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.

May 14, 2013

Court orders re-hiring a teacher who wished her students a watery death

Thumbnail image for teacherfacebook.jpegBy now, the whole teacher blasting her job on Facebook is like death and taxes to me. I can't a go a week or so without reading about a teacher posting photos of duct-taped students or a teacher wishing that her "devils spawn" students would drown in the ocean.

Well, here's a new one. 

Last week, a court ordered the NY school to re-hire the teacher it had fired for wanting to send her hellish kids to their watery graves.

Yeah, I know. Shocking!

The Court reasoned (here) that an otherwise good teacher had a momentary lapse of judgment when she expressed her frustration to a limited Facebook audience, and immediately expressed remorse:

Although the comments were clearly inappropriate, it is apparent that petitioner's purpose was to vent her frustration only to her online friends after a difficult day with her own students. None of her students or their parents were part of her network of friends and, thus, the comments were not published to them, nor to the public at large, and petitioner deleted the comments three days later....Under the circumstances, which includes the lack of a prior disciplinary history during petitioner's 15-year career, and her expression that she would never do something like this again, Supreme Court properly found the penalty of termination to be shocking to one's sense of fairness.

You know what is shocking to me? A teacher wishing that her students would drown in the ocean.

And the whole rationale that the teacher's Facebook friends didn't include parents and students? Really? Do I have insider information? Is this blog post a "The Employer Handbook exclusive"? No, that's the thing about social media. Whether you post for a small audience or make your comments publicly available, once you hit send, you should not expect that what you say online will remain private. So, although this teacher intended only that certain Facebook friends would read her comments, they ended up going very public. So, her intent shouldn't matter.

The court got this wrong.

May 13, 2013

Horniest boss ever? His employee still can't prove sexual harassment.

I've been searching for gold recently. So, I knew I was on to something good when I started reading this opinion last week, and wasn't sure whether what I was reading was a sexual harassment case or a porno script.

What can I say? I like the plots.

Folks, if you click through, I promise you a great read after the jump...

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Continue reading "Horniest boss ever? His employee still can't prove sexual harassment." »

May 10, 2013

House passes bill permitting employees to swap OT for comp time

Schlangenmädchen Neyenne Circus BelyOn Wednesday, the U.S. House of Representatives voted 223-204 to pass the Working Families Flexibility Act of 2013, which would amend the Fair Labor Standards Act to permit employers to provide compensatory time off in lieu of monetary compensation for overtime hours worked. Presently, through the Federal Employees Flexible and Compressed Work Schedules Act, only state and federal employees may receive comp time in lieu of OT.

Specifically, the Working Families Flexibility Act authorizes compensatory time off at a rate of no less than one and one half hours for each hour of overtime worked. Under the FLSA, employers must pay OT at a rate of no less than one and one half the employee's regular rate of pay. Republicans contended the measure would allow parents to spend more time with their children. House Democratic Whip, Steny Hoyer [D-MD] has hyperbolized that the Working Families Flexibility Act "would eliminate the 40-hour workweek as we know it."

It should come as no shock, then, that House passage was basically along party lines. And, even if it somehow passes the Senate, the President would likely veto the bill.

May 9, 2013

Appeals Court: NLRB union-rights poster violates free-speech rights

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On Tuesday, the D.C. Circuit Court of Appeals ruled here that the National Labor Relations Board cannot require private employers -- union and non-union -- to hang this poster in a conspicuous location in the workplace. Billed by the Board as a notice advising employees of their rights under the National Labor Relations Act, many employer groups viewed the "mandatory" poster as more of an encouragement to unionize than as a neutral informational poster.

Previously, the lower court in DC had upheld the poster rule. Meanwhile, a South Carolina federal court had shot it down.

The appellate court determined that the poster rule would violate employers' free speech under Section 8(c) of the National Labor Relations Act. The appellate court also ruled that the poster rule unlawfully expanded the Board's enforcement powers.

