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.

October 24, 2013

Court rules that company need not allow mass unscheduled prayer breaks

coexist.jpgWe're talking religious accommodations here at the ole Handbook. 

Last week, it was the Mark of the Beast. Before that, we explored Ramadan bagel parties

Today, we're sticking with the Ramadan theme. Unfortunately, I don't know any Ramadan tunes to soundtrack this post. So, let's just go with Christian rock.

Now, back to Ramadan. In EEOC v. JBS USA, LLC, several Muslim employees at a meatpacking plant argued that their employer engaged in religious discrimination when it failed to allow them to take unscheduled prayer breaks. Specifically, Muslim representatives told JBS that the Muslim employees "have to pray within 10 minutes of sunset and at the most 15 minutes after sunset." JBS responded that it could not relieve 200 employees within a 10-minute window because of safety and quality concerns created by such an accommodation.

To establish religious discrimination for failure to accommodate, an employee must demonstrate that he or she (1) has a bona fide religious belief that conflicts with an employment requirement, (2) informed the employer of this belief, and (3) was disciplined for failing to comply with the conflicting requirement. The burden then shifts to the employer to show that the requested accommodation would have caused it undue hardship. This can be shown in one of two ways: added cost to the employer or an imposition on co-workers.

So, mass unscheduled prayer breaks? I'm thinking this may cause an undue hardship. Amirite, United States District Court for the District of Nebraska?

The evidence demonstrates that this accommodation would have imposed more than a de minimis burden on JBS, as well as on co-workers...The evidence demonstrated that extra employee breaks could have an adverse effect on food safety. Safety concerns are highly relevant in determining whether a proposed accommodation would produce an undue hardship on the employer's business....The evidence demonstrates that unscheduled breaks in the manner proposed by the Muslim employees also would have imposed more than a de minimis burden on non-Muslim co-workers. Such unscheduled breaks would have required a supervisor, lead worker, trainer, or coworker to fill in for the employee leaving the line. The substitute, therefore, would not be performing his or her own job while covering for the absent employee.

Yes, while the threshold for establishing something more than a de minimis burden on the company or co-workers is rather low, just be careful about denying accommodations to one religion, while allowing them to another. That's an easy way to find yourself on not only the receiving end, but also the losing end of a religious discrimination lawsuit

October 23, 2013

New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers

If only I had a hot tub time machine, I would have gone back a day and a half and scooped Phil Miles at Lawffice Space and posted "New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers" before he did.

Except I didn't.

So read his post entitled "New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers." It's really good.

Lesson learned. Now, I'm on my game! So, tonight, my marching band and I are going to do an original tribute to Michael Jackson at halftime of a local high school football game. So, I'll post that here tomorrow.

Wait, WTH!

October 22, 2013

New NJ bill targets pregnancy and childbirth discrimination

New Jersey is the home of deep fried hot dogs and the Law Against Discrimination, one of the most employee-friendly anti-discrimination statutes in the country. Here, pregnant employees can order a ripper with relish at Rutt's Hut, but, somehow, are not entitled to preferential leave treatment in the workplace.

However, a new bill pending in the NJ Senate would change all that.

Not the hot dogs, silly. They rule. You know what doesn't rule? Leaving a quart of Rutt's Hut relish in the backseat of your buddy's car overnight during a high-90s Summer heat wave. Sorry, dude.

But about that bill. Christina M. Michelson at BusinessLawNews.com has the scoop:

Under the proposed legislation, a woman affected by pregnancy cannot be treated, for employment-related purposes, in a manner less favorable than other persons not affected by pregnancy but similar in their ability or inability to work. The proposed amendment to the LAD specifically requires employers to make available reasonable accommodation for pregnancy-related needs when requested by the employee with the advice of her physician. It also prohibits the employer from penalizing the employee in terms, conditions or privileges of employment for using the accommodations or, when accommodations are not feasible, for taking time away from work required by the pregnancy, as certified by a physician of the employee taking into account the condition of the employee and the job requirements.

