Welcome to The Employer Handbook.
Extending the fifteen minutes of fame of a trash-talking blogger/teacher by a 300 word blog post.
After the jump...
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.
Welcome to The Employer Handbook.
Extending the fifteen minutes of fame of a trash-talking blogger/teacher by a 300 word blog post.
After the jump...
Because all the other blogs will say "paramour" or "lover" in the lede, and I need to remain relevant (or "down," if you will) with my more trendy readers.
Over the weekend, I read this case in which a male plaintiff alleged discrimination because his supervisor was allegedly schtupping a female subordinate and treating her better.
(The court said "voluntary romantic affiliation," but why say in three words, what you can say in one).
Specifically, the plaintiff alleged that, in exchange for putting out, his female co-worker received better job assignments, bonuses, and other working conditions.
[Tell that to Lana Del Rey. (Sigh!)]
Well, the fatal flaw in the plaintiff's argument, as the court pointed out, is that favoring one female subordinate over one man...and the rest of the workforce (both male and female), because the female subordinate is getting jiggy with it, may not be fair, but it's not discrimination either:
"Mr. Clark presented no evidence that Cache Valley treated women more favorably than men, and no circumstances giving rise to an inference of discrimination. Indeed, as the district court concluded, Mr. Clark merely provided evidence that Mr. Perschon extended preferential treatment to one female employee: Ms. Silver, a co-worker with whom Mr. Perschon allegedly was having an affair or some other form of "improper" relationship. Favoritism of a paramour is not gender discrimination."
So, while running a workplace where supervisors and direct reports engage in consensual romantic relationships may not be the gold standard (e.g., perception of unfair treatment during the relationship, and the fallout when/if the two break up), "preferential treatment on the basis of a consensual romantic relationship between a supervisor and an employee is not gender-based discrimination."
Neither is "friendship" or "cronyism."
In other words, go ahead and treat the jerks like jerks because they are jerks and don't worry about violating the law.
Just in case you thought that the United States Equal Employment Opportunity Commission uses a soft touch towards any business that may discriminate -- let alone a charity.
Earlier this week, the EEOC announced here that Goodwill Industries will pay $100,000 to settle a long-standing retaliation lawsuit.
In its lawsuit, the EEOC charged that Goodwill retaliated against a worker by firing her after she testified on behalf of another Goodwill employee in a previous federal sex and age discrimination lawsuit.
Ladies and Gentlemen: This EEOC does not mess around!
Back when I was a young aspiring blogger -- as opposed to the blog king I am now -- I asked my audience (here) for some feedback to improve this jawn.
Well, you gave it, I improved it, and I've been turning down multi-million dollar offers to sell this piece ever since.
I won't sell out -- yes, I will -- because I love you all and no one could handle The Employer Handbook with the grace and dignity it deserves.
***scratches butt ***
Could we use some find tuning?
Probably not. But, I'm sure you folks have some good ideas to improve the blog. Maybe TMI is an issue, I dunno.
So, holler at me in the comments below or via email.
Before law school was even on the radar for me, I knew that coitus on office furniture was a workplace no-no. And ignorance is not a defense.
But, maybe Seinfeld isn't a thing in Indiana.
You see, Connie Orton-Bell worked at a maximum security prison in Indiana. One day, she learned that night-shift employees were having sex on her desk.
The investigator who discovered the prison procreation, told Ms. Orton-Bell, "he was not concerned about night-shift staff having sex but suggested she should probably wash off her desk every morning."
(I recommend Endust. It's no-wax formula removes dust, soil and surface wax buildup).
The prison superintendent too learned of the nighttime nooky and said that, "as long as inmates were not involved, he was not concerned either."
And then there's Ms. Orton-Bell herself.
Immediately after the superintendent shared his thoughts on sexy-time in the slammer, he discovered that Orton-Bell was having an affair with the Major in charge of custody (which, ironically enough, allegedly involved sex on his desk).
And, for that, Ms. Orton-Bell lost her job.
