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.

April 1, 2014

When the supervisor offers an employee $$$ to have sex with his wife, that's not gender bias, you guys

cashpile.jpgTerribly sorry about the confusion created by my sloppy use of possessive pronouns in today's lede. The "his" wife refers to the employee's wife. Otherwise, this post doesn't make any sense, does it? (Don't spend too much time contemplating the question, ok).

Yep, just another Tuesday at The Employer Handbook.

Click through for what should prove to be a cluster of a gender discrimination claim contain many valuable takeaways for proactive employers.

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Continue reading "When the supervisor offers an employee $$$ to have sex with his wife, that's not gender bias, you guys" »

March 31, 2014

The guy who was fired for peeing in a cup in front of his co-worker claims disability discrimination

peecup.JPGI'm pretty sure Larry David had this written into the Seinfeld Parking Garage episode before making a last-minute script change to uromysitis.

I would have stuck with the former. But, Mr. David is a comedic genius and I just write this crappy blog. 

How bad is this blog, you ask? I was contemplating using the words "wicked pissah" in the lede, only to realize that I'd already used them.

Then again, you're the ones reading this. Go ahead. Click through to read more after the jump...

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Continue reading "The guy who was fired for peeing in a cup in front of his co-worker claims disability discrimination" »

March 28, 2014

About last night...

team.jpgSorry, gang. Last night was my fantasy baseball auction. And I got home hella-late. So, no post today.

Ahhhhhh, I can't totally leave you hangin'. So, you can read about how the University of Northwestern football team can now organize and form a union (here), or you can grade my fantasy baseball team (right) in the comments below.

Oh, no. Meyer's slacking. Let the unsubscribes begin!

(Well, maybe, I can salvage this with some Adele Dazeem).

Have a nice weekend.

March 27, 2014

Wages aren't confidential, you guys. Your employees can discuss them.

bankvault.jpgOver the past several years, seemingly, we're seen the NLRB take a more active interest in employee handbooks. 

We've certainly seen it with respect to social media policies; especially, where these policies purport to limit the rights of employees to discuss their employment with one another. This is because Section 7 of the National Labor Relations Act allows employees to discuss their terms and conditions of employment together.

And you don't need to have a union either. The act applies in most every private-sector workplace.

So, whether it's employees gabbing about how their workplace sucks, or how they are being underpaid, you can't forbid that.

This holds true even if you have a workplace policy which categorizes wages as "confidential." The National Labor Relations Board won't have any of that. 

And, most recently, the Fifth Circuit Court of Appeals reaffirmed it in this case, by underscoring that "a workplace rule that forbids the discussion of confidential wage information between employees patently violates section 8(a)(1) [of the Act]."

Indeed, even a workplace rule that doesn't expressly lump wages into the definition of "confidential information" can still be overbroad and, therefore, unlawful. 

The company's "confidentiality" policy highlighted in the Fifth Circuit opinion didn't mention wages explicitly. Instead, it precluded discussion of company "financial information, including costs." Both the NLRB and the Fifth Circuit concluded that an employee could reasonably construe this language to preclude discussion of wages.

Therefore, when drafting your confidentiality policy language, consider carving out wages and benefits specifically, or more narrowly defining your confidential information so that a reasonable person wouldn't read the policy to preclude discussion of their paycheck.

Image Credit: Minneapolis Institute of Arts on Flickr

March 26, 2014

FACT OR FICTION: You must provide FMLA to someone who "potentially" qualifies for it

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."

Employee comes to you with a leave request in which he potentially qualifies for FMLA. Must you provide it?

Break 'em off Eleventh Circuit Court of Appeals:

"The plain text of the [FMLA] provides a cause of action against employers who 'deny the exercise of or the attempt to exercise, any right provided under this subchapter.' Nothing in the statute speaks of 'potential rights.'"

So, the answer to today's "Fact or Fiction" is fiction.

However, remember that if an employee comes to you requests leave that potentially qualifies as FMLA leave, you still must ascertain whether the employee's absence actually qualifies for FMLA protection.

And don't forget that the employee doesn't need to use the letters "FMLA" in order for his leave to qualify under the FMLA. So, educate your supervisors and others who may receive leave requests to know the type of leave that could qualify as such under the FMLA, and to respond accordingly.

March 25, 2014

Court reasons that unreasonably withdrawing a reasonable accommodation is reason for employee to win ADA suit

timeclock.jpgLet's say that you have an employee whom the Americans with Disabilities Act would consider disabled and to whom you have afforded a reasonable accommodation for a long time.

Maybe it's a few years of light duty to accommodate your employee's bad back. Maybe it's keeping your employee with medically-documented sleeping issues off of the graveyard shift.

Or maybe, like in this case, it's allowing an employee who takes morning meds for ADD and bipolar disorder to arrive to work a late, so the meds can kick in. Indeed, for 2 1/2 years, the employee in this particular situation was accommodated with modified start time.

But following a change in management at the company, without explanation, the employer unilaterally withdrew the accommodation. Just like that. 

So, the employee brought a failure-to-accommodate claim under the ADA.

Now, you may be thinking, can an employer really do that? Can it just stop accommodating an ADA-disabled employee without some sort of justification or demonstrating undue hardship?

Funny, that's what a federal judge was thinking when he not only denied the employer's motion for summary judgment, but also granted the plaintiff's cross motion:

"Crane had already made a reasonable accommodation to enable Isbell to do her job -- for some 2-1/2 years it had accommodated the later-starting work schedule that she had requested to meet her special needs for the performance of her job responsibilities. No real reason has been proffered by Crane as to why a new management broom, who (not incidentally) had no prior knowledge of Isbell's special arrangement or of the needs that had prompted it, should be entitled to start by subjecting her to a one-size-fits-all timing sweep. Indeed, as already indicated in the preceding paragraph, such uniformity of treatment is precisely what the underlying purpose of the ADA rejects."
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Because the undisputed facts, even when construed in Crane's favor, demonstrate that Isbell could and did adequately perform her essential duties for over two years with the reasonable accommodation of a 10 a.m. start time, Crane's sudden replacement of that start time with a more onerous schedule without considering her known disability plainly constituted an unreasonable failure to continue to accommodate that disability under the ADA.

Does this mean that employers who offer long-term accommodations are stuck providing them for life? No. One option is for the employer and employee to re-engage in a good-faith interactive dialogue to determine what other accommodation(s) may allow the employee to perform the essential functions of her job.

But, to discontinue an accommodation altogether, an employer will have to demonstrate that the existing accommodation has become an undue hardship.

Image credit: Eyemage on Flickr

March 24, 2014

Plaintiff-employee destroys Facebook posts about her case; court destroys her

dentist.jpgLast month, a daughter's Facebook post cost her father an $80K age-discrimination settlement (more on that here). 

Last week, with some Facebook shenanigans, the plaintiff in a sexual harassment case screwed herself over.

(See what I did there?)

Heather Painter used to work for Dr. Aaron Atwood D.D.S.

According to Ms. Painter, one day at work, the good doctor -- err, dentist -- just happened to climb on top of her with his pants undone and held her down.

Dr. Atwood didn't exactly deny those allegations; however, he claimed that he was only attempting to tickle Ms Painter* and that the sexual nature of their relationship was consensual.**

[* Editor's Note: Like, with his penis? Ok, just kidding....]

[** Editor's Note: Ms. Painter was Dr. Atwood's babysitter too. Not kidding about that.]

Anyway, during litigation, the defendants, the dentist and his practice, wanted to obtain copies of Facebook posts from Ms. Painter in which she supposedly commented about how much she enjoyed her job, how Urgent Dental was a great place to work, and how Dr. Atwood was a great boss and she enjoyed working under with him.

Ms. Painter's counsel conceded that her client deleted those Facebook comments and that she deleted those comments after she retained counsel for this litigation. However, Ms. Painter argued that she should avoid court sanctions because the posts were not relevant and Ms. Painter was only 22 and didn't know any better that it's improper to destroy potentially relevant evidence after you sue someone.

