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.

September 13, 2012

Is an employee with managerial duties "similarly situated" to a manager?

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Maybe it's the luck of the draw, but most of the discrimination cases I defend are hostile work environment cases, where an alleged harasser supposedly has made an employee-victim's life miserable with certain comments, jokes, gestures, touchings, you name it.

Far less often do I encounter disparate-treatment claims. A disparate-treatment claim is one where an employee claims that another similarly-situated employee in another class was treated more favorably because of his/her protected class. For example, a female employee claims that similarly-situated male employees are paid more because they are men.

Sounds like the facts of a recent case decided right in my backyard in the Eastern District of Pennsylvania. This case provides a great opportunity to go back to school on what it means to be similarly-situated...after the jump...

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September 12, 2012

Is "casual conversation" of a parent's health enough to trigger FMLA?

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Last month, in this post, I addressed a recent opinion in which the court held that the words "Emergency Room," when uttered by an employee to his employer are enough to put the employer on notice -- at least initially -- that the employee needs leave under the Family and Medical Leave Act to care for a parent with a serious health condition.

In another recent opinion (here), the Seventh Circuit Court of Appeals examined inquiry notice under the FMLA to determine whether causal conversation about a loved one's health -- without mentioning the letters FMLA -- is enough to alert an employer to the seriousness of a health condition so as to trigger the need for FMLA leave.

The Court held that it did not:

Here, the evidence falls short of establishing inquiry notice. Nicholson had one "casual conversation" with Naatz and others about the challenges of dealing with aging parents and may have mentioned her father's condition. This is clearly insufficient as a matter of law to notify Naatz that FMLA-qualifying leave was needed.

So, two takeaways for employers to limit what may be a close-call under FMLA:

  1. Employers should make sure that supervisors are trained to address employee leave that may fall within the scope of the FMLA, especially when the employee does not specifically mention the letters FMLA.

  2. If an employer even senses that employee leave may fall within the scope of the FMLA, confirm it by obtaining medical certification from the employee.

September 11, 2012

Court grants access to plaintiff's social media in discrimination case

lockandkey.jpgMany times on this blog (e.g., here, here, and here), I've discussed the discovery of a plaintiff's social media information in pending litigation. More often than not, these issues arise in personal injury actions where the defendant believes that the plaintiff's injury isn't as a severe as he claims it to be. So, it seeks access to plaintiff's Facebook information where it believes it will find pictures of the plaintiff boozing or frolicking or what-have-you.

Although less common in employment discrimination cases, from time-to-time, social media discovery issues do crop up. I'll discuss a new one decided late last month and offer some related tips for employers after the jump...

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September 10, 2012

POLL: Your employees post THIS YouTube video. What do you do?

Over the weekend, I heard PSY's catchy song Gangnam Style for the first time. Coincidentally, I then read this story from Kathleen Miles on the Huffington Post about 14 Gen-Y lifeguards at a city pool in El Monte, CA, who posted this video (below, left) on YouTube spoofing the original "Gangnam Style" music video (below, right).

In response, the City fired the 14 lifeguards for using City property, including the pool and their uniforms, for private use. Sure, the City was within its rights to fire these employees. But, was that the ideal response?

Let's pretend that you are the decisionmaker for El Monte, CA. What would you do? Let me know in the comments below.

September 7, 2012

"How can I keep the white girl?"

blackjack.jpg[Editor's Note: Because "Playing the Race Card" was already taken]

The title of this post is comprised of the seven poorly-chosen words from a Vice President of Operations at a Detroit casino right before the casino terminated a white employee for allegedly botching supervision of a dealer card shuffle.

What do you think? Do we have a live race-discrimination claim? Oh yeah, we do! Details after the jump, as well as thoughts on employers who strive to maintain racial balance in the workplace...

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Continue reading ""How can I keep the white girl?"" »

September 6, 2012

Save the turtles, skip poison ivy, vote The Employer Handbook!

True story: In the wake of last year's stupid turtle ploy to elicit votes for The Employer Handbook in the ABA Blawg 100 Amici, I spent over an hour in a Harrisburg hotel room on Tuesday night trying to one-up (one-down?) myself by programming a talking computer avatar with an Irish brogue to encourage you to vote for The Employer Handbook in this year's ABA Blawg 100 Amici.

vote.jpegNow, I have done some stupid stuff in my life (see; e.g., the turtle; rubbing poison ivy on my face in the fourth grade because I didn't believe that the shiny green leaves of three that the kid with the baggie on his hand was holding was actually poison ivy) . Heck, while my wife was laboring in the delivery room last month, I was on the couch Googling for turkey crockpot recipes. (Perhaps, I should have kept that one to myself). But the talking avatar thing tops this week's list -- so far (I still have a few more days to go).

But seriously, here is the link, take a few seconds, vote Handbook. Tomorrow is the voting deadline. So, cast your vote today and then cackle with me as I mercilessly crush the competition. WHAT!