You can view a copy of the proposed legislation here.

October 21, 2013

Nearly half of employers investigate job applicants online

onlinesearch.jpg

This according to a CareerBuilder.com survey (here) released last week. 

Of the 2,775 hiring managers polled, almost half (48%) responded that employers will use Google or other search engines to research candidates. Nearly the same number (44%) will research the candidate on Facebook. Just over one quarter (27%) will monitor the candidate's activity on Twitter. 23% will review the candidate's posts or comments on Yelp.com, Glassdoor.com or other rating sites.

The survey cites these statistics as a way to encourage job seekers to keep their online personas clean from digital dirt. So, I'll take a different approach and offer some tips for employers:

  1. Employers are not required to conduct an online background check of job applicants. If you do, it's generally best to avoid demanding that applicants disclose social media usernames and passwords. This approach is illegal in many states and is likely to rub your candidates -- the ones you want to like working for you -- the wrong way.

  2. Wait until after the interview and before making the job offer to run the online search. This will save you time by minimizing the number of searches.

  3. If you use a third party to search, remember that the Fair Credit Reporting Act applies. And if you don't, it's probably a good idea to inform your applicants anyway that you will be vetting them online.

  4. Have someone other than the decisionmaker search. What the decisionmaker doesn't know (e.g., the applicant's national origin, disability, pregnancy, sexual orientation) won't factor into the employment decision. Instead, have someone else research the applicant online, redact all of the protected-class information, and provide the decision maker with only the red flags that should influence an employment decision (hate speech, productivity issues, drug use, etc.)

  5. Give the applicant a chance to explain. Not everything you read online is true. Other information can be taken out of context. If you find something questionable about an applicant, allow that person an opportunity to address it before making an employment decision.

October 18, 2013

Does the FLSA require paying employees who wait in security lines at work?

True story.

Back in 1999, when I was in law school in Washington DC, I went with my buddy to see The Matrix at the Uptown Theater in Cleveland Park. At the time, the Uptown was one of the best places around to watch an action flick. And what better movie to see than The Matrix -- one of my top 10 movies of all time.

WTH does this have to do with the Fair Labor Standards Act? 

Uh, duh...

[Humor me and click through, would ya?]

Continue reading "Does the FLSA require paying employees who wait in security lines at work?" »

October 17, 2013

An employer is not required to change supervisors as an ADA accommodation

yellingboss.jpgWork got you anxious and depressed? Well then, you may be disabled under the Americans with Disabilities Act. But if you think that the ADA requires your employer to transfer you away from the supervisor who is giving you a hard time, think again.

In Lu v. Longs Drug Stores (opinion here), Ms. Lu claimed that her supervisor discriminated against her based on her national origin and then retaliated against her after she complained. She further alleged that the abuse caused her to develop anxiety, depression, shingles, and diabetes.

On Ms. Lu's behalf, her treating physician requested that the employer transfer her away from her supervisor. The employer declined and, ultimately, terminated Ms. Lu after she missed over a year of work to treat for her various disabilities.

Ms. Lu sued then under the ADA only, claiming that the employer had failed to reasonable accommodate her. The employer admitted that Ms. Lu was both disabled and had suffered an adverse employment action. However, it argued that the transfer request was unreasonable because the law does not require an employer to transfer a disabled employee away from a supervisor.

The court agreed:

The law forecloses Ms. Lu's arguments that a transfer to a different Longs store would have been a reasonable accommodation in this case.... Regardless, ... there is no question of fact that the communications from Dr. Wu failed to convey to Longs that Ms. Lu could return to work if she obtained the accommodation of a transfer.... Accordingly, a transfer would not have been a reasonable accommodation in the specific circumstances of this case because there is no evidence to suggest that a transfer would have allowed Ms. Lu to return to work and perform the essential functions of her job.

