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.

September 17, 2013

How ordering cheesesteaks can help employers with disability-accommodation requests

PatsCheesesteak.jpg

In Philadelphia, we're known for certain things, such as cheesesteaks. Ordering the cheesesteak is a bit of an art form. For example, I could order a "Cheese steak, with Cheez Whiz and fried onions." 

Or, I could simply say, "Cheese wit." As most anyone around her knows that Cheez Whiz is the default "cheese" and "wit" means "with fried onions.

[Those of you who are giving me that disdainful Cheez Whiz stink face through your computer -- right back at ya, when you order the "Philly Cheesesteak" on your local dinner menu. For there is nothing "Philly" or "Cheesesteak" about that sludge, right down to the Swiss cheese and mayo. Ya heathen!]

Like ordering a cheesesteak, your workplace has similar buzzwords that may mean something more. 

For example, I could go into HR and request leave under the Family and Medical Leave Act. Or, I could simply tell HR that I have cancer and need time off for chemotherapy. And even though I never utter the letters F-M-L-A, I have certainly done enough be afforded FMLA protections.

And the same holds true under the Americans with Disabilities Act. That is, once an employer learns that an employee has a disability, it then has an affirmative obligation to discuss reasonable accommodations with that employee. Indeed, a recent federal court case reminds us that an employee does not need to use the words "disability" or "ADA" or "accommodation" to trigger this employer response:

The threshold question is whether Suvada successfully triggered GFC's duty to engage in the interactive process. GFC suggests in its opening brief that Suvada did not trigger its duty to accommodate because at the time Suvada told Slouka of her diagnosis, she had no treatment plan, was not subject to any medical restrictions, and did not mention what type of cancer she had. Therefore, the Defendant's argument goes, GFC could not have engaged in any meaningful interactive process because Suvada had not informed GFC of her purported accommodation needs. But the law requires very little of the employee to trigger the employer's duty to engage in the interactive process; all that is required is that the employee notify the employer of her disability. Here, Suvada told Slouka that she had been diagnosed with cancer, which is enough to put GFC on notice of Suvada's disability and ask follow-up questions.

Facts like these present several takeaways for employers:

  1. Make sure that your employee handbook educates disabled employees about how to request a workplace accommodation;

  2. Train managers to identify these inquiries, especially when the accommodation request is less than obvious; and

  3. Recognize when leave requests may overlap both the FMLA and ADA, thereby triggering independent obligations under each statute.

Image credit: Wikipedia

September 16, 2013

Lady Gaga may owe her former assistant a lot of unpaid OT

meatdress.jpg

We're talking a lot of money honey.

[Bravo, Eric. You couldn't even make it one line without a stupid Gaga pun].

Pun free after the jump...

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Continue reading "Lady Gaga may owe her former assistant a lot of unpaid OT" »

September 13, 2013

Body shots + booty shorts + live office sex = no sexual harassment

Sounds like one crazy party. Or just another Thursday at the Pine Woods Apartments.

Kristen Glemser had no idea...

On December 7, 2006, Kristen Glemser, a marketing/leasing agent for Pine Woods showed up for work, just like she would any other day. Except that some of the ladies in the office had planned a small party of one of Ms. Glemser's female co-workers.

And they decided to get started early.

officepartyshade.jpgBy 10 AM, many of the attendees were in the bag, and Ms. Glemser's supervisor was sending her on a vodka run. When Ms. Glemser returned to the office, the party goers were eating breakfast.

(Does the celery in a Bloody Mary count as breakfast?)

After concluding breakfast, you guessed it, time to model the booty shorts.

Then things got really weird...

Or as the ladies in the office dubbed it, a "fashion show," one in which Ms. Glemser testified at her deposition, she was not a willing participant:

The Plaintiff testified that Lorton asked her to wear the shorts. Lorton started to unbutton Glemser's pants and pull them down. Glemser testified, "I realized she [Lorton] was so impaired that my pants were coming off. They were - if I didn't take them off, she was taking them off." The Plaintiff testified that she did not leave the bathroom because she felt she was restrained because Kim was blocking the bathroom door and Lorton was in front of her with her hands on Glemser's pants. The Plaintiff did not ask Kim to move to the side so she could exit the bathroom. Glemser believed Kim was intoxicated at the time. Glemser testified she told Lorton, "Fine. I'll wear them for you. I'll put them on and that's it. And so I put them on myself."

