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.

April 15, 2013

Four ways to successfully defend an Equal Pay Act claim

This blog is nearly 2 1/2 years old and we have our first Equal Pay Act post. The Equal Pay Act requires equal pay for equal work on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions. Any wage discrimination on the basis of sex violates the Act.

The EEOC celebrated "Equal Pay Day" last week. So, now is as good a time as any to address the Act through this recent case from the Third Circuit Court of Appeals.

In Puchakjian v. Township of Winslow, Deborah Puchakjian filled a Municipal Clerk vacancy within the Township of Winslow which came about a result of the retirement of the male incumbent. His salary at retirement was $85,515; Ms. Puchakijan's salary to replace him was $55,000.

She sued.

She lost.

You see, there are four exceptions to the Act's general rule of equal pay for equal work:

  1. a bona fide seniority system,
  2. a merit system,
  3. a system which measures earnings by quantity or quality of production, or
  4. any factor other than gender

The Third Circuit agreed with the lower court that the retired Municipal Clerk's yearly salary increases over his 29-year tenure in the position "both explained and motivated the wage disparity." Consequently, the wage disparity was based on a factor other than gender.

Given these four Equal Pay Act exceptions, claims under the Act are tough to prove. That said, a priority in the EEOC's Strategic Enforcement Plan (FY 2013-2016), is the enforcement of equal pay laws. Indeed, in 2012, the EEOC received over 4,100 charges of gender-based wage discrimination, and obtained over $24 million in relief for victims of gender-based wage discrimination through administrative enforcement efforts and litigation.

So, now is as good a time as any to conduct a wage audit and make sure that any disparity in pay for equal work is attributable to one of the Act's exceptions.

April 12, 2013

Remove my stitches! And 14 other all-time crazy requests from the boss

Yesterday, CareerBuilder.com released its list of 15 of the most unusual things that bosses have asked employees to do. I've had a lot of rough, odd jobs in my lifetime --

*** Hey silver spoon! Quit giving me the stink eye over there. If I write it, my readers believe it. Sheep... ***

I consider myself lucky, requests made of me only made the list twice.

Ok. Seven.

*** Re-checks list for "Quick! Flush the yeyo*." ***

Yep, seven. Here they are:

  1. Boss asked employee to be prepared to delete all emails and computer files at a moment's notice
  2. Boss asked employee to be a surrogate mother for her - more than once
  3. Boss asked employee to spy on senior management
  4. Boss asked employee to buy a rifle for him, and he would reimburse the employee
  5. Boss asked employee if she knew of anyone who could "hook him up" with illegal substances
  6. Boss asked employee to go online and post false good comments about him
  7. Boss asked employee to come up with a science fair project for her daughter
  8. Boss asked employee to fire his (the boss's) brother
  9. Boss asked employee to lend him $400 for a down payment on a car
  10. Boss asked employee to remove her stitches
  11. Boss asked employee to be better friends with him
  12. Boss asked employee to scour an abandoned office building for furniture and supplies they could use
  13. Boss asked employee to bail another coworker out of jail
  14. Boss asked employee to clip her dog's nails
  15. Boss asked employee to help plan her wedding

What's the weirdest thing that your boss has asked you to do? Let me know in the comments below.


* That never happened and The Employer Handbook does not condone drug use in the workplace. Scarface-esque references to "yeyo"; however, are ok if cleverly executed. Swish!

April 11, 2013

Fired and told "you're a little too old for your job," Old Rose LOSES her age-bias claim

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From the blog that brought you the classy September 2011 post, "This old mother****** may just have an age discrimination claim," comes a story of a woman whom her former employer **cough** affectionately **cough** referred to as "Old Rose."

On other occasions, the plaintiff Rosemary Marsh was told, "you're slipping, you're getting old." Another time, she was asked if she was "too old to get down there" when she bent down to replace paper in the photocopier. And when the company eventually fired Ms. Marsh -- you had to figure that was coming, right? -- she was allegedly told, "I think you're just getting a little too old for your job."

