The Employer Handbook Blog

A little ambiguity creates a BIG retaliation headache for employers

October 7, 2011 | by Eric B. Meyer

Retaliation claims have become the leading cause of action for employees. In fiscal year 2010, retaliation charges filed with the EEOC nationwide accounted for 36.3% of all filings, at 36,258. There are three essential elements of a retaliation claim:

Employee Protected Activity – opposition to discrimination or participation in the statutory complaint process;

Employer Adverse Action – any adverse treatment (beyond a petty slight or a trivial annoyance) that is based on a retaliatory motive and is reasonably likely to deter protected activity; and

Causal Connection – between the protected activity and the adverse action.

What makes retaliation claims so common? Well, it’s not so much because they are are easy for employees to prove. In my opinion, it’s because retaliation claims are tough for employers to disprove prior to trial.

Case in point after the jump…

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Get answers to your social media and hiring questions

October 6, 2011 | by Eric B. Meyer

Maybe it’s that good feeling I still have after eating some hella-good spicy fried chicken at Bolton’s Spicy Chicken & Fish in Nashville, TN last night.

Oh no, wait, that’s heartburn.

In any event, I’m feeling generous. I feel like giving back some of the love. Later today, I will be speaking at the Advanced Employment Issues Symposium in Nashville, TN, where I will be presenting Using Social Media To Make Hiring and Firing Decisions: What’s Legal? What’s Not?. If you have social-media hiring-related questions that you would for like for me to answer, fire away! You just need to do two things for me.

NLRB puts the temporary kibosh on its mandatory union-rights poster

October 6, 2011 | by Eric B. Meyer

The National Labor Relations Board announced yesterday afternoon that it has pushed back its deadline for covered employers to post this notice, advising employees how to form a union, among other things.

More details, including the new deadline, after the jump…

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Employee drug testing and bashful bladders; it’s a wicked pissah!

October 5, 2011 | by Eric B. Meyer

Your business drug tests job applicants as a condition of employment. What would happen if a male applicant refused to take a urine test because he claimed that he had paruresis, otherwise known as “shy bladder syndrome” or “bashful bladder syndrome”? Would you have to accommodate the applicant with a different type of drug test? Or could you just refuse to hire the applicant?

The EEOC recently addressed this topic and I have the answer — along with some self-deprecation — after the jump…

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Ever wondered what professional athletes are allowed to tweet?

October 4, 2011 | by Eric B. Meyer

The other day, I came across this great article on ESPN.com, which outlines all of the social-media policies currently in effect for several sports leagues worldwide. What struck me most is that several organizations, including the NCAA, have no social-media policies for their athletes. And at the other end of the spectrum, the Ultimate Fighting Championship actually rewards its athletes based on number of Twitter followers.

This further supports a point that I like to hammer (e.g., here and here): ultimately, for any business, a social-media policy is never a “one-size-fits-all.” Instead, the social-media policy — and all companies should have one — must be tailor-fit to the objectives and goals of the company.

For additional insight into drafting social media policies, I suggest Think Before You Click: Strategies for Managing Social Media in the Workplace.

Pyrrhic Victory: Judge ok’s firing for Facebook post, but…

October 3, 2011 | by Eric B. Meyer

Last week, a National Labor Relations Board Administrative Law Judge (ALJ) ruled, for the first time, that an employer could legally fire an employee based on Facebook activity. In Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, the ALJ okayed a BMW dealership firing an employee who posted pictures (accompanied by some snarky comments) about a neighboring Land Rover dealership.

So what’s up with the title of this blog post? And why should employers be concerned with this decision? Find out after the jump…

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Good grief! Hallmark launches line of unemployment cards

September 30, 2011 | by Eric B. Meyer

Mach·i·a·vel·li·an [mak-ee-uh–vel-ee-uhn] adjective

of, like, or befitting Machiavelli.

characterized by subtle or unscrupulous cunning. He resorted to Machiavellian tactics in order to get ahead.

Got chutzpah? Try scheduling a deposition on Rosh Hashanah.

September 29, 2011 | by Eric B. Meyer

Today is Rosh Hashanah (ראש השנה), the Jewish New Year. I’m Jewish. So, I’m not taking a deposition today. And if you are involved in a case with Jewish parties or attorneys, you shouldn’t be either.

However, according to this article, these plaintiff’s attorneys didn’t get the memo. So, defense counsel filed this motion. And the Court entered this Order, rescheduling the deposition and sanctioning the plaintiff’s attorneys “in an amount to be determined.”

Oy vey and L’shanah tovah.

Hot Dog! EEOC accuses eatery of same-sex sexual harassment

September 28, 2011 | by Eric B. Meyer

Frankly, Anthony Weiner ain’t got nothin’ on this Weiner.

The EEOC announced on Monday that it had sued Nu-Way Weiners, one of the oldest hot dog restaurants in the country, on behalf of two female employees. More after the jump…

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Say what?!? Not returning employee calls may be FMLA retaliation

September 27, 2011 | by Eric B. Meyer

An eligible employee may take up to 12 workweeks of leave under the Family and Medical Leave Act in a 12-month period. If an employee exhausts all of her FMLA leave and fails to return to work after the 12 weeks are up, can’t the company simply fire the employee? Well, it may not be that easy, as you’ll find out after the jump…

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