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.

February 7, 2013

Paid Sick Leave In Philadelphia - Round 2

philadelphia.jpg Reporter: Rock, you got anything derogatory to say about the champ? 

Rocky Balboa: Derogatory? Yeah. He's great.

{Just needed to get that out of my system}

Guess what's back in Philadelphia City Council. It's the "Promoting Healthy Families and Workplaces" Bill, otherwise known as paid sick leave.

Here is a breakdown of the bill:

  • Who is covered? Philadelphia businesses employing six or more people.
  • How does sick time accrue? Employees would accrue a minimum of one hour of paid sick time for every 40 hours worked in Philadelphia, up to a maximum of 56 hours of paid sick time in a calendar year. (Employees in business of 6-10 employees accrue a maximum of 32 hours of paid sick time in a calendar year).
  • When does sick time begin to accrue? When employment begins. However, employees would not be able to use any paid sick time under 90 days later, at the earliest.
  • What can employees use sick time for? Themselves, sick family members, and absences due to domestic abuse, sexual assault or stalking.
  • Does sick time carry-over from year to year? Yes, but it can't exceed 56 hours (32 hours) in any one year.
  • Can an employment implement more generous paid sick leave policies? As far as the City is concerned, please do.
  • What's the penalty for violating the law?  An employee may file interference or retaliation claims in court. A prevailing plaintiff gets actual damages, an equal amount in liquidated damages, and reasonable attorney's fees.

Now some of you may be thinking, "Eric doesn't Philadelphia already have paid sick leave?" Yes, but only for City employees and certain employers who do business with the City. More on that here.

Others of you may be thinking, "Eric, this Promoting Healthy Families and Workplaces bill sounds awfully familiar. Where have I seen it before?" You saw it here, silly, back in 2011. City Council proposed a very similar version of the bill and Mayor Nutter vetoed it. Since that time, however, Seattle, Washington and the State of Connecticut have mandated paid sick leave. 

Will Philadelphia join the ranks?

You'll just have to click here everyday -- EVERY day -- to find out.

February 6, 2013

Employees who no-call/no-show for a month lose FMLA lawsuits

fmla.jpegBefore going any further, allow me to wish a Happy Belated 20th Birthday to the Family and Medical Leave Act

What can I say? I plumb forgot. To atone, I got Fammy Med a Walkman. (Kids, that's what we used to listen to music in 1993. It doesn't walk and it's not a man. But it did play my mix tapes -- sigh). 

Next year, to celebrate the big 2-1, drinks are on me. Sizzurpbombs! Remy Martin Cognac Louis XIII. 

For today, we'll do an FMLA post in tribute.

A few weeks ago, I posted "3 essential FMLA tools for your HR-compliance arsenal," one of which was to have a publicized attendance rule and enforce it.

That post immediately crossed my mind as, yesterday, I read these undisputed facts from a recent Eighth Circuit decision:

  • The plaintiff missed work for the entire month of February 2008.

  • Although the plaintiff later claimed her depression caused her absences, she never told her employer that she was ill (or gave her employer any real clue that she needed FMLA leave).

  • The plaintiff failed to use her employer's call-in procedure for her February absences -- all of them. (This notwithstanding that the plaintiff had her employer's call-out number programmed into her phone and had used it over 100 times before).

  • The employer's rule was three days of no-call-/no-show is a voluntary resignation.

Here's the deal under the FMLA, folks. Most employers -- really, everyone other than Carnac the Magnificent and Nate Silver -- are not clairvoyant.

If an employee needs FMLA, the employee needs to let the employer know that. The general rule is 30 days' notice. However, when an employee's serious health condition occurs out of the blue, the employee must provide notice of the need for FMLA leave as soon as practicable -- as opposed to, you know, never, like the plaintiff here.

And that was the plaintiff's demise here. No FMLA notice means no FMLA leave. No FMLA leave means the plaintiff needs to abide by the employer's work rules regarding call-outs. No call out for 29 days means the plaintiff ends up on this blog as a cautionary tale.

I live to give.

February 5, 2013

National Right to Work? Plus, SCOTUS to take up Obama recess appointments

fat cat_1In just over half the States in America, if a majority of your co-workers elect to have a union represent them at work, then you must become a member of the union too -- whether you like it or not. Nonmembers who object to that requirement must still may union dues. However, in nearly half of the USA (24 states, to be precise) employees in a unionized workplace may decide for themselves whether to join the union. This is known as "right-to-work." Employees who exercise this right are not required to pay union dues.

