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.

March 24, 2014

Plaintiff-employee destroys Facebook posts about her case; court destroys her

dentist.jpgLast month, a daughter's Facebook post cost her father an $80K age-discrimination settlement (more on that here). 

Last week, with some Facebook shenanigans, the plaintiff in a sexual harassment case screwed herself over.

(See what I did there?)

Heather Painter used to work for Dr. Aaron Atwood D.D.S.

According to Ms. Painter, one day at work, the good doctor -- err, dentist -- just happened to climb on top of her with his pants undone and held her down.

Dr. Atwood didn't exactly deny those allegations; however, he claimed that he was only attempting to tickle Ms Painter* and that the sexual nature of their relationship was consensual.**

[* Editor's Note: Like, with his penis? Ok, just kidding....]

[** Editor's Note: Ms. Painter was Dr. Atwood's babysitter too. Not kidding about that.]

Anyway, during litigation, the defendants, the dentist and his practice, wanted to obtain copies of Facebook posts from Ms. Painter in which she supposedly commented about how much she enjoyed her job, how Urgent Dental was a great place to work, and how Dr. Atwood was a great boss and she enjoyed working under with him.

Ms. Painter's counsel conceded that her client deleted those Facebook comments and that she deleted those comments after she retained counsel for this litigation. However, Ms. Painter argued that she should avoid court sanctions because the posts were not relevant and Ms. Painter was only 22 and didn't know any better that it's improper to destroy potentially relevant evidence after you sue someone.

The Court was, shall we say, non-plussed (opinion here):

"Plaintiff had an obligation to preserve her Facebook comments; she deleted the comments with a culpable state of mind, and the comments were relevant to Defendants' claim. Although Plaintiff's counsel may have failed to advise Plaintiff that she needed to save her Facebook posts and of the possible consequences for failing to do so, the deletion of a Facebook comment is an intentional act, not an accident, and the Court cannot infer that Plaintiff deleted Facebook comments which stated that she enjoyed working for Defendant Dr. Atwood, after she contemplated the instant litigation, for an innocent reason."

To sanction the plaintiff, the Court ordered the factfinder (i.e., the jury) should infer that the deleted Facebook posts undermine Ms. Painter's sexual harassment claims. Next to outright dismissal of the case, this is as bad a sanction as a court can order.

Given the potential that social media evidence can have on claims and defenses in an employment case, judges, like the one in the Painter case, do not tolerate intentional destruction of relevant social media content. Even accident erasure of this information may result in sanctions.

So, to all you employees and employers out there, be aware that, once there arises a reasonable anticipation of litigation, all potentially relevant evidence -- including social media content -- must be preserved. This is especially important for employers (and their counsel) who may be responsible for informing multiple employees of this duty to preserve.

March 21, 2014

This may just be the greatest union-avoidance banner evah!

Yesterday, I read with interest Jon Hyman's post at the Ohio Employer's Law Blog about how Target has employed a 14-minute training video to help keep its workplace union free. Gawker has posted a copy of the video here. Like a bear crapping in the woods, Gawker pokes fun of the Target video. Cheesiness aside, I find it to be pretty effective.

But Target ain't got nothing on Subaru of Wichita. (h/t Jeff Nowak)

Subaru of Wichita - 1
Local Carpenters Union - 0 

Amirite?

And before I tell you to have a nice weekend, I'm going to ask you to save April 24 for me. On that date, along with Mary M. Tiernan of the U.S. Equal Employment Opportunity Commission, I'll be headlining a breakfast briefing at Dilworth Paxson in Philadelphia. After a few of my colleagues offer a legal roadmap for managing your aging workforce, Mary and I will address what's hot right now at the EEOC, and offer up some best practices to stay out of the crosshairs of employment litigation. 

For more information about the event, click here.

Now, go on and have a nice weekend!

March 20, 2014

The March Edition of the Employment Law Blog Carnival is LIVE!!!

Carnivalphoto © 2010 Paul Newtron | more info (via: Wylio)Last night, after I arrived home, put my jacket away, and walked into the kitchen, something immediately caught my eye. On the kitchen table was a "Country Sweets Gourmet Cookie Dough" fundraising flyer from my son's school. 

My choice of five different flavors of raw cookie dough in a 48-ounce tub. And since it's all in the name of fundraising...

Easily the highlight of my day. Except.

