Welcome Pennsylvania and New Jersey employers.

Settle in and read on for easy-to-navigate, clear and concise summaries of the employment-law landscape in PA and NJ. Plus, we highlight the latest legal trends and changes in the law. You can even improve the way you and your employees conduct business with our featured guest commentary and insights from other management-side employment lawyers and human resources professionals.

This isn't your average blog; this is The Employer Handbook. Read it cover to cover.

November 1, 2013

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

Fact or Fiction?That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post."

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

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

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

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

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

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

October 31, 2013

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

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What else did you expect?
(Haters can unsubscribe)


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

(The answer is yes).



Image credit: @MLB on Twitter

October 30, 2013

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

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

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

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

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

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

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

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

October 29, 2013

Philadelphia bill would require companies to accommodate pregnant employees

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

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

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

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

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

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

October 28, 2013

Facebook photo gets female employee fired; male employee merely reprimanded

Thumbnail image for facebutton.pngOver the weekend, I read this article about Laraine Cook, a girls basketball coach at a high school in Idaho, who lost her job, apparently after her school learned about a photo on her Facebook page that showed her boyfriend touching her chest.

What struck me as interesting is that Ms. Cook's boyfriend is also her co-worker, varsity football coach Tom Harrison.

And what struck me as even more interesting is that, while Ms. Cook lost her job, Mr. Harrison was merely disciplined.

Were you thinking gender discrimination? Because the thought did cross my mind.

But, as employment lawyers, business owners, managers, and HR professionals, we've all been in situations in which one event results in discipline for two employees. And there are a variety of reasons why that discipline may be uneven. Here, Ms. Cook may have more prior infractions. The article discussing the incident also indicates that Mr. Harrison has won 10 state championships and was inducted into the Idaho High School Football Hall of Fame in 2000. So, the school may have been more inclined to cut him some slack. And that has nothing to do with gender.

However, let's face it, in this particular instance, there is one reason -- one word -- that we're hearing about an incident involving two teachers in Idaho: Facebook.

Question for you: Is uneven discipline relating to a Facebook-related event the exception to the rule? That is, if a similar Facebook incident occurred in your workplace, knowing that it may draw media attention, would you be more inclined to view the incident in a vacuum and discipline both employees equally?

Let me know in the comments below.

October 25, 2013

How not to respond when an employee complains about sexual harassment

If true, well then, good gawd, this!

October 24, 2013

Court rules that company need not allow mass unscheduled prayer breaks

coexist.jpgWe're talking religious accommodations here at the ole Handbook. 

Last week, it was the Mark of the Beast. Before that, we explored Ramadan bagel parties

Today, we're sticking with the Ramadan theme. Unfortunately, I don't know any Ramadan tunes to soundtrack this post. So, let's just go with Christian rock.

Now, back to Ramadan. In EEOC v. JBS USA, LLC, several Muslim employees at a meatpacking plant argued that their employer engaged in religious discrimination when it failed to allow them to take unscheduled prayer breaks. Specifically, Muslim representatives told JBS that the Muslim employees "have to pray within 10 minutes of sunset and at the most 15 minutes after sunset." JBS responded that it could not relieve 200 employees within a 10-minute window because of safety and quality concerns created by such an accommodation.

To establish religious discrimination for failure to accommodate, an employee must demonstrate that he or she (1) has a bona fide religious belief that conflicts with an employment requirement, (2) informed the employer of this belief, and (3) was disciplined for failing to comply with the conflicting requirement. The burden then shifts to the employer to show that the requested accommodation would have caused it undue hardship. This can be shown in one of two ways: added cost to the employer or an imposition on co-workers.

So, mass unscheduled prayer breaks? I'm thinking this may cause an undue hardship. Amirite, United States District Court for the District of Nebraska?

The evidence demonstrates that this accommodation would have imposed more than a de minimis burden on JBS, as well as on co-workers...The evidence demonstrated that extra employee breaks could have an adverse effect on food safety. Safety concerns are highly relevant in determining whether a proposed accommodation would produce an undue hardship on the employer's business....The evidence demonstrates that unscheduled breaks in the manner proposed by the Muslim employees also would have imposed more than a de minimis burden on non-Muslim co-workers. Such unscheduled breaks would have required a supervisor, lead worker, trainer, or coworker to fill in for the employee leaving the line. The substitute, therefore, would not be performing his or her own job while covering for the absent employee.

Yes, while the threshold for establishing something more than a de minimis burden on the company or co-workers is rather low, just be careful about denying accommodations to one religion, while allowing them to another. That's an easy way to find yourself on not only the receiving end, but also the losing end of a religious discrimination lawsuit

October 23, 2013

New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers

If only I had a hot tub time machine, I would have gone back a day and a half and scooped Phil Miles at Lawffice Space and posted "New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers" before he did.

Except I didn't.

So read his post entitled "New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers." It's really good.

