The Employer Handbook Blog

Washington is the 9th state with a social media workplace privacy law

Fri, 24 May 2013 07:00:00 -0500

Or as I like to refer to it, an excuse to play Pearl Jam, Nirvana, and Alice in Chains on the blog.

Here is a link to Washington's new law.

Up next for a new social media workplace privacy law should be New Jersey, where the Assembly recently gave its unanimous approval to the Governor's conditional veto of recent legislation.

EEOC talks employer wellness programs; provides an ADA Q&A

Thu, 23 May 2013 07:00:00 -0500

Consistent with its strategic plan to provide up-to-date guidance on the requirements of antidiscrimination laws, last week, the United States Equal Employment Opportunity Commission issued this press release in which it announced that it had revised guidance on how the Americans with Disabilities Act applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities. You can find links to that revised guidance here.

And earlier in the month, the EEOC held a public meeting on employer wellness programs and how they may be impacted by not only the ADA, but also the Genetic Information Non-Discrimination Act (GINA). You can view a copy of the press release here. Suffice it to say that, until the EEOC offers further guidance on these issues -- and even when it does -- consult with an employment lawyer before implementing or updating one of these programs.

Ha Ha! You pulled my pants down! Now I'm suing you for sexual harassment.

Wed, 22 May 2013 07:00:00 -0500

When offering respect in the workplace training for employees and supervisors, I emphasize that an employee who laughs at sex jokes in the workplace is the same employee who may later sue for sexual harassment.

Like Little Ladner did.

(Yes, Little Ladner)

More after the jump...

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New Philly law rewards employers for health benefits to LGBT employees

Tue, 21 May 2013 07:00:00 -0500

Earlier this month, Philadelphia Mayor Michael A. Nutter signed legislation that provides a credit to employers who offer health benefits to same-sex couples, life partners and transgender employees.

It took less than 50 days from the date that City Council introduced this bill for it to become law. This press release from the City of Philadelphia notes the other highlights of the law:

Amends various titles of The Philadelphia Code to provide for equality of treatment of all persons in the City of Philadelphia regardless of gender identity or sexual orientation, including by further providing for the definition of "Life Partnership" and "Life Partner," and for protections, rights, benefits and responsibilities of Life Partners;

Provides for gender neutrality in certain City forms and online websites;

Provides for access to public accommodations based upon an individual's gender identity;

Provides for gender neutral bathrooms in City-controlled buildings;

Provides for the right to dress consistently with one's gender identity; and

Ensures the right of transgender individuals to request name and gender changes on pertinent records.

Congratulations to the City of Philadelphia on becoming the first city in the nation to offer this tax credit to employers.

(h/t Joe's HR and Benefits Blog)

GUEST POST: Wage Theft Quietly Becoming a Major Problem in Today's Workplace

Mon, 20 May 2013 07:00:00 -0500

Today we have a guest blogger at The Employer Handbook. It's Jesse Brar. Jesse is a Utah Employment Lawyer at Preston & Brar.

(Want to guest blog at The Employer Handbook? Email me).

I miss my mom

Fri, 17 May 2013 07:00:00 -0500

I had a guest post on something or other all lined up to go today. But, I'm going to push that off until next week. Instead, I'm going to write about my mom.

She died suddenly yesterday. Just 64; way too soon.

In many ways, I'm sure she was just like your mom. What stands out most is how much family meant to her.

Boy, did she loved her family, especially her three grandchildren. My freshest memory is a lunch we had on the Sunday before Mother's Day. I can't shake the image, that look on her face, when my three-year-old son peered down the table and challenged her to guess the country he was thinking of that began with the letter "V."

[It was Vanuatu. Thank you, iPad.]

Not unlike your mom, mine, of course, knew best. She called me a few days later, proclaiming that my son must have meant some other country. Because Vanuatu? Really?

Really, mom. Vanuatu. I sent her a Sincerely Ink Mother's Day Card this year. I was tempted to just have it be a picture of Vanuatu. But, I opted for her a group shot of her grandchildren instead. Based on the voice mail she left me after receiving it, I made the right call.