Then, I remembered that email I received from Heather Bussing at HR Examiner informing me that she had just posted this month's edition of the Employment Law Blog Carnival: ELBC Walks Into a Bar. It's 1 collection of 17 recent employment-law posts from bloggers across the country, dotted with "[insert here] walks into a bar" jokes. We have a winner!

You can view it here.

Totally unrelated, but, I'm just curious. If it's you in the bar with a jukebox and one play left near last call, what's your go-to. 

Let me know in the comments below.

(Unquestionably, here's mine).

March 19, 2014

That's what she said: How to navigate the pitfalls of the FCRA

whatshesaid.jpgWhen the Fair Credit Reporting Act comes a knock knock knockin' on HR's door, who among you, will answer the call?

Fear not, kids. Cinch on your big boy/girl underpants! My colleague, Stacey Schor, in this post, has outlined a recent federal court decision that provides valuable guidance on how employers can comply with the strict requirements of FCRA, so that your hiring decisions are FCRA-bulletproofed.

This one goes out to all out FCRA freaks fans. Holler if you hear me!

March 18, 2014

Democrats seek to undo 2013 Supreme Court ruling defining workplace "supervisor"

Thumbnail image for CapitolHill.jpgHas the Supreme Court's 5-4 decision in Vance v. Ball State been keeping you up at night?

*** logs IP numbers; obtains restraining orders ***

Well, ok. I can see why some of you are sour on the 2013 Supreme Court decision holding that an employee is a "supervisor" for purposes of vicarious liability under Title VII of the Civil Rights Act of 1964 only if he or she is empowered by the employer to take tangible employment actions against the victim. 

(See my post on Vance here).

Whether a harasser is a supervisor matters because if the harassing supervisor fires, suspends, or takes some other similar action against the victim, the employer ends up writing a huge check. Otherwise, the employer has some outs arising from the same affirmative defense discussed in yesterday's post.

Seeking to deliver a proverbial football to the Vance decision groin undo the Court's decision in Vance, last week, Democrats in both the U.S. Senate and House of Representatives proposed legislation (Senate - here; House here), which would define "supervisor" to include those with authority to direct people's day-to-day work. And, according to this fact sheet, the bills would extend coverage to all federal anti-discrimination statutes.

Whether this legislation passes, take the opportunity to remind supervisors and non-supervisors alike that violations of your respect-in-the workplace will result in discipline, up to and including termination of employment.

March 17, 2014

Is it unreasonable to tell your boss to stop sexually harassing you?

sexharass.jpegI can actually feel the daggers that some of you are staring into me.

So, please allow me to reintroduce myself. My name is H-O explain.

How to demonstrate sexual harassment

When an employee sues for sexual harassment, he/she must show four things:

  1. he or she was subjected to conduct of a sexual nature;

  2. the conduct was unwelcome;

  3. the conduct was severe or pervasive; and

  4. objectively and subjectively altered the conditions of employment and create a discriminatory abusive working environment.

Often, even if the employee meets this burden, the employer can still prevail if it can show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff/employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Is complaining only to the harasser reasonable enough?

In this recent sexual harassment case, the employee met her four-element burden of establishing that her manager had sexually harassed her. The employer; however, maintained a sexual harassment policy in which it condemned the behavior and further encouraged employees to report sexual harassment.

But the plaintiff did complain -- to her manager/harasser only. She didn't go to HR. She didn't tell another supervisor. Instead, she told the manager to knock it off. Indeed, the manager promised that he would resign if the plaintiff didn't turn him in to HR.

Except he never did. Rather, it was the plaintiff who ended up resigning because she claimed that the workplace had become so intolerable to continue to working there.

So, did the plaintiff "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise?" According to the federal court hearing the plaintiff's case, maybe, but, maybe not:

"It may not be reasonable for an employee complaining of the sexual harassment to believe complaining to the very manager who is sexually harassing said employee would satisfy the goal of allowing an employer to investigate and respond to complaints of sexual harassment....This is in light of the fact that the policy provides for the complaint to alternatively be made to the human resources department."

Thus, this case will proceed to trial.

Steps employers can take to reduce sexual harassment.

Do I think that the plaintiff acted reasonably by telling her manager to knock it off? Heck yes! That's a staple of my respect-in-the-workplace training. However, complaining cannot stop there, because a complaint to a harasser won't necessarily end the offensive conduct and it generally won't put the employer on notice of the offensive conduct.

