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.

April 16, 2014

The ADA may require companies to accommodate employee theft. Yep, stealing.

Back in 2011, the U.S. Equal Employment Opportunity Commission sued Walgreens from disability discrimination. Specifically, the EEOC claimed that Josefina Hernandez, a cashier at Walgreens' South San Francisco store, who suffered from diabetes, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar).

The EEOC further alleged that Walgreens knew of Ms. Hernandez's disability and fired Ms. Hernandez after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty.

It's all here in the EEOC's September 2011 press release.

Now, fast forward to 2014, and a California federal court has just ruled in this opinion that the EEOC may be right. That is, Ms. Hernandez claim's of disability discrimination just survived summary judgment and is headed for trial.

In its defense, citing the EEOC's own guidance for employers, Walgreens claimed that it can never be a reasonable accommodation to require an employer to accommodate employee theft.

However, the Court refashioned the issue as whether an employer under the ADA is required to make a reasonable accommodation with respect to an employee whose disability caused that employee to violate a company's workplace rule. To which Walgreen said, well, yeah, other guidance from the EEOC supports our position too.

But the court wasn't buying it (pun, partially intended), deferring to a jury on whether Walgreens could treat Ms. Hernandez as it did other employees, or accommodate her misconduct:

"Under the Ninth Circuit case law, misconduct resulting from a disability has to be considered as part of Hernandez's disability and creates a question of fact as to whether Hernandez's disability was causally related to her termination. In other words, whether or not Hernandez's disability was, in fact, a cause of her misconduct is a question of fact for the jury. Similarly, whether Walgreens should have been required to 'accommodate' her stealing as a 'reasonable' accommodation is for the jury to determine."

Strangely, although the court concluded that "it is clear that Hernandez was fired because of her 'misconduct' in taking the chips without paying for them," it also underscored that "Walgreens has not established as a matter of law that Hernandez's conduct was 'stealing.'"

So which is it? Did she steal the chips or not? And how can an employer possibly be required to accommodate theft? Frankly, I can't make heads or tails out of this opinion.

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

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P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. It's all that and a bag of chips.*

(*But, you need to pay for the chips.)

April 15, 2014

What are employers doing about employees who do their taxes -- at work!?!

Today is tax day, or, as I like to call it, sonofa---!

Actually, I get a nice refund this year. I guess that's what happens when you have four kids under five. Which reminds me, I should ask, do any of you babysit? Because I have Verizon Fios and a jar of Marshmallow Fluff to sweeten the offer.

What? Where was I?

Oh yes, did you know that 30% of workers say that it is common to use company resources like the copier or printer to complete their personal income tax paperwork -- which they prepare during business hours.

That's from a survey quoted in this article from Jeff Blumenthal at Philadelphia Business Journal.

So what can employers do about this?

Wait, you're still here? I'll give you a hint. Go read Jeff's article.

(I'm quoted).

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P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. It's got to be better than the US Airways Social Media All-Stars Group, amirite?

April 14, 2014

This is one badass labor and employment law roundtable

Recently, several local lawyers and I participated in a labor and employment law roundtable for The Legal Intelligencer.

Actually, the table was rectangular. But, the coffee and muffins were free, so I didn't complain.

Well, not until I dropped my pants and mooned the employee-rights lawyers on the panel. Trust me, they had it coming. 

Actually, they were quite polite and articulate. So, fortunately, they edited my butt-cheeks out.

I'm a real peach.

What were we talking about again?

Right, the roundtable. We debated several topics:

  • background checks
  • social media in the workplace
  • employee leave issues
  • dating in the workplace
  • BYOD
  • my 28 inch blog pythons

Here is the transcript.

April 11, 2014

A 79-year-old teacher was fired for refusing to unfriend her students on Facebook

Thumbnail image for facebookprivacy.jpgA teacher getting in trouble for something having to do with Facebook?

You don't say...

The full story, plus another state has passed a social media workplace privacy law. I've got it all for you after the jump...

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Continue reading "A 79-year-old teacher was fired for refusing to unfriend her students on Facebook" »

April 10, 2014

What's hot at the EEOC? Plus, a legal roadmap for managing the aging workforce.

Thumbnail image for bagelcreamcheese.jpg

Whatcha doin' two weeks from today?

Want to grab some breakfast with me? Maybe hear about what's hot at the EEOC and get a legal roadmap for managing the aging workforce?

In you're in the Philadelphia area and would like to learn more about these topics, then come on down to our offices on Thursday, April 24 at 8:30 AM for a free presentation with a complimentary continental breakfast. Lawyers can get CLE. HR credits will also be offered.

The only bad news is that you'll have to hear me flap my gums for an hour about best practices to avoid becoming an EEOC target. And since I can't seem to blog my way out of a paper bag, you can imagine how (in)articulate I'll be. Fortunately, my co-presenter from the EEOC, Mary Tiernan, will rock thy world.

Plus, my Dilworth Paxson colleagues will school you on the legal issues of which you should be aware when dealing with your older employees.

If you are interested in attending, click here for more details and to RSVP.

