August, 2011

Third Circuit delivers a cat’s paw gouging to employers

August 18, 2011 | by Eric B. Meyer

Note: The original working title for this post was “Yo! A-Yo! Federal courts in Philly and NYC get all catty and stuff”. I mention this not because it’s a recycled New Yorker headline, but because it puts into context the gratuitous shots I take at NY sports teams sprinkled into this post.

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Back in March of this year, the United States Supreme Court in Staub v. Proctor Hospital recognized that an employee may have a tenable claim for discrimination under USERRA even if the person who fired him did not discriminate. That is, if a supervisor’s bias motivates a firing — even if the firing is carried out by someone else who is both squeaky-clean and higher up in the food chain — then the firing is discriminatory. This is known as the “cat’s paw” theory.

Same goes for the MetsSince March, other courts have weighed in. As you know from reading this blog, on June, the Tenth Circuit held that the Staub decision applies to claims of age bias.

And, this month, we get cat’s paw decisions from the United States District Court for the Eastern District of New York and the Third Circuit Court of Appeals. One of ’em is good for employers. The other, not so much. More on these decisions and what they will mean for local businesses after the jump…

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For employers that don’t document properly, the jury awaits

August 17, 2011 | by Eric B. Meyer

In yesterday’s post at The Employer Handbook, I discussed a recent federal-court decision to demonstrate why it is crucial for employers to document workplace performance and misconduct.

Today, after the jump, I have another federal-court decision — one in which an employer’s failure to properly paper an employee’s leave under the Family and Medical Leave Act, translates into big-time headaches.

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This is why you document employee workplace issues

August 16, 2011 | by Eric B. Meyer

Management-side employment lawyers preach it until they are blue in the face: companies should always document employee performance and disciplinary issues.

Why is this so important? A real-world example follows after the jump…

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Sleep with me, or you’re fired!

August 15, 2011 | by Eric B. Meyer

Sex sells.

My most popular posts at The Employer Handbook — that’s based on you reading them (you’re all sick I tells ya, sick!!! And remember, I’m logging IP addresses) — generally involve some element of sexual behavior. You have the Brazilian self-stimulator. Actually, make that sexual behaviour — there’s the Australian hotel sex romp.

One of my readers asked if I’d heard about the recent sexual harassment lawsuit in Utah (the home of sex in a supply closet), in which a woman alleged, among other things, that her supervisor distributed a work schedule that included included “Mini-skirt Monday,” “Tube-top Tuesday,” “Wet T-shirt Wednesday,” “No bra Thursday,” and “Bikini top Friday.” Come on, now. You know me! Just this week, I read five articles (here, here, here, here, here) about it. You can find 23 more articles about “No bra Thursday” here.

“Guess my high score in Leisure Suit Larry.”

Then there’s the NY Post story (naturally) about a 23-year-old lesbian who claims that seven staff members in her real estate office groped, slapped, flashed, fondled and subjected her to racial abuse and death threats. One of the staffers allegedly offered her $60 for oral sex and told her all Puerto Rican girls are good at it.

Me? I like writing about these cases because it’s a good excuse to use stock sexual harassment photos from Google Images — like the one on the right, which, given the size of the shoulder pads in the lady’s jacket and the dimensions of that desktop computer — no doubt housing a 5.25 inch floppy disk drive — is a screencap from L.A. Law.

How about one more sexual harassment case for ya? This time, the Fourth Circuit Court of Appeals gets in on the act and reverses summary judgment in favor of an employer where the plaintiff alleged sexual harassment and retaliation when her boss forcibly kissed her, fondled her leg, propositioned her, asked her sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her (on the day she complained).

More on this and, of course, lessons for employers, after the jump…

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Social media shenanigans that will get you fired…and maybe jailed

August 13, 2011 | by Eric B. Meyer

From TMZ.com:

Rapper The Game could face criminal charges after he tweeted the phone number of the sheriff’s station in Compton, CA — but told people it was the number to call for an internship — causing the station’s phone lines to become overrun with calls and delaying emergency services.

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I have a turtle named Sparky. And Sparky is going to die.

August 12, 2011 | by Eric B. Meyer

On September 9, 2011, I am going to carve up Sparky and make a nice turtle soup, unless…

…Unless every one of my readers nominates me for the ABA Journal’s Blawg 100 Amici (a/k/a the 100 best damn law blogs on the interwebs). The nomination deadline is September 9.

I know what you’re thinking. Moron is ~~a cold, heartless bastard~~ recycling a stupid internet bit. And you would be right. I don’t own a turtle. My wife had a turtle once. It smelled and it bit her sister.

Six super social media and HR reads from this week

August 11, 2011 | by Eric B. Meyer

Lots of good stuff on the interwebs this week about social media and human resources. Rather than breaking it up into a bunch of different blog posts, after the jump, I offer you a combination platter to enjoy with your morning coffee…

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Calling all Bloggers: The Employment Law Blog Carnival returns

August 10, 2011 | by Eric B. Meyer

The next edition of the Employment Law Blog Carnival is coming up on August 17, 2011, where Jon Hyman will be hosting at his Ohio Employer’s Law Blog.

If you would like to participate in this month’s carnival, by Friday, August 12, please email John (jth@kjk.com) a link to a recent employment-law-related blog post. It does not matter if your post is written from the employer perspective or the employee perspective. But it must be employment-law-related and it must be a link to a post on your blog.

Thanks!

Fact or Fiction: Retaliation requires job-related action (e.g., firing)

August 10, 2011 | by Eric B. Meyer

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”.

Until about five years ago, a plaintiff had to prove a materially adverse employment action in order to recover for retaliation. (I addressed the complete three-part test for retaliation in yesterday’s post).

Not so anymore. As explained briefly after the jump, the rules for retaliation have changed.

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Apparently, sex in a supply closet is not sexual harassment

August 9, 2011 | by Eric B. Meyer

At least that’s what a federal court in Utah opined.

I promise that this is not a prurient post gratuitously conceived to drive internet traffic to The Employer Handbook.

And this case has nothing directly to do with Pennsylvania, New Jersey or Delaware employers

(Ok, that last line was shameless. Google, please do not index this post).

Oh, what the heck, index away. After the jump, I’ll even throw in some good employer takeaways for all employers, including those in Pennsylvania, New Jersey and Delaware.

Darn it. I did it again…

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