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 2, 2014

Just how badly did a federal appellate court trash extended leave as a reasonable accommodation?

Shared_Image_20140601_224905.jpegI'm feeling rather charitable this evening as I punch out this post. Maybe it's the proud feeling of crossing off my bucket list taking my four-year-old son to a Sunday early-bird at the biggest dive bar in South Jersey. (*Bonus points if you can guess the bar).

Well, I'm not sure if "proud" really captures it.

(And before you call DYFS, that's sour mix pineapple juice).

But anyway, get a load of this opinion from the Tenth Circuit Court of Appeals. If you're representing an employer and happen to be teeing up a dispositive motion where the issue is whether six months of leave is a reasonable accommodation, then look no further.

Generally, six months of leave is not a reasonable accommodation.

Here are the basic facts:

Plaintiff-employee has cancer (disability) and defendant-employer has a six-month leave policy. Employee takes six months of leave, after which, she requests an additional semester of leave, promising to return in the Summer. Employer says no and offers employee long-term disability (essentially firing her). Employee sues under the Rehabilitation Act (the equivalent of the Americans with Disabilities Act), alleging that her employer should have accommodated her with the additional leave.

Employer wins. (Although, you probably figured that out already).

But, not only did the employer win, it was on a motion to dismiss, rather than a motion for summary judgment. So, you know the lower court and the affirming appellate court came out guns blazing.

Quotables from the the 10th Circuit's blistering opinion.

So, get ready management-side lawyers, here come the money quotes from the opinion. And since I'm not sure whether Westlaw has published it yet, if you're reading this post, you'd better cite it in your brief.

(Just leave out the taking-the-four-year-old-to-the-dive-bar part, ok?)

Here we go:

  • "Must an employer allow employees more than six months' sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no."

  • "It perhaps goes without saying that an employee who isn't capable of working for [six months] isn't an employee capable of performing a job's essential functions -- and that requiring an employer to keep a job open for so long doesn't qualify as a reasonable accommodation."

  • "[R]easonable accommodations -- typically things like adding ramps or allowing more flexible working hours -- are all about enabling employees to work, not to not work."

  • "[I]t's difficult to conceive how an employee's absence for six months -- an absence in which she could not work from home, part-time, or in any way in any place -- could be consistent with discharging the essential functions of most any job in the national economy today."

  • "[I]t is difficult to conceive when requiring [six months of leave] from an employer might qualify as a reasonable accommodation."

  • "The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work -- not to turn employers into safety net providers for those who cannot work."

  • "In the first place, the EEOC manual commands our deference only to the extent its reasoning actually proves persuasive....And the sentence Ms. Hwang cites doesn't seek to persuade us of much. It indicates that an employer 'must' modify a leave policy if the employee 'needs' a modification to ensure a 'reasonable accommodation'"

  • "[T]he EEOC seems to agree with our conclusion that holding onto a non-performing employee for six months just isn't something the Rehabilitation Act ordinarily compels."

  • "[A]n inflexible leave policy can serve to protect rather than threaten the rights of the disabled -- by ensuring disabled employees' leave requests aren't secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency."

  • "[T]he leave policy here granted all employees a full six months' sick leave -- more than sufficient to comply with the Act in nearly any case."

Dayyyyyyyyum!

But before you dust off those no-fault policies...

The Tenth Circuit did not go so far as to say that leave of any length is no longer a reasonable accommodation. Indeed, other parts of this opinion (and common sense) should have you re-thinking that:

"[A]n employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job. Likewise, allowing such a brief absence may sometimes amount to a (legally required) reasonable accommodation so the employee can proceed to discharge her essential job duties. After all, few jobs require an employee to be on watch 24 hours a day, 7 days a week without the occasional sick day."

Also, the court pointed out that "no-fault" leave policies with very short leave periods may not comport with the ADA. Similarly, a sham policy would fail too.

But the big takeaway here is that we have another court holding that six months of leave is generally not a reasonable accommodation.

May 30, 2014

For the love of God, bar owners! Train your employees not to liken beer to domestic violence.

Thumbnail image for Thumbnail image for facefire.jpg

I used to say that teachers were the most irresponsible Facebook user group. Now, I'm leaning towards the bar and nightclub industry.

Last month, a worker at a downtown Philadelphia bar displayed a Heineken chalkboard with the message "I like my beer like I like my violence... domestic." to attract customers.

