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 28, 2014

Plaintiff demands that a court order her alleged sexual harasser to photograph his penis for inspection

As an employment lawyer, part of my practice involves training employees and supervisors on employee handbooks. Most often, my training focuses on respect in the workplace.

During these sessions, I employ many techniques to discourage the workforce from engaging in behavior that could create a hostile work environment. Usually, I'll put it like this:

"If you would feel uncomfortable sitting in a witness box while having to explain your behavior to a federal jury, then it's not something that you should do in the workplace."

But, now, thanks to this recent decision from a federal judge in Washington, DC, I have a new one.

Think twice before sexting.

Laverne Battle alleged that Sergeant Kevin Pope, her direct supervisor at the Metropolitan Police Department, sexually harassed her. Specifically, Ms. Battle alleged that Sergeant Pope texted her a picture of his left hand holding his penis.

[Editor's Note: Bad. But, could've been worse]

Ms. Battle produced a grainy color copy of the photograph for the court's inspection, and sought to compel Sergeant Pope to produce a photograph of his left hand and penis for the purpose of comparison.

The defendant won't have to produce a penis pic...yet.

As to the left hand, the court granted Ms. Battle's motion and ordered Sergeant Pope to produce to Ms. Battle and allow the court to review a photograph of his left hand (including thumb and forefinger) held in a similar position as that in the photograph at issue.

As to Sergeant Pope's penis, the Court made him SnapChat it to Ms. Battle denied Ms. Battle's request that Sergeant Pope "pose" for "photo-documenting" by plaintiff's counsel. Ewww!

And the Court otherwise held off on requiring him to photo his penis. Something about "the requested photograph is alone dehumanizing and embarrassing, notwithstanding whether the photograph is ever presented to a jury."

However, the Court did not dismiss altogether the possibility of another penis photograph. It deferred ruling on Ms. Battle's motion to compel Sergeant Pope to produce a photograph of his penis until the Court was satisfied that there is no less intrusive alternative to requiring Sergeant Pope to produce a photograph of his penis.

So, what can we learn from this?

Well, I suppose that I'll have to modify my anti-harassment training deterrent to address both testifying from the witness stand and possibly having to produce a picture of your penis.

Or vagina.

We don't discriminate here.

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If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 25, 2014

I ran my mouth for an hour and six minutes about the FMLA/ADA interplay

tlnt.pngOnly the dorkiest of HR/Lawyers dorks could appreciate this webinar.

Here is the recording.

Here are the slides.

Happy dork day!

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Want to dork-out even further? If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 24, 2014

ALJ strikes social media policy disclaimer for work-related speech

policyhighlight.jpgHow many of you have social media policies, which contain a provision that reads something like this...

"If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: 'The postings on this site are my own and don't necessarily represent the positions, strategies or opinions of the Company.'"

Yeah, I write these disclaimers all the time for clients. Apparently, they're unlawful. 

Or so says, an administrative law judge in this recent opinion.

In what the ALJ considered to be a matter of first impression, he found that the provision above was overly broad and discouraged the rights of employees to discuss the terms and conditions of employment:

"The requirement that a disclaimer be posted by the employee every time he or she speaks on work related issues and is identifiable as an employee of the employer, is unduly burdensome, well beyond any legitimate interest of the employer, and will have a tendency to chill legitimate Section 7 speech by the burden it brings to it. The Respondent's rule impinges on Section 7 activity beyond any reasonable accommodation with any legitimate concern."

A matter of first impression, huh? 

I seem to recall the NLRB's own General Counsel blessing a social media -- heck, it was Wal-Mart's social media policy -- which had the same darn disclaimer language! You can view Wal-Mart's policy here (p. 23, last bullet).

But, the ALJ found this General Counsel guidance to be unpersuasive.

[In your face, Lafe Solomon!]

The ALJ reasoned that requiring this disclaimer for every online communication by an employee which concerns work-related information and as to which the employee is identifiable as an employee for the employer would be burdensome and overreaching.

Oh, I beg to differ. This doesn't seem overly broad or burdensome to me.

On many social media sites (e.g., Instagram, Pinterest, Twitter), an individual is unlikely to identify his/her employer. So, it's a non-issue. And, on other social networking platforms like Facebook or a work-related blog, where the individual may identify himself as an employee, is it so hard to put the required disclaimer somewhere on the site?

Even if this particular disclaimer is overreaching, surely, one could appreciate how a company wants to ensure that individuals reading online employee-speech about the company, don't mistake those words for the position of the company.

We'll see what happens if this case goes to the full Board on appeal.

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If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 23, 2014

Sixth Circuit redefines the "workplace" when considering attendance as an ADA essential job function

Thumbnail image for telecommute.jpgThese blogging fingers have had much to say about telecommuting as a reasonable accommodation under the Americans with Disabilities Act.

Now, if you'll excuse me, these blogging fingers are going to dunk broccoli into spinach dip.

Ok, I'm back.

Whether telecommuting is a reasonable accommodation was a business decision.

Most notably, last September, in this post, I addressed a case in Michigan in which the U.S. Equal Employment Opportunity Commission argued that Ford Motor Company should be required to accommodate an employee with irritable bowel syndrome (an ADA disability) by allowing her to telecommute several days per week.

Ford's managers concluded that the plaintiff could not work from home on a regular basis for up to four days a week. Choosing not to second-guess Ford's business judgment, federal court hearing the case granted summary judgment to Ford.

Now, the modern workplace is more than just the office.

Yesterday, the Sixth Circuit Court of Appeals reversed (opinion here).

Once again, Ford argued that attendance at work was an essential job function and, by telecommuting several days per week, the plaintiff could not meet that requirement.

The appellate court agreed that attendance may be an essential job function. However, the Sixth Circuit recognized that technology has extended the workplace beyond the office's brick and mortar, such that "attendance" may include telecommuting:

"When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer's brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the 'workplace' is anywhere that an employee can perform her job duties."

But, whether "physical" attendance at work is an essential job function is a "highly fact specific" question. It depends on factors such as the need for face-to-face interaction with customers and clients. And while the company's business judgment on these issues is important, it is not dispositive. Rather, if in reality, an employee can demonstrate that he/she can effectively perform her job while telecommuting, a court will give that assessment some weight.

So, what is an employer to do with this decision?

  1. Even though it only controls in the Sixth Circuit, the court's 21st century analysis of the workplace should appeal to other courts throughout the country. Therefore, I would expect that this commonsense view of how technology impacts the workplace will soon become the rule, rather than the exception. So, says the blogger.

  2. Reassess your job descriptions and determine whether a physical presence in the office is an essential job function. And, if you update the job description accordingly, make sure that it accurately reflects how job duties are actually best discharged. Get feedback your managers and employees.

  3. If you are going to allow some employees to telecommute, courts may assume that telecommuting would be a reasonable accommodation for other disabled employees. just be prepared for that.

I'll lay 2-1 that Jon Hyman will have a post on this case today at his blog. So, be sure to check that out.

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P.S. - You know what you should also do? If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 22, 2014

As of Sunday, Philadelphia businesses without this workplace poster are breaking the law

pregnancyposter.pngBack in February, I reported here about the new pregnancy-accommodation law that went into effect in Philadelphia.

The law requires local business to provide reasonable workplace accommodations for employees who have needs related to pregnancy, childbirth, or a related medical condition.

The law also requires Philly employers to post notice of the new law in the workplace.

Here is that poster.

And here is some random music that has nothing to do with pregnancy, but has been burning a hole in my Spotify queue.

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P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group

April 21, 2014

There is no right to be completely left alone while on FMLA leave

Thumbnail image for fmla.jpegOne of the questions I hear a lot from employers is: Can we communicate with employees on Family and Medical Leave Act leave and, if so, how much?

I'll get to that in a second.

#HelpShaneFightCancer

For the folks who missed my blog post on Friday, we're trying to raise some money for an eight-month-old baby with cancer. Please take a few minutes, read the post, donate if you can, and spread the word (hashtag #HelpShaneFightCancer). Thank you!

Now, back to the FMLA.

Over the weekend, I read this recent opinion from the Third Circuit Court of Appeals, which is right in my back yard. The case involved an employee who was informed that her job was being eliminated. However, her employer offered her another position within the company. The only catch was that she sign a non-competition agreement. The employee was given specific deadline in which to accept and sign. The alternative was termination with a severance.

