The Employer Handbook Blog

I know. I know. Seems more like a "Tuesday" post.

Earlier in the week, I read this article on The Smoking Gun about a man who got busted giving wedgies to movie patrons outside of a Florida theater.

So, it got me thinking. 

Let's say that Chris from Accounting comes to you in HR, underwear flapping in the breeze, still red faced from a Pat-administered wedgie.

{What a day for Chris to forget to don the Rip Away 1000s, eh?}

To date, Pat's wedgie ways have not surfaced in the workplace. In fact, Pat has a clean disciplinary record.

So, what do you do? (And does it matter if Pat & Chris are male or female?)

Yeah, I'd like to know. 

Jennifer O'Brien has a master's degree in education and certifications as an elementary school teacher and supervisor.

All that education and no common sense.

You'll see what I mean after the jump. It's what we wordsmiths call a s&!*storm of a clusterf#%k.

* * *

Continue reading "Court ok's firing teacher who called students 'future criminals' on Facebook" »

The original working title for the post was "The Third Circuit takes a deuce on my 'Pottymouths' post." I meant it in the figurative sense. Otherwise, I would be at a loss for words with IT. 

More so than usual...

{Napalms browser history}

But, fortunately, good taste and high morals -- we're all about that here at the Handbook {cough} {fart} -- prevailed.

Click through to see what a federal appellate court had to say about whether a female plaintiff with an apparent propensity for the cursey-cursey may successfully pursue her sexual-harassment claims.

* * *

Continue reading "Who are YOU to tell ME that I'm not offended by sexual harassment?!?" »

I was reading this federal court opinion over the weekend. It involves a disability-discrimination claim brought by a deaf man who applied to become a lifeguard at a county pool, but didn't get the job because the county thought his disability would compromise swimmer safety. Plus, the town was not convinced that it could accommodate the deaf applicant because it couldn't be 100% certain that he could safely be on the lifeguard stand alone, without someone constantly by his side.

Folks, I'm guilty.

I'll admit, that when I started reading this opinion, I immediately jumped to the same conclusion as the county-defendant. How could it possibly be safe to employ a deaf lifeguard?

{Then again, my anecdotal knowledge of lifeguarding requirements suggests to me that the real professionals run in slow motion or, at the county-level, have minimal tolerance for pubescent tonsil-hockey schemes}

Well, did you know?

• A deaf man holds the record for most lives saved (over 900!) in his lifeguarding career.
• The ability to hear is unnecessary to enable a person to perform because distressed swimmers exhibit visual signs of distress, which a deaf person scanning his or her assigned area can detect.
• In a noisy swimming area, recognizing a potential problem is almost completely visually based.  Individuals who become deaf before age three have better peripheral vision than hearing individuals.
• According to the American Red Cross, there have been no reported incidents of drowning or near drowning of any individuals over whom a deaf lifeguard was responsible.

It turns out that if the county had made in an individualized inquiry regarding the applicant's ability to perform the job -- he passed all the lifeguard tests with flying colors -- or engage in an interactive process to determine whether he could be reasonably accommodated, it could have avoided litigation that progressed to one step shy of the U.S. Supreme Court.

That's an expensive lesson to learn.

Here are two ways for you to avoid the same mistake:

1. Conduct an individualized inquiry to determine whether an applicant's disability or other condition disqualifies him from a particular position. Put simply: don't jump to conclusions -- unless, of course, you like defending lawsuits.
   
   In the case noted above, the County's physician entered the examination room, briefly reviewed the applicant's file, and declared, "He's deaf; he can't be a lifeguard." This, from a physician with no education, training, or experience in assessing the ability of deaf individuals to work as lifeguards. An outside consultant further opined that the deaf applicant would be able to perform perfectly "100 percent of the time." But that's an impossible standard! 
   
   Learn from these mistakes.  The Americans with Disabilities Act requires the individualized inquiry. Employers must avoid acting based on stereotypes and generalizations about a disability. Instead focus on the the actual disability and the effect that disability has on the particular individual's ability to perform the job. And remember that individuals with disabilities cannot be held to a higher standard of performance than non-disabled individuals. Instead, have someone who is familiar with not only the applicant's disability but also the requirements of the position conduct the individualized assessment to determine whether the applicant is otherwise qualified.


