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.

November 18, 2013

The prison guard who left the work-release inmates unattended lost his discrimination claim

friedchicken.JPGYeah, I know. Shocker, right?

A prison guard for the Arkansas Department of Corrections drove 27 work-release inmates in a van to a parking lot next to a fried chicken joint. Rather than hit the drive thru, the prison guard left the 27 criminals in the van and went inside to place his order.

For what it's worth, the prison guard testified that there were no other customers ahead of him in line. Further, the prison guard thought that his chicken stop did not violate any employer policy or rule.

[Can't wait until I revise my next prison guard handbook to include the "Don't leave work-release inmates alone in a getaway vehicle to order fried chicken" policy].

So, yeah, dude got fired.

He filed a grievance and lost. Then he sued for race discrimination in federal court, and now finds his out-of-court self the subject of a snarky post on an employment-law blog.

Why did he lose in federal court, you ask?

Would you believe that the prison guard was unable to show that his former employer's reasons for fire him were pretext for discrimination? Specifically, the prison guard couldn't point the court to anyone who had also gone on a chicken run and left 27 work-release inmates unattended.

The opinion is silent about whether he enjoyed the chicken.

The case is Beard v. Arkansas Dep't of Correction.

This post has been updated to remove typos.

November 15, 2013

NLRB ok's firing of two employees who trashed their company on Facebook

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It's been a while since we've discussed discipline for employee Facebook behavior. So, let's go over some basics. Generally speaking:

  1. one employee, griping alone on Facebook about his employer, can be fired; but

  2. two employees, complaining together on Facebook about their employer, cannot be fired.

The distinction is that the two employees are engaged in concerted activity -- group discussion of workplace issues -- which, even in a non-union private-sector workplace, is protected under the National Labor Relations Act.

However, as two employees recently learned, concerted activity has its limits -- even on Facebook.

Moore and Callaghan worked for a non-profit in California -- right up until their employer learned about this conversation on Facebook:

Moore: U goin' back or no??
Callaghan: I'll be back, but only if you and I are going to be ordering shit, having crazy events at the Beacon all the time. I don't want to ask permission, I just want to be LIVE. You down?
Moore: I'm goin''' to be a activity leader I'm not doing the t.c. [sic] let them figure it out and they start loosin' kids I ain't help'n HAHA
Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we'll take advantage, play music loud, get artists to come in and teach kids how to graffiti up the walls and make it look cool, get some good food. I don't feel like being their bitch and making it all happy-friendly middle school campy. Let's do some cool shit, and let them figure out the money. No more Sean. Let's fuck it up. I would hate to be the person taking your old job.
...
Callaghan: hahaha! Fuck em. Field trips all the time to wherever the fuck we want!
Moore: U fuck'n right see you

After the employer canned both Moore and Callaghan, Callaghan pursued an unfair labor practice claim with the National Labor Relations Board.

An Administrative Law Judge determined (here) that this Facebook conversation did constitute concerted activity. However, the ALJ upheld the termination, concluding that the employer reasonably believed that the Facebook comments jeopardized the employer's funding and the safety of the youth it serves. 

Of course, it will not surprise me if this goes up to the full Board on appeal and gets reversed. 

Since taking an acute interest in social media and the workplace, the Board's position has been that employees have a fairly unfettered right to discuss terms and conditions of employment together on Facebook. Thus, if you have employees who engage in similar online behavior, whether you are unionized or not, don't count on a termination holding up if the matter is presented to the Board.

November 14, 2013

New bill in PA House would erase many local paid-sick-leave laws

sickleave.jpg

Earlier this year, the City of Philadelphia got this close to passing a bill requiring local employers to provide paid sick leave to employee.

PA Rep. Seth Grove (York County-R), wants to make sure there are no such close calls in the future.

Late last month, Rep. Grove introduced this bill in the PA House of Representatives, geared towards "providing statewide uniformity regarding vacation and other forms of leave mandated by political subdivisions." 

Specifically, Rep. Grove's bill, if passed, will prohibit PA municipalities from "requiring an employer to provide an employee or class of employees with vacation or other forms of leave from employment, paid or unpaid, that is not required by Federal or State law, and may not require an employer to compensate an employee for any vacation or other forms of leave for which Federal or State law does not require the employee to be compensated."

(The bill, if passed, would not affect paid-sick-leave laws for municipal employees, such as the one presently in effect in Philadelphia. Although, Philly's law is broad enough to affect employers who do business with Philadelphia. So, who knows?)

In a September 16 memo, Rep. Grove lamented that local paid-sick-leave laws "create an uneven playing field for the businesses located inside the municipality," while "businesses with more than one location are forced to comply with a variety of different and changing mandates."