So, check your anti-harassment policy and training materials. Do they suggest only that victims of sexual harassment report the offensive conduct to their direct supervisor or manager? If they do, get rid of them. Because, like in the case above, the direct supervisor/manager may be the harasser. And complaining in that case didn't do much good, did it?

While you should also encourage victims to tell the harasser that the offensive conduct is not welcome, it's not always easy for the victim to stand up for himself/herself. So, don't require it. Instead, require that victims (and witnesses) of sexual harassment complain to HR and a manager/supervisor who is not the harasser. That should allow you to respond in a manner that is reasonably designed to end the harassment.

March 14, 2014

What is it exactly that President Obama wants to do to the FLSA?

Thumbnail image for obama.jpegSo, by now, you've likely read the news, first reported on Wednesday night by The New York Times reporters Michael Shear and Steven Greenhouse that "Obama Will Seek Broad Expansion of Overtime Pay".

Messrs. Shear and Greenhouse indicated that, yesterday, President Barack Obama was to the direct the U.S. Department of Labor to "revamp its regulations to require overtime pay for several million additional fast-food managers, loan officers, computer technicians and others whom many businesses currently classify as 'executive or professional' employees to avoid paying them overtime."

Possible targeted changes to the FLSA

The New York Times article suggested that President Obama would call on the DOL to raise the minimum salary level for employees to qualify for an overtime exemption. 

Currently, to fit under either the "executive" or "administrative" exemptions to the Fair Labor Standards Act, among other things, the employee must make at least $455 per week in salary. Raising that number would render fewer employees "exempt," thus increasing the pool of overtime-eligible employees.

Additionally, Messrs. Shear and Greenhouse report that "the new rules could require that employees perform a minimum percentage of 'executive' work before they can be exempted from qualifying for overtime pay." The current rules contain more amorphous standards.

A directive from the President that's long on newspeak and short on specifics

With all of this buildup, yesterday, the White House issued a "Presidential Memorandum" entitled "Updating and Modernizing Overtime Regulations." The memo contains nothing as specific as reported in The New York Times. Instead, it contains an overview of the Fair Labor Standards Act followed by a vague directive to the DOL:

"I hereby direct you to propose revisions to modernize and streamline the existing overtime regulations. In doing so, you shall consider how the regulations could be revised to update existing protections consistent with the intent of the Act; address the changing nature of the workplace; and simplify the regulations to make them easier for both workers and businesses to understand and apply."

Quite frankly, although this is a general edict, I'm all for streamlining and simplifying an arcane law that has become a nightmare for businesses and their employees to comprehend.

Don't expect swift change.

How, specifically, the FLSA may change, is less than clear. What is clear; however, is that this process will take a lot of time. If the DOL wishes to amend the regulations supporting the FLSA, it must first propose rule changes, then entertain a public comment period, then, as necessary, tweak the changes, before finally implementing them.

Bottom line: don't expect much in the way of change to the FLSA anytime soon.

What can employers do now to protect themselves?

However, news like this, together with the growing trend in wage-and-hour claims, should serve as a wakeup call to employers. Consider taking some proactive steps, such as a retaining outside counsel to perform a wage-and-hour audit, to spot issues now, limit exposure, and reduce the risk of future litigation.

UPDATE: The SHRM A-Team has released this update on the proposed changes to the FLSA.

March 13, 2014

What the EEOC wants companies to know about social media and employment discrimination

socialthumbup.jpgYesterday, the United States Equal Employment Opportunity Commission held a public meeting at which it discussed, well, you read the lede. Don't miss this one employers; the full 411 is after the jump...

* * *

Continue reading "What the EEOC wants companies to know about social media and employment discrimination" »

March 12, 2014

FACT OR FICTION: An FMLA-eligible employee can decline FMLA leave

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 FMLA-eligible employees walks into HR one day and says that she has a serious health condition and would like to take time off to treat her injury. However, the employee, who has paid time off banked away, says that she'd like to dip into her bank of PTO and exhaust that without using any of her 12 weeks of FMLA.

Can your employee affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection?

Answer: Yes*

Indeed, this recent Ninth Circuit decision held exactly that.

So what's with the asterisk? My FMLA blogging buddy Jeff Nowak, in this post at FMLA Insights, believes that the Ninth Circuit's decision could ultimately reflect the minority view from the courts:

To be candid, my recommendation is to ignore the [Ninth Circuit] decision and designate the absence as FMLA leave if it indeed qualifies as such. For me, the FMLA regulations are clear. At 29 C.F.R. 825.301(a), the DOL tells us, "Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave]." There is nothing in this regulatory provision to suggest that the employee can influence this process. To the contrary, the regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason.