The smile on her face at the Vanuatu lunch -- and the joy she got from spending that time with my kids, Brooks, Ivy, and Pierce, meant the world to her. It was the same expression she wore whenever she was around them. Or, for that matter, when my sister and I were younger.

Family first. That's what made her happy.

She was a Girl Scout leader for my sister.

She chaperoned our school trips. [Truth be told, those skills were a bit rough around the edges. Letting some of my fourth-grade classmates purchase Chinese stars at the Italian Market. Yeah... At least no one got hurt.]

She was a carpool driver, school-project-helper [single-handedly got me an A in Home-Ec], after-school-grilled-cheese-maker, and take-her-son-to-random-baseball-card-shops-in-search-of-Billy-Ripken-89-Fleer-baseball-cards-schlepper -- good thing she never knew what was on those Billy Ripken cards.

Even the things she did for herself, she did for family.

I remember in high school when my mom went back to work briefly as a family therapist. She did it because she loved helping people and family meant everything to her. She even used the money she earned from her first client to buy me a walkman. Just because...

That's the kind of person she was.

Just like your mom, she bragged about her children. My sister and I -- we walked on water; to the point where I wanted to crawl under the table. Literally. I considered doing that when, at lunch, she would brag to the waitstaff about how great a lawyer her son is. But, like your mom, she didn't do it to embarrass me. She did it, because she wanted everyone to know how proud she was of her family.

When I went to her apartment yesterday, I couldn't bring myself to go in. Not yet, at least. For now, I want to keep my memories of her pristine. My dad was nice enough to collect some things for me. He recovered a bag full of items from her mantle. Lots of pictures. All of her family; none of my mom, unless, of course, we were in them too.

Because, that's the kind of person she was. Not unlike your mom.

When you get home tonight, call your mom ~~for me~~ just because. Next time you see her, give her a hug. Tell your mom that you love her.

I love my mom. I hope that wherever she is now, it's somewhere that she can look down on us from time to time to smile and know just how much she meant to her family and that her family loves her very much.

I miss my mom.

3d Cir: Obama NLRB recess appointments (Becker too) were unconstitutional

Thu, 16 May 2013 11:45:00 -0500

In a 2-1 decision issued today (copy here), the Third Circuit Court of Appeals ruled that the National Labor Relations Board lacked the authority to act as early as March 2010, when President Obama appointed Craig Becker to the Board. The Third Circuit held that Member Becker's appointment to the Board while the Senate was on an intrasession recess (a break within a session of the Senate) was unconstitutional. Implicit in the court's decision is that the appointments of Members Block, Griffin, Flynn in 2013, while the Senate held pro-forma sessions, were also invalid.

The Third Circuit ruled that recess appointments are only valid if made during intersession breaks (i.e., between sessions of the Senate).

This decision is crazy-long (102 pages plus a 55 page dissent). Thankfully, my Dilworth Paxson colleagues, Erin Galbally and Marjorie Obod prepared an e-alert summarizing the decision.

If you do business in Pennsylvania, New Jersey, Delaware, or the US Virgin Islands, the net effect of this decision may be that, until the Supreme Court rules in this pending case, you can basically ignore just about anything* that the Board has done this decade (well, since March 2010).

* From June 22, 2010 through August 27, 2011, the Senate had confirmed enough Board members for quorum. So don't ignore that stuff.

(h/t The Volokh Conspiracy)

Colorado now has a social media workplace privacy law too

Thu, 16 May 2013 07:00:00 -0500

Over the weekend, Colorado Governor John Hickenlooper signed a bill making Colorado the eighth state to have a social media workplace privacy law. (The others are MD, IL, CA, MI, UT, NM, and AR). You can view a copy of the new CO law here.

The new law places three restrictions on employers with respect to access of employee and applicant social media accounts:

No requests for social media user names and passwords;

No forced-friending or requiring that the employer be added as a contact; and

No requiring that privacy settings be changed.