Now, while the employer here prevailed on the ADA transfer issue, it may have dodged a bullet when Ms. Lu elected not to pursue claims of national origin discrimination and retaliation.

Don't forget that while the ADA may not require a transfer away from a supervisor, Title VII charges employers with taking steps that are reasonably designed to end discrimination in the workplace. One way this can be done is by transferring the harasser. Another is by transferring the victim.

So, slow down and remember the interplay between anti-discrimination laws...

October 16, 2013

That's what they said: Social media and the workplace and the lawsuits

theysaid.jpgOne social media-related post in October. One may be good enough for the Red Sox -- eat it, Detroit -- not here.

So, with a little help from my friends, I've got three stories on the the impact that the technology in the workplace has on litigation proceedings.

Over at the Technology & Marketing Law Blog, Venkat Balasubramani writes here about a recent decision in which a court found that a passenger's social media rant against and airline employee may not have been defamation, but it was enough to create a claim of "false light."

Molly DiBianca at the Delaware Employment Law Blog (here) details a case in which the discoverability email is at issue. There, the court found that the employer defendant had to preserve relevant email from the personal email accounts of three of the company's former officers, because, the company should have known that these individuals were conducting company business from these personal email accounts.

Finally, we have this complaint I saw filed in Maryland federal court last week, where the plaintiff alleges that his former employer violated his First Amendment rights when it fired him for what the plaintiff described as "a satirical comment concerning assault weapons legislation" on his Facebook page. Specifically, the plaintiff wrote, "My aide had an outstanding idea .... Let's kill someone with a liberal ... then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal with another liberal ... its almost poetic..." He then "liked" a Facebook friend's response, which read, "But ... was it an '[assault] liberal'? Gotta pick a fat one, those are the 'high capacity' ones. Oh pick a black one, those are more 'scary.' Sorry had to perfect on a [sic] cool idea!"

Can't wait to see how that one turns out.

October 15, 2013

EEOC sues over failure to accommodate the Mark of the Beast

Play us in Keith Richards...

Last month, the EEOC announced here that it had sued two companies, claiming that they violated federal law by failing to accommodate an employee's religious beliefs:

According to the EEOC's lawsuit, Beverly R. Butcher, Jr. had worked as a general inside laborer at the companies' mine in Mannington, W.V., for over 35 years when the mining companies required employees to use a newly installed biometric hand scanner to track employee time and attendance. Butcher repeatedly told mining officials that submitting to a biometric hand scanner violated his sincerely held religious beliefs as an Evangelical Christian. He also wrote the mining superintendent and human resources manager a letter explaining the relationship between hand-scanning technology and the Mark of the Beast and antichrist discussed in the Book of Revelation of the New Testament and requesting an exemption from the hand scanning based on his religious beliefs.

In the complaint filed in federal court in West Virginia, the EEOC claims that the two employers refused to consider other ways to track Butcher's time and attendance, "such as allowing him to submit manual time records as he had done previously or reporting to his supervisor, even though the mining company had made similar exceptions to the hand scanning for two employees with missing fingers."

This case serves as a reminder for employers that even though an employee's religious beliefs may seem strange, as long as those beliefs are sincerely held, the law requires that employers accommodate them absent undue hardship.

(h/t Donna Ballman @employeeatty)

October 14, 2013

NY Court: Indefinite leave may be a reasonable accommodation for disabilities

fmla.jpeg

New York City.

As Jay-Z and Alicia Keys sang, it's the "concrete jungle where dreams are made of. There's nothin' you can't do."

That includes taking indefinite leave as a "reasonable" accommodation under the New York City Human Rights Law.

Yep. That's what the song means. Trust me. It's in the liner notes.

HOVA foreshadows this recent decision, in which the NY State Court of Appeals held that leave for an indefinite period of time may, indeed, be a reasonable accommodation -- unless the employer can show that it would cause an undue hardship.