Lesson learned. Now, I'm on my game! So, tonight, my marching band and I are going to do an original tribute to Michael Jackson at halftime of a local high school football game. So, I'll post that here tomorrow.

Wait, WTH!

October 22, 2013

New NJ bill targets pregnancy and childbirth discrimination

New Jersey is the home of deep fried hot dogs and the Law Against Discrimination, one of the most employee-friendly anti-discrimination statutes in the country. Here, pregnant employees can order a ripper with relish at Rutt's Hut, but, somehow, are not entitled to preferential leave treatment in the workplace.

However, a new bill pending in the NJ Senate would change all that.

Not the hot dogs, silly. They rule. You know what doesn't rule? Leaving a quart of Rutt's Hut relish in the backseat of your buddy's car overnight during a high-90s Summer heat wave. Sorry, dude.

But about that bill. Christina M. Michelson at BusinessLawNews.com has the scoop:

Under the proposed legislation, a woman affected by pregnancy cannot be treated, for employment-related purposes, in a manner less favorable than other persons not affected by pregnancy but similar in their ability or inability to work. The proposed amendment to the LAD specifically requires employers to make available reasonable accommodation for pregnancy-related needs when requested by the employee with the advice of her physician. It also prohibits the employer from penalizing the employee in terms, conditions or privileges of employment for using the accommodations or, when accommodations are not feasible, for taking time away from work required by the pregnancy, as certified by a physician of the employee taking into account the condition of the employee and the job requirements.

You can view a copy of the proposed legislation here.

October 21, 2013

Nearly half of employers investigate job applicants online

onlinesearch.jpg

This according to a CareerBuilder.com survey (here) released last week. 

Of the 2,775 hiring managers polled, almost half (48%) responded that employers will use Google or other search engines to research candidates. Nearly the same number (44%) will research the candidate on Facebook. Just over one quarter (27%) will monitor the candidate's activity on Twitter. 23% will review the candidate's posts or comments on Yelp.com, Glassdoor.com or other rating sites.

The survey cites these statistics as a way to encourage job seekers to keep their online personas clean from digital dirt. So, I'll take a different approach and offer some tips for employers:

  1. Employers are not required to conduct an online background check of job applicants. If you do, it's generally best to avoid demanding that applicants disclose social media usernames and passwords. This approach is illegal in many states and is likely to rub your candidates -- the ones you want to like working for you -- the wrong way.

  2. Wait until after the interview and before making the job offer to run the online search. This will save you time by minimizing the number of searches.

  3. If you use a third party to search, remember that the Fair Credit Reporting Act applies. And if you don't, it's probably a good idea to inform your applicants anyway that you will be vetting them online.

  4. Have someone other than the decisionmaker search. What the decisionmaker doesn't know (e.g., the applicant's national origin, disability, pregnancy, sexual orientation) won't factor into the employment decision. Instead, have someone else research the applicant online, redact all of the protected-class information, and provide the decision maker with only the red flags that should influence an employment decision (hate speech, productivity issues, drug use, etc.)

  5. Give the applicant a chance to explain. Not everything you read online is true. Other information can be taken out of context. If you find something questionable about an applicant, allow that person an opportunity to address it before making an employment decision.

October 18, 2013

Does the FLSA require paying employees who wait in security lines at work?

True story.

Back in 1999, when I was in law school in Washington DC, I went with my buddy to see The Matrix at the Uptown Theater in Cleveland Park. At the time, the Uptown was one of the best places around to watch an action flick. And what better movie to see than The Matrix -- one of my top 10 movies of all time.

WTH does this have to do with the Fair Labor Standards Act? 

Uh, duh...

[Humor me and click through, would ya?]

Continue reading "Does the FLSA require paying employees who wait in security lines at work?" »

October 17, 2013

An employer is not required to change supervisors as an ADA accommodation

yellingboss.jpgWork got you anxious and depressed? Well then, you may be disabled under the Americans with Disabilities Act. But if you think that the ADA requires your employer to transfer you away from the supervisor who is giving you a hard time, think again.

In Lu v. Longs Drug Stores (opinion here), Ms. Lu claimed that her supervisor discriminated against her based on her national origin and then retaliated against her after she complained. She further alleged that the abuse caused her to develop anxiety, depression, shingles, and diabetes.

On Ms. Lu's behalf, her treating physician requested that the employer transfer her away from her supervisor. The employer declined and, ultimately, terminated Ms. Lu after she missed over a year of work to treat for her various disabilities.

Ms. Lu sued then under the ADA only, claiming that the employer had failed to reasonable accommodate her. The employer admitted that Ms. Lu was both disabled and had suffered an adverse employment action. However, it argued that the transfer request was unreasonable because the law does not require an employer to transfer a disabled employee away from a supervisor.

