The Employer Handbook Blog

Court holds mistaken discrimination is unmistakably illegal

April 20, 2012 | by Eric B. Meyer

The Americans with Disabilities Act explicitly forbids discrimination against those who are actually disabled or “regarded as” disabled. As a NJ court once recognized, “Distinguishing between actual handicaps and perceived handicaps makes no sense.” Indeed, “prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be . . . non-existent.”

Does the same maxim apply to workplace discrimination — a barrage of anti-semitic comments — directed at employee whom the harassers believe is Jewish, but really isn’t?

Is that unlawful?

The answer from a NJ court after the jump…

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Even a voluntary demotion can lead to a retaliation claim

April 19, 2012 | by Eric B. Meyer

A maintenance mechanic in Illinois received 28 disciplinary-action forms from his supervisor. Ultimately, he was offered two choices: (1) accept a demotion to a non-mechanic position and take a significant pay cut; or (2) keep the position, fight the discipline, but face potential termination.

On the advice of his union representative, the mechanic took the demotion. He later sued for retaliation, claiming that the demotion, which he voluntarily accepted, was a direct response to a charge of discrimination he previously filed with the EEOC.

Is this retaliation? A federal circuit court gave us the answer yesterday. And I have it for you after the jump…

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The NLRB officially delays the mandatory union-poster rule

April 18, 2012 | by Eric B. Meyer

Remember my post from Monday? The one where I told you that two federal courts were at loggerheads over whether the NLRB could force private employers to post this notice in the workplace.

Well, about that. Eyes on me.

Two other men in black (and one woman in black) have officially changed the game. Dramatically. Click through for the details…

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ADA potpourri, anyone?

April 17, 2012 | by Eric B. Meyer

Smells like patchouli. Or is that teen spirit?

Hey, it’s been a long day.

Can an employer insist on regular attendance without violating the ADA? Maybe. says Robin Shea at the Employment and Labor Insider. And forget about indefinite leave as a reasonable accommodation under the New Jersey Law Against Discrimination says the NJ Superior Court Appellate Division. That won’t fly under the Americans with Disabilities Act either says the United States District Court of the Western District of Virginia, Danville Division. But, you knew that already. Still, if you need information on Practices and Policies Related to Recruiting and Hiring Employees With Disabilities, SHRM has a new survey. Check it out.

Do we need to post the NLRB poster? Just answer the question!

April 16, 2012 | by Eric B. Meyer

rights poster.png I’ve beaten it to death on this blog.

The National Labor Relations Board created a rule that will require most private-sector employers to post this notice, in a conspicuous location, informing employees of their rights under the National Labor Relations Act, which includes the right to form a union.

Here’s the latest…

Mini horse + reasonable accommodation lawsuit = I told you so!

April 13, 2012 | by Eric B. Meyer

Remember back in July 2011 when I told you that a miniature horse might be reasonable accommodation under the Americans with Disabilities Act?

Giddy-up! I whinny!

Ok, I’ll quit horsing around.

(I mare or may not be referring to a printed-out list of horse puns as I type this…)

More on this hare-raising story — rabbit puns too? Really, Eric? — after the jump…

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Do your confidentiality agreements pass muster with the NLRB?

April 12, 2012 | by Eric B. Meyer

Last week, Jon Hyman at the Ohio Employer Law Blog was on point with this good post discussing a recent National Labor Relations Board Administrative Law Judge decision. The case involved what the NLRB General Counsel believed was an overly-broad social media policy in two regards:

It banned employees from using social media to comment on work-related legal matters; and

It required company-permission be given before employees post images/video online.

Make sure to read Jon’s post for the full-scoop. I promise not to give away the ending (until later in this post, when I give away the ending). But, after the jump, I’m going to examine another aspect of the case; namely, a confidentiality provision that the ALJ deemed overly broad. I’ll also add a few ideas for you to keep your confidentiality provisions compliant with the National Labor Relations Act.

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Who are all these people in your (government’s) workplace?

April 11, 2012 | by Eric B. Meyer

It was either the Mr. Rogers approach or the Seinfeld approach. In the end, I chose Jerry to add some levity to what is otherwise going to be a very boring blog post.

You’ve been warned.

According this report released last month from the U.S. Equal Employment Opportunity Commission, the complexion of the federal workforce really isn’t changing all the much. In FY 2010, there were over 2.8 million people employed by the federal government, of whom 56% were men and 44% were women. Of that total:

Uneven severance packages may create discrimination claims

April 9, 2012 | by Eric B. Meyer

A severance agreement helps to allow businesses to ensure that former employees don’t sue. The concept is fairly simple: in exchange for $X, the former employee agrees to release the company from every claim under the sun from the beginning of time through the date the former employee signs the agreement (or seven days after the agreement is signed in cases where the employee releases claims under the Age Discrimination in Employment Act).

Where am I going with this? Let’s take a hypothetical. Assume that ABC Company decides to lay off two employees: Bob and Mary. Both worked the same position, have the same seniority, and reported to the same supervisor. However, ABC offers Bob six weeks of severance and Mary only three weeks of severance. Does Mary have a potential gender discrimination claim against ABC?

The answer follows after the jump…

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