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.

September 5, 2013

Jury awards $280K to black female called N-word -- by her black boss

A black employee who claimed that her boss, also black, called her "nigger" eight times, had her day in court recently, as she put her race discrimination claims to a federal jury.

The defense argued that the use of the n-word here was culturally acceptable because both the "victim" and the "harasser" black. But, during closing argument, the plaintiff's attorney told jurors, "When you use the word nigger to an African-American, no matter how many alternative definitions that you may try to substitute with the word nigger, that is no different than calling a Hispanic by the worst possible word you can call a Hispanic, calling a homosexual male the worst possible word that you can call a homosexual male."

The jury agreed with the plaintiff. Larry Neumeister at The Huffington Post reports here, that the jury awarded the plaintiff $30,000 in punitive damages and $250,000 in compensatory damages.

While some may debate the impact of a white person directing the n-word at a black person versus a black person engaging in that same behavior, I'm not at all shocked that the jury didn't accept the defense's argument.

Remember folks, in a discrimination case, it does not matter the intent of the person making the comment. All that matters is how it is received and whether a reasonable person standing in the shoes of he "victim" would also be offended. So, use this case as a workplace lesson. Remind employees that what they say is all that matters -- not what they intend. And when it comes to slurs, any word that any employee could perceive as a slur should be off-limits -- no matter who says it or who hears it.

Hey, while some courts get into semantics, like considering which n-word is used when determining whether there exists a racially hostile work environment, don't allow your company to be the one that has to make that argument.

September 4, 2013

New NJ law bans retaliation against employees asked to give pay information

discrimred.jpgCash, Rules, Everything, Around, Me
Get the money
Dollar, dollar bill y'all

[Did you know that your favorite blogger has been to not one, but two Wu-Tang concerts? 36 chambers of death, son. I lyrically perform armed robbery; way harder than Justin Bieber. Now, to the 3/4 of you I just lost there, let's get back on topic...]

On August 29, the same day that he signed the State's new workplace social-media-privacy law into effect, Governor Chris Christie signed legislation strengthening was is already a very strong law: New Jersey's Law Against Discrimination (LAD).

The LAD amendment forbids employers from retaliating against employees who are asked to disclose information regarding pay and benefits, where the information sought could assist in a discrimination action against the employer.

However, as Pamela Wolf at Wolters Kluwer notes, "nothing in the new law requires an employee to disclose such requested information about the employee herself to any other employee or former employee, or to any authorized representative of the other employee or former employee."

The new law takes effect immediately. So, protect ya neck!

September 3, 2013

NJ passes a business-friendly workplace social media privacy law

It takes two to make a thing go right.
It takes two to make it out of sight, palatable enough for bipartisan support.

Thumbnail image for nj1.jpg

It took some doing, but the State of New Jersey finally has itself a workplace social media privacy law, becoming the 12th state to restrict company access to prospective and current employee social media.

Back in the Spring, I reported here that the NJ legislature sent a version of the bill to Governor Christie. However, to protect NJ businesses, Mr. Christie conditionally vetoed the proposed legislation and sent is back to both the NJ House and Senate with some proposed changes.

Both the House and Senate accepted these changes and sent the amended legislation back to Mr. Christie, which he formally signed on August 29.

Like similar laws in other states, this new law prohibits employers from requiring prospective and current employees from disclosing online usernames and passwords. And while I do not advocate social-media-credential requests from employers, it's worth noting that there are severable notable differences in the new NJ law, which loosen the restraints on local companies:

  • Many public employers which deal in public safety are exempted;

  • Any employer may require that the login/password of any account maintained for business purposes of the employer -- even if created by a current or prospective employee -- be disclosed;

  • Employers can also demand login/password as part of several categories of workplace investigations;

  • Employers can ask a current or prospective employee if he/she has a social media account; and

  • Any aggrieved current or prospective employee may report an alleged violation to the Commissioner of Labor and Workforce Development, but cannot bring a private action against the employer.

The new law goes into effect on December 1.

August 30, 2013

What employers should know about the ADA and fitness-for-duty exams

amandabynes.jpgImagine, if you will, that two years ago you hired Amanda Bynes to be your Social Media Manager. Things are going pretty smoothly, until your customers begin complaining that company's Twitter feed has gone from informative and witty to curious and more-or-less bizarre.

