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.

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June 18, 2014

3d Cir: No FMLA interference where employee receives all leave requested

Thumbnail image for fmla.jpegNow, before I get to the FMLA, let me talk about another recent decision from the New Jersey Supreme Court. On Monday, the high court ruled (here) that:

  1. Claims asserted under the "improper quality of patient care" provision of New Jersey's Conscientious Employee Protection Act "must be premised upon a reasonable belief that the employer has violated a law, rule, regulation, declaratory ruling adopted pursuant to law, or a professional code of ethics that governs the employer and differentiates between acceptable and unacceptable conduct in the employer's delivery of patient care."

  2. A plaintiff asserting that his or her employer's conduct is incompatible with a "clear mandate of public policy concerning the public health" must, at a minimum, identify authority that applies to the "activity, policy or practice" of the employer.

To the two of you who care about that opinion, you're welcome. And, to the rest of you who slogged through this post to here, huzzah! Your reward is this #LockInLuc campaign ad (h/t Deadspin) and a post about the FMLA.

(Ok, to keep reading, here's some bribery: the ESPN highlights from yesterday's 0-0 World Cup "thriller" between Mexico and Brazil....)

Uh, yeah, FMLA time.

So, I read this opinion yesterday from the Third Circuit Court of Appeals and I was all like, "What am I missing here?"

The court reminded us that an FMLA interference action has nothing to do with discrimination. Instead, what matters is whether the employer provided the employee with the entitlements guaranteed by the FMLA."

Well, duh.

In other words, if an employee is FMLA eligible, requests FMLA from an FMLA-qualifying employer, gets FMLA leave, feels better, returns from FMLA leave, and gets fired, that's not FMLA interference.

Employer takeaway: Think twice before firing an employee on the day the employee returns from FMLA leave. It may not be FMLA interference, but you'll find yourself defending an FMLA retaliation claim.

June 17, 2014

President Obama to ban LGBT discrimination by federal contractors -- eventually

The White House announced the news yesterday via Twitter.

Just two years ago, the White House indicated that President Obama would not sign an executive order prohibiting federal contractors from discrimination on the basis of sexual orientation or gender identity, preferring that Congress act to pass the Employment Non-Discrimination Act (ENDA), legislation that would have banned LGBT discrimination in the private sector, entirely. However, ENDA stalled out in the House after passing the Senate last November.

And, according to Jennifer Bendery and Sam Stein reporting at The Huffington Post (article here), while President Obama has directed his staff to being drafting an Executive Order for his signature, there's no guarantee that he'll sign it right away:

"Notably, [a White House] official would not say whether the president will sign the order into law on Monday -- suggesting the White House is leaking the news to warn lawmakers that they have a limited window to pass more sweeping workplace discrimination legislation before he acts without them."

According to Edward Isaac-Dovere and Jennifer Epstein reporting at Politico (article here), there is some speculation that a delay in implementing the Executive Order could have to do with "the upcoming Supreme Court's decision on the Hobby Lobby case, on the religious exemption for businesses to claim leeway from Obamacare's contraception mandate."

Other speculation suggests that, given the upcoming June 30 White House's annual LGBT Pride Month reception, a signature on the Executive Order could come within the next two weeks.

Whatever the timing, absent a federal law on LGBT workplace discrimination, there are still many protections available for private-sector employees. Many states and municipalities already have laws banning LGBT discrimination. Further, same-sex discrimination based on gender stereotypes is also unlawful under Title VII. Moreover, many Fortune 500 companies (88% to be exact) have already banned LGBT discrimination in the workplace.

But as for a federal law specifically banning LGBT discrimination, it's wait and see.

June 16, 2014

EEOC sues a nonprofit that assists the disabled for, yep, disability discrimination

So much for that case of Monday writer's block...

From a recent EEOC press release:

According to the EEOC's suit, Disability Network denied a deaf independent living specialist reasonable accommodations and then fired him. For example, the nonprofit refused the employee his requests for TTY equipment, a video phone and the ability to use text messaging, and refused to provide him with alternate accommodations.

