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.

February 7, 2014

New bill in Congress will revamp FMLA to cover smaller employers

fmla.jpegHow about cutting the 50-employee requirement for covered employers in half? 

So, if you have 25 or more employees working within 75 miles of one another, they would be eligible to take leave under the Family and Medical Leave Act.

And that's just part of the Family and Medical Leave Enhancement Act of 2014, which Rep. Carolyn B. Maloney (D-NY) introduced in the U.S. House of Representatives earlier this week.

Eligible employees would also be able to "participate in or attend an activity that is sponsored by a school or community organization and relates to a program of the school or organization that is attended by a son or daughter or a grandchild of the employee."

A covered employee could also use FMLA to "meet routine family medical care needs, including for medical and dental appointments of the employee or a son, daughter, spouse, or grandchild of the employee, or to attend to the care needs of elderly individuals who are related to the eligible employee, including visits to nursing homes and group homes."

We're talking major FMLA changes here.

For more on the Family and Medical Leave Enhancement Act of 2014, check out this press release from Rep. Maloney.

(h/t Ilyse Wolens Schuman @ D.C. Employment Law Update)


February 6, 2014

NLRB renews its effort to expedite union elections

nlrb.jpg

Back in 2011, the National Labor Relations Board tried to pass certain rules that would have changed the union-election process in eight ways:

  1. Allow for electronic filing of election petitions and other documents.

  2. Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.

  3. Standardize timeframes for parties to resolve or litigate issues before and after elections.

  4. Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.

  5. Defer litigation of most voter eligibility issues until after the election.

  6. Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters' telephone numbers and email addresses when available.

  7. Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.

  8. Make Board review of post-election decisions discretionary rather than mandatory.

However, courts later determined that the Board didn't have the authority to pass any election-rule changes, because it didn't have enough Board members to have a quorum.

(Gawd, this post got real boring, real fast...)

Fast-forward a few years, the Board is fully-loaded. So, the Board is all like, why not try to get the rules passed again.

So, the Board will officially publish the rules today for public comment. Here is what SHRM said about the same rules back in 2011. And here is what others are saying about the resurfacing rules in 2014:

The public will have until April 7, 2014 to submit comments.

February 5, 2014

Employee claims discrimination, then her friend gets fired. Is that retaliation?

BFF.jpg

Back in January 2011, when I had only one child and an Aston Martin savings fund, the U.S. Supreme Court decided Thompson v. North American Stainless, LP. In that case, the Court held that an employer violates Title VII of the Civil Rights Act if it takes action against an employee who is in the same "zone of interest" as another employee who files a Charge of Discrimination with the United States Equal Employment Opportunity Commission.

In Thompson, a company received an EEOC Charge of Discrimination and allegedly fired the employee's fiancé in response. The Supreme Court held that, if true, this set of fact would amount to retaliation.

Now, fast forward to 2014. I have four children, I'm two Happy Meals away from declaring bankruptcy, and, last night, I dined on the leftover ketchup packets.

Meanwhile, the EEOC has filed an action on behalf of a woman who claims that she was fired because a co-worker, who happens to be her very good friend, complained about retaliation at work.

Does the fired friend have a claim for retaliation?

According to a New Hampshire federal court (opinion here), she may:

The complaint alleges that Mulcahey was a close friend of Wilkins, the individual who engaged in the protected conduct. The two women worked together at a prior company, and Wilkins was influential in procuring Mulcahey's job with Fuller Oil. On Mulcahey's desk at work she displayed birthday and mother's day cards from Wilkins alongside pictures of Wilkins's daughter and the two women together. The complaint also alleges that Fred Fuller knew of this close friendship. Fuller knew that the two women spoke frequently and spent time together out of work - as demonstrated by his statement about setting up a "play date" with the two women and Wilkins's daughter. When Fuller wanted to contact Wilkins, he asked Mulcahey about her whereabouts and requested her personal email address from Mulcahey. This relationship, as pled, exists somewhere in the fact-specific gray area between close friend and casual acquaintance. Although I could not say that such a friendship definitively supports a successful claim, I also cannot say as a matter of law that it does not.

