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.

July 25, 2013

Princeton study reveals that older employees face "subtle bias" in the workplace

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Under federal law, the bar is set higher for proving age discrimination, as opposed to other forms of unlawful discrimination based on protected classes such as race, gender, or disability.

While difficult to prove, a recent article from The New York Times suggests that age discrimination in the workplace may be more common than we realize.

More on this after the jump...

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Continue reading "Princeton study reveals that older employees face "subtle bias" in the workplace" »

July 24, 2013

900,000 reasons not to judge a book by its cover

LunchYou've probably heard of this It's Just Lunch, a Hallandale Beach-based company, even though you may not realize it. I'll give you a hint. Have you flown recently? Yeah, that's right. It's Just Lunch is a matchmaking service that advertises around page 55 of the in-flight magazine of just about every domestic airline.

According to the company's About IJL page, It's Just Lunch was founded in 1991 by a resourceful, professional woman. Now go to the home page, scroll down the page to the right and look at the pictures of the It's Just Lunch "Dating Specialists." Notice anything in common?

Yeah, the EEOC did too. So, it filed this complaint in federal court.

According to this press release, the EEOC agreed to settle a sex discrimination lawsuit it filed against It's Just Lunch for $900,000. That's a lot of lunches!

The EEOC charged in its suit (Case No. 0:13-cv-61518-WPD, filed in U.S. District Court for the Southern District of Florida) that It's Just Lunch (IJL) refused to hire men as dating directors and inside sales representatives. The EEOC also alleged that IJL fired Lynda Twist, its human resources director, in retaliation for her opposition to IJL's sex-based hiring practices.
The EEOC filed suit after first investigating the case, and then attempting to reach a pre-litigation settlement through its conciliation process.
According to the terms of the consent decree settling the suit, which was approved by the U.S. District Court Friday, IJL will pay approximately $900,000 to settle the lawsuit, including a payment to Twist of $130,369. The remaining settlement funds will be paid into an account that will be distributed to a class of qualified male job applicants who applied for dating director and inside sales representative jobs with IJL from 2007 to the present, but whom IJL did not consider for hire. The agreement also requires IJL to implement a detailed applicant tracking system, provide training to managers, human resources personnel and employees, and provide quarterly hiring reports to EEOC for three years.

You can find a copy of the full, 29-page consent decree here.

Sex stereotypes and barriers to hiring are at the top of the EEOC's hit list. Please use this settlement as a reminder to your hiring managers that making personnel decisions based on preconceived notions, rather than pure talent, is not only stupid, but a sure-fire way to find yourself in the government's cross-hairs or otherwise embroiled in a private discrimination lawsuit.

July 23, 2013

Who fires the 68-year-old right after her great performance review?

Balance Scales (Ethics)The company that likes defending age-discrimination claims, that's who.

More after the jump...

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Continue reading "Who fires the 68-year-old right after her great performance review?" »

July 22, 2013

Facebook "tagging" adds a new wrinkle to social media discovery

Thumbnail image for facebutton.pngMore litigants are requesting that their adversaries produce social media evidence during litigation. Often this information is reasonably likely to lead to the discovery of admissible evidence at trial.

For example, a Facebook status update about a great day from a plaintiff suing her former employer for discrimination could bear on her claim for emotional distress. Therefore, she would have to produce this status update as part of discovery if requested to do so, because, not only is the information relevant, it is within the plaintiff's "possession, custody, or control."

Same holds trues for a plaintiff in a personal injury action claiming that she suffered a debilitating back injury. She may have to produce recent Facebook photos of her riding on a speedboat. 

And according to a recent decision from an Indiana federal court, this obligation to produce would extend to photos that the plaintiff didn't post on her own Facebook page.

In Higgins v. Koch Development, the plaintiffs, visitors to Koch's theme park, claimed to have suffered serious injuries. Koch requested that two of the plaintiffs produce Facebook information. Those plaintiffs objected for, among other reasons, they claimed that the privacy of non-parties was violated because photographs and information uploaded by non-parties and published on their pages, through a process known as "tagging," would be discovered.

