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.

April 6, 2012

Meyer(s) on Pending Employment Bills, Social Media, and Slides

On Employment Legislation:
Just when you thought you had the employment law landscape figured out, along comes pending legislation that could change everything. From age discrimination claims to workplace flexibility to unionization and labor organizing, new bills in the House and Senate may change the way you run your business. Here I am discussing all that jazz with Stephanie Thomas at the Proactive Employer.

On Social Media:
Last week, Jennifer King got my take on employers using social networks to check up on potential job candidates. Jennifer is an HR Analyst who writes about human resources systems for Software Advice, a company that compares and reviews HR software. She writes about trends, best practices, and technology in the HR market. Read the full article, "The Internet Persona: What Recruiters Want to Know About You", on her HR blog.

On Slides:
Last, but not least, it's Brooks Meyer starring in "That 70s Slide Show", featuring Ivy Meyer on the mat and yours truly in his directorial debut. Now, I'm only one SAG card and a few dozen credits behind my cousin.

April 5, 2012

Is a workplace "English-only" rule legal?

Geno's Steaks - Philadelphia, Pennsylvania 6

Unfair treatment because of one's language may be related to race or national origin discrimination. Indeed, language may be used as a covert basis for discrimination.

But that's not always so. A recent case and some helpful nuggets on English-only rules after the jump...

Continue reading "Is a workplace "English-only" rule legal? " »

April 4, 2012

Employment discrimination by the numbers: Foreign Edition

hollowglobe.jpgNow in autotune.

(Betcha didn't expect that).

Yesterday, we were rapping (without the benefit of autotune) about immigration status and unlawful discrimination and concluded that Title VII of the Civil Rights Act of 1964 does not prohibit workplace discrimination on the basis of immigration status (although national-original discrimination is unlawful). And we know from a super-hot "Fact or Fiction" post last year that Title VII covers Americans who are employed abroad. It was so hot.

Now, get ready for the hat trick, Gretzky.

Late last month, a federal court in Michigan recognized that foreign employees of a foreign employer should not be counted as employees for purposes of Title VII. Who cares, right? Well, you should. As you know from this post, you need 15 employees to be covered under Title VII. If ABC Company has 14 employees working at a US facility and 1 more employee, a Canadian resident, who works exclusively for ABC in Canada, ABC is not covered under Title VII.

This could also become an issue, as it did in the Michigan case, where an employer is right up against a statutory damages cap. Caps are placed on compensatory damages according to the size of the employer. The limits on damages are as follows:

15 to 100 employees: $50,000
101 to 200 employees: $100,000
201 to 500 employees: $200,000
501 employees or more: $300,000

Notwithstanding the foregoing -- or something legalese like that -- state laws covering workplace discrimination and damages caps may vary. So, mind your p's and q's. Or maybe you just shouldn't discriminate at all.

April 3, 2012

Are aliens protected from illegal workplace discrimination?

Led Zeppelin 2203730020I had this song in my head for about two hours on Sunday.

Then I listened to the Trent Reznor version, ick....

This blog post has a point, right? Oh yeah, discrimination. A little reminder from a recent Eight Circuit case, Guimaraes v. SuperValue, Inc., that when it comes to employees with green cards, discrimination under Title VII on the basis of national origin is illegal. However, Title VII discrimination based on citizenship or immigration status is not:

Guimaraes conflates citizenship or immigration status with national origin. Her green card process shows her intent to change her citizenship or immigration status by becoming a lawful permanent resident. True, a reasonable jury could find the "green card" statement evinces an intent to terminate Guimaraes because she is not yet a lawful permanent resident. The Supreme Court has held, however, that while aliens are protected from illegal discrimination under Title VII, nothing in Title VII makes it illegal to discriminate on the basis of citizenship or alienage.

Of course, employers that do discriminate on the basis of immigration status do so at their own risk -- like the risk of getting sued for national-origin discrimination.

Update: As adroitly noted in the comments below, the scope of this post is limited to Title VII. 

April 2, 2012

The risk of waiting to enforce arbitration agreements with employees

HourglassIt was just last month that I blogged about arbitration agreement tips for PA employers from the 3rd Circuit. I hate to leave NJ employers out of the loop, so today's post is for you.

Last week, the NJ Superior Court, Appellate Division, in Cole v. Jersey City Medical Center denied a company's attempt to enforce an arbitration provision in its employee contract because it waited too long to do so after being sued:

As a matter of litigation strategy, Liberty opted to participate in the suit brought in the Superior Court for a period of twenty months and did not raise the issue of arbitration until three days before the case was scheduled for trial. During this time, the parties completed their reciprocal discovery obligations and the case was ready for trial. This indicates a knowing and deliberate decision by Liberty to forgo raising arbitration as a forum to adjudicate plaintiff's claims. Under these circumstances, Liberty is equitably estopped from compelling plaintiff to submit her claims to arbitration.