Then listen to me try to one-up my avatar idiocy this afternoon on this week's episode of The Proactive Employer. Stephanie Thomas will be hosting me, Jon Hyman, Phil Miles, Robin Shea as we answer your HR and workplace law questions. 

The show will air live today at 3 PM Eastern / 12 Noon Pacific on BlogTalkRadio. During the show, you can Tweet your questions using the hashtag #TPESHOW or call in at 1-888-553-6673.

And there's a twist.

According to the Stephanie's show promotion, "No issue is out of bounds, no question is too challenging, no situation is too bizarre for our panel of labor and employment attorneys! " She has further requested that we provide "candid advice" to such workplace conundrums as: "One of my employees posed for a Playboy spread. That's not the image our company wants to portray - can I legally fire her?"

[Editor's note: That sound you just heard was my malpractice carrier's head exploding]

Hopefully, the carrier voted Handbook first.

September 5, 2012

Ethics charges for two lawyers over Facebook friending a litigant

facebutton.pngIt was bound to happen sooner or later...

Mary Pat Gallagher of the the NJ Law Journal reports here (subscription required) that two NJ defense lawyers face ethics charges after their paralegal allegedly friended an attorney-represented plaintiff in a personal injury case.

Details on the allegations and some takeaways for both lawyers and HR professionals after the jump...

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September 4, 2012

ADA does not require indefinite break from essential job functions

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Readers of this blog know (here, here, and here) that if a disabled employee requests an indefinite leave of absence from work, the Americans with Disabilities Act does not require you to provide it. Why? Because that accommodation is not reasonable.

[Editor's note: Obsessed much, Eric? Three posts about the same topic?!? Why don't you just share with your readers about how you refused to drink anything other than water for hours after yesterday's Labor Day lunch of chilaquiles, just so you could continue to savor the satisfying burp-flavor of red sauce and refried beans. TMI, Eric. TMI....]

To the two remaining readers who made it this far, I'll school you on requests for an indefinite reprieve from essential job functions after the jump...

*** belches, draws dirty look from wife, smiles ***

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August 31, 2012

GUEST POST: Why Hiring Managers Must Verify College Degrees

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Samantha Gray. Samantha is a freelance writer/researcher for www.BachelorsDegreeOnline.com. Her articles cover issues related both to online and traditional education, as well as student lifestyle, careers and business. Please send any questions or comments her way at SamanthaGray024@gmail.com.

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

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August 30, 2012

Kiss the "fluctuating workweek" OT method goodbye in PA

kiss.jpgmmmmmmmmmmmmwah!

What is the fluctuating workweek method of overtime compensation? Why is it no longer good in PA? And why should you care?

I answer all of these hard-hitting questions -- like a BOSS -- after the jump...

Continue reading "Kiss the "fluctuating workweek" OT method goodbye in PA" »

August 29, 2012

No ADA accommodations required for non-disabled employees

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Last week, we had a two-part series on the interplay between the Family and Medical Leave Act and the Americans with Disabilities Act. The former clearly obligates employers to afford leave to an eligible employee to care for a sick child. But, what about the latter? That is, must an employer provide leave from work as a reasonable accommodation to an employee to permit her to care for a disabled child?

In a case decided earlier this month (Magnus v. St. Mark United Methodist Church), the Seventh Circuit Court of Appeals held that the ADA does not require employers to provide reasonable accommodations to non-disabled workers.

However, that does not mean that employers have carte blanche to discriminate against employees who must care for disabled loved ones. Here are a couple of other lessons from the Seventh Circuit:

  1. The ADA forbids an employer from discriminating against an employee because of a known disability of an individual with whom the employee is known to have a relationship or association. This is known as associational discrimination.

  2. An employer may not terminate (or refuse to hire) an employee for unfounded assumptions about the need to care for a disabled person.

  3. The ADA does not preclude an employer from firing an employee who violates an attendance policy, if the reason for the absence is to care for a disabled loved-one. (Editor's note: It may violate the FMLA).

(h/t Eric Sigda @ GT L&E Blog)

August 28, 2012

PA: Forced reinstatement of a sexual harasser violates public policy

Courts analyzing anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act mandate that employers educate employees about discrimination in the workplace and provide a way for them to complain. Then, once made aware of discrimination in the workplace, the employer must take steps that are reasonably designed to end the discrimination. That could mean anything from a verbal warning up to termination of employment. That decision is up to the employer.

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In Phila. Housing Authority v. AFSCME, after investigating a complaint of sexual harassment, a unionized employer with a zero-tolerance policy for sexual harassment fired the alleged harasser. The union subsequently filed a grievance that eventually led to arbitration, at which time the arbitrator deemed the alleged harasser's behavior to be "lewd, lascivious and extraordinarily perverse." Notwithstanding, the arbitrator concluded that a verbal warning would have sufficed, rather than termination, and ordered the alleged harasser reinstated and made whole.

