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.

July 15, 2013

Iowa S. Ct.: Upon review, firing the attractive female was not sex discrimination

So, by now, all of you must be familiar with the case in Iowa -- I've blogged the heck out of it here and here -- where the male dentist fired the attractive female hygienist, ostensibly because his wife was concerned that the hygienist's continued employment might affect their marriage and because the dentist was concerned that he may eventually shag her.

Late last year, the Iowa Supreme Court unanimously held (here) that there is no sex discrimination if a male employer terminates a long-time female employee because the employer's wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee.

Then, a few weeks ago, and after a lot of public scrutiny, the high court agreed to reconsider its unanimous ruling, which it did with this new opinion issued on Friday. 

Second verse same as the first.

The reissued opinion, which replaces the original, looks very similar. Indeed, it too concludes that there was no sex discrimination. But this time around, it underscores that the plaintiff only brought a claim for sex discrimination, rather than one for sexual harassment, implying that the latter may have presented a more viable claim -- provided of course that the plaintiff found the defendant's behavior to be unwanted or offensive, which, apparently, she didn't.

Except for the addition of a head-scratching concurring opinion.

Another difference this time around is the addition of a concurring opinion in which three of the Iowa justices joined. This concurrence, which is nearly as long as the 18-page opinion of the majority of the court, ultimately concludes that that "[w]hat has emerged from this complex area of the law is the general legal principle that an adverse employment consequence experienced by an employee because of a voluntary, romantic relationship does not form the basis of a sex-discrimination suit."

I agree with this conclusion. Yet, I struggle with how it fits with the facts of this case.

On the one have you have the defendant who admits texting the plaintiff lewd comments about her tight clothing, the relative infrequency of her sexual activity, and an inquiry about how often she experienced orgasms. The concurrence acknowledged that defendant's comments that would "commonly be viewed as inappropriate in most any setting and, for sure, beyond the reasonable parameters of workplace interaction."

Then you have the plaintiff, to whom the concurrence attributes what appears to be an out-of-context statement about how the defendant was the reason she continued to work at the office. Then, she "also acknowledged she maintained a closer relationship with Dr. Knight than he maintained with the other employees in the office." Indeed, the only evidence of any reciprocation from the plaintiff is another employee's opinion that the plaintiff was flirting with the defendant. The plaintiff, herself, argued that the sexual attraction her employer developed for her, which was the reason for her termination, was his creation and not the result of a personal relationship she maintained with him.

So, let's call a spade a spade and just say that Dr. Knight fired the plaintiff, not because of anything she did to lead him on, but because he and his wife were concerned that he would end up trying to screw her.

Yet, somehow the concurrence construes the facts as "an undeniable part of the consensual personal relationship enjoyed by Nelson and Dr. Knight." 

Consensual relationship or not, the firing was not based on any animus that Dr. Knight had against women generally. 

Indeed, he replaced the plaintiff with another woman. And there was nothing to suggest a pattern of mistreating women. Therefore, I agree with the court's conclusion that the plaintiff's sex discrimination claims should fail here.

What do you think? Did the court ultimately get it right? Let me know in the comments below...


July 12, 2013

The unintended consequences of a new social media workplace law

d'oh!.png

I got an email the other day from my SHRM buddy Tara Mauk Arthur. She lives in Arkansas, which is one of 12 states to have a social media workplace privacy law

As my readers know, subject to limited exception, laws like the one in Arkansas make it illegal for an employer to require or request that a current or prospective employee disclose his/her username or password for a social media account. Some, like the one in Arkansas, also make it unlawful to add a co-worker as a social media contact.

Now, as you know, my posts on these new laws have a common theme; namely, that these laws present a solution in search of a problem. And the problem with slapping together and passing legislation like this is you get some unintended consequences. Cue Tara's email:

I have a question for you. The law, as most, do say you can't require, request.....access to an applicant or current employee's social media account. So, my question is: does this prohibit the "friending" between employers (aka managers/HR) and employees? It is access to the account. There would have been no "forcing" of friending but a mutual acceptance. However, how do you prove that when an employee becomes upset with you? HR people are smart. We know better. Furthermore, what about connections on LinkedIn??

