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.

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


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.


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.

March 19, 2013

Supreme Court to tackle age discrimination

Sorry for the late post gang. Rough night last night.

Today, I'm punting the ball over to my blogging buddy Phil Miles at Lawffice Space who has the scoop on a new age-discrimination matter that the Supreme Court has agreed to address. You can read Phil's post here.

March 18, 2013

Is rejecting a sexual advance, without reporting it, protected activity?

Of all employment claims presented to the Equal Employment Opportunity Commission, retaliation numero uno. It's been that way since 2010.

There are three essential elements of a retaliation claim: (1) protected activity -- opposition to discrimination or participation in the statutory complaint process; (2) adverse action; and (3) causal connection between the protected activity and the adverse action.

This post focuses on "opposition to discrimination." Specifically, is withdrawing from what one perceives to be a sexual advance by one's employer opposition to discrimination and, thus, a protected activity?

The answer after the jump...

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Continue reading "Is rejecting a sexual advance, without reporting it, protected activity?" »

March 15, 2013

That's what he said: The infamous Eagle v. Morgan LinkedIn case is ovah!

Thumbnail image for thatswhathesaid.png

On March 12, a federal court in PA resolved the first HUGE LinkedIn account dispute case involving an employee and former employer. I've written about out it a few times previously. (Here, here,and here).

The latest decision is involved. And rather than pontificate -- too many syllables -- I'll defer to Venkat Balasubramani, who has the full scoop here.

My laziness knows no ends. Unless those ends involve a medium-rare burger, wrapped in bacon.

Don't mind if I do!

March 14, 2013

GUEST POST: A guide to creating a comfortable workplace

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Peter Ames. Peter Ames writes this piece on behalf of Office Genie, a desk and office space market place in the United Kingdom

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

Continue reading "GUEST POST: A guide to creating a comfortable workplace" »

March 13, 2013

NLRB to ask Supreme Court to review its latest recess appointments

nlrb.jpgBack in late January, a federal appellate court ruled that President Obama lacked the power to make three recess appointments last year to the National Labor Relations Board. More on that here.

In this press release issued yesterday, the NLRB announced that would seek Supreme Court review. Quoted below is the press release:

The National Labor Relations Board has determined not to seek en banc rehearing in Noel Canning v. NLRB, in which the U.S. Court of Appeals for the DC Circuit held that the January 4, 2012 recess appointments of three members to the Board were invalid. The Board, in consultation with the Department of Justice, intends to file a petition for certiorari with the United States Supreme Court for review of that decision. The petition for certiorari is due on April 25, 2013.

So, yeah, um, that's it for today. Unless Lady Gaga's new gold-plated wheelchair interests you. Or maybe this nutty shootout attempt by Ottawa's Kaspars Dugavins?

Are you still here?

March 12, 2013

100% pure settlement offer? If not, it may be ADMISSIBLE ... AT ... TRIAL!

pointbreak.jpgMost parties (and their attorneys) expect that settlement communications are not admissible at trial. There's even a federal rule of evidence on this subject. However, a federal court recently recognized an exception. But, with all due respect to the United States District Court for the District of New Jersey, the opinion is a little dry. 

So, after the jump, I spiffed it up a bit -- Point Break style, brah -- with a few takeaways for practicing attorneys.

This is your wake-up call.

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Continue reading "100% pure settlement offer? If not, it may be ADMISSIBLE ... AT ... TRIAL!" »

March 11, 2013

An EEOC complaint is not your free pass to goof off at work

cthomas.jpgOr sexually harass your co-workers.

Unless, of course, you consider my working Hollywood manuscript: "An EEOC Complaint Is Your Free Pass to Sexually Harass." I know, the title needs work, but with C. Thomas Howell, Tawny Kitaen real star power and a producer.

** Immediately regrets sixth shot of Drambuie with breakfast **

There's a point to all of this, and some employer tips too, after the jump...

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Continue reading "An EEOC complaint is not your free pass to goof off at work" »

March 8, 2013

New FMLA requirements on posters and notices start today

fmla.jpeg"Damn you, Department of Labor! It's 12:00:01 on March 8, 2013. I keep refreshing this stupid site and nothing is happening! I NEED FORMS!!!!" 

--- Absolutely no one in HR.

Actually, the forms have been available for some time now, slacker.


  • WH-380-E Certification of Health Care Provider for Employee's Serious Health Condition (PDF)

  • WH-380-F Certification of Health Care Provider for Family Member's Serious Health Condition (PDF)

  • WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)

  • WH-382 Designation Notice (PDF)

  • WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)

  • WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave (PDF)

  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (PDF)

(Note: One area where the forms fall short is the lack of GINA safe harbor language. Consider adding it. Also, it's a good idea to consult with an employment lawyer to see what other tweaks to the forms may benefit your company).

Here is the poster.

March 7, 2013

In 77 tweets, what employers can learn about EEOC enforcement #EEOCHR


I had two topics on the brain to blog about:

  1. Whether, under the Americans with Disabilities Act, being on time is an essential function of the job. Fortunately, Daniel Schwartz addressed that yesterday here at the Connecticut Employment Law Blog.

  2. As a follow-up to yesterday's wage-and-hour / Daylight Savings Time post, exploring how DST impacts tracking intermittent leave taken under the Family and Medical Leave Act.

{Go take a bath right now to cleanse yourself of the employment-law dorkness that hit you from reading No. 2}

Instead, after the jump, I have, well, you read the title to this post. These are my tweets (and several retweets) from the "EEOC Overview and HR Mixer" I attended yesterday -- hashtag #ubernerd #EEOCHR

{Better grab the soap and turn on that bath again. You've been warned.}

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Continue reading "In 77 tweets, what employers can learn about EEOC enforcement #EEOCHR" »

March 6, 2013

CHEATSHEET: How to pay employees for Daylight Savings Time work


This Sunday, Daylight Savings Time begins, as we push the clocks forward one hour at 2:00 AM on March 10, 2013.

Did someone say Clocks?

How does the time change affect the manner in which you pay hourly non-exempt employees who work the graveyard shift? I'll let the Department of Labor explain:

On the Sunday that Daylight Savings Time starts at 2:00 a.m., the employee does not work the hour from 2:00 a.m. to 3:00 a.m. because at 2:00 a.m. all of the clocks are turned forward to 3:00 a.m. Thus, on this day the employee only worked 7 hours, even though the schedule was for 8 hours.
The FLSA requires that employees must be credited with all of the hours actually worked. Therefore, if the employee is in a work situation similar to that described in the above example, he or she worked 7 hours on the day that Daylight Savings Time begins....

Of course, when we get to November and set the clocks back, remember that employees working the graveyard shift must be paid an extra hour.

But, until then, enjoy the sun.

P.S. - If you are going to be in Washington, DC on Monday for SHRM's 2013 Employment Law and Legislative Conference, please drop me a line. I'd like to meet you. 

First drink is on you. After all, it's the least you could do.

March 5, 2013

New federal bill would ban credit checks on employees and applicants

Credit-cardsYesterday, I discussed some pending federal legislation that would expand the FMLA to cover part-time employees. Now, I hear that another bill introduced in the U.S. House of Representatives, known as the Equal Employment for All Act, would amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions. 

A copy of the Act and more details on employer credit checks after the jump...

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Continue reading "New federal bill would ban credit checks on employees and applicants" »