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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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February 21, 2014

"May it please the Court. Being overweight is just like having a neon-green mohawk."

greenmohawk.jpgThat's how I start my next oral argument when defending a claim made under the Americans with Disabilities that one of my employer clients regarded an overweight plaintiff as disabled.

So, who wants some of what I'm drinking today?

Hey, it's peppermint tea, jerk! And I'm not pulling this blog lede out of my butt. Well, not completely, I'm not.

Check out this recent federal court decision in which a plaintiff alleged that her former employer violated the ADA by firing her because it regarded her as morbidly obese.

Now, for those of you who are a little rusty on the "regarded as" ADA claims...

*** pulls collar ***

The ADA covers those individuals whom an employer regards as having a disability, even if they don't actually have one. A plaintiff establishes a "regarded-as" claim by showing "that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

(More on "regarded as" here)

So, getting back to this recent case, in the context of a "regarded as" ADA claim, the judge likened being overweight to having a neon green mohawk, neither of which qualifies as a disability:

"Plaintiff's argument improperly equates a physical characteristic (i.e., overweight status) with an impairment. However, plenty of people with an 'undesirable' physical characteristic are not impaired in any sense of the word. To illustrate the point, suppose plaintiff wore her hair in a neon green mohawk. Such an unconventional hairstyle choice might be viewed as unprofessional, and might well impede her efforts to sell hospice services to physicians and senior living facilities, but it obviously is not a physical impairment. The same goes for weight. An overweight sales representative may have difficulty making sales if the prospective customer perceives her appearance to be unprofessional, but that does not render her weight a 'physical or mental impairment' within any rational definition of the phrase. At most, plaintiff's evidence is that Merrell perceived that Gentiva customers were less likely to purchase hospice services from an overweight sales representative (just as they would be less likely to purchase such services from a sales representative sporting a green mohawk). Neither the hairstyle nor the weight is an actual or perceived impairment in that scenario. Yet that is all plaintiff offers on summary judgment."

Now, of course, there may be situations in which morbid obesity could be an actual disability, where it affects a major life activity. Similarly, an employer could perceive an overweight employee to be disabled. 

Just don't let that perception motivate you to fire the employee. 

Then, you'll have more problems than the dude in the neon green mohawk.

Image Credit: Alechemy Overload on Flickr

(h/t Disability, Leave & Health Management Blog)

February 20, 2014

Well, that's a messed up workplace religious accommodation request

halloweenface.jpgHere's a little HR Pro Tip from your old pal, Eric.

If, around Halloween time, an employee requests permission to hand out bags of candy containing "gospel tracts," which depict Muslims and Catholics and state that they should all go to hell, you just go ahead reject that religious-accommodation request.

(More on religious accommodations here)

Cuz even though that employee may sue and have her case make it one step below the United State Supreme Court, she will lose.

While this is definitely an extreme example, employers should be careful not to favor one religion over another. However, they are not required to permit proselytizing in the workplace, especially when the message includes bashing other religions.

February 19, 2014

Does the ADA require accommodating a graveyard shift employee with insomnia?

mrsandman.jpgLet's assume that you run a factory in which employees are scheduled on one of two shifts: (1) 6:00 AM - 6:00 PM; or (2) 6:00 PM to 6:00 AM.

One of your employees comes to you with a doctor's note which states that working the graveyard shift will cause the employee to suffer migraine headaches and insomnia.

The Americans with Disabilities Act requires that employers accommodate employees with disabilities if doing so will allow the employee to perform the essential functions of her job without creating undue hardship for the employer. One way in which an employer can reasonably accommodate an employee is through schedule adjustment or shift change.

So, if the employee who is susceptible to migraines and insomnia at night asks to stay on the day shift, must you oblige?

This recent federal court opinion describes a situation in which the answer is yes:

Construed in a light most favorable to Plaintiff, the evidence shows that Plaintiff notified Defendants of her extreme insomnia and migraine headaches through a doctor's note, a letter, and verbally alerting them to her conditions. Defendants also were aware that her conditions were triggered if she worked a graveyard shift past 12:00 a.m. Aware of Plaintiff's conditions, Defendant Lopez scheduled Plaintiff for standby, including the possibility that Plaintiff would be called to cover graveyard shifts.