Richard Cohen at the Employment Discrimination Blog wrote here about why this ruling will leave a worse taste in employer's mouth than the City's froo-froo salsa: 

This ruling, although virtually preordained by the City law's edict that it be construed "broadly in favor of discrimination plaintiffs" to effectuate the law's "uniquely broad and remedial purposes" (as this Court reiterated) is nonetheless a blow to employers who have relied upon interpretations of New York state and federal statutes which have found that an indefinite leave is not a reasonable accommodation.

Now, courts agree that the Americans with Disabilities Act, which contemplates a number of possible forms of reasonable accommodation, doesn't go so far as to include indefinite leave among them. However, employers in NYC and in other localities with disability discrimination laws more expansive than the ADA shouldn't dismiss an indefinite leave request out of hand.

October 11, 2013

FACT OR FICTION: FMLA and workers' compensation may run concurrently

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."

Earlier this week, I spoke at the SHRM Lehigh Valley Annual Conference on leave issues under the Americans with Disabilities Act and the Family and Medical Leave Act. During the course of our discussion, not only did we address the interplay between these federal laws, but we also touched upon the impact of workers' compensation laws. 

One question that came up is whether an employer can require that an employee take FMLA leave concurrently with workers' compensation leave.

Absent a collective bargaining agreement provision to the contrary, the answer is yes. But here are a few other things you should know about the interplay (all of this comes from a Department of Labor Opinion letter):

  1. Where an employee is collecting workers' compensation, which is also a serious health condition under the FMLA, the employer cannot require the employee to substitute any paid vacation, personal, or medical or sick leave, for any part of the absence that is covered by the payments under the workers' compensation plan. Similarly, an employee is precluded from relying upon FMLA's substitution provision to insist upon receiving workers' compensation and accrued paid leave benefits during such an absence. However, the employer and employee may be able to agree to paid leave to supplement the workers' compensation replacement income.

  2. An employer may not recover health insurance premiums from an employee taking FMLA and workers' compensation concurrently, if the employee does not return to work. Also, an employer may not recover any non-health benefit premiums paid during a FMLA-designated temporary disability leave or workers' compensation absence, as opposed to during unpaid leave.

  3. If the employer designates workers' compensation as FMLA leave, then the employee is entitled to all employment benefits accrued prior to the date on which the leave commenced.

Now, if you'll excuse me, I'm trying to figure out what the fox says.

October 10, 2013

Must an ADA requested accommodation correlate to an essential job function?

Oil StainsTo receive the protections of the Americans with Disabilities Act, an individual with a disability must be qualified to perform the essential functions of the job with or without reasonable accommodation. Absent undue hardship, an employer must provide a reasonable accommodation.

So, you'd think that the ADA would require a link between a requested accommodation and an essential job function. Well, not so much according to this recent decision from the Fifth Circuit Court of Appeals, a case in which the Attorney General's office refused to accommodate one of its attorneys who requested a parking spot close to the office.

Noting that the text of the ADA specifically contemplates "making existing facilities used by employees readily accessible to and usable by individuals with disabilities," without any indication that an accommodation must facilitate the essential functions of one's position, the Fifth Circuit held that the ADA does not require a nexus between the requested accommodation and the essential functions of the position.

Putting all that aside, what bothers me here is that what the plaintiff was requesting on the difficulty scale strikes me as about a 2 out of 10. There are certain accommodation requests which, to me, are no-brainers; e.g., an orthopedic office chair for a bad back, a screen magnifier for vision issues, a wrist rest for carpal tunnel. A closer parking spot for, in this particular case, osteoarthritis of the knee, is hardly worth a fight.

When an employee comes to you with an accommodation request, maybe you should think about the value of the accommodation versus the cost of litigation when you deny it.

(h/t Employment Law Lookout)

October 9, 2013

Employee -- a grown man for God's sake -- claims he was fired for being a brony

Readers: A brony is a male fan of the children's television show My Little Pony.

