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 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.

April 4, 2013

Are Flounder from Animal House and Left Ear from The Italian Job "disabled"?

- "Mr. Dorfman?"
- "Hello!"
- "0.2... Fat, drunk and stupid is no way to go through life, son."

* * *

- "That's Left Ear. Demolition and explosives. When he was ten, he put one too many M-80s in the toilet bowl. Lost the hearing in his right ear. He's been blowing stuff up ever since."

* * *

Good start to a blog post, amirite? Now, allow me to dork this up with two employment-law questions:

  1. If Flounder were Dean Wormer's employee (rather than just a student at Faber College), would Wormer's calling him "stupid" mean that Faber regarded Flounder as "disabled" under the Americans with Disabilities Act?

  2. Since Left Ear is deaf in one ear, would he qualify as "disabled" under the ADA should he return from his Spanish villa and seek gainful employment in the USA?

Tough questions. But here, at the ole Handbook, when the going gets tough...[wait for it]...The tough get goin'! Who's with me?

Let's do it!!!! (after the jump...)

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Continue reading "Are Flounder from Animal House and Left Ear from The Italian Job "disabled"?" »

April 3, 2013

FireMe! app outs Twitter users who talk smack about their jobs

Twitter Pack While some people; namely, hockey players with local ties, use Twitter to congratulate an ex-wife on end of divorce payments, others spew venom about their bosses.

I know. I should have warned you to sit down first. Let me know when the shock subsides.

K-thx.

And the latest 15-minutes-of-fame, there's-an-app-for-that, spotlight shines on FireMe!, which uses keywords and such to show Twitter users who tweet vitriol about their employers. The site, which is chock full of expletives -- you've been warned -- contains four categories: (1) Haters; (2) Horrible Bosses; (3) Sexual Intercourse; and (4) Potential killers. FireMe! also has a "leaderboard," and can, if you are a Twitter user, can "calculate" the chances that you will be fired if your boss learns about your Twitter account. My chances are five percent.

The creators of FireMe! claim it was designed "to raise awareness about the danger of public online data." Indeed, the app will send out tweets to offenders to warn them to delete offensive content. According to one report, FireMe! sent out more than 4300 tweets to offenders in a three-week period, prompting users to delete 249 of those tweets within two hours.

How does this really impact the workplace? 

Well, I can't imagine that any employer out there has the time to monitor this site on the off-chance of finding an employee who bad mouths the company. But even if you did, taking action based on a tweet could burn you. Remember that the National Labor Relations Act protects the rights of employees to discuss with one another -- even critically -- terms and conditions of employment. So, while firing a single griper may be ok, terminating an employee who engages in "protected concerted activity" is not.

Plus, when you have a number of employees who use social media to vent about work, rather than blame them, maybe it's time to take a critical look in the mirror to see what you can do to improve the workplace.

April 2, 2013

Tips from Facebook on getting discovery of a plaintiff's Facebook page

downloadyourinfo.png

I'm a little late to the game on this case (Gatto v. United Airlines). It's about a personal injury case in which the defendant sought discovery of a the plaintiff's Facebook page. Yadda, yadda, yadda, plaintiff deletes his Facebook page and the court sanctions the plaintiff.

But here's the part I like:

While Facebook did respond to the subpoena served upon it, Facebook objected to providing certain information related to Plaintiff's account due to concerns regarding the Federal Stored Communications Act. Facebook instead recommended that the account holder download the entire contents of the account as an alternative method for obtaining the information. Defendants allege that this issue was discussed with the Court during a telephone status conference on January 6, 2012, where Plaintiff's counsel advised that he would be willing to download the account information and provide a copy to the parties. Defendants allegedly agreed to Plaintiff's proposal, with the condition that Plaintiff would also provide a certification that the data was not modified or edited since the December 1, 2011 settlement conference.

So, if you want discovery of the contents of a litigant's Facebook account, don't mess around with subpoenas to Facebook and don't demand Facebook passwords. Instead, lay the proper foundation (i.e., establish that there exists information on a litigant's Facebook page that is likely to lead to the discovery of admissible evidence) and make a download your information request.

