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.”

If you operate a business in PA, NJ, DE or the USVI, then the answer is yes. This is true — even if the ban extends to alcohol consumption off the job.

So says the Third Circuit Court of Appeals in this opinion from earlier this week, where an alcoholic employee, who had previously checked himself in to rehab, had violated the terms of a subsequent return-to-work agreement with his employer never to consume alcohol again.

The employee claimed that the agreement violated the Americans with Disabilities Act’s ADA’s prohibition of “qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability.” The court; however, disagreed:

As numerous courts have recognized, employers do not violate the ADA merely by entering into return-to-work agreements that impose employment conditions different from those of other employees. Indeed, several of our sister circuits have explicitly endorsed agreements that bar an employee from consuming alcohol–whether at the workplace or otherwise…Although Ostrowski was subject to different standards than other Con-way employees who did not sign an RWA, this difference results from the terms of his agreement rather than disability discrimination.

Ultimately, the plaintiff could not show how the ban on booze singled him out because of his alleged disability (alcoholism) versus regulating his conduct (drinking alcohol).

So, the answer to today’s question — at least in the Third Circuit — is FACT.

harryreid.jpegEarlier this week, Senator Harry Reid (D-NV) offered some pointed remarks from the Senate floor. He blasted “radical Tea Party Republicans,” lambasted “mainstream Republican colleagues, who remained silent even as the anarchists among us committed political malpractice,” and then proclaimed, “This work period, the Senate will consider the…”

a. “…Twerk for Work Act, which would provide incentives to employers who hire unemployed Miley Cyrus wannabes who shake what their mamas gave them.”


b. “…Fox; specifically, a bipartisan effort to learn what does the Fox say?”


c. “…Employer Handbook. As in, why do people actually read the drivel that spews each morning from Meyer’s digits?”


d. “…Employment Non-Discrimination Act, which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity.”

If you guessed A, make sure your EPL premiums are paid up.
If you guessed B, put down the drugs.
If you guessed C, go to hell.
If you guessed D, bravo. Treat yourself to a caramel macchiato; your powers of deduction are amazing! And hey, you also got 200 points just for signing your name on your SATs.

I’ll update you after the Senate takes up ENDA in a few weeks.

Thumbnail image for philadelphia.jpgLast week, I brought you this news of a bill pending in New Jersey, requiring employers to make available reasonable accommodation for pregnancy-related needs when requested by the employee with the advice of her physician.

Yesterday, I read this article in The Legal Intelligencer about this potential amendment to Philadelphia’s Fair Practices Ordinance, which too would require employers to make reasonable workplace accommodations for employees who have needs related to pregnancy, childbirth, or a related medical condition.

What, you may ask, do the bill’s sponsors have in mind for reasonable accommodation?

An accommodation that can be made by an employer in the workplace that will allow the employee to perform the essential functions of the job. Reasonable accommodations include, but are not limited to, restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.

The law would task employers with providing accommodating pregnant employees, unless doing so would create undue hardship. The Americans with Disabilities Act does not require this — except for pregnancy-related disabilities. However, the Pregnancy Discrimination Act may require it in certain circumstances. For more on that, check out Robin Shea’s post at the Employment and Labor Insider.

And check in here for periodic updates on the pending legislation in Philadelphia.

Thumbnail image for facebutton.pngOver the weekend, I read this article about Laraine Cook, a girls basketball coach at a high school in Idaho, who lost her job, apparently after her school learned about a photo on her Facebook page that showed her boyfriend touching her chest.

What struck me as interesting is that Ms. Cook’s boyfriend is also her co-worker, varsity football coach Tom Harrison.

And what struck me as even more interesting is that, while Ms. Cook lost her job, Mr. Harrison was merely disciplined.

Were you thinking gender discrimination? Because the thought did cross my mind.

But, as employment lawyers, business owners, managers, and HR professionals, we’ve all been in situations in which one event results in discipline for two employees. And there are a variety of reasons why that discipline may be uneven. Here, Ms. Cook may have more prior infractions. The article discussing the incident also indicates that Mr. Harrison has won 10 state championships and was inducted into the Idaho High School Football Hall of Fame in 2000. So, the school may have been more inclined to cut him some slack. And that has nothing to do with gender.

However, let’s face it, in this particular instance, there is one reason — one word — that we’re hearing about an incident involving two teachers in Idaho: Facebook.

Question for you: Is uneven discipline relating to a Facebook-related event the exception to the rule? That is, if a similar Facebook incident occurred in your workplace, knowing that it may draw media attention, would you be more inclined to view the incident in a vacuum and discipline both employees equally?

Let me know in the comments below.

coexist.jpgWe’re talking religious accommodations here at the ole Handbook. 

Last week, it was the Mark of the Beast. Before that, we explored Ramadan bagel parties

Today, we’re sticking with the Ramadan theme. Unfortunately, I don’t know any Ramadan tunes to soundtrack this post. So, let’s just go with Christian rock.

