Recently in Pennsylvania Category

October 23, 2014

Court gives cold shoulder to frostbite as an ADA disability

See that lede right there! That's journalism, baby!

After the jump, let's talk about what it means to have a disability under the Americans with Disabilities Act Amendment Act.

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Continue reading "Court gives cold shoulder to frostbite as an ADA disability" »

October 10, 2014

Read this before you revoke a job offer in Pennsylvania based on criminal history

Across the country, many states and localities have enacted ban-the-box legislation. In a nutshell, ban the box means that employers cannot inquire about an applicant's criminal history until after the first job interview.

For example, Philadelphia has ban the box. The Commonwealth of Pennsylvania does not.

Still, Pennsylvania does have the Criminal History Record Information Act. But, indeed, a Pennsylvania federal court ruled on Wednesday that the Act and ban the box are two separate things:

CHRIA does not preclude an employer from revoking a conditional offer of employment based on a good faith belief than an applicant intentionally withheld material information on his employment application in violation of the employer's policies.

Just be sure that, if you are asking about criminal history on a job application, you don't operate in a ban-the-box town or city. And, even if you don't, remember that under the Act precludes employers from basing employment decisions on misdemeanors and summary convictions that do not render an applicant unsuitable for employment. And basing an employment decision on a mere arrest...fuggedaboudit. Like my arrest for male prostitution doesn't make me unfit to be a lawyer.

(If only my blogging platform had a double strikethrough).

September 23, 2014

Hitler jokes from supervisors of German descent are, oh, what's the word?

The German word is "dumm"

Or, as they say in Germ-lish: Hella-dumm.

More after the jump...

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Continue reading "Hitler jokes from supervisors of German descent are, oh, what's the word?" »

September 9, 2014

A restaurant posted LeSean McCoy's receipt on its Facebook page

My mind...blown!

Yesterday, the local internet feeds were flooding us with news that Philadelphia Eagles running back LeSean McCoy allegedly left a 20-cent tip at a local restaurant at which he and some friends had lunch on Monday. The "smoking gun" was a copy of what is purported to be McCoy's lunch receipt from the restaurant.

I read "Eagles Player LeSean McCoy Just Left a 20-Cent Tip at PYT" on PhillyMag.com, and "LeSean McCoy tips 20 cents at PYT. The restaurant, PYT, even posted about it on its own Facebook page, complete with a copy of the supposed McCoy receipt.

I get that internet stories about a low-tipping professional athlete equal reader clicks. But how about a different angle; namely, that the person who posted a customer's receipt on social media still has his job to return to today. Or that the restaurant itself is glorifying a practice of shaming customers -- famous or not. (Remember the story of the employee who posted the Denver QB Peyton Manning's huge tip on a dinner receipt? He lost his job). Fortunately, many of the Facebook users who commented on the PYT Facebook page get that posting meal receipts, large or small, is hella-stupid...

So, what do you think, folks? Take this poll and this poll and let me know what you think in the comments...

Was PYT right to post the receipt?
 
pollcode.com free polls
What should happen to the PYT employee who posted the receipt?
 
pollcode.com free polls


UPDATE (9/9/14 4:52 pm): About an hour ago, on PYT's Facebook page, PYT's owner addressed the kerfuffle that posting the receipt created.

UPDATE (9/10/14 2:52 PM): This.

September 4, 2014

Philadelphia now requires breastfeeding protections for local employees

Heads up, Philly employers! This new law takes effect right away!

Read all about it after the jump...

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August 28, 2014

Here's why you provide a list of essential job functions when approving FMLA

Trial is over!

I'm coming atcha live and direct from the bloggerdome with a sweet defense verdict in my pocket. Yup, yup!

[cue music]

[cue music]

And what do I come back to? A precedential Third Circuit opinion discussing an employee's right to return to work from FMLA.

I'll cover that for you after the jump...

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Continue reading "Here's why you provide a list of essential job functions when approving FMLA" »

July 29, 2014

Court: No First Amendment right for teacher to trash students online

Welcome to The Employer Handbook.

Extending the fifteen minutes of fame of a trash-talking blogger/teacher by a 300 word blog post.

After the jump...

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Continue reading "Court: No First Amendment right for teacher to trash students online" »

July 16, 2014

Another PA court concludes that "fluctuating workweek" is dead in PA

It's been a rough year for RadioShack. One that, for me, came out of nowhere.

That Super Bowl commercial was freaking brilliant! (Second only to this one).

So, of to a great start in February, I thought things were looking up for RadioShack. But, then they announced they were closing 1,100 stores and one analyst later cut RadioShack's stock price target to $0. ZERO!