Both she and the Major separately appealed their terminations because, apparently, the Indiana State Corrections System is bacchanalia, so, why should they lose their jobs?
*** give me a sec, my head is spinning ***
Well, the prison cut a deal with the Major. He testified against Orton-Bell and yadda, yadda, yadda, she sued alleging, among other things, a hostile work environment based primarily on the night shift constantly using her desk as a giant Petri-Dish experiment.
No sexual harassment because the desk sex wasn't based on...sex.
Now, I was ready to predict that the Seventh Circuit Court of Appeals would have denied the claim (in this opinion) by concluding that a reasonable person in Ms. Orton-Bell's shoes would not have been offended by the sex on a desk.
However, the court went in a different direction in dismissing Ms. Orton-Bell's hostile work environment claim; namely, the lack of evidence that Ms. Orton-Bell's gender caused the harassment:
The notion that night-shift staff had sex on her desk because she was a woman is pure speculation. The only evidence of any motive held by the night-shift staff (who have not been identified) for having sex on her desk is that her office had curtains and was in a lockable suite near the infirmary, but accessible with the master key that a night-shift lieutenant would have.
* * *
The conduct was certainly sexual intercourse on her desk, but that does not mean that night-shift staff had sexual intercourse on Orton-Bell's desk because she was of the female sex. There is no evidence to indicate that, had her conveniently private and secure, but accessible, office belonged to a man, it would not have been used in the same manner.
So, what can we take away from this post...other than our appetites?
- No sex on desks at work.
- No sex at work.
- No sex on desks. (Splinters)
UPDATE: It appears that I'm not the only blogger to put a tv-spin on this sex romp. So, for more on this case and, what I trust are far keener legal insights, check out Jon Hyman's post "Orange is the new sexual harassment"at the Ohio Employer's Law Blog.
Friends, it's hard-hitting Pulitzer-Prize commentary like this that won me the 2013 ABA Blawg 100 Amici for Labor and Employment. Hey, don't blame me. You voted for it, suckers. Just be sure to nominate this ridiculous blog for the ABA Blawg 100 Amici again.
My cold, black employment-law heart is numb to just about anything.
I remember this one time, early in my career, when I had to depose a teenage female plaintiff and ask her, with her mother present in the room, whether it offended her that her alleged male sexual harasser wanted to have a threesome with her and her mother.
Back then, it seemed salacious. Now, it's like, whatever. Most of this stuff just rolls off of my shoulders.
But I do have a soft spot for failure-to-accommodate cases under the Americans with Disabilities Act.
For, I get how hard it is for an employee to have to share with an employer -- let alone anyone -- that the employee has [insert name of disability]. It's a very vulnerable position.
Triggering a duty to accommodate.
The Americans with Disabilities Act tasks employers with providing reasonable accommodations to employees with disabilities to allow them to perform the essential functions of the job.
However, as hard as it for an employee to communicate to an employer that he/she has a disability, a recent federal court decision reminds us that merely communicating the existence of a disability is not enough to trigger an employer's duty to accommodate.
In Wallace v. Heartland Community College, the court noted that, while the plaintiff did make her employer aware that she had a disability which was causing her "stress and pain" at work, she failed to communicate how she wanted her employer to accommodate her disability.
And although "requests for accommodations need not be communicated through formal channels," and there may have been some semblance of a reasonable accommodation discussion, the court determined that the plaintiff was responsible for the breakdown of the interactive process that failed to result in identifying a reasonable accommodation.
Make it easier for employees to request accommodations.
The case provides a good lesson to employers and employees alike about the importance of open communication and cooperation in determining what accommodation(s), if any, will allow the employee to perform the essential functions of the job. Although the law may place the onus on the employee to advance the ball, at least initially, when discussing workplace accommodations, proactive employers should facilitate these discussions by educating employees, through policy and training, about the ways in which employees can make these requests.
According to a Friday report from Cynthia L. Hackerott at Wolters Kluwer, President Obama will sign an Executive Order today banning discrimination against LGBT employees by federal contractors.