There are a few carve-outs that allow employers to obtain full access to an employee or applicant's social-media account. One is if an employer reasonably believes that an employee has download proprietary information. Another carve-out applies to satisfy "applicable securities or financial law or regulatory requirements." There is nothing in the new law that expressly permits an employer to get this information to investigate purported violations of non-harassment policies. Although, I suppose an employer could rely upon the "regulatory" requirements exception.

Next up for a new social media workplace privacy law appears to be Washington, where a bill now sits on the Governor's desk for signature.

FMLA for same-sex couples? Possibly. But, a carnival? Definitely!

Wed, 15 May 2013 08:30:00 -0500

Senator Richard Durbin [IL-D] has reintroduced the Family and Medical Leave Inclusion Act in the U.S. Senate, while Rep. Carolyn Maloney [D-NY12] has done the same in the U.S. House of Representatives. This bill, which has been taken up in Congress several times previously -- most recently in 2011 -- would amend the Family and Medical Leave Act to permit leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, grandchild, or grandparent who has a serious health condition.

I'd be surprised if the FMLIA becomes law. However, regardless of whether it passes, there is nothing now preventing employers from offering these benefits to their employees.

Did someone say benefits? Well friends, do I have some benefits for you! (See how I did that?)

No, it's not an update on the Paula Deen discrimination case -- trust me, it's nauseating (after clicking, with a trashcan and breath mint handy, search for the word "eclair") -- I'm going to deliver to you the latest edition of the Employment Law Blog Carnival. Where else on the World Wide Web can you find this much great employment-law information in one spot?

(Come on guys, I'm blushing).

Thank you to this month's host, Donna Ballman, and to all the folks who contributed posts.

Court orders re-hiring a teacher who wished her students a watery death

Tue, 14 May 2013 07:00:00 -0500

By now, the whole teacher blasting her job on Facebook is like death and taxes to me. I can't a go a week or so without reading about a teacher posting photos of duct-taped students or a teacher wishing that her "devils spawn" students would drown in the ocean.

Well, here's a new one.

Last week, a court ordered the NY school to re-hire the teacher it had fired for wanting to send her hellish kids to their watery graves.

Yeah, I know. Shocking!

The Court reasoned (here) that an otherwise good teacher had a momentary lapse of judgment when she expressed her frustration to a limited Facebook audience, and immediately expressed remorse:

Although the comments were clearly inappropriate, it is apparent that petitioner's purpose was to vent her frustration only to her online friends after a difficult day with her own students. None of her students or their parents were part of her network of friends and, thus, the comments were not published to them, nor to the public at large, and petitioner deleted the comments three days later....Under the circumstances, which includes the lack of a prior disciplinary history during petitioner's 15-year career, and her expression that she would never do something like this again, Supreme Court properly found the penalty of termination to be shocking to one's sense of fairness.

You know what is shocking to me? A teacher wishing that her students would drown in the ocean.

And the whole rationale that the teacher's Facebook friends didn't include parents and students? Really? Do I have insider information? Is this blog post a "The Employer Handbook exclusive"? No, that's the thing about social media. Whether you post for a small audience or make your comments publicly available, once you hit send, you should not expect that what you say online will remain private. So, although this teacher intended only that certain Facebook friends would read her comments, they ended up going very public. So, her intent shouldn't matter.

The court got this wrong.

Horniest boss ever? His employee still can't prove sexual harassment.

Mon, 13 May 2013 07:00:00 -0500

I've been searching for gold recently. So, I knew I was on to something good when I started reading this opinion last week, and wasn't sure whether what I was reading was a sexual harassment case or a porno script.

~~What can I say? I like the plots.~~

Folks, if you click through, I promise you a great read after the jump...

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House passes bill permitting employees to swap OT for comp time

Fri, 10 May 2013 07:00:00 -0500

On Wednesday, the U.S. House of Representatives voted 223-204 to pass the Working Families Flexibility Act of 2013, which would amend the Fair Labor Standards Act to permit employers to provide compensatory time off in lieu of monetary compensation for overtime hours worked. Presently, through the Federal Employees Flexible and Compressed Work Schedules Act, only state and federal employees may receive comp time in lieu of OT.

