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 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...

* * *

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.).

February 25, 2013

Yahoo! has a new no-telecommuting rule. Here's why it may be unlawful.

yahoologo.jpgOver the weekend, I read this article from Kara Swisher on AllThingsD.com, in which she reports that Yahoo!, under its new leadership, will implement a no-telecommuting rule, effective June 1.

Ms. Swisher posted a copy of the internal Yahoo! memorandum to its employees, in which the company underscores the "critical" need to be at the office versus working form home where "speed and quality are often compromised."

Sounds good in theory. But I have a little monkey-wrench.

How about the Americans with Disabilities Act?

Under the ADA, an employer must provide a reasonable accommodation to disabled employees where doing so will allow them to perform the essential functions of their job. As I've written here before, telecommuting may be a reasonable accommodation for an employee with a disability.

How can a business determine whether telecommuting is a reasonable accommodation? Well, it all begins with an individualized assessment of the employee and an interactive dialogue to discuss whether telecommuting is reasonable under the particular facts and circumstances affecting the employee. Conversely, generalizations and other other inflexible attendance rules, have gotten other employers into trouble.

Maybe Yahoo! has a reasonable-accommodation policy that will trump its new edict. Otherwise, its new rule may be a recipe for disaster.

For more on telecommuting as a reasonable accommodation, check out this EEOC resource.

February 22, 2013

@Eric_B_Meyer on DriveThruHR #dthr

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Have you checked out DriveThruHR yet?

DriveThruHR is the baby of Bryan Wempen and William Tincup, a half-hour radio show on which these two HR leaders, along with a guest, discuss the latest trends, thoughts and sentiment within the industry.

Yesterday, I was on DriveThruHR, Human Resource's #1 Daily Radio, talking social media and the workplace, Americans with Disabilities Act, hockey, and gettin' freaky with the mashed potatoes. Yeah, that's right. Hockey. 

Have a listen...




Listen to internet radio with
Wempen and Tincup and Nisha on Blog Talk Radio
February 21, 2013

8 employee-handbook tips from Django Unchained. Yes, seriously.

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My buds over at TLNT.com are running a series of movie-themed HR posts leading up to next week's Oscar Awards.
February 20, 2013

Supreme Court to determine what "clothes" are under the FLSA.

Korrektionsschutzbrille FrontansichtWith a title like that, this post could only arouse the interest of an employment lawyer. 

But, all of y'all should pay attention.

Under the Fair Labor Standards Act, the period of time during which a covered employee must be paid begins when the worker engages in a principal activity. Putting on and taking off (or, in legalese, "donning and doffing") protective clothing is considered a principal activity. However, the FLSA expressly provides that employees don't get paid for time spent "changing clothes" if a union contract says so.

The question that the Supreme Court must answer now, in this case, is what the heck are "clothes" under the FLSA?

  • Four circuits hold that "clothes" includes anything that can be worn on the person, even "accessories." Ah yes, clothes.

  • Another circuit has ruled that "special protective gear different in kind from typical clothing" is not clothing. Clothes?

  • And yet another circuit held that "clothes" does not include earplugs or safety glasses. Nice clothes, but no "clothes."

In any event, sometime later this year, maybe we'll get an answer to this question. 

For those of you in a unionized environment, you'll want to tune in to make sure to get this right to avoid violating the Fair Labor Standards Act.

February 19, 2013

Manager's drunk Facebook threats + Boss's Buddha blogging = retaliation claim?

CoyoteUgly.LYH No body shots here; just a swift federal court kick to Coyote Ugly's social-media jewels.

You get the ice. I'll pour a double and serve up the details after the jump...

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Continue reading "Manager's drunk Facebook threats + Boss's Buddha blogging = retaliation claim?" »

February 15, 2013

GUEST POST: The ADA and Test-Taking

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's my colleague, Katharine Hartman. Katharine is an associate in Dilworth Paxson's Labor & Employment Group, but also asked that I give a little shoutout to our new Test Publishing, Certification and Licensure Group.

So holla!

After the jump is a little cross-over between the two. Hope you like it.

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

Continue reading "GUEST POST: The ADA and Test-Taking" »

February 14, 2013

Bitter Barista blogs his way out of job by smack-talking customers, boss

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Facebook firings have been so en vogue recently. See, Exhibits A, B, and C.

But, let's not forget that there are many other social-media platforms off of which employees can belly-flop into the unemployment pool.

{That image seemed somehow less harsh in my head. Now that I see it on screen. Oh well...}

Last month, you had the waitress who posted the receipt of a non-tipper on Reddit.

But the latest misfire is near and dear to my heart. A Washington coffee-shop employee -- of course -- has lost his job because of his snarky blog comments about customers and his boss, so reports the Seattle Times.

According to the article, the blogging barista was pouring joe to "help make ends meet while he pursued a career as a hip hop artist going by the name 'Spekulation.'" Since then, Spekulation blogged, "My ex-boss thinks the website is gonna stop because I don't work there anymore. Man, I didn't even work there when I worked there!"

Anyone here think the coffee shop overreacted? 

Yeah, me neither.

February 13, 2013

Will Congress expand FMLA to include bereavement leave?

fmla.jpegYesterday, we addressed (here) the possibility of Congress taking up paid sick leave shortly.

Now, there is word that the Parental Bereavement Act, last considered in 2011 as an amendment to the Family and Medical Leave Act, is back on the table.

Last week, in this press release, Senator Jon Tester (D-MT), announced that he and and Congressman Steve Israel (D-N.Y.) will champion the effort to change the FMLA to allow  parents grieving from the death of their son or daughter to receive up to 12 weeks of job-protected time-off.

You can find a copy of of the bill here

February 12, 2013

Keep an eye out for a new paid-sick-leave bill in Congress

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Coming soon, so says Senator Tom Harkin here.

Known as the "Healthy Families Act," this bill was introduced in the House in 2009, and again in both the House and Senate in 2011, but never got much traction.

But now, in addition to Senator Harkin, former President Bill Clinton is stumping for paid FMLA.

And, recently, steps have been taken to expand protections under the Family and Medical Leave Act for military families and airline flight crews.

Given the Republican majority in the House, I'd be surprised if a paid FMLA bill made it to President Obama, who would surely sign it.

February 11, 2013

Pennsylvania nears a game-changing whistleblower-law amendment

Can you blow my whistle baby, whistle baby.
Let me know.
Girl I'm gonna show you how to do it.
And we start real slow.
You just put your lips together.
And you come real close.
Can you blow my whistle baby, whistle baby?
Here we go.

Concerned with the limited scope of Pennsylvania's Whistleblower Law, the existential activist Flo Rida wrote the 2012 hit Whistle to raise awareness and trigger a potentially huge change in the law.

{Editor's Note: No he didn't. Not at all.}

Still, last week, the Pennsylvania House of Representatives unanimously passed this proposed amendment to the Whistleblower Law, which would expand its scope to include employees of any employer that "receives money from a public body to perform work or provide services."

Presently, the law prohibits retaliation against only public employees who, in good faith, report (or are about to report) either:

  1. An employer's conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources belonging to or derived from Commonwealth or political subdivision sources.

  2. A violation which is not of a merely technical or minimal nature of a Federal or State statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest of the public or the employer.

On top of expanding the scope of whistleblower protection in PA, the legislation would also increase penalties on individuals who violate the law's provisions. Individuals found guilty would face a fine of $10,000 (currently $500) and would be suspended from public office for a period of seven years (currently six months) for preventing disclosure of criminal activity.

The bill now moves to the PA Senate, where it now sits in the Labor and Industry Committee, for consideration.