Before the deadline, the employee suffered panic attacks, and the employer afforded her FMLA leave. But, after the employee commenced leave, the employer contacted the employee to reiterate the deadline to accept and sign.

This deadline came and went without the employee signing the non-compete. So, she was fired.

And then she sued for FMLA interference.

And she lost because I basically took the lede right from the Third Circuit's opinion:

"Passport imposed the requirement that O'Donnell sign the offer letter and the non-compete agreement before she took FMLA leave...Thus, O'Donnell knew that she needed to sign the forms well before she invoked her FMLA rights....As this Court has previously explained, 'there is no right in the FMLA to be left alone,' and be completely absolved of responding to the employer's discrete inquiries....There is no evidence showing that Passport in any way hampered or discouraged O'Donnell's exercise of her right to medical leave, or attempted to persuade her to return from her leave early.

Generally, you should be communicating with employees on FMLA leave. 

This is especially true where the employee is taking leave for his/her own serious health condition and that serious health condition could also be construed under the Americans with Disabilities Act as a disability.

Because once the ADA comes into the equation, an employer should have an interactive dialogue with the disabled employee. This open communication helps determine what reasonable accommodations(s) will allow the employee to perform the essential functions of his/her job. This could be additional leave after FMLA expires, or something else, such as light duty.

But, the only way you'll ascertain that is by communicating with your employee.

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P.S. - And speaking of communicating, if you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group

April 18, 2014

#HelpShaneFightCancer

BabyShane.png

This is going to be a tough one, folks.

Today, I'm setting aside workplace issues to focus on a little boy named Shane.

Shane was born on July 11, 2013. The youngest of three, by all accounts, Shane was a happy and healthy newborn. His parents are truly blessed and his siblings adore him. Now, Shane is eight months old. And, as you can tell from the picture, he's got a toothy grin that lights up a room. 

But, then came the news that no parent ever wants to hear: Shane has cancer.

I still have trouble reading those words: Shane has cancer. I remember reading them for the first time a few weeks ago when Shane's dad emailed me with the news. As a father of four young children, my heart immediately broke. I know what it's like to have a young child who is suffering through illness. But, one of my children with cancer would be unimaginable.

Just associating the word "cancer" -- even the most treatable forms -- with a son or daughter is nightmarish. So, you can imagine how Shane's mom and dad are living through hell; Baby Shane has been diagnosed with alveolar rhabdomyosarcoma. He now faces over 40 arduous weeks of chemotherapy to battle a form of cancer which kills 9 out of 10 children afflicted. 

With the deck clearly stacked against this little eight-month-old baby, Shane's family is grounded in hope and resilience:

"He's an 8 month old baby fighting stage 4 cancer. How does this happen? There are things in life that will never be explained. We have no idea why we were chosen, but we were. So, we must move forward and fight for baby Shane."

This kid is a fighter too. I'm told he crushed the 1st two chemo treatments. 

My money is on the cutie-pie underdog. 

 I don't know about you guys, but I like to back a winner. Sure, it's easy to bet on the favorite, but --- Shane, can you earmuff it for me? --- Fuck cancer! This horrific disease is no one's favorite.

And even though cancer may have the upper hand right now, none of us are focused on 90% mortality odds. All of us know that Shane is going to get through his chemotherapy like a champ. And we remain positive that he's going to beat this disease.

Indeed, I can't imagine a more satisfying payoff and sweeter ending.

Please help Shane fight cancer.

Yes, there is hope for Shane. And you can help. If you too would like to back a winner, consider making a donation for Shane, which you can do here

Your donations will cover any out-of-pocket expenses that insurance does not cover. Any leftover funds will go to the Children's Hospital of Pennsylvania's Oncology Department and to THON, Penn State University's childhood cancer fundraiser.

And, if you can't donate, please show your support by going to Shane's page and sharing his story on social media with the hashtag #HelpShaneFightCancer.

One day, we'll change that hashtag to #ShaneBeatCancer.

Thank you.

April 17, 2014

Employment Law Blog Carnival - Pick Your Holiday Edition

The third week of April ushers in several holidays: Passover, Good Friday, Easter.

But no matter what your religion or god -- even a sacrilicious ceiling waffle -- we can all agree that the Employment Law Blog Carnival, which you can find this month at Tim Eavenson's blog: Current Employment, is the workplace glory. 

