The Employer Handbook Blog

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."

I'll set it up for you:

You run a non-union company called RH Chili Peppers. However, one of your employees, Disgruntled Donny, has been trying to get his co-workers to help unionize the workplace. Thus far, he has been unsuccessful. So, DD takes to Facebook and posts a message bashing the wages and benefits at RH Chili Peppers on a Facebook page called, "Peter Picked a Peck," a Facebook page that DD "likes." PPaP is frequented by employees, like DD, who work in the chili pepper industry, albeit at other chili pepper companies in the city.

One of your employees shows you printouts of DD's inflammatory comments about RH Chili Peppers. Can you discipline DD?

According to this decision last week from the National Labor Relations Board, the answer is no. The reason is that the National Labor Relations Act protects employees who opt to engage in union-related activities. This speech, even if directed at third parties, is protected if it flows from prior organizational activity, which was known to the employer, and is not libelous. It does not matter whether DD uses a actual bull-horn or a virtual bull-horn. Either way, that speech is protected and discipline may not ensue based on the substance of DD's pro-union speech.

So the answer to today's QATQQ is 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."

Your new employee at local pizzeria has what we'll call a "facial deformity." So, rather than having him work the cash register, or otherwise emerge from the kitchen, you mandate that he work in the back so that no customers will ever see him.

Have you violated the Americans with Disabilities Act?

Well, it's probably time to call the lawyer...

Under the ADA, it is unlawful to discriminate against a disabled employee. An individual has a "disability" if he:

1. has a physical or mental impairment that substantially limits one or more of the major life activities of an individual;


2. has a record of such impairment; or


3. is regarded as having such impairment.

The supporting regulations are clear that a cosmetic disfigurement, such as a "facial deformity," qualifies as a physical impairment. And if that physical impairment substantially limits a major life activity such as --- I dunno -- working, we've got an ADA disability. Moreover, if the employer keeps the employee in the back under the pretense of appealing to "customer preferences," then the employee is likely being "regarded as" disabled. 

To be clear, employment decisions that are based on the discriminatory preferences of customers are just as unlawful as decisions based on an employer's own discriminatory preferences. 

(You may be thinking bona fide occupational qualification. Indeed, religion, sex, or national origin can be a bona fide occupational qualification; the ADA contains no BFOQ defense). 

The answer to today's QATQQ is FACT. And, for more, check out this recent federal-court decision authored by none other than the author of the most blunt same-sex sexual harassment judicial opinion...evah!

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."

The Family and Medical Leave Act permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances, such as caring for a parent with a serious health condition. Intermittent leave can be days, hours, or even minutes off of work. Indeed, when an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee's FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.

When employees use minutes of intermittent FMLA, it's generally in the form of early dismissals or late arrivals to work. But what about FMLA leave during breaks and lunches, when the employee never actually leaves the office? Can that time be used for intermittent FMLA leave?

According to this recent case, periodic time away from one's desk throughout the work day -- but not out of the office -- is not FMLA leave. The court was "unable to locate a case where 'temporary' FMLA leave was awarded in such a context-where the leave given does not constitute time away from a place of work."

The answer to today's "fact or fiction" is 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."

An employee is eligible for leave under the Family and Medical Leave Act if the employee has "a serious health condition that makes the employee unable to perform the functions of the position of such employee." An employee has a serious health condition if there is "an illness, injury, impairment or physical or mental condition that involves inpatient care . . . or continuing treatment by a health care provider."

Treatments for cosmetic procedures are not serious health conditions unless complications develop from the procedure or inpatient hospital care is required. So, an employee who takes leave for a tummy-tuck procedure is not covered under the FMLA.

The answer to today's question is fiction.

For more on this, check out Dorsey v. Bellanger.

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."

Under Title VII of the Civil Rights Act, an employer engages in unlawful retaliation when, in response to an employee complaint of discrimination, it acts in a way that may dissuade a reasonable worker from making or supporting a charge of discrimination.