Last month, I blogged here that the White House had announced that it intended to eventually ban LGBT discrimination by federal contractors through Executive Order because the Employment Non-Discrimination Act (ENDA), did not make it through Congress.
Since that time, several gay-rights groups withdrew their support for ENDA, fearing that it afforded "religiously affiliated organizations ... a blank check to engage in workplace discrimination against LGBT people."
Following the Supreme Court's Hobby Lobby decision, religious groups had pushed the White House to include a religious exemption in the President's Executive Order. However, Ms. Hackerott and Jennifer Bendery at The Huffington Post (here) confirm that today's Executive Order will not have a religious exemption.
What the Executive Order does.
The Executive Order will amend an existing Executive Order originally signed by President Lyndon Johnson, which bans discrimination by federal contractors against an enumerated list of protected classes. President Obama's amendment adds sexual orientation and gender identity to that list.
According to Ms. Bendery, this Order affects 24,000 companies employing roughly 28 million workers, or about one-fifth of the nation's workforce.
Some non-federal contractors may also be covered.
It's worth noting that many states and municipalities already protect LGBT employees from workplace discrimination, regardless of whether their employer's contract with the government. Most Fortune 500 and 100 companies already have internal rules banning LGBT discrimination.
Update: President Obama has signed the Order and the White House has published a fact sheet entitled "Taking Action to Support LGBT Workplace Equality is Good For Business".
"What if we put a provision in our employment application, by which a job applicant waives the two-year statute of limitations applicable to most workplace claims and shortens the period for such claims to six months?"
Would that be enforceable?
Well, since we're talking about New Jersey, which is pretty much the most employee-friendly state next to California, most experts would tell you to pour 'em a glass of whatever your drinking, because your idea is nuts.
Like spawn of Lindsay Lohan and Charlie Sheen cray-cray.
Tell those so-called experts to check themselves before they wreck themselves, because, late last month, the Superior Court of New Jersey, Appellate Division (in this opinion) said that an employment application provision shortening the statute of limitations could be binding, yo!
The Court emphasized that the provision in question was "contained in a two-page application and set forth very conspicuously in bold oversized print and capital lettering, just above the applicant's signature line. The terminology was clear and uncomplicated. Plaintiff was put under no pressure to complete and sign the application quickly."
And did I mention that English is the plaintiff's second language? Wow!
This is a MONSTER VICTORY (see what I did there?) for NJ employers. A statute of limitations shortener, maybe paired with a jury trial waiver, that's a pretty potent 1-2 punch to fend off workplace lawsuits.
Well that, and a respectful workplace, with training and such.
But, you get the idea.
Hey there, United States District Court for the Northern District of Illinois, Eastern Division.
This Americans with Disabilities Act failure-to-accomodate opinion right here. You had me at "Ortiz reported to work on April 5, 2010, carrying one empty and three full cans of 'Mike's Hard Lemonade' (an alcoholic beverage), along with raw meat."
I may borrow that line for my Hangover Part IV treatment. It stars Zach Galifianakis and the rest of the crew -- cameos by Pee Wee Herman, Octomom, and Peter Dinklage (as Tyrion Lannister) -- and centers around the hi-jinx that ensue after the boys get blackout drunk following Alan's nephew's bris.
(Three years later...)
And the Academy Award for best adapted screenplay goes to Eric Meyer.
"First of all, I'd like to thank God. I'd also like to thank the members of the Academy, my family, and the United States District Court for the Northern District of Illinois, Eastern Division. (applause) Step up your game, Western Division (laughter)..."
Yes, friends I
stole borrowed the plot from the Illinois federal court, which opined (here) that an employee who shows up to work smelling of alcohol and with a blood alcohol level of .198. (15 minutes later, the level was .203), can be fired without violating the Americans with Disabilities Act. Yes, it's true.
(The opinion; not my script idea, dummies).