NJ employers (and others too) must remember that if they get sued by an employee and they have arbitration agreements, whether in employee handbooks, employment agreements, or otherwise, don't delay in moving to compel arbitration. Otherwise, your fate may end up in the hands of the jury.

March 30, 2012

EEOC clarifies ADEA "reasonable factors other than age" defense

Thumbnail image for eeoclogo.pngYesterday, the U.S. Equal Employment Opportunity Commission (EEOC) issued its "Final Regulation on Disparate Impact and Reasonable Factors Other than Age" (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA).

Wait, wha, wha, what the heck is an RFOA?  (The Cliff Notes versions because, like, you could click on the link above, dudes.)

Can you tell it's been a long day as I punch out this post? Anyhoo, make with the jump, dawg...

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Continue reading "EEOC clarifies ADEA "reasonable factors other than age" defense" »

March 29, 2012

Fact or Fiction: FLSA preempts state wage and hour laws?

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" d/b/a (just for today) "Eric's 36th-Birthday Post"

*** Sigh ***

Ahh...let's get to today's question:

May an employee raise claims in federal court against an employer under both the Fair Labor Standards Act (federal) and a state wage and hour law? Or is the latter preempted by the former, such that an employee may only pursue FLSA claims?

The answer to today's question -- at least in the Third Circuit Court of Appeals -- comes to us from a decision rendered Tuesday in Knepper v. Rite Aid Corp. There, the court recognized that the FLSA "evinces a clear intent to preserve rather than supplant state law." Consequently, it held that state wage and hour laws such as the Maryland Wage and Hour Law and the Ohio Minimum Fair Wage Standards Act -- two laws that track the federal overtime requirements -- are not preempted by the FLSA.

The answer to today's QATQQ is FICTION.

March 28, 2012

6 keys to keeping unpaid internships from becoming a hot wage & hour mess

unpaidintern1.jpgYesterday, I presented "Reducing the Risk of Wage and Hour Litigation" with my partner, Jennifer Platzkere Snyder, at ALM's In-House Counsel Labor and Employment Law Forum. We talked best practices, common mistakes, and Supreme Court.

We also dipped into some hot issues, the hottest of which, by far, based on audience engagement, was unpaid internships. Oh boy, is it easy for companies to potentially screw up unpaid internships. Just ask Charlie Rose and Harper's Bazaar

Want to get 'em right without running afoul of the Fair Labor Standards Act. Six steps to success follow after the jump...

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Continue reading "6 keys to keeping unpaid internships from becoming a hot wage & hour mess" »

March 27, 2012

The Ambien alternative a/k/a NLRB FY11 operations statistics


The Acting General Counsel of the National Labor Relations Board recently released a 10-page summary of operations for FY 2011. But, you can find a short summary here.

Here are some stats that caught my attention (relatively speaking, of course):

  • In FY 2011, the Regional Offices issued 1,342 complaints as compared to 1,243 in FY 2010.

  • The Regional Offices recovered $60,514,922 on behalf of employees as backpay or reimbursement of fees, dues, and fines in FY 2011, compared to $86,557,684 in FY 2010.

  • In FY 2011, the median time to proceed to an election from the filing of a petition was 38 days, the same rate achieved in FY 2010, "and well below our target median of 42 days." (NLRB's words, not mine. And they want to "streamline" the election process because...)

March 26, 2012

Relax! Businesses don't want employee Facebook passwords.

Chicken LittleBut, if you think they do -- maybe you read this article last week -- then I have a bridge in Brooklyn to sell you, sucker.

Come on! The sky isn't falling. Demanding social media access from employees and potential hires and is most definitely the exception and not the rule. And I'll set the record straight on this bad business practice after the jump...

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Continue reading "Relax! Businesses don't want employee Facebook passwords." »

March 23, 2012

So, can a prevailing defendant really recover e-discovery costs?


Remember when I told you that a prevailing defendant could recover all electronic discovery costs? I lied.

Oh, let off some steam and stick around. Allow me to explain. Actually, I'll let Phil Miles at Lawffice Space explain:

Last Friday, the Third Circuit released a definitive opinion regarding taxation of e-discovery costs against losing litigants...Judge Vanaskie (who I'll note is pretty hip to technology issues) largely vacated an order awarding $360,000 in e-discovery costs to the defendant, slashing it by more than 90%.
. . .
Although there may be strong policy reasons in general, or compelling equitable circumstances in a particular case, to award the full cost of electronic discovery to the prevailing party, the federal courts lack the authority to do so, either generally or in particular cases, under the cost statute.

