The Employer Handbook Blog

Today we have a guest blogger at The Employer Handbook. It's Janette Levey Frisch. Janette is In-House Counsel at Joule, Inc. where she provides comprehensive legal representation and support to a staffing company with five subsidiaries throughout the East Coast. You can connect with Janette on Twitter here and on LinkedIn here.

Janette's post on criminal background checks, which includes some best practices for employers, follows after the jump...

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

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Continue reading "Pepsi and Criminal Background Checks: Beyond the Buzz" »

In Pennsylvania, as in most states, an employee without a contract for a specific term of employment is deemed an at-will employee. Subject to certain exceptions (e.g., discrimination, violations of public policy), an at-will employee can be terminated for any reason or no reason at all.

How hard is it to overcome the at-will employment presumption? Pretty darn hard, as the Third Circuit Court of Appeals reminded us last week. More on this decision and some tips for employers after the jump...

Continue reading "Good luck overcoming the at-will employment presumption in PA" »

In this case of first impression in the Third Circuit Court of Appeals, which covers PA, NJ, DE, and USVI, the court ruled that a supervisor in a public agency may be subject to personal liability under the Family and Medical Leave Act. The court further emphasized that there is "no reason to distinguish between public agencies and private employers under the FMLA insofar as individual liability is concerned."

Holy Schnikes!

Details after the jump...

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Continue reading "Ouch, that hurts! Supervisors may be liable for FMLA violations" »

The United States Department of Labor announced here yesterday that it is issuing proposed rules that would expand military family leave provisions under the Family and Medical Leave Act and incorporate a special eligibility provision for airline flight crew employees.

Continue reading "Atten-shun! Expanded military leave FMLA rules are coming..." »

At least that's what this survey from Millenial Branding says. (It's also on this infographic if you're lazy). According to the survey, which consisted of 4 million Gen-Y (ages 18-29) Facebook profiles from Identified.com's database of 50 million, nearly two-thirds of Gen-Y fail to list their employer on their profiles. However, they average 16 co-worker friends.

More on this, along with some tips for employers, after the jump...

Continue reading "Your Gen Y employees love mixing business with pleasure online" »

The Associated Press reports here that the National Football League will suspend its social media policy for one day -- Sunday -- to allow players who are participating in the Pro Bowl to tweet during the game.

Under the current NFL policy, players, coaches and football operations personnel can use Twitter, Facebook and other social media up to 90 minutes before kickoff, and after the game following traditional media interviews.

During the Pro Bowl, however, the NFL will set up a computer on each sideline where players are encouraged to use Twitter (and the #ProBowl hashtag) to communicate with fans, teammates and even opponents during commercial breaks and when their offensive or defensive unit is not on the field. 49ers Pro Bowl tackle Joe Staley plans to #tweetlikeaboss.

Players will not be allowed to tweet using mobile devices during the game -- hear that Joe Horn and Daunte Culpepper? -- but, the players can, however, tweet from their phones before the game and at halftime. Denver Broncos tackle Ryan Clady is already using the #ProBowl hashtag to promote a Waikiki boat party. I hope the invites to the '05 Vikings got lost in the mail.

Update: Here is a list of Pro Bowlers and their Twitter handles.

Image credit: thatsdopedaily.com

Yesterday, the National Labor Relations Board announced in this press release that it had issued a second social-media report to help provide further guidance to practitioners and human resource professionals.

What does that report say? And how can you bulletproof your social-media policy?

Find out after the jump...

Continue reading "3 ways for HR to avoid unlawful, overbroad social-media policies" »

Well, at least that's what a federal court recently told a defendant-employer in this ruling.

In Tompkins v. Detroit Metropolitan Airport, the plaintiff suffered a slip-and-fall and later claimed back and other injuries. She sued her employer, who subsequently demanded that Tompkins provide full access to her Facebook account. Acknowledging that Facebook information that a user shares only with a few Facebook friends may still be discoverable, the United States District Court for the Eastern District of Michigan, emphasized that there are limits to the Facebook discovery that a party may pursue:

[M]aterial posted on a "private" Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. [T]here must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.

As I've discussed on this blog many times before (e.g., here and here) employers may not engage in the proverbial fishing expedition, in the hope that there might be something of relevance in a plaintiff's Facebook account. The far better practice is to first lay a foundation that the social-media account may contain relevant information and then pursue that information or, if you're feeling lucking, full access to the account.