For my Facebook beginners out there, (here) is an explanation of "tagging":

When you tag someone, you create a link to their timeline. The post you tag the person in may also be added to that person's timeline. For example, you can tag a photo to show who's in the photo or post a status update and say who you're with. If you tag a friend in your status update, anyone who sees that update can click on your friend's name and go to their timeline. Your status update may also show up on that friend's timeline.
When you tag someone, they'll be notified. Also, if you or a friend tags someone in your post and the post is set to Friends or more, the post could be visible to the audience you selected plus friends of the tagged person.

Well, not only did the court poo-poo the notion that this "tagged" non-party information is private, it went the next step and concluded that photos in which a responding party is tagged are relevant, and should be produced because the tag places them within that party's "possession, custody, or control."

Therefore, next time you request social media as part of discovery, make sure that you ask for "tagged" information. Also, anticipate that your savvy adversary may do the same. Consequently, remind your client that, to the extent possible, relevant tagged information should be preserved when litigation is reasonably anticipated and later produced if responsive to a document request.

(h/t @SaraJodka)

July 19, 2013

NJ victims of domestic violence, sexual assault can now get leave from work

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Yesterday, the "New Jersey Security and Financial Empowerment Act," also known as the "NJ SAFE Act" was passed. I had a long day yesterday. So, rather than summarize the NJ SAFE Act myself, I'm going to lean on Trish Graber of PolitickerNJ to do it for me here:

"NJ SAFE Act" would provide 20 days of unpaid leave time to an employee who is the victim of domestic violence or sexual assault or whose parent, child, spouse, or civil partner was the victim. The leave could be taken within one year of the incident, and used intermittently in intervals of no less than one day. Provided that the employee has not exhausted the allotted 20 days for the 12-month period, each violent incident would constitute a separate incident for which a victim is entitled to unpaid leave.

Only business that employ 25 or more employees need comply with NJ SAFE Act. Those employees who have worked for the same employer for at least one year and have logged 1,000 base hours during the immediately preceding 12-month period are eligible.

You can view the new law here.

Hey, before you leave, do me a solid, folks. The ABA Journal recently opened nominations for the ABA Blawg 100 Amici, its annual list of the 100 best legal blogs. Since I've been serving up this brilliant prose to you every weekday for like the past two years, how 'bout you pay me back by nominating the ole Handbook, which you can do here. Or, you can literally pay me back with a generous Paypal donation, which is fine too. 

It's all the same to me.

July 18, 2013

That's what they said: Lotsa NLRB news, and an employment-law carnival

theysaid.jpgSo much labor-and-employment-law news this week, I'll do what I can to cram it into a single post. Here goes...

From Seth Borden at Labor Relations Today comes this news about the Senate agreeing to -- gasp -- seat a full five-member National Labor Relations Board. How could this happen? Something about a nuclear option and compromising photos..

Staying with the labor theme, Joel Barras at Employment Law Watch reports here about a recent advice memorandum from the NLRB's General Counsel in which the GC concludes that employers must bargain with their unions before implementing new social media policies. No shock there.

Now the bridge from labor to employment, as ESPN reports here that Major League Baseball and its union have agreed to bolster its policies against harassment and discrimination based on sexual orientation. Well done!

And finally, what would a Thursday be without an employment law blog carnival. Or a summer road trip. Or both. Robin Shea at the Employment and Labor Insider brought you both right here!