The Court was, shall we say, non-plussed (opinion here):

"Plaintiff had an obligation to preserve her Facebook comments; she deleted the comments with a culpable state of mind, and the comments were relevant to Defendants' claim. Although Plaintiff's counsel may have failed to advise Plaintiff that she needed to save her Facebook posts and of the possible consequences for failing to do so, the deletion of a Facebook comment is an intentional act, not an accident, and the Court cannot infer that Plaintiff deleted Facebook comments which stated that she enjoyed working for Defendant Dr. Atwood, after she contemplated the instant litigation, for an innocent reason."

To sanction the plaintiff, the Court ordered the factfinder (i.e., the jury) should infer that the deleted Facebook posts undermine Ms. Painter's sexual harassment claims. Next to outright dismissal of the case, this is as bad a sanction as a court can order.

Given the potential that social media evidence can have on claims and defenses in an employment case, judges, like the one in the Painter case, do not tolerate intentional destruction of relevant social media content. Even accident erasure of this information may result in sanctions.

So, to all you employees and employers out there, be aware that, once there arises a reasonable anticipation of litigation, all potentially relevant evidence -- including social media content -- must be preserved. This is especially important for employers (and their counsel) who may be responsible for informing multiple employees of this duty to preserve.

March 21, 2014

This may just be the greatest union-avoidance banner evah!

Yesterday, I read with interest Jon Hyman's post at the Ohio Employer's Law Blog about how Target has employed a 14-minute training video to help keep its workplace union free. Gawker has posted a copy of the video here. Like a bear crapping in the woods, Gawker pokes fun of the Target video. Cheesiness aside, I find it to be pretty effective.

But Target ain't got nothing on Subaru of Wichita. (h/t Jeff Nowak)

Subaru of Wichita - 1
Local Carpenters Union - 0 


And before I tell you to have a nice weekend, I'm going to ask you to save April 24 for me. On that date, along with Mary M. Tiernan of the U.S. Equal Employment Opportunity Commission, I'll be headlining a breakfast briefing at Dilworth Paxson in Philadelphia. After a few of my colleagues offer a legal roadmap for managing your aging workforce, Mary and I will address what's hot right now at the EEOC, and offer up some best practices to stay out of the crosshairs of employment litigation. 

For more information about the event, click here.

Now, go on and have a nice weekend!

March 20, 2014

The March Edition of the Employment Law Blog Carnival is LIVE!!!

Carnivalphoto © 2010 Paul Newtron | more info (via: Wylio)Last night, after I arrived home, put my jacket away, and walked into the kitchen, something immediately caught my eye. On the kitchen table was a "Country Sweets Gourmet Cookie Dough" fundraising flyer from my son's school. 

My choice of five different flavors of raw cookie dough in a 48-ounce tub. And since it's all in the name of fundraising...

Easily the highlight of my day. Except.

Then, I remembered that email I received from Heather Bussing at HR Examiner informing me that she had just posted this month's edition of the Employment Law Blog Carnival: ELBC Walks Into a Bar. It's 1 collection of 17 recent employment-law posts from bloggers across the country, dotted with "[insert here] walks into a bar" jokes. We have a winner!

You can view it here.

Totally unrelated, but, I'm just curious. If it's you in the bar with a jukebox and one play left near last call, what's your go-to. 

Let me know in the comments below.

(Unquestionably, here's mine).

March 19, 2014

That's what she said: How to navigate the pitfalls of the FCRA

whatshesaid.jpgWhen the Fair Credit Reporting Act comes a knock knock knockin' on HR's door, who among you, will answer the call?

Fear not, kids. Cinch on your big boy/girl underpants! My colleague, Stacey Schor, in this post, has outlined a recent federal court decision that provides valuable guidance on how employers can comply with the strict requirements of FCRA, so that your hiring decisions are FCRA-bulletproofed.

This one goes out to all out FCRA freaks fans. Holler if you hear me!

March 18, 2014

Democrats seek to undo 2013 Supreme Court ruling defining workplace "supervisor"

Thumbnail image for CapitolHill.jpgHas the Supreme Court's 5-4 decision in Vance v. Ball State been keeping you up at night?