But, instead of achieving its desired effect, a passerby tweeted the photo to a local news station and a major cluster of a poopstorm ensued, which culminated in the worker losing his job.

Lesson learned.

And then, yesterday, it happened again at a bar in Texas.

Now, as I best as I can tell -- anecdotally, mind you -- Texans aren't the brightest bunch (Exhibit A, B, and C). I say this because not only did the bar manager who posted this sign in a Plano, Texas bar not recognize the impact it could have on the bar's clientele, but according to Sarah Blaskovich in this story in the Dallas Morning News, other restaurant managers allegedly resisted erasing the chalkboard when a customer complained.

Instead, had they taken immediate action, maybe the sign wouldn't have been shared on Facebook and other social networks hundreds of times.

Lesson learned: Stupid is as stupid does.

PS - The bar manager eventually lost his job and gets to read about his story on this blog.

P.P.S. - I just read that this isn't the first time that this has happened in a bar in Texas. Moron in Texas, say "what?" However, the previously disgraced bar not only fired the sign author, but also agreed to contribute a percentage of October beer sales to the National Coalition Against Domestic Violence, in recognition of domestic violence awareness month.

So, there's that.

May 29, 2014

An ADA accommodation just has to be reasonable -- not the employee's first choice

This is my son's first year playing t-ball. The rules, in case you're not familiar with them, are simple: 

  • Everybody hits
  • Everybody (eventually) rounds the bases
  • Everybody scores

Some games, my son wants to lead off. Some games, he wants to hit last. Ultimately, it doesn't matter where he hits. The coach can place him anywhere in the batting order because he will hit, he will round the bases, and he will score.

The Americans with Disabilities Act is similar in that respect. It requires an employer to accommodate an employee with a disability if doing so will not create an undue hardship for the employer and will allow that employee to perform the essential functions of the job.

The ADA regulations include a non-exhaustive list of reasonable accommodations. Does the employee get to choose which one? Sure, the employee can express his/her desire. But, ultimately, the employee should get one that is reasonable, whether it is the employee's choice -- or not.

A recent case reflects this. In Bunn v. Khoury Enterprises, Inc., Mr. Bunn, who is disabled (visual impairment), sought an accommodation to allow him to perform his essential job functions. So, the employer restructured the employee's job. The accommodation worked. But, since it was not the accommodation Mr. Bunn wanted, he sued, claiming a violation of the ADA.

The lower court granted summary judgment to the employer and, on appeal, the 7th Circuit affirmed, because the the job restructuring, while not the employee's preference, nonetheless allowed the employee to perform the essential functions of the job:

"In short, it was exactly the kind of accommodation envisioned by the regulations applicable to the ADA....the undisputed facts show that Khoury did what it was required to do by law....In this area of the law, we are primarily concerned with the ends, not the means...Bunn's apparent displeasure with the way in which Khoury decided on that accommodation, or with its failure to provide the exact accommodation he would have preferred, is irrelevant."

Does this mean that employers should resort to the my-way-or-the-highway approach to workplace accommodations? Certainly not. Oftentimes, providing the employee with a preferred accommodation will not increase expense or inconvenience and, instead, will satisfy the employee.

And although the 7th Circuit underscored that an employee will not prevail on a "failure-to-accommodate" ADA claim by merely showing that the employer failed to engage in an interactive process with the employee or that it caused the interactive process to break down, an employer that goes through the interactive process should have an easier time establishing it acted reasonably when responding to an employee's request for accommodation.

Because, after all, an employer just needs to act reasonably.


May 28, 2014

Two more states just made it illegal for employers to demand social media passwords

Thumbnail image for facelock.JPGWithin the past week, two states have passed laws, which will provide employees with more workplace protections.

Truth be told, I wasn't sure that the internet had yet arrived in either Oklahoma or Louisiana, the latter of which is still controlled by a French monarch, I'm fairly certain.

(But since Louisiana also has beignets and Mardi Gras, all is forgiven).

And, sure enough, Oklahoma and Louisiana not only have the internet, but social media too. Who knew?

So, here's the deal with these two laws.

In Oklahoma, this new law bans companies from requesting that current and prospective employees provide them with their online logins or passwords. It also prohibits retaliating against a current or prospective employee for failing to provide those login credentials. 

The exceptions to the rule on providing usernames and passwords are for accounts or services provided by the employer and certain workplace investigations. Additionally, an employer may review or access personal online social media accounts that an employee may choose to use while utilizing an employer's computer system, information technology network or an employer's electronic communication device.

