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.

January 15, 2013

HOW TO: Properly address disability accommodation when hiring

Thumbnail image for lifeguardstand.jpg

I was reading this federal court opinion over the weekend. It involves a disability-discrimination claim brought by a deaf man who applied to become a lifeguard at a county pool, but didn't get the job because the county thought his disability would compromise swimmer safety. Plus, the town was not convinced that it could accommodate the deaf applicant because it couldn't be 100% certain that he could safely be on the lifeguard stand alone, without someone constantly by his side.

Folks, I'm guilty.

I'll admit, that when I started reading this opinion, I immediately jumped to the same conclusion as the county-defendant. How could it possibly be safe to employ a deaf lifeguard?

{Then again, my anecdotal knowledge of lifeguarding requirements suggests to me that the real professionals run in slow motion or, at the county-level, have minimal tolerance for pubescent tonsil-hockey schemes}

Well, did you know?

    • A deaf man holds the record for most lives saved (over 900!) in his lifeguarding career.
    • The ability to hear is unnecessary to enable a person to perform because distressed swimmers exhibit visual signs of distress, which a deaf person scanning his or her assigned area can detect.
    • In a noisy swimming area, recognizing a potential problem is almost completely visually based.  Individuals who become deaf before age three have better peripheral vision than hearing individuals.
    • According to the American Red Cross, there have been no reported incidents of drowning or near drowning of any individuals over whom a deaf lifeguard was responsible.

It turns out that if the county had made in an individualized inquiry regarding the applicant's ability to perform the job -- he passed all the lifeguard tests with flying colors -- or engage in an interactive process to determine whether he could be reasonably accommodated, it could have avoided litigation that progressed to one step shy of the U.S. Supreme Court.

That's an expensive lesson to learn.

Here are two ways for you to avoid the same mistake:

  1. Conduct an individualized inquiry to determine whether an applicant's disability or other condition disqualifies him from a particular position. Put simply: don't jump to conclusions -- unless, of course, you like defending lawsuits.

    In the case noted above, the County's physician entered the examination room, briefly reviewed the applicant's file, and declared, "He's deaf; he can't be a lifeguard." This, from a physician with no education, training, or experience in assessing the ability of deaf individuals to work as lifeguards. An outside consultant further opined that the deaf applicant would be able to perform perfectly "100 percent of the time." But that's an impossible standard! 

    Learn from these mistakes.  The Americans with Disabilities Act requires the individualized inquiry. Employers must avoid acting based on stereotypes and generalizations about a disability. Instead focus on the the actual disability and the effect that disability has on the particular individual's ability to perform the job. And remember that individuals with disabilities cannot be held to a higher standard of performance than non-disabled individuals. Instead, have someone who is familiar with not only the applicant's disability but also the requirements of the position conduct the individualized assessment to determine whether the applicant is otherwise qualified.

  2. Engage in an interactive dialogue. We've talked about this before. Covered employers have a duty to engage in an interactive process with a disabled employee or applicant, which requires communication and good-faith exploration of possible accommodations. The purpose of this process is to 'identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. Unless providing an accommodation would cause undue burden to the employer, it must do so.

    So, talk with the applicant and get a sense of what will and won't work to allow him/her to perform the essential functions of the job. You don't have to accept the accommodation that you are asked to provide. However, you do have to provide an accommodation it is reasonable.
Follow these two steps and you'll not only cut your risk of disability-discrimination claims, but greatly expand your employee talent pool.

January 14, 2013

School-bus driver calls student "little bitch" on Facebook, gets fired, and sues?!?

Thumbnail image for yellowschoolbus.jpgOf course she does.

What does the Complaint say? And what can employers take away from it? Find out after the jump...

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Continue reading "School-bus driver calls student "little bitch" on Facebook, gets fired, and sues?!?" »

January 11, 2013

ADA reasonable accommodations for these Looney Tunes

Medical Afflictions of the Cartoon World

Where did you think I was going with this post? 

(And you call yourselves Human Resource professionals). 

Just kidding. You know I love you.

Let me know in the comments below what kind of interactive dialogue / accommodation ideas you have in mind for these characters, and, ba-dee, ba-dee, ba-dee, that's all folks! 

Have a nice weekend.

Image credit: mcw026

January 10, 2013

Court countenances canning complainers of consensual canoodling

In Centucky Kentucky, it's not retaliation to fire employees who complain about sexual favoritism.

Then again making apple-pie moonshine and using a butcher cleaver to slice off the arm of a Detroit gangster isn't frowned upon either. At least, that's what watching Justified teaches me.

But even in Kentucky, they have laws. No, it's true. 

After the jump, you'll see a KY federal court's rationale for the latest sexual-favoritism ruling. And I'll provide some tips for dealing with employees who complain about cushy assignments given to employees who get freaky with management.

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Continue reading "Court countenances canning complainers of consensual canoodling" »

January 9, 2013

3 essential FMLA tools for your HR-compliance arsenal


Three easy ways to tackle FMLA issues, without having to call someone like me. I'll explain after the jump...

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Continue reading "3 essential FMLA tools for your HR-compliance arsenal" »

January 8, 2013

This is my new go-to social-media-discovery judicial opinion

Thumbnail image for facebookprivacy.jpgI assure you that what inspired this post had nothing to do with the facts of the case; namely:

  1. the female plaintiff claiming that her female-lawyer boss groped her; or

  2. the plantiff's Facebook posts about pole-dancing and calling her breasts "milk factories".

That's all purely coincidental. Indeed, it sounds like something out of Costanza's desk drawer

Actually, I'm posting this to share a very well-reasoned social-media-discovery judicial opinion that is a big win for employers. You'll see what I mean after the jump...

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Continue reading "This is my new go-to social-media-discovery judicial opinion" »

January 7, 2013

By far, the WORST job in America (allegedly, of course)

Lincoln GreenNo doubt, an early contender for 2013. 

Kind've like The Lincoln Lawyer -- except way less glamorous and with far more bounced paychecks and ejaculate. Yes, definitely more of those. Allegedly.

Read all about it here.

January 4, 2013

Religious accommodation required for an employee's veganism? Maybe.

Be Like Popeye: Eat Canned Spinach!?!
"Well, blow me down. Wimpy inspires a UK fast food chain,
and all I get is this crappy can. Why I oughta...

In anticipation of the current flu season, you decided to mandate that all employees get immunized. The problem is that one of your employees, a vegan, who won't ingest any animal or animal by-products -- especially not the microwaveable scrapple-wrapped tripe pops I keep in the lunchroom freezer -- refuses to get a flu shot because it's against her religious and philosophical beliefs.

What's her religion, you ask? Why veganism, of course.

WTH?!? Surely, you have no obligation to accommodate this "religion." In fact, you suddenly have the urge to brush her teeth with my frozen pops.

*** Ducks cauliflower ***

Well, guess what, carnivore? If you fire the employee for not getting the shot, you may have a religious-discrimination claim on your hands. 

So says an Ohio federal court in this recent decision. Indeed, an employer must accommodate an employee's sincerely-held religious belief, unless doing so would pose an undue hardship to the employer. When considering whether veganism qualifies, the Ohio court emphasized that "whether or not a practice or belief is religious is not an issue. . .religious practices . . . include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views." Plus, it didn't hurt that the plaintiff quoted the scripture when requesting a flu-shot accommodation from her employer.

*** And I plan to quote Biggie Smalls at compensation time ***

Ultimately, the court accepted that an employee may subscribe to veganism with a sincerity equating that of traditional religious views. Consequently, in certain curcumstances, a vegan can avoid an otherwise mandated flu shot, unless it would post an undue hardship to the employee. But I'm thinking a surgical mask could solve that problem.

Now, if you'll excuse me, somebody has a craving for thawing pops.

Me, that somebody is me.

UPDATE: If you're a California vegan, you're out of luck. As two readers noted on LinkedIn, in this case, a California Court of Appeal -- yes California?!? -- refused to recognize Veganism as a religion requiring accommodation under anti-discrimination laws. For more on the CA decision, go here and here.

January 3, 2013

The Employer Handbook turns 2; and the NLRB keeps hatin' on employers

two candles.jpgWhatcha get the blog for its birthday? Was it an iTunes subscription to Season One of Amish Mafia?

Don't judge the blog. The blog doesn't like to be judged.

After the jump, the selfless blog got you a recap of seven recent National Labor Relations Board decisions affecting your workplace...

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Continue reading "The Employer Handbook turns 2; and the NLRB keeps hatin' on employers" »

January 2, 2013

With employers like THIS, it's gonna be a busy 2013 for the lawyers.

System Failure, WhoaSame s**t; different year.

In 2010, an Ohio temp agency paid $650K as part of a Consent Agreement with the EEOC to settle claims that it had used code words in considering and assigning (or declining) job applicants. The code include words such as "chocolate cupcake" for young African American women, "hockey player" for young white males, "figure skater" for white females, "basketball player" for black males, and "small hands" for women in general.

Fast forward...

Cameron Langford at Courthouse News reports (here) that a Human Resources Manager just sued her former employer, a Texas temp agency, for what she claims was a wrongful discharge. Specifically, she alleges that she was fired after opposing the use of code words to fill placements. According to the article, the code words used included:

  • "blue eyes" and "no sunscreen" = African-American
  • "work all day" = Hispanic
  • "Heavy lifting" = men (i.e., not women)
  • "Energetic" = young (i.e., not old)


It's no wonder that the EEOC will emphasize addressing discrimination in hiring over the next several years. Assuming that your business isn't using code words -- because you're not total scumbags -- now is the time to review other hiring criteria to make sure they do not disparately impact a particular protected class and are otherwise truly business-related.

Or, you can just wait until the EEOC comes knocking at your door. Your choice.

December 31, 2012

Michigan is now the fourth state to protect employee online privacy

Thumbnail image for facebookbackground.jpgThe newest right-to-work state is also the latest to ban companies from accessing password-protected social media accounts.

On Friday, Michigan Governor Rick Snyder signed House Bill 5523, prohibiting employers and educational institutions from asking applicants, employees and students for passwords and other account information used to access private internet and email accounts, including social networks like Facebook and Twitter.

Here's the skinny.

An employer cannot:

  1. Request an employee or an applicant for employment to grant access to, allow observation of, or disclose information that allows access to or observation of the employee's or applicant's personal internet account.

  2. Discharge, discipline, fail to hire, or otherwise penalize an employee or applicant for employment for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the employee's or applicant's personal internet account.

However, the new law specifically permits an employer to access: (i) employer-provided devices; (ii) business-related online accounts; (iii) employee social-media accounts in connection with certain workplace investigations. Employers can also continue to restrict access to certain websites and monitor employee communications on its network.

Michigan is the fourth state (Maryland, Illinois and California are the others) to pass a law of this type affecting employers.

December 28, 2012

My 5 best posts of 2012, as selected by the world's best readers*

*Do I need a disclaimer? Do I?

What a year for The Employer Handbook in 2012! I'm most pleased that, in our second year of existence, readership more than doubled. Although, sadly, the one 2011 reader I had from Papua New Guinea never returned in 2012. I hope she is ok. Yeah, she's ok.

So, what did my readers enjoy most in 2012? Well, apparently, y'all like Polka music. Why else would this be the most-clicked item on The Employer Handbook? What a strange cultured bunch!

As for actual HR/legal-related content, here were the top five based on total page views:

  1. Legislation introduced to expand FMLA coverage in PA. I originally posted this in June 2011 and the bill never passed. Move on, people. Move on.

  2. Facebook pics of employee boozing at a festival ruin her FMLA claim. This doesn't surprise me at all. I was at SHRM National in '12. I saw what happens when you provide HR "professionals" with access to karaoke and half-priced well drinks. Don't worry, I won't tell. ** Cancels Instagram account **

  3. Ethics charges for two lawyers over Facebook friending a litigant. I'm not so sure that the two lawyers are pleased about this. (Note: I love you. All of you. Keep clicking). Nonetheless, my theory that misery loves company in the legal community is confirmed.

  4. 4 new employment-law bills now pending in Congress. None passed. Yeah, I'm shocked too.

  5. Pepsi and Criminal Background Checks: Beyond the Buzz. This one was a guest post from Janette Levey Frisch. I tried combining chloroform with Pepsi Kona to keep Janette all to myself; however, Janette now blogs at The Emplawyerologist. Make sure to check it out.

So, other than old PA legislation, soda, booze, and farting (Give that one time to breathe, I expect big things), what would you like to hear about in 2013? Let me know in the comments below and I will make all of your dreams come true.

December 27, 2012

It's legal to fire a female employee because of her "irresistible attraction"

Cue music.

Last week, a unanimous Iowa Supreme Court held (here) that it was ok for a male boss to fire a female employee -- a model employee -- out of concern that he would eventually succumb and do things with her that could jeopardize his marriage.

That has to be gender discrimination!



The boss replaced the fired female employee with another (presumably less tempting) female. This suggests to me -- as it did the court -- that having the hots for a particular female employee (versus females in general) motivated the firing decision. (Of course, had the actor displayed a pattern of canning female employees because he feared sleeping with them, it may be a different story).

Additionally, although not a focus of the opinion, the same person hired the female employee as fired her. In many courts, the "same-actor" defense can be used to show that if one person does the hiring and the firing -- especially over an abbreviated period, it's unlikely that he is biased against [protected class of hired/fired employee].