Although this is the first appellate court to rule on this issue, another appellate court (the Fourth Circuit Court of Appeals) is poised to address this issue shortly. For now, however, even the Board has indicated that you may put the posters away.

May 8, 2013

NJ Gov. Christie vetoes proposed workplace social media law

Thumbnail image for nj1.jpgYou see, employment-law dorks like me use tools like these to monitor the status of pending employment-law-related bills. And, yesterday, I got a hit informing me that, on Monday, Governor Christie conditionally vetoed this proposed NJ bill, which would prohibit employers from requiring employees and candidates for disclosing online usernames and passwords.

Savador Rizzo at The Star-Ledger summarized Gov. Christie's reasons for vetoing the bill here:

Christie said that he supports safeguarding "the privacy of job candidates and employees from overly aggressive invasions by employers" but that he wants to see stronger protections for businesses. For example, the governor said aggrieved workers should go to the state labor commissioner with their complaints instead of being able to file lawsuits in state court.
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"Unfortunately, this bill paints with too broad a brush," Christie wrote in his conditional veto today. "For example, under this bill, an employer interviewing a candidate for a marketing job would be prohibited from asking about the candidate's use of social networking so as to gauge the candidate's technological skills and media savvy. Such a relevant and innocuous inquiry would, under this bill, subject an employer to protracted litigation."

Here are Gov. Christie's suggested changes to the bill.

You know my position on bills like these: not a fan. So, it is refreshing to see a decisionmaker forego the rubber stamp and actually consider the practical impact of a hasty bill, which, although well intentioned, seeks to solve what is essentially a non-existent problem.

May 7, 2013

Fact or Fiction: It's ok to fire an employee for pro-union Facebook posts to NON-employees

Fact or Fiction?That'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."

I'll set it up for you:

You run a non-union company called RH Chili Peppers. However, one of your employees, Disgruntled Donny, has been trying to get his co-workers to help unionize the workplace. Thus far, he has been unsuccessful. So, DD takes to Facebook and posts a message bashing the wages and benefits at RH Chili Peppers on a Facebook page called, "Peter Picked a Peck," a Facebook page that DD "likes." PPaP is frequented by employees, like DD, who work in the chili pepper industry, albeit at other chili pepper companies in the city.

One of your employees shows you printouts of DD's inflammatory comments about RH Chili Peppers. Can you discipline DD?

According to this decision last week from the National Labor Relations Board, the answer is no. The reason is that the National Labor Relations Act protects employees who opt to engage in union-related activities. This speech, even if directed at third parties, is protected if it flows from prior organizational activity, which was known to the employer, and is not libelous. It does not matter whether DD uses a actual bull-horn or a virtual bull-horn. Either way, that speech is protected and discipline may not ensue based on the substance of DD's pro-union speech.

So the answer to today's QATQQ is FICTION.

May 6, 2013

"At your age, David, you hadn't even thought about retiring?"

happyretirement.jpgWhat could go wrong when the boss's son asks that question of, David, a nearly-40-year employee? Oh, right, David got laid off a week later.

Age discrimination? Well, let's see...

We know that when an employer inquires about an employee's retirement plans -- without bringing up age -- it should be able to avoid liability. But, repeated inquiries about a plaintiff's intention to retire could suggest an age-related impetus for his eventual firing.

What about one retirement question + one age reference + adverse employment action one week later?

According to a Mississippi federal court "C'mon man!," maybe:

First, the comment specifically referenced Hawthorne's age and was therefore age related. Second, the comment preceded Hawthorne's termination by one week, making it sufficiently proximate in time to the termination. Third, Allen Fielder, the company's vice-president, wrote and signed the termination notice that ended Hawthorne's employment just one week after making the comment about Hawthorne's age, and therefore had authority over the employment decision. Finally, a reference to retirement at Hawthorne's age is related to his termination, given that the termination immediately followed Hawthorne's refusal to agree to retire.

Easy lesson here: if you plan to let some retire on their own timetable, you can ask them for that timetable to plan for the transition. However, if you plan to lay off an older employee, best not to ask them about their retirement plans immediately beforehand.