After reviewing the tweets for yourself, you wonder whether you picked the wrong week to quit sniffing glue Ms. Bynes is fit to perform the job of Social Media Manager. One tool in your arsenal is a fitness-for-duty evaluation with a medical provider.

But if you send Ms. Bynes for this test, she fails, and you end up firing her, does that mean that you have violated the Americans with Disabilities Act?

According to this recent MD federal court decision, probably not:

A request that an employee obtain a medical exam may signal that an employee's job performance is suffering, but that cannot itself prove perception of a disability because it does not prove that the employer perceives the employee to have an impairment that substantially limits one or more of the employee's major life activities. Deteriorating performance may be linked to motivation or other reasons unrelated to disability, and even poor performance may not constitute a disability under the ADA.

Therefore, in this particular instance, you may require that Ms. Bynes submit to a fitness-for-duty test. However, the rules governing medical examinations and the ADA can be complicated. So, be sure to consult with an employment lawyer before requiring an employee to submit to any sort for medical examination.

August 29, 2013

Enforce your employee call-in/notice requirements -- even for FMLA leave

fmla.jpegIn that handbook of yours should be a page -- maybe a few lines -- on an employee's responsibility to notify you if they are going to miss work. Who to call, when to call, that kind of stuff.

A recent case from the Sixth Circuit (this one) reaffirms that employees need not relax these rules -- even when the employee is seeking leave under the Family and Medical Leave Act. 

In White v. Dana Light Axle Manuf., the employer had a simple rule: when you're going to be out, call it in. The plaintiff, who needed FMLA leave for a hernia surgery, assumed that because he had previously met with the employer in person to discuss his upcoming hernia surgery, he didn't need to later call in his absences.

Unfortunately for the plaintiff, the U.S. Department of Labor disagreed when implementing its FMLA regulations, which state that "[w]here an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied. . . ." In other words, an employer may condition FMLA leave on its employee properly following it's notice requirements. Consequently, the Sixth Circuit held that even though the plaintiff may have otherwise discussed FMLA leave with his employer, the employer could still fire the employee for not following the call-in requirements of its attendance policy.

So, here's the deal. Just because someone is taking FMLA leave doesn't give that person a free pass to ignore your call-out rules. Just make sure to apply your call-out/attendance policy evenly to everyone -- those who take FMLA leave, and those who take leave for non-FMLA reasons. Because uneven enforcement smacks of FMLA interference.

August 28, 2013

FACT OR FICTION: Permanent light duty is an ADA reasonable accommodation

Thumbnail image for ffiction.pngThat'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."

Today, I'm speaking at the EEOC EXCEL Conference in Denver, CO. It's an incredible honor, given that this is the first year that the conference has not only catered to public sector employers, but also those in the private sector.

(Well, at least, that's what someone at yesterday's networking reception, so I'm going with it).

My topic is the so-called "Bermuda Triangle of Leave": ADA, FMLA and Workers Compensation. One of the topics I'll discuss is light duty. So, for those of you who cannot attend, let's make this post a topical two-part QATQQ.

  1. May an employer force an employee taking leave under the Family and Medical Leave Act for his own serious health condition to work light duty in lieu? Nope. The FMLA permits eligible employees to take up to 12 workweeks of leave. Leave is leave. Period. There is no such thing as light duty under the FMLA. Even if an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave.

  2. Can an employer be stuck providing permanent light duty as a reasonable accommodation under the ADA? Well, probably not. This is best addressed with an example. Let's say that an employee's job is to stack heavy boxes. A year into his employment, the employee suffers a devastating wrist injury. If the employee is offered temporary light duty work as a reasonable accommodation, and the employer has made it known that permanent light duty is not an option, then the employee cannot keep that light-duty job permanently. However, if the employer knows that the wrist injury is permanent and the employer places the employee into what could reasonably be viewed as a permanent light-duty position, then the employee may have effectively changed the essential functions of the employee's position (lifting boxes) to light duty (something other than lifting boxes). Consequently, the employer may have to keep that employee in the light duty position.

August 27, 2013

That's what they said: Solving your Labor Day employee-pay issues

theysaid.jpgMonday is Labor Day, the day I plan to break the Guinness World Record for twerking and eating BLTs -- they call it BLTwerking a tribute to the American Worker.

