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.

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.
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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.

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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.

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...

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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...

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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.

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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.

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.

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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.

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.

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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.

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.

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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.

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.

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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.

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).

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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.


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.

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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.

May 8, 2014

Social media in the workplace: what's legal; what's not? #nextchat

Thumbnail image for weknownext.pngYesterday, my buddy Jonathan Segal and I joined forces on Twitter to answer eight questions from SHRM's We Know Next about the state of the law governing social media and the workplace.

A big thank you to SHRM and to those who were able to join us and participate. 

ICYMI, here is a full recap.

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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.

May 7, 2014

Yes, you can have a hostile work environment based on sexual stereotyping.

We've talked a fair amount about sexual stereotyping at the ole Handbook.

Here I discussed the cluster created by offering crap assignments to a male employee because he fails to conform to a male stereotype.

And of course, we have my "Ravishing Rick Rude" theory of same-sex harassment, which a federal appellate court crapped all over.

And on Monday, while some of you were out celebrating Cinco de Mayo -- I'm a Siete de Mayo guy myself, so hold my calls -- a federal court in Pennsylvania determined (here) that a male plaintiff can state a valid sexual stereotyping claim by alleging that his same-sex harasser believed that the plaintiff did not conform to the stereotype of a heterosexual male.

Put another way, the plaintiff claimed that his failure to laugh at his co-worker's infantile penis jokes and other oversexed comments, in conformity with how a "real man" should react, caused his co-worker to make additional lewd, hostile and unwelcome actions and comments.

Well, are you thinking what I'm thinking?

Putting sea salt on the fried Oreos I had for breakfast was a master stroke of genius.

Why did the Defendants argue that, because the harasser allegedly told plaintiff "you gotta get it in," he was "attempting to encourage and support plaintiff, not demean or tease him?"

(Yeah, no strikethrough there. The defendants actually made that argument with a straight face. ***facepalm***)

How is it that the plaintiff here is being sexually harassed "because of" his gender -- especially if the co-worker makes the similar sexual comments to other female co-workers?

Ah yes, the old equal-opportunity-pervert defense. Perfectly viable. 

But, the plaintiff in this case did not allege that his harasser was bringing sexy back with both men and women. Rather, he alleged that his male-coworker's comments and behavior were heterosexual in nature, but that he expected men, such as the plaintiff, to join in the lewd, promiscuous and predatory talk.

Add in allegations that the comments were pervasive and offensive and that complaints to management went unanswered and that, my friends, was enough to survive a motion to dismiss.

On a more complete record, the plaintiff's case may well fall apart. However, employers should use this decision as a reminder to their workforce that lewd comments of any kind, directed at any person, are forbidden.

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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.

May 6, 2014

Your contractor is a sexual harasser? You may still be on the hook.

Generally, a typical sexual harassment claim involves a supervisor or manager or co-worker making unwelcome sexual advances towards another employee.

But what if, instead of the harasser being one of your employees, it's an independent contractor.

Does that absolve your company from liability? Is it a valid defense if one of your employees sues you for sexual harassment to point the finger outside of the company?

Yeah, well, if you knew about the harassment, and did nothing about it, then prolly not.

Consider this recent decision from the Fourth Circuit Court of Appeals, which serves as a reminder for employers that they cannot avoid liability for third-party harassment by adopting a "see no evil, hear no evil strategy."

What this means is that an employer will be responsible for a hostile work environment a third party (e.g., an independent contractor) creates if the employer knew or should have known of the harassment and failed "to take prompt remedial action reasonably calculated to end the harassment."

It's basically the same standard as would apply if the harasser was your own supervisor or manager

So, please do not tolerate offensive third-party conduct in your workplace. And encourage your employees to report it, so that it may be addressed promptly.

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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.

May 5, 2014

FACT OR FICTION: There is such a thing as a reverse-disability claim?

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."

Try this one for size, folks.

In this case, an employee argued that her former employer retaliated against her, by terminating her for complaining about the favorable treatment a co-worker with a special needs child received.

Oh, for the love of God, please let the answer to today's "Fact or Fiction" be the latter.

Pretty please...

The ADA prohibits an employer from discriminating against an a qualified individual (i.e., a disabled individual who can perform the essential functions of her job with or without a reasonable accommodation). However, if you are not disabled, you're not covered under the ADA.

Indeed, the ADA provides that "[n]othing in this chapter shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability."

Therefore, an individual who gets all bent out of shape because her employer shows compassion toward employees with disabilities (or employees who have children with disabilities), has no claim under the ADA.

The answer to today's question is fiction.

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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.

May 2, 2014

Withdrawing a job offer because of an applicant's prior injury may violate the ADA

Two big EEOC pet peeves right now are:

  1. employers who discriminate in the hiring process; and

  2. employers who violate the Americans with Disabilities Act based on misconceived notions about how an individual's health could impact that person's ability to perform essential job functions.

So, you've really got to be pushing your luck by betting the daily double and avoiding EEOC backlash.

Last week, Florida-based company's gamble didn't pay off as a federal court granted summary judgment in favor of the EEOC (opinion here) based on allegations that the employer violated the ADA by withdrawing a job offer because of the plaintiff's old back injury.

Here are the facts of the case (from the EEOC's press release):

"According to the EEOC's suit, ATM made a provisional job offer to Michael Matanic as a process engineer, pending a health release. The company conducted a post-offer medical examination which revealed that Matanic had a successful back surgery six years prior for which he could not provide a medical release indicating he had no restrictions. After ATM's post-offer medical examination provider, Lakeside Occupational Medical Clinic, learned this, it refused to perform a back screen and complete Matanic's physical examination. ATM, falsely regarding Matanic as disabled, withdrew the job offer and terminated his employment. In the meantime, Matanic actually performed the job at ATM for two months while he attempted to obtain the requested medical release. At the time of his termination, Matanic was in good health and had a recent medical examination showing that he had no physical limitations on his ability to perform his job."

Under the ADA, a "disability" is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Here, the court concluded that, by requiring the plaintiff to provide a medical release because of a prior back injury, the defendant regarded him as disabled.

Further, the ADA requires an individualized assessment of whether a disabled employee can perform the essential functions of the job. The defendant did not make this assessment. (Much like in this case, which is one my favorites when training employers). Instead, it relied upon "myths and fears" about the prior back injury in denying employment.

Oops. 

Employers need to be very careful when getting into an applicant or employee's medical history. For more on medical-related inquiries and the ADA, check out this guidance from the EEOC.

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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.