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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.

November 28, 2014

Black Friday HR-Dorkbuster!!! Silent ADA accommodation requests

[Because "The one about the guy who got fired and then requested a reasonable accommodation" isn't clickbait enough].

More on the timing of ADA accommodation requests after the jump...

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Continue reading "Black Friday HR-Dorkbuster!!! Silent ADA accommodation requests" »

November 26, 2014

What the EEOC plans to tell employers about wellness programs

The U.S. Equal Employment Opportunity Commission is obsessed with wellness programs.

Or, as the EEOC likes to describe them "'so-called' wellness programs." And not in a "yay, so-called wellness programs are super" kinda way.

No, in recent months, the EEOC has initiated litigation against companies (example, example, example) claiming that they violate the Americans with Disabilities Act and the Genetic Information Non-Disclosure Act by both requiring medical examination and penalizing employees who decline to participate.

Back in May 2013, one of the panel experts invited to speak at an EEOC public meeting on wellness programs lamented that, while the ADA allows employers to ask for medical information in connection with voluntary wellness programs, the meaning of "voluntary" merits further clarification.

EEOC Commissioner Lipnic too stressed that the EEOC has a "responsibility where possible to let stakeholders know the Commission's position on these important questions."

And Senate Republicans, well, they don't exactly see eye-to-eye with the EEOC on this issue.

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Have you cast your vote for The Employer Handbook as the top Labor and Employment blog in the ABA Journal's Blawg 100? If not, please take a few secs and do it here.

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And so the EEOC has announced (here), that in February 2015, it will provide wellness-program guidance to employers "to address numerous inquiries EEOC has received about whether an employer that complies with regulations implementing the final Health Insurance Portability and Accountability Act (HIPAA) rules concerning wellness program incentives, as amended by the Affordable Care Act (ACA), will be in compliance with the ADA."

The EEOC believes that its new guidance "will benefit entities covered by title I of the ADA by generally promoting consistency between the ADA and HIPAA, as amended by the ACA, and result in greater predictability and ease of administration," while imposing "no new or additional risks to employers."

As former EEOC Chair Berrien recognized at the EEOC's public meeting in May, there has been "broad, bipartisan support for the expanded use of wellness programs to reduce health insurance and healthcare costs." So, hopefully, the EEOC can strike a reasonable balance between the intent of these programs and federal anti-discrimination laws.

November 25, 2014

Apparently, the ABA Journal received my large, white bag with the $ on it

Or maybe it's the good karma from yesterday's Social Media @ Work giveaway.

Whatever it may be, I'll just smile and say thank you to the ABA Journal for honoring The Employer Handbook (again) as one of the top blogs in America.

Special props also go out to the other blogs honored in the Labor and Employment Category:

Eight great honorees. But, there can be only one. That's right, through December 19, you can cast your vote for the best Labor and Employment law blog of them all. Here's how...

  1. Click here.
  2. Register.
  3. Scroll down the page to the "Labor and Employment" category, and click on it.
  4. Click "Vote Now!" for your favorite blog.

The whole process takes 20 seconds.


And who's the reigning, defending, ABA Blawg 100 Champion of the World, you ask?

[Cue music]

[Let's try that again]

November 24, 2014

An early holiday gift to my reader (readers?)

Frankly, I'm disappointed, you guys.

To the 10,002 of you who read this blog, only 1 showed up at the Social Media @ Work event my firm hosted earlier in the month at the National Constitution Center in Philadelphia.

Ok, even my parents and kids skipped this one. (I almost had two of my kids in the audience. I offered some yellow post-it notes and a blue highlighter, but they bargained hard for an extra Jell-O cup, and I wouldn't cave).

Still, there were tons of people there. And our panel of three of the top national enforcers of labor and employment laws (1, 2, and 3) offered many valuable tips and takeaways for our audience of human resources professionals, business owners, and in-house counsel. It truly was hella-awesome.

If you missed it, you missed out.

But, hey, who loves ya! I've convinced my firm's marketing department to put together a monster recap e-blast, which includes links to video from the event and lotsa press coverage.

If you would like me to email you the full recap from Social Media @ Work, just drop me a line. I got your hookup.

November 21, 2014

What you need to know about the FMLA (in a sweet infographic)

Thank you to my friends at BambooHR for passing this along:

FMLA.png
November 20, 2014

Telling an employee returning from open-heart surgery, "Don't die at the desk" is bad. Very bad.

Also, threatening to drag that employee outside and throw him in a ditch. Yeah, that may fracture a law or two. I'm thinking the Family and Medical Leave Act.

Heck, even the Taliban would frown on that.

I got more on this for you after the jump...

Continue reading "Telling an employee returning from open-heart surgery, "Don't die at the desk" is bad. Very bad." »

November 19, 2014

EEOC: Complaints of discrimination down big in FY14; Mediation rules!

Yesterday, the EEOC issued its FY 2014 Performance Report. Here is a link to the press release.

Now, I'll admit it. I didn't read the whole report. Blogging has got me all messed up. I can't read anything that's more than 250 words. So, I just stopped at the part in the report where it said that total charges dropped by 5,000 in FY14. So, I didn't get to the part of the report that credits this blog, in particular, for the drop in charges. But, I assume it's in there somewhere.