Let's put the Thompson test aside for a sec. There's something really messed up if you're even considering firing anyone (other than the alleged harasser) as a response to an employee complaint of discrimination. 

Certainly not a move I'd recommend to a client.

February 4, 2014

Husband's "kill list" is your green light to fire an employee on FMLA

Take it from your ol' buddy Eric.

Let's say that your employee is on FMLA...

And let's say that, while your employee is on FMLA, you learn that her husband is involved in a motorcycle gang...

And let's say that your learn that the motorcycle-gang husband claims to knows how to hide bodies...

And let's say that the motorcycle-gang husband, the one who claims to know how to hide bodies, has compiled a "hit list" of employees in your workplace...

And let's say that your employee, the one on FMLA, the one with the motorcycle-gang husband who claims to know how to hide bodies and has compiled a "hit list" of employees in your workplace, claims to know how to hide weapons...

It's quite alright to fire the employee. That won't violate the FMLA.

And you should probably call the police too.

February 3, 2014

GUEST POST: Six Tips for Employers Filing for an H-1B Visa

guestblogger.jpgNotwithstanding the lopsided outcome in last night's game -- I'm not saying that the game was over early, but, at halftime, the NFL began preparing their shipments of "Denver Broncos: Super Bowl 48 Champs" apparel to third-world countries -- I'm bailing on writing a post. So, today we have a guest blog post at The Employer Handbook. It's from the folks at Intervisa.

(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).

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Continue reading "GUEST POST: Six Tips for Employers Filing for an H-1B Visa" »

January 31, 2014

The hella-worst job interview blunders evah!

I heard this story once about a law-school graduate who was looking for his first job out of school. He applied to several local Philadelphia-area law firms, and ultimately received an interview from one of them.

The job interview was with two seasoned partners. 

According to this recent Career Builder press release, when it comes to a job interview, the first few minutes may be the most crucial. Nearly half (49 percent) of employers know within the first five minutes of an interview whether a candidate is a good or bad fit for the position, and 87 percent know within the first 15 minutes.

This particular interview started off well. But, less than 15 minutes in, the focus shifted.

You see, as most lawyers do, the partners eventually spent more of the interview time talking about themselves, than learning about the law-school graduate. Indeed, the "conversation" devolved into the lawyers complimenting each other on their legal acumen and many accomplishments:

"John here, just represented a multi-billion dollar conglomerate in an asset purchase of la-di-dah."

"Well, Ron, here, just won his three-week-long qui tam such-and-such in federal court."

"But John, here, also sits on the board of blah blah blah"

"And Ron..."

You get the idea. It reached the point where the law-school grad was unable to get in a word edge-wise. That is, until he politely interjected:

"Would you gentlemen like for me to leave the room so that the two of you may have some alone time together?"

How I wish I could have been a fly on the wall at the precise moment that the partners' brows furrowed and the "what the f**k did he just say?" look formed on their faces!

Hey, I would have hired that spunky law grad on the spot! But, from this employer's standpoint, it was a pretty big interview blunder.

Here are fifteen other memorable ones shared with CareerBuilder as part of its employer survey:

  • Applicant warned the interviewer that she "took too much valium" and didn't think her interview was indicative of her personality

  • Applicant acted out a Star Trek role

  • Applicant answered a phone call for an interview with a competitor

  • Applicant arrived in a jogging suit because he was going running after the interview

  • Applicant asked for a hug

  • Applicant attempted to secretly record the interview

  • Applicant brought personal photo albums

  • Applicant called himself his own personal hero

  • Applicant checked Facebook during the interview

  • Applicant crashed her car into the building

  • Applicant popped out his teeth when discussing dental benefits

  • Applicant kept her iPod headphones on during the interview

  • Applicant set fire to the interviewer's newspaper while reading it when the interviewer said "impress me"

  • Applicant said that he questioned his daughter's paternity

  • Applicant wanted to know the name and phone number of the receptionist because he really liked her

I think my story tops 'em. And below (and here) is another one that didn't make the survey. It's not safe for work, but it blows checking Facebook, hugs, and jogging suits out of the water. #Truth

January 30, 2014

Employee's sexual harassment claims advance to trial because boobs

bikini.jpg

Recently, I've focused blog posts on some quirky cases that make you think a bit. Yesterday, was the FMLA in Vegas case. Last week, was the EMT who argued that getting fired for groping a co-worker was discriminatory in light of his employer's decision not fire an employee who hit a patient.

