The Employer Handbook Blog

In a 2-1 decision issued today (copy here), the Third Circuit Court of Appeals ruled that the National Labor Relations Board lacked the authority to act as early as March 2010, when President Obama appointed Craig Becker to the Board. The Third Circuit held that Member Becker's appointment to the Board while the Senate was on an intrasession recess (a break within a session of the Senate) was unconstitutional. Implicit in the court's decision is that the appointments of Members Block, Griffin, Flynn in 2013, while the Senate held pro-forma sessions, were also invalid.

The Third Circuit ruled that recess appointments are only valid if made during intersession breaks (i.e., between sessions of the Senate).

This decision is crazy-long (102 pages plus a 55 page dissent). Thankfully, my Dilworth Paxson colleagues, Erin Galbally and Marjorie Obod prepared an e-alert summarizing the decision.

If you do business in Pennsylvania, New Jersey, Delaware, or the US Virgin Islands, the net effect of this decision may be that, until the Supreme Court rules in this pending case, you can basically ignore just about anything* that the Board has done this decade (well, since March 2010). 

* From June 22, 2010 through August 27, 2011, the Senate had confirmed enough Board members for quorum. So don't ignore that stuff.

(h/t The Volokh Conspiracy)

You see, employment-law dorks like me use tools like these to monitor the status of pending employment-law-related bills. And, yesterday, I got a hit informing me that, on Monday, Governor Christie conditionally vetoed this proposed NJ bill, which would prohibit employers from requiring employees and candidates for disclosing online usernames and passwords.

Savador Rizzo at The Star-Ledger summarized Gov. Christie's reasons for vetoing the bill here:

Christie said that he supports safeguarding "the privacy of job candidates and employees from overly aggressive invasions by employers" but that he wants to see stronger protections for businesses. For example, the governor said aggrieved workers should go to the state labor commissioner with their complaints instead of being able to file lawsuits in state court.

...

"Unfortunately, this bill paints with too broad a brush," Christie wrote in his conditional veto today. "For example, under this bill, an employer interviewing a candidate for a marketing job would be prohibited from asking about the candidate's use of social networking so as to gauge the candidate's technological skills and media savvy. Such a relevant and innocuous inquiry would, under this bill, subject an employer to protracted litigation."

Here are Gov. Christie's suggested changes to the bill.

You know my position on bills like these: not a fan. So, it is refreshing to see a decisionmaker forego the rubber stamp and actually consider the practical impact of a hasty bill, which, although well intentioned, seeks to solve what is essentially a non-existent problem.

This blog is nearly 2 1/2 years old and we have our first Equal Pay Act post. The Equal Pay Act requires equal pay for equal work on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions. Any wage discrimination on the basis of sex violates the Act.

The EEOC celebrated "Equal Pay Day" last week. So, now is as good a time as any to address the Act through this recent case from the Third Circuit Court of Appeals.

In Puchakjian v. Township of Winslow, Deborah Puchakjian filled a Municipal Clerk vacancy within the Township of Winslow which came about a result of the retirement of the male incumbent. His salary at retirement was $85,515; Ms. Puchakijan's salary to replace him was $55,000.

She sued.

She lost.

You see, there are four exceptions to the Act's general rule of equal pay for equal work:

1. a bona fide seniority system,
2. a merit system,
3. a system which measures earnings by quantity or quality of production, or
4. any factor other than gender

The Third Circuit agreed with the lower court that the retired Municipal Clerk's yearly salary increases over his 29-year tenure in the position "both explained and motivated the wage disparity." Consequently, the wage disparity was based on a factor other than gender.

Given these four Equal Pay Act exceptions, claims under the Act are tough to prove. That said, a priority in the EEOC's Strategic Enforcement Plan (FY 2013-2016), is the enforcement of equal pay laws. Indeed, in 2012, the EEOC received over 4,100 charges of gender-based wage discrimination, and obtained over $24 million in relief for victims of gender-based wage discrimination through administrative enforcement efforts and litigation.