(This is the part where you let everything that you've read thus far sink in, as you watch this clip, close your office door, and laugh hysterically. Go ahead. It's ok).

According to Gawker, the brony posted to Reddit that his co-workers gave him a raft of crap for setting his office computer screensaver to Applejack, a My Little Pony character.

(Go ahead. Really, it's ok to laugh).

After getting called into his boss' office and told to change his screensaver because, you know, it's creepy as all hell when a man in his 30s has a My Little Pony screensaver on his office computer, the former employee relented.

That is, until a few months later when, on Take Your Child to Work Day, the brony saw that the boss's daughter was wearing a Rainbow Dash t-shirt, and commented to her that he likes the shirt. (Rainbow Dash is also a My Li--- yeah, you get the idea).

Eventually, the brony claims he was was fired for being a brony, but not before calling HR to obtain some answers surrounding his termination.

Could you imagine being on the receiving end of that call? I bet there's nothing in that PHR certification of yours to prepare you for that one, is there?

Anyway...

Legal "Brony discrimination" or unlawful sexual stereotyping?

There is a serious point to this post. 

*** searches desperately for serious point to an otherwise gratuitous post ***

As I've noted before, Title VII does make it unlawful to stereotype based on a person's gender non-conforming behavior. So, taking the brony's version of the facts as true, would he have been fired if he were a woman? I'd like to think yes and, therefore, what happened here was perfectly legal. Because, damn, what grown person -- male or female -- would think it professional to have a My Little Pony screensaver at work.

But, then again, what do I know? I have an Allen Iverson fathead in my office and heard about this brony story listening to Howard Stern on the ride back from speaking at an HR conference yesterday. So that, plus this blog, makes me a bit of an enigma and probably the wrong person to ask.

What do you think? Did the brony's former employer break the law? Or was the employer justified in firing the brony? Let me know in the comments below.

October 7, 2013

Court destroys my "Ravishing Rick Rude" theory of same-sex harassment

Cut the music.

A little over a year ago, I wrote here about a steel worker named Kerry Woods. Unfortunately for Mr. Woods, he was on the receiving end of a constant barrage of "raw homophobic epithets and lewd gestures" from his supervisor. Notwithstanding, the Fifth Circuit Court of Appeals tossed out a $500K jury award for Mr. Woods, holding that Mr. Woods's same-sex sexual harassment claims failed because he failed to satisfy the Supreme Court's test in Oncale v. Sundowner Offshore Services, Inc.

Oncale was another same-sex harassment case involving employees at an oil rig. In Oncale, the high court held that a jury may infer that same-sex harassment occurred because of sex when the plaintiff can produce:

  1. credible evidence that the harasser was homosexual;

  2. evidence that makes it clear that the harasser is motivated by general hostility to the presence of the same sex in the workplace; or

  3. comparative evidence about how the alleged harasser treated members of both sexes in the mixed-sex workplace.

As Mr. Woods failed to satisfy any of the three Oncale elements, the Fifth Circuit overturned the jury award in his favor. This led me to dork out by likening employment law to wrestling develop the Ravishing Rick Rude / Adorable Adrian Adonis test: "Put simply, if the plaintiff is stereotypically masculine, like Rick Rude, a theory of sexual stereotyping will fail and so will a claim under Title VII."

Last week, the Fifth Circuit Court of Appeals (here) reconsidered, reversed itself and, in doing so, gave my theory the rude awakening. First, it held that a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping. Further, it recognized that the Supreme Court did not intend for its Oncale three-part test to be exclusive; but rather, illustrative. That is, to prevail on a same-sex sexual harassment claim, a plaintiff need only show that his harasser stereotyped him as "insufficiently masculine."

The recent opinion provides further reason for employers not to tolerate offensive remarks of any sort in the workplace.

Now, hit the music.