So, let's assume that an individual files a charge of discrimination with the EEOC against her former employer. Thereafter, the employee files for unemployment compensation benefits, and the employer fights the claim for unemployment compensation, claiming that the employee was terminated for gross negligence. Could that be viewed as Title VII retaliation?

According to the this recent PA federal court decision, the answer is fact:

Ms. Stezzi can satisfy the "`adverse employment action' element of [her] prima facie case of retaliation" with her claims regarding Citizens Bank's post-employment conduct if she can show that Citizens Bank's actions negatively affected her future employment opportunities...I find that her complaint sufficiently alleges that Citizens Bank adversely affected her future employment opportunities by ordering Talx to appeal her unemployment compensation benefits....If other employers saw that Talx described Ms. Stezzi as grossly negligent in its appeal, it is reasonable to infer that such employers might refuse to hire Ms. Stezzi.

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."

So, let's get right to it. In Pearce-Mato v. Shinseki, decided earlier this week, a Pennsylvania federal court reminded us that episodic impairments may, indeed, be disabilities under the Americans with Disabilities Act Amendments Act:

The fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity ...  An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

So, the answer to today's question is fiction.

And here's a bonus tip from the same case: a disabled employee does not need to request a reasonable accommodation in writing. Rather, as previously noted in this case, to request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation." The notice merely "must make clear that the employee wants assistance for his or her disability. In other words, the employer must know of both the disability and the employee's desire for accommodation for that disability."

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". So, let's get right to today's question:

Let's say I have a former employee who files a charge of discrimination with the EEOC. If a potential new employer comes calling from a job reference and I...

1. give my former employee a bad reference;
2. to get back at the employee for filing the charge; and,
3. because of my bad reference, the former employee is not hired...

Have I engaged in actionable post-employment retaliation?

You bet I have! So, the answer to today's QATQQ is "FACT".

Consistent with the U.S. Supreme Court's decision in Robinson v. Shell Oil Co., here in the Third Circuit (PA, NJ, DE, USVI) post-employment retaliation is bad, bad, bad. In this Third Circuit decision, the court held that "an ex-employee may file a retaliation action against a previous employer for retaliatory conduct occurring after the end of the employment relationship when the retaliatory act is in reprisal for a protected act and arises out of or is related to the employment relationship."  Many state courts are on boards with this too (For example, check out this case from the NJ Supreme Court). A former employer engages in retaliation where its action results in discharge from a later job, a refusal to hire the plaintiff, or other professional or occupational harm. In essence, post-employment retaliation must involve some harm to an employee's employment opportunities.

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". So, let's get right to today's question:

If a former employee sues for discrimination, claiming to have been subjected to a hostile work environment, must the employee prove that the harasser acted with bad intentions? Put another way, if the harasser was just joking around, does the plaintiff lose the case?

No way! FICTION!!!

An employer is liable for a hostile-work-environment discrimination if the employee can prove five elements:

1. the employee was subjected to certain conduct because of the employee's particular protected class (e.g., race, religion, national origin, gender, sex),
2. the discrimination was severe or pervasive,
3. the discrimination detrimentally affected the employee,
4. the discrimination would detrimentally affect a reasonable person in like circumstances, and
5. a basis for employer liability is present.

It does not matter whether the harasser intended to harm the victim. It only matters how the harasser's action's impacted the victim (and how someone in the victim's shoes would feel). This nuance, which many employees do not appreciate, is a crucial point to stress when conducting anti-harassment training -- before a lawsuit is ever filed.

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".

The answer to today's question is fact.

In 1991, the Supreme Court decided, in the companion cases of EEOC v. Arabian American Oil Co. and Boureslan v. Arabian American Oil Co., that Title VII of the Civil Rights Act of 1964, the federal statute which makes it illegal for employers to discriminate on the basis of race, color, religion, sex, and national origin, did not apply extraterritorially to regulate the employment practices of United States employers that discriminate against United States citizens abroad.

