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.

June 4, 2013

Firing a woman for lactating at work is against the law

Allow me to be serious for a moment...

Moment's passed, eh? Ok. Let me bring it back...

Last week, the Fifth Circuit Court of Appeals ruled (here) that discharging a female employee because she is lactating or expressing breast milk is sex discrimination and, therefore, violates Title VII of the Civil Rights Act of 1964 (Title VII).

In EEOC v. Houston Funding II, Ltd., Dominica Venters, who was recovering from a C-Section, alleged that she requested that her supervisor ask the boss if it would be possible for her to use a breast pump at work. The supervisor stated that when he posed this question to the boss, the boss "responded with a strong 'NO. Maybe she needs to stay home longer.'"

Ms. Venters alleged that she was later told that her spot had been filled. Houston Funding alleged that Ms. Venters had abandoned her job. So, Ms. Venters alleged sex discrimination, and the U.S. Equal Employment Opportunity Commission took up the case on her behalf.

'Expressed breast milk' photo (c) 2007, Hamish Darby - license: http://creativecommons.org/licenses/by/2.0/In defending, Houston Funding argued Title VII does not cover "breast pump discrimination" and moved for summary judgment. The district court granted the motion, finding that, even if Venters' allegations were true, "[f]iring someone because of lactation or breast-pumping is not sex discrimination," because neither is a related medical condition of pregnancy. The EEOC timely appealed.

On appeal, the Fifth Circuit began its analysis by noting that the Pregnancy Discrimination Act (PDA), which is part of Title VII, provides that "[t]he terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions[.]" Therefore, Title VII must "cover a far wider range of employment decisions entailing female physiology," of which lactation is one of them. Consequently, the court easily concluded that the lower court was wrong and Ms. Venters stated a possible claim for Title VII sex discrimination.

Takeaway: Not only must employers consider their obligations under the Fair Labor Standards Act to provide nursing moms time and space to express breast milk at work, but taking action against a mom who requests to pump at work may get you discrimination lawsuit. (Although, the PDA does not require employers to affirmatively provide accommodations).

So, educate supervisors and management about these areas to avoid possible legal issues and, more importantly, treat new moms with the respect and dignity they deserve.

[Yes, I realize the irony of that last statement juxtaposed against the soundtrack for this blog post.]

June 3, 2013

Supreme Court passes on ADA transfer accommodation case

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Here's the scenario: You have a disabled employee who seeks an accommodation. Mindful of the Americans with Disabilities Act, and being the compliant company that you are, you engage that employee in an interactive dialogue to discuss reasonable accommodations -- options to allow the employee to perform the essential functions of the position. 

Ah yes! You recall that there is another vacant position for which the employee is qualified -- albeit barely. That's a reasonable accommodation. But, oh no! You remember seeing the resume of the perfect candidate for that position.

Question: If there is no other reasonable accommodation available, do you have to offer that open position to the barely-qualified disabled employee? Or can you fill the position with the more qualified candidate?

I'll discuss after the jump...

* * *

Continue reading "Supreme Court passes on ADA transfer accommodation case" »

May 31, 2013

Employee alleges he got the "Office Space," claims age discrimination

If the movie "Office Space" has taught me anything, it's to wear 37 pieces of flair to work -- do more than the bare minimum -- and to use a cover sheet with my TPS reports.


And never mess with a man's stapler. That too. Especially when you're also moving the man's desk four times and sending him to the basement. Because that could be age discrimination.

No, seriously. I was reading this decision from the United States District Court for the Eastern District of Pennsylvania. It involves claim of age discrimination where, the over-40 plaintiff claimed that he was "functionally replaced" by an employee who was substantially younger than him.

Functionally replaced?!? Here's how the court described it:

Plaintiff contests Defendant's argument, citing to the following evidence that he was functionally replaced: White received a pay raise; White was attending meetings and giving advice in areas that were within the job responsibilities of Plaintiff; White was performing tasks that were usually performed by Plaintiff; Defendant was trying to move White into a "nicer and more well placed office" and move Plaintiff to a smaller office in the basement of the facility; and, the deposition testimony of Art Fastman, the Executive Director of the facility and Plaintiff's superior, which seemingly supports his argument that he was replaced by White. In light of these allegations, we find that Plaintiff has adequately presented evidence to infer at the summary judgment stage that he was functionally replaced by a substantially younger employee (White).

Dudes! They moved him to the friggin' basement! They gave him the Milton!

Ultimately, the plaintiff was able to show that the manner in which he was treated compared to White, plus the timing of the plaintiff's termination (he had previously complained to management about age discrimination) showed discriminatory animus. Consequently, he was able to defeat the defendant's motion for summary judgment and his age discrimination claims now proceed to trial.

It's Friday. So, rather than leave you with a takeaway from this case, let's go with a SFW version of the printer beatdown scene. Classic!