* * *
Defendants do not present evidence that allowing Plaintiff to be excused from working the graveyard shift on April 6, 2011, would have caused them an undue hardship.

Indeed, the employer admitted that it scheduled Plaintiff to work the graveyard shift because of other employees' concerns that Plaintiff was working only day shifts. Thus, working the graveyard shift, in this particular setting, was not an essential job function. Plus, any alleged hit to employee morale caused by allowing the Plaintiff to continue to work the day shift could hardly be construed as undue hardship to the employer.

Now, there may be situations in which the economics or the overall impact in readjusting schedules could present undue hardship for an employer. But, remember that the burden is on the employer to show undue hardship and a court is not just going to accept the employer's say-so if it raises that defense. So, be prepared to back up that undue-hardship defense with numbers and facts.

Otherwise, make the accommodation for your disabled employee.

February 18, 2014

Bad things happen when management laments to HR that black people are ugly

teeth.pngJust a reminder that some managers still engage in really stupid behavior.

I was reading this case about an HR Manager of a dentistry practice.

Following an interview between a dentist in her practice and an African-American woman, the dentist allegedly commented to the HR Manager that the person would not be hired, as there were already too many blacks in Lewisville. The HR Manager then supposedly responded that "race is irrelevant." 

And, after the HR Manager told another member of management what had transpired, the manager stated that there were too many blacks in Lewisville and that they were ugly.

Shortly thereafter, the company sacked the HR Manager, to which she responded that her termination was retaliatory; i.e., for complaining about her former employer's discriminatory actions.

In defending the lawsuit, the defendants first contended that the plaintiff had failed to establish that she had complained about discrimination.

Since, all that is required to demonstrate a complaint about discrimination is an understanding that the plaintiff is protesting discriminatory conduct, the plaintiff responded to the defendants' argument, "Like, duh." that her discussion with management was to advise the company of the wrongness of the hiring dentist's conduct and cause him to change his course of action.

Not surprisingly, the court accepted this argument.

Like, duh.

Undeterred, the defendants argued that the plaintiff could not connect her comment to her termination. The plaintiff responded that the proximity in time between her comment and her termination would suffice. Further, she argued that the defendants' reasons for firing her were pretextual, especially in light of Defendants' chief financial officer's statement that the plaintiff had been terminated because "she hired too many blacks."

Good gawd!

The defendants argued that it had a number of non-discriminatory performance-related reasons for terminating the plaintiff's employment, and those may be true. However, allegations of racist statements attributed to multiple members of management is also a very good reason to settle a case.

And increase the sensitivity training budget.

(But then again, if the allegations in this particular case are true, I don't know that any amount of training would fix such a systemic problem of prejudice).

February 14, 2014

3 minor leaguers claim Major League Baseball violated the Fair Labor Standards Act

mlbstadium.jpgWhen you think of minor league baseball, you may draw on movies like Bull Durham or The Rookie; long bus trips from stadium to stadium where teams play in front of small crowds for small pay.

Well, apparently, the pay may be small enough to trigger a violation of the Fair Labor Standards Act

As pitchers and catchers being to report for Spring Training, Craig Calcaterra at NBC Sports HardBall Talk reports here that three minor league baseball players have initiated a putative class action in federal court against Major League Baseball, among others. In the Complaint (copy here), the plaintiffs allege violations of the FLSA stemming from the failure to pay minimum wage and overtime for working more than 40 hours per week.

Over at CNNSI, Attorney Michael McCann, discusses the case here and notes that the defendants are not without defenses:

Baseball will argue that professional athletes are not entitled to overtime pay. The life of a professional athlete commands atypical hours and an arduous work schedule. Some of this work may also be more in line with a player's own professional development than his employment. Baseball will surely cite case precedent and Department of Labor Wage and Hour Division materials that support an argument that minor leaguers are exempt from wage and overtime benefits. Baseball might stress that under the FLSA, "professional employees" are usually exempt from FLSA benefits and that classification includes those who perform original or unique work.

