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.

January 30, 2014

Employee's sexual harassment claims advance to trial because boobs


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.


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.

January 16, 2014

And we have an early contender for worst employment-law decision of 2014


That may be sugar coating it a bit.

A county employee, who applied for a lateral transfer, and ultimately received that transfer, was able to convince two judges on a federal appellate court that the transfer was discriminatory.

That's right. An employee may have a discrimination claim for receiving the specific transfer he requested.

Here's what the two-judge majority wrote in this opinion:

[W]e conclude that under certain circumstances, a voluntary or requested transfer may still give rise to an adverse employment action...We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the "conditions of the transfer" would have been "objectively intolerable to a reasonable person."

Let me stop there for a second to add that the plaintiff in this case testified that he viewed the transfer as improving his potential for career advancement. Still, that didn't appear to matter much to the Sixth Circuit Court of Appeals:

Indeed, an employee's opinion of the transfer, whether positive or negative, has no dispositive bearing on an employment actions classification as "adverse."

For what it's worth, one judge did dissent. I'm on board with his reasoning:

Deleon voluntarily applied for the job with full knowledge of its pros and cons, making it difficult to fathom how he could premise a claim of retaliation on the transfer alone. A retaliation claim requires the employer to do something bad to the employee--something that might "have dissuaded a reasonable worker from making or supporting a charge of discrimination." That concept cannot be bent and stretched to cover an employer's decision to grant an employee's request for a transfer. No reasonable employee in Deleon's position would have interpreted the transfer as an act designed to prevent him from exercising his rights against anti-discrimination.

And, thankfully, I practice in the Third Circuit Court of Appeals, where the employers I represent are not bound by the majority's decision here.

For more on this decision, check out Jon Hyman's post at the Ohio Employer's Law Blog.

January 15, 2014

GUEST POST: HR Department of One

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Holly DePalma. Holly is Director, HR Services at MidAtlantic Employers' Association, a single source for HR services, delivering responsive, practical solutions to its members.

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

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Continue reading "GUEST POST: HR Department of One" »

January 13, 2014

Joely Caroline Meyer

Joely Caroline Meyer
Born January 10, 2014 (7 lbs., 3 oz.)
Joely.jpg"Dad, give me at least 24 hours out here before asking me to guest blog, would ya? Yeesh..."

MeyerFamily.jpg"Last time, we gave you 200 words on Sesame Street, and you paid us in Cap'n Crunch. We're calling the DOL. And organizing!"
January 10, 2014

Maybe Facebook can't tell you if a candidate is worth hiring, after all

facebutton.pngAccording to a recent study soon to appear in the Journal of Management, not only is Facebook a horrible predictor of how younger recruits will perform for your business -- there is absolutely zero correlation between Facebook activity and job performance -- but those who rely upon Facebook to help judge potential younger recruits, are more likely to disqualify African-American and Hispanic candidates, in favor of Caucasian Facebook users.

Kashmir Hill details the study here in a recent article on Forbes.

So, if failing to meaningfully distinguish between younger job candidates, while increasing your odds of being sued for disparate-impact discrimination appeals to you, well then, have at it hoss!

January 9, 2014

ADA leave requests may be verbal or written, just not telepathic

Sorry, Aquaman. You're SOL, son.

But Aquaman does love to get down to MGMT, I'm told. So here you go...

Same goes for the plaintiff in this case -- the telepathy part, not MGMT -- in which the employer had a leave policy which dictated that employees may take up to six months of leave if unable to perform his/her job with or without reasonable accommodation. After that, it's sayonara, unless prohibited by law, or if the employee requests a leave extension.

In this particular case, the plaintiff was out on leave for back surgery. The plaintiff's doctor told him that he probably wouldn't return to work for a year. However, the plaintiff never informed either the employer or the third-party administrator. 

The plaintiff did not request to extend his medical leave of absence in accordance with company policy. He also did not ask to return to work in a different position because he knew his doctor had not released him to work. 

Ultimately, the plaintiff's doctor did clear him to return to work, at which time the plaintiff returned with note in hand. Unfortunately, he came back three days after his six month leave expired. His company had already followed its own policy and terminated the plaintiff immediately after he failed to return at the six-month mark. 

The Court ruled in favor of the employer on the plaintiff's failure-to-accommodate claim under the Americans with Disabilities Act, because the employer followed its own policy and was under no obligation to reconsider its decision when the plaintiff reappeared in the workplace three days after the six month deadline. 

So, learn from this case and practice two takeaways:

  1. Have an ADA policy that emphasizes that the onus is on the employee to communicate the need for leave, or some other form of accommodation under the ADA.

  2. Stick to the policy and limit the number of exceptions. Exceptions water down the policy and lead to lawsuits.
January 8, 2014

GUEST POST: Flexible Work Location for FLSA-Exempt Employees

guestblogger.jpgToday, we have a guest blogger at The Employer Handbook. It's Johanna Harris. Johanna has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee's Guide to Advancement in the Workplace, is a basic primer on HR law and personnel policies.

Flexible work arrangements take many forms. Arranging flexible hours and schedules can be fairly straightforward and is often dictated by business needs. Flexibility of work location, however, is more difficult to manage. After the jump, this guest post addresses the issues raised by allowing employees to work at locations other than their assigned offices.

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

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Continue reading "GUEST POST: Flexible Work Location for FLSA-Exempt Employees" »