I also wanted to give a nice shout-out to the EEOC's national mediation program, in which I participate as a pro-bono mediator. Of the 10,221 mediations conducted in FY14, 7,846 of 'em settled. Based on the math I just did in my head, that's a success rate of 97%. Ok, 77%. But, that's still pretty darn good. Shaq's free throw percentage is jealous.

Overall, the EEOC set 14 targets for itself, of which 7 were met and 7 were exceeded. So, kudos -- kids still say kudos, right? -- to the EEOC.

Finally, here are the results from Monday's WWHRD (What Would HR Do?) where I asked the following question: If your employee posted a racist, angry racist Ferguson tweet, how would you recommend that the company respond?

  • Termination 37%
  • Suspension 31%
  • Warning 17%
  • Nothing 6%
  • Other 8%

And, I'm pleased to report that 100% of you loved the poll! 


November 18, 2014

Is it against the law to remote wipe an employee's Candy Crush high score?

Replace Candy Crush high score with email contacts on a personal iPhone used for work (BYOD), and you have the issue that a federal court in Texas recently tackled.

The answer follows after the jump...

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Continue reading "Is it against the law to remote wipe an employee's Candy Crush high score?" »

November 17, 2014

#WWHRD: You just discovered your employee's angry racist Ferguson tweet

Last night, Mikhail Gorbachev and Ronald Reagan came to me in a dream.

You see, we were at a video arcade, the two of them playing the classic, Street Fighter. I had next. Mr. Gorbachev was playing as Zangief and President Reagan was Guile. Because, of course.

So, just as the Premier was about to close it out, the President dropped the controls, put Mr. Gorbachev in a headlock and gave him a noogie. I'm talking right on that spot! I mean, the more he noogied, well, the spot started to change colors. From red to silver to pure gold. At which point, Mr. Gorbachev turned to me and said,

"Meyer, start a series on your blog called What Would HR Do. Perestroika!"

Alrighty then. So, it begins. WWHRD coming up after the jump...

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Continue reading "#WWHRD: You just discovered your employee's angry racist Ferguson tweet" »

November 14, 2014

Train your supervisors not to shoot at those who complain about discrimination

Just another HR Pro Tip from your old buddy, Meyer. Hey, what would you guys do without me?

Sage advice for American businesses coming up after the jump...

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Continue reading "Train your supervisors not to shoot at those who complain about discrimination" »

November 13, 2014

In the County of Yolo, 100 hugs and a painfully awkward kiss aren't sexual harassment #YOLO

What else is there to blog about after reading a federal court opinion about Yolo (You Only Live Once) and sexual harassment?

Geez. Last night, I could have peed plutonium while flaming monkeys sprang forth from my word hole, and I still would have blogged Yolo.

More on Yolo after the jump...

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Continue reading "In the County of Yolo, 100 hugs and a painfully awkward kiss aren't sexual harassment #YOLO" »

November 12, 2014

Can you fire an employee who posts Nazi propaganda on Facebook?

Maybe you've heard about it. I'm giving a little spiel today on social media in the workplace with a few friends at an event in Philadelphia. If I play my cards right, I'll do as little speaking as possible on the dais.

Which means I'll get my two cents in after the jump and discuss on a hockey coach who was recently fired for posting pictures of Nazi propaganda on Facebook.

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Continue reading "Can you fire an employee who posts Nazi propaganda on Facebook?" »

November 11, 2014

Five great resources for HR about employing veterans

In honor of Veterans Day...

November 10, 2014

Sexting, flirting, but no sexual harassment here.

To prove sexual harassment, a plaintiff must have been subjected to pervasive or severe behavior based on the plaintiff's sex. Further, not only would an objective person have to find the behavior offensive, but the plaintiff must be offended as well.

Usually, when a plaintiff claims sexual harassment, a court takes for granted that conduct at issue offended the plaintiff.

But, I just read about a case that bucked the trend. 

More on this wacky case, and some workplace lessons for you guys...after the jump...

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Continue reading "Sexting, flirting, but no sexual harassment here." »

November 7, 2014

Accommodating a disabled employee generally does not require displacing another

The Americans with Disabilities Act requires that companies provide a reasonable accommodation to an employee with a disability, if doing so will allow the employee to perform the essential functions of the job.

The ADA contemplates a number of different types of reasonable accommodations. One such accommodation is a transfer into an open position for which the disabled employee is qualified. But what happens when there is no vacancy. Must an employer bump another non-disabled employee to accommodate the one with the disability?

As an Ohio federal court reminds us in this recent opinion that the answer is no, unless special circumstances exist:

Arthur claims that special circumstances exist here, and that ASI should have given him another employee's job, and transferred that employee to the machining job Arthur was offered. ...But Arthur has not shown that ASI permitted employees whose jobs were eliminated [like Arthur's] to "bump" other regular employees out of their jobs. The only evidence in the record shows that ASI's internal transfers were to open positions, or to positions that were filled with temporary employees. And Arthur has not identified any open positions or positions occupied by temporary employees, in any of the departments that he contends he should have been transferred to, such as operating a forklift or working in the rackroom.

What are the special circumstances that may arise? A pattern and practice of bumping employees could suffice. An established seniority system is another example. But absent special circumstances, disabled employees enjoy the same rights as other employees, no more; no less.