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.

October 9, 2013

Employee -- a grown man for God's sake -- claims he was fired for being a brony

Readers: A brony is a male fan of the children's television show My Little Pony.

(This is the part where you let everything that you've read thus far sink in, as you watch this clip, close your office door, and laugh hysterically. Go ahead. It's ok).

According to Gawker, the brony posted to Reddit that his co-workers gave him a raft of crap for setting his office computer screensaver to Applejack, a My Little Pony character.

(Go ahead. Really, it's ok to laugh).

After getting called into his boss' office and told to change his screensaver because, you know, it's creepy as all hell when a man in his 30s has a My Little Pony screensaver on his office computer, the former employee relented.

That is, until a few months later when, on Take Your Child to Work Day, the brony saw that the boss's daughter was wearing a Rainbow Dash t-shirt, and commented to her that he likes the shirt. (Rainbow Dash is also a My Li--- yeah, you get the idea).

Eventually, the brony claims he was was fired for being a brony, but not before calling HR to obtain some answers surrounding his termination.

Could you imagine being on the receiving end of that call? I bet there's nothing in that PHR certification of yours to prepare you for that one, is there?

Anyway...

Legal "Brony discrimination" or unlawful sexual stereotyping?

There is a serious point to this post. 

*** searches desperately for serious point to an otherwise gratuitous post ***

As I've noted before, Title VII does make it unlawful to stereotype based on a person's gender non-conforming behavior. So, taking the brony's version of the facts as true, would he have been fired if he were a woman? I'd like to think yes and, therefore, what happened here was perfectly legal. Because, damn, what grown person -- male or female -- would think it professional to have a My Little Pony screensaver at work.

But, then again, what do I know? I have an Allen Iverson fathead in my office and heard about this brony story listening to Howard Stern on the ride back from speaking at an HR conference yesterday. So that, plus this blog, makes me a bit of an enigma and probably the wrong person to ask.

What do you think? Did the brony's former employer break the law? Or was the employer justified in firing the brony? Let me know in the comments below.

October 7, 2013

Court destroys my "Ravishing Rick Rude" theory of same-sex harassment

Cut the music.

A little over a year ago, I wrote here about a steel worker named Kerry Woods. Unfortunately for Mr. Woods, he was on the receiving end of a constant barrage of "raw homophobic epithets and lewd gestures" from his supervisor. Notwithstanding, the Fifth Circuit Court of Appeals tossed out a $500K jury award for Mr. Woods, holding that Mr. Woods's same-sex sexual harassment claims failed because he failed to satisfy the Supreme Court's test in Oncale v. Sundowner Offshore Services, Inc.

Oncale was another same-sex harassment case involving employees at an oil rig. In Oncale, the high court held that a jury may infer that same-sex harassment occurred because of sex when the plaintiff can produce:

  1. credible evidence that the harasser was homosexual;

  2. evidence that makes it clear that the harasser is motivated by general hostility to the presence of the same sex in the workplace; or

  3. comparative evidence about how the alleged harasser treated members of both sexes in the mixed-sex workplace.

As Mr. Woods failed to satisfy any of the three Oncale elements, the Fifth Circuit overturned the jury award in his favor. This led me to dork out by likening employment law to wrestling develop the Ravishing Rick Rude / Adorable Adrian Adonis test: "Put simply, if the plaintiff is stereotypically masculine, like Rick Rude, a theory of sexual stereotyping will fail and so will a claim under Title VII."

Last week, the Fifth Circuit Court of Appeals (here) reconsidered, reversed itself and, in doing so, gave my theory the rude awakening. First, it held that a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping. Further, it recognized that the Supreme Court did not intend for its Oncale three-part test to be exclusive; but rather, illustrative. That is, to prevail on a same-sex sexual harassment claim, a plaintiff need only show that his harasser stereotyped him as "insufficiently masculine."

The recent opinion provides further reason for employers not to tolerate offensive remarks of any sort in the workplace.

