icyhot.jpg

If I ever handled a plaintiff’s case again, at deposition, I would be sure to take a page out of the playbook of Texas employment lawyer, Mike Maslanka:

Ask the manager who decided to fire the plaintiff whether he’s eligible for re-hire. An unprepared manager might blurt out, “Of course not; he’s suing us.” Say hello to a retaliation claim.

I thought of Mike as I read this recent Texas Court of Appeals case about an employer that admitted at trial that, its receipt of EEOC right to sue letters “prompted” it to place the following notes on the Charging Parties’ personnel files:

“Please note he is not eligible for rehire ever. Tried to sue us. Simply tell him, ‘sorry but we have nothing for you at this time. Please try again. Have a nice day.’ Not for rehire. Per Ben G.”

Folks, that’s stupider than the time in high school that a combustible combination of curiosity and boredom led me to disregard the warning on the container of Icy Hot balm, about where not to rub the balm.

The notes in the personnel files was enough for the appellate court to uphold the jury finding of both retaliation and malice.

Remember, that anti-retaliation laws apply not only to current employees, but also former ones too. And if there’s anything a jury hates more than straight-up discrimination, it’s retaliation, which happens to be the most popular claim filed with the EEOC.

wheelchair.jpegWhen the Americans with Disabilities Act Amendments Act (“ADAAA”) went into effect on January 1, 2009, the changes to the Americans with Disabilities Act (“ADA”) emphasized construing the definition of “disability” to provide broad coverage of individuals to the maximum extent permitted by the terms of the ADA.

In other words, nowadays we’re all disabled.

However, if you’re going to take your employer to trial on a disability discrimination claim, you still need to show a “disability.”

Otherwise, the Americans with Disabilities Act would be the “Americans with Act” and that would be more confusing than the Royal Tenenbaums.

Just ask the Fifth Circuit Court of Appeals in this recent opinion:

Although the text of the ADAAA expresses Congress’s intention to broaden the definition and coverage of the term “disability,” it in no way eliminated the term from the ADA or the need to prove a disability on a claim of disability discrimination. In other words, though the ADAAA makes it easier to prove a disability, it does not absolve a party from proving one.

But, just because the Fifth Circuit is a stickler for the details, doesn’t mean that you should be in the workplace. If an employee comes to you complaining of a bad back, or a sore wrist, or the like, sure, you can make them establish it medically. But, know that the burden of establishing a “disability” is low. So, instead, focus on discussing with that individual a reasonable accommodation that will allow the employee to perform the essential functions of the job.

Thumbnail image for rainbowflag.jpgAnd it wasn’t close at all.

By a final vote of 64-32, the Employment Non-Discrimination Act, also known as ENDA, passed the Senate on Thursday.

All 52 Democrats, plus 2 Independents and 10 Republicans voted in favor of the bill. Among the notable yes votes was Pennsylvania Senator Pat Toomey (R). Indeed, minutes before voting yes on ENDA, Senator Toomey saw his proposed amendment to the bill, which would have created exceptions for certain religious groups, defeated.

Toomey joined Sens. Kelly Ayotte (R-N.H.), Susan Collins (R-Maine), Jeff Flake (R-Ariz.), Orrin G. Hatch (R-Utah), Dean Heller (R-Nev.), Mark Kirk (R-Ill.), John McCain (R-Ariz.), Lisa Murkowski (R-Alaska), Rob Portman (R-Ohio) as the Republicans supporting the bill.

In fact, Toomey was the only Pennsylvania Senator to vote in favor of the bill. Senator Robert Casey (D), missed the vote, to be with his wife who recently had heart surgery. Senator Casey was a staunch advocate of the bill.

The Senate’s newest addition, New Jersey’s Cory Booker (D), as well as his fellow statesman, Robert Mendendez (D), we are also among the yes votes.

ENDA now heads over to the House of Representatives, where the chances of passage appear bleak. Although President Obama has called upon House Republicans to pass the bill, Speaker John Boehner (R-Ohio) is on record as opposing the bill, believing that it will encourage frivolous litigation and cost jobs in small businesses.