And make sure to leave a few minutes early today. Just sayin'.

May 30, 2013

New federal bill would expand FLSA to protect salaried new moms

Back in 2010, when the The Patient Protection and Affordable Care Act went into effect, the Fair Labor Standards Act (FLSA) was amended to require a "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk."

Generally, employers are not required to compensate an employee for the break time to express milk, and an employer with fewer than 50 employees does not have to comply with the rule if it would pose an undue hardship.

One more minor caveat -- of which I must admit, I was not aware -- the law only covers non-exempt employees. (Although, I imagine that most businesses afford the same dignity to exempt employees too).

But just in case, Senator Jeff Merkley (OR-D) has introduced the Supporting Working Moms Act of 2013, which will further amend the FLSA to provide exempt moms with the same PPACA/FLSA right to express breast milk at work provided to their non-exempt counterparts.

** Must fight urge to...aw hell **

The Supporting Working Moms Act is co-sponsored by Senators Tom Harkin (D-IA) and Elizabeth Warren (D-MA). 

Identical legislation was introduced in the House by Congresswoman Carolyn Maloney (D-NY). In 2011, Ms. Maloney introduced the Breastfeeding Promotion Act of 2011, which would have amended both the FLSA and also changed Title VII of the Civil Rights Act of 1964 to preclude employers from discriminating against those who lactate. Title VII already covers discrimination on the basis of gender and sex.

(And last time I checked, only women lactate)

May 29, 2013

Oregon has a new workplace social media law. Is a federal law next?


Last week, before the Memorial Day weekend, Oregon Governor John Kitzhaber signed into law this bill, which prohibits employers from requiring or requesting that employees or applicants for employment:

  1. Provide access to personal social media accounts,
  2. Add employers to social media contact lists, or
  3. Allow employers to view an employee's or applicant's personal social media account.

Meanwhile, a few days before Oregon became the tenth state to enact a social media workplace privacy law, Rep. Ed Perlmutter [D-CO7] introduced the Password Protection Act of 2013 in the U.S. House of Representatives. According to this press release, Rep. Perlmutter is concerned that "employers essentially can act as imposters and assume the identity of an employee and continually access, monitor and even manipulate an employee's personal social activities and opinions."

[Editor's note: Take a guess how many employers have contacted me to request my legal opinion on whether they "essentially can act as imposters and assume the identity of an employee and continually access, monitor and even manipulate an employee's personal social activities and opinions."]

The bill itself would actually address more than the concerns Rep. Perlmutter raised. It would amend the Computer Fraud and Abuse Act and make it unlawful for employers to require that employees authorize access to a computer that the employer does not own or operate. Further, the law provides no carve-out for employers to obtain password-protected social media content that reasonably relates to a workplace investigation into claims of alleged harassment.

Both the House and Senate previously introduced the Password Protection Act of 2012. (More on the Senate bill here). Each bill died. And I don't foresee the 2013 version gaining much more traction.

May 28, 2013

Employee posts "FIRE ME...Make my day..." on Facebook. And guess what?


And not even the Associate General Counsel at the National Labor Relations Board could save this employee.

dirtyharry.pngIn Tasker Healthcare Group, d/b/a Skinsmart Dermatology, the Charging Party -- and nine other people (of whom seven were current employees) participated in a private group message on Facebook. During that sesh, the Charging Party started mouthing off about his employer, saying, "They [the Employer] are full of shit ... They seem to be staying away from me, you know I don't bite my [tongue] anymore, FUCK...FIRE ME....Make my day..."

Other than the Charging Party, no current employees took part in this portion of the conversation. Later that day, one of the silent employees showed the exchange to the employer.

And Harry Callahan promptly got his wish.

Now, if this whole situation seems oddly familiar to you, it should.

Back in January, I blogged about an employee who posted, "I wish I could get fired" on Facebook, and promptly got her wish. In that post, I discussed the concept of protected concerted activity, the right of employees in a union or non-union workplace to discuss work issues with one another, even if it's unflattering to the employer.

But, as I noted back then, while gabbing with others is protected, griping alone is not protected. This Board's Associate General Counsel applied the same maxim to the Charging Party:

In the instant case, the Charging Party's comments merely expressed an individual gripe rather than any shared concerns about working conditions. Specifically, her comments bemoaned the return of a former employee and stated that her current supervisor tried to tell her something and she told her to "back the freak off'; that the Employer was "full of shit"; and that the Employer should "FIRE ME .. Make my day." These comments merely reflected her personal contempt for her returning coworker and for her supervisor, rather than any shared employee concerns over terms and conditions of employment. Thus, although her comments referenced her situation at work, they amounted to nothing more than individual "griping," and boasting about how she was not afraid to say what she wished at work.

So, next time one of your employees speaks out alone about wanting to be fired, go ahead and accommodate that employee make his day.