Specifically, the Working Families Flexibility Act authorizes compensatory time off at a rate of no less than one and one half hours for each hour of overtime worked. Under the FLSA, employers must pay OT at a rate of no less than one and one half the employee's regular rate of pay. Republicans contended the measure would allow parents to spend more time with their children. House Democratic Whip, Steny Hoyer [D-MD] has hyperbolized that the Working Families Flexibility Act "would eliminate the 40-hour workweek as we know it."

It should come as no shock, then, that House passage was basically along party lines. And, even if it somehow passes the Senate, the President would likely veto the bill.

Appeals Court: NLRB union-rights poster violates free-speech rights

Thu, 09 May 2013 07:00:00 -0500

On Tuesday, the D.C. Circuit Court of Appeals ruled here that the National Labor Relations Board cannot require private employers -- union and non-union -- to hang this poster in a conspicuous location in the workplace. Billed by the Board as a notice advising employees of their rights under the National Labor Relations Act, many employer groups viewed the "mandatory" poster as more of an encouragement to unionize than as a neutral informational poster.

Previously, the lower court in DC had upheld the poster rule. Meanwhile, a South Carolina federal court had shot it down.

The appellate court determined that the poster rule would violate employers' free speech under Section 8(c) of the National Labor Relations Act. The appellate court also ruled that the poster rule unlawfully expanded the Board's enforcement powers.

Although this is the first appellate court to rule on this issue, another appellate court (the Fourth Circuit Court of Appeals) is poised to address this issue shortly. For now, however, even the Board has indicated that you may put the posters away.

NJ Gov. Christie vetoes proposed workplace social media law

Wed, 08 May 2013 07:00:00 -0500

You see, employment-law dorks like me use tools like these to monitor the status of pending employment-law-related bills. And, yesterday, I got a hit informing me that, on Monday, Governor Christie conditionally vetoed this proposed NJ bill, which would prohibit employers from requiring employees and candidates for disclosing online usernames and passwords.

Savador Rizzo at The Star-Ledger summarized Gov. Christie's reasons for vetoing the bill here:

Christie said that he supports safeguarding "the privacy of job candidates and employees from overly aggressive invasions by employers" but that he wants to see stronger protections for businesses. For example, the governor said aggrieved workers should go to the state labor commissioner with their complaints instead of being able to file lawsuits in state court.

...

"Unfortunately, this bill paints with too broad a brush," Christie wrote in his conditional veto today. "For example, under this bill, an employer interviewing a candidate for a marketing job would be prohibited from asking about the candidate's use of social networking so as to gauge the candidate's technological skills and media savvy. Such a relevant and innocuous inquiry would, under this bill, subject an employer to protracted litigation."

Here are Gov. Christie's suggested changes to the bill.

You know my position on bills like these: not a fan. So, it is refreshing to see a decisionmaker forego the rubber stamp and actually consider the practical impact of a hasty bill, which, although well intentioned, seeks to solve what is essentially a non-existent problem.

Fact or Fiction: It's ok to fire an employee for pro-union Facebook posts to NON-employees

Tue, 07 May 2013 07:00:00 -0500

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."

I'll set it up for you:

You run a non-union company called RH Chili Peppers. However, one of your employees, Disgruntled Donny, has been trying to get his co-workers to help unionize the workplace. Thus far, he has been unsuccessful. So, DD takes to Facebook and posts a message bashing the wages and benefits at RH Chili Peppers on a Facebook page called, "Peter Picked a Peck," a Facebook page that DD "likes." PPaP is frequented by employees, like DD, who work in the chili pepper industry, albeit at other chili pepper companies in the city.

One of your employees shows you printouts of DD's inflammatory comments about RH Chili Peppers. Can you discipline DD?

According to this decision last week from the National Labor Relations Board, the answer is no. The reason is that the National Labor Relations Act protects employees who opt to engage in union-related activities. This speech, even if directed at third parties, is protected if it flows from prior organizational activity, which was known to the employer, and is not libelous. It does not matter whether DD uses a actual bull-horn or a virtual bull-horn. Either way, that speech is protected and discipline may not ensue based on the substance of DD's pro-union speech.

So the answer to today's QATQQ is FICTION.