Today is not one of those cases.

This one is some OG sexual harassment.

Call it a little reminder from your blogging savior that when a male supervisor: 

  • tells a female report that she has "perfect breasts,"
  • comments that she has a "nice rack,"
  • remarks that he is only with his girlfriend because of her breasts,
  • stares at the female report's breasts on multiple occasions, and
  • tells another coworker that the perfect woman had the female report's "tits,"

A jury could find that this behavior constitutes unwelcome sexual harassment. Why?

  • Breast fixation = mommy issues behavior based on gender;
  • numerous booby comments over a few months qualify as pervasive;
  • That ish is creepy both objectively and subjectively; and
  • If the employer learns about the problem and doesn't take reasonable steps to correct it, then it's really on.

Unless you operate a gentlemen's club, don't allow this kind of behavior in your workplace.

January 29, 2014

What happens in Vegas, becomes an FMLA claim. Really.

fmla.jpegBack in 2012, I blogged here about an employee who took her mother to Las Vegas on a vacation. The two ladies spent time playing slots, shopping on the Strip, people-watching, and dining at restaurants. The mother had terminal cancer, but had no specific plans to seek medical treatment in Las Vegas and was never hospitalized or treated by a physician.

When the employee returned to work, she soon became a former employee, immediately terminated for what her employer determined to be unauthorized absences.

The employee then sued for violations of the Family and Medical Leave Act.

An Illinois federal court ruled here that the employee had a tenable FMLA claim because she was "caring for" her mom, who had a serious health condition (terminal cancer), by helping her with basic medical, hygienic, and nutritional needs. It did not make where the care was administered. It just mattered that the employee was caring for her sick mom.

Yesterday, the Seventh Circuit affirmed in this opinion, where, again, the issue came down to what it means to "care for" a family member with a serious health condition.

The appellate court agreed with the lower court that it doesn't matter where care is provided, just as long as care is provided:

Sarah's basic medical, hygienic, and nutritional needs did not change while she was in Las Vegas, and Beverly continued to assist her with those needs during the trip. In fact, as the district court observed, Beverly's presence proved quite important indeed when a fire at the hotel made it impossible to reach their room, requiring Beverly to find another source of insulin and pain medicine. Thus, at the very least, Ballard requested leave in order to provide physical care. That, in turn, is enough to satisfy [the FMLA].

So, if your employee needs time off to care for a significant other with a serious health condition, get an FMLA medical certification to satisfy yourself that the leave is covered.

Otherwise, what does it matter where the employee cares for a loved one?

January 28, 2014

The Supreme Court on FLSA, donning, doffing, and Daft Punk!

daftpunk.jpegIf there's one thing I know from my blog stats, it's that no one clicks on my posts about you'll never believe what Justin Bieber did now! the Fair Labor Standards Act.

If there was only some way that I could jazz them up to attract readers.Miley Cyrus is engaged to who? 

Maybe the facts of yesterday's U.S. Supreme Court decision discussing Kim Kardashian's latest piercing FLSA "donning and doffing" are sexy enough on their own. 

The Court entertained the question: what young hottie is Taylor Swift dating now? what counts as "clothes" when examining a union contract, which provides that employees don't get paid for time spent "changing clothes" if a union contract says so?

Now, you may be asking yourself, "Which Real Housewives star got drunk and arrested?" "How can I contain my excitement?"