So, now is as good a time as any to conduct a wage audit and make sure that any disparity in pay for equal work is attributable to one of the Act's exceptions.

I'm a little late to the game on this case (Gatto v. United Airlines). It's about a personal injury case in which the defendant sought discovery of a the plaintiff's Facebook page. Yadda, yadda, yadda, plaintiff deletes his Facebook page and the court sanctions the plaintiff.

But here's the part I like:

While Facebook did respond to the subpoena served upon it, Facebook objected to providing certain information related to Plaintiff's account due to concerns regarding the Federal Stored Communications Act. Facebook instead recommended that the account holder download the entire contents of the account as an alternative method for obtaining the information. Defendants allege that this issue was discussed with the Court during a telephone status conference on January 6, 2012, where Plaintiff's counsel advised that he would be willing to download the account information and provide a copy to the parties. Defendants allegedly agreed to Plaintiff's proposal, with the condition that Plaintiff would also provide a certification that the data was not modified or edited since the December 1, 2011 settlement conference.

So, if you want discovery of the contents of a litigant's Facebook account, don't mess around with subpoenas to Facebook and don't demand Facebook passwords. Instead, lay the proper foundation (i.e., establish that there exists information on a litigant's Facebook page that is likely to lead to the discovery of admissible evidence) and make a download your information request.

Most parties (and their attorneys) expect that settlement communications are not admissible at trial. There's even a federal rule of evidence on this subject. However, a federal court recently recognized an exception. But, with all due respect to the United States District Court for the District of New Jersey, the opinion is a little dry. 

So, after the jump, I spiffed it up a bit -- Point Break style, brah -- with a few takeaways for practicing attorneys.

This is your wake-up call.

Continue reading "100% pure settlement offer? If not, it may be ADMISSIBLE ... AT ... TRIAL!" »

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

All that education and no common sense.

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

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

Hurricane Sandy: Day 2

To my east-coasters, I hope this post finds you safe and dry. 

Me? Hey, thanks for asking. Our Philly home kept power throughout and we otherwise made it through unscathed. Still, Philadelphia remains in a state of emergency. The City is essentially shut down. Most of the major surrounding highways have been off-limits. And, for a second day in a row, for the safety of the drivers and the riders, there is no public transportation in the City.

That means that local businesses too opted to close on Monday, and remain closed on Tuesday. Well, most of them. 

To the chagrin of some employees affected by the Hurricane, they had to work. And they have vented on Twitter.

(Insert obligatory Hurricane #Sandy and/or "do I have to go to school or work today" status here).

-- Chris Schurz (@ChrisSchurz) October 29, 2012

After the jump, what your employees tweeted about working (or, maybe, not so much) during Hurricane Sandy...

[Don't shoot the messenger]

Continue reading "Salty about Sandy: 20 Hurricane tweets from your employees" »

I'd better remember to post this now before I get bitten and turn into a zombie and munch on your face..

[Note to self: Less of "The Walking Dead," more sleep].

On November 19, 2012, this new law will take effect in NJ, which will require employers of 50 or more employees (zombies not included) to notify their workforce about "the right to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment under the 'Law Against Discrimination."

In addition to hanging a poster in a conspicuous location, employers must notify their employees in one of three ways:

1. Via email;
2. In print (e.g., paycheck insert, handout); or
3. Through an internet or intranet website

The notification must contain an acknowledgement that the worker received the notification and has read and understood its terms. And, if a language, other than English, is the primary language spoken in your workplace, then the poster and notifications must be in that language.

Want a copy of the poster/handout? Me too. I suspect that you'll eventually find copies here. Fear not, the posting and distribution requirements contained in the law are not triggered until the Commissioner of Labor and Workforce Development issues the form of notification.

Janette Levey Frisch, In-House Counsel at Joule, Inc., has guest-blogged here before (here and here). As you know from her posts here, she is a fantastic employment lawyer. Now you can reap more of the benefits by checking out her brand new employment-law blog: The Emplawyerologist (http://theemplawyerologist.wordpress.com/).