And, then, last week, in this opinion, a Pennsylvania federal court delivered a swift kick to the RadioShack's you know what, when it held that RadioShack use of the "fluctuating workweek" method for calculating overtime violates the Pennsylvania Minimum Wage Act.

We've talked about the fluctuating workweek here before, in a post I trust maybe three of you read. Because wage-and-hour posts appeal to my readers about as much as Paula Deen likes kale and quinoa.

Maybe, now would be a good time to cue up the music.

For those who care -- hey, welcome back you three -- basically, the fluctuating workweek method of calculating overtime compensation allows an employer to pay a non-exempt employee a fixed, weekly salary, regardless of the number of hours worked. OT is then paid out at one-half times the regular rate of pay (rather than one and one-half times the regular rate, as is the default for payment of OT). The regular rate of pay is determined by dividing the fixed salary by the total number of hours worked in a workweek. This method of paying OT benefits the employer if employees generally work more than 40 hours per week (because the effective hourly rate is driven down).

But, unlike under federal law, the supporting regulations to the PMWA require that even if an employer reaches an agreement with its employees before work is performed as to a regular rate of pay, the employer must still pay OT at a "rate not less than 1 ½ times the rate established by the agreement."

Between the regulations two prior cases (this one and this one), which both held that the fluctuating workweek method of overtime calculation is impermissible under the PMWA, the Court concluded that RadioShack too had violated the PMWA by not paying out OT at one and one-half times the regular rate.

At this point, it's safe to say that PA employers who utilize the fluctuating workweek are just asking for trouble.

May 21, 2014

How yesterday's federal court strike of PA's same-sex marriage ban affects employers

parainbow.jpgICYMI, yesterday, the United States District Court for the Middle District of Pennsylvania ruled in this opinion that PA's same-sex marriage ban is unconstitutional.

How fitting that the first gay couple in Philadelphia to obtain a marriage license was Kerry Smith and Rue Landau, who serves as the Executive Director of the Philadelphia Commission on Human Relations (PCHR). Congratulations, Rue and Kerry!

So, now that, for the time being, gay marriage is legal in the Keystone State, how does this impact local employers? Find out after the jump...

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Continue reading "How yesterday's federal court strike of PA's same-sex marriage ban affects employers" »

May 20, 2014

Three employees fired for posing at work in KKK garb and makeshift crosses claim discrimination. Yep.

Thumbnail image for youarefired.jpgThe thing about this law-blogging gig, other than the money, power and women, of course, is the pride of being first to post about a crazy new case.

Last week, I missed out on the nude sunbather who sued an elementary school-employer for retaliation. Well, Jon Hyman at the Ohio Employer's Law Blog, I see your nude sunbather and raise you two white guys and a native american who dressed as klansmen at work, allowed themselves to be photographed, and then sued for race discrimination. Boom!

Yes, this really happened.

More on this one after the jump...

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Continue reading "Three employees fired for posing at work in KKK garb and makeshift crosses claim discrimination. Yep." »

May 15, 2014

PA Superior Court closes non-competition-agreement loophole

In Pennsylvania, a company and an employee can enter into an agreement whereby, in exchange for some form of consideration, the employee agrees not to compete with the company after the employment ends.

Consideration can come in a variety of forms; for example, a raise, bonus, promotion, or sugar. Initial employment can also be sufficient consideration.

However, in Pennsylvania, continued employment won't cut it. That is, a non-competition agreement will be invalid if an employee signs it after commencing employment -- even if you tell the employee that he/she will lose his job by not signing.

However, some smart lawyer out there -- even smarter than I am -- figured out that, by inserting the language "intending to be legally bound" into a non-competition agreement, Pennsylvania's Uniform Written Obligations Act ("UWOA") would validate the agreement -- even without any additional consideration.

Until now, son.

Earlier this week, in Socko v. Mid-Atlantic Systems of CPA, Inc. (opinion here; Socko here), the Pennsylvania Superior Court said the UWOA exception be like this won't save a non-competition agreement otherwise lacking in consideration:

"Language in an employment contract that the parties intend to be legally bound does not constitute valuable consideration in this context....Contractual language satisfying the UWOA does not provide the employee with any actual benefit, and thus cannot suffice as a form of consideration that is adequate to support the later enforcement of the covenant not to compete against the employee."

While the Pennsylvania Supreme Court has yet to weigh in on this issue, employers would be wise to play it safe and offer employees sufficient consideration to support a covenant not to compete: either initial employment or, if the employee signs the agreement after employment begins, something else of sufficient value.

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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 7, 2014

Yes, you can have a hostile work environment based on sexual stereotyping.

We've talked a fair amount about sexual stereotyping at the ole Handbook.

Here I discussed the cluster created by offering crap assignments to a male employee because he fails to conform to a male stereotype.

And of course, we have my "Ravishing Rick Rude" theory of same-sex harassment, which a federal appellate court crapped all over.