This month, Tim has more posts about HR-compliance than you can count on your ten fingers. So raise your hands up to the sky and shout Hosanna! The power of the #ELBC compels you! 

Or, just forget my blasphemy and enjoy the carnival.

Whatever.

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P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. Almost as fun as a carnival. I'm still working on getting a Tilt-A-Whirl*

(*By Tilt-A-Whirl, I mean life.)

April 16, 2014

The ADA may require companies to accommodate employee theft. Yep, stealing.

Back in 2011, the U.S. Equal Employment Opportunity Commission sued Walgreens from disability discrimination. Specifically, the EEOC claimed that Josefina Hernandez, a cashier at Walgreens' South San Francisco store, who suffered from diabetes, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar).

The EEOC further alleged that Walgreens knew of Ms. Hernandez's disability and fired Ms. Hernandez after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty.

It's all here in the EEOC's September 2011 press release.

Now, fast forward to 2014, and a California federal court has just ruled in this opinion that the EEOC may be right. That is, Ms. Hernandez claim's of disability discrimination just survived summary judgment and is headed for trial.

In its defense, citing the EEOC's own guidance for employers, Walgreens claimed that it can never be a reasonable accommodation to require an employer to accommodate employee theft.

However, the Court refashioned the issue as whether an employer under the ADA is required to make a reasonable accommodation with respect to an employee whose disability caused that employee to violate a company's workplace rule. To which Walgreen said, well, yeah, other guidance from the EEOC supports our position too.

But the court wasn't buying it (pun, partially intended), deferring to a jury on whether Walgreens could treat Ms. Hernandez as it did other employees, or accommodate her misconduct:

"Under the Ninth Circuit case law, misconduct resulting from a disability has to be considered as part of Hernandez's disability and creates a question of fact as to whether Hernandez's disability was causally related to her termination. In other words, whether or not Hernandez's disability was, in fact, a cause of her misconduct is a question of fact for the jury. Similarly, whether Walgreens should have been required to 'accommodate' her stealing as a 'reasonable' accommodation is for the jury to determine."

Strangely, although the court concluded that "it is clear that Hernandez was fired because of her 'misconduct' in taking the chips without paying for them," it also underscored that "Walgreens has not established as a matter of law that Hernandez's conduct was 'stealing.'"

So which is it? Did she steal the chips or not? And how can an employer possibly be required to accommodate theft? Frankly, I can't make heads or tails out of this opinion.

What do you guys think? Let me know in the comments below...

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P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. It's all that and a bag of chips.*

(*But, you need to pay for the chips.)

April 15, 2014

What are employers doing about employees who do their taxes -- at work!?!

Today is tax day, or, as I like to call it, sonofa---!

Actually, I get a nice refund this year. I guess that's what happens when you have four kids under five. Which reminds me, I should ask, do any of you babysit? Because I have Verizon Fios and a jar of Marshmallow Fluff to sweeten the offer.

What? Where was I?

Oh yes, did you know that 30% of workers say that it is common to use company resources like the copier or printer to complete their personal income tax paperwork -- which they prepare during business hours.

That's from a survey quoted in this article from Jeff Blumenthal at Philadelphia Business Journal.

So what can employers do about this?

Wait, you're still here? I'll give you a hint. Go read Jeff's article.

(I'm quoted).

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P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. It's got to be better than the US Airways Social Media All-Stars Group, amirite?

April 14, 2014

This is one badass labor and employment law roundtable

Recently, several local lawyers and I participated in a labor and employment law roundtable for The Legal Intelligencer.

Actually, the table was rectangular. But, the coffee and muffins were free, so I didn't complain.

Well, not until I dropped my pants and mooned the employee-rights lawyers on the panel. Trust me, they had it coming. 

Actually, they were quite polite and articulate. So, fortunately, they edited my butt-cheeks out.

I'm a real peach.

What were we talking about again?

Right, the roundtable. We debated several topics:

  • background checks
  • social media in the workplace
  • employee leave issues
  • dating in the workplace
  • BYOD
  • my 28 inch blog pythons

Here is the transcript.

April 11, 2014

A 79-year-old teacher was fired for refusing to unfriend her students on Facebook

Thumbnail image for facebookprivacy.jpgA teacher getting in trouble for something having to do with Facebook?