It was right about this time that Ms. Glemser testified that she observed "multiple individuals engaged in actual or simulated sexual activity, while one of the men was pouring an alcoholic drink over a woman's belly button area and licking it off."

The next day, Ms. Glemser decided that working at Pine Woods just wasn't for her. So, she quit her job the next day. Then she sued for sexual harassment.

Quitting before complaining dooms her sexual harassment claim.

On Monday, a federal court in Illinois (here) dismissed Ms. Glemser's case.

Why, you ask?

Well, an employer can generally avoid liability for a hostile work environment if it promptly investigated complaints made by the plaintiff and acted to stop the harassing behavior. A prompt investigation is the hallmark of a reasonable corrective action.

Here, Ms. Glemser never reported the incident before she quit, despite being made aware of the Pine Woods {cough} sexual harassment policy. The one where it's not cool to sexually harass your co-workers. That was their policy. Or at least that's what Ms. Glemser read and signed when she worked there. And because Ms. Glemser never reported the party before she quit, management was never able to investigate and take corrective measures.

So, if there's a takeaway from this post (searching, searching, searching...): Please encourage your employees to report harassment in the workplace, be it relatively minor, or, as in Ms. Glemser's case, an "Anthony Weiner" on the inappropriateness scale.

September 12, 2013

EEOC Commissioner Feldblum provides answers on obesity as an ADA disability

j0411827.jpgAbout two years ago, the EEOC sued a Texas company, alleging that the company engaged in disability discrimination, in violation of the Americans with Disabilities Act, when it fired a 680-pound worker because he was morbidly obese. The EEOC alleged that the employee's immense weight interfered with his ability to walk, stand, kneel, stoop, lift and breathe. Consequently, he was disabled, as defined under the ADA.

Since then, at least one court has recognized that morbid obesity may be a disability, while another court held that, under state law, morbid obesity is not a disabilityIt was right around this time that the American Medical Association adopted a new policy that officially labels obesity -- not morbid obesity, but obesity -- as a disease. 

So how does employee obesity impact employers under the ADA? 

Yesterday, BNA published an interview with EEOC Commissioner Chai Feldblum, which focused on obesity as a disability. You can read the entire interview here. Below are some highlights:

Q: What is the Equal Employment Opportunity Commission's position with regard to the coverage of obesity under the Americans with Disabilities Act?

A: ...[B]ody weight that falls outside a normal range, whether above or below, or body weight that is the result of a physiological disorder (such as a thyroid condition) can be an impairment under the law . . . And while morbid obesity, like many other conditions, was often found not limiting enough to qualify as a disability under the ADA as originally enacted, courts are beginning to reassess that view in light of the ADA Amendments Act.

* * *

Q: Has EEOC issued any formal guidance that addresses obesity?

A: ...[S]evere obesity, which has been defined as body weight more than 100 percent over the norm, is clearly an impairment.

* * *

Q: Might the AMA's official recognition of obesity as a disease make it easier for plaintiffs to prove disability discrimination under the ADA's employment provisions?

A: The AMA's official recognition will certainly not hurt plaintiffs. But it does not change the basic legal framework.

* * *

Q: Does or will the AMA's policy change regarding obesity alter the EEOC's enforcement approach or efforts? If so, in what ways?

A: No. The commission's enforcement approach is laid out in our Strategic Enforcement Plan for FY 2012-2016 (40 EDR 5, 1/2/13). As far as I know, there are no efforts to change or modify that plan.

* * *

Q: [H]ow significant an impact might the AMA's recognition of obesity as a disease have in the American workplace?

A: ... Recognition by the AMA is certainly an important moment but, on its own, I do not believe that it will have a significant impact on the workplace.

* * *

Q: What measures should employers take to respect and protect the workplace rights of obese workers?

A: Employers should create a culture of respect and provide equality of opportunity for all employees. That will go a long way to protecting the rights of all employees with disabilities.

Obesity in the workplace presents ADA issues for employers

That's not to say employers must satisfy every accommodation request received from an obese employee. However, employers should avoid stereotypes and generalities and view each request/situation on a case-by-case basis. In addition to fostering a "culture of respect," remember that not just open, but open-minded communication about disability issues -- obesity and otherwise -- will protect both employees and employers.

September 11, 2013

Waitress suspended for posting racist customer receipt on Facebook

red lobsterIt's a story that first made news over the weekend and is quickly picking up steam, ironically, because of social media.

