The Employer Handbook Blog

Supreme Court limits an employer’s ability to recoup attorney’s fees

June 8, 2011 | by Eric B. Meyer

Thumbnail image for Supreme Court.jpg In an employment discrimination action asserted under federal law, an employee-plaintiff may recover a reasonable attorney’s fee if the plaintiff prevails. So too may an employer-defendant recover fees if it prevails and the court determines that the plaintiff’s suit is frivolous.

But what happens if an employee-plaintiff asserts multiple claims against an employer-defendant and only some of them are deemed frivolous? What, if anything, may the defendant recover in attorney’s fees?

The answer after the jump…

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Social-media shenanigans and Anthony Weiner drinking games

June 7, 2011 | by Eric B. Meyer

“I just want to advise people watching at home, playing that now-popular drinking game of you take a shot whenever the Republicans saying something that’s not true: Please assign a designated driver. This is going to be a long afternoon.”

— Anthony Weiner (from the House Floor on 1/19/11)

You can’t make this stuff up, yo.

For some employment-law implications and practical tips concerning Anthony Weiner’s gaffes — both online and offline — check out this post from employment attorney and blogger Philip Miles at Lawffice Space.

Will a new NFL CBA include social media restrictions for players?

June 6, 2011 | by Eric B. Meyer

I’m guessing that social media is not at the top of either side’s list of demands.

However, player tweets like this and, in particular, this one from Pittsburgh Steelers running back Rashard Mendenhall following the death of Osama bin Laden have some speculating that a new collective bargaining agreement could include restrictions on player use of social media.

What could those restrictions be? And will the players agree to them?

More after the jump.

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“Cat’s Paw” doctrine applies to claims of age bias

June 3, 2011 | by Eric B. Meyer

Wednesday night was crazazy, yo!

I had this dream that was I slaloming down a snowy mountain towards a giant fortress under a hail of gunfire. But the next thing I know, I wake up and I’m falling down this elevator shaft. And, just as I’m about to bite it, I find myself in a car submerged underwater, having just taken a 100-foot fall from the bridge above.

And then I’m in my bed.

It’s 3 am and I am dripping sweat. I tap the Joe Beimel bobblehead on my nightstand — I know I shouldn’t have told you about my totem but, damnit, I love my readers.

Just as I’m starting to get my bearings, what hit me next was ten times as powerful as any three-tiered Inception dream and it kept me up for the rest of the night:

Could the United States Supreme Court’s decision in
Staub v. Proctor Hospital, in which the Court affirmed the
theory of subordinate bias — or “cat’s paw” — in an
action under USERRA, equally apply to claims brought
under the Age Discrimination in Employment Act (ADEA)?

But, oh hells-to-the-yeah, the Tenth Circuit, sensing my angst, issued an opinion on Thursday answering all of my questions. So, while I grab my meds, you hit the jump and find out if the cat’s paw doctrine applies to ADEA claims.

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POLL: Would you ever announce your retirement online?

June 2, 2011 | by Eric B. Meyer

Yesterday afternoon, Shaquille O’Neal (@Shaq) put an end to an illustrious 18-year NBA career in a single tweet:

As I type this post — during the second intermission of the Stanley Cup Finals — the hashtag #ShaqRetires is still trending on Twitter.

So, the question is, would you ever use social media to announce your retirement?

Is a non-compete agreement signed months after work begins enforceable?

June 1, 2011 | by Eric B. Meyer

I was reading a blog post from Jennifer L. Gokenbach at the Colorado Employer’s Law Blog, discussing how, as of yesterday, Colorado deems continuation of at-will employment to be sufficient consideration to support a non-competition agreement. In non-lawyer speak, that means that if an employee signs an agreement not-to-compete in Colorado after the employee starts working, on the condition that if the employee does not sign the agreement then the employee will be fired, the employer may later enforce that agreement.

That’s now the law in Colorado. Is that also the law in PA, NJ, and DE?

Delaware: Yes. Research & Trading Corp. v. Powell, 468 A.2d 1301, 1305 (Del.Ch.1983).

New Jersey: Yes. Hogan v. Bergen Brunswiq Corporation, 153 N.J.Super. 37, 378 A.2d 1164 (App.Div. 1977).

Pennsylvania: No. An agreement not to compete with a former employer must be supported by new consideration; i.e., a change in the conditions of employment (e.g., a raise, promotion, or other financial benefit). Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279, 280 (Pa. 1974).

Coming soon to a non-union business near you: The RAT!

May 31, 2011 | by Eric B. Meyer

Many of you have seen the rat on the right. Well, maybe not that particular rat, but a large inflatable rat, nonetheless. Usually, a union will position the large rodent in front of a business or job site as part of a protest effort.

But, just because a union uses it as a protest symbol doesn’t make it legal. Does it?

Is the rat even legal?

Find out after the jump.

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Addressing teacher use of social media — on and off the clock

May 27, 2011 | by Eric B. Meyer

Teachers, do you know what to do if a student or parent sends you a Facebook “friend” request?

If you answered, “accept it,” then you should keep reading after the jump.

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Court dismisses the age bias claims of a pistol-packin’ old cripple

May 26, 2011 | by Eric B. Meyer

A 51-year-old auto-parts specialist with lupus, fibromyalgia, diabetes and arthritis, claimed that his 29-year-old co-worker called him an “old cripple” and an “old man,” labeled him “too old to be trained,” and threatened to beat him with a baseball bat.

The 51-year-old responded by telling his manager that he would kick the 29-year-old’s ass and then came to work with a handgun in his car.

Wha Wha Whaaaaaat?!?!

Did the older employee overreact? Maybe. But was he the victim of a hostile work environment?

Find out after the jump.

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A new HELLA GOOD social-media-discovery ruling for employers

May 25, 2011 | by Eric B. Meyer

Last week, I reported that a Pennsylvania state court had ruled that a plaintiff did not have to provide access to her Facebook page during discovery by accepting a “friend” request from defense counsel. That same week, another Pennsylvania state court was asked to resolve whether a plaintiff’s “privacy rights” would trump a defendant’s request to access the plaintiff’s Facebook and MySpace accounts to discover facts relating to the plaintiff’s claim for damages.

Pennsylvania has become a hotbed of social-media-discovery litigation. Who knew?

I break down the latest decision, which I predict will be a “go-to” for defendants and courts alike, after the jump.

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