. Except that some of the ladies in the office had planned a small party of one of Ms. Glemser's female co-workers.

And they decided to get started early.

officepartyshade.jpgBy 10 AM, many of the attendees were in the bag, and Ms. Glemser's supervisor was sending her on a vodka run. When Ms. Glemser returned to the office, the party goers were eating breakfast.

(Does the celery in a Bloody Mary count as breakfast?)

After concluding breakfast, you guessed it, time to model the booty shorts.

Then things got really weird...

Or as the ladies in the office dubbed it, a "fashion show," one in which Ms. Glemser testified at her deposition, she was not a willing participant:

The Plaintiff testified that Lorton asked her to wear the shorts. Lorton started to unbutton Glemser's pants and pull them down. Glemser testified, "I realized she [Lorton] was so impaired that my pants were coming off. They were - if I didn't take them off, she was taking them off." The Plaintiff testified that she did not leave the bathroom because she felt she was restrained because Kim was blocking the bathroom door and Lorton was in front of her with her hands on Glemser's pants. The Plaintiff did not ask Kim to move to the side so she could exit the bathroom. Glemser believed Kim was intoxicated at the time. Glemser testified she told Lorton, "Fine. I'll wear them for you. I'll put them on and that's it. And so I put them on myself."

It was right about this time that Ms. Glemser testified that she observed "multiple individuals engaged in actual or simulated sexual activity, while one of the men was pouring an alcoholic drink over a woman's belly button area and licking it off."

The next day, Ms. Glemser decided that working at Pine Woods just wasn't for her. So, she quit her job the next day. Then she sued for sexual harassment.

Quitting before complaining dooms her sexual harassment claim.

On Monday, a federal court in Illinois (here) dismissed Ms. Glemser's case.

Why, you ask?

Well, an employer can generally avoid liability for a hostile work environment if it promptly investigated complaints made by the plaintiff and acted to stop the harassing behavior. A prompt investigation is the hallmark of a reasonable corrective action.

Here, Ms. Glemser never reported the incident before she quit, despite being made aware of the Pine Woods {cough} sexual harassment policy. The one where it's not cool to sexually harass your co-workers. That was their policy. Or at least that's what Ms. Glemser read and signed when she worked there. And because Ms. Glemser never reported the party before she quit, management was never able to investigate and take corrective measures.

So, if there's a takeaway from this post (searching, searching, searching...): Please encourage your employees to report harassment in the workplace, be it relatively minor, or, as in Ms. Glemser's case, an "Anthony Weiner" on the inappropriateness scale.

September 12, 2013

EEOC Commissioner Feldblum provides answers on obesity as an ADA disability

j0411827.jpgAbout two years ago, the EEOC sued a Texas company, alleging that the company engaged in disability discrimination, in violation of the Americans with Disabilities Act, when it fired a 680-pound worker because he was morbidly obese. The EEOC alleged that the employee's immense weight interfered with his ability to walk, stand, kneel, stoop, lift and breathe. Consequently, he was disabled, as defined under the ADA.

Since then, at least one court has recognized that morbid obesity may be a disability, while another court held that, under state law, morbid obesity is not a disabilityIt was right around this time that the American Medical Association adopted a new policy that officially labels obesity -- not morbid obesity, but obesity -- as a disease. 

So how does employee obesity impact employers under the ADA? 

Yesterday, BNA published an interview with EEOC Commissioner Chai Feldblum, which focused on obesity as a disability. You can read the entire interview here. Below are some highlights:

Q: What is the Equal Employment Opportunity Commission's position with regard to the coverage of obesity under the Americans with Disabilities Act?

A: ...[B]ody weight that falls outside a normal range, whether above or below, or body weight that is the result of a physiological disorder (such as a thyroid condition) can be an impairment under the law . . . And while morbid obesity, like many other conditions, was often found not limiting enough to qualify as a disability under the ADA as originally enacted, courts are beginning to reassess that view in light of the ADA Amendments Act.

* * *

Q: Has EEOC issued any formal guidance that addresses obesity?

A: ...[S]evere obesity, which has been defined as body weight more than 100 percent over the norm, is clearly an impairment.

* * *

Q: Might the AMA's official recognition of obesity as a disease make it easier for plaintiffs to prove disability discrimination under the ADA's employment provisions?

A: The AMA's official recognition will certainly not hurt plaintiffs. But it does not change the basic legal framework.

* * *

Q: Does or will the AMA's policy change regarding obesity alter the EEOC's enforcement approach or efforts? If so, in what ways?

A: No. The commission's enforcement approach is laid out in our Strategic Enforcement Plan for FY 2012-2016 (40 EDR 5, 1/2/13). As far as I know, there are no efforts to change or modify that plan.

* * *

Q: [H]ow significant an impact might the AMA's recognition of obesity as a disease have in the American workplace?

A: ... Recognition by the AMA is certainly an important moment but, on its own, I do not believe that it will have a significant impact on the workplace.

* * *

Q: What measures should employers take to respect and protect the workplace rights of obese workers?

A: Employers should create a culture of respect and provide equality of opportunity for all employees. That will go a long way to protecting the rights of all employees with disabilities.

Obesity in the workplace presents ADA issues for employers

That's not to say employers must satisfy every accommodation request received from an obese employee. However, employers should avoid stereotypes and generalities and view each request/situation on a case-by-case basis. In addition to fostering a "culture of respect," remember that not just open, but open-minded communication about disability issues -- obesity and otherwise -- will protect both employees and employers.

September 11, 2013

Waitress suspended for posting racist customer receipt on Facebook

red lobsterIt's a story that first made news over the weekend and is quickly picking up steam, ironically, because of social media.

A customer at a Tennessee Red Lobster restaurant allegedly left a racist message on a receipt. An African American waitress subsequently posted the receipt to Facebook with the message:

"This is what I got as a tip last night...so happy to live in the proud southern states..God Bless America, land of the free and home of the low class racists of Tennessee"

A Red Lobster spokesperson subsequently told the Consumerist, that it is "extremely disturbed by this situation and [we] are currently investigating to determine exactly what happened."

Meanwhile, the Daily Mail reports that the waitress has been suspended with full pay pending the outcome of the investigation.

Ten years ago, we would have never heard about this story unless, maybe, we lived in the same town as this particular Red Lobster. However, today, this viral story presents front-page issues, which are becoming more and more prevalent. Sadly, your company may ultimately face similar workplace issues when racism and social media intersect.

So, managers, HR professionals, and employment lawyers, put yourselves in the shoes of the decision-makers at Red Lobster and tell me in the comments below, how would you handle this situation -- especially with respect to the waitress?

UPDATE (9/14/13): The Consumerist reported yesterday that "the server is back at work this week per her usual schedule, and didn't miss a day of work during the brouhaha."