On appeal, the PA Supreme Court blasted the arbitrator's decision, while emphasizing the public policy against unlawful harassment in the workplace.

The issue before the arbitrator was whether there was just cause for this termination, and if not, what would be the appropriate remedy short of termination. The absurd award here makes a mockery of the dominant public policy against sexual harassment in the workplace, by rendering public employers powerless to take appropriate actions to vindicate a strong public policy. Such an irrational award undermines clear and dominant public policy.

The high court then emphasized that employers should have the discretion to determine what step(s) are most reasonably designed to discrimination in the workplace:

A public employer cannot be denied the power to impose consequences for this sort of inappropriate, and facially criminal, conduct. Indeed, with the general notion in mind that recognized rights must generally have some form of remedy, it is clear that there must be a power in public employers to take meaningful steps to vindicate dominant public policy. To allow an arbitration award which finds that an employee engaged in "extraordinarily perverse" physical sexual harassment of a co-worker, yet then simply dismisses the conduct as unworthy of an employer response beyond initial "counseling," and reinstatement with back pay, would eviscerate the ability of employers to enforce dominant public policy.

Learn from this decision. Employers should make sure that their anti-harassment policies emphasize zero tolerance. Then, err on the side of harsher discipline. There is no place in the workplace for unlawful discrimination.



August 27, 2012

New model jury rules specifically address use of social media

Social media dataflowsGot a jury trial coming up? Concerned about jurors using social media to discuss the case or conduct independent research during trial? As you may recall from this blog post, if you are counting on the court to independently instruct jurors not to get their Twitter on, well, don't hold your breath.

Instead, consider including this new two-page model jury instruction addressing juror use of social media during trial. You'll note that jurors are instructed twice about social-media use. According to this official press release, the new rules emphasize that a single instruction to refrain from using social media to discuss/research the trial is not enough:

The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial. Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines.

One additional suggestion: remember that technology is ever-changing. Today's Facebook may be tomorrow's TheEmployerHandbook.com.

Yeah...

The point here is that you shouldn't hesitate to tailor these model jury instructions to emphasize those sites and tools that your jurors are likely to utilize to make sure that they don't.


August 24, 2012

FMLA may require you to adjust employee performance standards

Thumbnail image for fmla.jpegI'm back, jack.

And I have some hella-tough shoes to fill, following Janette Levey Frisch's killer two-part guest-blogger series on the interplay between the Family and Medical Leave Act and the Americans with Disabilities Act. You can find Part One here and Part Two here.

So, we all know by now that if a disabled employee requests that his employer afford him a reasonable accommodation to allow the employee to perform the essential functions of his position, the employer must do so (assuming a reasonable accommodation exists). That's ADA 101.

But, let's shift gears a bit and talk FMLA. Assume an employee has an FMLA-qualifying condition and will be out on FMLA leave for several weeks. Does the employer violate the FMLA by: (a) failing to make a reasonable adjustment to its employment expectations to account for the FMLA-protected leave, and then: (b) terminating the employee for failing to meet those unadjusted expectations.

According to the Seventh Circuit Court of Appeals in Pagel v. TIN, Inc. (opinion here), the answer is yes. Here's the explanation:

The FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.
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At summary judgment, Pagel presented evidence showing that TIN terminated him in part for not meeting sales expectations, even though he had missed a number of days for FMLA treatment....He also presented evidence showing that Kremer relied on inaccurate data in finding that Pagel did not meet some of the company's reporting requirements. TIN subsequently admitted to some of these inaccuracies....Based on this evidence, Pagel has presented enough evidence to meet his initial burden.

A plaintiff's lawyer will salivate at this fact pattern. Me? I know I'll have my work cut out for me. Putting aside the obvious -- the employer apparently failed to adjust performance requirements to account for FMLA-qualifying leave -- it further appears that the employer failed to hire slow and fire fast. That is, if the employee was having performance issues pre-FMLA and not meeting numbers, then the employer should have acted on it quickly before that FMLA request was made. Because now it looks fishy. 

And the jury will be left to question the timing.

You may also enjoy this post from Jon Hyman at the Ohio Employer's Law Blog addressing whether asking an employee to take a psychological examination could create problems under the ADA.

August 23, 2012

GUEST POST: FMLA & ADA: Never the twain shall meet? (Part II)

guestblogger.jpgToday, Janette Levey Frisch is back as guest blogger to wrap up her two-part series on the interplay between the between the Americans with Disabilities Act and the Family and Medical Leave Act. (You can read Part One here).

Janette is In-House Counsel at Joule, Inc. where she provides comprehensive legal representation and support to a staffing company with five subsidiaries throughout the East Coast. You can connect with Janette on Twitter here and on LinkedIn here.

Click through to read more about how the FMLA and ADA may cross paths in your workplace....

(And if this awesome two-part series inspires you to want to guest blog at The Employer Handbook? Email me.)

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