The Employer Handbook Blog

I was attacked by a bear! — and 8 other lame excuses for being late to work

April 5, 2013 | by Eric B. Meyer

After yesterday’s super-serious Animal House post — Toga! Toga! Toga! — let’s lighten things up a bit with a list of the most memorable tardiness excuses employers shared in a recent CareerBuilder Annual Survey.

Employee dropped her purse into a coin-operated newspaper box and couldn’t retrieve it without change (which was in the purse)

Employee accidentally left the apartment with his roommate’s girlfriend’s shoes on and had to go back to change

Are Flounder from Animal House and Left Ear from The Italian Job “disabled”?

April 4, 2013 | by Eric B. Meyer

– “Mr. Dorfman?”
– “Hello!”
– “0.2… Fat, drunk and stupid is no way to go through life, son.”

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– “That’s Left Ear. Demolition and explosives. When he was ten, he put one too many M-80s in the toilet bowl. Lost the hearing in his right ear. He’s been blowing stuff up ever since.”

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Good start to a blog post, amirite? Now, allow me to dork this up with two employment-law questions:

If Flounder were Dean Wormer’s employee (rather than just a student at Faber College), would Wormer’s calling him “stupid” mean that Faber regarded Flounder as “disabled” under the Americans with Disabilities Act?

Since Left Ear is deaf in one ear, would he qualify as “disabled” under the ADA should he return from his Spanish villa and seek gainful employment in the USA?

Tough questions. But here, at the ole Handbook, when the going gets tough…[wait for it]…The tough get goin’! Who’s with me?

Let’s do it!!!! (after the jump…)

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FireMe! app outs Twitter users who talk smack about their jobs

April 3, 2013 | by Eric B. Meyer

While some people; namely, hockey players with local ties, use Twitter to congratulate an ex-wife on end of divorce payments, others spew venom about their bosses.

I know. I should have warned you to sit down first. Let me know when the shock subsides.

K-thx.

Tips from Facebook on getting discovery of a plaintiff’s Facebook page

April 2, 2013 | by Eric B. Meyer

I’m a little late to the game on this case (Gatto v. United Airlines). It’s about a personal injury case in which the defendant sought discovery of a the plaintiff’s Facebook page. Yadda, yadda, yadda, plaintiff deletes his Facebook page and the court sanctions the plaintiff.

But here’s the part I like:

While Facebook did respond to the subpoena served upon it, Facebook objected to providing certain information related to Plaintiff’s account due to concerns regarding the Federal Stored Communications Act. Facebook instead recommended that the account holder download the entire contents of the account as an alternative method for obtaining the information. Defendants allege that this issue was discussed with the Court during a telephone status conference on January 6, 2012, where Plaintiff’s counsel advised that he would be willing to download the account information and provide a copy to the parties. Defendants allegedly agreed to Plaintiff’s proposal, with the condition that Plaintiff would also provide a certification that the data was not modified or edited since the December 1, 2011 settlement conference.

Leave as an ADA reasonable accommodation; when is enough…enough?

April 1, 2013 | by Eric B. Meyer

Unquestionably, when it come to tackling the Americans with Disabilities Act, one of the biggest issues affecting the workplace and accommodating disabled employees is providing leave as a reasonable accommodation. Anecdotally, a question that plagues most employers is just how much leave is enough?

We know that an indefinite leave of absence is not a reasonable accommodation. But, what about when an employee takes one leave, after another, after another.

After the jump, I’ll address the big question: when is enough enough?

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Utah becomes the fifth state with a workplace social-media privacy law

March 29, 2013 | by Eric B. Meyer

Welcome citizens of the Utah.

I’d say welcome back, but, according my blog stats, so few of you have seen my blog a first time. How could that be? Some of my best posts involve the Beehive State:

“144 ‘N’-words, but black employees can’t prove they were offended“

POLL RESULTS: Here’s what you said about the #Donglegate firing

March 28, 2013 | by Eric B. Meyer

For much of the week, I’ve blogged about Adria Richards, the employee who got fired for tweeting complaints about discrimination. On Monday, I offered my legal analysis (here).

On Tuesday, I followed that up with this simple poll that purported to remove the law from the equation: Was the decision of Ms. Richards’s employer, SendGrid, to fire her “fair” or “unfair”? “Fair” and “unfair” were the only two answers and they were randomized such that either one could have appeared as the top choice when taking the poll.

Now the results are in. 129 of you responded and 70 of you (54%) said that the firing was fair. 59 respondents indicated that the firing was unfair (46%).

Feeling “maybe overworked” is not an FMLA “serious health condition”

March 27, 2013 | by Eric B. Meyer

I went back and forth on whether to include “BREAKING” in the title to this post. Twas a close call. Close, like that time Bar Rafaeli almost dialed my number by accident (and by almost, I mean she was 7 numbers off — out of 10).

No, feeling “maybe overworked” will not get you leave under the Family and Medical Leave Act. A Florida federal court recently confirmed this in Pivac v. Component Services and Logistics, Inc.:

The substance of the Plaintiff’s “evidence” is that she felt maybe overworked and wanted time off, first to visit her parents, but then just because she was crying and sad. She went to a doctor who provided her with no treatment, no referrals, no medicine, and no further appointments. The Plaintiff stated that she “told him [the doctor] she needed about seven days to get herself together and he gave her a `Medically Excused Absence’ form for the dates October 4, 2011 to October 17, 2011.” There is absolutely no evidence presented by the Plaintiff that she met the definition of “serious medical condition” at the time she took the extended unpaid leave. There are no medical records submitted, no indication of continuing treatment at the time of the Plaintiff’s being out of work from the 4th to the 17th of October of 2011, no evidence, other than the Plaintiff’s conclusory statements, that she suffered depression and anxiety as chronic health conditions. In fact, the only thing the Plaintiff has established is that she told the doctor she did not feel like working and he gave her a note to excuse her from working. There is just nothing here on which to find that the Plaintiff suffered a serious medical condition and without that the cause of action may not proceed.

POLL: Was the #Donglegate firing fair?

March 26, 2013 | by Eric B. Meyer

Whew!

Got a little carried away with yesterday’s post about the employee who got fired for tweeting complaints about discrimination, didn’t I?

Then again, I’m not the one who came up with the hashtag #donglegate.

Employee gets fired for tweeting complaints about discrimination

March 25, 2013 | by Eric B. Meyer

Is this Retaliation 2.0?

Two weeks ago, Adria Richards attended an industry conference at which she overheard sexual jokes from two attendees sitting behind her during a session. So, she complained…on Twitter:

Not cool.Jokes about forking repo’s in a sexual way and “big” dongles.Right behind me #pycon twitter.com/adriarichards/…

— Adria Richards (@adriarichards) March 17, 2013

And then she blogged about it here. The social-media complaints resulted in one of the joke tellers getting fired. And, last Wednesday, Ms. Richards tweeted that her employer supported her.

Hey @mundanematt, it’s clear from the last 24 hours you’re a bully.@sendgrid supports me.Stop trolling.

— Adria Richards (@adriarichards) March 20, 2013

That same day, SendGrid, Ms. Richards’s employer, fired her.

(Jon Brodkin at arstechnica.com has the full story here).

We can argue about the propriety of using social media to publicize a harassment complaint, especially when a private complaint could have sufficed. Still, the SendGrid response certainly seems harsh and unfair.

But did SendGrid go so far as to retaliate (as a matter of law) against Ms. Richards?

Find out, after the jump…

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