Ultimately, in Race Tires Am., Inc. v. Hoosier Racing Tire Corp., a copy of which you can find here, the court concluded that converting and scanning electronic files were recoverable costs, while collecting and preserving electronically stored information (ESI), processing and indexing ESI, and keyword searching of ESI for responsive and privileged documents was not. Hasta la vista, baby.

Oh, don't worry. I'll be back...on Monday.

March 22, 2012

Court allows plaintiff a quick peek into defendant's Facebook account

Thumbnail image for facelock.JPG

A state court judge in Pennsylvania has come up with a new way to afford litigants access to social media as part of discovery in a pending civil action. Daniel Cummins at Tort Talk has the details:

The Judge's page long Order does not provide the background on the case leading up to this Motion and Order, or why such discovery was pursued by the Plaintiff.

While the Court did grant the Plaintiff access to the Defendant's Facebook page and ordered the Defendant not to delete any info from the Facebook profile, the Defendant was granted permission to change his login name and password after seven (7) days following his compliance with the Court's Order.
Anyone desiring a copy of this Order may click here.

Not only did the judge create a new way for party-access to social media accounts, but did you notice that a plaintiff received access to the defendant's social-media account. Not that this is entirely that surprising. Indeed, any information (paper, electronic, even social media) that is likely to lead to the discovery of admissible evidence in a civil action may be fair game during discovery for either side.

In the employment context, corporate-litigants should be mindful that if you press hard for a former employee's social media goodies during employment-related litigation, the plaintiff may just fire back with a few social-media requests.

March 21, 2012

#SCOTUS clarifies scope of FMLA coverage for employers

Thumbnail image for Supreme Court.jpg

Yesterday, the U.S. Supreme Court in Coleman v. Court of Appeals of Md. held that state employees have no cause of action under the self-care provision (last bullet point in the hyperlink) of the Family and Medical Leave Act. In plain English, if you work for a State employer, and you need time off work for a serious health condition that leaves you unable to perform the essential functions of your job, the FMLA does not require that your employer give you any time off. 

Yesterday's SCOTUS opinion does not affect the FMLA rights of two classes of eligible employees:

  1. Employees of public agencies; and,

  2. Employees who work for private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year - including joint employers and successors of covered employers.

Also, the Court reaffirmed that states (and the other employers listed above) may still face FMLA liability for violating the family-care provisions of the FMLA (first three bullets in the hyperlink). The Court also did not discuss the right to take leave under the Americans with Disabilities Act or various state leave laws.

I'm pretty sure that this is my wife's least favorite song. No, indeed, I am certain.

March 20, 2012

Distinguishing state & federal disability-accommodation claims

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Let's say you operate a business in NJ. Your disabled employee comes to you requesting an accommodation for his disability. Does the mere failure to provide that accommodation trigger a claim under the New Jersey Law Against Discrimination (NJLAD)? What about under the Americans with Disabilities Act (ADA)?

I have two recent cases and two different answers -- depending on whether you are in state or federal court, plus some general accomodation tips for employers after the jump...

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Continue reading "Distinguishing state & federal disability-accommodation claims" »

March 19, 2012

4 new employment-law bills now pending in Congress


Below are summaries of four pieces of legislation of which employers should take note:

  1. Protecting Older Workers Against Discrimination Act. Senator Tom Harkin (IA-D) introduced this bill last week. It would overturn the U.S. Supreme Court's decision in Gross v. FBL Financial Services, Inc. and lower the burden of proof for employees to prove age discrimination claims.

  2. National Right to Work Act. Senator Jim DeMint (SC-R) has introduced this bill to "preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities."

  3. Working Families Flexibility Act. Late last month, Rep. Carolyn Maloney (NY-D) and Senator Robert Casey (PA-D) introduced this bill in both the House and Senate. In effect, it would create a statutory right for employees to request flexible work terms and conditions. Employers who receive such requests must then engage in an interactive dialogue with the employee.

  4. Keep Employees' Emails and Phones Secure Act. This bill from Rep. Sandy Adams (R-FL) would "prohibit the National Labor Relations Board from requiring that employers provide to the Board or to a labor organization the telephone number or email address of any employee."

Gun to my head, none of these bills pass. But, all are worth watching. And speaking of watching, in the spirit of this post, below is the "I'm Just a BIll" Schoolhouse Rock video. You can also find the Simpsons parody here.

Huge h/t to the Washington DC Employment Law Update for some of these goodies (not the video, just the bills).