Now, back to Ramadan. In EEOC v. JBS USA, LLC, several Muslim employees at a meatpacking plant argued that their employer engaged in religious discrimination when it failed to allow them to take unscheduled prayer breaks. Specifically, Muslim representatives told JBS that the Muslim employees “have to pray within 10 minutes of sunset and at the most 15 minutes after sunset.” JBS responded that it could not relieve 200 employees within a 10-minute window because of safety and quality concerns created by such an accommodation.

To establish religious discrimination for failure to accommodate, an employee must demonstrate that he or she (1) has a bona fide religious belief that conflicts with an employment requirement, (2) informed the employer of this belief, and (3) was disciplined for failing to comply with the conflicting requirement. The burden then shifts to the employer to show that the requested accommodation would have caused it undue hardship. This can be shown in one of two ways: added cost to the employer or an imposition on co-workers.

So, mass unscheduled prayer breaks? I’m thinking this may cause an undue hardship. Amirite, United States District Court for the District of Nebraska?

The evidence demonstrates that this accommodation would have imposed more than a de minimis burden on JBS, as well as on co-workers…The evidence demonstrated that extra employee breaks could have an adverse effect on food safety. Safety concerns are highly relevant in determining whether a proposed accommodation would produce an undue hardship on the employer’s business….The evidence demonstrates that unscheduled breaks in the manner proposed by the Muslim employees also would have imposed more than a de minimis burden on non-Muslim co-workers. Such unscheduled breaks would have required a supervisor, lead worker, trainer, or coworker to fill in for the employee leaving the line. The substitute, therefore, would not be performing his or her own job while covering for the absent employee.

Yes, while the threshold for establishing something more than a de minimis burden on the company or co-workers is rather low, just be careful about denying accommodations to one religion, while allowing them to another. That’s an easy way to find yourself on not only the receiving end, but also the losing end of a religious discrimination lawsuit

If only I had a hot tub time machine, I would have gone back a day and a half and scooped Phil Miles at Lawffice Space and posted “New Jersey Recognizes Same Sex Marriages – Why it Matters for Pennsylvania Employers” before he did.

Except I didn’t.

So read his post entitled “New Jersey Recognizes Same Sex Marriages – Why it Matters for Pennsylvania Employers.” It’s really good.

Lesson learned. Now, I’m on my game! So, tonight, my marching band and I are going to do an original tribute to Michael Jackson at halftime of a local high school football game. So, I’ll post that here tomorrow.

Wait, WTH!

New Jersey is the home of deep fried hot dogs and the Law Against Discrimination, one of the most employee-friendly anti-discrimination statutes in the country. Here, pregnant employees can order a ripper with relish at Rutt’s Hut, but, somehow, are not entitled to preferential leave treatment in the workplace.

However, a new bill pending in the NJ Senate would change all that.

Not the hot dogs, silly. They rule. You know what doesn’t rule? Leaving a quart of Rutt’s Hut relish in the backseat of your buddy’s car overnight during a high-90s Summer heat wave. Sorry, dude.

But about that bill. Christina M. Michelson at BusinessLawNews.com has the scoop:

Under the proposed legislation, a woman affected by pregnancy cannot be treated, for employment-related purposes, in a manner less favorable than other persons not affected by pregnancy but similar in their ability or inability to work. The proposed amendment to the LAD specifically requires employers to make available reasonable accommodation for pregnancy-related needs when requested by the employee with the advice of her physician. It also prohibits the employer from penalizing the employee in terms, conditions or privileges of employment for using the accommodations or, when accommodations are not feasible, for taking time away from work required by the pregnancy, as certified by a physician of the employee taking into account the condition of the employee and the job requirements.

You can view a copy of the proposed legislation here.

onlinesearch.jpg

This according to a CareerBuilder.com survey (here) released last week. 

Of the 2,775 hiring managers polled, almost half (48%) responded that employers will use Google or other search engines to research candidates. Nearly the same number (44%) will research the candidate on Facebook. Just over one quarter (27%) will monitor the candidate’s activity on Twitter. 23% will review the candidate’s posts or comments on Yelp.com, Glassdoor.com or other rating sites.

The survey cites these statistics as a way to encourage job seekers to keep their online personas clean from digital dirt. So, I’ll take a different approach and offer some tips for employers:

  1. Employers are not required to conduct an online background check of job applicants. If you do, it’s generally best to avoid demanding that applicants disclose social media usernames and passwords. This approach is illegal in many states and is likely to rub your candidates — the ones you want to like working for you — the wrong way.
  2. Wait until after the interview and before making the job offer to run the online search. This will save you time by minimizing the number of searches.
  3. If you use a third party to search, remember that the Fair Credit Reporting Act applies. And if you don’t, it’s probably a good idea to inform your applicants anyway that you will be vetting them online.
  4. Have someone other than the decisionmaker search. What the decisionmaker doesn’t know (e.g., the applicant’s national origin, disability, pregnancy, sexual orientation) won’t factor into the employment decision. Instead, have someone else research the applicant online, redact all of the protected-class information, and provide the decision maker with only the red flags that should influence an employment decision (hate speech, productivity issues, drug use, etc.)
  5. Give the applicant a chance to explain. Not everything you read online is true. Other information can be taken out of context. If you find something questionable about an applicant, allow that person an opportunity to address it before making an employment decision.