April 1, 2013

Leave as an ADA reasonable accommodation; when is enough...enough?

infinity.jpg

Unquestionably, when it come to tackling the Americans with Disabilities Act, one of the biggest issues affecting the workplace and accommodating disabled employees is providing leave as a reasonable accommodation. Anecdotally, a question that plagues most employers is just how much leave is enough?

We know that an indefinite leave of absence is not a reasonable accommodation. But, what about when an employee takes one leave, after another, after another.

After the jump, I'll address the big question: when is enough enough?

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Continue reading "Leave as an ADA reasonable accommodation; when is enough...enough?" »

March 29, 2013

Utah becomes the fifth state with a workplace social-media privacy law

utah.jpgWelcome citizens of the Utah.

I'd say welcome back, but, according my blog stats, so few of you have seen my blog a first time. How could that be? Some of my best posts involve the Beehive State:



I even have two random Johnny Utah references sprinkled about.

This all led me to theorize that Utah didn't have internet. For realz, have you ever received an email from Utah? Amirite? 

Although, I read yesterday that Utah passed this law to become the fifth state to ban employers from requesting social media passwords from applicants and employees.

With its new law, we end up with another state crafting a solution in search of a problem. But, to its credit, the new Utah law does have certain carve-outs to allow employers to access employee social-media information to permit the employer to discharge its legal obligations (e.g., investigate claims of unlawful harassment, determine whether an employee has misappropriated confidential information).

At least we know now that Utah probably does have the dial-up internet. Maybe.

March 28, 2013

POLL RESULTS: Here's what you said about the #Donglegate firing

dongle_scrapyard_00For much of the week, I've blogged about Adria Richards, the employee who got fired for tweeting complaints about discrimination. On Monday, I offered my legal analysis (here).

On Tuesday, I followed that up with this simple poll that purported to remove the law from the equation: Was the decision of Ms. Richards's employer, SendGrid, to fire her "fair" or "unfair"? "Fair" and "unfair" were the only two answers and they were randomized such that either one could have appeared as the top choice when taking the poll.

Now the results are in. 129 of you responded and 70 of you (54%) said that the firing was fair. 59 respondents indicated that the firing was unfair (46%). 

I'm assuming that most of my readers and, therefore, most of the respondents have an HR or legal background. Therefore, I will further assume that, while the results here are quite balanced, had I asked the question whether the firing was "lawful" or "unlawful," the results would not have been nearly as close.

Thank you to everyone who participated.

March 27, 2013

Feeling "maybe overworked" is not an FMLA "serious health condition"

Thumbnail image for fmla.jpgI went back and forth on whether to include "BREAKING" in the title to this post. Twas a close call. Close, like that time Bar Rafaeli almost dialed my number by accident (and by almost, I mean she was 7 numbers off -- out of 10).

No, feeling "maybe overworked" will not get you leave under the Family and Medical Leave Act. A Florida federal court recently confirmed this in Pivac v. Component Services and Logistics, Inc.:

The substance of the Plaintiff's "evidence" is that she felt maybe overworked and wanted time off, first to visit her parents, but then just because she was crying and sad. She went to a doctor who provided her with no treatment, no referrals, no medicine, and no further appointments. The Plaintiff stated that she "told him [the doctor] she needed about seven days to get herself together and he gave her a `Medically Excused Absence' form for the dates October 4, 2011 to October 17, 2011." There is absolutely no evidence presented by the Plaintiff that she met the definition of "serious medical condition" at the time she took the extended unpaid leave. There are no medical records submitted, no indication of continuing treatment at the time of the Plaintiff's being out of work from the 4th to the 17th of October of 2011, no evidence, other than the Plaintiff's conclusory statements, that she suffered depression and anxiety as chronic health conditions. In fact, the only thing the Plaintiff has established is that she told the doctor she did not feel like working and he gave her a note to excuse her from working. There is just nothing here on which to find that the Plaintiff suffered a serious medical condition and without that the cause of action may not proceed.

So, don't rely on an employee's say-so. As a condition of qualifying for FMLA leave, an employer may require that the need for leave for a serious health condition of the employee or the employee's immediate family member be supported by a certification issued by a health care provider.

And if that certification doesn't sit right with you, go for a second or third opinion. For more on that, check out Jeff Nowak's post yesterday at FMLA Insights.

