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.

August 5, 2013

Judge dismisses "Borgata Babes'" claims of weight discrimination

borgata!

Sex sells. So, when 22 female cocktail servers at an Atlantic City casino pursued claims of discrimination based on their appearance, it came as little shock to me that the judge wasn't buying.

Last month, a New Jersey state court dismissed a lawsuit against the Borgata Hotel Casino & Spa, brought by cocktail waitresses known as the "Borgata Babes," who claimed that they were victims of gender and weight discrimination.

Jennifer Bogdan, writing here for the Press of Atlantic City, notes that, upon hire, Borgata told its servers that they must appear "physically fit" with their weight proportionate to their height and, ultimately, banned the servers from gaining more than 7 percent of their body weight. Supposedly, the women were subject to periodic weight checks and suspension for failing to meet the weight requirements, with exceptions made for medical conditions and pregnancy.

Ms. Bogdan reports that the judge held out little sympathy for the 22 "Borgata Babes," who knew what they signed up for:

"Johnson focused on the hiring process the women endured, which he said made it clear the positions were meant to be part entertainer and part cocktail server. All of the women involved in the case later signed statements agreeing to the weight policy, which the judge described as lawful and reasonable."
. . .
"The Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to 'sex objects' to the Borgata's patrons. Nevertheless, for the individual labeled a babe to become a sex object requires that person's participation. Plaintiffs cannot shed the label babe; they embraced it when they went to work for the Borgata."

Without having seen a copy of the judge's 24-page summary judgment opinion, I'm reluctant to offer any sort of in-depth analysis. But I'll note that while some jurisdiction may recognize weight discrimination as a standalone cause of action, nothing under federal law (or NJ state law) expressly prohibits an employer from discriminating against employees based on weight. So, as noted above, the ultimate result here is no shock to me.

UPDATE: Thank you to my colleague, Jennifer Snyder, who provided me with a copy of the summary judgment opinion. As a "did you know," Jennifer informs me that Judge Nelson Johnson also wrote Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City.

August 2, 2013

Man pays court-ordered settlement in quarters -- 600,000 of them!

Yes, quarter.

Seriously, how pissed off do you need to be to pay out $150,000 of a court-ordered settlement in quarters? Jacob Gershman of The Wall Street Journal's Law Blog, writes here that a retired surgeon had a unique way of expressing his displeasure with having to pay out a sizable chunk of court-ordered change.

2006_Quarter_Proof.pngSure he could have gone with the ole flaming-bag-of-doggie-doo trick after hand-delivering a check to the lawyer's office of his adversary. That'd be my move, you know, if I ever lost a case.

Instead Dr. Killjoy went with quarters. Four friggin' tons of 'em, 11 football fields long, delivered in 150 bags of 1000 each from an armored truck that literally snarled traffic outside an attorney's office in suburban St. Louis. It was a "protest against the ruling" from an Illinois appellate court, which had ordered the surgeon to return a significant portion of an insurance overpayment.

So, let me ask you, think back on a situation where it burned you up inside to have to pay an employee. Think of a situation in which you knew the company did nothing wrong but, instead, the company made a "business decision" to pay out. 

Except if you could have done it all over again, you'd have paid the employee in quarters.

Without breaking any confidentiality agreements -- use discretion folks -- tell me about it in the comments below.

Image credit: United States Mint (United States Mint) [Public domain], via Wikimedia Commons

August 1, 2013

GUEST POST: Six key aspects of an employee wellness program

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Joel Cook. Joel is head of strategy at EDP where a team of health & safety consultants work to help businesses improve their employees' health and wellbeing.

(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).

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July 31, 2013

Senate confirms five members to the National Labor Relations Board

nlrb.jpgLadies and gentlemen, the National Labor Relations Board is back in business.

(Well, somebody tell that to the Board, where it's been business as usual lately. More on that in a moment.)

Yesterday, the Senate voted mainly along party lines to confirm five members -- a full slate -- to the Board.

[Incidentally, Democrats and Republicans agree that this blog kicks butt. If you agree, consider nominating it for the ABA Journal's Blawg 100 Amici, its annual list of the 100 best legal blogs, which you can do here. Bipartisanship at it's best! God Bless America.]

Three Democrats and two Republicans were confirmed. Mark Gaston Pearce (D), originally appointed to the Board in 2010, was re-appointed to the Board and will serve as Chairman. The new Board members are Kent Hirozawa (D), Chief Counsel to Mr. Pearce, Nancy Schiffer (D), an attorney at the AFL-CIO, Philip Miscimarra (R), a partner in the labor and employment group of Morgan Lewis & Bockius LLP, and Harry Johnson III (R), a partner with Arent Fox LLP, who follows me on Twitter, which makes me the Board's Kevin Bacon.