Late last year, Michigan became the newest Right-to-Work State. And, last week, Senator Rand Paul (KY-R) reintroduced the "National Right-to-Work Act," described as a bill to preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities. This bill would amend both the National Labor Relations Act and the Railway Labor Act to make "right-to-work" the law in all 50 states.

You can view a copy of the bill here.

Meanwhile, word hit yesterday that the Supreme Court has already been asked to weigh in on the constitutionality of President Obama's recess appointments to the National Labor Relations Board. Last month, a federal appellate court ruled that the appointments were unconstitutional. Lauren Smith at Roll Call has more on this developing story here.

February 4, 2013

Case of Borat Discrimination for Make Benefit Glorious Resources of Humans


A federal court (opinion here) has determined that a Jordanian employee nicknamed "Borat" by his co-workers can proceed to trial on his claims of race and national-origin discrimination.

Yeah, I know what you're thinking. Borat isn't from Jordan. He's from Kazakhstan (NSFW). So how can Borat the Jordanian claim discrimination?

Readers of this blog know that mistaken religious discrimination is illegal. And, in the Borat example, so is mistaken national-origin discrimination. Indeed, it can still happen even if the Jordanian employee's harassers didn't know he was from Jordan. As the court noted, it is enough for a plaintiff to show that he was treated differently because of his foreign accent, appearance or physical characteristics.

And if the harassers knew that the Jordanian employee was from Jordan? The Borat comments could still tee up a race-discrimination claim if the harassers intentionally conflated Arab and Kazakh identities. Otherwise, the teasing would make so sense.

VW may be able to get away with joking about foreign accents during the Super Bowl, but don't tolerate employees who engage in similar workplace hijinks.

February 1, 2013

GUEST POST: Shocking Consequences of Social Media In The Workplace

guestblogger.jpgThis week has been particularly dooziful -- that's a word, look it up -- with employee social media tomfoolery. You've got the employee asking to be fired on Facebook, HMV employees hijacking the company Twitter account to live tweet firings, a restaurant employee posting snarky customer meal receipts and, two words, one hashtag, #CrunkBear (NSFW).

So, the timing couldn't be better for our guest blogger here at The Employer Handbook. John Barrett is a writer and employment law activist. He enjoys spending time with his family and keeping up on relevant issues for employees' conditions in the workplace. He is representing employmentlawlayers.com with his writing.

After the jump, John brings you "Shocking Consequences of Social Media In The Workplace."

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

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Continue reading "GUEST POST: Shocking Consequences of Social Media In The Workplace" »

January 31, 2013

New bill in PA would prohibit unemployment discrimination


In 2011, New Jersey passed a law banning discrimination against the unemployed. Will PA follow suit in 2013?

The ball is rolling....

The PA House introduced its own unemployment-discrimination bill on January 22, 2013, and you can view a copy of it here.

Cliff's notes version:

  1. Employers CAN'T use one's unemployment as a negative factor when considering candidates for job openings.

  2. However, employers CAN consider an individual's employment history or factual and objective reasons underlying an individual's unemployment status in assessing an individual's ability to perform the vacant job.

  3. Employers CAN'T advertise anything resembling "unemployed need not apply."

  4. However, employers CAN assess whether an individual's employment in a similar or related job for a period of time reasonably proximate to the consideration of the individual for employment is consistent with industry practice and necessary to successful performance of the vacant job

Employers that violate the law face fines and potential civil litigation. The statute of limitations is 2 years and taking adverse action against an individual within 90 days of the person's exercise of rights protected under the Act raises a rebuttable presumption of retaliation.

January 30, 2013

Employee posts "I wish I could get fired" on Facebook. Guess what happened?


I'll give you a hint.

The lede from this KTVK report is: "A single sentence posted on Facebook changed Amy McClenathan's life forever."

According to KTVK, Ms. McClenathan made the Facebook post because she was having a rough day near the one-year anniversary of her mother's death. So, I won't pretend to judge Ms. McClenathan for what she was going through that day. And even assuming the post precipitated the firing, I won't critique the propriety of her employer's response -- she was fired, and in case you hadn't figured that out, I'll send Tommy back back there and hit you on the head with a tack hammer.

But, wait just a hot minute! She was complaining about work on Facebook and...she got fired?!? How could that be?

Just remember: an employee griping alone -- by any other name (or medium) -- is still an employee griping alone.

Our social-media snafu du jour reinforces what Dan Schwartz at the Connecticut Employment Law Blog wrote (here) last week. Namely, all this stuff you may have read recently about employees having the blanket right to complain about work online is bullshit.

