The Employer Handbook Blog

I'll tell you why, after the jump...

Continue reading "Baseball has a new social media policy. And it may be unlawful." »

Early in my legal career, a colleague taught me the expression: pigs get fed; hogs get slaughtered. Essentially, be agressive. But push too hard, and you may lose it all.

Some PA companies require their new hires to sign an agreement requiring them to arbitrate any claims that arise out of the employment relationship. The U.S. Supreme Court has held that agreements requiring employees to arbitrate employment-related claims are ok. However, in Pennsylvania (as in other states), when those agreements are too one-sided, courts deem them unconscionable and, therefore, unenforceable.

So remember, pigs get fed; hogs get slaughtered. And thanks to a decision the Third Circuit Court of Appeals handed down yesterday, PA employers now have a better blueprint as to how to avoid unconscionable arbitration agreements. Details after the jump...

Continue reading "Arbitration agreement tips for PA employers from the 3rd Circuit" »

Will office pools be legal in Pennsylvania this year? One State Senator is trying to make it so. 

Jealous, New Mexico? Yeah, you're jealous.

Details after the jump...

Continue reading "Score! PA Senator pushing to legalize March Madness at work." »

Over the weekend, I read this story by Laura Hibbard at the Huffington Post about a phony job flyer handed out by two men in red blazers posing as Chick-Fil-A employees [link to video] on the campus of New York University. The phony flyer states:

Remember Chick-Fil-A is a Christian company. We strive to have our values reflected in our employees. Please be prepared to discuss your religion, family history, personal relationships etc. upon interviewing. Chick-Fil-A reserves the right to question, in detail, your sexual relationship history. The Bible and Chick-Fil-A, define a traditional relationship as consisting of a man and woman. Anyone living a life of sin need not apply. The Chick-Fil-A Foundation. God, Family, Tradition.

The flyer and video have since gone viral. However, Chick-Fil-A, which has a stated corporate purpose to "glorify God by being a faithful steward of all that is entrusted to us," responded by posting on the wall of its Facebook Fan page (incidentally, 4,960,921 people "like" Chick-fil-A) that the flyer and video were BS. Given the company's religious leanings, the comments beneath Chick-Fil-A's status update are rather polarizing.

But since this an employment-law blog, there is an employment-law point to be made. Just because you technically can ask certain questions during a job interview, doesn't mean you should. Indeed, you may want to consider steering clear of these other 29.

But feel free to watch the vids below...

Because it'll cost you your job.

Dale Gibson of The Triangle Business Journal reports here that a waiter at The Angus Barn in Raleigh, NC posted on the internet a copy of Peyton Manning's credit card receipt from a recent dinner there. Manning may not have a job, but he tips like a boss! Not like Mr. Pink. (Go to YouTube and search for "Reservoir Dogs - Tipping Scene" -- you'll find a number of hysterical, albeit completely NSFW videos about tipping etiquette).

Back to Peyton, according to the TBJ article, once the owner of The Angus Barn learned about the check, she quickly fired the waiter. "This goes against every policy we have," said the owner. "It's just horrible."

Well, I don't know about every policy, but certainly the social media policy. Not a bad idea to include in that policy a guideline for employees to refrain from sharing information about customers that the customers themselves would not share with the world -- like patient x-rays, for example.

(h/t Jon Hyman)

I usually save my best posts for Monday, but what the heck...

We are expecting our third child in August.

Back in December, I wrote here about a federal court in Louisiana recognizing that a morbidly-obese plaintiff may have a physical impairment which, if it substantially limits one or more major life activities, would bring that plaintiff within the scope of the ADA (the pre-ADAAA version).

As an update to that post, last week, the same Louisiana federal court granted summary judgment, in part, to the EEOC, who was asserting the claim on behalf of the employee. Specifically, the court ruled that the EEOC had affirmatively established that the employee, who was morbidly obese, had a "disability" within the meaning of the ADA.

Disclaimer: I serve as an EEOC mediator.

Allegedly, of course.

Details after the jump...

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Continue reading "What's cookin' in celeb chef Paula Deen's kitchen? Discrimination?" »

On Monday I had the privilege of presenting "Social Media for HR: Practical Guidance from a Generation Y Attorney" to a packed house at the SHRM 2012 Employment Law and Legislative Conference in Washingon, DC. I killed (naturally) and the audience of attorneys and HR professionals was fantastic. During the course of this interactive session, some of what the audience had to say really surprised me. And it may surprise you too. Click through to find out what real HR pros are doing to address social media in he workplace...