Mention this blog and I'll get you an extra pat of butter to go with your continental breakfast.

After all, I take care of my VIPs.

April 9, 2014

Playing golf and having sex are major life activities under the ADA

golfhole.jpgWhen Congress enacted the Americans with Disabilities Act Amendment Act, which went into effect on January 1, 2009, it indicated that one of its purposes was to "convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis."

I vaguely recall some of the floor discussion in anticipation of the passage of the ADAAA:

"I yield to the Senator."

"Thank you, Senator. With all this discussion about amending the Americans with Disabilities Act to more broadly define the definition of disability, I wonder aloud whether we need to explicitly include playing golf and -- err -- making whoopie in that list of major life activities that includes with sleeping, walking, standing, lifting, and bending. I'm just sayin is all..."

(silence)

"Yeah, probably not necessary. I yield the floor..."

Well, guess what?

In this federal appellate decision issued late last month, that's basically what the court said.

A plaintiff sued his former employer alleging a violation of the ADA. The employer claimed that the plaintiff's back injury did not constitute a disability. Except, the plaintiff's physician submitted an affidavit, which stated that the the back issues impacted the plaintiff's ability to walk, bend, sleep, and lift more than ten pounds.

Noting that each of these activities is specifically enumerated in the list of ADA major life activities, the court had little trouble concluding that the plaintiff was, indeed, disabled.

But, then, there was that sex and golf thing. Although not specifically listed as major life activities, they're kind've a big deal:

"Second, although Mr. Mazzeo testified at his deposition that his back problems only affected his ability to play golf and have sex, the district court read that testimony too broadly. The questions that were posed to Mr. Mazzeo did not contain a specific time frame, making it unclear whether his answers referred to how he felt before his operation in March of 2009, or after his operation...We therefore do not think that Mr. Mazzeo's deposition testimony warranted summary judgment in favor of CRI."

The implication here is that if the plaintiff's pre-operation back trouble substantially limited his ability to [insert one of many golf double entrendres here], then he is disabled.

So, learn from this case. No, I'm not saying [insert one of many golf double entrendres here]. What I am saying; however, is that if an employee comes to you requesting an accommodation for a purported disability, don't expend a lot of brain cells contemplating whether the employee is disabled.

Instead, focus your energy on discussing with the employee what reasonable accommodation(s) will allow that employee to perform the essential functions of the job.

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P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. It's practically a major life activity.*

*Not really. Actually, not at all.

April 8, 2014

ACA Update: Why Your Company Should Be Tracking Employees' Hours Now

stetho.jpgMy Dilworth Paxson colleagues, Matthew Whitehorn and Richard Smolen, recently published an important alert about how keeping good employee records now can help protect your business from future "play or pay" penalties under the Affordable Care Act (Obamacare).

You can view a copy of it here.

Tomorrow, I plan to be less lazy and actually have a post of my own.

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P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. Guaranteed 50% less snarky than this blog.

*Guarantee does not apply in the continental United States or anywhere else where human life may be found. So, yeah, no guarantees.

April 7, 2014

Announcing The Employer Handbook LinkedIn Group

linkedinlogo.jpegDrums, please.

[Eh. Let's try that again...]

Drums, please!

We've finally got ourselves a LinkedIn Group.

You can join here.

April 4, 2014

3d Cir. on FLSA successor-in-interest liability. Or, as I like to put it, "No Blog Hits" Day

I was on such a roll this week. 

You guys were digging the heck out of my peeing in the breakroom post, David Crosby the alcoholic, and the one about a supervisor offering cash to sleep with an employee's wife.

You know who even read that last one? Scan down to the blog comments. Yep, that's a comment from the plaintiff himself. OMG!!!

But, can you hear the crickets now? I mean, cue the tumbleweed, because if there's anything that grinds momentum to a halt here at The Employer Handbook, it's a post about the Fair Labor Standards Act.

But, since the Third Circuit Court of Appeals, which is in my hood and surely knows what a jawn is without me having to hyperlink that jawn, issued this precedential opinion on FLSA successor-in-interest liability yesterday. So, it's the least I could do.

Well, the least I could do is cut right to the chase. So, here's the money shot:

"The imposition of successor liability will often be necessary to achieve the statutory goals [of the National Labor Relations Act and Title VII] because the workers will often be unable to head off a corporate sale by their employer aimed at extinguishing the employer's liability to them. This logic extends to suits to enforce the Fair Labor Standards Act....In the absence of successor liability, a violator of the [FLSA] could escape liability, or at least make relief much more difficult to obtain, by selling its assets without an assumption of liabilities by the buyer (for such an assumption would reduce the purchase price by imposing a cost on the buyer) and then dissolving."

So, buyer beware and either pay less for the acquired company or ---

Hey, is anyone still here? Bueller?

April 3, 2014

2 million reasons to avoid the EEOC's same-sex-harassment crosshairs

Thumbnail image for cashpile.jpgLast night, I read this press release from the United States Equal Employment Opportunity Commission, announcing a $2 million recovery for 50 male employees of a New Mexico automobile dealership.