Now, hit the music.

.
October 4, 2013

Court holds that anxiety from possibly getting fired is an ADA disability.

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Let me tell you about a teacher in South Dakota. In 2010, she received a letter communicating concerns about her performance. Subsequent evaluations of the teacher's classes noted several deficiencies. So, the school placed the teacher on a performance improvement plan.

It was right around this time that the teacher met with a physician's assistant, who diagnosed the teacher with "anxiety and depression, likely stemming from her concerns about possibly getting fired." 

So, at the teacher's request, the physician's assistant wrote a letter to the school seeking a laundry list of accommodations, including:

  • restructuring her job to include only essential functions if stressful situations continue to negatively impact her
  • encouraging her to walk away from stressful confrontations with supervisors; and
  • providing coverage if she becomes overwhelmed with stress from the work environment and needs to leave

The school responded to the full list of accommodation requests, agreeing to provide some, rejecting some, and requesting clarification as to others.

A few months later, after the PIP ended, the school recommended against renewing the teacher's contract, delivering to her a "notice of his intent to recommend nonrenewal." Shortly after receipt of the notice, the teacher took a medical leave of absence for the rest of the school year, after which her contract was not renewed.

The teacher then sued for discrimination under the Americans with Disabilities Act.

What is a disability under the ADA?

The ADA requires employers to accommodate a disabled employee if, doing so, will allow that employee to perform the essential functions of her position without resulting in undue hardship for the employer. An employer who fails to discharge these obligations has violated the law. 

However, to make out a "failure to accommodate" claim, the employee most first establish that she has a "disability." One example of a disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities of such individual. Major life activities include, but are not limited to, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, . . . learning, reading, concentrating, thinking, communicating, and working." 

This includes conditions arising from the fear of possibly getting fired.

The burden of proving a disability is rather light. But could it even include anxiety and depression about possibly getting fired? According to this recent federal court opinion, yes:

When asked what activities of daily living Huiner [the teacher] was unable to perform, Buman [the physician's assistant] stated she was unable to maintain her nutritional needs, had difficulty caring for her children, and had sleep pattern deficits. The medical records from Huiner's appointments with Buman correspond to Buman's testimony. Huiner's difficulty maintaining her nutritional needs is further evidenced by her significant weight loss during that time period; she lost over thirty pounds from September 7, 2010, to June 29, 2011. Based on this evidence, the court finds Huiner has come forth with sufficient facts to make a prima facie showing that her anxiety constitutes a disability under the ADA. This is especially the case when considering the relaxed standards imposed under the ADAAA for determining what constitutes a disability.

Hear that? It's the sound of litigation floodgates opening. 

And my pockets getting fatter.


October 3, 2013

Fan gets fired for playing hooky to maintain his Yankee Stadium attendance streak

yankeestadium.jpgYou're probably thinking to yourself, "What kind of person cares that much about going to a baseball game that he would risk losing his job over it?"

The guy who hasn't missed a Yankees home game for 38 years.

According to this CBS2 New York Report, Joseph Neubauer, who hadn't missed a Yankees home game since the 1970's, was fired from his position because he didn't want to mess up an attendance streak at Yankee Stadium.

It all went down last year. Mr. Neubauer, who worked for the City of New York, was scheduled to attend a night game at Yankee Stadium. Unfortunately, the game was rained out and rescheduled for the following afternoon. Mr. Neubauer, who had run out of paid time off, opted to skip work to keep his attendance streak alive.

And, for that, he got fired.

Now, before you start tuning up the violin, the CBS2 story further notes Mr. Neubauer's attendance issues went far beyond one unexcused absence:

A Judge suspended him for 60 days without pay in 2011 for going to Phoenix for the All-Star game even though his vacation request had been denied.
A year prior to that Neubauer had been suspended for 25 days after calling out sick for 13 Yankee games. Despite his problems in the past, Neubauer said he just wants his job back.

Well, at least now, nothing stands in the way of Mr. Neubauer attending the Yankees' playoff games this season. 

