November, 2012

Employment Law Blog Carnival: Hollywood Casting Call Edition

November 14, 2012 | by Eric B. Meyer

Welcome everyone to the Employment Law Blog Carnival: Hollywood Casting Call Edition.

[Editor’s Note: The original theme for this post was the “Employment Law Blog Carnival: Sex, Drugs, and Rock & Roll Edition.” I had this bright idea to begin by cutting and pasting the lyrics to Guns N’ Roses’ “My Michelle,” and, let’s just say I bailed after the first line.]

So that leaves us with Plan B, where, after the jump, I have aggregated some of the best, recent posts from around the employment-law blogosphere and fit them together into a single theme: an open casting call.

Because just the other day, this theme came to me after waking from a Codeine/Claritin-D/Mucinex DM-induced slumber, in which I dreamt about casting a recent post of mine — the one where an employee lost out on an FMLA retaliation claim when her employer fired her after finding Facebook photos of her drinking at a local festival — while on FMLA. My movie will star Kim Kardashian, in her silver screen debut, as the employee. And Alan Thicke, who played Dr. Jason Seaver on “Growing Pains,” could play the company decision-maker. We’ll call it “FML Aye Yai Yai!“

[Editor’s Note: I’m throwing Thicke a bone here. Don’t you think? According to IMDB.com, he just finished production on “Fugget About It“, in which ex New York mobster Jimmy Falcone joins the Witness Protection Program and is relocated, with his family, to Regina, Saskatchewan, Canada. Fugget about it, indeed.]

So that’s the idea. More great posts and imaginative casting decisions, after the jump…

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That’s what he said: Attorney Tips for Seeking Social Media Discovery

November 13, 2012 | by Eric B. Meyer

I’m gearing up to host the Employment Law Blog Carnival on Wednesday, so I’m mailing it in today with a quick shout out to Venkat Balasubramani posting over at Eric Goldman’s Technology and Marketing Law Blog.

Admittedly, I have fallen behind on updating you, my loyal readers, on the world of social media and discovery. Mostly, because the most recent jurisprudence has been from outside of the Pennsylvania and everything pales in comparison to this great Commonwealth. Except, most recently, for the Philadelphia Eagles.

Speaking of which, have you heard this one?

Obama’s re-election evokes ugly Facebook-racism from some employees

November 12, 2012 | by Eric B. Meyer

To all the haters of social-media policies:

If nothing less, the social-media policy reminds employees that if they act the fool online, it may impact their standing in the workplace, and, ultimately, cost them their jobs.

Some employees, however, are just so ignorant. Thus, I doubt that any employer policy will impact how they behave online.

Two despicable examples from this past week follow after the jump…

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Guest Post: 5 Basics Every Employer Should Know about the ADA

November 9, 2012 | by Eric B. Meyer

Today we have a guest blogger at The Employer Handbook. It’s Mary Ellen Ellis. May Ellen writes for Paralegal 411, a career resource for individuals interested in starting a career in the paralegal field.

(Want to guest blog at The Employer Handbook? Email me).

Facebook pics of employee boozing at a festival ruin her FMLA claim

November 8, 2012 | by Eric B. Meyer

About a year-and-a-half into Sara Jaszczyszyn’s employment with Advantage Health Physician Network (“Advantage”), she began taking intermittent FMLA leave for back pain that which she stated left her “completely incapacitated.”

About five weeks into her leave, several of her coworkers saw pictures of her on Facebook consuming adult beverages at a local Polish beer festival. (Although she doesn’t appear to be “completely incapacitated,” she does appear to be having a good ol time, doesn’t she?)

Yadda, yadda, yadda, Advantage fires Ms. Jaszczyszyn and she claims FMLA retaliation.

Paying banana boxes of food as OT is not an a-peeling option

November 7, 2012 | by Eric B. Meyer

[brrrring brrrring]

“Eric Meyer.”

“Uh, yeah, Eric. I just learned that we’ve got facilities managers who have been working overtime ‘off the clock’ and….”

2 tips to help your social media policy withstand NLRB scrutiny

November 6, 2012 | by Eric B. Meyer

Notwithstanding three social media advice memoranda, and another ruling from the National Labor Relations Board slamming Costco’s social media policy, you’d think employers would have a better idea how to revise their social media policies so as not to risk violating the National Labor Relations Act.

Well, not so much.

Except, the Board has recently issued guidance which attempts to clarify certain policy issues for employers. Does it? Well, sort of. It’s worth a read. Click through…

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SURVEY: When it comes to politics at work, mum’s the word

November 5, 2012 | by Eric B. Meyer

https://www.youtube.com/watch?v=bXEglx-or6k

Monty Brewster may be telling your co-workers to vote “None of the Above”, but, chances are, you have no clue who they are voting for tomorrow in the Presidential election.

According to this CareerBuilder.com survey released today, although four out of five employees intend to vote on Tuesday, only one-third share their political affiliation at work. That number drops to one in five Gen-Y employees.

It’s not disability discrimination when you don’t know about the disability.

November 2, 2012 | by Eric B. Meyer

William Wengert is HIV-positive. He worked as a certified nursing assistant for Phoebe Ministries, until he was terminated last year following an incident in which a resident suffered a broken leg. The company claimed that the incident with the resident precipitated the firing. Conversely, Wengert alleged that the company violated the Americans with Disabilities Act by terminating him because of his HIV-positive status.

Now, let’s pause there for a second. I think we can all agree that just because a disabled employee — unquestionably, being HIV-positive is an ADA-disability — is fired, does not mean that the employer has violated the ADA. There could be many legitimate business reasons that could trigger an adverse employment actions (e.g., $$$, performance, discipline, etc.).

Legitimate business reasons aside, the Wengert Court (opinion here) highlighted that “disabilities are often unknown to the employer.” Therefore, “the requirement that plaintiff show he is disabled implies a requirement that the plaintiff show employer knew of employee’s disability.” In Wengert, the plaintiff could not demonstrate that anyone involved in his firing knew that he was HIV-positive. Therefore, Wengert’s disability could not have motivated his termination. Thus, no disability discrimination.

NLRB breathes new life into your “at-will” employment disclaimers

November 1, 2012 | by Eric B. Meyer

Just Google it.

The National Labor Relations Board has been drawing a lot of attention for its heightened scrutiny of at-will employment disclaimers. For example, in a case involving the American Red Cross, a Board ALJ found that the American Red Cross broke the law by having an employee handbook policy that stated, in part, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”

But new guidance from the NLRB’s Acting General Counsel confirms what I’ve been saying: Don’t even think about scrapping those employee handbook at-will employment disclaimers. (Maybe a small tweak may do the trick).

More after the jump…

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