If anything that the National Labor Relations Board has said recently matters (and that's a BIG if), the rights of employees to gab about work together extends to online speech. But you see that word there -- together -- that's important. Because, generally speaking, while the law gives employees the right to engage in protected concerted activity, it does not protect employees who gripe alone. That's true whether an employee complains online, in person, via telephone, voice mail, email...

Folks, if an employee acting alone sky-writes, "I wish I could get fired" over corporate headquarters, does she keep her job?

Social media is just another form of communication. It's collaborative qualities lend themselves to employees being able to complain or (gasp) praise you together. But an employee who acts alone...

Whether it's Ms. McClenathan asking to get fired on Facebook, or Carly McKinney a/k/a CarlyCrunkBear, a first-year teacher, who tweets half-naked pictures of herself...

{I've logged your IP address and I'm calling your IT Department}

...brags that she tweets when she should be working, and further suggests that she grades papers of her "jailbait" students while stoned {thank you Gawker, thank you} when an employee does dumb stuff online (or offline), an employer has the right to respond --

-- in any way it damn well pleases.

January 29, 2013

Discrimination claims drop in '12; The Employer Handbook go BOOM!

Thumbnail image for ebmpuzzle.jpgKudos to this blog for the drop in discrimination claims. Yeah, I'm giving this blog credit, and so is my mother -- probably.

{Mom couldn't be reached for comment and, strangely, the EEOC press release touting the new FY12 charge statistics is silent about this blog}

The year-end data shows that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, still the most frequently filed charges. However, the total number of claims in FY12 dipped below FY10 levels.

And did I mention that I started blogging just after FY10 ended? 

Coincidence? {Lets' just say that my writting has neevr ben bedder}

In the immortal words of Big Pun...

January 28, 2013

OMG! Must we grant our employee's religious-accommodation request?

cross.jpgAn employer must accommodate the sincerely-held religious beliefs of its employees unless the employer demonstrates that doing so would cause undue hardship for the business.

Undue hardship?!? What the heck is that? And how can you make sure that your managers are prepared to address -- let alone spot -- these issues when they arise.

Whoa, whoa, whoa. Calm down. I've got your back, after the jump...

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Continue reading "OMG! Must we grant our employee's religious-accommodation request?" »

January 25, 2013

Holy smokes! As in, up in smoke for Obama's Labor Board selections


The U.S. Court of Appeals for the D.C. Circuit ruled today that President Obama lacked the power to make three recess appointments last year to the National Labor Relations Board.

You can read a copy of the opinion here.

According to the U.S. Supreme Court, a two-member Board is powerless to exercise any authority. At the time of the three recess appointments, the Board only had two members.Therefore, by ruling that Obama's three recess appointments are unconstitutional, today's appellate-court ruling effectively moots every decision from the Board subsequent to the recess appointments, most of which went against employers.

Expect this to be appealed to the Supreme Court.

UPDATE: The U.S. Chamber of Commerce has much more on today's ruling here.

2ND UPDATE: Here is a statement from NLRB Chairman Pearce on today's ruling.

January 25, 2013

The 25 CRAZAZIEST job-interview questions of 2013

Glassdoor.jpgFrom my perspective, Glassdoor.com's Top 25 Oddball Interview Questions For 2013 is one lobbed softball after another. Then again, I'm the guy who, as the interviewer, used to ask law students to name their favorite Supreme Court Justice of all-time.

{Totally a trick question. The only acceptable response is, "Judge Elihu Smails." Never happened. Coincidentally, my tenure on the Hiring Committee was brief.}

But, before we call it a day, I'm sure you're all dying to know how I would have answered four of the oddball questions:

"A penguin walks through that door right now wearing a sombrero. What does he say and why is he here?"
- "I'm here for the drug test. So, where do I--- Hey! Quit staring at my junk!"

"On a scale from one to ten, rate me as an interviewer."
- Tool, err, two.

"What songs best describes your work ethic?"
- Uh, duh! No, wait...

"If you could be anyone else, who would it be?"
- Any one of my awesome blog readers. 

(Am I right? Or am I right?)

January 24, 2013

New app promises to sanitize your employees' Facebook pages

  • The self-congratulatory comments I left below the picture of my awesome seven-story beeramid.

  • My candid review of Cinemax's After Dark lineup from Arbor Day 2011.

  • My plea to George Carlin to go beyond the self-imposed boundaries of seven dirty words.

A new app called FaceWash promises to get rid of all of this from my Facebook account.

Here's how it all works (according to the folks at FaceWash):

FaceWash comes with a precompiled list of words that may be considered offensive or alarming to those viewing your social history. This list spans a broad spectrum of "dirtiness," from sex to drugs to curse words and more (it even includes some seriously abstract crazy things you might have posted). FaceWash also allows you to input your own words that may not have been covered in our list.