*** logs IP numbers; obtains restraining orders ***

Well, ok. I can see why some of you are sour on the 2013 Supreme Court decision holding that an employee is a "supervisor" for purposes of vicarious liability under Title VII of the Civil Rights Act of 1964 only if he or she is empowered by the employer to take tangible employment actions against the victim. 

(See my post on Vance here).

Whether a harasser is a supervisor matters because if the harassing supervisor fires, suspends, or takes some other similar action against the victim, the employer ends up writing a huge check. Otherwise, the employer has some outs arising from the same affirmative defense discussed in yesterday's post.

Seeking to deliver a proverbial football to the Vance decision groin undo the Court's decision in Vance, last week, Democrats in both the U.S. Senate and House of Representatives proposed legislation (Senate - here; House here), which would define "supervisor" to include those with authority to direct people's day-to-day work. And, according to this fact sheet, the bills would extend coverage to all federal anti-discrimination statutes.

Whether this legislation passes, take the opportunity to remind supervisors and non-supervisors alike that violations of your respect-in-the workplace will result in discipline, up to and including termination of employment.

March 17, 2014

Is it unreasonable to tell your boss to stop sexually harassing you?

sexharass.jpegI can actually feel the daggers that some of you are staring into me.

So, please allow me to reintroduce myself. My name is H-O explain.

How to demonstrate sexual harassment

When an employee sues for sexual harassment, he/she must show four things:

  1. he or she was subjected to conduct of a sexual nature;

  2. the conduct was unwelcome;

  3. the conduct was severe or pervasive; and

  4. objectively and subjectively altered the conditions of employment and create a discriminatory abusive working environment.

Often, even if the employee meets this burden, the employer can still prevail if it can show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff/employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Is complaining only to the harasser reasonable enough?

In this recent sexual harassment case, the employee met her four-element burden of establishing that her manager had sexually harassed her. The employer; however, maintained a sexual harassment policy in which it condemned the behavior and further encouraged employees to report sexual harassment.

But the plaintiff did complain -- to her manager/harasser only. She didn't go to HR. She didn't tell another supervisor. Instead, she told the manager to knock it off. Indeed, the manager promised that he would resign if the plaintiff didn't turn him in to HR.

Except he never did. Rather, it was the plaintiff who ended up resigning because she claimed that the workplace had become so intolerable to continue to working there.

So, did the plaintiff "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise?" According to the federal court hearing the plaintiff's case, maybe, but, maybe not:

"It may not be reasonable for an employee complaining of the sexual harassment to believe complaining to the very manager who is sexually harassing said employee would satisfy the goal of allowing an employer to investigate and respond to complaints of sexual harassment....This is in light of the fact that the policy provides for the complaint to alternatively be made to the human resources department."

Thus, this case will proceed to trial.

Steps employers can take to reduce sexual harassment.

Do I think that the plaintiff acted reasonably by telling her manager to knock it off? Heck yes! That's a staple of my respect-in-the-workplace training. However, complaining cannot stop there, because a complaint to a harasser won't necessarily end the offensive conduct and it generally won't put the employer on notice of the offensive conduct.

So, check your anti-harassment policy and training materials. Do they suggest only that victims of sexual harassment report the offensive conduct to their direct supervisor or manager? If they do, get rid of them. Because, like in the case above, the direct supervisor/manager may be the harasser. And complaining in that case didn't do much good, did it?

While you should also encourage victims to tell the harasser that the offensive conduct is not welcome, it's not always easy for the victim to stand up for himself/herself. So, don't require it. Instead, require that victims (and witnesses) of sexual harassment complain to HR and a manager/supervisor who is not the harasser. That should allow you to respond in a manner that is reasonably designed to end the harassment.

March 14, 2014

What is it exactly that President Obama wants to do to the FLSA?

Thumbnail image for obama.jpegSo, by now, you've likely read the news, first reported on Wednesday night by The New York Times reporters Michael Shear and Steven Greenhouse that "Obama Will Seek Broad Expansion of Overtime Pay".

