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.

December 10, 2013

Camouflage toilet paper and 9 of the other most unusual coworker holiday gifts

present.jpg

Leave it to Career Builder to run a survey seeking the most unusual co-worker holiday gifts. Camouflage toilet paper made the list.

(Well, at least it wasn't used, amirite?)

The complete list follows after the jump...

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Continue reading "Camouflage toilet paper and 9 of the other most unusual coworker holiday gifts" »

December 9, 2013

Must an employer ask if a disability is causing poor job performance?

youarefired.jpg

You've got an employee with performance issues. Big time! Initially, rather than fire her, you make fun of her behind her back put her on a series of performance improvement plans. But, that doesn't result in -- oh, what's the word I'm looking for? -- improvement.

So, you fire her.

Ah, but here's the little wrinkle for today's post. The poor performer experienced frequent migraine headaches and struggled with pain and other symptoms caused by endometriosis. As a result of these conditions, she frequently requested medical leave under the Family Medical Leave Act, which you afforded her.

Given the poor performer's medical issues, before firing her, did you have an obligation to engage in an interactive dialogue with her, consistent with the Americans with Disabilities Act to determine whether her health issues caused her performance issues?

The answer follows after the jump...

Continue reading "Must an employer ask if a disability is causing poor job performance?" »

December 6, 2013

GUEST POST: What HR needs to know about how immigration law impacts firing decisions

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's Emily Neumann. Emily has practiced immigration law in Texas since 2005, representing both employers and immigrants. Neumann writes a blog on immigration law (immigrationgirl.com) and shares updates on Twitter (@immigrationgirl) and her Facebook page to help her clients stay informed of the latest news. She is a partner in Reddy & Neumann, P.C. in Houston and Dallas.

(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).

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Continue reading "GUEST POST: What HR needs to know about how immigration law impacts firing decisions" »

December 5, 2013

HR's 2013 Performance Review (via SHRM's #nextchat)

weknownext.pngYesterday, We Know Next, the muscle-bound social media arm of the Society for Human Resource Management, hosted a NextChat session on Twitter.

Oh, you don't know NextChat?

NextChat is a one-hour session on Twitter, which runs every Wednesday from 3-4 PM EST on a topic du jour -- that's the soup of the day -- affecting HR. 

Each NextChat features 8 questions posed to an HR influencer. During theNextChat, other Twitter users may tweet along using the hashtag #nextchat, or simply follow along by searching for the #nextchat hashtag.

This week, the HR influencer was moi. (Go figure). The topic: HR's 2013 Performance Review.

If you missed yesterday's NextChat, check out all great tweets after the jump...

Continue reading "HR's 2013 Performance Review (via SHRM's #nextchat)" »

December 4, 2013

Employers may force employees not to file class actions

nlrb.jpgAs my buddy Rubo used to say: "It's like school on Saturday; no class."

Read all about it -- yesterday's BIG federal appellate court decision; not my buddy -- after the jump...

Continue reading "Employers may force employees not to file class actions" »

December 3, 2013

Pregnancy isn't a workplace disability, but how about morning sickness?

morningsickness.jpegAn employee-plaintiff who claims that she was discriminated against under the Americans with Disabilities Act due to her pregnancy alone, will lose her ADA claim 10 times out of 10. This is because pregnancy is not a disability under the ADA.

But what if that same employee plaintiff with an ADA claim alleges that the discrimination relates not to her pregnancy, but rather to her morning sickness?

Hmmm....

The answer after the jump...

Continue reading "Pregnancy isn't a workplace disability, but how about morning sickness?" »

December 2, 2013

Employee legally fired for complaining on Facebook about the boss' "creapy hands"

5cake.jpgGenerally speaking, those who wait five years to complain about perceived sexual harassment in the workplace, don't win lawsuits if they are eventually fired.

But what happens when the complaint takes the form of a status update on Facebook? Does that offer the employee extra protection?

Find out after the jump...

Continue reading "Employee legally fired for complaining on Facebook about the boss' "creapy hands"" »

November 26, 2013

ABA Journal names The Employer Handbook a top law blog (again)! #TeamHandbook

2013_Blawg100Honoree_150x150.jpgNotice anything new at The Employer Handbook? 

Maybe the image on the right.

Your other right. Yeah, there it is.

The Employer Handbook is officially the Grover Cleveland of the interwebz, proudly nominated twice -- in non-consecutive years -- by the American Bar Association in its Blawg 100 Amici as one of the top employment-law blogs in the galaxy. 



Hey, yo. Gratuitous posts aside, my workplace insights really flatulate -- err, resonate.

So, don't call it comeback; I've been here for years.

Indeed, Your Blogness has been on quite a run recently. Have you seen the updated Speaking Engagements section of the blog recently? No? Well, go ahead, click and scroll down to check out my June 2014 gigs. I'll wait. Oh, that's no typo. That's speaking gigs <plural> at SHRM's 2014 Annual Conference and Expo.

Quick, someone fetch my scepter!

The rest of you, here's the drill:

For the next month, the ABA has requested that you winnow down the group of deserving employment-law blog nominees to a grand champion. You can do that by voting for The Employer Handbook here, clicking the banner below, or tweeting your support.