Hmmm...

Well, let's look at the Arkansas social media workplace privacy law. It clearly states that an agent of the employer (e.g., HR) may not "add an employee, supervisor, or administrator to the list or contacts associated with his or her social media account" and there is no exception if both people agree. Ditto a LinkedIn account, unless the LinkedIn account is "opened by an employee at the request of an employer" or "setup by an employee on behalf of an employer." Even if initiated by the employee, connecting on social media too would be unlawful because the law states that "an employer shall not...cause a current or prospective employee" to connect on social media.

So, in Arkansas, a manager cannot connect with an employee on LinkedIn. Further, if two friends work together, but one is an agent of the employer, they cannot be friends on Facebook or follow one another on Twitter. 

So much for the "social" in social media.

Just another why laws like these are unnecessary.

Image Credit: Stannered

July 11, 2013

One step closer to federally-protected LGBT rights in the workplace

rainbowflag.jpgNormally, I get my Thursday post fodder from the Wiggity Wiggity Wonky Wednesday edition of Cracked Magazine. Hard hitting stuff like "7 Dick Moves Everyone Pulled in Classic Video Games" and "The Worst Imaginary Friends to Be Stuck With."

But, for today's post, I read this newspaper called the Washington Post. I dunno. Must've sprung up overnight. 

One its writers, Ruth Tam, writes here that the Employment Non-Discrimination Act (ENDA) has cleared a bipartisan Senate committee:

Three Republicans, Sens. Orrin Hatch (Utah), Lisa Murkowski (Ala.) and the bill's original co-sponsor, Mark Kirk (Ill.) joined 12 Democrats to quickly approve what committee chairman Sen. Tom Harkin (D-Iowa) called "historic legislation."

Title VII of the Civil Rights Act currently makes it unlawful for employers to engage in sexual stereotyping. Introduced back in April and in every session of Congress save one since 1994, ENDA 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.

Ms. Tam's article notes that committee member, Sen. Lamar Alexander (R-Tenn.), opposed ENDA, but offered three amendments to the bill:

In his opening remarks, he suggested providing more guidance for employers operating at shared facilities, a better definition of "transitioning" individuals and the elimination of a provision added in the manager's amendment to allow cases to proceed when employers have legitimate reasons for certain employment decisions.

According to the article -- Tam's piece, not "6 Animals Clearly Disguised as Candy (A Drunk Column)" -- a full vote on ENDA in the Senate is expected sometime in the Fall.

Image Credit: Wikipedia

July 10, 2013

Obesity as a workplace disability? One court bucks the trend and says no.

obesitysuit.jpg

In mid-June, the American Medical Association concluded that obesity is a disease "requiring a range of medical interventions to advance obesity treatment and prevention." This news led Jon Hyman at the Ohio Employer's Law Blog to conclude that classification of obesity as a "disease" has huge employment law implications; namely, that under the Americans with Disabilities Act, employers would have to consider allowing for reasonable accommodations for obese employees. Indeed, even before the AMA guidance, a Louisiana court determined that morbid obesity was a disability under the ADA, thus requiring reasonable accommodation.

Well, last month, a state court in West Virginia concluded otherwise. More on this decision and its impact on employers after the jump...

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Continue reading "Obesity as a workplace disability? One court bucks the trend and says no." »

July 9, 2013

Following homophobic slur, NHL player quits Twitter

Tyler SeguinAs many of you know, I am a HUGE Boston Bruins fan. But, right now, I have little love for former Bruins winger Tyler Seguin.

You see, Seguin was a highly touted 2011 draft pick who did a disappearing act in the playoffs this year. Amidst reports that his off-ice behavior was interfering with his on-ice performance, the Bruins traded the 21-year-old Seguin to the Dallas Stars on July 4.