* * *
"The irony in this case is incredible," said EEOC Trial Attorney Nedra Campbell. "Disability Network was formed to help and protect people with disabilities - and so was the ADA, under which we now have to sue them for violating their mandate and betraying an employee."

June 12, 2014

Apparently, you can curse your boss out and still keep your job

latrelle.pngWhat with me gabbing on about firefighters afraid of fighting fires, butt grabs, and some Delaware lawyer starving himself over social media, I missed this National Labor Relations Board decision, in which the Board basically held that, as long as you don't go too far and pull a Latrell Sprewell, you can curse out your boss with impunity. 

Literally, you can call your boss a "f*%king crook," an "a$$hole," and "stupid" on a Friday, and still have a job to come back to on Monday.

God bless America.

For more on this Board decision, check out these posts:

June 11, 2014

If you have questions today about FMLA/ADA leave issues, I've got your hook up

Thumbnail image for weknownext.pngIn two weeks, at the SHRM Annual Conference, I'll be presenting "Meeting the Challenges That Leaves of Absence and Attendance Issues Present Under the FMLA and ADA." 

The good news is that I have 75 minutes of HR greatness planned for my SHRM sesh. The bad news is that my presentation is at 7:00 AM on the day after the #SHRM14 Social Bash at the Hard Rock Cafe.

So, let's just say "Hey, thanks a lot, SHRM!" that I anticipate an intimate gathering of HR hardcore FMLA/ADAthletes for my spiel.

What do you think? Should I provide coffee or hair of the dog? Irish Coffee it is!

If, somehow, you miss my session because [insert another inappropriate comment here] or you won't be at the SHRM Annual Conference, you're not our of luck. Because...

Me, you, Twitter, today 3 pm. Your FMLA/ADA questions; my answers. Details here.

Let's do this, yo.

June 10, 2014

The firefighter afraid of fighting fires loses his ADA claim. Right, you guys? Right?!?

If I could drink up your collective skepticism when it comes to these Americans with Disabilities Act cases...

...I'd need my stomach pumped.

Let's see. There's the one about the utilityman who couldn't climb utility poles, but had an ADA claim against a utility company. And then who can forget the bridge worker with the fear of heights who presented a viable ADA claim? And what about the stripper who feared climbing the stripper pole?

Let's travel down to Texas, where everything's bigger; including the wacky ADA cases.

This latest doozy made it all the way to the Texas Supreme Court.

It involves a firefighter captain from Houston who, on two separate occasions, apparently became frightened when it came time to enter a burning building. 

The firefighter's doctor noted an episode of global transient amnesia but approved his return to work. The City, however, was all like, WTH?!? and fought the firefighter's return to active duty in court. 

The firefighter countersued, alleging that his employer had violated the ADA when it reassigned him to the training academy and refused to restore him to his prior position in fire suppression.

A jury found in the firefighter's favor  on the ADA claim and an appellate court affirmed.

Yeah, no. He's not disabled.

The Texas Supreme Court; however, reversed. It concluded that the firefighter was not disabled:

"There is no evidence from which a reasonable and fair-minded jury could conclude that Proler was disabled. The jury heard evidence of two incidents where Proler was allegedly unable to provide useful help to his firefighting team during actual fires at two residential buildings. Being unable to set aside the normal fear of entering a burning building is not a mental impairment that substantially limits a major life activity.

* * *
...If one considers the NBA, the capacity to play professional basketball is an ability; the rest of us do not suffer from a disability because we cannot play at that level. A job skill required for a specific job is not a disability if most people lack that skill."

But what about a perceived disability? Because even if the firefighter is not disabled, if the City perceived him as such, and it motivated an adverse employment action, then ka-$hing!

