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 25, 2013

I'll take Supreme Court Justices on retaliation for $500, Alex.

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Yesterday, the Supreme Court heard oral argument in University of Texas Southwestern Medical Center v. Nassar. In this case, the Court is being asked to determine what a plaintiff's burden of proof is for a Title VII retaliation claim.

Is it mixed motive? In other words, is it enough that retaliation motivates an adverse employment action?

Or does a plaintiff have to prove that retaliation was the reason that adverse employment action was taken?

You can find a copy of the transcript from yesterday's oral argument here.

But before you pour through it, let's see how well you know your Supreme Court Justices.

Take the quiz and see if you can tell who said what during oral argument.

April 24, 2013

Congress blocks proposed ban on requests for employee social media passwords

House of RepresentativesLast week, the U.S. House of Representatives passed the Cyber Intelligence Sharing and Protection Act, better known as CISPA. CISPA provides for the sharing of certain cyber threat intelligence and cyber threat information between the intelligence community and cybersecurity entities, and for other purposes.

However, the majority vote was not without a speed bump, according to this report from Josh Wolford at WebProNews:

Colorado Democrat Ed Perlmutter attempted to tack on a provision to CISPA that would make it illegal for employers to require prospective employees to hand over their social media passwords as a condition of acquiring or keeping a job.

Perlmutter's amendment was voted down 224-189.

Sara Gates of The Huffington Post reports here that CISPA sponsor Rep. Mike Rogers called Perlmutter's proposal an attempt to kill the bill, and suggested that Perlmutter propose the amendment as standalone legislation.

Currently pending in the House is the Social Networking Online Protection Act (SNOPA). SNOPA would effectively accomplish what Perlmutter attempted to do by amending CISPA. Although six states have passed laws banning employer requests for social media passwords of job applicants, and several others have legislation pending, Congress has done little to push SNOPA along. Indeed, the same version of SNOPA was introduced in 2012, but sat dormant.

(h/t @MarkJChumley)

April 23, 2013

GUEST POST: How Tech Creates Add'l Challenges in Today's Workplace

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Noah Kovacs. Noah has over ten years experience in the legal field. He has since retired early and enjoys blogging about small-business law, legal marketing, and everything in between. He recently purchased his first cabin and spends his free time remodeling its kitchen for his family. Twitter: @NoahKovacs

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

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Continue reading "GUEST POST: How Tech Creates Add'l Challenges in Today's Workplace" »

April 22, 2013

SURVEY: Should you friend your boss on Facebook?

Thumbnail image for facebutton.pngWhen I first began drafting social media policies and offering social media training for clients, I preached that friending the boss was a bad idea. The lawyer in me was concerned for two reasons: (1) Facebook's informality would facilitate behavior from a supervisor that a company would not otherwise tolerate in the workplace; (2) if a supervisor knew about, but failed to report, employee actions on Facebook that would violate an anti-harassment policy, the company could lose a valuable discrimination defense.

What do non-lawyers have to say about friending the boss on Facebook? Find out after the jump...

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Continue reading "SURVEY: Should you friend your boss on Facebook?" »

April 19, 2013

Breaking Bad? NM is the 6th state to pass social media workplace law

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No way, Heisenberg is gonna be cool with this. Not a chance.

Earlier this month, New Mexico joined Maryland, Illinois, California, Michigan, and Utah, by becoming the sixth state to pass a law, which makes it unlawful for an employer to request or require that a prospective employee fork over a social media password as a condition of gaining employment. However, this New Mexico's law is unique in that it only covers prospective employees, and not the existing workforce.

Lest anyone get the wrong idea, I am not in favor of employers asking candidates or current employees for social media passwords. Instead, as I've noted before, there is no empirical evidence that employers asking for social media passwords is a common practice. Therefore, these laws seek to regulate a "problem" that rarely, if ever, exists.

Que sera.

April 18, 2013

RIP: Philadelphia Paid Sick Leave Bill

** picks up phone dorks out in his bluetooth VOIP-compatible headset **

Thumbnail image for philadelphia.jpgThe Employer Handbook: "Nyello."

Two Weeks Ago: "Hi Handbook. This is "Two Weeks Ago" calling. I wanted to let you know that Philadelphia Mayor Michael Nutter vetoed the "Promoting Healthy Families and Workplaces" Bill, also known as the paid sick leave legislation. I read about that legislation on your blog back in February, and I was wondering when you were going to get around to updating your readers."