Indeed, the FLSA has a seasonality test, which could exempt baseball teams from having to abide by the minimum wage and overtime requirements. 

Here is a case in which the Sixth Circuit Court of Appeals determined that the Cincinnati Reds did not qualify for the exemption. And here is a case where the Eleventh Circuit determined that a minor league baseball team did meet the exemption.

How this one will turn out is anyone's guess. But, I'll keep a close eye on this one for you.

February 13, 2014

FACT OR FICTION: Snow + Office Closed = FMLA Day

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."

One of your employees is currently using FMLA leave. Today, due to the winter storm, you've decided to close the office. 

Do you still count today's snow-induced office closure towards the 12 workweeks of FMLA to which your employee is entitled?

Answer: It depends.

  • If the employee would have otherwise taken the entire week off on FMLA leave, then today can be charged as an FMLA day just the same.

  • If, however, you employee is using FMLA leave in increments of less than one week, the snow day will not count against the employee's FMLA entitlement, unless you expect that employee to come to work.

February 12, 2014

Are lots of your severance agreements retaliatory? EEOC says yes.

Thumbnail image for Thumbnail image for EEOC.jpgWhen your business offers a severance agreement to a departing employee, does it contain:

  • a general release;
  • a non-disparagement obligation;
  • a confidentiality provision;
  • a covenant not to sue; or
  • a cooperation clause

Well, if it contains any one (or more) of these provisions, head over to Jon Hyman's Ohio Employer's Law Blog right away to learn about a new lawsuit that the EEOC has filed in which it alleges that each of these common severance-agreement provisions amounts to retaliation.

If the EEOC prevails here and in subsequent similar actions in other jurisdictions, the effects would be game-changing.

So, definitely go to Jon's blog for more information.

February 11, 2014

An employee sued her employer for involuntary servitude. Yep, slavery.

publcienemy.jpgYesterday, I read a post over at Business Management Daily about an employee who sued for involuntary servitude.

Yes, folks. The plaintiff claimed that her former employer had treated her like a slave. 

Specifically, the plaintiff, a trainee of some sort, alleged that she was never provided with a job description or adequately trained.

(Stop me if this sounds familiar)

The plaintiff next alleged that her supervisor specifically told her that normal working hours were Monday through Friday from 9:30 a.m. to 5:00 p.m.

(I don't know about you, but I just stepped away for five minutes to update my resume to submit to the defendant)

The plaintiff further alleged that she worked in less than ideal working conditions, where she wasn't compensated for any work performed in excess of forty hours per week, including the work she was required to take home with her and perform on the weekend.

(Ok, maybe not resume worthy, and a possible FLSA violation to boot. But slavery?)

No slavery according to the United States District Court for the Middle District of Pennsylvania (opinion here):

In the present case, plaintiff alleges challenging working conditions. Plaintiff's work environment, however, does not evoke in the court's mind the burdens endured by the African slaves in the cotton fields or kitchens of the antebellum south. Moreover, the general defense against oppressive hours, pay, working conditions or treatment is the right to change employers. Plaintiff never claimed that the defendants physically restrained her or prevented her from leaving work. Rather, she always maintained the right to walk away from defendants' employment. In short, plaintiff has not alleged that her employment with defendants rose to the level of involuntary servitude.

What's the takeaway here? Oh, I dunno. Don't violate the 13th Amendment.

February 10, 2014

New Philadelphia law requires accommodations for pregnant employees

Thumbnail image for philadelphia.jpgLate last month, Philadelphia Mayor Michael Nutter signed this bill, which requires reasonable workplace accommodations for employees who have needs related to pregnancy, childbirth, or a related medical condition.

As noted in this prior post about Philadelphia's new law, reasonable accommodations would include, but are not limited to, restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.

An employer can avoid having to provide a workplace accommodation, but will have the burden of proving "undue hardship." The "undue hardship" factors generally mirror those found in the Americans with Disabilities Act and revolve around the cost of the accommodation and the employer's overall financial resources.

Philadelphia's new pregnancy accommodation law went into effect when Mayor Nutter signed the bill. Within 90 days, local employers will have to post notice of the new law in the workplace. The City is in the process of preparing that notice.