You don't say...

The full story, plus another state has passed a social media workplace privacy law. I've got it all for you after the jump...

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Continue reading "A 79-year-old teacher was fired for refusing to unfriend her students on Facebook" »

April 10, 2014

What's hot at the EEOC? Plus, a legal roadmap for managing the aging workforce.

Thumbnail image for bagelcreamcheese.jpg

Whatcha doin' two weeks from today?

Want to grab some breakfast with me? Maybe hear about what's hot at the EEOC and get a legal roadmap for managing the aging workforce?

In you're in the Philadelphia area and would like to learn more about these topics, then come on down to our offices on Thursday, April 24 at 8:30 AM for a free presentation with a complimentary continental breakfast. Lawyers can get CLE. HR credits will also be offered.

The only bad news is that you'll have to hear me flap my gums for an hour about best practices to avoid becoming an EEOC target. And since I can't seem to blog my way out of a paper bag, you can imagine how (in)articulate I'll be. Fortunately, my co-presenter from the EEOC, Mary Tiernan, will rock thy world.

Plus, my Dilworth Paxson colleagues will school you on the legal issues of which you should be aware when dealing with your older employees.

If you are interested in attending, click here for more details and to RSVP.

Mention this blog and I'll get you an extra pat of butter to go with your continental breakfast.

After all, I take care of my VIPs.

April 9, 2014

Playing golf and having sex are major life activities under the ADA

golfhole.jpgWhen Congress enacted the Americans with Disabilities Act Amendment Act, which went into effect on January 1, 2009, it indicated that one of its purposes was to "convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis."

I vaguely recall some of the floor discussion in anticipation of the passage of the ADAAA:

"I yield to the Senator."

"Thank you, Senator. With all this discussion about amending the Americans with Disabilities Act to more broadly define the definition of disability, I wonder aloud whether we need to explicitly include playing golf and -- err -- making whoopie in that list of major life activities that includes with sleeping, walking, standing, lifting, and bending. I'm just sayin is all..."

(silence)

"Yeah, probably not necessary. I yield the floor..."

Well, guess what?

In this federal appellate decision issued late last month, that's basically what the court said.

A plaintiff sued his former employer alleging a violation of the ADA. The employer claimed that the plaintiff's back injury did not constitute a disability. Except, the plaintiff's physician submitted an affidavit, which stated that the the back issues impacted the plaintiff's ability to walk, bend, sleep, and lift more than ten pounds.

Noting that each of these activities is specifically enumerated in the list of ADA major life activities, the court had little trouble concluding that the plaintiff was, indeed, disabled.

But, then, there was that sex and golf thing. Although not specifically listed as major life activities, they're kind've a big deal:

"Second, although Mr. Mazzeo testified at his deposition that his back problems only affected his ability to play golf and have sex, the district court read that testimony too broadly. The questions that were posed to Mr. Mazzeo did not contain a specific time frame, making it unclear whether his answers referred to how he felt before his operation in March of 2009, or after his operation...We therefore do not think that Mr. Mazzeo's deposition testimony warranted summary judgment in favor of CRI."

The implication here is that if the plaintiff's pre-operation back trouble substantially limited his ability to [insert one of many golf double entrendres here], then he is disabled.

So, learn from this case. No, I'm not saying [insert one of many golf double entrendres here]. What I am saying; however, is that if an employee comes to you requesting an accommodation for a purported disability, don't expend a lot of brain cells contemplating whether the employee is disabled.

Instead, focus your energy on discussing with the employee what reasonable accommodation(s) will allow that employee to perform the essential functions of the job.

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P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. It's practically a major life activity.*

*Not really. Actually, not at all.

April 8, 2014

ACA Update: Why Your Company Should Be Tracking Employees' Hours Now

stetho.jpgMy Dilworth Paxson colleagues, Matthew Whitehorn and Richard Smolen, recently published an important alert about how keeping good employee records now can help protect your business from future "play or pay" penalties under the Affordable Care Act (Obamacare).

You can view a copy of it here.

Tomorrow, I plan to be less lazy and actually have a post of my own.

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P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. Guaranteed 50% less snarky than this blog.

*Guarantee does not apply in the continental United States or anywhere else where human life may be found. So, yeah, no guarantees.