Ok, calm down. I'll get to the punchline. Tom Cruise renounces Scientology for Buddhism. The Supreme Court held, in this opinion, that time spent putting on and taking off protective gear such as jackets, pants, Beyonce's wardrobe malfunction hardhats, boots, or other items that clearly cover body parts and are articles of dress, is not compensable under the FLSA if the union and employer agree that such "donning and doffing" is not compensable.

(In non-union environments, "donning and doffing" protective gear is compensable).

Whew, that was a hot post! I just hope someone reads it.

January 27, 2014

FACT OR FICTION: A temporary disability may be an ADA 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."

Let's assume that your employee breaks his leg. Doctors tell your employee that he won't walk normally for seven months. Without surgery, bed rest, pain medication, and physical therapy, he "likely" won't be able to walk for more than a year after the accident.

Bottom line: The employee will heal, but it will take some time.

But is your employee disabled under the Americans with Disabilities Act, as amended by the Americans with Disabilities Act Amendments Act?

According to this decision last week from the Fourth Circuit Court of Appeals, yes:

The amended Act provides that the definition of disability shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by its terms....Although impairments that last only for a short period of time are typically not covered, they may be covered if sufficiently severe....Summers alleges that his accident left him unable to walk for seven months and that without surgery, pain medication, and physical therapy, he "likely" would have been unable to walk for far longer. The text and purpose of the ADAAA and its implementing regulations make clear that such an impairment can constitute a disability.

The decision should resonate with employers for several reasons:

  1. It is the first appellate court to apply the ADAAA's expanded definition of "disability." And this is a typically conservative, employer-friendly court.
  2. This decision is consistent with the hidden message when you play Kanye West's Yeezus album backwards EEOC guidance providing that an impairment lasting less than six months can constitute a disability.
  3. This really isn't that close a call because the effects of the injury should have lasted more than six months.

So, the answer to today's QATQQ is fact, and employers need to be more receptive than ever to accommodating employees with temporary injuries.

January 24, 2014

NJ now bans discrimination based on pregnancy, childbirth or related medical conditions

Thumbnail image for nj.jpgI blogged about it here back in October. My epic Lil' Za Halloween costume. Both the NJ House and Senate had proposed legislation whereby a female employee affected by pregnancy could not be treated worse than other non-pregnant co-workers, but similar in their ability or inability to work.

Well, now, it's the law, son! Under the new law, which Governor Chris Christie (R) signed on Tuesday, employers must provide reasonable accommodation to pregnant employees that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth. Examples include bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work. An employer can avoid accommodation if it can establish that doing so would cause it undue hardship.

The new law takes effect immediately.

BTW - How awesome is this kids' cover of Tool's Forty Six and 2? Amazing, right?

January 23, 2014

The guy fired for grab-ass at work may have been discriminated against

"My ears are burning..."

No, not you, Bill Clinton.

And not you either, Homer Simpson.

I'm talking about this dude who worked as an EMT up in Pittsburgh. He was accused of grabbing his co-worker by the buttocks and placing his fingers very close to her private area.

(I'd be a little more colorful in my commentary, but I already used up my gratuitous jab with the Clinton bit. Besides, I'm saving up my "yinzer" reference for later in this post, and I'm about to play this...)

So, as you can imagine, the cheeky EMT -- couldn't resist, sorry -- who is black, was fired. What you may not believe, however, is that this guy claimed that his former employer's move was racist.

Racist, you say? Maybe...

To prevail on a claim of disparate treatment, a plaintiff must show that his employer treated other similarly-situated employees outside of his protected class more favorably.

The plaintiff here alleged that his employer did not fire another white EMT who allegedly struck a patient. So, the question becomes, is hitting a patient basically the same thing as grabbing a handful of a co-worker's badondadonk (allegedly).

According to a Pennsylvania federal court in this opinion, they're close enough. To use the court's words, "grabbing a coworker's buttocks" and "striking a patient" are of "comparable seriousness."

And since the white employee who struck the patient was merely suspended (while the level of his offense could have warranted termination), while the black employee, who supposedly got a handful of tush, was fired, that was enough for the judge to allow the black employee's discrimination case to proceed to a jury.