July 17, 2013

How 3 NFL players' mea culpa will improve your social media policy

After the George Zimmerman not-guilty verdict was announced, two professional football players, NY Giants wide receiver Victor Cruz, and Atlanta Falcons wide receiver Roddy White, vented on Twitter:

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Meanwhile, Pittsburgh Steelers offensive lineman, Maurkice Pouncey found himself in hot water after he was photographed last weekend, along with his brother Mike Pouncey, an offensive lineman forthe Miami Dolphins, wearing "Free Hernandez" caps. The "Hernandez" at issue being former New Engalnd Patriots tight end, Aaron Hernandez, who is current being held for trial on charges of first-degree murder

Recognizing that what they say and do online can win or lose tons of fans and $$$, plus impact their respective teams' image, all three players quickly owned up to their online mistakes (Cruz, White, Pouncey)

Now go to your social media policy -- the one you probably need to update anyway -- and make sure that it includes two guidelines for employees: (1) think before you hit "send," and (2) when you make a mistake online, accept responsibility, and own up to your mistakes.

July 16, 2013

GUEST POST: 3 ways to avoid Macy's recent immigration workplace problems

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's my colleague, Kristen Repyneck. Kristen is an associate at Dilworth Paxson LLP where she represents clients seeking non-immigrant and immigrant visas through family, employment, and investment, including investment in USCIS certified regional centers under the EB-5 Immigrant Investor Visa Program.

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

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Continue reading "GUEST POST: 3 ways to avoid Macy's recent immigration workplace problems" »

July 15, 2013

Iowa S. Ct.: Upon review, firing the attractive female was not sex discrimination

So, by now, all of you must be familiar with the case in Iowa -- I've blogged the heck out of it here and here -- where the male dentist fired the attractive female hygienist, ostensibly because his wife was concerned that the hygienist's continued employment might affect their marriage and because the dentist was concerned that he may eventually shag her.

Late last year, the Iowa Supreme Court unanimously held (here) that there is no sex discrimination if a male employer terminates a long-time female employee because the employer's wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee.

Then, a few weeks ago, and after a lot of public scrutiny, the high court agreed to reconsider its unanimous ruling, which it did with this new opinion issued on Friday. 

Second verse same as the first.

The reissued opinion, which replaces the original, looks very similar. Indeed, it too concludes that there was no sex discrimination. But this time around, it underscores that the plaintiff only brought a claim for sex discrimination, rather than one for sexual harassment, implying that the latter may have presented a more viable claim -- provided of course that the plaintiff found the defendant's behavior to be unwanted or offensive, which, apparently, she didn't.

Except for the addition of a head-scratching concurring opinion.

Another difference this time around is the addition of a concurring opinion in which three of the Iowa justices joined. This concurrence, which is nearly as long as the 18-page opinion of the majority of the court, ultimately concludes that that "[w]hat has emerged from this complex area of the law is the general legal principle that an adverse employment consequence experienced by an employee because of a voluntary, romantic relationship does not form the basis of a sex-discrimination suit."

I agree with this conclusion. Yet, I struggle with how it fits with the facts of this case.

On the one have you have the defendant who admits texting the plaintiff lewd comments about her tight clothing, the relative infrequency of her sexual activity, and an inquiry about how often she experienced orgasms. The concurrence acknowledged that defendant's comments that would "commonly be viewed as inappropriate in most any setting and, for sure, beyond the reasonable parameters of workplace interaction."

Then you have the plaintiff, to whom the concurrence attributes what appears to be an out-of-context statement about how the defendant was the reason she continued to work at the office. Then, she "also acknowledged she maintained a closer relationship with Dr. Knight than he maintained with the other employees in the office." Indeed, the only evidence of any reciprocation from the plaintiff is another employee's opinion that the plaintiff was flirting with the defendant. The plaintiff, herself, argued that the sexual attraction her employer developed for her, which was the reason for her termination, was his creation and not the result of a personal relationship she maintained with him.

So, let's call a spade a spade and just say that Dr. Knight fired the plaintiff, not because of anything she did to lead him on, but because he and his wife were concerned that he would end up trying to screw her.

Yet, somehow the concurrence construes the facts as "an undeniable part of the consensual personal relationship enjoyed by Nelson and Dr. Knight." 