Until yesterday, the Board had been operating with three members, two of whom, Sharon Block and Richard F. Griffin, Jr., were recess appointments of President Obama. Various courts of appeals had split on whether the intrasession appointments of Block and Griffin were constitutional.

Last month, the Supreme Court, which had already ruled that the Board is powerless to rule with less than a quorum of three members, agreed in National Labor Relations Board v. Noel Canning to decide the constitutional issue. But since we now have a full Board, it doesn't much matter. Indeed, any Board ruling in doubt -- quickie elections? -- is sure to be ratified with the full complement of members.

July 30, 2013

An employee who sleeps on the job may still be qualified under the ADA

NappingThat George Costanza was definitely on to something.

A federal court in Virginia (here) recently denied an employer's attempt to dismiss the complaint of a former employee who claimed that his rights under the Americans with Disabilities Act were violated when his employer failed to accommodate him by waking him when he fell asleep on the job.

The ADA requires that an employer accommodate a disabled employee, if doing so will not cause undue burden to the employer, but will still allow the employee to perform the essential functions of his job.

Sure enough, the plaintiff pled in his complaint that he had fibromyalgia (a disability that prevented him from getting a good night's rest), informed his employer, and could satisfactorily perform his job if his employer would just wake him up when he nodded off. However, the plaintiff alleged that his employer refused to provide this reasonable accommodation.

Expressing its skepticism that the plaintiff was qualified to perform the job, the whole sleeping at work thing, the court nonetheless denied the employer's motion to dismiss based on the scant record before it.

Because, seriously, how much could it cost to whip up a double Jolt Espresso? (I take mine with two Splenda and a bendy straw. Just like the Queen of England).

But, alas, this sleep accommodation conundrum will remain one of life's great mysteries, as the parties agreed to dismiss the case last week.

July 29, 2013

"You can take your proposal and shove it up your ass and fire me and I'll see you in court."

Just another Monday here at The Employer Handbook. It's how we roll.

Over the weekend, I read this opinion from the Seventh Circuit Court of Appeals. From the opening paragraph, it had my attention.

After working at A.B. Data for four months, Michael Benes charged the firm with sex discrimination. The EEOC arranged for mediation in which, after an initial joint session, the parties separated and a go-between relayed offers. In a separate-room mediation, each side (including attorneys and assistants) stays in its own room. The intermediary shuffles between rooms. Many mediators believe that this approach prevents tempers from erupting, allows each side to discuss its own position candidly without the adversary's presence, and facilitates careful deliberation and compromise. But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer's representatives and said loudly: "You can take your proposal and shove it up your ass and fire me and I'll see you in court." Benes stalked out, leaving the employer's representatives shaken. Within an hour A.B. Data accepted Benes's counterproposal: it fired him. He replied with this suit under 42 U.S.C. ยง2000e-3(a), the anti-retaliation pro- vision of Title VII of the Civil Rights Act of 1964. His claim of sex discrimination has been abandoned.

Noting that firing Benes would have been appropriate, if during the mediation, "Benes had punched or shot the employer's representatives" -- you think? -- the Seventh Circuit concluded that even though "his misconduct was a less-serious breach of the mediation protocol," firing Benes was still for employee misconduct, and did not amount to retaliation.

Indeed, just because an employee files a charge of discrimination, or complains internally about discrimination, doesn't insulate him from potential punishment. Retaliation encompasses action that would dissuade a reasonable worker from making or supporting a charge of discrimination. As the Seventh Circuit noted, canning an employee who shoots off his mouth at mediation, not so much:

"The prospect of being fired for an egregious violation of a mediator's protocols would not discourage a reasonable worker from making a charge of discrimination or from participating in the EEOC's investigation."

I often raise this issue when offering "respect in the workplace" training for employees. That is, just because an employee complains about discrimination in the workplace place doesn't mean that he has carte blanche to violate work rules. The complaint only protects the employee from discipline because of the complaint. If, instead, that employee decides to stop performing job duties, or responds with "shove it up your ass and fire me and I'll see you in court," now you'll know what to do.


July 26, 2013

Survey underscores gap in employer/employee BYOD privacy expectations

Thumbnail image for cartoonphoneAccording to a recent survey from MobileIron, more than 4 in 5 employees in the US, UK, and Germany use their personal mobile phone or tablet for work. However, only 30% trust that their employer won't go snooping into personal information on that device. But nearly the same percentage, 28%, take comfort in their belief that their employer can't view corporate email sent and received on their personal device.

[In unrelated news, 28% of your workforce is dumber than these two.]

Ultimately, MobileIron concluded that employees consistently underestimate the visibility their employers have into company data, and consistently overestimate the visibility their employers have into personal data.