Handbook: "Yeah, I meant to write about ---. Hold please. I have another call coming in. Hello?"

Last Week: "Hi there. It's "Last Week." Is now a good time? I tried to contact you -- well -- last week, to find out why you hadn't told your readers that Councilman Greenlee didn't have the votes to override Mayor Nutter's veto of Philly's paid sick leave bill. You ok? I'm concerned."

Handbook: "I'm fine. Just been busy, I guess."

LW: "Because now paid sick leave is done in Philly. And I know you target local readers. Look, if you need some help over there..."

Handbook: "I'm cool. It's all good."

LW: "You sure? I mean --"

Handbook: "Hey, Last Week. I'm fine. How's your employment-law blog, the one that gets thousands of hits going? Oh wait, you don't have one, do you?"

LW: "Hey, no need to get testy, nerd."

Handbook: "I got your nerd right here. ** grimaces at crappiness of that lame comeback ** And why don't you come say that ish to my face? Oh wait, you can't, can you? Last. Week." ** swish **

LW: "Hey, I'm not one who is going to blog about a made-up conversation with "Two Weeks Ago" and "Last Week." You're going to blog about this, aren't you? You're going to blog about this..."

** sigh **

April 17, 2013

Employee caught in a pick, Supreme Court scratches her FLSA claims

** drops microphone, walks off stage **

Fine, I'll play a quick encore.

In a case decided yesterday, the U.S. Supreme Court in Genesis Healthcare Corp. v. Symczyk (opinion here) held that if a plaintiff who brings a claim under the Fair Labor Standards Act on behalf of herself and her co-workers rejects an offer of judgment from the defendant that would fully satisfy the plaintiff's own personal claim, then the entire case gets dismissed unless the plaintiff can demonstrate a personal interest in representing the unnamed claimants.

They call this a "pick off" of the lead plaintiff and, yeah, I shouldn't have played that encore. I told my manager. I says, "Charlie, I don't do these FLSA collective action cases. But no....." 

Charlie's gonna get an earful from me...

April 16, 2013

Information on how you can help Boston #PrayForBoston

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In the aftermath of yesterday's tragic events, President Obama remarked,
"Boston is a tough and resilient town. So are its people."

If you want to help them, here and here are some ways to do it.

April 15, 2013

Four ways to successfully defend an Equal Pay Act claim

This blog is nearly 2 1/2 years old and we have our first Equal Pay Act post. The Equal Pay Act requires equal pay for equal work on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions. Any wage discrimination on the basis of sex violates the Act.

The EEOC celebrated "Equal Pay Day" last week. So, now is as good a time as any to address the Act through this recent case from the Third Circuit Court of Appeals.

In Puchakjian v. Township of Winslow, Deborah Puchakjian filled a Municipal Clerk vacancy within the Township of Winslow which came about a result of the retirement of the male incumbent. His salary at retirement was $85,515; Ms. Puchakijan's salary to replace him was $55,000.

She sued.

She lost.

You see, there are four exceptions to the Act's general rule of equal pay for equal work:

  1. a bona fide seniority system,
  2. a merit system,
  3. a system which measures earnings by quantity or quality of production, or
  4. any factor other than gender

The Third Circuit agreed with the lower court that the retired Municipal Clerk's yearly salary increases over his 29-year tenure in the position "both explained and motivated the wage disparity." Consequently, the wage disparity was based on a factor other than gender.

Given these four Equal Pay Act exceptions, claims under the Act are tough to prove. That said, a priority in the EEOC's Strategic Enforcement Plan (FY 2013-2016), is the enforcement of equal pay laws. Indeed, in 2012, the EEOC received over 4,100 charges of gender-based wage discrimination, and obtained over $24 million in relief for victims of gender-based wage discrimination through administrative enforcement efforts and litigation.

So, now is as good a time as any to conduct a wage audit and make sure that any disparity in pay for equal work is attributable to one of the Act's exceptions.

April 12, 2013

Remove my stitches! And 14 other all-time crazy requests from the boss

Yesterday, CareerBuilder.com released its list of 15 of the most unusual things that bosses have asked employees to do. I've had a lot of rough, odd jobs in my lifetime --

*** Hey silver spoon! Quit giving me the stink eye over there. If I write it, my readers believe it. Sheep... ***

I consider myself lucky, requests made of me only made the list twice.

Ok. Seven.