Vote in the Blawg100

Seriously though, thank you to everyone who reads and supports this blog. We wouldn't be here without you.

Now, Vote Handbook!

November 25, 2013

Woman fired after getting sniffed by men 24 times may have a retaliation claim

nose.jpgPlay some Skynyrd, man!

(Just pretend the song is about reckless indulgences in the workplace, rather than drugs and needles and such, k?)

Well, this is a new one for me.

A woman claimed that she was employed as a leasing manager for four days. And during those four days, two male co-workers sniffed her 12 times each.

*** Carries the one, curses, grabs calculator ***

The woman further claimed that, shortly after she complained to her supervisor about the sniffing, she was fired without explanation.

Sounds like we may have viable retaliation claim: (1) complaint about sexual harassment; (2) termination; (3) complaint caused termination.

Amazingly, the United States District Court for the Northern District of Texas granted summary judgment to the employer, concluding that no reasonable juror in the woman's shoes would have viewed herself as a victim of sexual harassment. To paraphrase the lower court's logic: "It's not like these guys grabbed her or anything. And besides, it was harassment, not sexual harassment."

The Fifth Circuit Court of Appeals in this opinion was all like, "WTH!" Wait, the court actually said this:

We hold that there is a genuine dispute of material fact whether the maintenance men's behavior violated Title VII....The sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on Royal's sex. Indeed, it is difficult to imagine the maintenance men sniffing and hovering over Royal if she were a man.

Remember, sexual harassment can take many forms in the workplace. When you train your employees, and especially your supervisors who are tasked with receiving complaints of sexual harassment, educate them about the many ways in which an employee may be sexually harassed.

Including sniffing.

November 22, 2013

To all the employers too gun-shy to fire an employee on the day she returns from FMLA leave

fmla.jpegDid I scare you yesterday with my post about the part-time employee denied leave under the Family and Medical Leave Act who may have an FMLA retaliation claim after receiving full-time hours?

Well, your blogtender is here with a double shot of courage. (See what I did there?)

*** blogtender pours himself a double shot of something else ***

In Travers v. Cellco Partnership (opinion here), the defendant-employer put on its big boy/girl underpants -- your blogtender doesn't discriminate -- and fired an employee on the day she returned from FMLA leave.

Because, guess what? The employee was warned and disciplined about performance issues before she took any FMLA leave and the timing of her discharge was simply because she was on leave when the employer learned of her final misconduct.

And the employer won because, news flash, it ain't FMLA retaliation if the FMLA doesn't motivate the firing.

Now, before you start caution to the wind, keep in mind when the employer prevailed in this case: summary judgment. How much did the employer have to spend in legal fees to get there? Whatever the outlay, that money would be recouped from the plaintiff.

So, fire slow and hire fast.

*** just checking ***

November 21, 2013

FACT OR FICTION: Giving a part-time employee full-time hours may be FMLA retaliation?

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."

Come on, gang! Did you see yesterday's blog masterpiece? Those .gif's don't animate themselves. My little elves -- I'm classifying them as FLSA exempt by the way -- crank the wheel every time you land on the page. So, cut me some slack; I'm taking it easy today.

But, check this out. We have a part-time employee who claims that her three requests for leave under the Family and Medical Leave Act to care for a sick spouse are denied. Then, less than a month later, her boss gives her full-hours.

In this economy?!? What nerve!

But, possible FMLA retaliation claim?

Yes, according to a Maryland federal court in this opinion. Assigning full-time work to a part-time employee may constitute an adverse employment action, which, along with the protected activity (the FMLA request), and a connection between request and hours, completes the FMLA retaliation trinity.

So, learn from this and be careful about adjusting the terms and conditions of employment -- in any way that could arguably be construed as adverse -- shortly after an employee requests/takes FMLA leave.

November 20, 2013

Welcome to the Employment Law Blog Carnival: Hollywood Villains Edition

Welcome everyone to the Employment Law Blog Carnival. What you'll find after the jump is the best, recent posts from around the employment-law blogosphere all organized around a common theme.

So, yeah, we need a theme.

[Lousy blog rules]

Two years ago, we spun some tunes with the "Employment Law Blog Carnival: Jukebox Edition." That featured such hits like "If You Love HIPAA, Let Me See You Twerk It" and a Sex Pistols B-side hidden track about social media policies.

Last year, I went with the "Employment Law Blog Carnival: Hollywood Casting Call Edition." To the casual internet user, my writing in that post may have seemed, oh, what's the word, "deranged"? Here is an actual quote:

Stuart Rudner blogs "When trust has been destroyed: Just cause for dismissal." The Canadian adaptation, "Haste Makes Waste," is set for release next year and stars Dustin Diamond as Wayne Gretzky. No, not that Wayne Gretzky. Just some guy who plays a total screw-up and happens to have the same name as the "Great One," which, in turn, helps him to keep his job.

But, to you, my fans, you recognize it as something more than the product of some bad salmon I ingested just before a marathon two-finger typing session. It's gold!

