The Employer Handbook Blog

If you have 50 or more employees, you must abide by the Family and Medical Leave Act. The FMLA affords up to 12 workweeks of leave in a 12-month period, among other things, to care for a parent with a serious health condition. But let's say that you have dropped the ball and failed to provide your employees with:

• information or notice explaining the provisions of the FMLA,
• information regarding how to file complaints for violations of the FMLA, and
• FMLA information in "any written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook."

Let's even assume that one of your employees takes leave that would otherwise qualify under the FMLA, but you fail to tell that employee that the FMLA covers the leave.

Have you interfered with your employee's FMLA rights? I'll spin some Alice in Chains and drop the 411 after the jump...

Continue reading "What if you forget to tell an employee about FMLA leave?" »

This Jerry Sandusky situation is blood curdling. I won't rehash the facts. But in case you've been living under a rock for the past few days, you can read about them here.

I am not going to comment on Penn State's moral compass. Rather, as a labor-and-employment-law attorney, I see plenty of lessons for employers. Let's just focus on three simple ones:

1. Take complaints seriously. Always. Fortunately, most employers do. Those who don't appear to condone the behavior. 
2. If the behavior is criminal, immediately contact the police. By doing nothing, you give the actor both time and impunity to harm others.
3. Do something about the complaint. Investigate and follow with action that is reasonably designed to ensure that the offensive behavior does not happen again. If the offensive behavior is serious enough, fire fast.

In yesterday's post, while highlighting the latest trends in social media and litigation, I noted that most companies in some way restrict employee access at work to social media content. However, the number of blockers is falling. In 2009, approximately 2 in 3 companies had some type of restrict. Last year, that number fell to 55%.

As some employers learn to embrace accept tolerate employee use of social media, some experts predict that others may embrace social media to the point where they begin to incorporate social media into performance evaluations. These evaluations will focus on social goals, feedback, and recognition. This infographic explains from where we have come with performance reviews and offers a potential online path to improving them.

What do you think? Sound off in the comments below.

Image credit: WorkSimple.com

This week I plan to dedicate a few blog posts to highlighting some of the latest trends in social media and [fill in the blank]. Today, after the jump, it's social media and litigation...

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Continue reading "What are the latest trends in social media and litigation?" »

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:

If a former employee sues for discrimination, claiming to have been subjected to a hostile work environment, must the employee prove that the harasser acted with bad intentions? Put another way, if the harasser was just joking around, does the plaintiff lose the case?

No way! FICTION!!!

An employer is liable for a hostile-work-environment discrimination if the employee can prove five elements:

1. the employee was subjected to certain conduct because of the employee's particular protected class (e.g., race, religion, national origin, gender, sex),
2. the discrimination was severe or pervasive,
3. the discrimination detrimentally affected the employee,
4. the discrimination would detrimentally affect a reasonable person in like circumstances, and
5. a basis for employer liability is present.

It does not matter whether the harasser intended to harm the victim. It only matters how the harasser's action's impacted the victim (and how someone in the victim's shoes would feel). This nuance, which many employees do not appreciate, is a crucial point to stress when conducting anti-harassment training -- before a lawsuit is ever filed.

We know that employees can be disciplined -- and even lose their jobs -- based on their use of social media. But even business owners can face backlash for what they say online.

Earlier this week the NBA fined Miami Heat owner, Micky Arison, $500,000 based on the following Twitter exchange:

Disgruntled fan: "How's it feel to be apart of ruining the best game in the world? NBA owners/players don't give a damn about fans&and guess what? Fans provide all the money you're fighting over&you greedy (expletive) pigs.

Arison: "You are barking at the wrong owner."

It turns out that the NBA has a strict gag order against speaking about the current labor dispute. Who knew? Oh, wait, Arison did. The $500,000 fine, first reported by Yahoo! Sports, is five times the amount other owners have previously been fined for public comments about the ongoing labor situation.

Must be nice to have that kind of money to spend on a tweet...

Speak into a microphone and point one finger in the air if your Halloween completely sucked.

Politico has reported that the National Restaurant Association paid out a five-figure settlement to two women who accused Herman Cain of making sexually suggestive comments.

Details on the allegations and lessons that employers can learn from this after the jump...

Continue reading "Herman Cain, sexual harassment, and 10 lessons for employers" »

Back in June, the United States Supreme Court ruled here that a class of 1.5 million women could not pursue gender discrimination claims together against Wal-Mart because they lacked a common injury.

If, at first, you don't succeed, file this Complaint in California on behalf of a class of only 90,000 plaintiffs. Will this small smaller lawsuit hold up? Find out after the jump...

Continue reading "90,000 women claim Wal-Mart discriminated against them" »

This has been an intense week here at The Employer Handbook. What, with Monday's post on taking the "sex" out of sexual harassment, followed up on Tuesday with the 15 craziest excuses employees have for missing work. You guys seemed to like that one a lot. Then there was the post on an old guy claiming that an older judge is too out of it to rule on the old guy's age discrimination claims. I-ro-ny! And to the three of you who read my post yesterday about the enforceability of arbitration agreements, thank you.

Hard-hitting stuff, no doubt. But, let's kick it up a notch! *** Writes royalty check to Emerill *** I'm going to save the news on a new 90,000-plaintiff Wal-Mart class-action lawsuit for next week. Instead, for your end-of-the-week viewing pleasure, meet Joey. Who's Joey? Well, remember the young woman who, last year, in a series of 34 pictures, quit her job? She's got nothin' on Joey. In August, Joey quit his job at a hotel using a marching band. A MARCHING BAND!

Please -- OH, PLEASE -- leave your comments below and have a great weekend.

Courts have blessed written agreements between employer and employee to submit federal discrimination claims to arbitration. Here is an example. 

But, there's legal and then there's doing right. After the jump, how one employer got it wrong. Very wrong. Plus, what you can do to make sure that your business does not make the same mistake...

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Continue reading "Is your arbitration agreement worth the paper it's printed on?" »

From the sublime to the ridiculous, the NY Daily News reports here that a 60-year-old musician suing for age discrimination claims that the presiding 88-year-old Manhattan judge is too old to hear the case.

According to the NY Daily News story, the plaintiff, who was representing himself before his case was dismissed in October, slammed the judge, calling him "slow-witted and unable to function."

In a pleading filed with the court, the plaintiff also wrote that the judge, who has degrees from Harvard and Columbia Law School, "may have been a very learned jurist in his day, [but] should be removed from the bench, both because of his mental and physical limitations [and because he] could barely see unless he put his face almost on top of a document."

h/t Philip Miles

Image Credit: MommyLife.net

CareerBuilder.com just released its annual list of most unusual excuses for calling in sick. "Lost track of time browsing TheEmployerHandbook.com" didn't make the list. (Probably because it's sooooooo commonplace). 

"Siri Assistant, what is the greatest labor-and-employment-law blog of them all?"

"I found three stores in your area that sell Altoids."

After the jump, the 15 best excuses...

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Continue reading "The 15 craziest excuses employees have for missing work" »

To prove sexual harassment, a plaintiff must have been subjected to pervasive or severe behavior that would make the plaintiff (and a reasonable person in the plaintiff's shoes) believe that the working environment are hostile or abusive.

Wait, I'm forgetting something. Oh yeah, the complained-of conduct must only be on account of the plaintiff's gender. Seems simple enough, right? No sex-based conduct. No sexual harassment. After the break, a recent example that highlights this important element.

Continue reading "Equal-opportunity jerks take the "sex" out of sexual harassment" »

Back in June, I discussed here how the EEOC was discussing the use of leave from work as a reasonable accommodation under the ADA. The question I asked back then was how much leave is reasonable? When is enough, enough?

Well, I can tell you now -- and I suppose I could have told you then -- that indefinite leave is generally not an option for employees (unless the employer acquiesces). At least that's what one federal court ruled last week. Details after the jump...

Continue reading "The ADA does not force employers to provide indefinite leave" »

The Family and Medical Leave Act affords eligible employees up to 12 weeks of unpaid leave during any 12-month period because of a serious health condition that makes the employee unable to perform his/her job.

Let's say that you have an employee who requests FMLA for a medical procedure that will keep him laid up for a while. But, you're suspicious. So, you hire a PI to follow the employee and record his every movement. You view the videotape and see that the employee is walking, driving, and even shopping. What the hell?!? Naturally, you think the employee is scamming the company so you fire him.

Legal? Or FMLA interference? Find out after the jump...

Continue reading "An honest belief is all it takes to fire a suspected FMLA abuser" »