Sounds like the makings of a good age discrimination claim. Well, not in the Sixth Circuit Court of Appeals. No ma'am:

The first three alleged statements were not made in connection with a decision to fire Marsh. At the most, these statements show only that Horn felt that Marsh was an elderly individual and that some stage of old age was correlated with a decrease in job performance. To hold that age was the but-for cause of Marsh's termination, a factfinder would still have to infer from these statements that Horn's supposed disdain for the elderly led her to fire Marsh. Thus, these statements do not constitute direct evidence of age discrimination.

Hold up there one sec. I read in the opinion that the defendant claimed that Ms. Marsh was a poor performer. But, Ms. Marsh claims they freaking told her, "I think you're just getting a little too old for your job." I'm sensing pretext here, amirite?

Finally, Marsh asserts that Horn's alleged age-related statements, discussed above, demonstrate that AERC of Michigan's proposed reasons for her termination are a mere pretext used to mask age discrimination....Marsh cannot demonstrate that these alleged comments were made by a decision-maker or that the individuals with the power to fire her harbored any discriminatory animus. Thus, the alleged statements of an individual with no authority to fire Marsh cannot demonstrate that AERC of Michigan considered Marsh's age when firing her, much less that AERC of Michigan's espoused reasons were pretextual and that age was actually the but-for cause of Marsh's termination.

The case is Marsh v. Associated Estates Realty Corp.

April 10, 2013

An employee using the "honest belief" doctrine in a bias case? As if!

He has my pants on fire... :)To defend against a claim of discrimination, an employer can argue that it fired an employee because it honestly believed that the employee did "X." And, as long as "X" isn't discriminatory, the employer prevails. This is the honest belief doctrine.

So, can an employee flip the "honest belief doctrine" on its head to show that an employer's purported legitimate business reason for disciplining an employee was actually pretext for discrimination?

Find out after the jump...

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Continue reading "An employee using the "honest belief" doctrine in a bias case? As if!" »

April 9, 2013

Even rarely performed job functions may be "essential" under the ADA

You run a delivery service using large trucks and require that drivers be qualified by the Department of Transportation. Although your facility managers aren't often behind the wheel of the big rigs, you nonetheless require that they too be DOT certified.

One day, a manager with a disabling eye injury comes to you and asks for an accommodation under the Americans with Disabilities Act: to be excused from driving trucks so that he may focus on "managing."

Assuming that no other reasonable accommodation exists, must you give it to him?

According to the Eighth Circuit Court of Appeals in Jeff Knutson v. Schwan Food Company (opinion here), that's a big N-O, good buddies.

Even though your manager rarely has to drive, job functions that aren't performed that often can still be "essential" functions of the job. "Essential functions" are "the fundamental job duties of the employment position the individual with a disability holds." What is (and is not) an essential function can depends on several factors the court espoused:

Evidence to consider in this determination may include: (1) the employer's judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the current work experience of incumbents in similar jobs.

In your case (as in Knutson -- I shamelessly ripped the facts from Knutson. It was easier than blogging about Ray J's new song. Is it a Kimye diss track? Who knows? Who cares? I want those last three sentences back...), if you've got a good written job description, your judgment is sound, and the experience and expectations of all managers is that they need to get behind the wheel from time to time, then you're defense that driving is an essential job function is solid.

So, take a look at those job descriptions and talk to your employees about what they do on a day-to-day basis. And update those job descriptions accordingly.

April 8, 2013

The importance of addressing sex stereotyping in the workplace

stereotype.jpgMany states and localities have laws forbidding discrimination on the basis of sexual orientation (LGBT). 

But Title VII of the Civil Rights Act, one of the federal laws barring discrimination in the workplace, law does not prohibit it.

