The Employer Handbook Blog

That's what they said: "Naked ambition" and a "voyeur boss"? (And more...)

Fri, 18 May 2012 07:00:00 -0500

As evidenced by the nature of this blog post and the picture on the right, it's best not to leave me in the office alone, unsupervised, with an iPhone, and App Store credits, as I punch this out at 10:52 at night on a Thursday. (And yet, somehow, the Wall Street Journal deems me quotable).

Rest assured, everything I do, I do it for you. And, best of all, it's all employment-law related. Love my job!

(My wife has to be cool with me using our wedding song for this blog post, right? Love ya, baby! "Take me as I am....")

Evan Brown at Internet Cases reports that an alleged voyeur boss cannot pursue his Computer Fraud and Abuse Act claim.

At FindLaw's Legally Weird, Stephanie Rabiner blogs about a reporter fired for stripping after work who has sued her newspaper-employer for discrimination.

And over at the Social Media Employment Law Blog, in what he writes in nothing short of "naked ambition," Michael Schmidt discusses a social-media discovery battle in a wage-and-hour lawsuit filed by a group of former "entertainers in the Penthouse Executive Club". Click through to find out how this got resolved. [Note: I used all of my will power -- all of it -- not to resort to a dirty pun in the preceding sentence]. Winning!

And that's what they said...

Now, you'll have to excuse me as I try to beat the locksmith to my house (kidding...)

EEOC now publishes charge data, by state. Have a look...

Thu, 17 May 2012 07:00:00 -0500

You can access the state-by-state charge data here. And view it all in a single downloadable spreadsheet here.

In the Commonwealth of Pennsylvania, individuals filed 4,302 charges of discrimination in FY2011, which amounts to 4.3% of the total number of US charges filed. As with Americans across the country, retaliation was the most popular box checked (37.2% of all charges) in Pennsylvania. However, disability was number two in PA (31.1%) versus a national average of 25.8%, which pales compared to race and sex, nationally. Rounding out the top five in PA were: (3) sex (30%); (4) race (27.3%); and (5) age (27.3%).

Across the river in New Jersey, which has two-thirds the population of PA, residents filed less than half the number of charges (1,841) with the EEOC in FY2011 as were filed in PA. The reason? I suspect it is because individuals who have claims under the New Jersey Law Against Discrimination, which is very similar to the federal discrimination laws, do not need to file a claim with the New Jersey Division on Civil Rights, the state's administrative agency, before going to court. The top five boxes checked on NJ EEOC charges were: (1) retaliation (35.1%), (2) race (33.9%); (3) disability (25.8%); (4) sex (24.8%); and (5) age (23.3%).

And now, for the state of love and trust, play us out, Pearl Jam.

How North Carolina's Amendment One Will Affect Employee Benefits

Wed, 16 May 2012 07:00:00 -0500

Today we have a guest blogger at The Employer Handbook. It's Audrey Porterman. Audrey is the main researcher and writer for doctoralprograms.org. Her most recent accomplishment includes graduating from Ohio State, with a degree in business management. Her current focus for the site involves an online phd program and english doctoral programs.

If you have comments on this blog post, you can email them directly to Audrey. And if you want to guest blog at The Employer Handbook, then email me.

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That was fast: Court voids NLRB "quickie" union-election rules

Tue, 15 May 2012 07:00:00 -0500

The U.S. Chamber of Commerce is hot!

How hot is the Chamber? Hotter than Paris Hilton humming an 80's Buster Poindexter tune. (Actually, she abandoned her trademark exclamation "That's Hot!" for "That's Huge!").

Maybe not quite Josh Hamilton hot. But, way hotter than the mature offspring of an encounter involving Zac Efron traveling back in time to impregnate an early-90s Cindy Crawford. I would not want to stand next to the Chamber's fire right now. Sammmmmokin'!

I teased it two weeks ago, the day after the NLRB's election rules took effect, when I posted that the new rules may get derailed. Well, sho-nuf, that's what happened yesterday as a DC federal court ruled (here) that the National Labor Relations Board lacked authority to implement its new "quickie" election rules. (This on the heels of the Chamber winning an injunction against the NLRB's union-rights poster requirement).

And why did the NLRB lack authority to implement these rules? The DC court explains by citing Woody Allen:

According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters - even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.

Put simply, it takes three Board members for the Board to do business. So says the U.S. Supreme Court in New Process Steel, L.P. v. NLRB. As to the new election rules, the DC court recognized that the Board only had two members participating in approving a final version of the rule. So, those rules don't count.

Expect this decision to be appealed. In the meantime, the new quickie election rules get tabled.

UPDATE (5/15/12; 3:21 PM): The NLRB has just announced that it has suspended implementation of "quickie" election rules based on the court's ruling.

U.S. Senate now has its own FB password bill; NJ nears similar ban

Mon, 14 May 2012 07:00:00 -0500

Well, that didn't take long.

Late last month, I reported on a bill that had been introduced in the U.S. House of Representatives, known as the Social Networking Online Protection Act (SNOPA), that would prohibit employers, schools, and universities from requiring someone to provide a username, password or other access to online content.

Now, it's the U.S. Senate's turn to get in on the act with its own password bill. Plus, after the jump, I'll have an update on similar legislation winding its way to Governor Christie in New Jersey...

