May, 2012

Want a labor-law-legal social media policy? Bookmark this, I guess.

May 31, 2012 | by Eric B. Meyer

Yesterday, the National Labor Relations Board‘s Acting General Counsel Lafe Solomon issued a new report on social media cases brought to the agency, this time focusing exclusively on policies governing the use of social media by employees. It includes a copy of a social media policy that the NLRB found to be lawful.

However, the report, as a whole, left me shaking my head. Inconsistent, overreaching, it’s a ~~hot~~ tepid mess. So, before you go all cut and paste on me from that sample policy, read my critical two cents after the jump…

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The ADA does not protect medical-marijuana use, but…

May 30, 2012 | by Eric B. Meyer

According to a federal appellate court from California, a state that has embraced marijuana as an effective treatment for individuals who face debilitating pain, an employer may discriminate against an employee because of the employee’s use of marijuana. This holds true whether the marijuana use is recreational or medicinal, because the Americans with Disabilities Act does not protect illegal drug use.

However, there are instances in which the ADA does protect medical-marijuana users. For example, an employee who uses medical marijuana to treat glaucoma may be discriminated against because of the employee’s marijuana use, but not the glaucoma. Assuming that: (a) the glaucoma is a disability; (b) the employee can perform essential job functions with or without a reasonable accommodation; and (c) and the employer takes an adverse employment action against the employee because of the glaucoma, the employer has violated the ADA.

For more on the CA case, check out Robin Shea’s post at the Employment and Labor Insider. For more on the interplay between medical-marijuana use and state disability-discrimination laws, check out this post I did last year.

Federal legislation reintroduced to promote hiring veterans

May 29, 2012 | by Eric B. Meyer

To improve the reinstatement rights of returning war veterans, and to add more enforcement teeth to the Uniform Services Employment and Reemployment Rights Act (USERRA), Pennsylvania Senator Robert Casey reintroduced the Servicemembers Access to Justice Act (SAJA) last week.

Details on SAJA and what it could mean for employers follow after the jump…

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Fifth of vodka + whiskey + elevator shaft = no workers’ comp

May 25, 2012 | by Eric B. Meyer

From the blog that previously brought you “Smoke pot + grizzly bear bite (in the butt) = collect workers’ comp,” comes the story of the boozing builder who, well, I’ll let the Court of Appeals of Utah explain:

Mr. Wood was engaged in work activities on behalf of Karr during the morning and early afternoon of May 1, 2007. He began drinking alcohol at the work site at about 2 p.m. and continued until he had consumed a small bottle of whiskey and more than half a fifth of vodka. By 4 p.m. he had stopped performing any work duties for Karr and removed himself to a 1st floor closet where he slept for two hours. When he awoke, he made his way up to the 2nd floor but did not resume any work on behalf of Karr. He fell into the elevator shaft and suffered the injuries for which he now claims workers’ compensation benefits.

Amazingly, the court was less than blown away by such arguments as:

How to lose a disability discrimination case in 5 easy steps…

May 24, 2012 | by Eric B. Meyer

What started out well for the employer…

On April 29, 2009, Catherine Coffman, an employee of Robert J. Young Company, Inc. (“RJY”), got into a motorcycle accident. RJY provided Ms. Coffman with leave under the Family and Medical Leave Act. Just before Ms. Coffman’s FMLA expired, RJY offered to return her to work in a sedentary job that provided the same pay and benefits as her old position. Ms. Coffman rejected the offer because she did not feel that she was able to return to work yet.

…Quickly turned bad. Very bad.

Boss fires HR Manager to whom he sent w-2 (by w-2, I mean lots of porn)

May 23, 2012 | by Eric B. Meyer

A long-time county employee in Florida, who served as HR Manager, is set to file a federal discrimination complaint against her former employer, claiming that she was sexually harassed at work and later fired after complaining. The employer claims that it fired the employee for making false sexual discrimination claims to the U.S. Equal Employment Opportunity Commission.

And then there’s the porn and dirty texts…which the employee’s boss admits sending…to the employee…like 40 times…

Interest piqued? I thought so. Click through…

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Now hear this: Hearing loss comments are evidence of age bias

May 22, 2012 | by Eric B. Meyer

It is unlawful under the Age Discrimination in Employment Act “to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” An employee who alleges that she was fired in violation of the ADEA has a tough time prevailing because she must demonstrate not that “age was a reason” behind the termination decision, but rather that “age was the reason.”

In a recent decision, a Mississippi federal court allowed a plaintiff, a former beauty supply company employee who suffered from hearing loss, to take her age discrimination claims to trial because she had presented evidence that that her manager made remarks such as, “Yeah, that’s what happens when you get old.”

[I was going to break in here in Alright Hear This, but two f-bomb’s and a sh*t preclude that. Instead, we’ll try this one.]

Does the ADA require accommodating an employee’s commute to work?

May 21, 2012 | by Eric B. Meyer

Let’s say you have an employee with narcolepsy. This employee has been working for you for years with no issue. But business needs changed and you reassign this narcoleptic employee to a new shift. Shortly thereafter, the employee comes into HR and requests a shift change. Your response is take FMLA or quit.

Have you violated the Americans with Disabilities Act by failing to accommodate the shift-change request?

Find out after the jump…

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That’s what they said: “Naked ambition” and a “voyeur boss”? (And more…)

May 18, 2012 | by Eric B. Meyer

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….”)

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

May 17, 2012 | by Eric B. Meyer

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%).