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.

November 6, 2014

Check out the EEOC's playbook for combatting LGBT discrimination

Even without a federal law that specifically bans discrimination in the workplace based on sexual orientation or gender identify, it's no secret that one of the EEOC's top priorities is to protect LGBT workers from discrimination.

And the EEOC is being quite transparent about it, with a new guide for employers and employees.

I've got that for you after the jump...

* * *

Continue reading "Check out the EEOC's playbook for combatting LGBT discrimination" »

November 5, 2014

85,000 reasons to nix inflexible employee-leave policies

Just go ahead, and kill them dead!

But before I get to that, I want to quickly plug our free event next week on November 12, 2014. I'll give you four reasons to attend:

  1. Chai R. Feldblum, Commissioner, U.S. Equal Employment Opportunity Commission
  2. Richard F. Griffin, Jr., General Counsel, National Labor Relations Board
  3. Harry I. Johnson, III, Board Member, National Labor Relations Board
  4. Free breakfast

Sure, I'll be on the panel too, but do any of you really want to see me? Besides, I wouldn't want to destroy the mystique of our intimate blogger-reader relationship? I imagine many of you now breathless, picturing an erudite, chiseled, scholar; the blogging prose, typos, and grammar mistakes dripping from my two-typing fingers, as I....I'll stop talking now. 

Details on the event are here. A few tickets still remain. RSVP fast!

After the jump, back to reality. Kill! Kill! Kill! (the policies...)

* * *


Continue reading "85,000 reasons to nix inflexible employee-leave policies" »

November 4, 2014

An app to stop employees like #AlexFromTarget from checking work email

Today's post is brought to you by the letters S, E, and O.

With a tip of the hat to whomever posted a link to this story on Twitter, it got me reading about this app that companies can install on employees' smartphones and tablets that would preclude them from accessing work-related email on those devices.

Why would you want to do that?

For starters, app maker touts the feature as increasing productivity, reducing stress, and creating a more stark line between work and personal time.

But, this is an employment-law blog. And, little known fact: When Ice Cube wrote Check Yo Self in 1992, he created a prescient radio remix, addressing the Fair Labor Standards Act implications of employees using smartphones for work email.

Right hand to God.

You see, the FLSA (and, by extension, parallel state laws) requires that employers pay minimum wage to all employees and overtime to non-exempt employees, like #AlexFromTarget, for all hours over 40 worked in a particular workweek. And Cube knew that when a non-exempt employee is accessing work-related email on a handheld device either on or off the clock, unless de minimis, that is still compensable time.

(Just kidding on the Ice Cube thing. Even #AlexFromTarget knows that).

Even without this app, if you won't want non-exempt employees using work email "off the clock," have a rule in your handbook. You can strictly forbid non-exempt employees from accessing work-related emails "off the clock." If employees ignore the rule, you still have to compensate those employees. However, you can discipline them too.


November 3, 2014

Under the ADA, is talking an essential job function for an HR Specialist?

Whether a department of many, or just one, your job as an HR professional has you juggling many balls. You're running an open enrollment, conducting a workplace investigation, recruiting, wage-setting. Cot' damn, you're busy!

To get those tasks done, you'd better have the gift of gab.

Or not.

Is verbal communication an essential function for a Human Resources Specialist? A federal court just examined this question under the Americans with Disabilities Act.

Click through for the answer...

* * *

Continue reading "Under the ADA, is talking an essential job function for an HR Specialist?" »

October 31, 2014

Employee lawfully fired after making "shoot them all" Facebook threats

Yesterday, I addressed how what an employee says on Facebook can mean losing a job offer. In that case, the National Labor Relations Board determined that insubordination on Facebook is still insubordination and, thus, grounds for termination.

Today, after the jump, we'll discuss how threats of violence on Facebook too are grounds for termination...

* * *

Continue reading "Employee lawfully fired after making "shoot them all" Facebook threats" »

October 30, 2014

Yes, what you say on Facebook can cost you a job offer

Even the National Labor Relations Board agrees.

Case in point, two people (Moore and Callaghan) who worked at a teen center during the 2011-2012 school year were sent re-hire letters for the 2012-2013 school year. After the school sent out the re-hire letters, it learned of a Shakespearean Facebook exchange between Moore and Callahan which included the following:

"I don't want to ask permission . . ."; "Let's do some cool shit, and let them figure out the money"; "field trips all the time to wherever the fuck we want!"; "play music loud"; "teach the kids how to graffiti up the walls . . ."; "we'll take advantage"; "I AINT GOBE NEVER BE THERE"; "they start loosn kids i aint helpn"; "Let's fuck it up".

I guess that was more Tolstoy.

An Administrative Law Judge originally upheld the terminations. (More on that here). On appeal, the Board's General Counsel argued that "the Facebook posts could not reasonably be understood as seriously proposing insubordinate conduct." The Board -- I picture them smiling and nodding politely -- disagreed:

Callaghan and Moore's lengthy exchange repeatedly described a wide variety of planned insubordination in specific detail....We find the pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act's protection [Editor's note: More on that here] and render Callaghan and Moore unfit for further service.

So, yes, there are limits to what employees can say on Facebook. When Facebook discussion of working conditions devolve into straight-up insubordination, employees can be disciplined.

October 29, 2014

HR CHEATSHEET: When an employee texts you from an Ebola quarantine tent

Five minutes ago, after taking the obligatory selfies and between games of Candy Crush, one of your employees texted (because, calling in, as if!) from an Ebola quarantine tent to alert you that she will be out of work for 21 days, while under observation for Ebola.

As an employer, what are your obligations? What workplace laws are implicated?

And, of course, because half of you are thinking it, can you just fire her?

Because this post has nothing to do with clicks or SEO -- nothing whatsoever -- click through for the answers...

* * *

Continue reading "HR CHEATSHEET: When an employee texts you from an Ebola quarantine tent" »

October 28, 2014

Tweet today with the EEOC about the Americans with Disabilities Act #EEOC4NDEAM

I'll be at the SHRM Lehigh Valley Annual Conference today presenting "What's Hot at the EEOC...and How to Avoid Getting Burned!" with the EEOC's Mary Tiernan.

If you're at the conference, stop by with pizza and beer and say hello with pizza and beer.

However, if you can't make it, Domino's delivers, and you still want to get your Equal Employment Opportunity learn on, then there's this from the from the EEOC:

The U.S. Equal Employment Opportunity Commission (EEOC) will hold a live Twitter chat on Tuesday, Oct. 28, from 2:00 to 3:00 pm (EDT). In commemoration of National Disability Employment Awareness Month (NDEAM), the interactive online forum will focus on the federal government as a model employer of people with disabilities. EEOC Chair Jenny Yang and Commissioner Chai Feldblum will answer questions during the hour-long chat. 
Members of the public are encouraged to participate by submitting questions using the hashtag #EEOC4NDEAM. The EEOC invites queries regarding the hiring, promotion and retention of people with disabilities in the federal government and suggestions on how agencies can increase the number of people with disabilities in the federal workforce.

Here's my question: "When will the #EEOC issue guidance on leave as a reasonable accommodation? #EEOC4NDEAM #HurryUpAlready #PrettyPlease #DorkiestPrettyPleaseEver"

social_media_at_work_btn_dLRG.PNG

October 27, 2014

Social media blunders cost a chef and a chief their jobs

After the jump, more proof that both entry-level employees and C-Suite executives can do dumb stuff and receive the Vince McMahon treatment...

* * *

Continue reading "Social media blunders cost a chef and a chief their jobs" »

October 24, 2014

Think an employee is faking sick? Check social media.

It's that time of year again. Open enrollment, flu shots, and CareerBuilder.com's list of the most creative excuses for missing work.

But before I get to that, how about some missed-work statistics based on responses from 2,203 hiring managers and human resource professionals, and 3,103 U.S. workers (employed full-time, not self-employed, non-government).

  • 28% of employees have called in to work sick when they were feeling well
  • 59% of those fakers either didn't feel like going to work or just wanted to relax
  • 24% of employer have caught some one faking sick by using social media
  • 22% of those fakers sleuthed out on social were fired

I, for one, narrowly escaped termination when confronted with the Instagram shots of my navel piercing at the mall kiosk. If you attend my event with top officials from the EEOC and NLRB next month in Philly (details here), maybe I'll show it to you.

(That sound year hear is part vomit, and part clamor for refunds on the free tickets would-be attendees are now returning, thanks to me).

Maybe, I better make with the Career Builder Top 10 excuses for missing work:

  1. Employee just put a casserole in the oven.
  2. Employee's plastic surgery for enhancement purposes needed some "tweaking" to get it just right.
  3. Employee was sitting in the bathroom and her feet and legs fell asleep. When she stood, up she fell and broke her ankle.
  4. Employee had been at the casino all weekend and still had money left to play with on Monday morning.
  5. Employee woke up in a good mood and didn't want to ruin it.
  6. Employee had a "lucky night" and didn't know where he was.
  7. Employee got stuck in the blood pressure machine at the grocery store and couldn't get out.
  8. Employee had a gall stone they wanted to heal holistically.
  9. Employee caught their uniform on fire by putting it in the microwave to dry.
  10. Employee accidentally got on a plane.

As always when I post this list, I love to hear back from you about the most cray-cray excuses your employees have offered for missing work.

(And no, binge-reading TheEmployerHandbook.com is not crazy. Promote that person immediately).

social_media_at_work_btn_dLRG.PNG

October 23, 2014

Court gives cold shoulder to frostbite as an ADA disability

See that lede right there! That's journalism, baby!

After the jump, let's talk about what it means to have a disability under the Americans with Disabilities Act Amendment Act.

* * *

Continue reading "Court gives cold shoulder to frostbite as an ADA disability" »

October 22, 2014

The employer who wanted to "bring color" into the workplace; brought lot$a green to the plaintiff instead

I'm talking about a $620,000 jury verdict and nearly $165,000 in attorney's fees.

Let's discuss reverse-race discrimination after the jump...

* * *

Continue reading "The employer who wanted to "bring color" into the workplace; brought lot$a green to the plaintiff instead" »

October 21, 2014

Is it legal for the EEOC to send 1,330 emails to your employees at work?

Back in 2013, the United States Equal Employment Opportunity Commission began investigating Case New Holland, Inc. for age discrimination, or so a complaint that Case New Holland recently filed in federal court alleges.

So, how is this news? Let alone blog news, which is hardly news at all. I should know. I publish this drivel. And I don't get paid for it. Which makes this the worst kind of drivel.

Anyway, apparently, the EEOC sent 1,330 emails to Case New Holland email addresses trolling for potential class-action plaintiffs -- or so the Case New Holland complaint alleges. And by sending those emails, the EEOC violated the Administrative Procedure Act, and the Fourth and Fifth Amendments of the United States Constitution -- or so Case New Holland alleges.

So, if the the EEOC sent 1,330 emails to your workplace, would that rub you the wrong way? Well, probably so, unless your workplace is the EEOC. But, would 1,330 emails actually break the law?

Well, if the concern is that the emails could potentially be used to gin a up a class-action lawsuit against your company, then according to a federal court, in this opinion, the answer is probably not:

Plaintiffs "cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending....Nothing in the Complaint or the plaintiffs' opposition suggests that class-action litigation is "certainly impending," and thus, this alleged injury is also speculative and insufficient to establish standing.

So, the clear takeaway here is that if the EEOC sends 1,330 emails to your business, wait until your employees form a class and sue you before filing against the EEOC.

Yeah, that must be the takeaway.

October 20, 2014

You'd think emailing FMLA paperwork would be ok. Yeah, you'd think that.

Remember, over the Summer, when I blogged about how sending FMLA paperwork to an employee via first class mail is a big mistake.

Why? Because if the employee claims not to have received the paperwork, then you have no proof of delivery, and possible FMLA interference issues if the employee is somehow precluded from taking FMLA leave.

So, I offered three alternatives:

  1. Pick a method of delivery that requires a receipt/other proof of delivery with a signature, such as certified mail, overnight delivery.

  2. Hand-delivery at work (with a signature) is pretty good too.

  3. Or email, with a return email from the recipient acknowledging receipt.

Last week, in this opinion, a federal court in Michigan highlighted the importance of confirming receipt when emailing that FMLA paperwork:

Defendant had the right to require Plaintiff to recertify her FMLA leave....Specifically, the issue is whether Defendant (through FMLASource), by informing Plaintiff of the recertification requirement via email, gave Plaintiff proper notice of that requirement...The transmitting of an email, in the absence of any proof that the email had been opened and actually received, can only amount to proof of constructive notice.

Parenthetically, it's worth noting that, for FMLA re-certification, even oral notice to the employee would suffice. However, oral notice can often devolve into a "he-said/she-said" situation.

So, I'll say it again. When it comes to satisfying FMLA notice requirements, consult the list above and have proof that the notice was delivered.


October 17, 2014

The one thing HR can't afford to do if an employee reports a noose

One employer appears to have screwed up royally. Click through to find out how.

* * *

Continue reading "The one thing HR can't afford to do if an employee reports a noose" »