However, as the The U.S. Equal Employment Opportunity Commission notes in this Enforcement Guidance memorandum, Congress subsequently amended both Title VII and the Americans with Disabilities Act in 1993 to permit American citizens employed outside of the United States by an American employer or a foreign corporation controlled by an American employer to pursue legal claims. Note, however, that the 1993 amendment provides a defense for violations of Title VII or the ADA if compliance with those statutes, "with respect to an employee in a workplace in a foreign country," would "cause" a covered entity to "violate the law of the foreign country in which such workplace is located."

h/t ContractorPerspective.com

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".

The answer to today's question is fiction. Pregnancy is not a "disability" for purposes of the Americans with Disabilities Act. To be considered a disability under the ADA, covered persons must actually have physical or mental impairments that substantially limit one or more major life activities. Pregnancy is not considered an impairment under the law.

However, when it comes to pregnant employees, keep three things in mind:

1. The Pregnancy Discrimination Act prohibits pregnancy-related discrimination. It requires that employers treat pregnant employees in the same manner as male and non-pregnant female employees in determining their ability to work.
2. If an employer offers temporary or short-term disability leave, Title VII requires the employer to treat pregnancy and related conditions the same as non-pregnancy conditions.
3. Last week, a federal appeals court ruled, for the first time, that pregnancy-related health complications can render an employee "disabled" under the ADA.

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".

Until about five years ago, a plaintiff had to prove a materially adverse employment action in order to recover for retaliation. (I addressed the complete three-part test for retaliation in yesterday's post).

Not so anymore. As explained briefly after the jump, the rules for retaliation have changed.

Continue reading "Fact or Fiction: Retaliation requires job-related action (e.g., firing)" »

Welcome back to "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".

So, is a miniature horse a reasonable accommodation under the Americans with Disabilities Act? Maybe.

Title I of the ADA covers employers discriminating against qualified individuals with disabilities in terms, conditions, and privileges of employment. There is nothing explicit in Title I or its supporting regulations that suggests that a miniature horse is or is not a reasonable accommodation for an employee. (Miniature horses generally range in height from 24 inches to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds.) That said, if the request is reasonable (i.e., would not cause the employer undue hardship) and there is no other reasonable alternative, then giddy-up.

The final regulations implementing the ADA for title II (State and local government services) and title III (public accommodations and commercial facilities), which went into effect earlier this year, have a new, separate provision about miniature horses that have been individually trained to do work or perform tasks for people with disabilities.

Entities covered by title II and III of the ADA must modify their policies to permit miniature horses where reasonable, subject to a four-factor test found here.

Welcome back to "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".

As you know, if you read yesterday's post, the Worker Adjustment and Retraining Notification Act (WARN), a federal law, protects workers by requiring most employers with 100 or more employees to notify them 60 calendar days in advance of plant closings and mass layoffs. But did you know that many states have their own mini-WARN acts? New Jersey is one of them. Here is a chart comparing the difference between the federal and NJ WARN laws.

So, does NJ's mini-WARN apply to parent and affiliated companies? The answer is yes, if they satisfy the U.S. Department of Labor's five-factor test: 

1. common ownership;


2. common directors and/or officers;


3. de facto exercise of control;


4. unity of personnel policies emanating from a common source; and


5. the dependency of operations.

This is the same test applied under the federal WARN law. For more on this test, and how it may apply in NJ, check out DeRosa v. Accredited Home Lenders, Inc.

Welcome to the inaugural 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".

So, I was recently asked whether a younger employee may have a federal age-discrimination claim against his employer if the company treats a similarly-situated older employee better.

The answer is no. In 2004, the U.S. Supreme Court in General Dynamics Land Systems, Inc. v. Cline held that the Age Discrimination in Employment Act of 1967 (ADEA) does not forbid discriminatory preference for the old over the young.

Update: Some readers on LinkedIn wisely noted that, notwithstanding the federal position on "reverse age discrimination," some states and municipalities have laws on the books that do recognize claims based on discriminatory preference for the old over the young. New Jersey is one of those states.

Image Credit: HollywoodRepublican.net