Oh...

October 2, 2013

New PA bill would make the Commonwealth a right-to-work state

righttowork.jpgBefore I get into the this new bill, let's clear up a popular misconception: David Hasselhoff lives in my basement rent-free right-to-work means that an employee can be fired at any time for any non-discriminatory reason. No, dudes. That's called at-will employment.

Right-to-work laws give individual employees in a unionized workplace the right not to join or financially support the union. 24 states, plus Guam, have passed right-to-work laws. Absent a right-to-work law, all employees in a collective bargaining unit must join the union and pay union dues.

And Pennsylvania could be next.

Here is a copy of the Freedom of Employment Act. This bill, if passed, would prohibit the following conditions of employment:

  1. Membership.--No person shall be required to become or remain a member of a labor organization as a condition of employment or continuation of employment.

  2. Abstention from membership.--No person shall be required to abstain or refrain from membership in a labor organization as a condition of employment or continuation of employment.

  3. Dues, fees and charges.--No person shall be required to pay or refrain from paying any dues, fees or charges of any kind to a labor organization or to a charity or other third party in lieu of the payments to a labor organization as a condition of employment or continuation of employment.

Any violation of the law would be considered a misdemeanor of the third degree, punishable by a fine of not more than $1,000 or up to six months in the hoosegaw, or both. Each day of a continued violation is a separate offense.

Governor Corbett has said that he would sign right-to-work legislation if it crossed his desk.

Earlier this year, six Republican state representatives each introduced right-to-work variants, none of which gained any traction.

October 1, 2013

Woman's Kanye-inspired "take this job and shove it" video goes viral. Would YOU hire her?

Here's the video:



Here's the question:


Would you hire this woman? Tell me why or why not in the comments below.


UPDATE: What's good for the goose, is good for the gander.

(h/t Mashable.com)

September 30, 2013

The golden rule of accommodating employees under the ADA

The Golden RuleLast week, I talked about reasonable accommodations under the Americans with Disabilities Act, and the importance of having an open-minded, respectful conversation with a disabled employee who requests an accommodation to perform the essential functions of the job. Ultimately, as I've discussed before, the employer (and not the employee) may insist upon a particular accommodation as will enable the employee to perform the essential functions of his job.

But is that always the best move?

Consider this recent case, in which a diabetic service technician requested that his employer provide him with an air conditioned vehicle to keep his insulin cold. Providing an air conditioned vehicle seems pretty reasonable to me. Instead, however, the company had a policy, which allowed all employees "take breaks at restaurants or other establishments to cool off on hot days." Thus, the company claimed that this policy would be a accommodation and; therefore, the employee should not have refused it.

And maybe it is reasonable. Or maybe the policy, as applied to this diabetic service technician is unreasonable because (1) he cannot wait to take breaks as long as other employees are able to; (2) there might not be places to cool off close to a particular assignment location; and (3) accidents or constructions may delay reaching an air-conditioned place. That's what a jury will have to decide after the court denied the defendant's motion for summary judgment on the plaintiff's failure-to-accommodate claim.

So, just because an employer has an existing policy or, otherwise, can insist upon a particular accommodation, doesn't mean that it should. Instead, when receiving an accommodation request, imagine that it's coming from a member of your family. If the accommodation you propose is something that you wouldn't dream of providing to a family member, then you should probably come up with something else.

September 27, 2013

Telling an employee to "focus on her health" is not disability discrimination

getwell.png

Rather, it's just being -- oh what's that word -- 'human.'

Like in this case, in which a supervisor with breast cancer was disciplined -- yes, folks, you can reprimand an employee with an ADA "disability" or FMLA "serious health condition" -- for allegedly calling other employees names such as "idiot," "moron," and "dumbass;" and also striking a few of them on the head for good measure. The supervisor-plaintiff was then demoted and given a pay cut commensurate with the other deputy clerks at her position. When told of the demotion and pay cut, her boss also mentioned that "she should probably focus on her health rather than worry about the stress of supervising people."

