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.

June 18, 2012

HELP WANTED: Born-again Christians need only apply

Born Again

I'm a firm believer that discussing religion (or politics) at work is a recipe for disaster. On this blog; however, if it's employment-related, then that's how we roll...

And, after the jump, we roll into Oklahoma and discuss whether it's ok for a lighting company to require that it's employees be born-again Christians. (Hint: It's not ok).

(If you'd rather read about the Oklahoma City Thunder and the NBA Finals, I understand).

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Continue reading "HELP WANTED: Born-again Christians need only apply" »

June 15, 2012

Your state's family-leave benefits probably suck!

Family FunechaThat according to a a new survey from The National Partnership for Women & Families.

The survey compared how state-based rights and protections compare to the 12 weeks of leave for new and expecting parents provided by the federal Family and Medical Leave Act (FMLA), the protections provided by the Pregnancy Discrimination Act (PDA), and the right to express breast milk at work provided to some nursing mothers under the Fair Labor Standards Act (FLSA).

The report card covers all 50 states, plus the District of Columbia. No state earned an A. Only 1/3 scored a C- or higher, while more than 1/3 flat-out failed. The highest grades went to California and Connecticut, each earning an A-. Locally, New Jersey ranked near the top with a B+, while Pennsylvania scraped by with a D.

(h/t Christian Schappel)

June 14, 2012

Fact or Fiction: Disabilities under the ADAAA cannot be episodic

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."

So, let's get right to it. In Pearce-Mato v. Shinseki, decided earlier this week, a Pennsylvania federal court reminded us that episodic impairments may, indeed, be disabilities under the Americans with Disabilities Act Amendments Act:

The fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity ...  An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

So, the answer to today's question is fiction.

And here's a bonus tip from the same case: a disabled employee does not need to request a reasonable accommodation in writing. Rather, as previously noted in this case, to request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation." The notice merely "must make clear that the employee wants assistance for his or her disability. In other words, the employer must know of both the disability and the employee's desire for accommodation for that disability."


June 13, 2012

4 pending bills that could change the NJ employment landscape

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One of my favorite reads on NJ employment law is Ogletree Deakins's New Jersey eAuthority. The June 2012 issue highlights several pieces of legislation now pending in NJ of which employers should take note. I've summarized four of them after the jump...

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Continue reading "4 pending bills that could change the NJ employment landscape" »

June 11, 2012

Employer's failure to investigate harassment creates retaliation claim

illustration_view-people-magnifierIf an employee complains that her supervisor is sexting her, making unwelcome physical contact, and telling her that she can get a better work schedule in exchange for "small favors," you better damn well investigate that!

Ignore it and you risk losing a valuable defense to sexual harassment claim. This is because, generally, to avoid liability for sexual harassment, an employer must demonstrate that it undertook reasonable care to prevent and promptly correct harassment.

But the failure to investigate could cost an employer even more. Like a dead-to-rights retaliation claim too.

Really? Retaliation too? Yes. I'll explain after the jump...

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Continue reading "Employer's failure to investigate harassment creates retaliation claim" »

June 8, 2012

The teacher who blogged about her "dunderhead" students is back!

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And she's making news again...

It's been nine long months since I blogged about a favorite of The Employer Handbook: Natalie Munroe. You can read about her here, here, here, and here.

She is the PA teacher who, on her blog, described her students as argumentative f*cks who may engage in Columbine-style shootings. She got  suspended, but was later reinstated, and taught during this school year.

Well, it appears now that Ms. Munroe may not be teaching for much longer -- at least not for her present employer. Christina Kristofic of The Intelligencer reports here that the school board could vote before the end of this month to fire Ms. Munroe. Her lawyer (remember, he's my stepbrother), however, smells a rat. He claims that the district is violating Munroe's constitutional free speech rights. Whether that holds true remains to be seen...