The media scrutiny caused Seguin's mom to come to his defense. (I'm sure that won't ignite the crowds at all during road games). But just as that story began to lose steam, Seguin's Twitter account published this tweet:

steersseguin.jpg

I say it was Seguin's Twitter account that spewed this garbage, rather than Seguin himself because, like other young athletes before him, Seguin claims his account was hacked. And, according to Sam Laird at Mashable.com, Seguin has since deleted his Twitter account. He also notes that this is not the first time that Seguin's Twitter activity has drawn scrutiny for homophobic slurs.

All of this brings me back to yesterday's post about social media red flags that cause employers not to hire certain candidates. I feel sorry for the Dallas Stars. They are now saddled with an athlete who, I'm guessing, they would have passed on last week had this hateful tweet surfaced earlier.

July 8, 2013

The six social media faux pas that may cost you that big job

According to this recent survey from CareerBuilder.com, the number of hiring managers who are reporting that a job candidate's social media indiscretions have cost them a position is up nearly 10%, while the overall use social media to vet candidates continues to grow. 

Thumbnail image for facefire.jpgThose surveyed, reported finding a variety of concerning content. Top mentions ranged from evidence of inappropriate behavior to information that contradicted their listed qualifications:

  • 50% - Candidate posted provocative/inappropriate photos/info
  • 48% - There was info about candidate drinking or using drugs
  • 33% - Candidate bad mouthed previous employer
  • 30% - Candidate had poor communication skills
  • 28% - Candidate made discriminatory comments related to race, gender, religion, etc.
  • 24% - Candidate lied about qualifications

The same survey indicates that a candidate's social media use can also separate them from the pack. One in five hiring managers (19%) said they found something that has caused them to hire a candidate - top mentions include:

  • 57% - Candidate conveyed a professional image
  • 50% - Got a good feel for candidate's personality
  • 50% - Candidate was well-rounded, showed a wide range of interests
  • 49% - Candidate's background information supported professional qualifications
  • 46% - Candidate was creative
  • 43% - Great communication skills
  • 38% - Other people posted great references about the candidate

[HR ProTip: If you screen candidates with social media, to reduce the appearance discrimination, have a non-decisionmaker search social media and provide the ultimate decisionmaker with a sanitized internet report (i.e., all protected-class information removed) for his/her consideration]

Are you one of those companies using social media to vet job candidates? If so, why? Or are you concerned that using social media to research applicants is more trouble than it's worth? Let me know in the comments below.

July 5, 2013

The one about the porta-potty harassment

PortapottyHey, they can't all be about Brazilian waxes and irresistible attraction. After the jump, we get down and dirty.

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Continue reading "The one about the porta-potty harassment" »

July 3, 2013

YYYOUCH! Employee fired for refusing Brazilian wax claims sex discrimination.

Brazilian

You know, maybe I should have gone with the porta-potty-harassment post that I originally had planned for today. Nah. My analytics tell me that my best-received posts have a common theme: crotch and Brazil. Besides, everyone knows that nothing says Friday like a porta-potty post. Just wait 'til Friday.

So today, after the jump, let's wax poetic, shall we?

(Ouch, again).

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Continue reading "YYYOUCH! Employee fired for refusing Brazilian wax claims sex discrimination." »

July 2, 2013

George Zimmerman trial lessons: How not to use social media

You see, in certain instances, a trial witness's social media breadcrumbs may undermine her credibility and score points for your client. But when the witness -- and the lawyer trying to impeach the witness with her social networking activities -- display as much combined tech savvy as J-Lo's PR machine, hilarity trouble may ensue:

(h/t @PhilipMiles)

July 1, 2013

No non-compete in the offer letter, but here's a way to enforce one...

You're hiring for an engineer position. To assist, you engage a search firm, which finally locates an ideal candidate. After a telephone conversation, and a subsequent tour and in-depth interview, you know that you have the right person for the job. So, you prepare and send an offer letter.

The offer letter includes a summary of the position, responsibilities, location, base salary, benefits, effective date, and confidentiality. The letter also states: "You will also be asked to sign our employment/confidentiality agreement. We will not be able to employ you if you fail to do so. In addition, the first day of employment you will be required to sign an Employment Agreement with definitive terms and conditions outlining the offer terms and conditions contained herein."

