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 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!

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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" »

March 4, 2013

New federal bill would expand FMLA to cover part-time employees

fmla.jpegUnder the Family and Medical Leave Act (FMLA), employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.

Consequently, part-time employees generally do not qualify for FMLA leave because they do not meet the 1,250-hour requirement.

However, a new bill introduced last month in the U.S. House of Representatives would change that if signed into law. It's called the Part-Time Worker Bill of Rights Act of 2013 and you can download a copy of it here.

The Part-Time Worker Bill of Rights Act of 2013 would remove the 1,250-hour requirement. Thus, any employee with at least one year of service, working at a location where the company employs 50 or more employees within 75 miles, would qualify for FMLA.

Presently, the bill sits in Committee. It has a single sponsor, Rep. Janice Schakowsky [D-IL9], and govtrack.us gives it a 1% chance of passing.

March 1, 2013

How can the EEOC improve? Tweet your feedback with hashtag #QCP

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Earlier this month, the U.S. Equal Employment Opportunity Commission issued this press release in which it sought your feedback to improve its internal processes for investigating and conciliating charges of discrimination.

Well, the deadline is today.

Eek! Sorry, I got distracted remastering goat remixes should have reminded you earlier.

Geez. How can we fix this? Harlem shaking clothes dryer. Yeah, boy. Slapping together a big email isn't going to work. No time for that.

But, hey, we can work with this. And for my people, I went right to EEOC Commissioner Chai Feldblum for help.

So, if you have quality control suggestions for the EEOC, tweet them today before 5 PM EST with the hashtag #QCP. Commissioner Feldblum will read them. And, if you can spare a few of your 140 characters, toss me quick shout out, would ya?

Have a nice weekend.

February 28, 2013

GUEST POST: The Budding Burden of BYOD - Legal Issues Abound

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Shannon Dorvall. Shannon is a practicing Los Angeles criminal attorney. She is a graduate of the University of Montana law school, and has argued cases in front of Ninth Circuit Court of Appeals and the Supreme Court. When she isn't writing about law or actually practicing it, Shannon enjoys perfecting her cooking and catching up with a good book

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

Continue reading "GUEST POST: The Budding Burden of BYOD - Legal Issues Abound" »

February 27, 2013

A new workplace social-networking privacy bill surfaces in Philly

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Philadelphia may be poised now to follow in the footsteps of other states and municipalities that have passed similar laws to regulate what appears to be a non-existent problem.

I'll lay it out for you after the jump...

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Continue reading "A new workplace social-networking privacy bill surfaces in Philly" »

February 26, 2013

Repeatedly discussing your employee's sex life with her is bad, you guys.

Bedroom MitchamDuh, right?

Still, a federal appellate court recently reminded us (here) that, indeed, bad things happen when, every week for several months, a male supervisor tells his female subordinate that her husband is "not taking care of [her] in bed."

Though not threatening, they were more than merely offensive. For a male to say to a female employee under his supervision that her husband was "not taking care of [her] in bed" is the sort of remark that can readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess and can just as readily be found to have been perceived as such by the female employee. The weekly repetition of such a remark over several weeks only served to reenforce its offensive meaning and to make sexual intimidation, ridicule, and insult a pervasive part of Desardouin's workplace, effectively changing the terms and conditions of her employment....The allegations of repeated solicitation of sexual relations in a vulgar and humiliating manner suffice to warrant a trial.

I'll use this obvious blunder to raise a subtle screw-up of which you may unwittingly be guilty. Check the complaint procedure in your non-harassment policy. Does it provide that an employee who feels that he/she is being harassed must report the harassment to an immediate supervisor or manager? Because that wouldn't do much good in the situation discussed above. 

Instead, make sure that your complaint procedure affords employees a variety of reporting options (e.g., a direct supervisor, another supervisor, Human Resources, etc.).