Take out the trash

The takeaway here is that while you may be inclined to give employees who misbehave at work second chances, there arises a level of misbehavior -- I'm thinking aggressive physical contact and sexual assault qualify -- where you just fire the employee and move on. Amirite?

Otherwise, you may end up at trial defending a discrimination case.

January 22, 2014

Social media? Anti-harassment? No workplace policy can prevent something this stupid...

On MLK Day, with a few of my co-workers and my four-year-old son, I performed community service. We went to a local center and spent a few hours making peanut butter sandwiches to feed the homeless.

Actually, we spent a half-hour or so making sandwiches. Most of us spent the remainder of the time continuing to make sandwiches, while my son ate peanut butter.

Win-win.

An offensive "tribute" to Martin Luther King

But imagine, if instead of performing community service, my co-workers and I decided to host an "MLK Black Party," where we dressed in basketball jerseys, flashing gang signs and drank from watermelon cups.

KVVU-TV Fox 5 reports here, that this is exactly what a bunch of knucklehead students from the TKE Fraternity at Arizona State University did on Monday. Below is the video report.

These students were not only ignorant enough to host this party, but two shared it on Instagram (complete with hashtags like #mlkparty, #watermeloncup, #hood, #blakcoutformlk and #ihaveadream). Both appear to have since deleted their Instagram accounts (here and here).

Policies can't prevent stupidity.

While it is prudent to educate and train your workforce on policies governing discrimination and responsible use of social media, stupidity like this proves that no matter what type of policy or guidance you may provide, problems in the workplace will arise.

It's how you respond that matters.

When it comes to folks who create a hostile work environment for others, make sure that you take the immediate necessary steps that are reasonably designed to end the harassment.

Arizona State University has suspended the TKE fraternity. We'll see whether some of the students involved continue to receive their education from ASU.

January 21, 2014

GUEST POST: What legal rights do unpaid interns have?

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Samantha Hopkins. Samantha is a law student who just received her big break.

She gets to guest blog at The Employer Handbook!

(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).

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Continue reading "GUEST POST: What legal rights do unpaid interns have?" »

January 17, 2014

Why a single kiss could have one employer in boiling hot legal water

sexharass.jpegI give a lot of "respect in the workplace" trainings. And I generally tell the audience that, while a single offensive comment or act in the workplace is one incident too many, one instance generally does not create a winning lawsuit. That's because a plaintiff must show that he/she was subjected to either severe (really, really bad) or pervasive (a lot of bad) behavior to establish a hostile work environment.

Now, there are some exceptions. New Jersey is one of the few states that has held that a single discriminatory comment can create an actionable hostile work environment claim.

But what if, instead of a slur, we have an assault; one which the plaintiff claims was not only unwelcome, but particularly disturbing?

A single incident may be sexual harassment.

In this recent case, the plaintiff alleged that her boss grabbed her, "forcibly" pulled her back and, kissed her on the neck. This alleged behavior caused the plaintiff emotional distress.

Undoubtedly, an objective person would find this alleged behavior offensive. But, is this single act severe enough to create a tenable hostile work environment claim?

According to a NY federal court analyzing the claim under state and local law, maybe yes:

There can be no disagreement that, if true, the event Plaintiff describes is disgusting and unacceptable. Whether the objective character of Plaintiff's allegations rise to the level of extraordinary severity, however, is a close and difficult question. Nonetheless, the Court cannot conclude that, taken as true, they are so inadequate as to warrant dismissal. Though these allegations may not ultimately lead to liability, they are not deficient as a matter of law; assessment of such intermediate allegations is best left to a jury. The Court accordingly will deny Defendants' motion to dismiss.

Employer takeaway:

While this decision does not involve Title VII, a federal anti-discrimination statute that protects employees from sexual harassment, it's nonetheless a wake-up call for employers to educate and train their employees about behaviors that are not acceptable in the workplace. Because, even if a single incident is not enough to create a winning lawsuit, it may be enough to create a lawsuit that you'll have to spend valuable time, money, and resources defending.