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.

May 4, 2012

That's what she said: A hairy religious discrimination claim is settled

If only I had a nickel for every time someone asked me, "How do you have time to blog every day?" The answer is simple: Jolt Cola Juleps and rogue Keebler Elves I just enjoy writing. But even so, it can get tiring sometimes.

I was discussing this with a few HR blogger friends over dinner a few Fridays ago. They empathized. And then, I smiled, as whatever the opposite of writer's block is overtook me faster than a fat kid at a cake buffet:

I'll just do a post called "That's what she said."

Boom! Plagiarism! Double entendre + less work for me = one happy blogger dork.

I've struck gold...after the jump...

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Continue reading "That's what she said: A hairy religious discrimination claim is settled" »

May 3, 2012

No FMLA claim for employee who mistakenly thought he was fired

Thumbnail image for fmla.jpegStop me if you've heard this one before...

    • Employee gets bad performance review.
    • Employee laments to HR about the pressures of work.
    • Employee emails a company vice president requesting that he stop propagating company "propaganda".
    • Employee accuses another employee of "dismantling the Spanish Department"
    • Employee attempts to mass email the company.

Oh, it gets better..after the jump...

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Continue reading "No FMLA claim for employee who mistakenly thought he was fired" »

May 2, 2012

More office romances; more anti-harassment training

Thumbnail image for broom closet.jpgA recent survey by Workplace Options, shows that most Generation-Y employees believe that an office romance will have a positive influence on performance and overall workplace morale.

Sounds like a Cialis commercial. 

Who says I need to wait for Valentine's Day for this post? Losers, that's who. Lock the broom closets and click through for more on this survey and ways to address the office romance...

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Continue reading "More office romances; more anti-harassment training" »

May 1, 2012

New NLRB election rules may get derailed; plus more on SNOPA

Two quick updates for you today; one labor, one employment.

Word has trickled in that the U.S. District Court for the District of Columbia held a conference call with lawyers from the National Labor Relations Board, the U.S. Chamber of Commerce, and the Coalition for a Democratic Workplace, and informed them that the Court would rule by May 15 on a pending challenge to the NLRB "quickie" election rule changes. You can view those rule changes in this post I did last week.

And in case you missed yesterday's post on new federal legislation that would bar employer demands for online passwords, be sure to check it out. Late in the day, I scored a copy of the bill, known as Social Networking Online Protection Act (SNOPA), and added a link. We know now that employers that violate the law will be subject to civil fines of up to $10K. The Secretary of Labor may also seek injunctive relief. However, the federal law does not mention a private cause of action for individuals.

Unlike the legislation passed in MD, there is no safe-harbor that would allow an employer to require or request that an employee provide the employer with access to a social media account to investigate, for example, an allegation that the employee downloaded the employer's proprietary data without authorization.

Additionally, the federal legislation would also prohibit grade schools and universities from getting social-media login information from students.

April 30, 2012

New federal law will bar employer demands for online passwords #SNOPA

A few weeks ago, as reported here, Maryland became the first state to pass legislation that would ban employers from demanding that employees or job candidates turn over their social media passwords.

Could a federal law be soon to follow? Find out, after the jump...

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Continue reading "New federal law will bar employer demands for online passwords #SNOPA" »

April 27, 2012

The NLRB's blueprint for "quickie" union elections

"Blueprint"? Word. But, do you know how tough it is to find a blog-appropriate Jay-Z hit? Hmmm...let's try this one.

On Tuesday, the National Labor Relations Board's "quickie" election rules survived a Senate challenge. Next week, April 30 to be exact, they go into effect. Hey! Isn't that when the poster rules go into effect, too? Psyche!

Solitudephoto © 2011 Mortimer62 | more info (via: Wylio)In anticipation of April 30, employers will want to familiarize themselves with this memo from NLRB Acting General Counsel Lafe Solomon -- we are presenting at the same event today -- discussing the new representation case procedures. The guidance covers the entire representation case process from beginning to end, incorporating to the extent necessary the new rules and the procedures that remain unchanged.

And if you don't feel like plowing through a 24-page memo, the General Counsel's office also issued a set of Frequently Asked Questions explaining the Board's revised rules and the procedures.

Although the new "quickie" election rules do not set new, specific timeframes for conducting hearings or elections, it appears likely that the time from petition to election will decrease. So, now is the time to do something about possible unionization of your workforce so that, if a  Representation petition is filed, your business is prepared to respond.

April 26, 2012

5 takeaways from the EEOC's new guidance on use of criminal records

Thumbnail image for jail.jpg

Yesterday, the US Equal Employment Opportunity Commission issued updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. (Title VII is the federal statute that prohibits discrimination in the workplace based on race, color, religion, sex and national origin). You can read a full press release on the updated Enforcement Guidance here.

The press release includes a link to questions and answers about the EEOC's Enforcement Guidance. However, I will summarize the most important points for employers after the jump...

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Continue reading "5 takeaways from the EEOC's new guidance on use of criminal records" »

April 25, 2012

NLRB "quickie" election rule survives a Senate challenge

Foucault PendulumLast week was not so good for the National Labor Relations Board. The DC Circuit iced a Board rule that would have required most private-sector employers to post a notice in the workplace informing employees of their right to form a union.

Yesterday, however, the pendulum swung the other way and employers may soon be feeling the heat as we are now that much closer to expedited union elections.