Consensual relationship or not, the firing was not based on any animus that Dr. Knight had against women generally. 

Indeed, he replaced the plaintiff with another woman. And there was nothing to suggest a pattern of mistreating women. Therefore, I agree with the court's conclusion that the plaintiff's sex discrimination claims should fail here.

What do you think? Did the court ultimately get it right? Let me know in the comments below...


July 12, 2013

The unintended consequences of a new social media workplace law

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I got an email the other day from my SHRM buddy Tara Mauk Arthur. She lives in Arkansas, which is one of 12 states to have a social media workplace privacy law

As my readers know, subject to limited exception, laws like the one in Arkansas make it illegal for an employer to require or request that a current or prospective employee disclose his/her username or password for a social media account. Some, like the one in Arkansas, also make it unlawful to add a co-worker as a social media contact.

Now, as you know, my posts on these new laws have a common theme; namely, that these laws present a solution in search of a problem. And the problem with slapping together and passing legislation like this is you get some unintended consequences. Cue Tara's email:

I have a question for you. The law, as most, do say you can't require, request.....access to an applicant or current employee's social media account. So, my question is: does this prohibit the "friending" between employers (aka managers/HR) and employees? It is access to the account. There would have been no "forcing" of friending but a mutual acceptance. However, how do you prove that when an employee becomes upset with you? HR people are smart. We know better. Furthermore, what about connections on LinkedIn??

Hmmm...

Well, let's look at the Arkansas social media workplace privacy law. It clearly states that an agent of the employer (e.g., HR) may not "add an employee, supervisor, or administrator to the list or contacts associated with his or her social media account" and there is no exception if both people agree. Ditto a LinkedIn account, unless the LinkedIn account is "opened by an employee at the request of an employer" or "setup by an employee on behalf of an employer." Even if initiated by the employee, connecting on social media too would be unlawful because the law states that "an employer shall not...cause a current or prospective employee" to connect on social media.

So, in Arkansas, a manager cannot connect with an employee on LinkedIn. Further, if two friends work together, but one is an agent of the employer, they cannot be friends on Facebook or follow one another on Twitter. 

So much for the "social" in social media.

Just another why laws like these are unnecessary.

Image Credit: Stannered

July 11, 2013

One step closer to federally-protected LGBT rights in the workplace

rainbowflag.jpgNormally, I get my Thursday post fodder from the Wiggity Wiggity Wonky Wednesday edition of Cracked Magazine. Hard hitting stuff like "7 Dick Moves Everyone Pulled in Classic Video Games" and "The Worst Imaginary Friends to Be Stuck With."

But, for today's post, I read this newspaper called the Washington Post. I dunno. Must've sprung up overnight. 

One its writers, Ruth Tam, writes here that the Employment Non-Discrimination Act (ENDA) has cleared a bipartisan Senate committee:

Three Republicans, Sens. Orrin Hatch (Utah), Lisa Murkowski (Ala.) and the bill's original co-sponsor, Mark Kirk (Ill.) joined 12 Democrats to quickly approve what committee chairman Sen. Tom Harkin (D-Iowa) called "historic legislation."

Title VII of the Civil Rights Act currently makes it unlawful for employers to engage in sexual stereotyping. Introduced back in April and in every session of Congress save one since 1994, ENDA would expressly prohibit employers from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity.

Ms. Tam's article notes that committee member, Sen. Lamar Alexander (R-Tenn.), opposed ENDA, but offered three amendments to the bill:

In his opening remarks, he suggested providing more guidance for employers operating at shared facilities, a better definition of "transitioning" individuals and the elimination of a provision added in the manager's amendment to allow cases to proceed when employers have legitimate reasons for certain employment decisions.

According to the article -- Tam's piece, not "6 Animals Clearly Disguised as Candy (A Drunk Column)" -- a full vote on ENDA in the Senate is expected sometime in the Fall.