What continues to amaze me is the polarizing response to Ms. Munroe. Scroll to the bottom of Ms. Kristofic's story and click on "Phillyburbs Comments". You'll see responses ranging from: "She deserves to be fired. She has no features that make her a good teacher. Her 'entitled attitude' is written all of her smug face. The free ride is over..." to "Instead of attacking a truthful educator, why not decipline [sic] the kids as they should be. The parents are clearly at fault in this case."

Is it ok for a teacher to be this critical of her students online? What if it were your employee going off on your customers? What do you think? Sound off in the comments below...

June 7, 2012

Do employees have protected privacy rights in Facebook postings?

Spy vs Sci 558John and Mary are co-workers. They are also Facebook friends. And both John and Mary have adjusted their respective Facebook privacy settings such that only Facebook friends can view what they post online from their individual accounts. Consequently, John and Mary can view each other's Facebook posts, but Sam the Supervisor, who is also on Facebook, cannot. Neither John nor Mary are Facebook friends with Sam.

ABC Company, John and Mary's employer, wants access to Mary's Facebook account. On behalf of ABC, Sam demands that John login to his Facebook account on a work computer and then allow Sam to shoulder surf as John views Mary's Facebook postings. Fearing for his job, John relents.

Does Mary have a claim against ABC Company for invasion of privacy?

The answer follows after the jump...

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Continue reading "Do employees have protected privacy rights in Facebook postings?" »

June 6, 2012

Paycheck Fairness Act fails in the Senate, plus other news...

moneyBilled as a way to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, the Paycheck Fairness Act, did not make it out of the Senate yesterday. The Paycheck Fairness Act earned 52 votes in favor of proceeding to final consideration, eight votes shy of the 60 votes necessary for cloture. The vote came down strictly along party lines, with the two independent senators voting with the Democrats and Sen. Mark Kirk (R-Ill.) not voting. Senate Majority Leader Harry Reid (D-Nev.) changed his vote so that he could bring the bill up again.

In other news...

  • The Eleventh Circuit Court of appeals ruled on Monday that Title VII of the Civil Rights Act of 1964 permits claims for retaliatory hostile work environment. The decision brings the Eleventh Circuit in line with everyone else.

  • The EEOC is touting a rare summary judgment victory in a Title VII retaliation case. A federal judge ruled that an employer unlawfully retaliated against an employee for refusing to waive his rights to file a discrimination charge as a part of a "last chance agreement."

  • And here's a weird one, a woman in Florida is suing for unpaid OT. That's not so weird. What is; however, is that, although she appears on the payroll, no one remembers hiring her, and no one remembers her ever working for the business.

June 5, 2012

No flush, but two of a kind win in a workplace toilet dispute

toiletHey employers! You know what's stupid? My tongue-in-cheek pun on despicable workplace conditions. Depriving employees of bathroom privileges. Even dumber is firing them after they complain to state regulators about the lack of an onsite toilet. 

One company recently learned this lesson the hard way. Details after the jump...

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Continue reading "No flush, but two of a kind win in a workplace toilet dispute" »

June 4, 2012

The golden rule on forwarding emails at work

I'm with the Stupid network"An employee who emails pictures of Trayvon Martin's head cropped onto the body of a dead police officer is a thought-leading change agent." 

-- Absolutely nobody in HR

No, he gets fired.

According to this story from Chris Biele at FOX40 News in California, an employee in the state's Employment Development Department forwarded that picture with the message, "Would it make people feel any different if this face was on a dead pig?" And of course, the picture made it onto Facebook.

Just terrible.

Here's my simple golden rule on forwarding emails at work:

"If you would feel at all uncomfortable about having to explain from the witness stand to a federal judge or jury why you forwarded that email, it's best not to hit send."

June 1, 2012

That's what they said: "29 different ways to say 'I quit'"

theysaid.jpgYesterday, I came across this post at EmployerLINC, which reprints this news release from OfficeTeam, offering up the many ways that an employer can be told, "Screw you guys, I'm going home." (Donna Ballman, I owe you a nickel in royalties).

The reasons for quitting ranged from mere boredom to a desire to join the circus. One employee even quit to join a rock band.