May 3, 2013

A record-setting EEOC verdict, and a judge puns about strip clubs

You're thinking I should have led with the strip club, eh?

On Wednesday, an Iowa jury awarded $240,000,000 to a group of 32 men with intellectual disabilities, whom it found had been discriminated against in violation of the Americans with Disabilities Act. According to this EEOC press release, the verdict works out to $2 million in punitive damages and $5.5 million in compensatory damages for each plaintiff, and follows a September 2012 order from the district court judge awading the men $1.3 million for unlawful disability-based wage discrimination, thus making the total judgment $241.3 million.

And then there's "THE CASE OF THE ITSY BITSY TEENY WEENY BIKINI TOP V. THE (MORE) ITSY BITSY TEENY WEENY PASTIE." More First Amendment than employment law. But, nonetheless, right in my wheelhouse.

And, you'd think that, with a title like that, Meyer made it up. 

Yeah, you'd think that, wouldn't you?

May 2, 2013

Wooooo pig sooie! Arkansas gets a workplace social media privacy law

razorback.jpgI don't know much about Arkansas. My knowledge consists of Gennifer Flowers, Wal-Mart, and this handy-dandy iPhone app for harvesting deer. I also hear that the official state beverage is milk

How about that?

But now I know one more thing: Arkansas has a new social media privacy law, which prohibits an employer from requiring or requesting that a current or prospective employee do any of the following:

  1. disclose his/her username or password for a social media account,

  2. add a co-worker "to the list or contacts associated" with the account,

  3. change his/her account privacy settings

While I do not like these laws -- they are unnecessary, the vast majority of employers aren't as stupid as passage of these laws would lead some to believe -- the Arkansas law does carve-out some exceptions, which is nice in light of public criticism from Wall Street about how these laws may inadvertently promote Ponzi schemes and fraud. It also unties HR's hands, allowing it to conduct effective investigations should the need to access social media accounts arise. The Arkansas law:

  1. prevents an employer from complying with the requirements of federal, state, or local laws, rules, or regulations or the rules or regulations of self-regulatory organizations; or

  2. allow employer to request an employee to disclose his or her username and password for the purpose of accessing a social media account if the employee's social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee's violation of federal, state, or local laws or regulations or of the employer's written policies.

May 1, 2013

Third Circuit says VIPs cannot sue for Title VII discrimination

Robert Mariotti was the vice-president and secretary of the company his father founded. Not only was he a corporate officer, but Mariotti also served as a member of the board of directors, and was a shareholder who could only be fired for cause.

In 1995, Mariotti had a spiritual awakening, which he claims resulted in a resulted in "a systematic pattern of antagonism" toward him in the form of "negative, hostile and/or humiliating statements" about him and his religious affiliation. Mariotti claimed that this behavior ramped up for over a decade and, ultimately, resulted in his termination. Thereafter, he sued his former employer for religious discrimination. The company moved to dismiss the claim on the basis that a shareholder-director-officer is not an "employee" under Title VII of the Civil Rights Act of 1964 and, thus, has no standing to assert a claim for religious discrimination.

What happened you say? Well, even if you read the lede, click through for full analysis...

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Continue reading "Third Circuit says VIPs cannot sue for Title VII discrimination" »

April 30, 2013

GUEST POST: How To Deal With Workplace Bullying As An Employer

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Pam Johnson. Pam is an HR professional who obtained her degree from what she tells me is one of the Top 10 Best Online Masters in HR Degree Programs.

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

Continue reading "GUEST POST: How To Deal With Workplace Bullying As An Employer" »

April 29, 2013

Will Congress finally greenlight LGBT rights in the workplace?

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Discrimination is just plain wrong. It is shocking that there is still anywhere in America where it is legal to fire someone for their sexual orientation or gender identity. Americans understand that it's time to make sure our LGBT friends and family are treated fairly and have the same opportunities as all Americans. Now it's time for our laws to catch up. People should be judged at work on their ability to do the job, period.