And although the House previously passed a version of the bill in 2007, yesterday, a spokesperson for House Majority Leader Eric Cantor (R-VA) further quelled any hope that the House would send this matter to the President for signature:

“The bill is currently not scheduled in the House. I hope Majority Leader Reid soon addresses the dozens of House-passed bills that have been ignored in the Senate that create jobs, improve education and create opportunity while Americans struggle to find a good-paying job.”

So, it appears that this historical workplace discrimination bill stands in great jeopardy.

Thumbnail image for nj1.jpgOn Election Day, NJ voters approved a constitutional amendment increasing the state’s minimum wage by $1, from $7.25 to $8.25. The new wage rate will take effect on January 1, and future increases will be tied to inflation.

Governor Chris Christie, who was re-elected on Tuesday had opposed the increase, claiming that the state’s economy would have a difficult time withstanding the increase.

New Jersey becomes the 20th state to establish a minimum wage higher than the federal minimum of $7.25.

Estimates suggest that the increase will affect about 400,000 NJ families. Hopefully, the wage hike does not affect hiring, especially in small businesses.

NJ business will want to be sure that, come January 1, they are not only paying out the proper minimum wage, but also accurately calculating overtime when minimum-wage employees work more than 40 hours in a workweek, lest they wish to find themselves in hot water with the NJ Department of Labor and Workforce Development.

pantsdown.JPGi·ro·ny (noun)

/ˈīrənē,ˈiərnē/

1. the expression of one’s meaning by using language that normally signifies the opposite, typically for humorous or emphatic effect.
“The irony of this blog post is that I am typing it with no pants.”

Look folks, in all seriousness ***waits patiently while you napalm your brains***, I was reading this case last night, which even by my scorched-employment-lawyer prurient standards strikes me as shocking. Sure, I could restate all of the tawdry facts in this post to transparently boost my SEO. Instead, I’ll just sum it up in with a single paragraph from the opinion:

On May 18, 2012, the sales team played a mix of music containing sexually explicit lyrics. One co-worker “ripped off his pants and strutted around the office in his peach colored briefs. When [Plaintiff] implored him to put his pants back on, [the co-worker] replied ‘put that in your lawsuit.'”

So, she did. And, she also included the semen on the office bathroom sink.

(Ok, a touch gratuitous…)

Look folks, if you want a sure-fire way to end up at trial staring down the barrel of a sexual harassment claim with punitive damages at stake, read this opinion and do exactly what the employer-defendant did, right down to describing the work atmosphere as “good for morale and ‘created a fun sales environment.'”

Then call me. And we’ll chat about large retainers and such.

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Earlier this week, I blogged about Senator Harry Reid (D-NV) promising that the Senate would take up the Employment Non-Discrimination Act.

Yesterday, the Senate obtained enough support to put ENDA to a full vote. Every Senate Democrat agreed to press forward. And even some Republicans helped get the bill to cloture, most notably conservatives Orrin Hatch (R-UT) and Dean Heller (R-Nev.), who announced on Monday that he would back ENDA. With 60 members of the Senate supporting ENDA, the matter is ripe for a vote.

However, while it appear likely at ENDA will make it through the Senate, passage in the House is another story. Concerned with the impact ENDA may have on American businesses, House Majority Leader John Boehner reconfirmed yesterday that he would oppose the bill.

President Obama, in a blog post on the Huffington Post, reaffirmed his support for ENDA. And the White House officially called for passage of ENDA on Monday.

Although the road for ENDA to become law remains rocky, it’s worth noting that 93% of Fortune 100 companies include sexual orientation and 82% include gender identity in their corporate nondiscrimination policies. Nearly 200 municipalities also have similar laws in place.

nickfoles.jpgHonestly, I was ready to call in sick and use “Bunkered in for the Apocalypse” as my excuse.

I had no other explanation after Nick Foles passed for seven touchdowns yesterday. Seriously, weren’t you at least a bit concerned?

Yep, CareerBuilder’s annual list of “Most Outrageous Excuses Workers Have Given When Calling in Sick” is back. “Employee’s sobriety tool wouldn’t allow the car to start” topped last year’s list.

Find out what made the Top 13 this year, after the jump…

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Continue reading

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.