But alas, no, the Texas Supreme Court was not buying that argument:

"But there is no evidence from which a reasonable and fair-minded jury could find that the City perceived Proler to be suffering from a mental impairment that substantially limited a major life activity. The evidence was entirely to the contrary--indicating Proler was removed from a front-line firefighting position only because City decision-makers had received information that Proler had frozen at two fires, and he was therefore perceived to be unable to do his particular job as captain of a firefighting crew. Even Proler's mother agreed that the department acted properly in removing him from the scene of the second fire."

There's no strikethrough on that last sentence, is there?

***Evernotes reminder to raise the "mother agreed" defense next time I litigate in Texas***

Takeaways from this post:

  1. I regret not going with this song.

  2. This case was decided based on the ADA, prior to its 2009 amendment. As y'all (what I did there, you see it) know, the Americans with Disabilities Act Amendments Act now makes it hella-easy to demonstrate a disability.

  3. I SLAYED the list below. Crushed it! (First song is NSFW)

June 9, 2014

Ban the box is one step closer to becoming law throughout New Jersey

Thumbnail image for nj1.jpgMany cities in the Mid-Atlantic region (Philadelphia, Newark) have passed legislation that makes it illegal for employers to inquire about criminal history early on in the job application / interview process. The State of Delaware too has passed this so-called "ban the box" rule.

Last week, a New Jersey Senate Committee recommended passage of ban-the-box legislation in the Garden State.

Under the proposed NJ law, an employer may not inquire (orally or in writing) regarding an applicant's criminal record during the initial employment application process. Although after the initial application process has concluded, then this information would be fair game.

This is the second go-round for potential statewide passage of ban-the-box legislation in NJ. Governor Chris Christie remains open to passing ban-the-box.

June 6, 2014

Court: Two butt grabs from a male boss would not offend an objectively, reasonable female

buttgrab.jpgWelcome to Alabama, where they see your one-grope rule and raise you two grabs of the derriere.

Why? Because, according to this recent federal court opinion, the average female employee would not find getting her ass grabbed twice by a male supervisor to be offensive.

Now remember, that for a woman to prove sexual harassment, she must show five things: 

  1. she was subjected to harassment because she was a woman
  2. the harassment was severe or pervasive
  3. she was offended
  4. a reasonable woman in her shoes would also have been offended
  5. there is a basis for holding the employer liable

Usually in cases involving discrete behavior (one or two events of harassment), the court focuses on the second element to say that the harassment was neither severe nor pervasive. In Stallworth v. Guyoung Tech USA, Inc., Ms. Stallworth claimed that a VP/Supervisor grabbed her butt twice in the same day. Well, not only did Judge Kristi DuBose find that this behavior was neither severe nor pervasive, but she concluded that the offense Ms. Stallworth took to this conduct showed that she had a thin skin:

"Arguably, Cho touching Stallworth's butt in front of her co-workers may have been humiliating. However, the June 28, 2012 touching incident and the incident where Stallworth saw Cho hit himself in the head and make an ugly face toward her on July 10, 2012, are not conduct that was frequent, severe, or physically threatening, or of a nature that would unreasonably interfere with Stallworth's work performance."

Although the record indicated that Cho had given a thumbs up the second time he grabbed the plaintiff's butt, and that he had allegedly touched three other female employees on the butt, this was not enough to sway the court that a woman in Stallworth's shoes would have been offended at getting her butt grabbed.

I'm at a loss as to how even one butt grab from a male supervisor wouldn't be offensive to the average female employee, but two?!?

So, here's my advice: Unless you practice law in Alabama, disregard this opinion entirely. Do not assume that there is a two-butt-grab rule that will allow a company to get summary judgment in a sexual harassment case. Instead, don't condone even a single grab.

June 5, 2014

A lawyer is literally starving himself to raise awareness for social media firings

Thumbnail image for youarefired.jpgMeet Delaware lawyer, Brian Zulberti.