In Louisiana, the new law is very similar. It also protects school students.

At least one report I read cited a lawmaker who claimed that these new laws are "designed to halt a trend of employers invading the online privacy of employees and potential hires." But, once again, no actual study was cited.

So, if anyone has any actual facts to supports to support this alleged "trend," here is as good a place as any to share them. Otherwise, I still contend that these laws are solutions, while well-intentioned, in search of a problem.


* * *

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.

May 27, 2014

The Employment Law Blog Carnival: Small Business Edition #ELBC

I hope that you guys had a nice Memorial Day. Nothing like a good three-day weekend. Although, three of my four children didn't seem to appreciate that most American businesses were closed for the holiday:

Sorry, kids. 

Maybe, starting the workweek off with the Employment Law Blog Carnival: Small Business Edition over at the Employer's Corner Blog will cheer them up.

May 22, 2014

Firing a sick employee just before she is FMLA-eligible is very risky

Thumbnail image for fmla.jpegSo, check this out.

I read this case yesterday about an employee who provided her company with a November 12 doctor's note, requesting that her hours be reduced due to her high-risk pregnancy. The employee would have become eligible for coverage under the Family and Medical Leave Act on November 17.

The company fired her on November 16.

Man, that is cold! But is it unlawful?

To prevail on her FMLA interference claim, an employee must show, among other things, that she is eligible for FMLA coverage.

She gives notice on November 13 when she's not eligible. But the FMLA will start on November 17, when she is eligible. And the company fires her in the interim.

Hmm.....

The Court said, under the circumstances, yes:

The determination of whether an employee . . . has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave.
* * *
Defendant does not contend that Wages was not entitled to use sick leave, personal leave, or vacation time to cover her reduced time until she became FMLA-eligible. The only reason Wages was not able to reach her eligibility date is because Defendant fired her before she could do so. The Court therefore finds that Wages was an eligible employee under the framework established by the FMLA.

In a nutshell, can you terminate an FMLA-seeking employee just before his/her one-year anniversary with the company?

Not if that employee can bridge the gap between FMLA-ineligible and FMLA-eligible by using accrued time off.

But, under certain circumstances, yes. For example, if that employee seeks FMLA to care for a spouse with a serious health condition and the employee will run out of accrued time off before becoming FMLA-eligible, then yes.

However, if you're dealing with an employee who seeks FMLA leave for his/her own serious health condition, even if the employee will run out of accrued time off before becoming FMLA-eligible, firing that employee could run afoul of the Americans with Disabilities Act. The ADA requires reasonable accommodations for employees with disabilities. And since many serious health conditions qualify as disabilities too. And time off may be a reasonable accommodation. You smell what I'm cookin'?

Trust me, it won't end up well for you.

* * *

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.

May 21, 2014

How yesterday's federal court strike of PA's same-sex marriage ban affects employers

parainbow.jpgICYMI, yesterday, the United States District Court for the Middle District of Pennsylvania ruled in this opinion that PA's same-sex marriage ban is unconstitutional.

How fitting that the first gay couple in Philadelphia to obtain a marriage license was Kerry Smith and Rue Landau, who serves as the Executive Director of the Philadelphia Commission on Human Relations (PCHR). Congratulations, Rue and Kerry!

So, now that, for the time being, gay marriage is legal in the Keystone State, how does this impact local employers? Find out after the jump...

* * *

Continue reading "How yesterday's federal court strike of PA's same-sex marriage ban affects employers" »

May 20, 2014

Three employees fired for posing at work in KKK garb and makeshift crosses claim discrimination. Yep.

Thumbnail image for youarefired.jpgThe thing about this law-blogging gig, other than the money, power and women, of course, is the pride of being first to post about a crazy new case.

Last week, I missed out on the nude sunbather who sued an elementary school-employer for retaliation. Well, Jon Hyman at the Ohio Employer's Law Blog, I see your nude sunbather and raise you two white guys and a native american who dressed as klansmen at work, allowed themselves to be photographed, and then sued for race discrimination. Boom!

Yes, this really happened.

More on this one after the jump...

* * *

Continue reading "Three employees fired for posing at work in KKK garb and makeshift crosses claim discrimination. Yep." »

May 19, 2014

Should U.S. employers provide "paid menstrual leave"?

holdstomach.jpg

In Friday's edition of The Atlantic, Emily Matcher's "Should Paid 'Menstrual Leave' Be a Thing?" was shared over 12,000 times.