Brendan Fischer at PRWatch.org reports here that this bill is on the fast track in PA. Right now, the bill sits in Committee.

I'll add updates as the bill advances through the House.

November 13, 2013

"Drug-Free Workplace Policy Builder" from the Department of Labor

Thumbnail image for DOLlogo.pngOrdinarily, I'm reluctant to recommend online modules that help HR professionals create workplace policies.

Like the one I used to create a Borat Workplace Dress Code. Maybe it was the alcohol talking, but I was certain that the one-piece, over-the-shoulder, male swimsuits wouldn't create a donning and doffing FLSA issue.

Hey, this post got weird quick. Didn't it?

And speaking of inebriants...

Yesterday, in the course of noodling around for some fodder to update a Drug-Free Workplace Policy, I found this site from the U.S. Department of Labor, which walks employers through some of the issues to be considered when drafting a policy. It then allows employer to actually building a policy from scratch using DOL-suggested language.

The DOL's policy builder is a nice platform to get you started. Just look out for some potential pitfalls such as asking employees about prescription and over-the-counter drugs. If you get too nosy, the EEOC may come calling. To be safe, have the finished product reviewed by employment-law counsel before implementation.

November 12, 2013

Placing do-not-hire notes in personnel files of employees who file EEOC charges is dumb

icyhot.jpg

If I ever handled a plaintiff's case again, at deposition, I would be sure to take a page out of the playbook of Texas employment lawyer, Mike Maslanka:

Ask the manager who decided to fire the plaintiff whether he's eligible for re-hire. An unprepared manager might blurt out, "Of course not; he's suing us." Say hello to a retaliation claim.

I thought of Mike as I read this recent Texas Court of Appeals case about an employer that admitted at trial that, its receipt of EEOC right to sue letters "prompted" it to place the following notes on the Charging Parties' personnel files:

"Please note he is not eligible for rehire ever. Tried to sue us. Simply tell him, 'sorry but we have nothing for you at this time. Please try again. Have a nice day.' Not for rehire. Per Ben G."

Folks, that's stupider than the time in high school that a combustible combination of curiosity and boredom led me to disregard the warning on the container of Icy Hot balm, about where not to rub the balm.

The notes in the personnel files was enough for the appellate court to uphold the jury finding of both retaliation and malice.

Remember, that anti-retaliation laws apply not only to current employees, but also former ones too. And if there's anything a jury hates more than straight-up discrimination, it's retaliation, which happens to be the most popular claim filed with the EEOC.

November 11, 2013

The ADA still requires a plaintiff to show that he has a "disability"

wheelchair.jpegWhen the Americans with Disabilities Act Amendments Act ("ADAAA") went into effect on January 1, 2009, the changes to the Americans with Disabilities Act ("ADA") emphasized construing the definition of "disability" to provide broad coverage of individuals to the maximum extent permitted by the terms of the ADA.

In other words, nowadays we're all disabled.

However, if you're going to take your employer to trial on a disability discrimination claim, you still need to show a "disability."

Otherwise, the Americans with Disabilities Act would be the "Americans with Act" and that would be more confusing than the Royal Tenenbaums.

Just ask the Fifth Circuit Court of Appeals in this recent opinion:

Although the text of the ADAAA expresses Congress's intention to broaden the definition and coverage of the term "disability," it in no way eliminated the term from the ADA or the need to prove a disability on a claim of disability discrimination. In other words, though the ADAAA makes it easier to prove a disability, it does not absolve a party from proving one.

But, just because the Fifth Circuit is a stickler for the details, doesn't mean that you should be in the workplace. If an employee comes to you complaining of a bad back, or a sore wrist, or the like, sure, you can make them establish it medically. But, know that the burden of establishing a "disability" is low. So, instead, focus on discussing with that individual a reasonable accommodation that will allow the employee to perform the essential functions of the job.


November 8, 2013

ENDA -- a bill banning LGBT workplace discrimination -- passes the Senate

Thumbnail image for rainbowflag.jpgAnd it wasn't close at all.

By a final vote of 64-32, the Employment Non-Discrimination Act, also known as ENDA, passed the Senate on Thursday.

All 52 Democrats, plus 2 Independents and 10 Republicans voted in favor of the bill. Among the notable yes votes was Pennsylvania Senator Pat Toomey (R). Indeed, minutes before voting yes on ENDA, Senator Toomey saw his proposed amendment to the bill, which would have created exceptions for certain religious groups, defeated.

