Recently in Hiring & Firing Category

July 18, 2014

Can a NJ company legally shorten the statute of limitations on employment claims?

Let's assume that you operate a business in New Jersey. And you get to thinking:

"What if we put a provision in our employment application, by which a job applicant waives the two-year statute of limitations applicable to most workplace claims and shortens the period for such claims to six months?"

Would that be enforceable?

Well, since we're talking about New Jersey, which is pretty much the most employee-friendly state next to California, most experts would tell you to pour 'em a glass of whatever your drinking, because your idea is nuts.

Like spawn of Lindsay Lohan and Charlie Sheen cray-cray.

Well, spla-dow!

Tell those so-called experts to check themselves before they wreck themselves, because, late last month, the Superior Court of New Jersey, Appellate Division (in this opinion) said that an employment application provision shortening the statute of limitations could be binding, yo!

The Court emphasized that the provision in question was "contained in a two-page application and set forth very conspicuously in bold oversized print and capital lettering, just above the applicant's signature line. The terminology was clear and uncomplicated. Plaintiff was put under no pressure to complete and sign the application quickly."

And did I mention that English is the plaintiff's second language? Wow!

This is a MONSTER VICTORY (see what I did there?) for NJ employers. A statute of limitations shortener, maybe paired with a jury trial waiver, that's a pretty potent 1-2 punch to fend off workplace lawsuits. 

Well that, and a respectful workplace, with training and such.

But, you get the idea.

June 9, 2014

Ban the box is one step closer to becoming law throughout New Jersey

Thumbnail image for nj1.jpgMany cities in the Mid-Atlantic region (Philadelphia, Newark) have passed legislation that makes it illegal for employers to inquire about criminal history early on in the job application / interview process. The State of Delaware too has passed this so-called "ban the box" rule.

Last week, a New Jersey Senate Committee recommended passage of ban-the-box legislation in the Garden State.

Under the proposed NJ law, an employer may not inquire (orally or in writing) regarding an applicant's criminal record during the initial employment application process. Although after the initial application process has concluded, then this information would be fair game.

This is the second go-round for potential statewide passage of ban-the-box legislation in NJ. Governor Chris Christie remains open to passing ban-the-box.

June 4, 2014

Employment at-will trumps the 2nd Amendment (Yes, you can fire the employee who shoots a gun at work)

ScarfaceIn every one of the United States, except Montana, employment is at-will. This means that, absent a contract of employment for a specific period of time, you may fire an employee for any reason or no reason at all.

(Not to be confused with "right to work" -- more on that here)

Well, I suppose that there are some exceptions. Like, you can't discriminate. And many laws make it illegal to retaliate as well.

Public policy exceptions to at-will employment

And then there are the public-policy exceptions, They vary from state to state. In Michigan, for example, a termination violates public policy when:

  1. the employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty;

  2. the employee is discharged for the failure or refusal to violate the law in the course of employment; or

  3. the employee is discharged for exercising a right conferred by a well-established legislative enactment

Why do I use Michigan as an example? Mancrush on Miguel Cabrera Well, the Sixth Circuit recently decided this case, where a drugstore employee decided that he'd had enough with past robberies at his store and decided to carry a concealed weapon in the event of a future robbery. So, when a masked gunman returned, the employee pulled his gun and started blasting.

The drugstore later informed the employee that he had violated its "non-escalation" policy and, ultimately, it fired the employee.

So, the employee sued alleging, among other things, that the store had violated public policy by terminating his employment in violation of the 2nd Amendment.

At-will > Second Amendment

The Sixth Circuit, however, disagreed. It held that while the Second Amendment of the United States Constitution provides for the right to bear arms, without interference from the state. In a private setting, such as your workplace, employees don't have the same Second Amendment rights.

[Update: You can also fire Febreze-toting workplace cowboys too.

Don't tolerate guns at work.