Welcome Janette!

Last week, CA became the third state to pass a law that bans employers from requesting online usernames and passwords from employees and job candidates. Maryland was the first state to pass such a law; Illinois was the second.

As in the other two states, not only is it illegal to request online information, but also CA employers may not retaliate against anyone who refuses to turn it over.

There are two carve-outs in the CA law to protect legitimate employer interests. An employer may:

1. require an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations; or


2. require or request an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

Meanwhile, in NJ, the Senate Labor Committee voted 4-0-1 in favor of a similar bill. Under the proposed NJ legislation, the aggrieved party may seek injunctive relief, compensatory damages, counsel fees and court costs. According to Law.com (here), the 1 absention came from a Republican Senator who wishes to amend the bill by removing that private cause of action.

That legislation now goes to Governor Christie for signature.

Back in July, I blogged here about a federal appellate court recently emphasizing just how broad the subpoena power of the United States Equal Employment Opportunity Commission really is. [Editor's Note: the technical legal term is "crazazy broad"]

Last Friday, as I was hosting the weekly dip-spit distance shot organizing my office, I saw this opinion from the Third Circuit Court of Appeals which further underscored just how far and deep the EEOC's outstretched hand can go into your business.

Yeah, you, dude! The one who is not accused of discriminating against anyone, but who may have information relating to a pending EEOC investigation.

What's in store if you are on the receiving end of that subpoena? Find out after the jump...

Continue reading "That moment right before the pain begins: an EEOC subpoena" »

It was bound to happen sooner or later...

Mary Pat Gallagher of the the NJ Law Journal reports here (subscription required) that two NJ defense lawyers face ethics charges after their paralegal allegedly friended an attorney-represented plaintiff in a personal injury case.

Details on the allegations and some takeaways for both lawyers and HR professionals after the jump...

Continue reading "Ethics charges for two lawyers over Facebook friending a litigant" »

In Mann v. Staples, Inc., a female employee received unwelcome comments about her appearance and physique, was kissed and groped, and called a "skank ass bitch." The New Jersey Superior Court, Appellate Division, described this as a "pattern of systemic sexual harassment" -- one in which the alleged harasser appeared to have never received any anti-harassment training.

So, what did the court do? It affirmed summary judgment for the employer and dismissed the plaintiff's Complaint.

What?!?

Find out why, after the jump...

Continue reading "Employer wins lawsuit despite a "pattern of systematic sexual harassment"" »

photo © 2007 Zest-pk | more info (via: Wylio)I just re-read yesterday's blog drivel. What the hell was that?!? As much as I do love the two great tastes that taste great together, that was an utter FAIL and I vow never to incorporate Reese's Peanut Butter Cups into a blog post again. Unless, of course: (a) a makeshift Peanut Butter Cup bra is prominently featured in a reported sexual harassment case; or (b) Hershey's wants to discuss some strategic product placement on The Employer Handbook. What can I say? YOLO and even this blogger has his price.

[Editor's note: I was determined to work YOLO into this blog post. Be nice. Although, my blogging chops are generally sharp, I'm about three months behind on the lingo.]

Focus, Eric. Short blog post. You can handle haiku. 

Arrgh! I cannot believe that Haiku-themed blog post, 17 syllables, would require readers to click through past the jump. Ah, whatever. Click through and someone call my editor...

Continue reading "The 3rd Circuit's new FLSA joint-employment test...in HAIKU" »

What if I told you that a female black employee was called "monkey" and "nappy head Raggedy Ann" at work?

What if I then told you that the employee subsequently sued in New Jersey state court; quite possibly the most plaintiff-friendly jurisdiction in the U.S. -- next to California?

And guess what? She lost. Oh my!

What the heck happened and what can employers learn from this recent decision? Find out after the jump...

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Continue reading "Recipient of nasty racial slurs from an office friend loses bias claim" »