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" d/b/a (just for today) "Eric's 36th-Birthday Post". 

*** Sigh ***

Ahh...let's get to today's question:

May an employee raise claims in federal court against an employer under both the Fair Labor Standards Act (federal) and a state wage and hour law? Or is the latter preempted by the former, such that an employee may only pursue FLSA claims?

The answer to today's question -- at least in the Third Circuit Court of Appeals -- comes to us from a decision rendered Tuesday in Knepper v. Rite Aid Corp. There, the court recognized that the FLSA "evinces a clear intent to preserve rather than supplant state law." Consequently, it held that state wage and hour laws such as the Maryland Wage and Hour Law and the Ohio Minimum Fair Wage Standards Act -- two laws that track the federal overtime requirements -- are not preempted by the FLSA.

The answer to today's QATQQ is FICTION.

Let's say you operate a business in NJ. Your disabled employee comes to you requesting an accommodation for his disability. Does the mere failure to provide that accommodation trigger a claim under the New Jersey Law Against Discrimination (NJLAD)? What about under the Americans with Disabilities Act (ADA)?

I have two recent cases and two different answers -- depending on whether you are in state or federal court, plus some general accomodation tips for employers after the jump...

Continue reading "Distinguishing state & federal disability-accommodation claims" »

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.

In December 2006, 247 union workers went on strike at the Kohler manufacturing plant in Searcy, Arkansas. Three months later, Kohler hired 123 replacement workers.

Kohler and the Union settled their dispute in March 2008. As part of the settlement, Kohler agreed to reinstate the striking strikers. Kohler then fired the replacement workers and returned 103 of the original 247 striking workers to their former positions. 111 of the replacement workers then filed suit under the Worker Adjustment and Retraining Notification Act ("WARN") alleging that they should have been given at least 60-days notice before being laid off.

Did Kohler violate WARN? Find out after the jump...

Continue reading "Legal? Replacing over 100 workers without any sort of notice" »

If you guessed 15 minutes, you would be right, according to a recent decision from the Third Circuit Court of Appeals.

And you don't need to point a gun at the employee's head? A rusty fork in the doo-dads "knowing and intelligent" waiver based on a "totality of the circumstances" will suffice.

What are those circumstances? Find out after the jump.

Continue reading "How long does an employee get to review a severance agreement?" »

Confession: I find bankruptcy VERY boring. And I loathe it. I'm a labor and employment attorney. When partners approach my door with bankruptcy assignments, I pick up the phone and pretend to yell at opposing counsel. So far I'm batting 1000.

But when I learned that the Third Circuit in Rea v. Federated Investors ruled that a private employer may refuse employment to a job applicant who has ever filed for bankruptcy, I mustered up the will power for this blog post.*Checks ESPN.com* Consider it my 2011 bankruptcy contribution.

I'll break down the court's ruling after the jump.

Continue reading "Employers can refuse to hire bankruptcy filers" »

My blog designers told me that if I want to build SEO -- that's Search Engine Optimization to you rookies -- I'd better write about employment law issues affecting Pennsylvania, New Jersey and Delaware (duh!) and "optimize" my blog post titles with the keywords near the front.

Learn more about which employees are covered after the jump.

Continue reading "Third Circuit Employment Law 101: Who Does The FMLA Cover?" »

In some cases, a plaintiff will argue as part of his Title VII discrimination action that his former employer didn't fire him. But rather he was constructively discharged. That's fancy speak for being forced to resign.

Continue reading "Third Circuit Employment Law 101: Constructive Discharge" »

Robert Rank-And-File, an employee of Pennsylvania-New Jersey-Delaware, Inc., claims that Sally Supervisor told him, "Sleep with me, or you're fired!" Robert declines Sally's advances only to have Sally fire him. If Robert decides to pursue an action under Title VII against Pennsylvania-New Jersey-Delaware, Inc., how can he prevail at trial?

Continue reading "Third Circuit Employment Law 101: Quid Pro Quo Harassment" »

Look what just arrived in today's mail. It's a charge of discrimination from the United States Equal Employment Opportunity Commission. Looks like Robert Rank-And-File -- the guy Pennsylvania-New Jersey-Delaware, Inc. fired from data entry -- alleges that the company terminated him because he's disabled.

I'll show you after the jump.

Continue reading "Third Circuit Employment Law 101: ADA Mixed-Motive Disparate Impact Claims" »

Can an employer terminate a disabled employee because accommodating the employee would create a significant risk of substantial harm to the employee or others in the workplace?

Continue reading "Third Circuit Employment Law 101: ADA Defenses - Direct Threat" »

Ever been to a Gentlemen's Club?

(Pause...)

(Wait for it...)

Me neither. But I hear that dancers tend to have a few physical characteristics in common. Or how about a Chinese restaurant? Ever notice that the employees are all...Chinese? Is that why my job applications always end up in the circular file?

Ladies and gentlemen. After the jump, may I present to you: the BFOQ.

Continue reading "Third Circuit Employment Law 101: What is a Bona Fide Occupational Qualification?" »

The are two classes of plaintiffs who may assert claims under the Americans with Disabilities Act:

1. Those who have a "disability"; and
2. Those who not have a disability but who, nonetheless, are "regarded as" disabled by their employer.
   

Continue reading "Third Circuit Employment Law 101: "Regarded as" Disabled under the ADA" »

Our old buddy Robert Rank-And-File from Pennsylvania-New Jersey-Delaware, Inc. is having problems at work again. This time, however, the culprit is not Sally Supervisor. It's Lisa Leadperson.

What is your company's potential exposure here? Find out after the jump.

Continue reading "Third Circuit Employment Law 101: Title VII Liability for Non-Supervisors" »

Did you know that in Pennsylvania, New Jersey and Delaware, under Title VII, an employer that fails to renew an employment contract or "at will" employment arrangement violates Title VII if the reasons for the employment action violate Title VII (e.g., are on the basis of a protected class)? It's true.

Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315, 320 (3d Cir. 2008).