The offer letter does not contain any mention of a non-competition agreement.

Your candidate signs and returns the offer letter. On his start date, you ask the candidate to sign an employment/confidentiality agreement, which does contain a non-competition restrictive covenant. The candidate reads and understands the non-competition covenant, signs it without objection, and goes to work for you.

If, a few years later, this employee decides to leave to work for a competitor, will that non-competition agreement be enforceable? Or will you be out of luck because the offer letter said nothing about it?

According to this recent opinion from the PA Supreme Court, you're a-ok.

That is, there are enough elements to the offer letter to show that the letter is evidence of negotiation and not a contract itself: (i) it was intended to summarize the position; (ii) it references a subsequent employment/confidentiality agreement; and (iii) it confirms that the definitive terms in the employment agreement will control.

Plus, because the restrictive covenant at issue was contained within the employment agreement, it was ancillary to the taking of employment and therefore supported by consideration.

The PA employer here got lucky. Don't make the same mistake. If you're in PA and you want an employee to enter into a non-competition agreement as a condition of initial employment, reference it in the initial offer letter and have that employee sign a separate non-competition agreement immediately upon commencing employment with the company. Also, don't overreach. Make sure that the restrictive covenant is carefully tailored in time and geographic scope to protect your legitimate business interests.

June 28, 2013

Iowa S. Ct. to reconsider if it's legal to fire an employee for her irresistible attraction

(Betcha didn't see that lede coming...)

So, let me take you back to late December 2012 -- a time when my blog was blowing up. Back then, I wrote this post about Melissa Nelson. Ms. Nelson had worked as an assistant to dentist James Knight. That is, until Dr. Knight fired her in 2010 based on concerns from both he and his wife that if Ms. Nelson continued to work for Dr. Knight, he'd have sex with her and it would ruin their marriage.

So, Ms. Nelson sued for gender discrimination.

[Folks, rather than soundtracking this post with "Dr. Feelgood" or "Simply Irresistible," I was this close to breaking new, "don't come back to work on Monday", ground with a Two Live Crew single. This close. Then again, the whole collecting a paycheck thing...] 

Ultimately, the Iowa Supreme Court ruled unanimously in this opinion that Ms. Nelson's claim should be construed as one of "sexual favoritism," rather than "gender discrimination." -- "treating an employee unfavorably because of such a relationship does not violate the law." Indeed, Dr. Knight fired Ms. Nelson, not because she was a woman, but because of her "irresistible attraction." (Dr. Knight replaced her with a less attractive woman).

Well, Jeff Eckhoff at the Iowa Des Moines Register reports here that the Iowa Supreme Court has withdrawn its unanimous decision in the Nelson case to reconsider it:

On Monday, Chief Justice Mark Cady signed an order resubmitting Nelson's lawsuit for reconsideration by the court effective 9 a.m. Wednesday. Cady's order says the case will be reopened for discussion by the court; there will be no further oral arguments or additional input from Knight. Nelson's appeal will simply be re-evaluated based on previously submitted evidence and legal briefs.
A new decision could come as early Friday, when justices theoretically are scheduled to wrap up all pending cases submitted during the prior term.
An Iowa Supreme Court spokesman said it's "rare" for justices to grant petitions to rehear a case. Five such requests have been granted over the past decade.

Now, I'm no expert on Iowa civil judicial procedure, but I cannot imagine that this unanimous decision will be overturned. Indeed, I think they got it right on the law. But, the Eckhoff article indicates that one of the Iowa Justices may have changed his mind. (The original decision came from 9 male Justices). Maybe, someone will find that while the termination does not constitute gender discrimination, it still violates public policy.

(h/t my friends at @SJEmpEssentials)

June 27, 2013

Supreme Court DOMA ruling "In Plain English"; impact on employers

theysaid.jpgWant an explanation of yesterday Supreme Court decision regarding challenges to California's ban on same-sex marriage and the federal Defense of Marriage Act, check out Amy Howe's analysis "In Plain English" at SCOTUSblog.com.