My heavens! I've caught the vapors. A boss who expresses concern for the welfare of his employees. Sounds like a terrible place to work!

Without the sarcasm, the court determined that suggesting to the supervisor-plaintiff that "she should probably focus on her health" is not disability discrimination:

The fact that Defendant Brown mentioned Plaintiff's ability to focus on her health as a potential positive side effect of no longer having a supervisory role does not require the conclusion that Plaintiff's FMLA leave or her disability were reasons for her demotion. "[G]eneral, vague, or ambiguous comments do not constitute direct evidence of discrimination because such remarks require a factfinder to draw further inferences to support a finding of discriminatory animus." As pointed out by Defendants, this general statement is just as likely to be construed as conciliatory as discriminatory.

We don't have to walk around the office on eggshells, worried that if we ask a co-worker with a sniffly nose how she's feeling, that she's going to document the comment and later use it against us in a subsequent discrimination action. Although, I've been known to give the stink-eye to co-workers who read my blog posts and ask me how much I has to drink the night before.

Look guys, who among us, doesn't enjoy two Baybreeze boilermakers while blogging in bed after a long day? Pardon me for being civilized.

Now, if you'll excuse me, I have some Keeping Up With The Kardashians to watch.

September 26, 2013

6 keys to having your age discrimination release hold up in court

You're about to have a reduction in force and you're going to offer a severance package to those effected: one week of salary for every year of service in exchange of a full release of all claims. If one or more employees affected by the reduction in force is 40 years of age or older, you'd better make sure that your release language complies with the the Age Discrimination in Employment Act ("ADEA"), as amended by the Older Workers Benefit Protection Act ("OWBPA"). Unlike other general releases, by statute, an ADEA/OWBPA release must have certain required elements for it to be effective.

burningmoney.jpgOne employer, in this recent case, learned the hard way. The employer RIFed the plaintiffs, but failed to inform them "about the group of employees who were being terminated as a result of the reorganization or about employees who were not selected for termination," as the law requires. Consequently, the age discrimination release that the plaintiff signed wasn't worth the paper it was printed on.

Kinda like this blog.

If you are going to lay off anyone over the age of 40, to obtain a release of potential age discrimination claims, you must obtain a knowing and voluntary waiver. This means, at a minimum, your release must include the following six elements:

  1. it must be easy to understand;
  2. it must refer to claims under the ADEA/OWBPA
  3. the employee cannot waive rights or claims that may arise after the date the waiver is executed;
  4. the employee waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled (i.e., you have to incent the employee to agree to the release);
  5. the employee is advised in writing to consult with an attorney prior to executing the agreement; and
  6. the employee has at least 21 days (45 days for a RIF) within which to consider the agreement, and 7 days after signing the agreement in which to revoke it.

Plus, in a RIF situation, the employer is required to provide the following information to the
affected employees: (a) any class, unit, or group of individuals covered by such RIF, any eligibility factors for such RIF, and any time limits applicable to such RIF; and (b) the job titles and ages of all individuals eligible or selected for the RIF, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the RIF.

Unless, you've done this several times before, consider engaging an employment lawyer to walk you through the process. Otherwise, that severance you pay may be used to subsidize a subsequent age discrimination claim against your company.

For more on age discrimination releases, read the statute and review the EEOC guidance.

September 25, 2013

Employee asks court to stop company from making her work Saturdays

Sounds like someone's taken a page out of the Lionel Hutz playbook.

Patrice Williams is a Seventh-Day Adventist. Seventh-Day Adventists believe that the Sabbath runs from sundown Friday to sundown Saturday. Because of her sincerely-held religious beliefs, Ms. Williams requested that her employer not require her to work during the Sabbath, to which the employer allowed her to do so through a combination of swapping shifts with co-workers, using vacations days, using sick days, scheduling doctors appointments, and other means.

But, that wasn't good enough for Ms. Williams. 