The article notes that several Asian countries including Taiwan, Japan, South Korea, and Indonesia, offer "menstrual leave" for women endure painful periods. However, Ms. Matcher mentioned that, while many of these laws are "well-intentioned," many women decline to take leave given the potential embarrassment of having to substantiate the basis for their "menstrual leave" or because they may be viewed as weak.

Katy Waldman, writing at The Slate Blog, says "Thanks, but We Will Pass on Paid Menstrual Leave." She argues that companies with reasonable sick-leave policies "should be able to accommodate these women without prying into their pants."

Well, I should hope so.

Most sick-leave policies I've seen don't require a doctor's note for missing a day or two. And most cities that have enacted paid-sick-leave laws have followed suit and don't require employees to substantiate calling out sick for a day or two.

But, even without a formal sick-leave policy, while conceding that I have no personal experience with a painful period, I would imagine that, bad menstrual pain could qualify as a "serious health condition," which would allow an employee to take leave under the Family and Medical Leave Act.

And how about the Americans with Disabilities Act? Even though it is episodic, and temporary, if it interferes with a major life activity, theoretically, bad menstrual pain may qualify as a disability under the ADA. This would trigger the potential obligation for an employer to provide a reasonable accommodation -- maybe, time off.

So, I think we have this covered without offering separate "paid menstrual leave."

But what do you think? Should American employers offer "paid menstrual leave?" Please let me know in the comments below.

* * *

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.

May 16, 2014

Tennessee has a social media workplace privacy law now, y'all

Here are some Tennessee fun facts:

  • The city of Kingston served as Tennessee's state capital for one day (September 21, 1807)

  • There are more horses per capita in Shelby County than any other county in the United States.

  • Tennessee ties with Missouri as the most neighborly state in the union. It is bordered by 8 states.

  • The name "Tennessee" was chosen to support the pick-up line, "Are you from Tennessee? Because you're the only Ten I see."

And now Tennessee becomes the latest state to have a social media workplace privacy law.

You know the drill:

  1. No asking for employee or applicant social media passwords

  2. No forcing an employee or applicant to friend you

  3. No should surfing

  4. No adverse action based on the failure to do 1-3

The new law contains some exceptions to allow employers to gain access to an employee's private social media content (e.g., to support a workplace investigation). 

It takes effect on 1/1/15.

But, this is all so 2013.

* * *

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.

May 15, 2014

PA Superior Court closes non-competition-agreement loophole

In Pennsylvania, a company and an employee can enter into an agreement whereby, in exchange for some form of consideration, the employee agrees not to compete with the company after the employment ends.

Consideration can come in a variety of forms; for example, a raise, bonus, promotion, or sugar. Initial employment can also be sufficient consideration.

However, in Pennsylvania, continued employment won't cut it. That is, a non-competition agreement will be invalid if an employee signs it after commencing employment -- even if you tell the employee that he/she will lose his job by not signing.

However, some smart lawyer out there -- even smarter than I am -- figured out that, by inserting the language "intending to be legally bound" into a non-competition agreement, Pennsylvania's Uniform Written Obligations Act ("UWOA") would validate the agreement -- even without any additional consideration.

Until now, son.

Earlier this week, in Socko v. Mid-Atlantic Systems of CPA, Inc. (opinion here; Socko here), the Pennsylvania Superior Court said the UWOA exception be like this won't save a non-competition agreement otherwise lacking in consideration:

"Language in an employment contract that the parties intend to be legally bound does not constitute valuable consideration in this context....Contractual language satisfying the UWOA does not provide the employee with any actual benefit, and thus cannot suffice as a form of consideration that is adequate to support the later enforcement of the covenant not to compete against the employee."

While the Pennsylvania Supreme Court has yet to weigh in on this issue, employers would be wise to play it safe and offer employees sufficient consideration to support a covenant not to compete: either initial employment or, if the employee signs the agreement after employment begins, something else of sufficient value.

* * *

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.

May 14, 2014

You've heard of the "one-free-grope" rule. How about the "two-free-slurs" rule?

It was Gloria Steinem who, in discussing President Bill Clinton's indiscretions with Paula Jones and Kathleen Willey, fashioned the "one free grope" rule. That is, while not condoning President Clinton's actions, Steinem concluded that one touching is not sexual harassment -- at least as a matter law.