It doesn't matter that alcoholism is an ADA disability (it is) or, for that matter, what other disabilities the plaintiff may have had. Reporting to work in possession and under the influence of alcohol not only renders that employee unqualified under the ADA, but is a terminable offense.
So, next time one of your employees shows up to work zooted, carrying a four-foot gravity bong and a medium rare chateaubriand, go ahead and fire that person. No ADA violation there.
And then call me. So, I can start working on my next script.
Image credit: GifWave.com
It's been a rough year for RadioShack. One that, for me, came out of nowhere.
So, of to a great start in February, I thought things were looking up for RadioShack. But, then they announced they were closing 1,100 stores and one analyst later cut RadioShack's stock price target to $0. ZERO!
And, then, last week, in this opinion, a Pennsylvania federal court delivered a swift kick to the RadioShack's you know what, when it held that RadioShack use of the "fluctuating workweek" method for calculating overtime violates the Pennsylvania Minimum Wage Act.
We've talked about the fluctuating workweek here before, in a post I trust maybe three of you read. Because wage-and-hour posts appeal to my readers about as much as Paula Deen likes kale and quinoa.
Maybe, now would be a good time to cue up the music.
For those who care -- hey, welcome back you three -- basically, the fluctuating workweek method of calculating overtime compensation allows an employer to pay a non-exempt employee a fixed, weekly salary, regardless of the number of hours worked. OT is then paid out at one-half times the regular rate of pay (rather than one and one-half times the regular rate, as is the default for payment of OT). The regular rate of pay is determined by dividing the fixed salary by the total number of hours worked in a workweek. This method of paying OT benefits the employer if employees generally work more than 40 hours per week (because the effective hourly rate is driven down).
But, unlike under federal law, the supporting regulations to the PMWA require that even if an employer reaches an agreement with its employees before work is performed as to a regular rate of pay, the employer must still pay OT at a "rate not less than 1 ½ times the rate established by the agreement."
Between the regulations two prior cases (this one and this one), which both held that the fluctuating workweek method of overtime calculation is impermissible under the PMWA, the Court concluded that RadioShack too had violated the PMWA by not paying out OT at one and one-half times the regular rate.
At this point, it's safe to say that PA employers who utilize the fluctuating workweek are just asking for trouble.
On the heels of yesterday's astounding blogging success, "What LeBron's return teaches employers about accommodating the Mark of the Beast" -- Pulitzer, please -- I was planning on coming at you today with "Five Workplace Lessons from Dutch Soccer's Third Place in the World Cup." It was going to have this cute Orange is the New Black theme, but then, the Twitterz spoke.
Raise your hand if one of the U.S. Equal Employment Opportunity Commissioners told you what to blog about today. Quit showing off, Dan Schwartz, put your hand down.
So, it looks like we'll be talking pregnancy discrimination today.
Yesterday, the U.S. Equal Employment Opportunity Commission issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, a FAQ and a Fact Sheet for Small Businesses.
A split in opinion among the EEOC Commissioners.
The final vote on the guidance was 3-2 in favor. You can read EEOC Commissioner Feldblum's on Approval of the Enforcement Guidance here. She praised the Commission's position in its Enforcement Guidance as "simple" and based "on a plain text reading of the PDA."
And then you've got Commissioner Lipnic's statement disapproving of the EEOC guidance here. In particular, Commissioner Lipnic questioned the timing of the guidance (right before the Supreme Court is set to rule on this case), and without first making the EEOC's Guidance available for public comment.
Commissioner Barker too criticized the EEOC Guidance here. In particular, she panned it not only for its timing, but also for requiring employers to provide the types of accommodations for pregnant employees that the Americans with Disabilities Act requires for disabled individuals.
(Commissioners: If you'd like to continue this debate, I have plenty of blog space available for you. It's not all Ramadan Bagel Parties and me contemplating ADA accommodations for female masturbation. Just sayin').
Five takeaways for employers.