So how can employers assuage their workers' BYOD privacy concerns? The survey suggests that the three mitigation actions that matter most to employees center on better communication:

  1. Explain in detail the purpose of the employer seeing certain information
  2. Promise in writing that the employer will only look at work information
  3. Provide written notification of what the employer can and can't see

Personally, I suggest nominating The Employer Handbook, for the ABA Blawg 100 Amici, its annual list of the 100 best legal blogs, which you can do here. The connection may seem a bit attenuated now. But, it'll make more sense after you vote; especially if you are in the 28%.

Trust me.

July 25, 2013

Princeton study reveals that older employees face "subtle bias" in the workplace

agebias.png

Under federal law, the bar is set higher for proving age discrimination, as opposed to other forms of unlawful discrimination based on protected classes such as race, gender, or disability.

While difficult to prove, a recent article from The New York Times suggests that age discrimination in the workplace may be more common than we realize.

More on this after the jump...

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July 24, 2013

900,000 reasons not to judge a book by its cover

LunchYou've probably heard of this It's Just Lunch, a Hallandale Beach-based company, even though you may not realize it. I'll give you a hint. Have you flown recently? Yeah, that's right. It's Just Lunch is a matchmaking service that advertises around page 55 of the in-flight magazine of just about every domestic airline.

According to the company's About IJL page, It's Just Lunch was founded in 1991 by a resourceful, professional woman. Now go to the home page, scroll down the page to the right and look at the pictures of the It's Just Lunch "Dating Specialists." Notice anything in common?

Yeah, the EEOC did too. So, it filed this complaint in federal court.

According to this press release, the EEOC agreed to settle a sex discrimination lawsuit it filed against It's Just Lunch for $900,000. That's a lot of lunches!

The EEOC charged in its suit (Case No. 0:13-cv-61518-WPD, filed in U.S. District Court for the Southern District of Florida) that It's Just Lunch (IJL) refused to hire men as dating directors and inside sales representatives. The EEOC also alleged that IJL fired Lynda Twist, its human resources director, in retaliation for her opposition to IJL's sex-based hiring practices.
The EEOC filed suit after first investigating the case, and then attempting to reach a pre-litigation settlement through its conciliation process.
According to the terms of the consent decree settling the suit, which was approved by the U.S. District Court Friday, IJL will pay approximately $900,000 to settle the lawsuit, including a payment to Twist of $130,369. The remaining settlement funds will be paid into an account that will be distributed to a class of qualified male job applicants who applied for dating director and inside sales representative jobs with IJL from 2007 to the present, but whom IJL did not consider for hire. The agreement also requires IJL to implement a detailed applicant tracking system, provide training to managers, human resources personnel and employees, and provide quarterly hiring reports to EEOC for three years.

You can find a copy of the full, 29-page consent decree here.

Sex stereotypes and barriers to hiring are at the top of the EEOC's hit list. Please use this settlement as a reminder to your hiring managers that making personnel decisions based on preconceived notions, rather than pure talent, is not only stupid, but a sure-fire way to find yourself in the government's cross-hairs or otherwise embroiled in a private discrimination lawsuit.

July 23, 2013

Who fires the 68-year-old right after her great performance review?

Balance Scales (Ethics)The company that likes defending age-discrimination claims, that's who.

More after the jump...

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July 22, 2013

Facebook "tagging" adds a new wrinkle to social media discovery

Thumbnail image for facebutton.pngMore litigants are requesting that their adversaries produce social media evidence during litigation. Often this information is reasonably likely to lead to the discovery of admissible evidence at trial.

For example, a Facebook status update about a great day from a plaintiff suing her former employer for discrimination could bear on her claim for emotional distress. Therefore, she would have to produce this status update as part of discovery if requested to do so, because, not only is the information relevant, it is within the plaintiff's "possession, custody, or control."

Same holds trues for a plaintiff in a personal injury action claiming that she suffered a debilitating back injury. She may have to produce recent Facebook photos of her riding on a speedboat. 

And according to a recent decision from an Indiana federal court, this obligation to produce would extend to photos that the plaintiff didn't post on her own Facebook page.

In Higgins v. Koch Development, the plaintiffs, visitors to Koch's theme park, claimed to have suffered serious injuries. Koch requested that two of the plaintiffs produce Facebook information. Those plaintiffs objected for, among other reasons, they claimed that the privacy of non-parties was violated because photographs and information uploaded by non-parties and published on their pages, through a process known as "tagging," would be discovered.