So, mainly since my brain is fried from churning out this drivel -- free drivel -- every weekday, let's stick with the Hollywood theme. How about the Employment Law Blog Carnival: Hollywood Villains Edition? Hannibal Lechter would approve, I'm sure. You may even see him after the jump.

So grab some liver, fava beans and nice chianti and click through to read the carnival offerings...

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Continue reading "Welcome to the Employment Law Blog Carnival: Hollywood Villains Edition" »

November 19, 2013

EEOC focusing on national-origin discrimination -- what employers need to know

Thumbnail image for Thumbnail image for EEOC.jpgLast week, the U.S. Equal Employment Opportunity Commission held a public meeting in Washington, D.C. at which invited panelists spoke on national origin discrimination issues in today's workplace.

Participants discussed various recruitment and hiring issues; discriminatory treatment in assignments; pay discrimination; language and accent issues; effective communication and access issues; harassment; and retaliation.

The EEOC's event press release highlighted some comments and issues of which employers should take note. Most notably, one management-side lawyer, Douglas Farmer, testified that the multi-cultural workplace presents challenges for employers. For example, based on their cultural background, some men may find it difficult to have a female supervisor.

The press release highlights some of the solutions Attorney Farmer proposed:

Farmer cited the need for extensive education about both rights and responsibilities under the law. He suggested that the EEOC develop training modules in a variety of languages as well as a model anti-harassment policy, and make them available on its website for employers to download.

You can read the full written testimony from Attorney Farmer, as well as the other panelists here.

While the EEOC sorts these issues out, proactive employers will want to consider second-language employee handbooks and obtaining legal advice before implementing an "English-only" policy in the workplace. Both of these approaches can help you avoid facing charges filed with the EEOC.

November 18, 2013

The prison guard who left the work-release inmates unattended lost his discrimination claim

friedchicken.JPGYeah, I know. Shocker, right?

A prison guard for the Arkansas Department of Corrections drove 27 work-release inmates in a van to a parking lot next to a fried chicken joint. Rather than hit the drive thru, the prison guard left the 27 criminals in the van and went inside to place his order.

For what it's worth, the prison guard testified that there were no other customers ahead of him in line. Further, the prison guard thought that his chicken stop did not violate any employer policy or rule.

[Can't wait until I revise my next prison guard handbook to include the "Don't leave work-release inmates alone in a getaway vehicle to order fried chicken" policy].

So, yeah, dude got fired.

He filed a grievance and lost. Then he sued for race discrimination in federal court, and now finds his out-of-court self the subject of a snarky post on an employment-law blog.

Why did he lose in federal court, you ask?

Would you believe that the prison guard was unable to show that his former employer's reasons for fire him were pretext for discrimination? Specifically, the prison guard couldn't point the court to anyone who had also gone on a chicken run and left 27 work-release inmates unattended.

The opinion is silent about whether he enjoyed the chicken.

The case is Beard v. Arkansas Dep't of Correction.

This post has been updated to remove typos.

November 15, 2013

NLRB ok's firing of two employees who trashed their company on Facebook

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It's been a while since we've discussed discipline for employee Facebook behavior. So, let's go over some basics. Generally speaking:

  1. one employee, griping alone on Facebook about his employer, can be fired; but

  2. two employees, complaining together on Facebook about their employer, cannot be fired.

The distinction is that the two employees are engaged in concerted activity -- group discussion of workplace issues -- which, even in a non-union private-sector workplace, is protected under the National Labor Relations Act.

However, as two employees recently learned, concerted activity has its limits -- even on Facebook.

Moore and Callaghan worked for a non-profit in California -- right up until their employer learned about this conversation on Facebook:

Moore: U goin' back or no??
Callaghan: I'll be back, but only if you and I are going to be ordering shit, having crazy events at the Beacon all the time. I don't want to ask permission, I just want to be LIVE. You down?
Moore: I'm goin''' to be a activity leader I'm not doing the t.c. [sic] let them figure it out and they start loosin' kids I ain't help'n HAHA
Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we'll take advantage, play music loud, get artists to come in and teach kids how to graffiti up the walls and make it look cool, get some good food. I don't feel like being their bitch and making it all happy-friendly middle school campy. Let's do some cool shit, and let them figure out the money. No more Sean. Let's fuck it up. I would hate to be the person taking your old job.
...
Callaghan: hahaha! Fuck em. Field trips all the time to wherever the fuck we want!
Moore: U fuck'n right see you

After the employer canned both Moore and Callaghan, Callaghan pursued an unfair labor practice claim with the National Labor Relations Board.

An Administrative Law Judge determined (here) that this Facebook conversation did constitute concerted activity. However, the ALJ upheld the termination, concluding that the employer reasonably believed that the Facebook comments jeopardized the employer's funding and the safety of the youth it serves. 

Of course, it will not surprise me if this goes up to the full Board on appeal and gets reversed. 

Since taking an acute interest in social media and the workplace, the Board's position has been that employees have a fairly unfettered right to discuss terms and conditions of employment together on Facebook. Thus, if you have employees who engage in similar online behavior, whether you are unionized or not, don't count on a termination holding up if the matter is presented to the Board.