As you all should know, the Pregnancy Discrimination Act, which is part of Title VII, makes it unlawful to discriminate in the workplace based on pregnancy, childbirth, or related medical conditions. The new EEOC Guidance, however, highlights a few issues of which employers should take particular note. Here are five of 'em:
- Not only is it unlawful to discriminate against an employee who is currently pregnant, but discrimination based on past pregnancy and a woman's potential to become pregnant also violates the law.
- You can't require a pregnant employee who is able to do her job to take leave -- even out of genuine care for the employee or the fetus. More on that here and here.
- Lactation is a pregnancy-related medical condition. Duh!
- Employers who provide health insurance benefits must also provide insurance that includes coverage of pregnancy, childbirth, or related medical conditions.
- Employers must offer light duty to pregnant employees if a light duty position is available.
The guidance also includes, well, guidance, on the interplay between pregnancy and the Americans with Disabilities Act and offers a list of employer best practices.And since we're on the subject, I'd be remiss if I didn't ask. If anyone out there is available to babysit my four kids this weekend so that the wife and I catch dinner and the late showing of Dawn of the Planet of the Apes (her choice), holler at me.
I'll save the "Five Workplace Lessons From LeBron James's Return to Cleveland" post for the other bloggers.
Here's one -- one which I guarantee you don't find anywhere else:
If during his time in Miami, LeBron James became a Fundamentalist Christian, and, upon filling out his new-employee paperwork with the Cleveland Cavaliers, refused to provide a social security number because it would cause him to have the "Mark of the Beast," the Cavaliers would not have to provide him with a religious accommodation.
You see, folks, to maintain a claim for religious discrimination, an employee must show, among other things, that his bona fide religious belief conflicts with an employment requirement. Assuming that LeBron's religious belief is bona fide, according to this recent Ohio federal court decision it does not conflict with an employment requirement. Indeed, the IRS requires that employees provide a social security number. So, it's a government requirement, not an employer requirement.
In which case, the Cavs can just cut LeBron.
And speaking of beastmode, this may be a good time to alert you that ABA Journal has opened nominations for the 2014 Blawg 100 Amici, its list of the top 100 law blogs in the country. Last year, y'all came through big time!
If you'd like to nominate this blog again in 2014, you can do so here.
Image Credit: CaringMerryKouprey on gfycat.com
Call it a cheap way to increase my SEO -- Kim Kardashian Justin Bieber love child -- but I'm ending the week the way I started it: with another social media post.
Come you moths to my social media flame.
Ha Ha! Made you listen to The Bangles! Good luck getting that song out of your head. Maybe this will help. #Sike
So, while you curse me for planting kitschy 80's ballads in your head, check out the top ten social media red flags (according to a CareerBuilder survey) why companies are passing on job candidates:
- 46% Posted provocative or inappropriate photographs or information
- 41% Posted information about them drinking or using drugs
- 36% Bad-mouthed their previous company or fellow employee
- 32% Poor communication skills **Meyer curses survey**
- 28% Discriminatory comments
- 25% Lied about qualifications
- 24% Shared confidential information from previous employers
- 22% Linked to criminal behavior
- 21% Screen name was unprofessional
- 13% Lied about an absence
Among the worst social media content that employers had identified as candidate disqualifiers: (1) A social media profile included links to an escort service; (2) Posting a photo of one's own arrest warrant (although a sexy mugshot has been known to lead to a modeling contract); (3) Candidate had sued his wife for shooting him in the head.
But all is not lost for us social media dorks -- holla if you hear me! Survey says: social media can help separate you from the pack (in a good way, as opposed to a shot-in-the-head way) too. Among the common reasons employers hired a candidate based on their social networking presence are:
- 46% Got a good feel for the job candidate's personality, could see a good fit within the company culture
- 45% Background information supported their professional qualifications for the job
- 43% Job candidate's site conveyed a professional image
- 40% Well-rounded, showed a wide range of interests
- 40% Had great communication skills
- 36% Job candidate was creative
- 31% Received awards and accolades
- 30% Other people posted great references about the job candidate
- 24% Job candidate had interacted with my company's social media accounts
- 14% Job candidate had a large amount of followers or subscribers
Well, now I'm not sure if it's the "site conveyed a professional image" personal validation ** fart ** or the lingering sugar high from yesterday's Fluffernutter gorging, but I'm going to extend a final opportunity to snag a copy of my slide deck from my SHRM presentation, "Social Media: Practical Guidance from the Youngest Attorney in the Room."