Well, yesterday, the Fourth Circuit Court of Appeals, saw Steinem's "one-free-grope" rule and raised her a "two-free-slurs" rule.

In Boyer-Liberto v. Fontainebleu Corp., (opinion (here), a black plaintiff alleged that her co-worker referred to her as a "porch monkey" twice in two days, from which she claimed to have been subjected to a racially hostile work environment. 

The United States Court for the District of Maryland disagreed. 

On appeal, the Fourth Circuit Court of Appeals noted that "the 'porch monkey' term ... was indeed racially derogatory and highly offensive, and nothing we say or hold condones it."

Now, before I discuss the Fourth Circuit's opinion, I note that, in some states, like New Jersey for example, a single slur create a hostile work environment. And Steinem's "one grope rule" notwithstanding, a New York court noted that a single incident -- albeit a forcible kiss -- could be enough to demonstrate actionable sexual harassment.

But those opinions are further up I-95. Further south, y'all, not only is a single slur hardly enough to create a hostile work environment, but, according to the Fourth Circuit, neither are two racial epithets:

"A single racist statement [is] a far cry from alleging a [hostile work] environment of crude and racist conditions so severe or pervasive....[And] "a coworker's use of [porch monkey] twice in a period of two days ... as a matter of law, [is not] so severe or pervasive as to change the terms and conditions of [a black plaintiff's] employment so as to be legally discriminatory."

But, look folks, as I've said before, even if a single incident (or two incidents) is not enough to create a winning lawsuit, it may be enough to create a lawsuit that you'll have to spend valuable time, money, and resources defending.

So, don't condone this behavior in your workplace -- ever.

* * *

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.

May 13, 2014

My employee deleted all of her work emails and quit. Can I sue her for that?

Well, sure, you can.

But winning that case -- especially if you're thinking about a claim under the Computer Fraud and Abuse Act -- may be another story.

email.png

The CFAA is designed to prevent unauthorized access or malicious interference with a computer system. Often used as an employer-sword, to state a claim for a violation of the CFAA, a company must prove that an employee actually caused damage to its computer system or data. The CFAA defines "damage" as "any impairment to the integrity or availability of data, a program, a system, or information."

In Instant Technology, LLC v. DeFazio (opinion here), the former employee deleted all of her work emails from her inbox.

Well, damn, that sure sounds like an impairment to the availability of data.

Yeah, except, in this case, all those "deleted" emails remained in two places: (i) the former employee's email trash folder and (ii) on the company's email server. Therefore, because the company did not show that any data was lost or impaired, it could not demonstrate "damage" and, therefore, lost its CFAA claim.

But, had the former employee double-deleted her email -- like any good scoundrel -- and the company's email server been wiped, there could have been a CFAA violation.

To avoid these problems, as a best practice, be sure to remind your employees that any work emails are company property and should be held/deleted consistent with your company's computer use/email policy.

* * *

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.

May 12, 2014

Minimum wage bump coming for employees of many Philly contractors

Thumbnail image for philadelphia.jpgLast week, Philadelphia Mayor Michael Nutter signed this Executive Order, which will require that many city contractors provide a minimum wage of $12/hour beginning January 1, 2015. (Although, the Order will also apply to bids and proposals issued May 20, 2014).

The Executive Order also requires that contractors meet that same minimum wage standard for their first-tier subcontractors.

For more on which employers/employee qualify, read the Executive Order.

(Ordinarily, I'd include those requirements in this post. However, cut-and-paste from the Executive Order flipped me the bird).

* * *

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.


May 9, 2014

Survey shows that working moms earns less, but are satisfied with their jobs

This according to this survey released yesterday from CareerBuilder.com.

Working dads who were the sole breadwinners in their household were four times as likely to earn six figures, while working moms who are the sole breadwinners were nearly twice as likely to earn less than $35,000.

However, money may not be everything. That is, 78% of working moms reported they are happy in their current roles at work, with about 2/3rds of working moms having enjoyed the full amount of maternity leave available to them following childbirth.

[How much paternity leave are the new dads taking? According to the survey, half of working dads (49%) took two weeks of paternity leave or less, 21% took five weeks or more while 22% didn't take any time off.]

But let's go back to the $$$, while there may be legitimate business reasons to explain a disparity in pay between men and women, men and women with the same experience and qualifications who perform the same work at the same level should be paid the same amount.

So consider a self-audit to make sure that you're providing equal pay where appropriate.

* * *

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.