If you give your employees the day off on Labor Day, a national holiday, do you have to pay them?

My buds Jon Hyman and Mike Haberman have your answers here and here.

August 26, 2013

Paula Deen discrimination lawsuit dismissed after parties settle

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On Friday, a federal court in Georgia dismissed all of the remaining discrimination counts against Paula Deen and her brother, Bubba, after the parties reported to the court that the two sides had settled.

The settlement terms are undisclosed.

In a statement emailed to The Associated Press, Ms. Deen's publicist wrote:

We are pleased with the court's ruling today that Lisa Jackson's claims of race discrimination have been dismissed. As Ms. Deen has stated before, she is confident that those who truly know how she lives her life know that she believes in equal opportunity, kindness and fairness for everyone.

Somebody tell that to Ms. Deen's sponsors -- err, former sponsors. Just start typing the words "list of sponsors" (without the quotes) into the Google search bar and see how it autofills in the most popular searches once who put a space after the word "sponsors."

(I'll give you a hint, it's not "list of sponsors dying to empty the coffers on TheEmployerHandbook.com click-thru banner ads" ... yet)

But for Ms. Deen, at least she still has her loyal fans at -- wait, this can't be right, can it? -- sure enough: ButterForPaula.org.

August 23, 2013

DOL offers the definitive word on FMLA and same-sex marriage. Kinda sorta.

fmla.jpegDo you have 50 or more employees working with 75 miles of one another?

If not, see ya Monday.

But if you do, check out the United States Department of Labor's revised "Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act."

In light of the Supreme Court's recent ruling on same-sex marriage, the DOL updated the definition of spouse:

Spouse: Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including "common law" marriage and same-sex marriage.

As you know the FMLA permits eligible employees time off to care for a spouse, son, daughter, or parent who has a serious health condition. So, the new definition of "spouse" matters in states that recognize same-sex marriage.

For example, if an employee and his husband both live and work in Delaware, a state that recognizes same-sex marriage, if the employee is eligible to take FMLA leave for his own serious health condition, he can do the same if his husband suffers from a serious health condition.

No surprise there.

But let's re-work the previous example: The employee and his husband were legally married in Delaware, but later move to Pennsylvania, a state that does not recognize same-sex marriage. If the employee continues to work in Delaware, does the Delaware employer have to afford FMLA leave to the employee should his husband suffer from a serious health condition? The DOL Fact Sheet does not address this situation.

And then, of course, you have New Jersey, which recognizes civil unions, but not same-sex marriage...and you get the point.

Sounds like some employment lawyers somewhere are going to ring up a lot of billable hours litigating these issues. 

Hey! I'm an employment lawyer somewhere.

August 22, 2013

Four easy ways to break the law by viewing an employee's Facebook posts

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There are 11 states with social media workplace privacy laws making it illegal for an employer to require that an employee or applicant fork over a social media login and password.

But, if a company in the other 39 states assumes that it has the green light to engage in these shenanigans, then chiggity check yo self before you wreck yo self, according to this recent NJ federal court decision.

The legal risks of accessing an employee's Facebook account

The case involved a situation where the plaintiff, a former employee of the defendant, alleged that a member of upper management required that another employee access the plaintiff's Facebook account. While these allegations didn't bear fruit, the court warned that certain employer behavior could amount to "invasion of privacy."

Specifically, the court indicated that had the employer directly logged into the plaintiff's Facebook account, logged into another employee's account to view the plaintiff's Facebook page, or asked another employee to log into Facebook in order to access the plaintiff's Facebook page, then the employer would have violated the law.

Additionally, the court noted that non-public Facebook wall posts are covered by the Stored Communications Act. (However, in this particular case, the employer avoid SCA liability because it never solicited one of its employee to access the plaintiff's Facebook page. Rather, one of the plaintiff's Facebook friends, an employee of the defendant, provided content from the plaintiff's Facebook page to the employer all on his own).

A major lesson for both employers and lawyers.

Employers: Beware of nosing around on any portions of an employee's Facebook page that aren't otherwise publicly accessible. This would seem to include doing any of the no-no's described above -- even if part of a workplace investigation.

Lawyers: Have you ever tried doing a little Facebook due diligence on a plaintiff/defendant only to be stymied by his/her privacy restrictions? Have you then ever considered asking a Facebook friend of the party to access that information for you? Yeah, about that...