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A Facebook firing? An employer in hot water? Ya don't say...

Fri, 11 May 2012 07:00:00 -0500

Yesterday, I gave my social media in the workplace spiel to a great crowd in Hershey, PA, at the Banyan Consulting 12th Annual Conference. Not surprisingly, the majority of questions posed involved the attention that the National Labor Relations Board has paid to social-media-related employee discipline. And that reminded me that a case I discussed earlier this week, the one involving overly-broad handbooks policies that restricted employee discussions of wages, had a second component worth discussing; namely, an unlawful Facebook firing. More after the jump...

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Pregnant Workers Fairness Act introduced in Congress

Thu, 10 May 2012 07:00:00 -0500

Earlier this week, Representatives Jerrold Nadler (D-NY), Carolyn Maloney (D-NY), Jackie Speier (D-CA) and Susan Davis (D-CA), introduced the Pregnant Workers Fairness Act.

What's in the bill and how will it affect employers? Find out after the jump...

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That's what he said: "Oktoberfest" & "No OT for you!"

Wed, 09 May 2012 07:00:00 -0500

Cool image, huh? I drawed it myself. The fact that I took the time to do that suggests that I am in no condition to blog intelligently. Plus, Pandora is on the fritz, so I am all sorts of pissy. Therefore, before I turn out the lights and lock the door at the office, how about some Slipknot -- anger issues, Eric? -- and "That's what he said" after the jump...

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NLRB: Barring employees from discussing salary is a bad idea

Tue, 08 May 2012 07:00:00 -0500

Section 7 of the National Labor Relations Act protects the rights of employees to discuss wages and other benefits with each other and nonemployees. By maintaining a rule that restricts employee freedom in this regard, an employer violates Section 8(a)(1) of the Act.

How does this play out in the real world? Find out after the jump...

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Report: Employees share WAY more Facebook info than they think

Mon, 07 May 2012 07:00:00 -0500

Maryland has a new law forbidding employers from demanding that job applicants and employees divulge online passwords. Two weeks ago, the federal government proposed similar legislation. And, last week, news surfaced that Delaware may be placing the same restrictions on employers.

But who needs to demand online passwords, when, according to this report from Consumer Reports, your employees are sharing way more information on Facebook than they realize.

Some of the highlights from the report and a few related tips for employers follow after the jump...

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That's what she said: A hairy religious discrimination claim is settled

Fri, 04 May 2012 07:00:00 -0500

If only I had a nickel for every time someone asked me, "How do you have time to blog every day?" The answer is simple: ~~Jolt Cola Juleps and rogue Keebler Elves~~ I just enjoy writing. But even so, it can get tiring sometimes.

I was discussing this with a few HR blogger friends over dinner a few Fridays ago. They empathized. And then, I smiled, as whatever the opposite of writer's block is overtook me faster than a fat kid at a cake buffet:

I'll just do a post called "That's what she said."

Boom! ~~Plagiarism!~~ Double entendre + less work for me = one happy blogger dork.

I've struck gold...after the jump...

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No FMLA claim for employee who mistakenly thought he was fired

Thu, 03 May 2012 07:00:00 -0500

Stop me if you've heard this one before...

Employee gets bad performance review.
Employee laments to HR about the pressures of work.
Employee emails a company vice president requesting that he stop propagating company "propaganda".
Employee accuses another employee of "dismantling the Spanish Department"
Employee attempts to mass email the company.

Oh, it gets better..after the jump...

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More office romances; more anti-harassment training

Wed, 02 May 2012 07:00:00 -0500

A recent survey by Workplace Options, shows that most Generation-Y employees believe that an office romance will have a positive influence on performance and overall workplace morale.

Sounds like a Cialis commercial.

Who says I need to wait for Valentine's Day for this post? Losers, that's who. Lock the broom closets and click through for more on this survey and ways to address the office romance...

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New NLRB election rules may get derailed; plus more on SNOPA

Tue, 01 May 2012 07:00:00 -0500

Two quick updates for you today; one labor, one employment.

Word has trickled in that the U.S. District Court for the District of Columbia held a conference call with lawyers from the National Labor Relations Board, the U.S. Chamber of Commerce, and the Coalition for a Democratic Workplace, and informed them that the Court would rule by May 15 on a pending challenge to the NLRB "quickie" election rule changes. You can view those rule changes in this post I did last week.

And in case you missed yesterday's post on new federal legislation that would bar employer demands for online passwords, be sure to check it out. Late in the day, I scored a copy of the bill, known as Social Networking Online Protection Act (SNOPA), and added a link. We know now that employers that violate the law will be subject to civil fines of up to $10K. The Secretary of Labor may also seek injunctive relief. However, the federal law does not mention a private cause of action for individuals.

Unlike the legislation passed in MD, there is no safe-harbor that would allow an employer to require or request that an employee provide the employer with access to a social media account to investigate, for example, an allegation that the employee downloaded the employer's proprietary data without authorization.

Additionally, the federal legislation would also prohibit grade schools and universities from getting social-media login information from students.

New federal law will bar employer demands for online passwords #SNOPA

Mon, 30 Apr 2012 07:00:00 -0500

A few weeks ago, as reported here, Maryland became the first state to pass legislation that would ban employers from demanding that employees or job candidates turn over their social media passwords.

Could a federal law be soon to follow? Find out, after the jump...

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