A customer at a Tennessee Red Lobster restaurant allegedly left a racist message on a receipt. An African American waitress subsequently posted the receipt to Facebook with the message:

"This is what I got as a tip last night...so happy to live in the proud southern states..God Bless America, land of the free and home of the low class racists of Tennessee"

A Red Lobster spokesperson subsequently told the Consumerist, that it is "extremely disturbed by this situation and [we] are currently investigating to determine exactly what happened."

Meanwhile, the Daily Mail reports that the waitress has been suspended with full pay pending the outcome of the investigation.

Ten years ago, we would have never heard about this story unless, maybe, we lived in the same town as this particular Red Lobster. However, today, this viral story presents front-page issues, which are becoming more and more prevalent. Sadly, your company may ultimately face similar workplace issues when racism and social media intersect.

So, managers, HR professionals, and employment lawyers, put yourselves in the shoes of the decision-makers at Red Lobster and tell me in the comments below, how would you handle this situation -- especially with respect to the waitress?

UPDATE (9/14/13): The Consumerist reported yesterday that "the server is back at work this week per her usual schedule, and didn't miss a day of work during the brouhaha."

September 10, 2013

A supervisor's swine flu death wish on an older employee leads to an age bias claim

Yesterday, our guest blogger offered three tips for successful onboarding

Unable to match that, today, I have a less than successful way to encourage attrition -- unless of course you like defending age discrimination claims.

A federal court has permitted a plaintiff's claims that his ex-employer created a age-based hostile work environment to proceed to trial. And, get a load of the supervisor stupidity:

According to this recent federal court opinion, the plaintiff alleged that his supervisor "constantly called him 'old man,' asked him when he was going to retire so that he could replace him with 'young blood,'" and told him, "I hope the swine flu virus comes through here and gets rid of you old timers."

[cue music]

When the plaintiff sought clarification as to whether the supervisor's swine flu comment was meant for him, the supervisor replied, "Yes, you got that right."

So, what do you think? Hostile work environment? Maybe so, according to a NY federal court, reasoning that a jury could find that the retirement and the swine flu comments, together with the calling the plaintiff "old man" every day, evidence persistent age-based animus.

Here's what I think. I think that with supervisors like this, I'll be gainfully employed for a long time.

September 9, 2013

GUEST POST: Three keys to maximizing your onboarding success

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Holly DePalma. Holly is Director, HR Services at MidAtlantic Employers' Association, a single source for HR services, delivering responsive, practical solutions to its members.

(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).

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Continue reading "GUEST POST: Three keys to maximizing your onboarding success" »

September 6, 2013

Under the ADA, even a 15-minute task may be an essential job function

15 circleKolja Vraniskoska worked as an Environmental Services Technician for Franciscan Communities, Inc., a nursing home. Ms. Vran-- (eh, let's go with Ms. V) -- had several responsibilities as an ES Tech, one of which was pushing and unloading a linen cart. Franciscan required that each ES Tech take a linen cart stocked with fresh linens and transport it from the laundry to their unit by pushing or pulling it down the hall. During the day, the linen cart remained stationary as the ES Tech took fresh linens from the cart. At the end of the day, the ES Tech had to push the linen cart back to the laundry. Transporting the linen cart took approximately fifteen minutes each day.

Ms. V gets hurt

During the course of her employment, Ms. V suffered a wrist injury. Initially, during recovery, her doctor advised that Ms. V should not use her left hand at all. So, Franciscan allowed Ms. V to perform light duty. Eventually, Ms. V's wrist improved to the point where should could lift up to five pounds. But, her condition never improved. So, Franciscan, which had a policy of providing temporary light duty during recovery, told Ms. V that she had 45 days in which to find another suitable position within the company, or be fired.

Ms. V gets fired and sues

And I wouldn't be writing this post unless Ms. V got fired, so, you know.

Among other things Ms. V claimed that Franciscan violated the Americans with Disabilities Act by failing to accommodate her disability.

While the parties agreed that Ms. V was disabled, they disagreed about whether she was otherwise qualified to perform the essential functions of her job with or without a reasonable accommodation. Specifically, the parties disputed whether using the linen cart, a task that took up only fifteen minutes of the work day, was an essential part of Ms. V's job.

Ms. V loses

In granting summary judgment to Franciscan (opinion here), the court found that operating the linen cart was an essential task; one which, on paper, was necessary for ES Techs to be able to perform their jobs. Further, the Court concluded that this function existed in practice as well. Moreover, Franciscan, which was entitled to substantial deference in determining which job duties are essential, had a valid reason for including it among the various duties of the ES Tech position.