Unless you know that the law varies in your state, even where the employee is well-intentioned, such as the one in the case above, please don't condone employees carrying concealed weapons at work. It's bad enough that, every so often, we hear stories about workplace gun violence. Don't add to that violence with more guns in the workplace.

Image Credit: Imgur.com

June 3, 2014

Dust off that resume when your students really "like" that Facebook post of your face on a beer label

holyfacebook.jpgWhy, just last week, I was saying that the Facebook stupidity scale had shifted away from teachers in favor of bar/tavern staff.

I stand corrected.

For future reference, you can never go wrong with Vining the one-year-old slugger.

Image Credit: Facebook

May 30, 2014

For the love of God, bar owners! Train your employees not to liken beer to domestic violence.

Thumbnail image for Thumbnail image for facefire.jpg

I used to say that teachers were the most irresponsible Facebook user group. Now, I'm leaning towards the bar and nightclub industry.

Last month, a worker at a downtown Philadelphia bar displayed a Heineken chalkboard with the message "I like my beer like I like my violence... domestic." to attract customers.

But, instead of achieving its desired effect, a passerby tweeted the photo to a local news station and a major cluster of a poopstorm ensued, which culminated in the worker losing his job.

Lesson learned.

And then, yesterday, it happened again at a bar in Texas.

Now, as I best as I can tell -- anecdotally, mind you -- Texans aren't the brightest bunch (Exhibit A, B, and C). I say this because not only did the bar manager who posted this sign in a Plano, Texas bar not recognize the impact it could have on the bar's clientele, but according to Sarah Blaskovich in this story in the Dallas Morning News, other restaurant managers allegedly resisted erasing the chalkboard when a customer complained.

Instead, had they taken immediate action, maybe the sign wouldn't have been shared on Facebook and other social networks hundreds of times.

Lesson learned: Stupid is as stupid does.

PS - The bar manager eventually lost his job and gets to read about his story on this blog.

P.P.S. - I just read that this isn't the first time that this has happened in a bar in Texas. Moron in Texas, say "what?" However, the previously disgraced bar not only fired the sign author, but also agreed to contribute a percentage of October beer sales to the National Coalition Against Domestic Violence, in recognition of domestic violence awareness month.

So, there's that.

May 16, 2014

Tennessee has a social media workplace privacy law now, y'all

Here are some Tennessee fun facts:

  • The city of Kingston served as Tennessee's state capital for one day (September 21, 1807)

  • There are more horses per capita in Shelby County than any other county in the United States.

  • Tennessee ties with Missouri as the most neighborly state in the union. It is bordered by 8 states.

  • The name "Tennessee" was chosen to support the pick-up line, "Are you from Tennessee? Because you're the only Ten I see."

And now Tennessee becomes the latest state to have a social media workplace privacy law.

You know the drill:

  1. No asking for employee or applicant social media passwords

  2. No forcing an employee or applicant to friend you

  3. No should surfing

  4. No adverse action based on the failure to do 1-3

The new law contains some exceptions to allow employers to gain access to an employee's private social media content (e.g., to support a workplace investigation). 

It takes effect on 1/1/15.

But, this is all so 2013.

* * *

If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

May 9, 2014

Survey shows that working moms earns less, but are satisfied with their jobs

This according to this survey released yesterday from CareerBuilder.com.

Working dads who were the sole breadwinners in their household were four times as likely to earn six figures, while working moms who are the sole breadwinners were nearly twice as likely to earn less than $35,000.

However, money may not be everything. That is, 78% of working moms reported they are happy in their current roles at work, with about 2/3rds of working moms having enjoyed the full amount of maternity leave available to them following childbirth.

[How much paternity leave are the new dads taking? According to the survey, half of working dads (49%) took two weeks of paternity leave or less, 21% took five weeks or more while 22% didn't take any time off.]

But let's go back to the $$$, while there may be legitimate business reasons to explain a disparity in pay between men and women, men and women with the same experience and qualifications who perform the same work at the same level should be paid the same amount.