August 21, 2013

Employment Law Blog Carnival: The Back-to-School Edition

Thomas_School_Bus_Bus.jpgWelcome everyone to the latest edition of the Employment Law Blog Carnival. What Target and Wal-Mart are to back-to-school shopping, this is your one-stop-shop for the hottest trends in employment law.

Your original carnival hosts for this month, my good pal Ari Rosenstein and the great folks at CPEhr.com asked me to step in. So, consider me the hot substitute teacher. [Hey! Eyes up here!] Glad to help out my friends.

Credit to Ari and the team for all of the hard work in putting this month's edition of the Employment Law Blog Carnival together. I'll take credit for all of the grammar errors, typos, and the inappropriate carnival soundtrack (you'll see...).

Click through and enjoy!

* * *

Continue reading "Employment Law Blog Carnival: The Back-to-School Edition" »

August 20, 2013

New PA bill would ban sexual orientation, gender identity discrimination


Twenty-one states and the District of Columbia have laws banning workplace discrimination in the private sector on the basis of sexual orientation. The Commonwealth of Pennsylvania, which currently bans discrimination based on sexual orientation and gender identity or expression in public employment, may soon become the latest state to ban it in the private sector as well. 

(The term "gender identity or expression" means actual or perceived gender identity, appearance, behavior, expression or physical characteristics whether or not associated with an individual's assigned sex at birth).

A bill to amend the Pennsylvania Human Relations Act to add these workplace protections was introduced last week in the PA Senate with some bipartisan (but most Democratic) support. The same bill was introduced in the PA House the week before. Each measure would also carry the same restrictions in housing, credit and public accommodations.

While prior attempts to get similar legislation passed in PA have failed, a recent poll indicates support for this measure throughout the Commonwealth. Plus, many large cities, including Philadelphia and Pittsburgh, have LGBT workplace laws. And, even without a law on the books statewide, many large employers have led by example. According to the Human Rights Campaign, as of April 2013, 434 (88 percent) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation, and 282 (57 percent) had policies that include gender identity.

Governor Corbett's position on these bills is unclear.

Image Credit: By File:Map of Pennsylvania highlighting Philadelphia County.svg: Gay_flag.svg: derivative work: Fry1989 eh? 01:04, 12 January 2012 (UTC) [Public domain], via Wikimedia Commons

August 19, 2013

Breaking Bad: The Lost Episode (the one about Jesse's ADA lawsuit)


A few years back, I sent in a Breaking Bad script to Vince Gilligan. At the time, I was concerned that the show was becoming too one-dimensional. High school teacher becomes meth kingpin. Yeah, I guess that could make for some good television -- if you like taut, well-written, well-acted drama. But, every good series needs an episode or two to break from the formula.

Take Diff'rent Strokes, for example. That's the 80's comedy about the rich white Park Avenue man who adopts the two sons of his African American cleaning lady. That Arnold was always getting into it. Funny stuff! But there's one episode that went against the comedic grain and stands out for just about every Strokes fan. Yep, the one where Gordon Jump played the bicycle shop owner. Very special? Very creepy. But, nonetheless memorable.

Jesse gets a job at Walt's car wash, but things go south quickly.

So, getting back to Breaking Bad, I came up with the idea to have Jesse Pinkman get a job at Walter White's car wash. You, know, to get the FBI of their scent with some legitimate work. 

Things are good at first, but a weekend meth bender with Skinny Pete and Badger leaves Jesse strung out on Monday and in desperately need of help. So, he comes clean with Walt who tells Jesse to get some treatment. Under the car wash employee handbook, the one Saul Goodman drafted, an employee "who rejects treatment or who leaves a treatment program prior to being properly discharged will be terminated."

Consistent with the policy, Jesse promptly enters treatment and goes through detox. Unfortunately, however, he insists on checking out of the program before its completion. Upon returning to work, Jesse brings Walt up to speed on his progress. And Walt's all like, "Say my name," which convinces Jesse that either his boss is an egotistical wacko, or maybe he should go back to rehab, lest he find himself in the desert for the vultures to pick at.

Well, it's back to rehab, but only for one day in the program, when Jesse quits again. Jesse then returns to work with a discharge note indicating that he did not complete the drug treatment program. So, Walt fires him.

Jesse then sues for ADA discrimination.