2. Engage in an interactive dialogue. We've talked about this before. Covered employers have a duty to engage in an interactive process with a disabled employee or applicant, which requires communication and good-faith exploration of possible accommodations. The purpose of this process is to 'identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. Unless providing an accommodation would cause undue burden to the employer, it must do so.
   
   So, talk with the applicant and get a sense of what will and won't work to allow him/her to perform the essential functions of the job. You don't have to accept the accommodation that you are asked to provide. However, you do have to provide an accommodation it is reasonable.

Follow these two steps and you'll not only cut your risk of disability-discrimination claims, but greatly expand your employee talent pool.

Of course she does.

What does the Complaint say? And what can employers take away from it? Find out after the jump...

Continue reading "School-bus driver calls student "little bitch" on Facebook, gets fired, and sues?!?" »

Where did you think I was going with this post? 

(And you call yourselves Human Resource professionals). 

Just kidding. You know I love you.

Let me know in the comments below what kind of interactive dialogue / accommodation ideas you have in mind for these characters, and, ba-dee, ba-dee, ba-dee, that's all folks! 

Have a nice weekend.

Image credit: mcw026

In Centucky Kentucky, it's not retaliation to fire employees who complain about sexual favoritism.

Then again making apple-pie moonshine and using a butcher cleaver to slice off the arm of a Detroit gangster isn't frowned upon either. At least, that's what watching Justified teaches me.

But even in Kentucky, they have laws. No, it's true. 

After the jump, you'll see a KY federal court's rationale for the latest sexual-favoritism ruling. And I'll provide some tips for dealing with employees who complain about cushy assignments given to employees who get freaky with management.

Continue reading "Court countenances canning complainers of consensual canoodling" »

Three easy ways to tackle FMLA issues, without having to call someone like me. I'll explain after the jump...

Continue reading "3 essential FMLA tools for your HR-compliance arsenal" »

I assure you that what inspired this post had nothing to do with the facts of the case; namely:

1. the female plaintiff claiming that her female-lawyer boss groped her; or


2. the plantiff's Facebook posts about pole-dancing and calling her breasts "milk factories".

That's all purely coincidental. Indeed, it sounds like something out of Costanza's desk drawer. 

Actually, I'm posting this to share a very well-reasoned social-media-discovery judicial opinion that is a big win for employers. You'll see what I mean after the jump...

Continue reading "This is my new go-to social-media-discovery judicial opinion" »

No doubt, an early contender for 2013. 

Kind've like The Lincoln Lawyer -- except way less glamorous and with far more bounced paychecks and ejaculate. Yes, definitely more of those. Allegedly.

Read all about it here.

In anticipation of the current flu season, you decided to mandate that all employees get immunized. The problem is that one of your employees, a vegan, who won't ingest any animal or animal by-products -- especially not the microwaveable scrapple-wrapped tripe pops I keep in the lunchroom freezer -- refuses to get a flu shot because it's against her religious and philosophical beliefs.

What's her religion, you ask? Why veganism, of course.

WTH?!? Surely, you have no obligation to accommodate this "religion." In fact, you suddenly have the urge to brush her teeth with my frozen pops.

*** Ducks cauliflower ***

Well, guess what, carnivore? If you fire the employee for not getting the shot, you may have a religious-discrimination claim on your hands. 

So says an Ohio federal court in this recent decision. Indeed, an employer must accommodate an employee's sincerely-held religious belief, unless doing so would pose an undue hardship to the employer. When considering whether veganism qualifies, the Ohio court emphasized that "whether or not a practice or belief is religious is not an issue. . .religious practices . . . include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views." Plus, it didn't hurt that the plaintiff quoted the scripture when requesting a flu-shot accommodation from her employer.

*** And I plan to quote Biggie Smalls at compensation time ***

Ultimately, the court accepted that an employee may subscribe to veganism with a sincerity equating that of traditional religious views. Consequently, in certain curcumstances, a vegan can avoid an otherwise mandated flu shot, unless it would post an undue hardship to the employee. But I'm thinking a surgical mask could solve that problem.

Now, if you'll excuse me, somebody has a craving for thawing pops.

Me, that somebody is me.

UPDATE: If you're a California vegan, you're out of luck. As two readers noted on LinkedIn, in this case, a California Court of Appeal -- yes California?!? -- refused to recognize Veganism as a religion requiring accommodation under anti-discrimination laws. For more on the CA decision, go here and here.