Here, the boss -- actually, the boss's wife (she found the text messages) -- wanted the employee gone because her "irresistible attraction" threatened the boss's marriage. Absent sexual harassment, the subsequent adverse employment action is not actionable. Unfair? Yes. But, anti-discrimination laws are not fairness laws. They are only implicated when the employer discriminates based on an employee's protected status; not when an employer treats a particular female employee different than it would other (less alluring) female employees. Absent sexual harassment, that single termination based on a set of feelings towards that particular employee (albeit motivated by the boss's penis), even if unjust, by definition, does not violate the law.

December 26, 2012

Federal employee receives a 5-page written warning for . . . farting?!?

hoofhearted.jpgThe Employer Handbook generally likes to end the year on a classy, high note. Consequently....

The Smoking Gun reports here that, earlier this month, the Social Security Administration issued this 5-page formal reprimand to an employee for his "awful and unpleasant" flatulence.

{As opposed to my ambrosial flatulence. So lovely.}

In fact, the SSA concluded that the pungent poo-stink was so bad, that it created a "hostile work environment" for all co-workers.

{Note: Apparently, the SSA is not familiar with this Minnesota federal court decision, which recognized that farting does not contribute to a hostile work environment. I'll assume that some of my readers may have just learned a thing or two as well...}

Now, you may be thinking to yourself: Could this employee be disabled under the Rehabilitation Act of 1973, such that the SSA would need to afford him a reasonable accommodation? Consider that, while the gas itself would not be a disability, it could be a symptom of an underlying disabling medical condition. Indeed, the warning memo does note that the employee is lactose intolerant. I'm going to assume that lactose intolerance would be considered a disability, because it interferes with one's ability to eat.

So what about a reasonable accommodation? The warning memo notes that the SSA did refer the employee to its Employee Assistance Program for assistance. But that didn't work. Increased ventilation didn't appear to work either. The warning memo notes that when the employee turned on a fan, it would "cause the smell to spread and worsen the air quality." Apparently, the employee also looked into taking Gas-X, but that never materialized into anything, except Hades-level sulfur. Also, discussed were more frequent restroom breaks. But it appears that the employee couldn't contain himself for that long.

What about telecommuting? In certain instances, that may be a reasonable accommodation. If nothing less, that certainly would have improved the air quality at SSA for other employees. However, I'm guessing that the farter's job requirements would not comport with a telecommuting arrangement.

Therefore, it would appear that the only accommodations, if any, that the SSA could have offered would have resulted in undue hardship. And that's not reasonable. Consequently, you might say that the employee was sh*t outta luck.

Now may be a good time to mention that The Employer Handbook likes to end the year with bad puns as well.

Now somebody pull my finger.

And immaturity. Yeah, immaturity.

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

December 21, 2012

6 EEOC priorities over the next 4 years and the impact on your business

Thumbnail image for eeoclogo.png

Thus far, you've managed to keep your equal-employment-opportunity nose clean. Good for you. In fact, with the economy the way it is, combined with the dwindling resources available to our federal agencies -- including the U.S. Equal Employment Opportunity Commission -- your odds of facing a federal investigation based on a complaint of discrimination or harassment are fairly slim.


On Tuesday, the EEOC announced its Strategic Enforcement Plan. And within that plan, you'll find six areas of EEOC focus over the next four years:

  1. Eliminating barriers in recruitment and hiring;

  2. Protecting immigrant, migrant and other vulnerable workers;

  3. Addressing emerging and developing employment discrimination issues;

  4. Enforcing equal pay laws;

  5. Preserving access to the legal system; and

  6. Preventing harassment through systemic enforcement and targeted outreach.

My read on the plan is this: If one of your employees has a "typical" discrimination or sexual-harassment claim, the EEOC may investigate and not do much more (e.g., litigate the matter in federal court). This is true, especially if your employee has an attorney. The EEOC will view that situation as one in which your employee has access to the courts.

However, if an unrepresented employee (or better yet, employees plural) shows up at the EEOC complaining about you, the EEOC is likely to take an interest. This is especially true if the complaints involve more unique issues like: (a) Americans with Disabilities Act coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat); (b) pregnancy accommodation; or 3) LGBT rights (anything that could form the basis for a sex-stereotyping case).

So what are some ways in which you can remain compliant in 2013 and beyond?

  • Double check to see that similarly-situated employees are being treated equally, especially when it comes to compensation;

  • Update job descriptions and review hiring tests to make sure that everything is job-related; and

  • Schedule some anti-harassment training for your employees, making sure that they know how to alert you to problems in the workplace -- before going to the EEOC -- to allow you to fix them.