Feel the heat? Iced a Board rule? Am I firing up a cool tune from Foreigner or Katy Perry after the jump? Guilty as charged. Plus, click through for details on how faster union elections may soon be coming to your workplace, and possibly another unwelcome surprise (hint: four letters, sounds like EFCA)...

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Continue reading "NLRB "quickie" election rule survives a Senate challenge" »

April 24, 2012

Failure to provide timely COBRA notice, retaliation? No, Sensei!!!

cobrakai.jpg Workplace retaliation was the last thing on the mind of Cobra Kai Sensei John Kreese when he told Johnny to sweep the leg

Similarly, workplace retaliation was likely the last thing on the mind of the defendant-employer, in Thompson v. Morris Heights Health Center, when it sent out a late COBRA notice to the plaintiff, a former employee that had filed a Charge of Discrimination with the EEOC. The court held that an employer is not liable for retaliation where the employee: (1) received the opportunity to enroll retroactive to the date the employee's health insurance ends, (2) turned down COBRA in favor of Social Security Disability benefits, and (3) did not seek subsequent employment.

And now that we have that clear...

What do we study here?
EMPLOYMENT LAW, SIR!
 And what is that way?
READ THE BLOG. EVERY DAY!
I can't hear you.
THE EMPLOYER HANDBOOK. EVERY DAY!

(h/t Liz Goldstein)

April 23, 2012

An HR primer on handling religious-accommodation requests

religion is an imperative statement.Do you know what to do if an employee comes into your office asking for a shift change or some other workplace accommodation because of a sincerely-held religious belief?

A short lesson from a recent federal-court decision and a few tips after the jump...

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Continue reading "An HR primer on handling religious-accommodation requests" »

April 20, 2012

Court holds mistaken discrimination is unmistakably illegal

catlion.jpg

The Americans with Disabilities Act explicitly forbids discrimination against those who are actually disabled or "regarded as" disabled. As a NJ court once recognized, "Distinguishing between actual handicaps and perceived handicaps makes no sense." Indeed, "prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be . . . non-existent."

Does the same maxim apply to workplace discrimination -- a barrage of anti-semitic comments -- directed at employee whom the harassers believe is Jewish, but really isn't?

Is that unlawful?

The answer from a NJ court after the jump...

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Continue reading "Court holds mistaken discrimination is unmistakably illegal" »

April 19, 2012

Even a voluntary demotion can lead to a retaliation claim

Hobson's Choice Victorian punchA maintenance mechanic in Illinois received 28 disciplinary-action forms from his supervisor. Ultimately, he was offered two choices: (1) accept a demotion to a non-mechanic position and take a significant pay cut; or (2) keep the position, fight the discipline, but face potential termination.

On the advice of his union representative, the mechanic took the demotion. He later sued for retaliation, claiming that the demotion, which he voluntarily accepted, was a direct response to a charge of discrimination he previously filed with the EEOC.

Is this retaliation? A federal circuit court gave us the answer yesterday. And I have it for you after the jump...

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Continue reading "Even a voluntary demotion can lead to a retaliation claim" »

April 18, 2012

The NLRB officially delays the mandatory union-poster rule

Remember my post from Monday? The one where I told you that two federal courts were at loggerheads over whether the NLRB could force private employers to post this notice in the workplace.

Well, about that. Eyes on me.

Two other men in black (and one woman in black) have officially changed the game. Dramatically. Click through for the details...

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Continue reading "The NLRB officially delays the mandatory union-poster rule" »

April 17, 2012

ADA potpourri, anyone?

Is this really what Teen Spirit smells like?Smells like patchouli. Or is that teen spirit?

Hey, it's been a long day.

Can an employer insist on regular attendance without violating the ADA? Maybe. says Robin Shea at the Employment and Labor Insider. And forget about indefinite leave as a reasonable accommodation under the New Jersey Law Against Discrimination says the NJ Superior Court Appellate Division. That won't fly under the Americans with Disabilities Act either says the United States District Court of the Western District of Virginia, Danville Division. But, you knew that already. Still, if you need information on Practices and Policies Related to Recruiting and Hiring Employees With Disabilities, SHRM has a new survey. Check it out.

Now, go pay your taxes. 

April 16, 2012

Do we need to post the NLRB poster? Just answer the question!

rights poster.pngI've beaten it to death on this blog.

The National Labor Relations Board created a rule that will require most private-sector employers to post this notice, in a conspicuous location, informing employees of their rights under the National Labor Relations Act, which includes the right to form a union.

Here's the latest...

In March, a DC federal court upheld the rule. On Friday, a federal court in South Carolina shot the rule down. Randy Johnson at Free Enterprise has more on that decision.

Post it? Or don't post it?

If you live is DC, you need to post the notice. And if you live in SC, you can trash it. But what about the rest of us?

Good question. IMH(non-legal-advice-giving-non-attorney-client-relationship-creating)O, I say that, until a court in your state gives the yay or nay, post it. (Although, I would not be surprised to see the NLRB delay the April 30, 2012 posting deadline again).

Put the poster up right next to the other laminated posters that your employees pass by every day and, likely, may have never read. And if you are really concerned about the message it sends, consider a second posting advising employees that while they have the right to unionize, there are many good reasons to remain union-free. Also, train your supervisors and managers about how to address employee questions about unionization, which is something you should be doing anyway.

Ultimately, if you don't give employees a reason to unionize, a 11" x 17" NLRB poster won't mean squat.