With a few clicks, FaceWash performs a search and alerts you to sections of your Facebook page that you may want to delete.

So, basically, my entire Facebook existence -- except for that time I "liked" the photos from my son's 2nd birthday party. Society's loss, I suppose.

Intended for attorneys who exercise questionable discretion in the first 100 or so words of a blog post about FaceWash recent college grads, this service may be useful to other employees (young and old) in your workplace with a tendency for loose-Facebook-lips. 

So, pretty much every Facebook user I have encountered.

Therefore, the next time you train your employees on your social-media policy --

You do train on your policies, right?

** I'll pause for just enough time to allow you to squint and rub your chin and for me to judge **

As I was saying, the next time you train your employees on your social-media policy, pass along two tips from your old buddy Eric:

  1. Remember that Facebook has privacy settings. Explore them and make sure that only those people who can view your page are the ones you want to view your page.

  2. If employees are otherwise concerned about purging some of the dumb stuff they may have posted in the past -- {ahem} -- consider using FaceWash or otherwise reviewing their Facebook history to delete the bad stuff.

Image Credit: FaceWash

January 23, 2013

Fact or Fiction: Your employee's nasty facial scar may be a disability

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."

Your new employee at local pizzeria has what we'll call a "facial deformity." So, rather than having him work the cash register, or otherwise emerge from the kitchen, you mandate that he work in the back so that no customers will ever see him.

Have you violated the Americans with Disabilities Act?

Well, it's probably time to call the lawyer...

Under the ADA, it is unlawful to discriminate against a disabled employee. An individual has a "disability" if he:

  1. has a physical or mental impairment that substantially limits one or more of the major life activities of an individual;

  2. has a record of such impairment; or

  3. is regarded as having such impairment.

The supporting regulations are clear that a cosmetic disfigurement, such as a "facial deformity," qualifies as a physical impairment. And if that physical impairment substantially limits a major life activity such as --- I dunno -- working, we've got an ADA disability. Moreover, if the employer keeps the employee in the back under the pretense of appealing to "customer preferences," then the employee is likely being "regarded as" disabled. 

To be clear, employment decisions that are based on the discriminatory preferences of customers are just as unlawful as decisions based on an employer's own discriminatory preferences. 

(You may be thinking bona fide occupational qualification. Indeed, religion, sex, or national origin can be a bona fide occupational qualification; the ADA contains no BFOQ defense). 

The answer to today's QATQQ is FACT. And, for more, check out this recent federal-court decision authored by none other than the author of the most blunt same-sex sexual harassment judicial opinion...evah!

January 22, 2013

Supreme Court to decide how an employee must prove Title VII retaliation

What makes retaliation the most common discrimination claim in America?

I suspect it's because other forms of discrimination (e.g., race, gender, disability) are more difficult to prove and don't always result in an adverse employment action, such as termination of employment. And since most people like to keep their jobs, they're more reluctant to rock the boat.

Conversely, retaliation always includes adverse action -- quite often a firing -- and follows what the law terms a "protected activity" (opposition to discrimination or participation in the statutory complaint process). So, you have a situation where an employee suspects discrimination is afoot, complains about it, and then gets fired. 

Retaliation salt rubbed in an open discrimination wound. 

So, any Supreme Court ruling affecting the standard for proving retaliation is big news.

Last Friday, the U.S. Supreme Court agreed (here) to decide what level of proof a plaintiff must establish to prevail on a retaliation claim. Here is the question presented to the Court:

Whether Title VII's retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

To date, courts of appeals are divided 3-2 on this issue.

Having done this for a while now, let me tell you that if an employee's good-faith internal complaint of discrimination or a Charge of Discrimination filed with the EEOC at all factors into your decision to act against an employee, make sure your litigation budget is teeming with Mr. Green. 

January 18, 2013

Where do WEDGIES fit into your progressive discipline policy?

wedgie.jpgI know. I know. Seems more like a "Tuesday" post.

Earlier in the week, I read this article on The Smoking Gun about a man who got busted giving wedgies to movie patrons outside of a Florida theater.

So, it got me thinking. 

Let's say that Chris from Accounting comes to you in HR, underwear flapping in the breeze, still red faced from a Pat-administered wedgie.

{What a day for Chris to forget to don the Rip Away 1000s, eh?}

To date, Pat's wedgie ways have not surfaced in the workplace. In fact, Pat has a clean disciplinary record.

So, what do you do? (And does it matter if Pat & Chris are male or female?)

Yeah, I'd like to know.