The court agreed:

The law forecloses Ms. Lu's arguments that a transfer to a different Longs store would have been a reasonable accommodation in this case.... Regardless, ... there is no question of fact that the communications from Dr. Wu failed to convey to Longs that Ms. Lu could return to work if she obtained the accommodation of a transfer.... Accordingly, a transfer would not have been a reasonable accommodation in the specific circumstances of this case because there is no evidence to suggest that a transfer would have allowed Ms. Lu to return to work and perform the essential functions of her job.

Now, while the employer here prevailed on the ADA transfer issue, it may have dodged a bullet when Ms. Lu elected not to pursue claims of national origin discrimination and retaliation.

Don't forget that while the ADA may not require a transfer away from a supervisor, Title VII charges employers with taking steps that are reasonably designed to end discrimination in the workplace. One way this can be done is by transferring the harasser. Another is by transferring the victim.

So, slow down and remember the interplay between anti-discrimination laws...

October 16, 2013

That's what they said: Social media and the workplace and the lawsuits

theysaid.jpgOne social media-related post in October. One may be good enough for the Red Sox -- eat it, Detroit -- not here.

So, with a little help from my friends, I've got three stories on the the impact that the technology in the workplace has on litigation proceedings.

Over at the Technology & Marketing Law Blog, Venkat Balasubramani writes here about a recent decision in which a court found that a passenger's social media rant against and airline employee may not have been defamation, but it was enough to create a claim of "false light."

Molly DiBianca at the Delaware Employment Law Blog (here) details a case in which the discoverability email is at issue. There, the court found that the employer defendant had to preserve relevant email from the personal email accounts of three of the company's former officers, because, the company should have known that these individuals were conducting company business from these personal email accounts.

Finally, we have this complaint I saw filed in Maryland federal court last week, where the plaintiff alleges that his former employer violated his First Amendment rights when it fired him for what the plaintiff described as "a satirical comment concerning assault weapons legislation" on his Facebook page. Specifically, the plaintiff wrote, "My aide had an outstanding idea .... Let's kill someone with a liberal ... then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal with another liberal ... its almost poetic..." He then "liked" a Facebook friend's response, which read, "But ... was it an '[assault] liberal'? Gotta pick a fat one, those are the 'high capacity' ones. Oh pick a black one, those are more 'scary.' Sorry had to perfect on a [sic] cool idea!"

Can't wait to see how that one turns out.

October 15, 2013

EEOC sues over failure to accommodate the Mark of the Beast

Play us in Keith Richards...

Last month, the EEOC announced here that it had sued two companies, claiming that they violated federal law by failing to accommodate an employee's religious beliefs:

According to the EEOC's lawsuit, Beverly R. Butcher, Jr. had worked as a general inside laborer at the companies' mine in Mannington, W.V., for over 35 years when the mining companies required employees to use a newly installed biometric hand scanner to track employee time and attendance. Butcher repeatedly told mining officials that submitting to a biometric hand scanner violated his sincerely held religious beliefs as an Evangelical Christian. He also wrote the mining superintendent and human resources manager a letter explaining the relationship between hand-scanning technology and the Mark of the Beast and antichrist discussed in the Book of Revelation of the New Testament and requesting an exemption from the hand scanning based on his religious beliefs.

In the complaint filed in federal court in West Virginia, the EEOC claims that the two employers refused to consider other ways to track Butcher's time and attendance, "such as allowing him to submit manual time records as he had done previously or reporting to his supervisor, even though the mining company had made similar exceptions to the hand scanning for two employees with missing fingers."

This case serves as a reminder for employers that even though an employee's religious beliefs may seem strange, as long as those beliefs are sincerely held, the law requires that employers accommodate them absent undue hardship.

(h/t Donna Ballman @employeeatty)

October 14, 2013

NY Court: Indefinite leave may be a reasonable accommodation for disabilities

fmla.jpeg

New York City.

As Jay-Z and Alicia Keys sang, it's the "concrete jungle where dreams are made of. There's nothin' you can't do."

That includes taking indefinite leave as a "reasonable" accommodation under the New York City Human Rights Law.

Yep. That's what the song means. Trust me. It's in the liner notes.

HOVA foreshadows this recent decision, in which the NY State Court of Appeals held that leave for an indefinite period of time may, indeed, be a reasonable accommodation -- unless the employer can show that it would cause an undue hardship.

Richard Cohen at the Employment Discrimination Blog wrote here about why this ruling will leave a worse taste in employer's mouth than the City's froo-froo salsa: 

This ruling, although virtually preordained by the City law's edict that it be construed "broadly in favor of discrimination plaintiffs" to effectuate the law's "uniquely broad and remedial purposes" (as this Court reiterated) is nonetheless a blow to employers who have relied upon interpretations of New York state and federal statutes which have found that an indefinite leave is not a reasonable accommodation.

Now, courts agree that the Americans with Disabilities Act, which contemplates a number of possible forms of reasonable accommodation, doesn't go so far as to include indefinite leave among them. However, employers in NYC and in other localities with disability discrimination laws more expansive than the ADA shouldn't dismiss an indefinite leave request out of hand.