Hey, I'd love to be a rock superstar. (Not really, but it's the only chance I'll get to play Cypress Hill on this blog...like ever.)

Have a nice weekend...

May 31, 2012

Want a labor-law-legal social media policy? Bookmark this, I guess.

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Yesterday, the National Labor Relations Board's Acting General Counsel Lafe Solomon issued a new report on social media cases brought to the agency, this time focusing exclusively on policies governing the use of social media by employees. It includes a copy of a social media policy that the NLRB found to be lawful.

However, the report, as a whole, left me shaking my head. Inconsistent, overreaching, it's a hot tepid mess. So, before you go all cut and paste on me from that sample policy, read my critical two cents after the jump...

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Continue reading "Want a labor-law-legal social media policy? Bookmark this, I guess." »

May 30, 2012

The ADA does not protect medical-marijuana use, but...

weedleaf.jpgAccording to a federal appellate court from California, a state that has embraced marijuana as an effective treatment for individuals who face debilitating pain, an employer may discriminate against an employee because of the employee's use of marijuana. This holds true whether the marijuana use is recreational or medicinal, because the Americans with Disabilities Act does not protect illegal drug use.

However, there are instances in which the ADA does protect medical-marijuana users. For example, an employee who uses medical marijuana to treat glaucoma may be discriminated against because of the employee's marijuana use, but not the glaucoma. Assuming that: (a) the glaucoma is a disability; (b) the employee can perform essential job functions with or without a reasonable accommodation; and (c) and the employer takes an adverse employment action against the employee because of the glaucoma, the employer has violated the ADA. 

For more on the CA case, check out Robin Shea's post at the Employment and Labor Insider. For more on the interplay between medical-marijuana use and state disability-discrimination laws, check out this post I did last year.

And rather than risk offending anyone with a drug-related tune -- Me? Offend my readers? Thursdays. Never. -- I'll play a song that surely ranks number one this week on the Brooks Meyer Countdown. My two-and-three-quarter-year-old readers will love it!

May 29, 2012

Federal legislation reintroduced to promote hiring veterans

iwojima.jpgTo improve the reinstatement rights of returning war veterans, and to add more enforcement teeth to the Uniform Services Employment and Reemployment Rights Act (USERRA), Pennsylvania Senator Robert Casey reintroduced the Servicemembers Access to Justice Act (SAJA) last week.

Details on SAJA and what it could mean for employers follow after the jump...

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Continue reading "Federal legislation reintroduced to promote hiring veterans" »

May 25, 2012

Fifth of vodka + whiskey + elevator shaft = no workers' comp

My Godfather...From the blog that previously brought you "Smoke pot + grizzly bear bite (in the butt) = collect workers' comp," comes the story of the boozing builder who, well, I'll let the Court of Appeals of Utah explain:

Mr. Wood was engaged in work activities on behalf of Karr during the morning and early afternoon of May 1, 2007. He began drinking alcohol at the work site at about 2 p.m. and continued until he had consumed a small bottle of whiskey and more than half a fifth of vodka. By 4 p.m. he had stopped performing any work duties for Karr and removed himself to a 1st floor closet where he slept for two hours. When he awoke, he made his way up to the 2nd floor but did not resume any work on behalf of Karr. He fell into the elevator shaft and suffered the injuries for which he now claims workers' compensation benefits.

Amazingly, the court was less than blown away by such arguments as:

  • an "intoxicated nap after drinking on the job did not constitute a departure from the course of his employment"; and

  • "even if he did leave the course of his employment during his nap, he returned to that course when he awoke and began moving around the job site."

Plus, the court disbelieved Wood, when he testified that he did not drink any alcohol on the day of his injury and fell down the elevator shaft while masking the trim around the second-floor shaft opening.

While the Marijuana-toking-grizzly-bear-snack Montanan collected workers' compensation, the court in Utah sobered up and denied benefits to the tripping tippler.

(h/t Christian Schappel @ HR Morning)