What Title VII does make unlawful, however, is stereotyping based on a person's gender non-conforming behavior (i.e., a man who appears effeminate, or a "manly" woman). As a Virginia federal court (here) re-emphasized last week, sex stereotyping is central to all discrimination:

Discrimination involves generalizing from the characteristics of a group to those of an individual, making assumptions about an individual because of that person's gender, assumptions that may or may not be true.

Recognizing that the line between unlawful sex stereotyping and lawful (yet despicable) discrimination on the basis of sexual orientation can be tough to draw, the Virginia court denied a defendant's motion to dismiss a pro se plaintiff's sex stereotyping claims because he alleged that he was given crappy assignments based on the company's position that his failure to conform to gender norms reflected poorly upon the company and would displease its clients. This was enough, at the pleading the stage, to spell out plausible claims for sex stereotyping. Whether the plaintiff can ultimately prevail is another story.

The takeaway here is this: there are certain incendiary words that, when used in workplaces -- especially blue-collar workplaces -- may create immediate animosity and, ultimately, lead to lawsuits from male or female employees. Take, for example, the word "bitch." Courts recognize that calling a woman a bitch is intentional discrimination based on gender. But, calling a man a "bitch" (or "faggot" or "woman") can also give rise to a sex stereotyping claim based on a failure to conform to gender norms.

So, when conducting respect-in-the-workplace training, don't give same-sex harassment short shrift. Instead, explain it, give examples, and remind employees that they don't have to endure that kind of crap at work. Encourage anyone who experiences or witnesses sex stereotyping to complain about it so that it may be addressed and dealt with immediately.

Also, if you're one of the few employers that hasn't progressed beyond the confines of Title VII to preclude discrimination based on sexual orientation, get out of the stone ages and join us here in the 21st century.


April 5, 2013

I was attacked by a bear! -- and 8 other lame excuses for being late to work

IvyInAChair.jpgAfter yesterday's super-serious Animal House post -- Toga! Toga! Toga! -- let's lighten things up a bit with a list of the most memorable tardiness excuses employers shared in a recent CareerBuilder Annual Survey.

  • Employee dropped her purse into a coin-operated newspaper box and couldn't retrieve it without change (which was in the purse)

  • Employee accidentally left the apartment with his roommate's girlfriend's shoes on and had to go back to change

  • Employee's angry wife had frozen his truck keys in a glass of water in the freezer

  • Employee got a late start because she was putting a rain coat on her cement duck in her front yard (because rain was expected later that day)

  • Employee's car wouldn't start because the breathalyzer showed he was intoxicated

  • Employee attempted to cut his own hair before work and the clippers stopped working, so he had to wait until the barber shop opened to fix his hair

  • Employee's car was attacked by a bear (had photographic evidence)

  • Employee drove to her previous employer by mistake

  • Employee claimed to have delivered a stranger's baby on the side of the highway

As someone who delivered his second child on the sidewalk in front of the Pennsylvania Hospital on a freezing February night in 2011 -- no, I'm not a ob-gyn, but I did stay at a Holiday Inn Express the previous night -- I take umbrage with the last "excuse" having any sort of pejorative connotation associated with it.

But, I'm sure you good folks have heard your share of good employee-lateness excuses. Let me hear 'em in the comments below.

Have a nice weekend.

April 4, 2013

Are Flounder from Animal House and Left Ear from The Italian Job "disabled"?

- "Mr. Dorfman?"
- "Hello!"
- "0.2... Fat, drunk and stupid is no way to go through life, son."

* * *

- "That's Left Ear. Demolition and explosives. When he was ten, he put one too many M-80s in the toilet bowl. Lost the hearing in his right ear. He's been blowing stuff up ever since."

* * *

Good start to a blog post, amirite? Now, allow me to dork this up with two employment-law questions:

  1. If Flounder were Dean Wormer's employee (rather than just a student at Faber College), would Wormer's calling him "stupid" mean that Faber regarded Flounder as "disabled" under the Americans with Disabilities Act?

  2. Since Left Ear is deaf in one ear, would he qualify as "disabled" under the ADA should he return from his Spanish villa and seek gainful employment in the USA?