What happened, you say? From the press release:

"In its lawsuit, the EEOC charged a former lot manager, James Gallegos, under the direction of Charles Ratliff, Jr., then general manager, with subjecting a class of men to egregious forms of sexual harassment, including shocking sexual comments, frequent solicitations for oral sex, and regular touching, grabbing, and biting of male workers on their buttocks and genitals. The EEOC also alleged that Pitre retaliated against male employees who objected to the sexually hostile work environment. During the pendency of the lawsuit, the retaliatory actions of Pitre raised such concern that a U.S. District Court judge granted a preliminary injunction against Pitre, prohibiting the dealership and all of its agents from threatening or engaging in retaliatory actions against case participants."

Now, that is some messed up ish.

(Gawd, if I had a nickel for every time I used that line in a court filing...)

So, here's my HR pro-tip of the day: Grab your employee handbook. Turn to the anti-harassment policy. If it doesn't specifically reference same-sex sexual harassment, then update that jawn right away.

Because the EEOC is taking it hella-seriously

(that nickel thing again...)

April 2, 2014

A post about David Crosby, alcohol, and the ADA

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On Monday, it was public urination.

Yesterday, we had indecent proposals.

And today, the blogging gods, in which I hold a sincerely-held belief, serve me up this federal court opinion about an alcoholic named David Crosby -- not that David Crosby, but still --  who sued his former employer for supposedly violating the Americans with Disabilities Act, as a result of his termination of employment after a 30-day stint in rehab.

Oh, sweet child! Someone catch me; I do believe I have the vapors.

Let us rejoice in the bounty together, after the jump...

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Continue reading "A post about David Crosby, alcohol, and the ADA" »

April 1, 2014

When the supervisor offers an employee $$$ to have sex with his wife, that's not gender bias, you guys

cashpile.jpgTerribly sorry about the confusion created by my sloppy use of possessive pronouns in today's lede. The "his" wife refers to the employee's wife. Otherwise, this post doesn't make any sense, does it? (Don't spend too much time contemplating the question, ok).

Yep, just another Tuesday at The Employer Handbook.

Click through for what should prove to be a cluster of a gender discrimination claim contain many valuable takeaways for proactive employers.

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Continue reading "When the supervisor offers an employee $$$ to have sex with his wife, that's not gender bias, you guys" »

March 31, 2014

The guy who was fired for peeing in a cup in front of his co-worker claims disability discrimination

peecup.JPGI'm pretty sure Larry David had this written into the Seinfeld Parking Garage episode before making a last-minute script change to uromysitis.

I would have stuck with the former. But, Mr. David is a comedic genius and I just write this crappy blog. 

How bad is this blog, you ask? I was contemplating using the words "wicked pissah" in the lede, only to realize that I'd already used them.

Then again, you're the ones reading this. Go ahead. Click through to read more after the jump...

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Continue reading "The guy who was fired for peeing in a cup in front of his co-worker claims disability discrimination" »

March 28, 2014

About last night...

team.jpgSorry, gang. Last night was my fantasy baseball auction. And I got home hella-late. So, no post today.

Ahhhhhh, I can't totally leave you hangin'. So, you can read about how the University of Northwestern football team can now organize and form a union (here), or you can grade my fantasy baseball team (right) in the comments below.

Oh, no. Meyer's slacking. Let the unsubscribes begin!

(Well, maybe, I can salvage this with some Adele Dazeem).

Have a nice weekend.

March 27, 2014

Wages aren't confidential, you guys. Your employees can discuss them.

bankvault.jpgOver the past several years, seemingly, we're seen the NLRB take a more active interest in employee handbooks. 

We've certainly seen it with respect to social media policies; especially, where these policies purport to limit the rights of employees to discuss their employment with one another. This is because Section 7 of the National Labor Relations Act allows employees to discuss their terms and conditions of employment together.

And you don't need to have a union either. The act applies in most every private-sector workplace.

So, whether it's employees gabbing about how their workplace sucks, or how they are being underpaid, you can't forbid that.

This holds true even if you have a workplace policy which categorizes wages as "confidential." The National Labor Relations Board won't have any of that. 

And, most recently, the Fifth Circuit Court of Appeals reaffirmed it in this case, by underscoring that "a workplace rule that forbids the discussion of confidential wage information between employees patently violates section 8(a)(1) [of the Act]."

Indeed, even a workplace rule that doesn't expressly lump wages into the definition of "confidential information" can still be overbroad and, therefore, unlawful. 

The company's "confidentiality" policy highlighted in the Fifth Circuit opinion didn't mention wages explicitly. Instead, it precluded discussion of company "financial information, including costs." Both the NLRB and the Fifth Circuit concluded that an employee could reasonably construe this language to preclude discussion of wages.

Therefore, when drafting your confidentiality policy language, consider carving out wages and benefits specifically, or more narrowly defining your confidential information so that a reasonable person wouldn't read the policy to preclude discussion of their paycheck.

Image Credit: Minneapolis Institute of Arts on Flickr