(h/t Sara Hutchins Jodka @ Employer Law Report)

May 24, 2013

Washington is the 9th state with a social media workplace privacy law

Or as I like to refer to it, an excuse to play Pearl Jam, Nirvana, and Alice in Chains on the blog.

Here is a link to Washington's new law.

Up next for a new social media workplace privacy law should be New Jersey, where the Assembly recently gave its unanimous approval to the Governor's conditional veto of recent legislation.

May 23, 2013

EEOC talks employer wellness programs; provides an ADA Q&A

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Consistent with its strategic plan to provide up-to-date guidance on the requirements of antidiscrimination laws, last week, the United States Equal Employment Opportunity Commission issued this press release in which it announced that it had revised guidance on how the Americans with Disabilities Act applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities. You can find links to that revised guidance here.

And earlier in the month, the EEOC held a public meeting on employer wellness programs and how they may be impacted by not only the ADA, but also the Genetic Information Non-Discrimination Act (GINA). You can view a copy of the press release here. Suffice it to say that, until the EEOC offers further guidance on these issues -- and even when it does -- consult with an employment lawyer before implementing or updating one of these programs.

May 22, 2013

Ha Ha! You pulled my pants down! Now I'm suing you for sexual harassment.

When offering respect in the workplace training for employees and supervisors, I emphasize that an employee who laughs at sex jokes in the workplace is the same employee who may later sue for sexual harassment.

Like Little Ladner did.

(Yes, Little Ladner)

More after the jump...

* * *

Continue reading "Ha Ha! You pulled my pants down! Now I'm suing you for sexual harassment." »

May 21, 2013

New Philly law rewards employers for health benefits to LGBT employees

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Earlier this month, Philadelphia Mayor Michael A. Nutter signed legislation that provides a credit to employers who offer health benefits to same-sex couples, life partners and transgender employees.

It took less than 50 days from the date that City Council introduced this bill for it to become law. This press release from the City of Philadelphia notes the other highlights of the law:

  • Amends various titles of The Philadelphia Code to provide for equality of treatment of all persons in the City of Philadelphia regardless of gender identity or sexual orientation, including by further providing for the definition of "Life Partnership" and "Life Partner," and for protections, rights, benefits and responsibilities of Life Partners;

  • Provides for gender neutrality in certain City forms and online websites;

  • Provides for access to public accommodations based upon an individual's gender identity;

  • Provides for gender neutral bathrooms in City-controlled buildings;

  • Provides for the right to dress consistently with one's gender identity; and

  • Ensures the right of transgender individuals to request name and gender changes on pertinent records.

Congratulations to the City of Philadelphia on becoming the first city in the nation to offer this tax credit to employers.

(h/t Joe's HR and Benefits Blog)

May 20, 2013

GUEST POST: Wage Theft Quietly Becoming a Major Problem in Today's Workplace

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Jesse Brar. Jesse is a Utah Employment Lawyer at Preston & Brar.

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

Continue reading "GUEST POST: Wage Theft Quietly Becoming a Major Problem in Today's Workplace" »

May 17, 2013

I miss my mom

I had a guest post on something or other all lined up to go today. But, I'm going to push that off until next week. Instead, I'm going to write about my mom.

She died suddenly yesterday. Just 64; way too soon.

In many ways, I'm sure she was just like your mom. What stands out most is how much family meant to her.

Boy, did she loved her family, especially her three grandchildren. My freshest memory is a lunch we had on the Sunday before Mother's Day. I can't shake the image, that look on her face, when my three-year-old son peered down the table and challenged her to guess the country he was thinking of that began with the letter "V."

[It was Vanuatu. Thank you, iPad.]

Not unlike your mom, mine, of course, knew best. She called me a few days later, proclaiming that my son must have meant some other country. Because Vanuatu? Really?

Really, mom. Vanuatu. I sent her a Sincerely Ink Mother's Day Card this year. I was tempted to just have it be a picture of Vanuatu. But, I opted for her a group shot of her grandchildren instead. Based on the voice mail she left me after receiving it, I made the right call.

The smile on her face at the Vanuatu lunch -- and the joy she got from spending that time with my kids, Brooks, Ivy, and Pierce, meant the world to her. It was the same expression she wore whenever she was around them. Or, for that matter, when my sister and I were younger.

Family first. That's what made her happy.

She was a Girl Scout leader for my sister.

She chaperoned our school trips. [Truth be told, those skills were a bit rough around the edges. Letting some of my fourth-grade classmates purchase Chinese stars at the Italian Market. Yeah... At least no one got hurt.]

She was a carpool driver, school-project-helper [single-handedly got me an A in Home-Ec], after-school-grilled-cheese-maker, and take-her-son-to-random-baseball-card-shops-in-search-of-Billy-Ripken-89-Fleer-baseball-cards-schlepper -- good thing she never knew what was on those Billy Ripken cards.

