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.

August 3, 2012

413,000 reasons for HR to avoid inconsistent employee discipline

Thumbnail image for fmla.jpegInconsistent discipline is bad. But, when an employee's request for leave under the Family and Medical Leave Act precedes the inconsistent discipline by only 48 hours,  damn, that's not just a lawsuit, that's jury-verdict material.

The details on this bloodbath and a few lessons for my employer-readers after the jump...

Continue reading "413,000 reasons for HR to avoid inconsistent employee discipline" »

August 2, 2012

Snoop Dog becomes Snoop Lion! And news of a new employee Facebook law

Snoop DogCalvin Broadus a/k/a Snoop Dogg is now the artist formerly known as Snoop Dogg. During a recent trip to Jamaica, Snoop was apparently *** afraid to add snarky strikethrough for fear of losing job ***  "born again" and is now Snoop Lion. 

But in even BIGGER news --

Drop it like it's hot!

Yesterday, Illinois became the second state, after Maryland, to make it unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information to gain access to an online account. 

Fo' shizzle!

Under Illinois' "Right to Privacy in the Workplace Act," it is now also unlawful for an employer to require that an employee or prospective employee log into their online account so that the employer may gain access.

*** Searches for other Snoopisms -- finds nothing blog-appropriate ***

The Act does have a few carve-outs for employers. Employers may still maintain lawful workplace policies governing the use of the employer's electronic equipment, including policies regarding Internet use, social networking site use, and electronic mail use. And if employers want to monitor usage of the employer's electronic equipment and the employer's electronic mail without requesting passwords, then by all means.

No word from Snoop Lion if he approves of Illinois' new law. But, like you, he is welcome to sound off in the comments below.

*** Sets blog-comments-spam-filter to "volcano" ***

August 1, 2012

A scary NLRB decision threatening the integrity of workplace investigations

nlrb.jpgHR heads are still spinning as they try to digest what the National Labor Relations Board has tried to accomplish this year.

The Acting General Counsel has issued confusing reports on social media. The Board has also attempted to create quickie union elections, and require companies to abide by a union-poster rule. Why, just a few weeks ago, the Board ruled that an "at will" provision in an employee handbook may violate the National Labor Relations Act. That one is still a head-scratcher for me.

But the National Labor Relations Board has really stepped in it again, dealing another crushing blow to HR. I think you'll agree with me when you read on after the jump...

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Continue reading "A scary NLRB decision threatening the integrity of workplace investigations" »

July 31, 2012

"An employee walks into a hospital wearing a Jesus lanyard..."

jesuslanyard.pngThey can't all begin with a priest, minister and a rabbi walking into a bar. Then again, it's "Religious Accommodation Tuesday" here at The Employer Handbook. So, after the jump, we'll discuss the test to determine whether an employee may lawfully don religious items at work and find out whether the hospital worker in this case has a potential religious discrimination claim (Hint: he does).

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Continue reading ""An employee walks into a hospital wearing a Jesus lanyard..."" »

July 30, 2012

HR Manager emails bolster employee's ADEA and FMLA claims

Gun Smoke Red Documentation is good; smoking-gun emails from the HR Manager not so much.

After the jump, I've got a few doozies which now have a financial institution going to trial on a former employee's age-discrimination and Family and Medical Leave Act claims.

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Continue reading "HR Manager emails bolster employee's ADEA and FMLA claims" »

July 27, 2012

Big changes coming to the Mine Safety and Health Act?

Coal Miners MemorialYesterday, Sen. Jay Rockefeller (D-W.Va.) reintroduced, for a third time, the "Robert C. Byrd Mine and Workplace Safety and Health Act," which would amend the Mine Safety and Health Act.

What does this bill say (CliffsNotes version)? And what are the chances of passage? Find out after the jump...

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Continue reading "Big changes coming to the Mine Safety and Health Act?" »

July 26, 2012

Egyptian-born FBI agent + post-9/11 transfer = discrimination claim

I am an F....B.....I.... Agent! 

And if anyone wants to get me this iPad case for Christmas...

Wait, what was I supposed to be writing about? Oh yeah, national-origin discrimination. I'll get it together for you after the jump...

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Continue reading "Egyptian-born FBI agent + post-9/11 transfer = discrimination claim" »

July 25, 2012

Fact or Fiction: The ADA requires creating a new job for a disabled employee

Fact or Fiction?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."

Under the Americans with Disabilities Act, an employer is required to provide a reasonable accommodation, if doing so will allow a disabled employee to perform the essential functions of his job. Could this mean having to create a brand new position for a disabled employee?

Nope. A federal appellate court underscored this last week (opinion here) when if affirmed a lower-court decision to dismiss a plaintiff's claims under the ADA that his former employer had failed to accommodate his disability:

Otto also enumerates several accommodations that he says the City should have provided so that he could perform the job. He suggests that the City could have limited his job to sedentary duties, offered him a part-time job as an ice-hockey rink attendant, or assigned other employees in the Department of Public Works to assist him in carrying out his job. These proposed accommodations are not reasonable. The ADA does not require an employer to create a new position or to eliminate or reallocate essential job functions in accommodating an employee with a disability.

Consequently, the answer to today's QATQQ is FICTION.

July 24, 2012

Recipient of nasty racial slurs from an office friend loses bias claim

Thumbnail image for nj1.jpgWhat if I told you that a female black employee was called "monkey" and "nappy head Raggedy Ann" at work?

What if I then told you that the employee subsequently sued in New Jersey state court; quite possibly the most plaintiff-friendly jurisdiction in the U.S. -- next to California?

And guess what? She lost. Oh my!

What the heck happened and what can employers learn from this recent decision? Find out after the jump...

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Continue reading "Recipient of nasty racial slurs from an office friend loses bias claim" »

July 23, 2012

The EEOC's subpoena power is crazazy broad. Wooo!!!

Ric FlairOn behalf of an illiterate man, the United States Equal Employment Opportunity Commission (EEOC) investigated a Charge of Discrimination against a MD employer, which allegedly had a literacy policy that violated the Americans with Disabilities Act (by discriminating against qualified individuals with learning disabilities). As part of its investigation, the EEOC served an extremely broad subpoena on the employer. The employer fought the subpoena hard. Ultimately; however, it learned that the EEOC has the power.

You'll learn too (and figure out why this post has a picture of Ric Flair)...after the jump...

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Continue reading "The EEOC's subpoena power is crazazy broad. Wooo!!!" »

July 20, 2012

Booby trapped! No break time for nursing employee; no lawsuit either.

'Expressed breast milk' photo (c) 2007, Hamish Darby - license: http://creativecommons.org/licenses/by/2.0/HEY! Which one of you just threw that breast pump at my head?

[annnnnnnd cue music]

** Dons sensitivity invisibility cloak **

Nearly two years ago, I wrote here about how the The Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (FLSA) to require companies to afford employees a "reasonable break time" in a private room (but, not a bathroom -- ick!) to "express breast milk for her nursing child for 1 year after the child's birth."

But if an employer violates the law by not provide what the FLSA now requires, can an employee sue? The answer, according to an Iowa federal court is: Corn! No.

In Salz v. Casey's Marketing Company, the court held that since: (1) employers are not required to compensate employees while they are expressing milk; and (2) the FLSA limits recovery to unpaid wages, there is nothing for a private litigant, deprived of a place to express breast milk, to recover from an employer. Plus, the Department of Labor, in this Guidance, limits an employee to filing claims directly with the Department.

For some tips on what employers can do to avoid the wrath of the Department of Labor, check out my tips.

UPDATE: The plaintiff's FLSA retaliation claim survived the employer's motion to dismiss.

July 19, 2012

It's the July Edition of the Employment Law Blog Carnival!

Carnivalphoto © 2010 Paul Newtron | more info (via: Wylio)

The July edition of the Employment Law Blog Carnival is now up and running. You can view it here. Thank you to all who contributed. And a special thank you to Heather Bussing and HRExaminer.com for hosting.

If you would like to participate in future carnivals, email me and I will add you to the distribution list. Participants must be bloggers (so we can link to your blog) and Carnival posts must be HR/employment-law-related. And you must like dill pickles.

Dill, damnit!


July 18, 2012

To minimize FMLA lawsuits, hire slow and fire fast (before the FMLA request)

youarefired.jpgIn the world of Human Resources, "hire slow, fire fast" generally holds true to avoid just about any lawsuit.

Unfortunately, for one NJ employer, it didn't get the memo. And now it finds itself having to defend against FMLA interference and retaliation claims at trial.

What did this employer do wrong and how can you avoid making the same mistake? Find out after the jump...

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Continue reading "To minimize FMLA lawsuits, hire slow and fire fast (before the FMLA request)" »

July 17, 2012

Retaliatory voodoo, Courtney Love, and lots of unpaid $$$

Sounds like a bad batch of Pennyroyal Tea. Just another Tuesday here at the ole Handbook.

The San Francisco Chronicle is reporting here that Courtney Love, Kurt Cobain's widow, is reuniting the band ** thank you for sparing our ear holes ** being sued by a former assistant seeking, among other things, unpaid overtime. The plaintiff also claims that Love asked her to perform voodoo rituals ** not yet, next paragraph ** unethical duties such as hiring a hacker and forging legal correspondence. The San Francisco Employment Lawyer Blog has more on this case here.

From Hole to holes in a doll pin-cushion, with a hat-tip to @ChaimBook, the Madison St. Clair Record reports here that a Wisconsin woman is suing her former employer for sexual harassment and retaliation. The plaintiff claims that she was forced to look at nude female magazines, calendars and sexually explicit language used by her co-workers and direct supervisor. Fairly standard sexual-harassment fare. What makes this case blogworthy is that, after she complained, the plaintiff allegedly suffered retaliation in the form of two voodoo dolls in her desk, one of which had a black pin stuck into her chest.


    1. Even for the savviest employers, wage-and-hour issues can rear up from time-to-time. If you have not done so yet, or if it's just been a while, consider bringing in outside counsel to conduct a wage-and-hour audit to make sure that your pay practices are squeaky clean.

    2. Since the Supreme Court's decision in Burlington Northern, the bar has been significantly lowered as to the type of behavior that can constitute actionable retaliation. I have little doubt that a voodoo doll delivered to a complaining employee would effectively chill that employee from asserting federal-protected rights. Remind your workforce that behavior both subtle and overt can lead to a retaliation claim. 

    3. Hole sucks.
July 16, 2012

Breaking stupid: A hella-dumb Facebook invasion-of-privacy claim

texasflag.jpgFrom the state that just loves our sloppy seconds -- out-of-work wide receiver who cries about a fumbling quarterback say, "What. It's unfair. That's my quarterback." -- comes this case about a Facebooking emergency medical technician from Texas. 

To protect the innocent -- in the event that you've yet to click on the case link -- we'll call the employee-plaintiff "Misguided." Misguided the EMT was fired after posting on his co-worker's Facebook wall about how he wanted to boot a ultimate fighter patient in the head. 

Instead of just swallowing the bitter pill, Misguided sued his former employer for -- get this -- intrusion upon seclusion. (basically, an invasion of privacy).

Invasion of privacy on a co-worker's Facebook page. And people wonder how I get material for this blog. 

Feel me flow on this steaming pile after the jump...

Continue reading "Breaking stupid: A hella-dumb Facebook invasion-of-privacy claim" »