Toomey joined Sens. Kelly Ayotte (R-N.H.), Susan Collins (R-Maine), Jeff Flake (R-Ariz.), Orrin G. Hatch (R-Utah), Dean Heller (R-Nev.), Mark Kirk (R-Ill.), John McCain (R-Ariz.), Lisa Murkowski (R-Alaska), Rob Portman (R-Ohio) as the Republicans supporting the bill.

In fact, Toomey was the only Pennsylvania Senator to vote in favor of the bill. Senator Robert Casey (D), missed the vote, to be with his wife who recently had heart surgery. Senator Casey was a staunch advocate of the bill.

The Senate's newest addition, New Jersey's Cory Booker (D), as well as his fellow statesman, Robert Mendendez (D), we are also among the yes votes.

ENDA now heads over to the House of Representatives, where the chances of passage appear bleak. Although President Obama has called upon House Republicans to pass the bill, Speaker John Boehner (R-Ohio) is on record as opposing the bill, believing that it will encourage frivolous litigation and cost jobs in small businesses.

And although the House previously passed a version of the bill in 2007, yesterday, a spokesperson for House Majority Leader Eric Cantor (R-VA) further quelled any hope that the House would send this matter to the President for signature:

"The bill is currently not scheduled in the House. I hope Majority Leader Reid soon addresses the dozens of House-passed bills that have been ignored in the Senate that create jobs, improve education and create opportunity while Americans struggle to find a good-paying job."

So, it appears that this historical workplace discrimination bill stands in great jeopardy.


November 7, 2013

NJ votes to increase minimum wage to $8.25

Thumbnail image for nj1.jpgOn Election Day, NJ voters approved a constitutional amendment increasing the state's minimum wage by $1, from $7.25 to $8.25. The new wage rate will take effect on January 1, and future increases will be tied to inflation.

Governor Chris Christie, who was re-elected on Tuesday had opposed the increase, claiming that the state's economy would have a difficult time withstanding the increase.

New Jersey becomes the 20th state to establish a minimum wage higher than the federal minimum of $7.25.

Estimates suggest that the increase will affect about 400,000 NJ families. Hopefully, the wage hike does not affect hiring, especially in small businesses.

NJ business will want to be sure that, come January 1, they are not only paying out the proper minimum wage, but also accurately calculating overtime when minimum-wage employees work more than 40 hours in a workweek, lest they wish to find themselves in hot water with the NJ Department of Labor and Workforce Development.

November 6, 2013

No pants in the office leads to sexual harassment claims, you guys.

pantsdown.JPGi·ro·ny (noun)
/ˈīrənē,ˈiərnē/
1. the expression of one's meaning by using language that normally signifies the opposite, typically for humorous or emphatic effect.
"The irony of this blog post is that I am typing it with no pants."

Look folks, in all seriousness ***waits patiently while you napalm your brains***, I was reading this case last night, which even by my scorched-employment-lawyer prurient standards strikes me as shocking. Sure, I could restate all of the tawdry facts in this post to transparently boost my SEO. Instead, I'll just sum it up in with a single paragraph from the opinion:

On May 18, 2012, the sales team played a mix of music containing sexually explicit lyrics. One co-worker "ripped off his pants and strutted around the office in his peach colored briefs. When [Plaintiff] implored him to put his pants back on, [the co-worker] replied 'put that in your lawsuit.'"

So, she did. And, she also included the semen on the office bathroom sink.

(Ok, a touch gratuitous...)

Look folks, if you want a sure-fire way to end up at trial staring down the barrel of a sexual harassment claim with punitive damages at stake, read this opinion and do exactly what the employer-defendant did, right down to describing the work atmosphere as "good for morale and 'created a fun sales environment.'"

Then call me. And we'll chat about large retainers and such.

November 5, 2013

Senate on the brink of approving bill to improve LGBT workplace rights

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Earlier this week, I blogged about Senator Harry Reid (D-NV) promising that the Senate would take up the Employment Non-Discrimination Act.

Yesterday, the Senate obtained enough support to put ENDA to a full vote. Every Senate Democrat agreed to press forward. And even some Republicans helped get the bill to cloture, most notably conservatives Orrin Hatch (R-UT) and Dean Heller (R-Nev.), who announced on Monday that he would back ENDA. With 60 members of the Senate supporting ENDA, the matter is ripe for a vote.

However, while it appear likely at ENDA will make it through the Senate, passage in the House is another story. Concerned with the impact ENDA may have on American businesses, House Majority Leader John Boehner reconfirmed yesterday that he would oppose the bill.

President Obama, in a blog post on the Huffington Post, reaffirmed his support for ENDA. And the White House officially called for passage of ENDA on Monday.

Although the road for ENDA to become law remains rocky, it's worth noting that 93% of Fortune 100 companies include sexual orientation and 82% include gender identity in their corporate nondiscrimination policies. Nearly 200 municipalities also have similar laws in place.