So consider a self-audit to make sure that you're providing equal pay where appropriate.

* * *

If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 30, 2014

Apparently, selling "Wake The [expletive] Up" coffee raises the "for cause" termination bar

Let this be a lesson to those who are thinking about selling "Wake The F*&k Up" Coffee, "The Hottest F*&king Nuts," or "The Hottest F*&king Sauce."

Recently, I read this article from Clark Kauffman in the Des Moines Register about a cashier at the Last Chance Market in Iowa, who was allegedly fired after she and a customer began discussing various sexual activities in front of other customers. These customers then complained to management about the sexual banter, hence the pink slip.

Not that the employer need a reason to fire the crude cashier. Presumably, she was an at-will employee. But, the stakes are raised when an employee files for unemployment compensation benefits. That is, generally speaking, a terminated employee will receive u/c, unless the termination is for some sort of willful misconduct.

So, you'd think open sexual banter in front of customers would satisfy that requirement.

Yeah, you'd think that.

Well, the cashier had an ace up her sleeve; namely, the aforementioned f*&king products. 

Would you like to read how these products contributed to what the former employee described as an all-around profane and off-color working environment? Sure you would.

From Mr. Kauffman's article:

"There's jelly beans, salsa, hot sauces and all kinds of different things about women's (bodies)," she testified. "There's a whole shelf referring to -- well, excuse me -- but there's one can called 'The Hottest ----ing Nuts.' "
She said the store also sells a brand of coffee named "Wake The ---- Up," the label of which reads: "This coffee makes a seriously strong cup of Joe. It will put some stride in your step and some lead in your pencil -- not to mention that you will probably reorganize the garage and finally get to the lawn. Wake the F up and live!"
State records indicate the store also sells a brand of hot sauce called "The Hottest ----ing Sauce," which is labeled as having an "ass-burning" quality that will inspire the consumer to "scream '(expletive)' at the top of your lungs."

Yep, the former employee got her u/c benefits.

And since I can't beat it, to end this post, I'll quote further from Mr. Kauffman's article:

Shafer said she's still looking for work, adding that Braaksma has banned her from shopping at the Last Chance Market. "And you know, he still has this big sign right where you go in, a metal sign, that says, 'Shirts and shoes are required, but bras and panties are optional,' " she said.
Braaksma would not comment on the case, telling The Des Moines Register, "I don't want my store's name in no (expletive) news story."
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...

* * *

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.

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!

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.

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

December 26, 2013

Teacher fired over Facebook groping photo could get her job back

facebooksanta.jpg_jpgMerry Christmas, Laraine Cook.

Back in October, I blogged here about Ms. Cook, an Idaho school teacher who lost her job after her employer learned about a photo on her Facebook page that showed her boyfriend touching her chest.

(Oh, fine, here's the pic)

What made this story unique -- yeah, I know, teacher getting in trouble on Facebook is fast approaching "death and taxes" status -- is that the female teacher's boyfriend, also taught at the same school. He was not fired; merely disciplined.

Well, according to this story from Jimmy Hancock at the Idaho State Journal, Ms. Cook should be getting her job back soon:

A grievance panel has determined that former Pocatello High School girls' basketball coach Laraine Cook should again be allowed to work as a teacher and that she should be rehired as the girls' basketball coach for the 2014-2015 season....Addressing the firing, the panel said it should be rescinded and considered a suspension without pay from the time of the termination until the time of the panel's decision.

The panel further noted that the lack of a social media policy afforded Ms. Cook little guidance as to what the school considered online behavior that could cost her her job.

So, use Ms. Cook's situation as a wake-up call to implement/revise your social media policy. Remind your employees that certain online conduct -- even on their own time -- could cost 'em their jobs.

December 23, 2013

So your public relations executive just tweeted a racist joke that went viral...

justinesacco.jpgIt doesn't end well for the PR Exec. Just so we're clear.

Click through to read the full story...

Continue reading "So your public relations executive just tweeted a racist joke that went viral..." »