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 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?

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)

April 23, 2013

GUEST POST: How Tech Creates Add'l Challenges in Today's Workplace

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Noah Kovacs. Noah has over ten years experience in the legal field. He has since retired early and enjoys blogging about small-business law, legal marketing, and everything in between. He recently purchased his first cabin and spends his free time remodeling its kitchen for his family. Twitter: @NoahKovacs

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

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Continue reading "GUEST POST: How Tech Creates Add'l Challenges in Today's Workplace" »

April 22, 2013

SURVEY: Should you friend your boss on Facebook?

Thumbnail image for facebutton.pngWhen I first began drafting social media policies and offering social media training for clients, I preached that friending the boss was a bad idea. The lawyer in me was concerned for two reasons: (1) Facebook's informality would facilitate behavior from a supervisor that a company would not otherwise tolerate in the workplace; (2) if a supervisor knew about, but failed to report, employee actions on Facebook that would violate an anti-harassment policy, the company could lose a valuable discrimination defense.

What do non-lawyers have to say about friending the boss on Facebook? Find out after the jump...

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Continue reading "SURVEY: Should you friend your boss on Facebook?" »

April 19, 2013

Breaking Bad? NM is the 6th state to pass social media workplace law

Thumbnail image for newmexico.JPG

No way, Heisenberg is gonna be cool with this. Not a chance.

Earlier this month, New Mexico joined Maryland, Illinois, California, Michigan, and Utah, by becoming the sixth state to pass a law, which makes it unlawful for an employer to request or require that a prospective employee fork over a social media password as a condition of gaining employment. However, this New Mexico's law is unique in that it only covers prospective employees, and not the existing workforce.

Lest anyone get the wrong idea, I am not in favor of employers asking candidates or current employees for social media passwords. Instead, as I've noted before, there is no empirical evidence that employers asking for social media passwords is a common practice. Therefore, these laws seek to regulate a "problem" that rarely, if ever, exists.

Que sera.

April 18, 2013

RIP: Philadelphia Paid Sick Leave Bill

** picks up phone dorks out in his bluetooth VOIP-compatible headset **

Thumbnail image for philadelphia.jpgThe Employer Handbook: "Nyello."

Two Weeks Ago: "Hi Handbook. This is "Two Weeks Ago" calling. I wanted to let you know that Philadelphia Mayor Michael Nutter vetoed the "Promoting Healthy Families and Workplaces" Bill, also known as the paid sick leave legislation. I read about that legislation on your blog back in February, and I was wondering when you were going to get around to updating your readers."

Handbook: "Yeah, I meant to write about ---. Hold please. I have another call coming in. Hello?"

Last Week: "Hi there. It's "Last Week." Is now a good time? I tried to contact you -- well -- last week, to find out why you hadn't told your readers that Councilman Greenlee didn't have the votes to override Mayor Nutter's veto of Philly's paid sick leave bill. You ok? I'm concerned."

Handbook: "I'm fine. Just been busy, I guess."

LW: "Because now paid sick leave is done in Philly. And I know you target local readers. Look, if you need some help over there..."

Handbook: "I'm cool. It's all good."

LW: "You sure? I mean --"

Handbook: "Hey, Last Week. I'm fine. How's your employment-law blog, the one that gets thousands of hits going? Oh wait, you don't have one, do you?"

LW: "Hey, no need to get testy, nerd."

Handbook: "I got your nerd right here. ** grimaces at crappiness of that lame comeback ** And why don't you come say that ish to my face? Oh wait, you can't, can you? Last. Week." ** swish **

LW: "Hey, I'm not one who is going to blog about a made-up conversation with "Two Weeks Ago" and "Last Week." You're going to blog about this, aren't you? You're going to blog about this..."

** sigh **

April 17, 2013

Employee caught in a pick, Supreme Court scratches her FLSA claims

** drops microphone, walks off stage **

Fine, I'll play a quick encore.

In a case decided yesterday, the U.S. Supreme Court in Genesis Healthcare Corp. v. Symczyk (opinion here) held that if a plaintiff who brings a claim under the Fair Labor Standards Act on behalf of herself and her co-workers rejects an offer of judgment from the defendant that would fully satisfy the plaintiff's own personal claim, then the entire case gets dismissed unless the plaintiff can demonstrate a personal interest in representing the unnamed claimants.

They call this a "pick off" of the lead plaintiff and, yeah, I shouldn't have played that encore. I told my manager. I says, "Charlie, I don't do these FLSA collective action cases. But no....." 

Charlie's gonna get an earful from me...