*** Re-checks list for "Quick! Flush the yeyo*." ***

Yep, seven. Here they are:

  1. Boss asked employee to be prepared to delete all emails and computer files at a moment's notice
  2. Boss asked employee to be a surrogate mother for her - more than once
  3. Boss asked employee to spy on senior management
  4. Boss asked employee to buy a rifle for him, and he would reimburse the employee
  5. Boss asked employee if she knew of anyone who could "hook him up" with illegal substances
  6. Boss asked employee to go online and post false good comments about him
  7. Boss asked employee to come up with a science fair project for her daughter
  8. Boss asked employee to fire his (the boss's) brother
  9. Boss asked employee to lend him $400 for a down payment on a car
  10. Boss asked employee to remove her stitches
  11. Boss asked employee to be better friends with him
  12. Boss asked employee to scour an abandoned office building for furniture and supplies they could use
  13. Boss asked employee to bail another coworker out of jail
  14. Boss asked employee to clip her dog's nails
  15. Boss asked employee to help plan her wedding

What's the weirdest thing that your boss has asked you to do? Let me know in the comments below.


* That never happened and The Employer Handbook does not condone drug use in the workplace. Scarface-esque references to "yeyo"; however, are ok if cleverly executed. Swish!

April 11, 2013

Fired and told "you're a little too old for your job," Old Rose LOSES her age-bias claim

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From the blog that brought you the classy September 2011 post, "This old mother****** may just have an age discrimination claim," comes a story of a woman whom her former employer **cough** affectionately **cough** referred to as "Old Rose."

On other occasions, the plaintiff Rosemary Marsh was told, "you're slipping, you're getting old." Another time, she was asked if she was "too old to get down there" when she bent down to replace paper in the photocopier. And when the company eventually fired Ms. Marsh -- you had to figure that was coming, right? -- she was allegedly told, "I think you're just getting a little too old for your job."

Sounds like the makings of a good age discrimination claim. Well, not in the Sixth Circuit Court of Appeals. No ma'am:

The first three alleged statements were not made in connection with a decision to fire Marsh. At the most, these statements show only that Horn felt that Marsh was an elderly individual and that some stage of old age was correlated with a decrease in job performance. To hold that age was the but-for cause of Marsh's termination, a factfinder would still have to infer from these statements that Horn's supposed disdain for the elderly led her to fire Marsh. Thus, these statements do not constitute direct evidence of age discrimination.

Hold up there one sec. I read in the opinion that the defendant claimed that Ms. Marsh was a poor performer. But, Ms. Marsh claims they freaking told her, "I think you're just getting a little too old for your job." I'm sensing pretext here, amirite?

Finally, Marsh asserts that Horn's alleged age-related statements, discussed above, demonstrate that AERC of Michigan's proposed reasons for her termination are a mere pretext used to mask age discrimination....Marsh cannot demonstrate that these alleged comments were made by a decision-maker or that the individuals with the power to fire her harbored any discriminatory animus. Thus, the alleged statements of an individual with no authority to fire Marsh cannot demonstrate that AERC of Michigan considered Marsh's age when firing her, much less that AERC of Michigan's espoused reasons were pretextual and that age was actually the but-for cause of Marsh's termination.

The case is Marsh v. Associated Estates Realty Corp.

April 10, 2013

An employee using the "honest belief" doctrine in a bias case? As if!

He has my pants on fire... :)To defend against a claim of discrimination, an employer can argue that it fired an employee because it honestly believed that the employee did "X." And, as long as "X" isn't discriminatory, the employer prevails. This is the honest belief doctrine.

So, can an employee flip the "honest belief doctrine" on its head to show that an employer's purported legitimate business reason for disciplining an employee was actually pretext for discrimination?

Find out after the jump...

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Continue reading "An employee using the "honest belief" doctrine in a bias case? As if!" »

April 9, 2013

Even rarely performed job functions may be "essential" under the ADA

You run a delivery service using large trucks and require that drivers be qualified by the Department of Transportation. Although your facility managers aren't often behind the wheel of the big rigs, you nonetheless require that they too be DOT certified.

One day, a manager with a disabling eye injury comes to you and asks for an accommodation under the Americans with Disabilities Act: to be excused from driving trucks so that he may focus on "managing."

Assuming that no other reasonable accommodation exists, must you give it to him?

According to the Eighth Circuit Court of Appeals in Jeff Knutson v. Schwan Food Company (opinion here), that's a big N-O, good buddies.

Even though your manager rarely has to drive, job functions that aren't performed that often can still be "essential" functions of the job. "Essential functions" are "the fundamental job duties of the employment position the individual with a disability holds." What is (and is not) an essential function can depends on several factors the court espoused:

Evidence to consider in this determination may include: (1) the employer's judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the current work experience of incumbents in similar jobs.

In your case (as in Knutson -- I shamelessly ripped the facts from Knutson. It was easier than blogging about Ray J's new song. Is it a Kimye diss track? Who knows? Who cares? I want those last three sentences back...), if you've got a good written job description, your judgment is sound, and the experience and expectations of all managers is that they need to get behind the wheel from time to time, then you're defense that driving is an essential job function is solid.

So, take a look at those job descriptions and talk to your employees about what they do on a day-to-day basis. And update those job descriptions accordingly.

April 8, 2013

The importance of addressing sex stereotyping in the workplace

stereotype.jpgMany states and localities have laws forbidding discrimination on the basis of sexual orientation (LGBT). 

But Title VII of the Civil Rights Act, one of the federal laws barring discrimination in the workplace, law does not prohibit it.

What Title VII does make unlawful, however, is stereotyping based on a person's gender non-conforming behavior (i.e., a man who appears effeminate, or a "manly" woman). As a Virginia federal court (here) re-emphasized last week, sex stereotyping is central to all discrimination:

Discrimination involves generalizing from the characteristics of a group to those of an individual, making assumptions about an individual because of that person's gender, assumptions that may or may not be true.

Recognizing that the line between unlawful sex stereotyping and lawful (yet despicable) discrimination on the basis of sexual orientation can be tough to draw, the Virginia court denied a defendant's motion to dismiss a pro se plaintiff's sex stereotyping claims because he alleged that he was given crappy assignments based on the company's position that his failure to conform to gender norms reflected poorly upon the company and would displease its clients. This was enough, at the pleading the stage, to spell out plausible claims for sex stereotyping. Whether the plaintiff can ultimately prevail is another story.

The takeaway here is this: there are certain incendiary words that, when used in workplaces -- especially blue-collar workplaces -- may create immediate animosity and, ultimately, lead to lawsuits from male or female employees. Take, for example, the word "bitch." Courts recognize that calling a woman a bitch is intentional discrimination based on gender. But, calling a man a "bitch" (or "faggot" or "woman") can also give rise to a sex stereotyping claim based on a failure to conform to gender norms.

So, when conducting respect-in-the-workplace training, don't give same-sex harassment short shrift. Instead, explain it, give examples, and remind employees that they don't have to endure that kind of crap at work. Encourage anyone who experiences or witnesses sex stereotyping to complain about it so that it may be addressed and dealt with immediately.

Also, if you're one of the few employers that hasn't progressed beyond the confines of Title VII to preclude discrimination based on sexual orientation, get out of the stone ages and join us here in the 21st century.


April 5, 2013

I was attacked by a bear! -- and 8 other lame excuses for being late to work

IvyInAChair.jpgAfter yesterday's super-serious Animal House post -- Toga! Toga! Toga! -- let's lighten things up a bit with a list of the most memorable tardiness excuses employers shared in a recent CareerBuilder Annual Survey.

  • Employee dropped her purse into a coin-operated newspaper box and couldn't retrieve it without change (which was in the purse)

  • Employee accidentally left the apartment with his roommate's girlfriend's shoes on and had to go back to change

  • Employee's angry wife had frozen his truck keys in a glass of water in the freezer

  • Employee got a late start because she was putting a rain coat on her cement duck in her front yard (because rain was expected later that day)

  • Employee's car wouldn't start because the breathalyzer showed he was intoxicated

  • Employee attempted to cut his own hair before work and the clippers stopped working, so he had to wait until the barber shop opened to fix his hair

  • Employee's car was attacked by a bear (had photographic evidence)

  • Employee drove to her previous employer by mistake

  • Employee claimed to have delivered a stranger's baby on the side of the highway

As someone who delivered his second child on the sidewalk in front of the Pennsylvania Hospital on a freezing February night in 2011 -- no, I'm not a ob-gyn, but I did stay at a Holiday Inn Express the previous night -- I take umbrage with the last "excuse" having any sort of pejorative connotation associated with it.

But, I'm sure you good folks have heard your share of good employee-lateness excuses. Let me hear 'em in the comments below.

Have a nice weekend.