(h/t: e-Discovery Case Law Update)

Image credit: frank.itlab.us

Last month, the U.S. Department of Labor published new fact sheets on its website. Employers and employees alike will want to check these out:

Here is a link to the FLSA fact sheet. This fact sheet provides general information concerning the FLSA's prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation.

The FMLA fact sheet, a copy of which you can find here, provides general information concerning the Family and Medical Leave Act's (FMLA) prohibition of retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA.

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". So, let's get right to today's question:

That Eddie Employee is a gamer.

While filling up at the Gas-N-Gulp on his way to work, out of nowhere, a punk teen whacked Eddie across the face with a skateboard. Youch! Jaw broken, Eddie got back into his car, drove to work, and somehow managed to stumble into HR. Spitting out blood and teeth, Eddie asked Agatha Administrator for a week off from work to go to the hospital to have surgery to fix his ugly mug and recuperate. However, as Eddie slurred and lisped out his request, he never specifically mentioned the letters "F-M-L-A".

Let's assume that Eddie meets all of the length-of-service requirements under the Family and Medical Leave Act. Can he still take leave under the FMLA, even if he never utters those magic four letters.

You betcha. According to this FMLA fact sheet, Eddie only needs to provide "sufficient information for the employer to understand that the employee needs leave for FMLA-qualifying reasons (the employee need not mention FMLA when requesting leave to meet this requirement, but may only explain why the leave is needed)."

And if the employer fails to designate Eddie's leave as FMLA-leave, guess what? Eddie still has 12 weeks of FMLA leave that he can still use going forward. Although, under certain circumstances, the employer may be able to retroactively designate Eddie's jawbreaker leave as FMLA leave.

As reported here in September, the State of New Jersey was recommending passage of the New Jersey Trade Secrets Act.

Well, welcome to the party, pal. (Or is it Powell?). Last week, NJ became the 47th state to adopt a version of the uniform trade secrets act as Governor Christie signed the NJTSA into law. The new law provides for both legal relief (damages for actual loss an unjust enrichment, punitive damages, attorney's fees) in the event of an actual misappropriation of trade secrets, and injunctive relief should there be an actual or threatened misappropriation.

That is the question that a former Starbucks employee is asking the NJ Supreme Court to answer. More on this case and what it could mean for actions asserted under NJ's Conscientious Employee Protection Act (CEPA) after the jump...

Continue reading "Is it whistleblowing when your job is to report violations of the law?" »

Last year, here and here, I discussed legislation that would prohibit Philadelphia employers from asking job applicants about certain arrests and making any personnel decisions based on records of an arrest that does not result in a conviction. That legislation is now the law. That law is the Philadelphia Fair Criminal Record Screening Standards Act.

Let's practice...

"So, do you have any old arrests for streaking across the field at Citizens Bank Park?" -- Illegal.

"How much would I have to pay you to skate across the ice at the Wells Fargo Center in a nude bodysuit?" -- Stupid. Inviting a sexual-harassment claim. But, technically, legal under the new Act.

For more specifics of the Act, check out this e-Alert from my Dilworth Paxson colleagues, Marjorie Obod and Katharine Hartman.

h/t Janette Levey Frisch

Back in 2005, a Pennsylvania federal court recognized in this opinion that an employee's FMLA rights become sacrosanct upon requesting FMLA -- even if the employee is not yet FMLA-eligible -- provided that the employee has satisfied all FMLA service requirements when the FMLA begins. Where would this most likely arise? Why with pregnancy, of course. Something like:

• Female employee starts work;


• A few months later, she gets pregnant and requests FMLA to commence upon childbirth; and


• She gets fired before giving birth.

Hey, those sound like the facts of Pereda v. Brookdale Senior Living Communities, Inc., a case decided in the Eleventh Circuit Court of Appeals last week. More on this case, together with a big helping of FMLA tips for employers, after the jump...

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Continue reading "Oh, baby? An employee's pre-eligibility FMLA request is protected" »

I've been slacking, folks.

Not since November have I blogged about a defendant's motion to compel a motion to compel an individual's social-media content. Since then, several more Pennsylvania courts have weighed in on this burgeoning area.

I'm sorry to each and every one of you. I have let you down. Will you ever stop judging forgive me? 

Oh, let's kiss and make nice. I'll get you caught up on the social-media-litigation goings-ons after the jump...

Continue reading "PA remains a hotbed of social-media discovery disputes" »