February 7, 2014

New bill in Congress will revamp FMLA to cover smaller employers

fmla.jpegHow about cutting the 50-employee requirement for covered employers in half? 

So, if you have 25 or more employees working within 75 miles of one another, they would be eligible to take leave under the Family and Medical Leave Act.

And that's just part of the Family and Medical Leave Enhancement Act of 2014, which Rep. Carolyn B. Maloney (D-NY) introduced in the U.S. House of Representatives earlier this week.

Eligible employees would also be able to "participate in or attend an activity that is sponsored by a school or community organization and relates to a program of the school or organization that is attended by a son or daughter or a grandchild of the employee."

A covered employee could also use FMLA to "meet routine family medical care needs, including for medical and dental appointments of the employee or a son, daughter, spouse, or grandchild of the employee, or to attend to the care needs of elderly individuals who are related to the eligible employee, including visits to nursing homes and group homes."

We're talking major FMLA changes here.

For more on the Family and Medical Leave Enhancement Act of 2014, check out this press release from Rep. Maloney.

(h/t Ilyse Wolens Schuman @ D.C. Employment Law Update)

February 6, 2014

NLRB renews its effort to expedite union elections


Back in 2011, the National Labor Relations Board tried to pass certain rules that would have changed the union-election process in eight ways:

  1. Allow for electronic filing of election petitions and other documents.

  2. Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.

  3. Standardize timeframes for parties to resolve or litigate issues before and after elections.

  4. Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.

  5. Defer litigation of most voter eligibility issues until after the election.

  6. Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters' telephone numbers and email addresses when available.

  7. Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.

  8. Make Board review of post-election decisions discretionary rather than mandatory.

However, courts later determined that the Board didn't have the authority to pass any election-rule changes, because it didn't have enough Board members to have a quorum.

(Gawd, this post got real boring, real fast...)

Fast-forward a few years, the Board is fully-loaded. So, the Board is all like, why not try to get the rules passed again.

So, the Board will officially publish the rules today for public comment. Here is what SHRM said about the same rules back in 2011. And here is what others are saying about the resurfacing rules in 2014:

The public will have until April 7, 2014 to submit comments.

February 5, 2014

Employee claims discrimination, then her friend gets fired. Is that retaliation?


Back in January 2011, when I had only one child and an Aston Martin savings fund, the U.S. Supreme Court decided Thompson v. North American Stainless, LP. In that case, the Court held that an employer violates Title VII of the Civil Rights Act if it takes action against an employee who is in the same "zone of interest" as another employee who files a Charge of Discrimination with the United States Equal Employment Opportunity Commission.

In Thompson, a company received an EEOC Charge of Discrimination and allegedly fired the employee's fiancé in response. The Supreme Court held that, if true, this set of fact would amount to retaliation.

Now, fast forward to 2014. I have four children, I'm two Happy Meals away from declaring bankruptcy, and, last night, I dined on the leftover ketchup packets.

Meanwhile, the EEOC has filed an action on behalf of a woman who claims that she was fired because a co-worker, who happens to be her very good friend, complained about retaliation at work.

Does the fired friend have a claim for retaliation?

According to a New Hampshire federal court (opinion here), she may:

The complaint alleges that Mulcahey was a close friend of Wilkins, the individual who engaged in the protected conduct. The two women worked together at a prior company, and Wilkins was influential in procuring Mulcahey's job with Fuller Oil. On Mulcahey's desk at work she displayed birthday and mother's day cards from Wilkins alongside pictures of Wilkins's daughter and the two women together. The complaint also alleges that Fred Fuller knew of this close friendship. Fuller knew that the two women spoke frequently and spent time together out of work - as demonstrated by his statement about setting up a "play date" with the two women and Wilkins's daughter. When Fuller wanted to contact Wilkins, he asked Mulcahey about her whereabouts and requested her personal email address from Mulcahey. This relationship, as pled, exists somewhere in the fact-specific gray area between close friend and casual acquaintance. Although I could not say that such a friendship definitively supports a successful claim, I also cannot say as a matter of law that it does not.

