September, 2012

Yo, Boss! Did you say “Spacebook” and “Tweeter”?

September 14, 2012 | by Eric B. Meyer

Penn State Kicker Sam Ficken probably had a pretty bad week. Last Saturday, he missed one extra point and four field goals in Penn State’s 17-16 loss to Virginia. After the game, he was deluged with online insults.

Thankfully, his coach, Bill O’Brien, came to his defense.

Obviously, I think it’s absolutely ridiculous. Not just because it’s a 19-year-old college kid. It’s just because, I mean, it’s anonymous in some ways, and in other ways it’s not. But at the end of the day, you know, these guys are really playing hard, giving great effort for us,” O’Brien said. “To go on whatever, Spacebook [sic] or Tweeter [sic], or whatever [and] put stuff on there is just absolutely ridiculous to me and very cowardly, to be honest with you. But that’s just my opinion . . . I don’t know what type of people do that.

Is an employee with managerial duties “similarly situated” to a manager?

September 13, 2012 | by Eric B. Meyer

Maybe it’s the luck of the draw, but most of the discrimination cases I defend are hostile work environment cases, where an alleged harasser supposedly has made an employee-victim’s life miserable with certain comments, jokes, gestures, touchings, you name it.

Far less often do I encounter disparate-treatment claims. A disparate-treatment claim is one where an employee claims that another similarly-situated employee in another class was treated more favorably because of his/her protected class. For example, a female employee claims that similarly-situated male employees are paid more because they are men.

Sounds like the facts of a recent case decided right in my backyard in the Eastern District of Pennsylvania. This case provides a great opportunity to go back to school on what it means to be similarly-situated…after the jump…

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Is “casual conversation” of a parent’s health enough to trigger FMLA?

September 12, 2012 | by Eric B. Meyer

Last month, in this post, I addressed a recent opinion in which the court held that the words “Emergency Room,” when uttered by an employee to his employer are enough to put the employer on notice — at least initially — that the employee needs leave under the Family and Medical Leave Act to care for a parent with a serious health condition.

In another recent opinion (here), the Seventh Circuit Court of Appeals examined inquiry notice under the FMLA to determine whether causal conversation about a loved one’s health — without mentioning the letters FMLA — is enough to alert an employer to the seriousness of a health condition so as to trigger the need for FMLA leave.

The Court held that it did not:

Court grants access to plaintiff’s social media in discrimination case

September 11, 2012 | by Eric B. Meyer

Many times on this blog (e.g., here, here, and here), I’ve discussed the discovery of a plaintiff’s social media information in pending litigation. More often than not, these issues arise in personal injury actions where the defendant believes that the plaintiff’s injury isn’t as a severe as he claims it to be. So, it seeks access to plaintiff’s Facebook information where it believes it will find pictures of the plaintiff boozing or frolicking or what-have-you.

Although less common in employment discrimination cases, from time-to-time, social media discovery issues do crop up. I’ll discuss a new one decided late last month and offer some related tips for employers after the jump…

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POLL: Your employees post THIS YouTube video. What do you do?

September 10, 2012 | by Eric B. Meyer

Over the weekend, I heard PSY’s catchy song Gangnam Style for the first time. Coincidentally, I then read this story from Kathleen Miles on the Huffington Post about 14 Gen-Y lifeguards at a city pool in El Monte, CA, who posted this video (below, left) on YouTube spoofing the original “Gangnam Style” music video (below, right).

In response, the City fired the 14 lifeguards for using City property, including the pool and their uniforms, for private use. Sure, the City was within its rights to fire these employees. But, was that the ideal response?

“How can I keep the white girl?”

September 7, 2012 | by Eric B. Meyer

[Editor’s Note: Because “Playing the Race Card” was already taken]

The title of this post is comprised of the seven poorly-chosen words from a Vice President of Operations at a Detroit casino right before the casino terminated a white employee for allegedly botching supervision of a dealer card shuffle.

What do you think? Do we have a live race-discrimination claim? Oh yeah, we do! Details after the jump, as well as thoughts on employers who strive to maintain racial balance in the workplace…

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Save the turtles, skip poison ivy, vote The Employer Handbook!

September 6, 2012 | by Eric B. Meyer

True story: In the wake of last year’s stupid turtle ploy to elicit votes for The Employer Handbook in the ABA Blawg 100 Amici, I spent over an hour in a Harrisburg hotel room on Tuesday night trying to one-up (one-down?) myself by programming a talking computer avatar with an Irish brogue to encourage you to vote for The Employer Handbook in this year’s ABA Blawg 100 Amici.

Now, I have done some stupid stuff in my life (see; e.g., the turtle; rubbing poison ivy on my face in the fourth grade because I didn’t believe that the shiny green leaves of three that the kid with the baggie on his hand was holding was actually poison ivy) . Heck, while my wife was laboring in the delivery room last month, I was on the couch Googling for turkey crockpot recipes. (Perhaps, I should have kept that one to myself). But the talking avatar thing tops this week’s list — so far (I still have a few more days to go).

But seriously, here is the link, take a few seconds, vote Handbook. Tomorrow is the voting deadline. So, cast your vote today and then cackle with me as I mercilessly crush the competition. WHAT!

Ethics charges for two lawyers over Facebook friending a litigant

September 5, 2012 | by Eric B. Meyer

It was bound to happen sooner or later…

Mary Pat Gallagher of the the NJ Law Journal reports here (subscription required) that two NJ defense lawyers face ethics charges after their paralegal allegedly friended an attorney-represented plaintiff in a personal injury case.

Details on the allegations and some takeaways for both lawyers and HR professionals after the jump…

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ADA does not require indefinite break from essential job functions

September 4, 2012 | by Eric B. Meyer

Readers of this blog know (here, here, and here) that if a disabled employee requests an indefinite leave of absence from work, the Americans with Disabilities Act does not require you to provide it. Why? Because that accommodation is not reasonable.

[Editor’s note: Obsessed much, Eric? Three posts about the same topic?!? Why don’t you just share with your readers about how you refused to drink anything other than water for hours after yesterday’s Labor Day lunch of chilaquiles, just so you could continue to savor the satisfying burp-flavor of red sauce and refried beans. TMI, Eric. TMI….]

To the two remaining readers who made it this far, I’ll school you on requests for an indefinite reprieve from essential job functions after the jump…

*** belches, draws dirty look from wife, smiles ***

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