Whatcha get the blog for its birthday? Was it an iTunes subscription to Season One of Amish Mafia?

Don't judge the blog. The blog doesn't like to be judged.

After the jump, the selfless blog got you a recap of seven recent National Labor Relations Board decisions affecting your workplace...

Continue reading "The Employer Handbook turns 2; and the NLRB keeps hatin' on employers" »

Same s**t; different year.

In 2010, an Ohio temp agency paid $650K as part of a Consent Agreement with the EEOC to settle claims that it had used code words in considering and assigning (or declining) job applicants. The code include words such as "chocolate cupcake" for young African American women, "hockey player" for young white males, "figure skater" for white females, "basketball player" for black males, and "small hands" for women in general.

Fast forward...

Cameron Langford at Courthouse News reports (here) that a Human Resources Manager just sued her former employer, a Texas temp agency, for what she claims was a wrongful discharge. Specifically, she alleges that she was fired after opposing the use of code words to fill placements. According to the article, the code words used included:

• "blue eyes" and "no sunscreen" = African-American
• "work all day" = Hispanic
• "Heavy lifting" = men (i.e., not women)
• "Energetic" = young (i.e., not old)

Eek!

It's no wonder that the EEOC will emphasize addressing discrimination in hiring over the next several years. Assuming that your business isn't using code words -- because you're not total scumbags -- now is the time to review other hiring criteria to make sure they do not disparately impact a particular protected class and are otherwise truly business-related.

Or, you can just wait until the EEOC comes knocking at your door. Your choice.

The newest right-to-work state is also the latest to ban companies from accessing password-protected social media accounts.

On Friday, Michigan Governor Rick Snyder signed House Bill 5523, prohibiting employers and educational institutions from asking applicants, employees and students for passwords and other account information used to access private internet and email accounts, including social networks like Facebook and Twitter.

Here's the skinny.

An employer cannot:

1. Request an employee or an applicant for employment to grant access to, allow observation of, or disclose information that allows access to or observation of the employee's or applicant's personal internet account.


2. Discharge, discipline, fail to hire, or otherwise penalize an employee or applicant for employment for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the employee's or applicant's personal internet account.

However, the new law specifically permits an employer to access: (i) employer-provided devices; (ii) business-related online accounts; (iii) employee social-media accounts in connection with certain workplace investigations. Employers can also continue to restrict access to certain websites and monitor employee communications on its network.

Michigan is the fourth state (Maryland, Illinois and California are the others) to pass a law of this type affecting employers.

*Do I need a disclaimer? Do I?

What a year for The Employer Handbook in 2012! I'm most pleased that, in our second year of existence, readership more than doubled. Although, sadly, the one 2011 reader I had from Papua New Guinea never returned in 2012. I hope she is ok. Yeah, she's ok.

So, what did my readers enjoy most in 2012? Well, apparently, y'all like Polka music. Why else would this be the most-clicked item on The Employer Handbook? What a strange cultured bunch!

As for actual HR/legal-related content, here were the top five based on total page views:

1. Legislation introduced to expand FMLA coverage in PA. I originally posted this in June 2011 and the bill never passed. Move on, people. Move on.


2. Facebook pics of employee boozing at a festival ruin her FMLA claim. This doesn't surprise me at all. I was at SHRM National in '12. I saw what happens when you provide HR "professionals" with access to karaoke and half-priced well drinks. Don't worry, I won't tell. ** Cancels Instagram account **


3. Ethics charges for two lawyers over Facebook friending a litigant. I'm not so sure that the two lawyers are pleased about this. (Note: I love you. All of you. Keep clicking). Nonetheless, my theory that misery loves company in the legal community is confirmed.


4. 4 new employment-law bills now pending in Congress. None passed. Yeah, I'm shocked too.


5. Pepsi and Criminal Background Checks: Beyond the Buzz. This one was a guest post from Janette Levey Frisch. I tried combining chloroform with Pepsi Kona to keep Janette all to myself; however, Janette now blogs at The Emplawyerologist. Make sure to check it out.

So, other than old PA legislation, soda, booze, and farting (Give that one time to breathe, I expect big things), what would you like to hear about in 2013? Let me know in the comments below and I will make all of your dreams come true.