So, she sued, asking that a federal court require her employer not to schedule her for work on the Sabbath, ever. She even sought two preliminary injunctions, vis-a-vis two motions creatively styled "Motion for a Temporary "Real" Sabbath Accommodation" and "Motion to Cease and Desist Denial of Regularly Scheduled Off Days and Vacation Days."

Last week, the court, in this opinion, denied both motions, finding it likely that Ms. Williams would lose her lawsuit altogether:

Plaintiff conceded at the evidentiary hearing and in her submissions to the Court that there is currently a shortage of crane operators qualified to operate her crane within her department. Plaintiff proposes that Defendant could solve this problem and never schedule her to work on the Sabbath by removing employees who are qualified to operate her crane from other departments. The issue with this solution is that Plaintiff is asking Defendant to remove individuals with more seniority from their preferred positions in order to accommodate her religious practices. If a reasonable accommodation requires a deviation from an established seniority system, courts have generally considered the accommodation to constitute undue hardship.

Unlike failure-to-accommodate claims presented under the Americans with Disabilities Act, where the employer's burden of proving undue hardship is rather high, in the context of religious accommodations, it's low. The slightest hardship, anything more than a small cost, will suffice.

September 24, 2013

Court ok's firing EAP employee upset with company's workplace investigation

J. Neil DeMasters worked as an EAP counselor for Carilion Clinic. During the course of his employment, a co-worker came to him complaining to have been a victim of sexual harassment. Mr. DeMasters relayed his co-worker's complaint to HR. Then he was fired.

Does Mr. DeMasters have a possible retaliation claim? Nope.

DeMasters' statements to Carilion's human relations department qualify as protected oppositional conduct. There are no allegations in this case that DeMasters played any role in Doe's sexual harassment complaint beyond counseling Doe through the EAP and relaying Doe's complaint to Carilion's human relations department. Merely ferrying Doe's allegations to Carilion's human relations department is in no sense oppositional, and DeMasters did not engage in protected activity in so doing.... DeMasters intended only to relay Doe's complaints to Carilion, not voice his own opposition to any unlawful employment practice, such as the sexual harassment or hostile work environment alleged by Doe.

Even the subsequent criticism Mr. DeMasters voiced concerning the company's handling of the subsequent investigation was not enough to create a viable claim.

DeMasters' statements to Carilion that Carilion was mishandling Doe's complaints are not protected oppositional conduct. DeMasters' complaints about the manner in which Carilion handled Doe's investigation do not concern a practice made unlawful under Title VII. Because DeMasters' criticism was directed to Carilion's processing of Doe's complaints, rather than the substance of those complaints, it is not actionable oppositional conduct.

Thinking about firing the employee who is critical of the way you investigate employee complaints of harassment? Do so at your own risk. Instead, for more egregious workplace harassment complaints, consider using a trained outside investigator to look into them. It's generally money well spent. 

The case is DeMasters v. Carilion Clinic.

September 23, 2013

Does the ADA mandate transfer preferences for disabled employees?

njjug.jpg

Last Friday, I had the pleasure of speaking at the National Employment Lawyers Association - New Jersey Annual Conference.

I must admit that I was a bit leery. While it sounded legitimate enough -- they asked me to speak on a panel addressing accommodation issues under the Americans with Disabilities Act -- being the guy with The Employer Handbook blog, I half expected to be chloroformed upon arrival, and buried under a jughandle, left to be constantly trampled by folks making left turns from the right lane.

But, instead, I spoke to a sharp, engaged audience and met some wonderful people. (NJ management-side lawyers: there's a reason we get paid the big bucks. These employee-side folks don't make it easy!)

Our panel addressed a variety of different reasonable accommodations for disabled employees needing a little extra help to perform the essential functions of their jobs. While the bulk of the session focused on leave as a reasonable accommodation; specifically, how much is reasonable, we also touched upon job transfers. Here, the law is quite clear that a transfer to a vacant position for which the disabled employee is qualified is a reasonable accommodation.