November 4, 2013

"My fake eye was falling out of its socket," and 12 other wild missed-work excuses

nickfoles.jpgHonestly, I was ready to call in sick and use "Bunkered in for the Apocalypse" as my excuse.

I had no other explanation after Nick Foles passed for seven touchdowns yesterday. Seriously, weren't you at least a bit concerned?

Yep, CareerBuilder's annual list of "Most Outrageous Excuses Workers Have Given When Calling in Sick" is back. "Employee's sobriety tool wouldn't allow the car to start" topped last year's list.

Find out what made the Top 13 this year, after the jump...

* * *


Continue reading ""My fake eye was falling out of its socket," and 12 other wild missed-work excuses" »

November 1, 2013

FACT OR FICTION: You can ban employees from consuming alcohol -- even off the clock.

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."

If you operate a business in PA, NJ, DE or the USVI, then the answer is yes. This is true -- even if the ban extends to alcohol consumption off the job.

So says the Third Circuit Court of Appeals in this opinion from earlier this week, where an alcoholic employee, who had previously checked himself in to rehab, had violated the terms of a subsequent return-to-work agreement with his employer never to consume alcohol again.

The employee claimed that the agreement violated the Americans with Disabilities Act's ADA's prohibition of "qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability." The court; however, disagreed:

As numerous courts have recognized, employers do not violate the ADA merely by entering into return-to-work agreements that impose employment conditions different from those of other employees. Indeed, several of our sister circuits have explicitly endorsed agreements that bar an employee from consuming alcohol--whether at the workplace or otherwise...Although Ostrowski was subject to different standards than other Con-way employees who did not sign an RWA, this difference results from the terms of his agreement rather than disability discrimination.

Ultimately, the plaintiff could not show how the ban on booze singled him out because of his alleged disability (alcoholism) versus regulating his conduct (drinking alcohol).

So, the answer to today's question -- at least in the Third Circuit -- is FACT.

October 31, 2013

The Boston Red Sox are the 2013 World Series Champions!!!

redsoxchamps.jpg
What else did you expect?
(Haters can unsubscribe)


As for the rest of you, considering that I've been serving up one of the best employment law blogs every weekday for the past two-plus years, isn't some Red Sox World Series swag for your guy a fair exchange?

(The answer is yes).



Image credit: @MLB on Twitter

October 30, 2013

Let's play: What did Senator Harry Reid say to affect your workplace?

harryreid.jpegEarlier this week, Senator Harry Reid (D-NV) offered some pointed remarks from the Senate floor. He blasted "radical Tea Party Republicans," lambasted "mainstream Republican colleagues, who remained silent even as the anarchists among us committed political malpractice," and then proclaimed, "This work period, the Senate will consider the..."

a. "...Twerk for Work Act, which would provide incentives to employers who hire unemployed Miley Cyrus wannabes who shake what their mamas gave them."

b. "...Fox; specifically, a bipartisan effort to learn what does the Fox say?"

c. "...Employer Handbook. As in, why do people actually read the drivel that spews each morning from Meyer's digits?"

d. "...Employment Non-Discrimination Act, which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity."

If you guessed A, make sure your EPL premiums are paid up.
If you guessed B, put down the drugs.
If you guessed C, go to hell.
If you guessed D, bravo. Treat yourself to a caramel macchiato; your powers of deduction are amazing! And hey, you also got 200 points just for signing your name on your SATs.

I'll update you after the Senate takes up ENDA in a few weeks.

October 29, 2013

Philadelphia bill would require companies to accommodate pregnant employees

Thumbnail image for philadelphia.jpgLast week, I brought you this news of a bill pending in New Jersey, requiring employers to make available reasonable accommodation for pregnancy-related needs when requested by the employee with the advice of her physician.

Yesterday, I read this article in The Legal Intelligencer about this potential amendment to Philadelphia's Fair Practices Ordinance, which too would require employers to make reasonable workplace accommodations for employees who have needs related to pregnancy, childbirth, or a related medical condition.

What, you may ask, do the bill's sponsors have in mind for reasonable accommodation?

An accommodation that can be made by an employer in the workplace that will allow the employee to perform the essential functions of the job. Reasonable accommodations include, but are not limited to, restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.

The law would task employers with providing accommodating pregnant employees, unless doing so would create undue hardship. The Americans with Disabilities Act does not require this -- except for pregnancy-related disabilities. However, the Pregnancy Discrimination Act may require it in certain circumstances. For more on that, check out Robin Shea's post at the Employment and Labor Insider.

And check in here for periodic updates on the pending legislation in Philadelphia.