Ok. Maybe the answer isn't really clear-cut. However, one thing is: if the employer does want to designate leave as FMLA leave, the regulations require that it serenade me with Chevelle notify the employee.

March 11, 2014

VIDEO: Justin Bieber is a smug and very arrogant deponent

Last week, Justin Bieber was deposed in an action stemming from an alleged attack by his bodyguard on a member of the paparazzi. Here and pasted below is the video that's been making the rounds on the internet:

So, how does this impact your workplace? Don't let your employee witnesses ever channel their inner Bieber if deposed in a workplace lawsuit.

Now, Lil Wayne on the other hand...

March 10, 2014

Check out the new EEOC guidance on workplace religious accommodations

Thumbnail image for EEOC.jpgLate last year, the United States Equal Employment Opportunity Commission scored a big victory when a federal judge found apparel company Abercrombie & Fitch liable for religious discrimination when it fired a Muslim employee for wearing her hijab (a religious headscarf) in the workplace, rather than accommodating her religious beliefs.

On the heels of this win, the EEOC has just issued new guidance about how federal employment discrimination law applies to religious dress and grooming practices, and what steps employers can take to meet their legal responsibilities in this area.

You can view the press release here, a fact sheet here, and a FAQ here.

In a nutshell, Title VII requires an employer, once on notice that a religious accommodation is needed for sincerely held religious beliefs or practices, to make an exception to dress and grooming requirements or preferences, unless it would pose an undue hardship.

Customer preference is not undue hardship, job segregation (e.g., reassigning the employee in the yarmulke to the storage room) is not a religious accommodation, and your personal knowledge of an employee's religion has no bearing on whether the employee's beliefs are sincerely held (they probably are).

But, the undue hardship is a low bar -- much lower than disability accommodation -- anything de minimis. Even a schedule change can be more than de minimis.

Religious accommodation in the workplace is fast becoming a hot issue for the EEOC and I commend all of you to fund my Kickstarter check out the new EEOC guidance.

March 7, 2014

Accessing Your Employee's Social Media Accounts May Violate Federal Law

Thumbnail image for facebookprivacy.jpg

Back in 2011, when y'all were Tebowing, planking and winning, I was blogging about this case where an employer allegedly updated its employee's Facebook page and tweeted from her Twitter account without her permission while she was on leave from work following a car accident.

The Stored Communications Act prohibits intentional, unauthorized access to electronically stored communications. The employer admitted that it had accessed the employee's social media accounts. However, it claimed that it had permission because the employee left her passwords stored on a company server. So, the employer moved for summary judgment.

Opposing the motion, the employee argued that, while the company did possess the account passwords, she had told them to leave their digital fingers off of her social media accounts. This would have made the access unauthorized.

So, faced with a he said/she said, the court, in this opinion, decided to let a jury decide who is telling the truth.

What does all of this mean for employers?

Jon Hyman, at the Ohio Employer's Law Blog, discussing the case here, offers this takeaway:

"If you are going to permit your employees to use their personal social media accounts for business purposes, get it in writing that you have rights to the accounts. Define who else can access the accounts, and what happens with them if the employee is incapacitated or no longer employed. Otherwise, you are potentially exposing yourself to an expensive and uncertain lawsuit to define these rights in court after the fact."

Solid advice right there.

I say that once the employee sets up his or her own social media account, it's hands off to the employer. Period. Sure, the employer can require that the employee's online speech conform to the law (e.g., trademark, copyright, and fair use laws) and otherwise require a disclaimer where a social media posting could suggest that the employee is speaking for the employer. But, directly accessing those accounts? Fuggedaboutit!

Instead, if you want an employee to tweet and Facebook for the business, then set up the account yourself, maintain the username and password, and have any employee with access to those accounts acknowledge, in writing, the company's ownership rights in the account.

March 6, 2014

Employee wins sexual harassment case. (Employee is a prostitute)

[Cue music]

"Yes! Meyer is finally playing Five Finger Death Punch!"
-- Not a single one of you

We've had some pretty wild, prurient, "where does he get his material" workplace posts here at The Employer Handbook. Remember the one about the female accountant who won the right to legally masturbate at work? And then there was the one about "exotic dancer" harassment.

