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.

August 14, 2012

The 3rd Circuit's new FLSA joint-employment test...in HAIKU

bonsai_treephoto © 2007 Zest-pk | more info (via: Wylio)I just re-read yesterday's blog drivel. What the hell was that?!? As much as I do love the two great tastes that taste great together, that was an utter FAIL and I vow never to incorporate Reese's Peanut Butter Cups into a blog post again. Unless, of course: (a) a makeshift Peanut Butter Cup bra is prominently featured in a reported sexual harassment case; or (b) Hershey's wants to discuss some strategic product placement on The Employer Handbook. What can I say? YOLO and even this blogger has his price.

[Editor's note: I was determined to work YOLO into this blog post. Be nice. Although, my blogging chops are generally sharp, I'm about three months behind on the lingo.]

Focus, Eric. Short blog post. You can handle haiku

Arrgh! I cannot believe that Haiku-themed blog post, 17 syllables, would require readers to click through past the jump. Ah, whatever. Click through and someone call my editor...

Continue reading "The 3rd Circuit's new FLSA joint-employment test...in HAIKU" »

August 13, 2012

Peanut butter cups for everyone! Thank you, Third Circuit!

Reese's!After seeing Fatboy Slim perform in a bubble at the Olympics Closing Ceremony, I had trouble falling asleep last night. 

I tossed. I turned. But, I eventually drifted off into a deep sleep; a wonderful slumber. I dreamt that the Third Circuit Court of Appeals decided two cases under the Fair Labor Standards Act (FLSA), and then I blogged about them in a single blog post. Like peanut butter and chocolate, it was the Reese's Peanut Butter Cup of blog posts.

What a sweet, decadent dream. Or was it a dream? Find out after the jump... 

[Hint: no dream, no chocolate, just two FLSA decisions (one of which I'll blog about tomorrow, because I ramble a bit after the jump, much like I'm droning on now). Maybe this is all just an excuse to play Katy Perry. Yeah, this all makes sense. About as much as having Russell Brand sing "I am the Walrus" from on top of a psychedelic VW bus in front of a worldwide audience of millions. Just jump.]

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Continue reading "Peanut butter cups for everyone! Thank you, Third Circuit!" »

August 10, 2012

There are employee perks. And then there are Google-employee perks...

google.jpg

Yesterday, I came across this article from Meghan Casserly on Forbes.com, which discusses the benefits that Google provides its employees and their families. One of my favorite bloggers in the HR/employment-law space, Mark Toth, lives by the mantra that companies that really love their employees are the best places to work. Well, then, look out Disney World, because Google must be the happiest place on earth!!!

Find out just how great it is after the jump...

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Continue reading "There are employee perks. And then there are Google-employee perks..." »

August 9, 2012

Appeals court revives disability bias claims of one-handed bus driver

Weird School BusTammy Rosebrough was born without a left hand. In September 2007, she applied for a cook position at Buckeye Valley North High School. However, due to a shortage of bus drivers, the school encouraged Rosebrough to become a bus driver. Rosebrough accepted.

Rosebrough claimed that, during her training, her trainer made discriminatory comments to her about her disability on two separate occasions. Rosebrough reported the comments and was informed that her concerns would be addressed.

Later, during her training, Rosebrough was informed that she would need a commerical driver's license (CDL). She scheduled a CDL test with the State, but later cancelled when her trainer was unavailable to take her to the test. Over the next several months, Rosebrough contacted several other testing centers and school districts but learned she could only be trained by the school district that ultimately hired her. Rosebrough never contacted Buckeye Valley again to return and finish her training.

On March 11, 2009, Rosebrough filed suit against Buckeye Valley asserting violations of the Americans with Disabilities Act. The lower court granted summary judgment to Buckeye Valley when it concluded that Rosebrough was not qualified to perform her job. Specifically, the court opined that Rosebrough was not qualified because she failed to obtain her CDL.

The Sixth Circuit Court of Appeals, in this decision, reversed. It reasoned that Rosebrough was not hired as a bus driver, but rather as a "bus driver trainee." And, the ADA covers discrimination in job training. Further, as Buckeye Valley conceded that Rosebrough "was qualified to be a 'trainee,' was in fact a 'trainee,' and was given the training," having a CDL was not necessary for Rosebrough to perform the essential functions of her training position. Therefore, Rosebrough was qualified to perform the essential functions of her job. 

The Sixth Circuit remanded the case to the lower court to consider the other elements of Rosebrough's ADA claim.

August 8, 2012

What do Ravishing Rick Rude and sex discrimination have in common?

trashdumpster.jpegA federal court described Charles "Chuck" Wolfe, a crew superintendent in of an all-male construction crew, as a "world-class trash talker" and a "master of vulgarity." One of the members of Wolfe's crew was Kerry Woods, a straight male. Woods claimed that his supervisor, Wolfe another straight man, had engaged in unlawful "same sex" harassment, in violation of Title VII of the Civil Rights Act of 1964, by referring to him in "raw homophobic epithets and lewd gestures."

A jury heard Woods's claims and awarded him nearly $500,000. The Fifth Circuit Court of Appeals heard the employer's appeal, threw out the jury award, and dismissed the complaint (in this opinion).

Why? Find out after the jump...

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Continue reading "What do Ravishing Rick Rude and sex discrimination have in common?" »

August 7, 2012

Facebooking about "naked Twister" may doom one's sexual harassment claims

TwisterAnd some of you wonder why I enjoy blogging about HR and employment law.

More after the jump...

(What I won't do for my loyal readers....)

Continue reading "Facebooking about "naked Twister" may doom one's sexual harassment claims" »

August 6, 2012

Can the words "Emergency Room" trigger an FMLA request?