And on Monday, while some of you were out celebrating Cinco de Mayo -- I'm a Siete de Mayo guy myself, so hold my calls -- a federal court in Pennsylvania determined (here) that a male plaintiff can state a valid sexual stereotyping claim by alleging that his same-sex harasser believed that the plaintiff did not conform to the stereotype of a heterosexual male.

Put another way, the plaintiff claimed that his failure to laugh at his co-worker's infantile penis jokes and other oversexed comments, in conformity with how a "real man" should react, caused his co-worker to make additional lewd, hostile and unwelcome actions and comments.

Well, are you thinking what I'm thinking?

Putting sea salt on the fried Oreos I had for breakfast was a master stroke of genius.

Why did the Defendants argue that, because the harasser allegedly told plaintiff "you gotta get it in," he was "attempting to encourage and support plaintiff, not demean or tease him?"

(Yeah, no strikethrough there. The defendants actually made that argument with a straight face. ***facepalm***)

How is it that the plaintiff here is being sexually harassed "because of" his gender -- especially if the co-worker makes the similar sexual comments to other female co-workers?

Ah yes, the old equal-opportunity-pervert defense. Perfectly viable. 

But, the plaintiff in this case did not allege that his harasser was bringing sexy back with both men and women. Rather, he alleged that his male-coworker's comments and behavior were heterosexual in nature, but that he expected men, such as the plaintiff, to join in the lewd, promiscuous and predatory talk.

Add in allegations that the comments were pervasive and offensive and that complaints to management went unanswered and that, my friends, was enough to survive a motion to dismiss.

On a more complete record, the plaintiff's case may well fall apart. However, employers should use this decision as a reminder to their workforce that lewd comments of any kind, directed at any person, are forbidden.

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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 21, 2014

There is no right to be completely left alone while on FMLA leave

Thumbnail image for fmla.jpegOne of the questions I hear a lot from employers is: Can we communicate with employees on Family and Medical Leave Act leave and, if so, how much?

I'll get to that in a second.

#HelpShaneFightCancer

For the folks who missed my blog post on Friday, we're trying to raise some money for an eight-month-old baby with cancer. Please take a few minutes, read the post, donate if you can, and spread the word (hashtag #HelpShaneFightCancer). Thank you!

Now, back to the FMLA.

Over the weekend, I read this recent opinion from the Third Circuit Court of Appeals, which is right in my back yard. The case involved an employee who was informed that her job was being eliminated. However, her employer offered her another position within the company. The only catch was that she sign a non-competition agreement. The employee was given specific deadline in which to accept and sign. The alternative was termination with a severance.

Before the deadline, the employee suffered panic attacks, and the employer afforded her FMLA leave. But, after the employee commenced leave, the employer contacted the employee to reiterate the deadline to accept and sign.

This deadline came and went without the employee signing the non-compete. So, she was fired.

And then she sued for FMLA interference.

And she lost because I basically took the lede right from the Third Circuit's opinion:

"Passport imposed the requirement that O'Donnell sign the offer letter and the non-compete agreement before she took FMLA leave...Thus, O'Donnell knew that she needed to sign the forms well before she invoked her FMLA rights....As this Court has previously explained, 'there is no right in the FMLA to be left alone,' and be completely absolved of responding to the employer's discrete inquiries....There is no evidence showing that Passport in any way hampered or discouraged O'Donnell's exercise of her right to medical leave, or attempted to persuade her to return from her leave early.

Generally, you should be communicating with employees on FMLA leave. 

This is especially true where the employee is taking leave for his/her own serious health condition and that serious health condition could also be construed under the Americans with Disabilities Act as a disability.

Because once the ADA comes into the equation, an employer should have an interactive dialogue with the disabled employee. This open communication helps determine what reasonable accommodations(s) will allow the employee to perform the essential functions of his/her job. This could be additional leave after FMLA expires, or something else, such as light duty.

But, the only way you'll ascertain that is by communicating with your employee.

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P.S. - And speaking of communicating, if you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group

April 14, 2014

This is one badass labor and employment law roundtable

Recently, several local lawyers and I participated in a labor and employment law roundtable for The Legal Intelligencer.

Actually, the table was rectangular. But, the coffee and muffins were free, so I didn't complain.

Well, not until I dropped my pants and mooned the employee-rights lawyers on the panel. Trust me, they had it coming. 

Actually, they were quite polite and articulate. So, fortunately, they edited my butt-cheeks out.

I'm a real peach.

What were we talking about again?

Right, the roundtable. We debated several topics:

  • background checks
  • social media in the workplace
  • employee leave issues
  • dating in the workplace
  • BYOD
  • my 28 inch blog pythons

Here is the transcript.

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.