Image Credit: Wikipedia

July 10, 2013

Obesity as a workplace disability? One court bucks the trend and says no.

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In mid-June, the American Medical Association concluded that obesity is a disease "requiring a range of medical interventions to advance obesity treatment and prevention." This news led Jon Hyman at the Ohio Employer's Law Blog to conclude that classification of obesity as a "disease" has huge employment law implications; namely, that under the Americans with Disabilities Act, employers would have to consider allowing for reasonable accommodations for obese employees. Indeed, even before the AMA guidance, a Louisiana court determined that morbid obesity was a disability under the ADA, thus requiring reasonable accommodation.

Well, last month, a state court in West Virginia concluded otherwise. More on this decision and its impact on employers after the jump...

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Continue reading "Obesity as a workplace disability? One court bucks the trend and says no." »

July 9, 2013

Following homophobic slur, NHL player quits Twitter

Tyler SeguinAs many of you know, I am a HUGE Boston Bruins fan. But, right now, I have little love for former Bruins winger Tyler Seguin.

You see, Seguin was a highly touted 2011 draft pick who did a disappearing act in the playoffs this year. Amidst reports that his off-ice behavior was interfering with his on-ice performance, the Bruins traded the 21-year-old Seguin to the Dallas Stars on July 4.

The media scrutiny caused Seguin's mom to come to his defense. (I'm sure that won't ignite the crowds at all during road games). But just as that story began to lose steam, Seguin's Twitter account published this tweet:

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I say it was Seguin's Twitter account that spewed this garbage, rather than Seguin himself because, like other young athletes before him, Seguin claims his account was hacked. And, according to Sam Laird at Mashable.com, Seguin has since deleted his Twitter account. He also notes that this is not the first time that Seguin's Twitter activity has drawn scrutiny for homophobic slurs.

All of this brings me back to yesterday's post about social media red flags that cause employers not to hire certain candidates. I feel sorry for the Dallas Stars. They are now saddled with an athlete who, I'm guessing, they would have passed on last week had this hateful tweet surfaced earlier.

July 8, 2013

The six social media faux pas that may cost you that big job

According to this recent survey from CareerBuilder.com, the number of hiring managers who are reporting that a job candidate's social media indiscretions have cost them a position is up nearly 10%, while the overall use social media to vet candidates continues to grow. 

Thumbnail image for facefire.jpgThose surveyed, reported finding a variety of concerning content. Top mentions ranged from evidence of inappropriate behavior to information that contradicted their listed qualifications:

  • 50% - Candidate posted provocative/inappropriate photos/info
  • 48% - There was info about candidate drinking or using drugs
  • 33% - Candidate bad mouthed previous employer
  • 30% - Candidate had poor communication skills
  • 28% - Candidate made discriminatory comments related to race, gender, religion, etc.
  • 24% - Candidate lied about qualifications

The same survey indicates that a candidate's social media use can also separate them from the pack. One in five hiring managers (19%) said they found something that has caused them to hire a candidate - top mentions include:

  • 57% - Candidate conveyed a professional image
  • 50% - Got a good feel for candidate's personality
  • 50% - Candidate was well-rounded, showed a wide range of interests
  • 49% - Candidate's background information supported professional qualifications
  • 46% - Candidate was creative
  • 43% - Great communication skills
  • 38% - Other people posted great references about the candidate

[HR ProTip: If you screen candidates with social media, to reduce the appearance discrimination, have a non-decisionmaker search social media and provide the ultimate decisionmaker with a sanitized internet report (i.e., all protected-class information removed) for his/her consideration]

Are you one of those companies using social media to vet job candidates? If so, why? Or are you concerned that using social media to research applicants is more trouble than it's worth? Let me know in the comments below.

July 5, 2013

The one about the porta-potty harassment

PortapottyHey, they can't all be about Brazilian waxes and irresistible attraction. After the jump, we get down and dirty.

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Continue reading "The one about the porta-potty harassment" »