Last week, Senator Merkley together with Senators Mark Kirk (R-IL), Tom Harkin (D-IA), Susan Collins (R-ME) and Tammy Baldwin (D-WI), reintroduced the Employment Non-Discrimination Act (ENDA). (The same version of ENDA has bipartisan sponsorship in the House as well).

Title VII of the Civil Rights Act currently makes it unlawful for employers to engage in sexual stereotyping. ENDA, which has been introduced in every session of Congress save one since 1994, would expressly prohibit employers from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity.

And while Congress has blown several opportunities to pass ENDA, it's worth noting that, 93% of Fortune 100 companies include sexual orientation and 82% include gender identity in their corporate nondiscrimination policies. Nearly 200 municipalities also have similar laws in place.

Many are optimistic that Congress can get ENDA to the President this time around.

April 26, 2013

Irresistible attraction, three-ways, and more fun and games

Carnivalphoto © 2010 Paul Newtron | more info (via: Wylio)

Just another Friday here at the ole Handbook. Oh, get your head out of the gutter! This is a family blog.

(Y'all have families, right?)

For serious, today's lede isn't just gratuitous, there is an employment-law connection here.

*** searching ... searching ... searching ***

Ok, got it!

  1. Back in 2012, the Iowa Supreme Court held that it's legal to fire a female employee because of her "irresistible attraction". Leave it to Staci Zaretsky at Above the Law to track down the plaintiff. She filmed a hilarious segment on Tosh.0. More from Above The Law here.

  2. Take one supervisor, add in a consensual relationship (complete with texting, sexting, and you know, I don't know the exact pronunciation, but I believe its ménage à trois) gone bad, a sexual harassment complaint, and what do you have? Why a race-discrimination complaint, of course! Guh?!?!

  3. And last, we have this month's edition of the Employment Law Blog Carnival: Tips for HR Spring Cleaning. Make sure to check it out. Lorene Schafer at Win-Win HR did a fantastic job with it!

April 25, 2013

I'll take Supreme Court Justices on retaliation for $500, Alex.

Thumbnail image for Supreme Court.jpg

Yesterday, the Supreme Court heard oral argument in University of Texas Southwestern Medical Center v. Nassar. In this case, the Court is being asked to determine what a plaintiff's burden of proof is for a Title VII retaliation claim.

Is it mixed motive? In other words, is it enough that retaliation motivates an adverse employment action?

Or does a plaintiff have to prove that retaliation was the reason that adverse employment action was taken?

You can find a copy of the transcript from yesterday's oral argument here.

But before you pour through it, let's see how well you know your Supreme Court Justices.

Take the quiz and see if you can tell who said what during oral argument.

April 24, 2013

Congress blocks proposed ban on requests for employee social media passwords

House of RepresentativesLast week, the U.S. House of Representatives passed the Cyber Intelligence Sharing and Protection Act, better known as CISPA. CISPA provides for the sharing of certain cyber threat intelligence and cyber threat information between the intelligence community and cybersecurity entities, and for other purposes.

However, the majority vote was not without a speed bump, according to this report from Josh Wolford at WebProNews:

Colorado Democrat Ed Perlmutter attempted to tack on a provision to CISPA that would make it illegal for employers to require prospective employees to hand over their social media passwords as a condition of acquiring or keeping a job.

Perlmutter's amendment was voted down 224-189.

Sara Gates of The Huffington Post reports here that CISPA sponsor Rep. Mike Rogers called Perlmutter's proposal an attempt to kill the bill, and suggested that Perlmutter propose the amendment as standalone legislation.

Currently pending in the House is the Social Networking Online Protection Act (SNOPA). SNOPA would effectively accomplish what Perlmutter attempted to do by amending CISPA. Although six states have passed laws banning employer requests for social media passwords of job applicants, and several others have legislation pending, Congress has done little to push SNOPA along. Indeed, the same version of SNOPA was introduced in 2012, but sat dormant.

(h/t @MarkJChumley)