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Vintage A-Team Novelty Radio Featuring B.A. Baracus, "Mr. T", Made in Hong Kong, Copyright 1983

One year for Halloween when I was in law school, no, actually, I was in law school, I dressed up as Mr. T.

I had the gold, the overalls, the mohawk. People stopped me on the street to take their picture with me. Although, the highlight of the night was when I ran into someone dressed up as — wait for it — Hannibal Smith!

Where am I going with this? Ah, yes. While I tried my best to pull off Mr. T, there was never any risk of confusion. I was 160 pounds soaking wet, my “gold” was actually tin foil, and I’m white.

However, fast-forward 10 years. I’m a partner at a law firm. And I have a personal blog where I write about the law. *** Only in America *** So, as I advise my employer-clients to do with employees who blog and use other forms of social media to discuss work-related products and services, I include a disclaimer to alert readers that my opinions are mine and not my employer’s. In fact, this is a must in any good social media policy.

But should a social media policy also include language to the effect that the employer will not use an employee’s personal social media accounts to promote the employer’s business without permission? After the jump, a recent decision which makes a good argument for it…

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In a new survey conducted by Robert Half Technology, 1400 chief information officers (CIOs) from companies across the United States with 100 or more employees were asked: “Which of the following most closely describes your company’s policy on visiting social networking sites, such as Facebook and Twitter, while at work?”

  • Prohibited completely
  • Permitted for business purposes only
  • Permitted for limited personal use
  • Permitted for any type of personal use
  • Don’t know/no answer

I’ll cue up the music and list the results after the jump…

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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”. But before I dispense with the brevity, allow me to pat myself on the back as, yesterday, both the ABA Law Journal and the Wall Street Journal recognized one of my recent blog posts.

***A-thank you. Thank you very much. You’re all too kind.***

On the heels of this case from the Second Circuit that I read about yesterday, I figured that today we should discuss releases. Cue the music…

The Family and Medical Leave Act (FMLA) affords eligible employees up to 12 workweeks of leave during any 12-month period for, among other things, a serious health condition that renders the employee unable to work. A company that fires an employee in the middle of approved FMLA leave has engaged in what the law deems “FMLA interference.”

However, there are some ways around the FMLA-interference claim. If the employer can show that it would have fired the same employee had the employee never taken leave, then the employer has a viable defense. Similarly, if the evidence shows that the employer did not prejudice the employee when it fired him, then the employee cannot prevail on his FMLA-interference claim.

Let that sink in for a second. Employer fires employee and employee suffers no prejudice?!? I’ll explain after the jump…

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Stop me if you’ve heard this one before:

  • Job candidate is told that any job offer is contingent upon passing a drug test.
  • On d-day, job candidate bolts from the drug-testing facility, claiming that he has trouble in confined spaces.
  • No drug test means that job candidate is disqualified from the position.
  • Job candidate sues claiming a violation of the Americans with Disabilities Act for failure to accommodate.

Folks, I couldn’t make this stuff up if I tried. Just another day in the life of an employment lawyer.

After you hit the jump, you’ll find out whether the job candidate prevailed…

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Last month, the Supreme Court handed down – if not the most important – certainly, the highest-profile decision of this term with Wal-Mart v. Dukes. However, in addition to this headline-grabber, this term saw four other significant employment-law decisions from the High Court about which employers must take note.

After the jump, I revisit each case…in haiku.

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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.

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…


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In most states, absent a contract of employment, an employee is considered at-will (i.e., he or she can be fired for any reason or no reason at all). Many employers reinforce — in very prominent locations in employee handbooks — that their employees are at-will.

What happens, however, when an employer later promises an employee that she can take 12 months of leave and then return to her job?

Can the employer later renege and rely upon the at-will employment doctrine as a basis not to reinstate? Or is the employer SOL? Find out, after the jump…


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