But those were David Wooderson compare to today's Ron Woodroof.

redlightd.jpg

In what has been dubbed a "world's first" -- ya think?!? -- a prostitute has prevailed in a sexual harassment action against her boss, a brothel owner.

Insing.com reports here about a case in which a brothel owner reportedly told one of his prostitutes that he could do what he liked with the women who worked for him. Over a three-month period, the older man allegedly belittled and frightened the woman until she felt unsafe and on edge, became depressed and turned to alcohol.

Based on these facts, the tribunal found in favor of the prostitute and awarded her a little of $26,000.

Now this case was decided in New Zealand where prostitution is legal. But let's assume that a similar case arose in a Nevada county where prostitution is also legal. Title VII of the Civil Rights Act of 1964 protects women (and men) against sexual harassment in the workplace.

In the New Zealand case, the tribunal underscored, "Sex workers are as much entitled to protection from sexual harassment as those working in other occupations. The fact that a person is a sex worker is not a licence for sexual harassment - especially by the manager or employer at the brothel."

This maxim would apply with equal force to a brothel worker in Nevada. Title VII, like the New Zealand law, protects employees from unwanted sexual advances, comments, etc. Having sex with customers is a prostitute's job. Getting harassed because of her sex by the boss is not and could easily be considered unwelcome.

Whew...I can't believe I just pulled off a post on prostitution and employment law.

Where's my Pulitzer!!!

(h/t Employment Discrimination Report)

March 5, 2014

CHEATSHEET: How to pay employees for Daylight Savings Time work

daylightsavings.jpegYesterday, I read this post from Sara Hutchins Jodka at Employer Law Report about how to pay employees for Daylight Savings Time work and comply with the Fair Labor Standards Act.

Then I ate a big bowl of pulled pork and I thought to myself, "Damn, I'm feeling lazy tonight! With the bazillion posts that I've published -- and for which none of my freeloading readers have ever offered to pay -- there must be a Daylight Savings FLSA post I can recycle."

...and

I bring you, the aptly titled: "CHEATSHEET: How to pay employees for Daylight Savings Time work."

Spladow!

March 4, 2014

The National Football League's proposed "N"-word penalty: too far, or not far enough?

nfl.jpgIn a few weeks, the National Football League owners are going to consider a proposed rule governing the use of the "N"-word during a football game. If the rule goes into effect, any team with a player who uses the "N"-word during a game, will be assessed a 15-yard penalty.

Players, young and old, disagree on the rule.

Here are Michael Wilbon and Jason Whitlock from ESPN's Outside the Lines debating the merits of the proposed new rule.

In yesterday's edition of The MMQB on CNNSI, Seattle Seahawks cornerback Richard Sherman told sportswriter Peter King that "[Banning the n-word] is an atrocious idea."

Mr. Sherman, who claims that the proposed rule is "almost racist", explained that the "n-word ending in -er' is racist, but the n-word ending in -a' is not, when used among African-Americans."

According to The MMQB, that view doesn't resonate with former NFL player Harry Carson.

"I find it very disheartening that in our society today we're having a debate about the n-words being used as a term of endearment," Carson said on Sunday. "If that's a term of endearment, go up to your grandfather, or an elderly black person, and use it on them. See how they react. For those who use it, I say they have no sense of history."

The NFL, like any other workplace, should promote respect.

Whether it's splitting hairs, or the line between "-er" and "-a" is much deeper, as an employment lawyer, I advise clients to remind their workforce that, when it comes to comments involving a protected class, the law doesn't focus on the intent of the speaker.

Rather it is how the words are received. If the "victim" is offended and a reasonable person in the victim's shoes would be offended as well, then the speaker is out of line. Period.

(And remember, even if the "victim" is not offended, the words could upset a co-worker who overhears the comment. That too is enough to create a problem).

But, while I do not agree with Mr. Sherman that the proposed rule is "almost racist," Mr. Sherman's assessment, that a rule like the one proposed by the NFL doesn't go far enough, resonates with me.

The gridiron is a workplace, maybe not like any other workplace. But it's a workplace nonetheless. In what workplace across America are words that are (or could reasonably be) construed as ethnic slurs be tolerated?

The NFL should be no different.

Whether it's a 15-yard penalty, or some other punishment, I hope that the NFL takes reasonable steps to eradicate language and behavior that, in any workplace across America, could be reasonably viewed as creating a hostile work environment.

What do you think about the NFL's proposed rule? Let me know in the comments below.