Even the things she did for herself, she did for family.

I remember in high school when my mom went back to work briefly as a family therapist. She did it because she loved helping people and family meant everything to her. She even used the money she earned from her first client to buy me a walkman. Just because...

That's the kind of person she was. 

Just like your mom, she bragged about her children. My sister and I -- we walked on water; to the point where I wanted to crawl under the table. Literally. I considered doing that when, at lunch, she would brag to the waitstaff about how great a lawyer her son is. But, like your mom, she didn't do it to embarrass me. She did it, because she wanted everyone to know how proud she was of her family.

When I went to her apartment yesterday, I couldn't bring myself to go in. Not yet, at least. For now, I want to keep my memories of her pristine. My dad was nice enough to collect some things for me. He recovered a bag full of items from her mantle. Lots of pictures. All of her family; none of my mom, unless, of course, we were in them too.

Because, that's the kind of person she was. Not unlike your mom.

When you get home tonight, call your mom for me just because. Next time you see her, give her a hug. Tell your mom that you love her.

I love my mom. I hope that wherever she is now, it's somewhere that she can look down on us from time to time to smile and know just how much she meant to her family and that her family loves her very much.

I miss my mom.

May 16, 2013

3d Cir: Obama NLRB recess appointments (Becker too) were unconstitutional

nlrb.jpgIn a 2-1 decision issued today (copy here), the Third Circuit Court of Appeals ruled that the National Labor Relations Board lacked the authority to act as early as March 2010, when President Obama appointed Craig Becker to the Board. The Third Circuit held that Member Becker's appointment to the Board while the Senate was on an intrasession recess (a break within a session of the Senate) was unconstitutional. Implicit in the court's decision is that the appointments of Members Block, Griffin, Flynn in 2013, while the Senate held pro-forma sessions, were also invalid.

The Third Circuit ruled that recess appointments are only valid if made during intersession breaks (i.e., between sessions of the Senate).

This decision is crazy-long (102 pages plus a 55 page dissent). Thankfully, my Dilworth Paxson colleagues, Erin Galbally and Marjorie Obod prepared an e-alert summarizing the decision.

If you do business in Pennsylvania, New Jersey, Delaware, or the US Virgin Islands, the net effect of this decision may be that, until the Supreme Court rules in this pending case, you can basically ignore just about anything* that the Board has done this decade (well, since March 2010). 

* From June 22, 2010 through August 27, 2011, the Senate had confirmed enough Board members for quorum. So don't ignore that stuff.

(h/t The Volokh Conspiracy)

May 16, 2013

Colorado now has a social media workplace privacy law too

Over the weekend, Colorado Governor John Hickenlooper signed a bill making Colorado the eighth state to have a social media workplace privacy law. (The others are MD, IL, CA, MI, UT, NM, and AR). You can view a copy of the new CO law here

The new law places three restrictions on employers with respect to access of employee and applicant social media accounts:

  1. No requests for social media user names and passwords;

  2. No forced-friending or requiring that the employer be added as a contact; and

  3. No requiring that privacy settings be changed.

There are a few carve-outs that allow employers to obtain full access to an employee or applicant's social-media account. One is if an employer reasonably believes that an employee has download proprietary information. Another carve-out applies to satisfy "applicable securities or financial law or regulatory requirements." There is nothing in the new law that expressly permits an employer to get this information to investigate purported violations of non-harassment policies. Although, I suppose an employer could rely upon the "regulatory" requirements exception.

Next up for a new social media workplace privacy law appears to be Washington, where a bill now sits on the Governor's desk for signature.

May 15, 2013

FMLA for same-sex couples? Possibly. But, a carnival? Definitely!

fmla.jpegSenator Richard Durbin [IL-D] has reintroduced the Family and Medical Leave Inclusion Act in the U.S. Senate, while Rep. Carolyn Maloney [D-NY12] has done the same in the U.S. House of Representatives. This bill, which has been taken up in Congress several times previously -- most recently in 2011 -- would amend the Family and Medical Leave Act to permit leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, grandchild, or grandparent who has a serious health condition.

I'd be surprised if the FMLIA becomes law. However, regardless of whether it passes, there is nothing now preventing employers from offering these benefits to their employees.

Did someone say benefits? Well friends, do I have some benefits for you! (See how I did that?)

No, it's not an update on the Paula Deen discrimination case -- trust me, it's nauseating (after clicking, with a trashcan and breath mint handy, search for the word "eclair") -- I'm going to deliver to you the latest edition of the Employment Law Blog Carnival. Where else on the World Wide Web can you find this much great employment-law information in one spot?

(Come on guys, I'm blushing).

Thank you to this month's host, Donna Ballman, and to all the folks who contributed posts.