However, what happens of the only open position available is one for which the disabled employee is barely qualified and you have another candidate for the same position, but with impeccable credentials? Must you accommodate the less-qualified disabled employee with the transfer, if no other reasonable accommodation is available?

*** makes sure lawyers hat is snug on head ***

The answer depends on where you operate your business.

In the Eighth Circuit (AR, IA, MN, MO, NE, ND, SD), the company may fill the position with the more qualified candidate. The same used to be true in the Seventh Circuit (IL, IN, WI), but not anymore. ADA also trumps in the Tenth Circuit (OK, KS, NM, CO, WY, UT, parts of MT and ID), and the DC Circuit.

For companies in the remaining states, your guess is as good as mine. And since I went with the Minnesota Vikings this week in my NFL survivor pool, I'm not feeling too lucky today. However, I can offer this: when discussing accommodations with employees, be respectful. It's not easy for someone with a disability to open up about their disability to anyone -- let alone their employer. And have an open-minded conversation with that employee. Work together to explore various options available. Maybe, that way, you won't find yourself in the position of having to make the difficult call on a transfer, but instead, arrive at a solution that works for everyone.

September 20, 2013

Your resume is in Klingon, plus 11 other ways not to impress the hiring manager

Last week, CareerBuilder.com released its survey and study of resume do's and don'ts. The one I received on used toilet paper was both a do-do and a don't. But, at least she used 12-point Times New Roman. Still, that didn't make the list. Here's what did...

khanmeme.jpg

How long should a resume be?
Two pages max; one page if you are a recent college grad.

Top 5 Most Common Resume Mistakes?

  1. Typos
  2. Too Generic
  3. Don't list skills
  4. Mimic the job posting
  5. Inappropriate email address

Most Outrageous Resume Mistakes

  • Resume was submitted from a person the company just fired
  • Resume's "Skills" section was spelled "Skelze"
  • Resume listed the candidate's objective as "To work for someone who is not an alcoholic with three DUI's like my current employer"
  • Resume included language typically seen in text messages (e.g., no capitalization and use of shortcuts like "u")
  • Resume consisted of one sentence: "Hire me, I'm awesome"
  • Resume listed the candidate's online video gaming experience leading warrior "clans," suggesting this passed for leadership experience
  • Resume included pictures of the candidate from baby photos to adulthood
  • Resume was written in Klingon language from Star Trek
  • Resume was a music video
  • Resume didn't include the candidate's name
  • On the job application, where it asks for your job title with a previous employer, the applicant wrote "Mr."
  • Resume included time spent in jail for assaulting a former boss

In the comments below, tell me your biggest resume pet peeve and the craziest resume item you ever read from a job applicant.

September 19, 2013

That's what they said: Facebook "Like" under the First Amendment, same-sex marriage benefits, plus a carnival

theysaid.jpgNow, where did I put the mustard for my deep fried Red Bull battered Twinkie dog? (Like I would ever use ketchup for that?!?)

While I search for the spicy brown, after the jump, I'll get you caught up on the latest employment-law news...

* * *

Continue reading "That's what they said: Facebook "Like" under the First Amendment, same-sex marriage benefits, plus a carnival" »

September 18, 2013

DOL provides guidance on home care workers and law firm internships

DOLlogo.pngI remember back in the good old days, when law-firm internships meant private jets, caviar lunches and....toilet paper? As if!.

But now, times are tougher. Some firms find themselves forced to forego paying law students in lieu of offering volunteer pro bono opportunities to enable them to receive work experience. This recent advice letter from the Department of Labor sorts out the circumstances in which not paying these interns will pass muster on the Fair Labor Standards Act.

But the DOL wasn't done there. Yesterday, it announced a final rule extending the Fair Labor Standards Act's minimum wage and overtime protections to most of the nation's workers who provide essential home care assistance to elderly people and people with illnesses, injuries or disabilities. There is also a new set of answer to Frequently Asked Questions here.