With the help of a brilliant legal mind, Walt wins the lawsuit!

(Work with me, here...)

Because here's the best part. Saul Goodman, who would otherwise represent Walt and the car wash, realizes that he has a conflict, because Jesse is also his client. You see, Saul takes the New Mexico rules of professional ethics quite seriously -- well, at least for this episode he does. So, Saul refers the defense of the car wash to this dashing, brilliant attorney named Erick Meyers, played by Ashton Kutcher, who ends up winning the case on summary judgment. Attorney Meyers successfully argues that Jesse is not a "qualified individual" under the ADA because of his illegal drug use and does not not fall into the safe harbor provision in Section 12114(b) of the ADA, which makes the drug-use exclusion inapplicable to an otherwise qualified individual.

Years later, last week to be exact, the 5th Circuit Court of Appeals coincidentally addressed a similar case and reached a similar result. So, you know, that Meyers is one bright bulb.

Anyway, I was told that this episode was supposed to be part of the Director's Cut on the Season 4 DVD. But, I checked. Didn't make it, I guess.

Maybe, the writers will work it into the final season. I smell an Emmy. 

Or maybe that's just burnt toast...

August 16, 2013

What could possibly go wrong with a sham workplace investigation?


Well, if it means that the employee diagnosed with anxiety and depression -- the one who requested a reasonable accommodation to perform her job -- gets fired. Well, then, a lot.

That's basically what happened in this recent federal court case out of Kentucky.

You see, normally, a court won't second guess an employer's decision to terminate an alleged sexual harasser, following a complaint and investigation. And when the alleged sexual harasser later sues the employer for retaliation, well, I don't care if she belongs to every protected class on the EEOC's checklist, court's tend not to sympathize with sexual harassers.

But, as the Kentucky court noted, it's a different story when the decision to terminate the alleged sexual harasser -- the one with the disability -- is made before the workplace investigation commences:

The Plaintiff has produced evidence that the Defendant's investigation regarding the sexual-harassment complaint against the Plaintiff was a cursory one...The fact that Smallwood drew up the paperwork necessary to terminate the Plaintiff prior to meeting with her and that she terminated the Plaintiff without further investigation even though the Plaintiff denied making the comment could lead a reasonable juror to conclude that the Defendant did not actually fire the Plaintiff because it found that she sexually harassed a co-employee.

So take it from your old buddy, Eric. If an employees come to you complaining that so-and-so sexually harasser her, please take the complaint seriously. However, don't just assume that the complaint against so-and-so is the gospel. Conduct a fair and impartial investigation to determine whether the complaint has merit.

Image credit: By Dan Pelleg (own work (based on Windows "Webdings" font)) [Public domain], via Wikimedia Commons

August 15, 2013

When it comes to ADA accommodations, reasonable is good enough

Under the Americans with Disabilities Act, an employer must make reasonable accommodation to the known physical or mental limitations of an individual unless the employer can show that doing so how cause it undue hardship.

Generally, an employee will initiate the process by advising her employer that she is disabled and needs an accommodation to perform the essential functions of her job. What then ensues is an interactive dialogue in which both sides work together in good faith to decide on what that accommodation may be.

But here's the rub:

The accommodation need only be reasonable; not the employee's first choice.

patrialmask.jpgHere's an example from a recent decision from the Third Circuit Court of Appeals:

A chemist had a disability that manifested itself when she became exposed to certain solvents. So, the employer offered her a full-mask respirator. It didn't work because she was claustrophobic and it caused her to suffer a panic attack. The employer then offered a partial-mask respirator, which the employee refused without explanation. But, she never suggested that the partial-mask was unreasonable. Instead, she preferred a transfer. Ultimately, she took sick leave and was terminated after she failed to return to work upon exhausting FMLA and her bank of paid time off. So, she sued under the ADA for a failure to accommodation and lost.

Reject the reasonable accommodation at your own risk.

Relying upon an ADA regulation, the Third Circuit reasoned that an individual who rejects a reasonable accommodation "to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified" for the job.

Have a good faith, interactive dialogue.

So, when an employee comes to you requesting an accommodation for a disability, I'm not suggesting that you should wax and twirl your handlebar mustache before offering her an "accommodation." But you don't have to accept her preference either. Instead, truly have an interactive dialogue with the employee to arrive at an accommodation that both sides can live with.