Send me an email, and the PowerPoint is yours.
Image credit: Imgur
(And, by third, I mean eighth).
Or dip my English toe into the Breaking Amish pool.
So, in an attempt to get in the mood, I tried to bake a shoofly pie, but, short on blackstap molasses and a replacement plug for my Easy Bake Oven, I quickly audibled to a Fluffernutter.
Because nothing speaks to me to resolve a Wednesday night Amish television dilemma like a Fluffernutter, amirite?
But, two -- ok, two-and-a-half -- Fluffernutters later, I had a hankering to blog about the Supreme Court's employment-law docket for next session, which includes a pregnancy discrimination case, involving the manner in which an employer would have to accommodate a pregnant employee.
But, then, my peanut-buttery-marshmallow focus honed in on this recent decision from United States District Court for the Southern District of New York. It involves an employee who returned from maternity leave and, shortly thereafter, applied for a job promotion, only to be bypassed for another candidate. So, she quit and sued for pregnancy discrimination.
Now, the Pregnancy Discrimination Act prohibits discrimination based on pregnancy. It also protects those who have recently given birth...up to a point. That is, a new mom is protected too. But, the passage of time will eventually carry a new mom outside of the protection of the Pregnancy Discrimination Act.
How long you ask? Well, according to the court deciding the employer's motion to dismiss, about four months, which, ironically, is the time it would take me to master the art of baking shoofly pie.
In denying the motion to dismiss and allowing the bypassed plaintiff to continue to pursue her pregnancy discrimination claim, the court measured the time period from the date of childbirth to the date the plaintiff first applied for the promotion, which was under four months. (Rather than when the employer hired someone else to fill the position, which was beyond four months).
So, employers, learn from the mistake made here and do it right:
wait four months and a day before taking adverse employment actions against new moms, don't allow pregnancy (or recent childbirth) to factor, at all, into your employment decisions. Make sure that your managers, the ones making the decisions, understand that as well. And don't forget about sex-plus discrimination either.
Hey, how'd that last song get in there? Someone call my music editor!
Image credit: Giphy
Work with me here folks:
- Late last month, I had intended to blog about this Idaho case, in which a nurse was denied unemployment compensation benefits because of a threatening Facebook post. But, Molly DiBianca at the Delaware Employment Law Blog beat me to it. You can check out her post here.
- Speaking of Idaho, that's right next to Montana, where you'll find the City of Bozeman. Ah yes, the City of Bozeman, the poster child for why states have enacted laws protecting employees from having to disclose social media logins and passwords. And the latest state to do so is Rhode Island. You -- yeah, you there in Providence -- can view a copy of the new law here.
- This flood of social media privacy laws was just one of the topics I discussed at my SHRM Annual session a few weeks ago. Last chance to get a copy of my slide deck. Just email me for it.
- Another subject we discussed was how to draft a "bulletproof" social media policy. Well, here's a post from Jason Shinn at the Michigan Employment Law Advisor about -- are you sitting down? -- an NLRB Administrative Law judge who broke tradition of throwing shade at social media policies long enough to actually bless one.
- What about your social media policy? Yeah, you! Does your policy address social media use "off the clock?" It should, because employee use of social media "off the clock" may still impact your workplace.
- And, finally, if you are curious about what the Americans with Disabilities Act says about employee medical information and social media -- who isn't? -- then check out Jon Hyman's post at The Ohio Employer's Blog.
Kevin Bacon, who I trust is reading this post, would be proud.
Image Credit: QualifyGifs on Imgur