.
October 4, 2013

Court holds that anxiety from possibly getting fired is an ADA disability.

workanxiety.png

Let me tell you about a teacher in South Dakota. In 2010, she received a letter communicating concerns about her performance. Subsequent evaluations of the teacher's classes noted several deficiencies. So, the school placed the teacher on a performance improvement plan.

It was right around this time that the teacher met with a physician's assistant, who diagnosed the teacher with "anxiety and depression, likely stemming from her concerns about possibly getting fired." 

So, at the teacher's request, the physician's assistant wrote a letter to the school seeking a laundry list of accommodations, including:

  • restructuring her job to include only essential functions if stressful situations continue to negatively impact her
  • encouraging her to walk away from stressful confrontations with supervisors; and
  • providing coverage if she becomes overwhelmed with stress from the work environment and needs to leave

The school responded to the full list of accommodation requests, agreeing to provide some, rejecting some, and requesting clarification as to others.

A few months later, after the PIP ended, the school recommended against renewing the teacher's contract, delivering to her a "notice of his intent to recommend nonrenewal." Shortly after receipt of the notice, the teacher took a medical leave of absence for the rest of the school year, after which her contract was not renewed.

The teacher then sued for discrimination under the Americans with Disabilities Act.

What is a disability under the ADA?

The ADA requires employers to accommodate a disabled employee if, doing so, will allow that employee to perform the essential functions of her position without resulting in undue hardship for the employer. An employer who fails to discharge these obligations has violated the law. 

However, to make out a "failure to accommodate" claim, the employee most first establish that she has a "disability." One example of a disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities of such individual. Major life activities include, but are not limited to, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, . . . learning, reading, concentrating, thinking, communicating, and working." 

This includes conditions arising from the fear of possibly getting fired.

The burden of proving a disability is rather light. But could it even include anxiety and depression about possibly getting fired? According to this recent federal court opinion, yes:

When asked what activities of daily living Huiner [the teacher] was unable to perform, Buman [the physician's assistant] stated she was unable to maintain her nutritional needs, had difficulty caring for her children, and had sleep pattern deficits. The medical records from Huiner's appointments with Buman correspond to Buman's testimony. Huiner's difficulty maintaining her nutritional needs is further evidenced by her significant weight loss during that time period; she lost over thirty pounds from September 7, 2010, to June 29, 2011. Based on this evidence, the court finds Huiner has come forth with sufficient facts to make a prima facie showing that her anxiety constitutes a disability under the ADA. This is especially the case when considering the relaxed standards imposed under the ADAAA for determining what constitutes a disability.

Hear that? It's the sound of litigation floodgates opening. 

And my pockets getting fatter.


October 3, 2013

Fan gets fired for playing hooky to maintain his Yankee Stadium attendance streak

yankeestadium.jpgYou're probably thinking to yourself, "What kind of person cares that much about going to a baseball game that he would risk losing his job over it?"

The guy who hasn't missed a Yankees home game for 38 years.

According to this CBS2 New York Report, Joseph Neubauer, who hadn't missed a Yankees home game since the 1970's, was fired from his position because he didn't want to mess up an attendance streak at Yankee Stadium.

It all went down last year. Mr. Neubauer, who worked for the City of New York, was scheduled to attend a night game at Yankee Stadium. Unfortunately, the game was rained out and rescheduled for the following afternoon. Mr. Neubauer, who had run out of paid time off, opted to skip work to keep his attendance streak alive.

And, for that, he got fired.

Now, before you start tuning up the violin, the CBS2 story further notes Mr. Neubauer's attendance issues went far beyond one unexcused absence:

A Judge suspended him for 60 days without pay in 2011 for going to Phoenix for the All-Star game even though his vacation request had been denied.
A year prior to that Neubauer had been suspended for 25 days after calling out sick for 13 Yankee games. Despite his problems in the past, Neubauer said he just wants his job back.

Well, at least now, nothing stands in the way of Mr. Neubauer attending the Yankees' playoff games this season. 

Oh...