For my Facebook beginners out there, (here) is an explanation of "tagging":

When you tag someone, you create a link to their timeline. The post you tag the person in may also be added to that person's timeline. For example, you can tag a photo to show who's in the photo or post a status update and say who you're with. If you tag a friend in your status update, anyone who sees that update can click on your friend's name and go to their timeline. Your status update may also show up on that friend's timeline.
When you tag someone, they'll be notified. Also, if you or a friend tags someone in your post and the post is set to Friends or more, the post could be visible to the audience you selected plus friends of the tagged person.

Well, not only did the court poo-poo the notion that this "tagged" non-party information is private, it went the next step and concluded that photos in which a responding party is tagged are relevant, and should be produced because the tag places them within that party's "possession, custody, or control."

Therefore, next time you request social media as part of discovery, make sure that you ask for "tagged" information. Also, anticipate that your savvy adversary may do the same. Consequently, remind your client that, to the extent possible, relevant tagged information should be preserved when litigation is reasonably anticipated and later produced if responsive to a document request.

(h/t @SaraJodka)

July 19, 2013

NJ victims of domestic violence, sexual assault can now get leave from work

Thumbnail image for nj1.jpg

Yesterday, the "New Jersey Security and Financial Empowerment Act," also known as the "NJ SAFE Act" was passed. I had a long day yesterday. So, rather than summarize the NJ SAFE Act myself, I'm going to lean on Trish Graber of PolitickerNJ to do it for me here:

"NJ SAFE Act" would provide 20 days of unpaid leave time to an employee who is the victim of domestic violence or sexual assault or whose parent, child, spouse, or civil partner was the victim. The leave could be taken within one year of the incident, and used intermittently in intervals of no less than one day. Provided that the employee has not exhausted the allotted 20 days for the 12-month period, each violent incident would constitute a separate incident for which a victim is entitled to unpaid leave.

Only business that employ 25 or more employees need comply with NJ SAFE Act. Those employees who have worked for the same employer for at least one year and have logged 1,000 base hours during the immediately preceding 12-month period are eligible.

You can view the new law here.

Hey, before you leave, do me a solid, folks. The ABA Journal recently opened nominations for the ABA Blawg 100 Amici, its annual list of the 100 best legal blogs. Since I've been serving up this brilliant prose to you every weekday for like the past two years, how 'bout you pay me back by nominating the ole Handbook, which you can do here. Or, you can literally pay me back with a generous Paypal donation, which is fine too. 

It's all the same to me.

July 18, 2013

That's what they said: Lotsa NLRB news, and an employment-law carnival

theysaid.jpgSo much labor-and-employment-law news this week, I'll do what I can to cram it into a single post. Here goes...

From Seth Borden at Labor Relations Today comes this news about the Senate agreeing to -- gasp -- seat a full five-member National Labor Relations Board. How could this happen? Something about a nuclear option and compromising photos..

Staying with the labor theme, Joel Barras at Employment Law Watch reports here about a recent advice memorandum from the NLRB's General Counsel in which the GC concludes that employers must bargain with their unions before implementing new social media policies. No shock there.

Now the bridge from labor to employment, as ESPN reports here that Major League Baseball and its union have agreed to bolster its policies against harassment and discrimination based on sexual orientation. Well done!

And finally, what would a Thursday be without an employment law blog carnival. Or a summer road trip. Or both. Robin Shea at the Employment and Labor Insider brought you both right here!

July 17, 2013

How 3 NFL players' mea culpa will improve your social media policy

After the George Zimmerman not-guilty verdict was announced, two professional football players, NY Giants wide receiver Victor Cruz, and Atlanta Falcons wide receiver Roddy White, vented on Twitter:

cruz tweet.pngroddy tweet.png

Meanwhile, Pittsburgh Steelers offensive lineman, Maurkice Pouncey found himself in hot water after he was photographed last weekend, along with his brother Mike Pouncey, an offensive lineman forthe Miami Dolphins, wearing "Free Hernandez" caps. The "Hernandez" at issue being former New Engalnd Patriots tight end, Aaron Hernandez, who is current being held for trial on charges of first-degree murder

Recognizing that what they say and do online can win or lose tons of fans and $$$, plus impact their respective teams' image, all three players quickly owned up to their online mistakes (Cruz, White, Pouncey)

Now go to your social media policy -- the one you probably need to update anyway -- and make sure that it includes two guidelines for employees: (1) think before you hit "send," and (2) when you make a mistake online, accept responsibility, and own up to your mistakes.

July 16, 2013

GUEST POST: 3 ways to avoid Macy's recent immigration workplace problems

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's my colleague, Kristen Repyneck. Kristen is an associate at Dilworth Paxson LLP where she represents clients seeking non-immigrant and immigrant visas through family, employment, and investment, including investment in USCIS certified regional centers under the EB-5 Immigrant Investor Visa Program.

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

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