And for more on yesterday's decision and the impact it may have on your business, check out:

June 26, 2013

Employee teased with small penis jokes has a viable sexual harassment claim

Dodgeball on court

[Whichever one of you had the voodoo doll positioned in such a way that wouldn't allow me to pun this lede, I'm gonna git you sucka!]

In Hayes v. Erickson Air-Crane, Co. (opinion here), a male plaintiff was constantly barraged with small penis nicknames from his male co-workers ranging from "little jimi" to "tiny tim" to "dodgeball" (based on Ben Stiller's White Goodman character). He didn't like it, and sued.

The Court found that, based on this behavior, a jury could find that the plaintiff could potentially prevail on his sexual harassment claims because a jury may find that he was subjected to unwelcome sexual comments that were pervasive enough to create a hostile work environment.

But, hold on here. Notwithstanding the appalling alleged treatment of the plaintiff, I can't help but wonder if the employer could have escaped liability here.

A few times (here and here) we've talked about cases involving same-sex harassment. In each instance, the court was tasked with determining whether a same-sex harassment case had merit. And, each time, relying upon the U.S. Supreme Court's three-part test in Oncale v. Sundowner Offshore Services, Inc., the court determined that it didn't.

In Oncale, the high court held that a jury may infer that same-sex harassment occurred because of sex when the plaintiff can produce:

  1. credible evidence that the harasser was homosexual;

  2. evidence that makes it clear that the harasser is motivated by general hostility to the presence of the same sex in the workplace; or

  3. comparative evidence about how the alleged harasser treated members of both sexes in the mixed-sex workplace.

Also, check out the dissent in Rene v. MGM Grand Hotel.

In Hayes, the employer argued that the small-penis nicknames were neither severe nor pervasive enough to constitute a hostile work environment. Instead, it strikes me that since all of Hayes's harassers were male, the plaintiff may have lacked sufficient evidence to satisfy any one of the three Oncale criteria. Game. Set. Match.

Employment lawyers, what do you think? Too much sun for me on vacation? Or amirite?

(Got Sledgehammer in there; obscure enough to elude the power of the voodoo doll).

June 25, 2013

Supreme Court delivers two -- count 'em TWO -- wins for employers

STT.pngThis week, I am on vacation. The Supreme Court didn't get my memo. Fine. But, I'm not putting down my beer to write this post. So, you get a one-handed rundown of the two employment-law decisions the court issued yesterday. 

Pardon my typos after the jump...

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Continue reading "Supreme Court delivers two -- count 'em TWO -- wins for employers" »

June 24, 2013

When a hostile work environment isn't a hostile work environment

someecards.com - I got my big boy pants on.

Every so often, I get a call from an employee. The call goes something like this:

"I need an employment lawyer. Are you an employment lawyer?"
"Yes."
"Good. Because I am dealing with a hostile work environment."
"Well, I generally only represent employers. So---"
"--- But, my hostile work environment is bad. My manager is so mean. He yells at me. He gives me lots of work. He's terrible. Do I have a case?"
"How did you get my number?"
"I found it on the internet."
*** curses internet ***

Folks, I'm right there with you. Mean bosses suck. And who likes having to do a lot of work, especially when you're getting yelled at? But this is not what the law recognizes as a hostile work environment.

But don't just take my word on it. Consider the Third Circuit's recent opinion in Fichter v. AMG Resources Corp. In this case, the employee cited 14 examples of what she believed created a hostile work environment, ranging from her male manager asking that she finish her work quickly and being required to tell her male manager if she would be arriving to work late or leaving early.

In denying the plaintiff's claim for hostile work environment (based on gender), the Third Circuit underscored what the manager was asking of Ms. Fichter is what managers generally ask of their employees. So nothing here amounted to a Title VII violation.

Title VII doesn't guarantee a perfect working environment. But, calls like the one above suggest that, while your workplace may not violate discrimination laws, there could be some problems worth address. As evidenced by the Fichter case, some lawyers don't have the same filters that I do.

And, last time I checked, it'll cost you money to defend a discrimination lawsuit -- even if it's meritless.

*** hugs gold bars ***