Continue reading "7 things I learned presenting on social media at #SHRMleg" »

When an employee sues his former employer alleging a religiously hostile work environment, he must prove, among other things, that he was subjected to harassment based on his religion and that the harassment was either severe or pervasive.

What do you think? Is the email below from a company General Manager severe enough for ya?

Can I just say something I shouldn't to you here -- he is SUCH A JEW! In a BAD way. He's what gives Jews a bad name. He's smarter. He's better. He's owed. He will do anything to keep from opening his wallet -- right down to not eating!!!! And I am DEAD serious here!!! That's why he expenses every single thing he can because he won't pay anything! I have not seen him bring one single thing into this office in all the time he's been here -- period. (that he paid for) IF he does bring something in he expenses it. . .I COULDN'T say to him what I just did to you -- that HE is what gives Jews a bad name!!!

Let's see what a NJ court said, after the jump...

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Continue reading "Can one anti-Semitic email make a tenable employee bias claim?" »

Back on August 26, in this post, I gave the heads up that the National Labor Relations Board would require most private-sector employers to post this notice (a super-sized version of the one on the right), in a conspicuous location, informing employees of their rights under the National Labor Relations Act, which includes the right to form a union.

And then some employer groups went to court because they don't like NLRB posters. In response, the NLRB slowed its roll not once, but twice, delaying the postponing the posting deadline until April 30, 2012.

Now a federal court has weighed in on the posting requirement. What did it say? And will your business have to post something by April 30, 2012. Find out after the jump...

Continue reading "Up with NLRB employee-rights posters, or suffer ze consequences" »

About a year, I wondered whether employers should ever require job applicants to divulge Facebook passwords. Ultimately, I concluded then -- and still believe now -- that while employers may choose to use social media as part of a background-check process, you're playing with fire if you start asking job applicants to divulge social-media passwords to make it easier to vet them.

Two states are now taking steps to make it illegal to force job candidates to reveal online user-names and passwords. One of those states is taking it one step further...

What two states and what they doing?!? (And what's with that creepy image on the right). Aaaaah!!!! Click through to find out...

Continue reading "Will states outlaw demanding online passwords from employees?" »

Quick quiz: 

1. What protections does the ADA provide to veterans with disabilities?


2. When is a veteran with a service-connected disability protected by the ADA?


3. May an employer ask if an applicant is a "disabled veteran" if it is seeking to hire someone with a disability?

So, how did you do? (I went 1-for-3...as if!)

If you're stumped or confused, the U.S. Equal Employment Opportunity Commission has your back. Earlier this week, the EEOC released this guide for employers, about protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations. 

I got this as a Google Alert on Monday. The case is Davids v. Novartis Pharmaceuticals Corp. Allow me to set the stage for you.

• Plaintiff sues, claiming ongoing suffering from osteonecrosis of the jaw (if you click the link, don't look at the picture on the right. Ewwwww)


• Defendant corporation realizes that plaintiff has a Facebook account and serves a request for production of Facebook documents.


• Plaintiff produces only those documents that are available publicly (i.e., those to which access is not otherwise restricted through Facebook privacy controls)


• Not satisfied with the production, defendant moves to compel plaintiff to turn over her Facebook login information

The basis for the motion?

Defendant argues that Plaintiff's log-in information is discoverable because statements or pictures on her Facebook page relate directly to her claim of ongoing suffering from osteonecrosis of the jaw. Defendant's claim is predicated on Ms. Davids' profile picture, in which Defendant claims she is smiling. Defendant did not inquire about Ms. Davids' social networking activity at her deposition. (my emphasis)

Sounds like someone didn't read my chapter in Think Before You Click. Comparing the situation here to cases from PA,  NY, and another from NY the court denied the motion to compel:

Defendant's argument that Plaintiff smiling in her profile picture on Facebook satisfies its burden in this motion to compel is without merit. Even if Plaintiff is smiling in her profile picture, which is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff's account.

If only the Defendant had laid a better foundation with additional discovery as to the overall scope of what the plaintiff had in her Facebook account, this could have ended differently.

Yesterday, I had the absolute privilege of moderating a panel on social media in the workplace at TLNT Transform in Austin, TX. Transform is for talent managers and HR leaders who are looking for cutting-edge insights and best practices from innovative and forward-thinking companies. 

Three HR Rockstars, Karren Fink, Laurie Ruettimann, and Rebecca Meissner, made my job as moderator on the social-media panel a breeze. If you can get past my initial crappy lawyer joke -- and that, apparently, I don't know my right from my left -- it's worth watching. Here is a link to the video.

For more videos of other excellent presentations at TLNT Transform, click here. For all the tweets about #TransformHR, click here.