Tough questions. But here, at the ole Handbook, when the going gets tough...[wait for it]...The tough get goin'! Who's with me?

Let's do it!!!! (after the jump...)

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Continue reading "Are Flounder from Animal House and Left Ear from The Italian Job "disabled"?" »

April 3, 2013

FireMe! app outs Twitter users who talk smack about their jobs

Twitter Pack While some people; namely, hockey players with local ties, use Twitter to congratulate an ex-wife on end of divorce payments, others spew venom about their bosses.

I know. I should have warned you to sit down first. Let me know when the shock subsides.

K-thx.

And the latest 15-minutes-of-fame, there's-an-app-for-that, spotlight shines on FireMe!, which uses keywords and such to show Twitter users who tweet vitriol about their employers. The site, which is chock full of expletives -- you've been warned -- contains four categories: (1) Haters; (2) Horrible Bosses; (3) Sexual Intercourse; and (4) Potential killers. FireMe! also has a "leaderboard," and can, if you are a Twitter user, can "calculate" the chances that you will be fired if your boss learns about your Twitter account. My chances are five percent.

The creators of FireMe! claim it was designed "to raise awareness about the danger of public online data." Indeed, the app will send out tweets to offenders to warn them to delete offensive content. According to one report, FireMe! sent out more than 4300 tweets to offenders in a three-week period, prompting users to delete 249 of those tweets within two hours.

How does this really impact the workplace? 

Well, I can't imagine that any employer out there has the time to monitor this site on the off-chance of finding an employee who bad mouths the company. But even if you did, taking action based on a tweet could burn you. Remember that the National Labor Relations Act protects the rights of employees to discuss with one another -- even critically -- terms and conditions of employment. So, while firing a single griper may be ok, terminating an employee who engages in "protected concerted activity" is not.

Plus, when you have a number of employees who use social media to vent about work, rather than blame them, maybe it's time to take a critical look in the mirror to see what you can do to improve the workplace.

April 2, 2013

Tips from Facebook on getting discovery of a plaintiff's Facebook page

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I'm a little late to the game on this case (Gatto v. United Airlines). It's about a personal injury case in which the defendant sought discovery of a the plaintiff's Facebook page. Yadda, yadda, yadda, plaintiff deletes his Facebook page and the court sanctions the plaintiff.

But here's the part I like:

While Facebook did respond to the subpoena served upon it, Facebook objected to providing certain information related to Plaintiff's account due to concerns regarding the Federal Stored Communications Act. Facebook instead recommended that the account holder download the entire contents of the account as an alternative method for obtaining the information. Defendants allege that this issue was discussed with the Court during a telephone status conference on January 6, 2012, where Plaintiff's counsel advised that he would be willing to download the account information and provide a copy to the parties. Defendants allegedly agreed to Plaintiff's proposal, with the condition that Plaintiff would also provide a certification that the data was not modified or edited since the December 1, 2011 settlement conference.

So, if you want discovery of the contents of a litigant's Facebook account, don't mess around with subpoenas to Facebook and don't demand Facebook passwords. Instead, lay the proper foundation (i.e., establish that there exists information on a litigant's Facebook page that is likely to lead to the discovery of admissible evidence) and make a download your information request.

April 1, 2013

Leave as an ADA reasonable accommodation; when is enough...enough?

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Unquestionably, when it come to tackling the Americans with Disabilities Act, one of the biggest issues affecting the workplace and accommodating disabled employees is providing leave as a reasonable accommodation. Anecdotally, a question that plagues most employers is just how much leave is enough?

We know that an indefinite leave of absence is not a reasonable accommodation. But, what about when an employee takes one leave, after another, after another.

After the jump, I'll address the big question: when is enough enough?

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Continue reading "Leave as an ADA reasonable accommodation; when is enough...enough?" »

March 29, 2013

Utah becomes the fifth state with a workplace social-media privacy law

utah.jpgWelcome citizens of the Utah.

