When I think about retaliation, I think about that time I plastic-wrapped the judicial toilets after losing a motion to compel an employee who gets fired after complaining about discrimination to an HR Manager or the EEOC. These actions epitomize the “opposition” and the “participation” clauses of Title VII of the Civil Rights Act of 1964, the federal anti-discrimination statute.

By what about when an employee doesn’t go to HR, doesn’t complain to the EEOC, but, instead, simply tells a supervisor to stop sexually harassing her? If that employee is later fired, and she can establish that she was fired because she told her supervisor to stop, is that a winning retaliation claim? Continue reading


ADA and Burger King?!? Has someone been eating too many Whoppers? No. But I did spend a 20 minute Uber ride yesterday sucking down mustard packets.

Actually, the inspiration for this post comes from Seattle Attorney, Michael Harrington, who presented “The Wild, the Weird and the Wonderful FMLA/ADAAA Cases…And the Lessons for Employers!” with me yesterday at the Disability Management Employer Coalition (DMEC) FMLA/ADAAA Employer Compliance Conference.

(If you want a copy of our PPT, please email me. I got you.)

During the takeaways from our presentation, I went with the tried-and-true, educate your employees about the procedures for requesting FMLA/ADA accommodations, and train your managers how to spot these requests, especially where the letters FMLA or ADA are not used.

But, Mike, who killed it yesterday during our presentation — the Penn to my Teller, the Bart to Milhouse — made it real simple. He suggested that companies train managers who deal with ADA requests to think about Burger King’s old slogan, “Have it your way.”

In other words, adopt a customer service mindset. By asking an employee what the company can do to accommodate a disability, the manager immediately helps promote the goals of the ADA: a good faith interactive dialogue designed to accommodate an employee with a disability to allow that employee to perform the essential functions of the job — unless doing so would create undue hardship for the employer.

So, next time an employee requests an accommodation, extra pickles, hold the tomato, and, “have it your way.”

(Unless there is another reasonable accommodation available or the accommodation would create undue hardship. But, you get the idea).

I can’t blame you if last month’s decision from the National Labor Relations Board, left you asking the question: “Are there no limits to what employees can get away with on social media?” The Board decision, in case you missed it, reinstated an employee who went on Facebook and called his boss a “NASTY MOTHER F*&KER”  and, then added, “F*&k his mother and his entire f*&king family!!!!”

So, yeah, I’ll admit it. The Board’s decision leaves me wondering how far an employee can go when discussing the terms and conditions of employment.

Still, I’m here to reaffirm that there are limits. Indeed, when an employee uses social media to discuss matters unrelated to the workplace, there’s probably no protection available.

Continue reading

Three highlights of my weekend:

  1. This sword-balloon fight at dinner on Saturday.
  2. Eagles sign Tim Tebow. Because, what could possibly go wrong by reuniting this with this in Philadelphia?
  3. Catching up on the pilot of the new FX show, The Comedians. I’m all in.

Honorable mention — ok, better than the balloon fight and the Tebow signing, but not quite #3 — was catching up with the latest edition of the Employment Law Blog Carnival, which my friends at CPEhr’s Small Biz HR Blog hosted this month.

I love the #ELBC. Well, I did invent it. But, besides that, it’s a great collection of the latest from employment-law bloggers from around the country. This month’s edition includes posts on FMLA eligibility, a nice recap of Young v. UPS, medical marijuana, and your workplace kitchen. So, be sure to check it out.

More eagerly anticipated that the premiere of Paul Blart: Mall Cop 2, yesterday, the EEOC released its new proposed rules on wellness programs.

Although, based on the Paul Blart reviews, hemorrhoids too may be more eagerly anticipated. No strikethrough on the last sentence. Weird.

But, if you want to have an employee wellness program that complies with the Americans with Disabilities Act, here are five things the EEOC wants you to do…  Continue reading

Geez! What’s gotten into me this week? Even by The Employer Handbook editorial standards, which are lower than Title VII’s religious accommodation undue hardship test.

[I’ll be here all week. Sorry.]

First, a 1000+ word blog post on ADA telework, followed by two cheeky posts on bad interview questions and the FMLA. So, naturally, this builds up to a Thursday post about oral.

As I resist every urge to cheapen this further by resorting to silly puns and other double entendre, allow me to set the stage for you: Continue reading

This one goes out to all of you employees who are contemplating a claim against a former employer for violating the Family and Medical Leave Act.

Read this federal court opinion and make a mental note: when you voluntarily work from home, that’s not “leave” under the Family and Medical Leave Act. Yep, when you choose to work from home, and tell your employer that you are working from home that makes Ford Motor Company angry, you wouldn’t like it when Ford gets angry, your employer doesn’t need to offer you FMLA, or let you know that you qualify for FMLA. Continue reading

Kinda like this, but different.

According to a recent survey from CareerBuilder.com, 1 out of 5 employers failed to read my 2011 blog post about interview questions to avoid, have asked a question in a job interview only to find out later that it was illegal to ask.

Indeed, the poll indicates that only 1 in 3 hiring managers recognized that questions, such as the ones listed below, should be off-limits:

  • What is your religious affiliation?
  • Are you pregnant?
  • What is your race, color or ethnicity?
  • How old are you?
  • Are you disabled?

Whether you’re in the 20% listed above, the 1 in 3 below that, or just need a refresher on hiring inquiries that are off limits, check out my post, “What would Kenny Powers do? Interview questions to avoid.”

If you’re in a rush, I’ll hit you with the punchline and save you the trouble of reading 1,000+ words of blog post:

Telecommuting may be a reasonable accommodation under the Americans with Disabilities Act, except where regular attendance is an essential function of the job.

For those of you with a few minutes to spare, today’s post springs from a case, a saga really, involving the the US Equal Employment Opportunity Commission and Ford Motor Company. And since I have a few good employer takeaways at the end — hey, don’t skip all the way through! — today’s post is worth the time. Continue reading