March 26, 2013

POLL: Was the #Donglegate firing fair?

dongle_scrapyard_00Whew!

Got a little carried away with yesterday's post about the employee who got fired for tweeting complaints about discrimination, didn't I?

Then again, I'm not the one who came up with the hashtag #donglegate.

Yesterday, I offered my legal analysis. Today, I want your non-legal opinion:

March 25, 2013

Employee gets fired for tweeting complaints about discrimination

Is this Retaliation 2.0?

Two weeks ago, Adria Richards attended an industry conference at which she overheard sexual jokes from two attendees sitting behind her during a session. So, she complained...on Twitter:

And then she blogged about it here. The social-media complaints resulted in one of the joke tellers getting fired. And, last Wednesday, Ms. Richards tweeted that her employer supported her.

That same day, SendGrid, Ms. Richards's employer, fired her.

(Jon Brodkin at arstechnica.com has the full story here).

We can argue about the propriety of using social media to publicize a harassment complaint, especially when a private complaint could have sufficed. Still, the SendGrid response certainly seems harsh and unfair.

But did SendGrid go so far as to retaliate (as a matter of law) against Ms. Richards?

Find out, after the jump...

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Continue reading "Employee gets fired for tweeting complaints about discrimination" »

March 22, 2013

Firing for *&$%-laced Facebook post is not reverse-race discrimination, you guys

shakespeare.jpg

School teacher, Lawrence Smizer, is a regular Facebook wordsmith:

To all my family that fought my sister tooth and nail over some BULLSHIT (And you know who you are) FUCK YOU BITCHES!!!! HE IS GOING HOME WHERE HE BELONGS!!!!! HAHAHAHAHAHAH AHAHAHAHAH AHAHAHA AHAH HAHAH HAAH

Smizer was Facebook friends with two co-workers. They dimed him out to the school and Smizer was fired. So, he sued for reverse-race discrimination.

Reverse-race discrimination, mmm-kay. How do you think it worked out for him?

Find out after the jump...

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Continue reading "Firing for *&$%-laced Facebook post is not reverse-race discrimination, you guys" »

March 21, 2013

STUDY: Your social media policy hits the right legal issues, but...

Your social media policy may be good when it comes to addressing legal risks. But getting that message across to your employees...

Not so much, according to a recent survey from Protiviti (here).

The Protiviti survey shows that more businesses are addressing employee use of social media -- 57% of respondents have social media policies. And, generally, those social media policies do a good job of addressing legal risks. For example, 90% of surveyed companies with social media policies have provisions in those policies what address disclosure of company information.

However...

Where social media policies are lacking, according to the survey, are the practical uses of social media. Just over half of policies discuss the organization's purpose in using social media. And just 38% of those policies address employee training. Tellingly, the most commonly cited obstacle to addressing social media risk within the organization is -- you guessed it -- employee training.

So, use this survey as a wake-up call. Make sure that your social media policies educate employees about social media. Then train your employees on those policies.

And, guess what? Because social media changes, remember to retrain your employees too.

March 20, 2013

It's the March edition of The Employment Law Blog Carnival

Carnivalphoto © 2010 Paul Newtron | more info (via: Wylio)

Why just last week, I was hanging out with the ghost of John Houseman, who was blabbering on and on about making money the old-fashioned way. And while all this reminiscing of the old Smith Barney days was giving me the vapors, he just wouldn't let me get a word in edge-wise.

That was until, someone pulled along side of us and asked for our Grey Poupon, which seemed strange at the time because we were driving around in the '93 Ford Probe I drove in high school.

*** hears familiar sound of restraining orders being taken out ***

But it gave me just enough time to tell Hou$eman -- he was Ke$ha before Kesha was Ke$ha, you know -- about the March edition of the Employment Law Blog Carnival, which is now up and running. You can view it here

As always, it's jam packed with all the current, topical information an employment lawyer or HR-compliance dork maven would need to rule the roost at the next SHRM event. And a special thank you to Stephanie Thomas for hosting.  

If you would like to participate in future carnivals, email me and I will add you to the distribution list. Participants must be bloggers (so we can link to your blog) and Carnival posts must be HR/employment-law-related. But if you put ketchup on your hot dog, go jump in a lake. 

Otherwise, ride the lightning.