I'd say welcome back, but, according my blog stats, so few of you have seen my blog a first time. How could that be? Some of my best posts involve the Beehive State:



I even have two random Johnny Utah references sprinkled about.

This all led me to theorize that Utah didn't have internet. For realz, have you ever received an email from Utah? Amirite? 

Although, I read yesterday that Utah passed this law to become the fifth state to ban employers from requesting social media passwords from applicants and employees.

With its new law, we end up with another state crafting a solution in search of a problem. But, to its credit, the new Utah law does have certain carve-outs to allow employers to access employee social-media information to permit the employer to discharge its legal obligations (e.g., investigate claims of unlawful harassment, determine whether an employee has misappropriated confidential information).

At least we know now that Utah probably does have the dial-up internet. Maybe.

March 28, 2013

POLL RESULTS: Here's what you said about the #Donglegate firing

dongle_scrapyard_00For much of the week, I've blogged about Adria Richards, the employee who got fired for tweeting complaints about discrimination. On Monday, I offered my legal analysis (here).

On Tuesday, I followed that up with this simple poll that purported to remove the law from the equation: Was the decision of Ms. Richards's employer, SendGrid, to fire her "fair" or "unfair"? "Fair" and "unfair" were the only two answers and they were randomized such that either one could have appeared as the top choice when taking the poll.

Now the results are in. 129 of you responded and 70 of you (54%) said that the firing was fair. 59 respondents indicated that the firing was unfair (46%). 

I'm assuming that most of my readers and, therefore, most of the respondents have an HR or legal background. Therefore, I will further assume that, while the results here are quite balanced, had I asked the question whether the firing was "lawful" or "unlawful," the results would not have been nearly as close.

Thank you to everyone who participated.

March 27, 2013

Feeling "maybe overworked" is not an FMLA "serious health condition"

Thumbnail image for fmla.jpgI went back and forth on whether to include "BREAKING" in the title to this post. Twas a close call. Close, like that time Bar Rafaeli almost dialed my number by accident (and by almost, I mean she was 7 numbers off -- out of 10).

No, feeling "maybe overworked" will not get you leave under the Family and Medical Leave Act. A Florida federal court recently confirmed this in Pivac v. Component Services and Logistics, Inc.:

The substance of the Plaintiff's "evidence" is that she felt maybe overworked and wanted time off, first to visit her parents, but then just because she was crying and sad. She went to a doctor who provided her with no treatment, no referrals, no medicine, and no further appointments. The Plaintiff stated that she "told him [the doctor] she needed about seven days to get herself together and he gave her a `Medically Excused Absence' form for the dates October 4, 2011 to October 17, 2011." There is absolutely no evidence presented by the Plaintiff that she met the definition of "serious medical condition" at the time she took the extended unpaid leave. There are no medical records submitted, no indication of continuing treatment at the time of the Plaintiff's being out of work from the 4th to the 17th of October of 2011, no evidence, other than the Plaintiff's conclusory statements, that she suffered depression and anxiety as chronic health conditions. In fact, the only thing the Plaintiff has established is that she told the doctor she did not feel like working and he gave her a note to excuse her from working. There is just nothing here on which to find that the Plaintiff suffered a serious medical condition and without that the cause of action may not proceed.

So, don't rely on an employee's say-so. As a condition of qualifying for FMLA leave, an employer may require that the need for leave for a serious health condition of the employee or the employee's immediate family member be supported by a certification issued by a health care provider.

And if that certification doesn't sit right with you, go for a second or third opinion. For more on that, check out Jeff Nowak's post yesterday at FMLA Insights.

March 26, 2013

POLL: Was the #Donglegate firing fair?

dongle_scrapyard_00Whew!

Got a little carried away with yesterday's post about the employee who got fired for tweeting complaints about discrimination, didn't I?

Then again, I'm not the one who came up with the hashtag #donglegate.

Yesterday, I offered my legal analysis. Today, I want your non-legal opinion: