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 5, 2012

SURVEY: When it comes to politics at work, mum's the word

Monty Brewster may be telling your co-workers to vote "None of the Above", but, chances are, you have no clue who they are voting for tomorrow in the Presidential election.

According to this CareerBuilder.com survey released today, although four out of five employees intend to vote on Tuesday, only one-third share their political affiliation at work. That number drops to one in five Gen-Y employees.

Nearly three in ten employees said they feel like they need to keep their affiliation secret around the office. Indeed, for every 100 employees, only 2 will display U.S. Presidential campaign items or decorations on display in their office. I refuse to hang out with either of them.

Who will I be voting for tomorrow? I'm going to vote early and often for

November 2, 2012

It's not disability discrimination when you don't know about the disability.

Books of Knowledge

William Wengert is HIV-positive. He worked as a certified nursing assistant for Phoebe Ministries, until he was terminated last year following an incident in which a resident suffered a broken leg. The company claimed that the incident with the resident precipitated the firing. Conversely, Wengert alleged that the company violated the Americans with Disabilities Act by terminating him because of his HIV-positive status.

Now, let's pause there for a second. I think we can all agree that just because a disabled employee -- unquestionably, being HIV-positive is an ADA-disability -- is fired, does not mean that the employer has violated the ADA. There could be many legitimate business reasons that could trigger an adverse employment actions (e.g., $$$, performance, discipline, etc.).

Legitimate business reasons aside, the Wengert Court (opinion here) highlighted that "disabilities are often unknown to the employer." Therefore, "the requirement that plaintiff show he is disabled implies a requirement that the plaintiff show employer knew of employee's disability." In Wengert, the plaintiff could not demonstrate that anyone involved in his firing knew that he was HIV-positive. Therefore, Wengert's disability could not have motivated his termination. Thus, no disability discrimination.

Knowledge is power, except when it's not.

And if you don't know, now you know...


November 1, 2012

NLRB breathes new life into your "at-will" employment disclaimers

nlrb.jpgJust Google it.

The National Labor Relations Board has been drawing a lot of attention for its heightened scrutiny of at-will employment disclaimers. For example, in a case involving the American Red Cross, a Board ALJ found that the American Red Cross broke the law by having an employee handbook policy that stated, in part, "I further agree that the at-will employment relationship cannot be amended, modified or altered in any way."

But new guidance from the NLRB's Acting General Counsel confirms what I've been saying: Don't even think about scrapping those employee handbook at-will employment disclaimers. (Maybe a small tweak may do the trick).

More after the jump...

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Continue reading "NLRB breathes new life into your "at-will" employment disclaimers" »

October 31, 2012

You be the judge: Can this employer enforce its general release?

judicialrobes.jpg

Alright folks. Kindly remove your lawyer and HR hats for a moment and don the judicial robe and gavel.

Your Honor, what you must decide, based on the facts that I will lay out below for you after the jump, is whether the release that the Plaintiff-employee signed is enforceable, such that she is precluded from pursuing discrimination claims against her former employer, the Defendant. 

Click through if you're up to the task...

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Continue reading "You be the judge: Can this employer enforce its general release?" »

October 30, 2012

Salty about Sandy: 20 Hurricane tweets from your employees

Hurricane Sandy: Day 2

To my east-coasters, I hope this post finds you safe and dry. 

hurricanesandy.jpg

Me? Hey, thanks for asking. Our Philly home kept power throughout and we otherwise made it through unscathed. Still, Philadelphia remains in a state of emergency. The City is essentially shut down. Most of the major surrounding highways have been off-limits. And, for a second day in a row, for the safety of the drivers and the riders, there is no public transportation in the City.

That means that local businesses too opted to close on Monday, and remain closed on Tuesday. Well, most of them. 

To the chagrin of some employees affected by the Hurricane, they had to work. And they have vented on Twitter.

After the jump, what your employees tweeted about working (or, maybe, not so much) during Hurricane Sandy...

[Don't shoot the messenger]

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Continue reading "Salty about Sandy: 20 Hurricane tweets from your employees" »

October 29, 2012

An HR guide to the workplace implications of Hurricane Sandy

I'm punching out this post on Sunday night, from my home in Philadelphia, before the brunt of Hurricane Sandy strikes. Like many of you, I'm locked, stocked, and ready to go, hoping that the impact is far less than is forecasted and the recovery is easy.

Inevitably, however, for you good folks -- especially if you have closed shop on Monday, employment issues are sure to arise. To help you out with some of them, read on past the jump...

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Continue reading "An HR guide to the workplace implications of Hurricane Sandy" »

October 26, 2012

GUEST POST: 5 Disability-Discrimination-Law Basics for Employers

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's one of my readers, Joseph Ginarte. Joseph is an employment lawyer with Ginarte, O'Dwyer, Gonzalez, Gallardo Winograd.

Like his post? Feel free to email him some comments!

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

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Continue reading "GUEST POST: 5 Disability-Discrimination-Law Basics for Employers " »

October 25, 2012

New equal-rights rules for NJ employers take effect next month

thewalkingdead.jpg

I'd better remember to post this now before I get bitten and turn into a zombie and munch on your face..

[Note to self: Less of "The Walking Dead," more sleep].

On November 19, 2012, this new law will take effect in NJ, which will require employers of 50 or more employees (zombies not included) to notify their workforce about "the right to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment under the 'Law Against Discrimination."

In addition to hanging a poster in a conspicuous location, employers must notify their employees in one of three ways:

  1. Via email;
  2. In print (e.g., paycheck insert, handout); or
  3. Through an internet or intranet website

The notification must contain an acknowledgement that the worker received the notification and has read and understood its terms. And, if a language, other than English, is the primary language spoken in your workplace, then the poster and notifications must be in that language.

Want a copy of the poster/handout? Me too. I suspect that you'll eventually find copies here. Fear not, the posting and distribution requirements contained in the law are not triggered until the Commissioner of Labor and Workforce Development issues the form of notification.

October 24, 2012

Fact or Fiction: FMLA covers a tummy-tuck procedure

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."

An employee is eligible for leave under the Family and Medical Leave Act if the employee has "a serious health condition that makes the employee unable to perform the functions of the position of such employee." An employee has a serious health condition if there is "an illness, injury, impairment or physical or mental condition that involves inpatient care . . . or continuing treatment by a health care provider."

Treatments for cosmetic procedures are not serious health conditions unless complications develop from the procedure or inpatient hospital care is required. So, an employee who takes leave for a tummy-tuck procedure is not covered under the FMLA.

The answer to today's question is fiction.

For more on this, check out Dorsey v. Bellanger.

October 23, 2012

What happens in Vegas, becomes an FMLA claim

fmla.jpegYour employee vacations in Las Vegas. She plays the slots, walks the Strip, does some people watching, eats at nice restaurants. And she claims it's all covered under Family and Medical Leave Act.

And, you know what? She may be right. I'll tell you why after the jump...

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Continue reading "What happens in Vegas, becomes an FMLA claim" »

October 22, 2012

Employee's Twitter hatin' costs him unemployment benefits

TwitterLogo.jpgAn employee getting fired for caustic social-media posts is so 2011. Having an application for unemployment-compensation benefits denied because of Twitter stupidity -- that's the new black.

Details of a recent Commonwealth of Pennsylvania decision -- don't tread on me, Idaho -- after the jump...

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Continue reading "Employee's Twitter hatin' costs him unemployment benefits" »

October 19, 2012

10 excuses for missing work that are more creative than yours

Personal Breathalyzer with keysSorry about that hangnail. Get well soon and thank you for fighting through the agony to read this post. I'll make it worth your while.

It's that time of year again: roadtrip with the boys to the FourLoko distillery CareerBuilder's Annual Survey of the "Most Unusual Excuses Employees Gave for Calling In Sick." In last year's survey, "Employee's 12-year-old daughter stole his car and he had no other way to work. Employee didn't want to report it to the police" topped the list.

Find out what made the Top 10 this year, after the jump...

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Continue reading "10 excuses for missing work that are more creative than yours" »

October 18, 2012

144 "N"-words, but black employees can't prove they were offended

Take a few minutes to read this decision. It will blow your mind.

Here's the long and short of it:

mouthyell.jpg

Three black employees sue for race discrimination claiming that they were subjected to a racially-hostile work environment. The court actually did the math:

During the relevant time period, Facer used the word "nigger" or "nigga" almost daily, or at least three to four times per week. Assuming that the Bratchers and Buie worked an average of forty-eight weeks a year, it would mean that Facer used the word "nigger" or "nigga" at the work site at least one-hundred forty-four times per year.

The court described these facts as presenting the "rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct." Also, the court held that the employer's anti-harassment policy was "unreasonable as a matter of law" because it required employees to report harassment to their harassing supervisor.

But here's the kicker: the court found that the plaintiffs could not establish, as a matter of law, that the comments offended them.

For serious?

In its opinion, the court identified 12 separate complaints that the plaintiffs registered, including to the owners of the company. The court also dismissed the "plaintiffs listen to rap music and rappers say 'n---a' a lot" defense. [Almost as bad as the "she was asking for it" defense]. Notwithstanding, the court considered the testimony of 3 witnesses (out of 24 total) who testified that they did not believe that the plaintiffs were subjectively offended by Facer's conduct -- you know, calling them n---er/n---a every day. That was enough to create a dispute of material facts.

So, this case will go to a jury where the plaintiffs will have to prove that they were offended by what the court itself described as a "steady barrage of opprobrious racial comments."

Unreal.

October 17, 2012

Fact or Fiction: Opposing an employee's u/c request may be Title VII retaliation

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 Title VII of the Civil Rights Act, an employer engages in unlawful retaliation when, in response to an employee complaint of discrimination, it acts in a way that may dissuade a reasonable worker from making or supporting a charge of discrimination.

So, let's assume that an individual files a charge of discrimination with the EEOC against her former employer. Thereafter, the employee files for unemployment compensation benefits, and the employer fights the claim for unemployment compensation, claiming that the employee was terminated for gross negligence. Could that be viewed as Title VII retaliation?

According to the this recent PA federal court decision, the answer is fact:

Ms. Stezzi can satisfy the "`adverse employment action' element of [her] prima facie case of retaliation" with her claims regarding Citizens Bank's post-employment conduct if she can show that Citizens Bank's actions negatively affected her future employment opportunities...I find that her complaint sufficiently alleges that Citizens Bank adversely affected her future employment opportunities by ordering Talx to appeal her unemployment compensation benefits....If other employers saw that Talx described Ms. Stezzi as grossly negligent in its appeal, it is reasonable to infer that such employers might refuse to hire Ms. Stezzi.

October 16, 2012

Everything's bigger in Texas. Even the Facebook stupidity.

A Texas court held earlier this month that an employer lawfully fired a paramedic who posted on the Facebook page of a co-worker that she wanted to slap a patient.

But, the plaintiff's rant isn't the worst of it.

facebookbackground.jpgWhen warned by a co-worker that the plaintiff's Facebook post was accessible by the general public, the plaintiff responded -- publicly on Facebook:

Yeah, whatever. YOU weren't there. Whenever I have to have a firefighter ride in with me because of a patient's attitude, and I fear for MY safety, I truly believe a patient needs an attitude adjustment. Think about that the next time YOU correct someone!!

As you can imagine, once the company got wind of this, it fired the plaintiff for being "unprofessional and insubordinate." Subsequently, the plaintiff sued for invasion of privacy.

Invasion of privacy?!? For accessing Facebook posts. That were public. That the plaintiff was told were public. That the plaintiff acknowledged were public. Plaintiff loses. (Decision here)

Did I mention that the Texas court that decided the case was an appellate court? The plaintiff frigging appealed her initial defeat -- one that previously blogged about here.

And y'all wonder why our legal system sometimes gets a bad rap. Oy!