Thus, just as twerking has transcended its fifteen minutes of fame into our permanent vernacular, so too may a discrete 15-minute task be so essential to ones job, that the inability to perform it makes all the difference between winning and losing a disability-discrimination claim.

September 5, 2013

Jury awards $280K to black female called N-word -- by her black boss

A black employee who claimed that her boss, also black, called her "nigger" eight times, had her day in court recently, as she put her race discrimination claims to a federal jury.

The defense argued that the use of the n-word here was culturally acceptable because both the "victim" and the "harasser" black. But, during closing argument, the plaintiff's attorney told jurors, "When you use the word nigger to an African-American, no matter how many alternative definitions that you may try to substitute with the word nigger, that is no different than calling a Hispanic by the worst possible word you can call a Hispanic, calling a homosexual male the worst possible word that you can call a homosexual male."

The jury agreed with the plaintiff. Larry Neumeister at The Huffington Post reports here, that the jury awarded the plaintiff $30,000 in punitive damages and $250,000 in compensatory damages.

While some may debate the impact of a white person directing the n-word at a black person versus a black person engaging in that same behavior, I'm not at all shocked that the jury didn't accept the defense's argument.

Remember folks, in a discrimination case, it does not matter the intent of the person making the comment. All that matters is how it is received and whether a reasonable person standing in the shoes of he "victim" would also be offended. So, use this case as a workplace lesson. Remind employees that what they say is all that matters -- not what they intend. And when it comes to slurs, any word that any employee could perceive as a slur should be off-limits -- no matter who says it or who hears it.

Hey, while some courts get into semantics, like considering which n-word is used when determining whether there exists a racially hostile work environment, don't allow your company to be the one that has to make that argument.

September 4, 2013

New NJ law bans retaliation against employees asked to give pay information

discrimred.jpgCash, Rules, Everything, Around, Me
C.R.E.A.M.
Get the money
Dollar, dollar bill y'all

[Did you know that your favorite blogger has been to not one, but two Wu-Tang concerts? 36 chambers of death, son. I lyrically perform armed robbery; way harder than Justin Bieber. Now, to the 3/4 of you I just lost there, let's get back on topic...]

On August 29, the same day that he signed the State's new workplace social-media-privacy law into effect, Governor Chris Christie signed legislation strengthening was is already a very strong law: New Jersey's Law Against Discrimination (LAD).

The LAD amendment forbids employers from retaliating against employees who are asked to disclose information regarding pay and benefits, where the information sought could assist in a discrimination action against the employer.

However, as Pamela Wolf at Wolters Kluwer notes, "nothing in the new law requires an employee to disclose such requested information about the employee herself to any other employee or former employee, or to any authorized representative of the other employee or former employee."

The new law takes effect immediately. So, protect ya neck!


September 3, 2013

NJ passes a business-friendly workplace social media privacy law

It takes two to make a thing go right.
It takes two to make it out of sight, palatable enough for bipartisan support.

Thumbnail image for nj1.jpg

It took some doing, but the State of New Jersey finally has itself a workplace social media privacy law, becoming the 12th state to restrict company access to prospective and current employee social media.

Back in the Spring, I reported here that the NJ legislature sent a version of the bill to Governor Christie. However, to protect NJ businesses, Mr. Christie conditionally vetoed the proposed legislation and sent is back to both the NJ House and Senate with some proposed changes.

Both the House and Senate accepted these changes and sent the amended legislation back to Mr. Christie, which he formally signed on August 29.

Like similar laws in other states, this new law prohibits employers from requiring prospective and current employees from disclosing online usernames and passwords. And while I do not advocate social-media-credential requests from employers, it's worth noting that there are severable notable differences in the new NJ law, which loosen the restraints on local companies:

  • Many public employers which deal in public safety are exempted;

  • Any employer may require that the login/password of any account maintained for business purposes of the employer -- even if created by a current or prospective employee -- be disclosed;

  • Employers can also demand login/password as part of several categories of workplace investigations;

  • Employers can ask a current or prospective employee if he/she has a social media account; and

  • Any aggrieved current or prospective employee may report an alleged violation to the Commissioner of Labor and Workforce Development, but cannot bring a private action against the employer.

The new law goes into effect on December 1.

August 30, 2013

What employers should know about the ADA and fitness-for-duty exams

amandabynes.jpgImagine, if you will, that two years ago you hired Amanda Bynes to be your Social Media Manager. Things are going pretty smoothly, until your customers begin complaining that company's Twitter feed has gone from informative and witty to curious and more-or-less bizarre.

After reviewing the tweets for yourself, you wonder whether you picked the wrong week to quit sniffing glue Ms. Bynes is fit to perform the job of Social Media Manager. One tool in your arsenal is a fitness-for-duty evaluation with a medical provider.

But if you send Ms. Bynes for this test, she fails, and you end up firing her, does that mean that you have violated the Americans with Disabilities Act?

According to this recent MD federal court decision, probably not:

A request that an employee obtain a medical exam may signal that an employee's job performance is suffering, but that cannot itself prove perception of a disability because it does not prove that the employer perceives the employee to have an impairment that substantially limits one or more of the employee's major life activities. Deteriorating performance may be linked to motivation or other reasons unrelated to disability, and even poor performance may not constitute a disability under the ADA.

Therefore, in this particular instance, you may require that Ms. Bynes submit to a fitness-for-duty test. However, the rules governing medical examinations and the ADA can be complicated. So, be sure to consult with an employment lawyer before requiring an employee to submit to any sort for medical examination.

August 29, 2013

Enforce your employee call-in/notice requirements -- even for FMLA leave

fmla.jpegIn that handbook of yours should be a page -- maybe a few lines -- on an employee's responsibility to notify you if they are going to miss work. Who to call, when to call, that kind of stuff.

A recent case from the Sixth Circuit (this one) reaffirms that employees need not relax these rules -- even when the employee is seeking leave under the Family and Medical Leave Act. 

In White v. Dana Light Axle Manuf., the employer had a simple rule: when you're going to be out, call it in. The plaintiff, who needed FMLA leave for a hernia surgery, assumed that because he had previously met with the employer in person to discuss his upcoming hernia surgery, he didn't need to later call in his absences.

Unfortunately for the plaintiff, the U.S. Department of Labor disagreed when implementing its FMLA regulations, which state that "[w]here an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied. . . ." In other words, an employer may condition FMLA leave on its employee properly following it's notice requirements. Consequently, the Sixth Circuit held that even though the plaintiff may have otherwise discussed FMLA leave with his employer, the employer could still fire the employee for not following the call-in requirements of its attendance policy.

So, here's the deal. Just because someone is taking FMLA leave doesn't give that person a free pass to ignore your call-out rules. Just make sure to apply your call-out/attendance policy evenly to everyone -- those who take FMLA leave, and those who take leave for non-FMLA reasons. Because uneven enforcement smacks of FMLA interference.

August 28, 2013

FACT OR FICTION: Permanent light duty is an ADA reasonable accommodation

Thumbnail image for ffiction.pngThat'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."

Today, I'm speaking at the EEOC EXCEL Conference in Denver, CO. It's an incredible honor, given that this is the first year that the conference has not only catered to public sector employers, but also those in the private sector.

(Well, at least, that's what someone at yesterday's networking reception, so I'm going with it).

My topic is the so-called "Bermuda Triangle of Leave": ADA, FMLA and Workers Compensation. One of the topics I'll discuss is light duty. So, for those of you who cannot attend, let's make this post a topical two-part QATQQ.

  1. May an employer force an employee taking leave under the Family and Medical Leave Act for his own serious health condition to work light duty in lieu? Nope. The FMLA permits eligible employees to take up to 12 workweeks of leave. Leave is leave. Period. There is no such thing as light duty under the FMLA. Even if an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave.

  2. Can an employer be stuck providing permanent light duty as a reasonable accommodation under the ADA? Well, probably not. This is best addressed with an example. Let's say that an employee's job is to stack heavy boxes. A year into his employment, the employee suffers a devastating wrist injury. If the employee is offered temporary light duty work as a reasonable accommodation, and the employer has made it known that permanent light duty is not an option, then the employee cannot keep that light-duty job permanently. However, if the employer knows that the wrist injury is permanent and the employer places the employee into what could reasonably be viewed as a permanent light-duty position, then the employee may have effectively changed the essential functions of the employee's position (lifting boxes) to light duty (something other than lifting boxes). Consequently, the employer may have to keep that employee in the light duty position.

August 27, 2013

That's what they said: Solving your Labor Day employee-pay issues

theysaid.jpgMonday is Labor Day, the day I plan to break the Guinness World Record for twerking and eating BLTs -- they call it BLTwerking a tribute to the American Worker.

If you give your employees the day off on Labor Day, a national holiday, do you have to pay them?

My buds Jon Hyman and Mike Haberman have your answers here and here.