Messrs. Shear and Greenhouse indicated that, yesterday, President Barack Obama was to the direct the U.S. Department of Labor to "revamp its regulations to require overtime pay for several million additional fast-food managers, loan officers, computer technicians and others whom many businesses currently classify as 'executive or professional' employees to avoid paying them overtime."

Possible targeted changes to the FLSA

The New York Times article suggested that President Obama would call on the DOL to raise the minimum salary level for employees to qualify for an overtime exemption. 

Currently, to fit under either the "executive" or "administrative" exemptions to the Fair Labor Standards Act, among other things, the employee must make at least $455 per week in salary. Raising that number would render fewer employees "exempt," thus increasing the pool of overtime-eligible employees.

Additionally, Messrs. Shear and Greenhouse report that "the new rules could require that employees perform a minimum percentage of 'executive' work before they can be exempted from qualifying for overtime pay." The current rules contain more amorphous standards.

A directive from the President that's long on newspeak and short on specifics

With all of this buildup, yesterday, the White House issued a "Presidential Memorandum" entitled "Updating and Modernizing Overtime Regulations." The memo contains nothing as specific as reported in The New York Times. Instead, it contains an overview of the Fair Labor Standards Act followed by a vague directive to the DOL:

"I hereby direct you to propose revisions to modernize and streamline the existing overtime regulations. In doing so, you shall consider how the regulations could be revised to update existing protections consistent with the intent of the Act; address the changing nature of the workplace; and simplify the regulations to make them easier for both workers and businesses to understand and apply."

Quite frankly, although this is a general edict, I'm all for streamlining and simplifying an arcane law that has become a nightmare for businesses and their employees to comprehend.

Don't expect swift change.

How, specifically, the FLSA may change, is less than clear. What is clear; however, is that this process will take a lot of time. If the DOL wishes to amend the regulations supporting the FLSA, it must first propose rule changes, then entertain a public comment period, then, as necessary, tweak the changes, before finally implementing them.

Bottom line: don't expect much in the way of change to the FLSA anytime soon.

What can employers do now to protect themselves?

However, news like this, together with the growing trend in wage-and-hour claims, should serve as a wakeup call to employers. Consider taking some proactive steps, such as a retaining outside counsel to perform a wage-and-hour audit, to spot issues now, limit exposure, and reduce the risk of future litigation.

UPDATE: The SHRM A-Team has released this update on the proposed changes to the FLSA.

March 13, 2014

What the EEOC wants companies to know about social media and employment discrimination

socialthumbup.jpgYesterday, the United States Equal Employment Opportunity Commission held a public meeting at which it discussed, well, you read the lede. Don't miss this one employers; the full 411 is after the jump...

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Continue reading "What the EEOC wants companies to know about social media and employment discrimination" »

March 12, 2014

FACT OR FICTION: An FMLA-eligible employee can decline FMLA leave

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."

One of your FMLA-eligible employees walks into HR one day and says that she has a serious health condition and would like to take time off to treat her injury. However, the employee, who has paid time off banked away, says that she'd like to dip into her bank of PTO and exhaust that without using any of her 12 weeks of FMLA.

Can your employee affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection?

Answer: Yes*

Indeed, this recent Ninth Circuit decision held exactly that.

So what's with the asterisk? My FMLA blogging buddy Jeff Nowak, in this post at FMLA Insights, believes that the Ninth Circuit's decision could ultimately reflect the minority view from the courts:

To be candid, my recommendation is to ignore the [Ninth Circuit] decision and designate the absence as FMLA leave if it indeed qualifies as such. For me, the FMLA regulations are clear. At 29 C.F.R. 825.301(a), the DOL tells us, "Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave]." There is nothing in this regulatory provision to suggest that the employee can influence this process. To the contrary, the regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason.

Ok. Maybe the answer isn't really clear-cut. However, one thing is: if the employer does want to designate leave as FMLA leave, the regulations require that it serenade me with Chevelle notify the employee.