Thumbnail image for fmla.jpegAs you know from this post, an employee who wants leave from work under the Family and Medical Leave Act (FMLA), does not need to use the word, "FMLA." Instead, the employee need only provide enough information for the employer to understand that the employee needs FMLA leave.

So what about the words, "Emergency Room"? That is, if an employee calls her supervisor and says:

"I am currently in the emergency room. My mother has been brought into the hospital via ambulance, and I am unable to work today."

Can that trigger an FMLA request? Find out after the jump...

Continue reading "Can the words "Emergency Room" trigger an FMLA request?" »

August 3, 2012

413,000 reasons for HR to avoid inconsistent employee discipline

Thumbnail image for fmla.jpegInconsistent discipline is bad. But, when an employee's request for leave under the Family and Medical Leave Act precedes the inconsistent discipline by only 48 hours,  damn, that's not just a lawsuit, that's jury-verdict material.

The details on this bloodbath and a few lessons for my employer-readers after the jump...

Continue reading "413,000 reasons for HR to avoid inconsistent employee discipline" »

August 2, 2012

Snoop Dog becomes Snoop Lion! And news of a new employee Facebook law

Snoop DogCalvin Broadus a/k/a Snoop Dogg is now the artist formerly known as Snoop Dogg. During a recent trip to Jamaica, Snoop was apparently *** afraid to add snarky strikethrough for fear of losing job ***  "born again" and is now Snoop Lion. 

But in even BIGGER news --

Drop it like it's hot!

Yesterday, Illinois became the second state, after Maryland, to make it unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information to gain access to an online account. 

Fo' shizzle!

Under Illinois' "Right to Privacy in the Workplace Act," it is now also unlawful for an employer to require that an employee or prospective employee log into their online account so that the employer may gain access.

*** Searches for other Snoopisms -- finds nothing blog-appropriate ***

The Act does have a few carve-outs for employers. Employers may still maintain lawful workplace policies governing the use of the employer's electronic equipment, including policies regarding Internet use, social networking site use, and electronic mail use. And if employers want to monitor usage of the employer's electronic equipment and the employer's electronic mail without requesting passwords, then by all means.

No word from Snoop Lion if he approves of Illinois' new law. But, like you, he is welcome to sound off in the comments below.

*** Sets blog-comments-spam-filter to "volcano" ***

August 1, 2012

A scary NLRB decision threatening the integrity of workplace investigations

nlrb.jpgHR heads are still spinning as they try to digest what the National Labor Relations Board has tried to accomplish this year.

The Acting General Counsel has issued confusing reports on social media. The Board has also attempted to create quickie union elections, and require companies to abide by a union-poster rule. Why, just a few weeks ago, the Board ruled that an "at will" provision in an employee handbook may violate the National Labor Relations Act. That one is still a head-scratcher for me.

But the National Labor Relations Board has really stepped in it again, dealing another crushing blow to HR. I think you'll agree with me when you read on after the jump...

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Continue reading "A scary NLRB decision threatening the integrity of workplace investigations" »

July 31, 2012

"An employee walks into a hospital wearing a Jesus lanyard..."

jesuslanyard.pngThey can't all begin with a priest, minister and a rabbi walking into a bar. Then again, it's "Religious Accommodation Tuesday" here at The Employer Handbook. So, after the jump, we'll discuss the test to determine whether an employee may lawfully don religious items at work and find out whether the hospital worker in this case has a potential religious discrimination claim (Hint: he does).

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Continue reading ""An employee walks into a hospital wearing a Jesus lanyard..."" »

July 30, 2012

HR Manager emails bolster employee's ADEA and FMLA claims

Gun Smoke Red Documentation is good; smoking-gun emails from the HR Manager not so much.

After the jump, I've got a few doozies which now have a financial institution going to trial on a former employee's age-discrimination and Family and Medical Leave Act claims.

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Continue reading "HR Manager emails bolster employee's ADEA and FMLA claims" »

July 27, 2012

Big changes coming to the Mine Safety and Health Act?

Coal Miners MemorialYesterday, Sen. Jay Rockefeller (D-W.Va.) reintroduced, for a third time, the "Robert C. Byrd Mine and Workplace Safety and Health Act," which would amend the Mine Safety and Health Act.

What does this bill say (CliffsNotes version)? And what are the chances of passage? Find out after the jump...

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Continue reading "Big changes coming to the Mine Safety and Health Act?" »

July 26, 2012

Egyptian-born FBI agent + post-9/11 transfer = discrimination claim

I am an F....B.....I.... Agent! 

And if anyone wants to get me this iPad case for Christmas...

Wait, what was I supposed to be writing about? Oh yeah, national-origin discrimination. I'll get it together for you after the jump...

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Continue reading "Egyptian-born FBI agent + post-9/11 transfer = discrimination claim" »

July 25, 2012

Fact or Fiction: The ADA requires creating a new job for a disabled employee

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 the Americans with Disabilities Act, an employer is required to provide a reasonable accommodation, if doing so will allow a disabled employee to perform the essential functions of his job. Could this mean having to create a brand new position for a disabled employee?

Nope. A federal appellate court underscored this last week (opinion here) when if affirmed a lower-court decision to dismiss a plaintiff's claims under the ADA that his former employer had failed to accommodate his disability:

Otto also enumerates several accommodations that he says the City should have provided so that he could perform the job. He suggests that the City could have limited his job to sedentary duties, offered him a part-time job as an ice-hockey rink attendant, or assigned other employees in the Department of Public Works to assist him in carrying out his job. These proposed accommodations are not reasonable. The ADA does not require an employer to create a new position or to eliminate or reallocate essential job functions in accommodating an employee with a disability.

Consequently, the answer to today's QATQQ is FICTION.