According to his website, back in 2013, after getting his DE bar license, Mr. Zulberti emailed every Delaware lawyer asking for information about job openings. In each email, he included this photo of himself in a sleeveless t-shirt.

Mr. Zulberti claims that this mass email, coupled with a subsequent story written in Above The Law, made him a "global internet sensation."

Although still licensed to practice law, Mr. Zulberti does hot have any clients. Instead, he recently launched his 2014 "Take Our Social Lives Back" Tour, which he describes as involving "meeting Americans all over the nation who are frustrated with employers stalking their social media accounts, destroying their social lives, and forcing them into conforming with outdated, conservative principles."

As part of this campaign, three days ago, Mr. Zulberti began a hunger strike.

[Cue music]

As I type this post on Wednesday night, Mr. Zulberti sits in front of the U.S. Supreme Court, where he has gone just over three days without food.

According to his website, the hunger strike will end in either "Coverage" or "Death." That is he claims that he will start eating again "When A Major National Television Network Agrees To Give Him 90 Seconds Of Prime Time, Weeknight Coverage."

Or he'll die.

Mr. Zulberti's message is simple: As long as they are not breaking the law, employees should be able to post what they want online -- including content that is "tasteless, hateful, or racist" -- without any workplace repercussions.

While I do believe that employees should enjoy a fair amount of latitude when it comes to online content, the problem is that this content can permeate the workplace. This could prove especially problematic where the online speech is "tasteless, hateful, or racist." Indeed, just because this speech may not technically violate the law, it could still impact how managers, co-workers, and customers perceive this employee and, therefore, adversely impact the business.

So, no. While I do admire Mr. Zulberti's zeal, I don't fully subscribe to his message.

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

June 4, 2014

Employment at-will trumps the 2nd Amendment (Yes, you can fire the employee who shoots a gun at work)

ScarfaceIn every one of the United States, except Montana, employment is at-will. This means that, absent a contract of employment for a specific period of time, you may fire an employee for any reason or no reason at all.

(Not to be confused with "right to work" -- more on that here)

Well, I suppose that there are some exceptions. Like, you can't discriminate. And many laws make it illegal to retaliate as well.

Public policy exceptions to at-will employment

And then there are the public-policy exceptions, They vary from state to state. In Michigan, for example, a termination violates public policy when:

  1. the employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty;

  2. the employee is discharged for the failure or refusal to violate the law in the course of employment; or

  3. the employee is discharged for exercising a right conferred by a well-established legislative enactment

Why do I use Michigan as an example? Mancrush on Miguel Cabrera Well, the Sixth Circuit recently decided this case, where a drugstore employee decided that he'd had enough with past robberies at his store and decided to carry a concealed weapon in the event of a future robbery. So, when a masked gunman returned, the employee pulled his gun and started blasting.

The drugstore later informed the employee that he had violated its "non-escalation" policy and, ultimately, it fired the employee.

So, the employee sued alleging, among other things, that the store had violated public policy by terminating his employment in violation of the 2nd Amendment.

At-will > Second Amendment

The Sixth Circuit, however, disagreed. It held that while the Second Amendment of the United States Constitution provides for the right to bear arms, without interference from the state. In a private setting, such as your workplace, employees don't have the same Second Amendment rights.

[Update: You can also fire Febreze-toting workplace cowboys too.

Don't tolerate guns at work.

Unless you know that the law varies in your state, even where the employee is well-intentioned, such as the one in the case above, please don't condone employees carrying concealed weapons at work. It's bad enough that, every so often, we hear stories about workplace gun violence. Don't add to that violence with more guns in the workplace.

Image Credit: Imgur.com

June 3, 2014

Dust off that resume when your students really "like" that Facebook post of your face on a beer label

holyfacebook.jpgWhy, just last week, I was saying that the Facebook stupidity scale had shifted away from teachers in favor of bar/tavern staff.

I stand corrected.

For future reference, you can never go wrong with Vining the one-year-old slugger.

Image Credit: Facebook

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.


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