Let's put the Thompson test aside for a sec. There's something really messed up if you're even considering firing anyone (other than the alleged harasser) as a response to an employee complaint of discrimination. 

Certainly not a move I'd recommend to a client.

February 4, 2014

Husband's "kill list" is your green light to fire an employee on FMLA

Take it from your ol' buddy Eric.

Let's say that your employee is on FMLA...

And let's say that, while your employee is on FMLA, you learn that her husband is involved in a motorcycle gang...

And let's say that your learn that the motorcycle-gang husband claims to knows how to hide bodies...

And let's say that the motorcycle-gang husband, the one who claims to know how to hide bodies, has compiled a "hit list" of employees in your workplace...

And let's say that your employee, the one on FMLA, the one with the motorcycle-gang husband who claims to know how to hide bodies and has compiled a "hit list" of employees in your workplace, claims to know how to hide weapons...

It's quite alright to fire the employee. That won't violate the FMLA.

And you should probably call the police too.

February 3, 2014

GUEST POST: Six Tips for Employers Filing for an H-1B Visa

guestblogger.jpgNotwithstanding the lopsided outcome in last night's game -- I'm not saying that the game was over early, but, at halftime, the NFL began preparing their shipments of "Denver Broncos: Super Bowl 48 Champs" apparel to third-world countries -- I'm bailing on writing a post. So, today we have a guest blog post at The Employer Handbook. It's from the folks at Intervisa.

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

* * *

Continue reading "GUEST POST: Six Tips for Employers Filing for an H-1B Visa" »

January 31, 2014

The hella-worst job interview blunders evah!

I heard this story once about a law-school graduate who was looking for his first job out of school. He applied to several local Philadelphia-area law firms, and ultimately received an interview from one of them.

The job interview was with two seasoned partners. 

According to this recent Career Builder press release, when it comes to a job interview, the first few minutes may be the most crucial. Nearly half (49 percent) of employers know within the first five minutes of an interview whether a candidate is a good or bad fit for the position, and 87 percent know within the first 15 minutes.

This particular interview started off well. But, less than 15 minutes in, the focus shifted.

You see, as most lawyers do, the partners eventually spent more of the interview time talking about themselves, than learning about the law-school graduate. Indeed, the "conversation" devolved into the lawyers complimenting each other on their legal acumen and many accomplishments:

"John here, just represented a multi-billion dollar conglomerate in an asset purchase of la-di-dah."

"Well, Ron, here, just won his three-week-long qui tam such-and-such in federal court."

"But John, here, also sits on the board of blah blah blah"

"And Ron..."

You get the idea. It reached the point where the law-school grad was unable to get in a word edge-wise. That is, until he politely interjected:

"Would you gentlemen like for me to leave the room so that the two of you may have some alone time together?"

How I wish I could have been a fly on the wall at the precise moment that the partners' brows furrowed and the "what the f**k did he just say?" look formed on their faces!

Hey, I would have hired that spunky law grad on the spot! But, from this employer's standpoint, it was a pretty big interview blunder.

Here are fifteen other memorable ones shared with CareerBuilder as part of its employer survey:

  • Applicant warned the interviewer that she "took too much valium" and didn't think her interview was indicative of her personality

  • Applicant acted out a Star Trek role

  • Applicant answered a phone call for an interview with a competitor

  • Applicant arrived in a jogging suit because he was going running after the interview

  • Applicant asked for a hug

  • Applicant attempted to secretly record the interview

  • Applicant brought personal photo albums

  • Applicant called himself his own personal hero

  • Applicant checked Facebook during the interview

  • Applicant crashed her car into the building

  • Applicant popped out his teeth when discussing dental benefits

  • Applicant kept her iPod headphones on during the interview

  • Applicant set fire to the interviewer's newspaper while reading it when the interviewer said "impress me"

  • Applicant said that he questioned his daughter's paternity

  • Applicant wanted to know the name and phone number of the receptionist because he really liked her

I think my story tops 'em. And below (and here) is another one that didn't make the survey. It's not safe for work, but it blows checking Facebook, hugs, and jogging suits out of the water. #Truth