The Employer Handbook Blog

Nearly half of employers investigate job applicants online

October 21, 2013 | by Eric B. Meyer

This according to a CareerBuilder.com survey (here) released last week.

Of the 2,775 hiring managers polled, almost half (48%) responded that employers will use Google or other search engines to research candidates. Nearly the same number (44%) will research the candidate on Facebook. Just over one quarter (27%) will monitor the candidate’s activity on Twitter. 23% will review the candidate’s posts or comments on Yelp.com, Glassdoor.com or other rating sites.

The survey cites these statistics as a way to encourage job seekers to keep their online personas clean from digital dirt. So, I’ll take a different approach and offer some tips for employers:

Does the FLSA require paying employees who wait in security lines at work?

October 18, 2013 | by Eric B. Meyer

True story.

Back in 1999, when I was in law school in Washington DC, I went with my buddy to see The Matrix at the Uptown Theater in Cleveland Park. At the time, the Uptown was one of the best places around to watch an action flick. And what better movie to see than The Matrix — one of my top 10 movies of all time.

WTH does this have to do with the Fair Labor Standards Act?

Uh, duh…

[Humor me and click through, would ya?]

An employer is not required to change supervisors as an ADA accommodation

October 17, 2013 | by Eric B. Meyer

Work got you anxious and depressed? Well then, you may be disabled under the Americans with Disabilities Act. But if you think that the ADA requires your employer to transfer you away from the supervisor who is giving you a hard time, think again.

In Lu v. Longs Drug Stores (opinion here), Ms. Lu claimed that her supervisor discriminated against her based on her national origin and then retaliated against her after she complained. She further alleged that the abuse caused her to develop anxiety, depression, shingles, and diabetes.

On Ms. Lu’s behalf, her treating physician requested that the employer transfer her away from her supervisor. The employer declined and, ultimately, terminated Ms. Lu after she missed over a year of work to treat for her various disabilities.

That’s what they said: Social media and the workplace and the lawsuits

October 16, 2013 | by Eric B. Meyer

One social media-related post in October. One may be good enough for the Red Sox — eat it, Detroit — not here.

So, with a little help from my friends, I’ve got three stories on the the impact that the technology in the workplace has on litigation proceedings.

Over at the Technology & Marketing Law Blog, Venkat Balasubramani writes here about a recent decision in which a court found that a passenger’s social media rant against and airline employee may not have been defamation, but it was enough to create a claim of “false light.”

EEOC sues over failure to accommodate the Mark of the Beast

October 15, 2013 | by Eric B. Meyer

Play us in Keith Richards…

Last month, the EEOC announced here that it had sued two companies, claiming that they violated federal law by failing to accommodate an employee’s religious beliefs:

According to the EEOC’s lawsuit, Beverly R. Butcher, Jr. had worked as a general inside laborer at the companies’ mine in Mannington, W.V., for over 35 years when the mining companies required employees to use a newly installed biometric hand scanner to track employee time and attendance. Butcher repeatedly told mining officials that submitting to a biometric hand scanner violated his sincerely held religious beliefs as an Evangelical Christian. He also wrote the mining superintendent and human resources manager a letter explaining the relationship between hand-scanning technology and the Mark of the Beast and antichrist discussed in the Book of Revelation of the New Testament and requesting an exemption from the hand scanning based on his religious beliefs.

NY Court: Indefinite leave may be a reasonable accommodation for disabilities

October 14, 2013 | by Eric B. Meyer

New York City.

As Jay-Z and Alicia Keys sang, it’s the “concrete jungle where dreams are made of. There’s nothin’ you can’t do.”

That includes taking indefinite leave as a “reasonable” accommodation under the New York City Human Rights Law.

FACT OR FICTION: FMLA and workers’ compensation may run concurrently

October 11, 2013 | by Eric B. Meyer

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.”

Earlier this week, I spoke at the SHRM Lehigh Valley Annual Conference on leave issues under the Americans with Disabilities Act and the Family and Medical Leave Act. During the course of our discussion, not only did we address the interplay between these federal laws, but we also touched upon the impact of workers’ compensation laws.

One question that came up is whether an employer can require that an employee take FMLA leave concurrently with workers’ compensation leave.

Must an ADA requested accommodation correlate to an essential job function?

October 10, 2013 | by Eric B. Meyer

To receive the protections of the Americans with Disabilities Act, an individual with a disability must be qualified to perform the essential functions of the job with or without reasonable accommodation. Absent undue hardship, an employer must provide a reasonable accommodation.

So, you’d think that the ADA would require a link between a requested accommodation and an essential job function. Well, not so much according to this recent decision from the Fifth Circuit Court of Appeals, a case in which the Attorney General’s office refused to accommodate one of its attorneys who requested a parking spot close to the office.

Noting that the text of the ADA specifically contemplates “making existing facilities used by employees readily accessible to and usable by individuals with disabilities,” without any indication that an accommodation must facilitate the essential functions of one’s position, the Fifth Circuit held that the ADA does not require a nexus between the requested accommodation and the essential functions of the position.

Employee — a grown man for God’s sake — claims he was fired for being a brony

October 9, 2013 | by Eric B. Meyer

Readers: A brony is a male fan of the children’s television show My Little Pony.

(This is the part where you let everything that you’ve read thus far sink in, as you watch this clip, close your office door, and laugh hysterically. Go ahead. It’s ok).

According to Gawker, the brony posted to Reddit that his co-workers gave him a raft of crap for setting his office computer screensaver to Applejack, a My Little Pony character.

Court destroys my “Ravishing Rick Rude” theory of same-sex harassment

October 7, 2013 | by Eric B. Meyer

Cut the music.

A little over a year ago, I wrote here about a steel worker named Kerry Woods. Unfortunately for Mr. Woods, he was on the receiving end of a constant barrage of “raw homophobic epithets and lewd gestures” from his supervisor. Notwithstanding, the Fifth Circuit Court of Appeals tossed out a $500K jury award for Mr. Woods, holding that Mr. Woods’s same-sex sexual harassment claims failed because he failed to satisfy the Supreme Court’s test in Oncale v. Sundowner Offshore Services, Inc..

Oncale was another same-sex harassment case involving employees at an oil rig. In Oncale, the high court held that a jury may infer that same-sex harassment occurred because of sex when the plaintiff can produce: