Monday
Mar182019

ICYMI: Our Social Media Posts This Week – Mar. 17 - 23, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 3/17/19 we asked: (How) Should an employer keep time for an exempt employee? Important question if you want to keep on the correct side of legal. The best, and safest, answer may be YES. One example is the case in the post. So what happened? The employee alleged that the employer did not pay minimum and overtime wages. The trial court found the employer's records lacking for the reasons in the post. That part was upheld on appeal and the employer's burden specified as in the post.

TAKEAWAY: make sure you can prove both the hours worked and classification as exempt – in case you need to.

The post on Monday 3/18/19 confirmed that “She slept her way to the top!" can be sexual harassment. But wait, it's just office gossip, right? Not necessarily according to a federal appeals court. Sexual harassment doesn't have to be sexy. For example, a supervisor believes that women should stay at home and care for their husbands – and shares that opinion with his female employees. Once might be ok, but over and over … see the post. Here, Evangeline was promoted 6 times in less than two years. She says that a male peer (hired at the same time but now her subordinate) started a false rumor noted in the post. What happened after that is also in the post. After she was fired, she sued. Evangeline is supported by some heavy hitters – see the post – and decisions from other federal courts, including our own Third Circuit. 

TAKEAWAY: Stop office gossip before it starts – help yourself help prevent a possible future lawsuit. Contact an employment attorney if you need assistance with training your employees.

The post on Tuesday 3/19/19 was about barking dogs, booming music: how to resolve neighbor noise complaints. Does that resolution involve the homeowners' or condo association? It depends. Is there a noise ordinance in the municipality? Is there a rule or covenant in the Association that limits noise? Do other things in the post apply?

TAKEAWAY: While there are many parts of life in the community that are dealt with by the Association's Governing Documents, they do not govern everything; consult a community lawyer to know who has what rights and what everyone should do.

The post on Wednesday 3/20/19 told us that firing an employee with flesh-eating bacteria did not violate the ADA. Gary worked as the City's accountant and payroll technician. He contracted/came down with a "flesh-eating" bacteria. After the employer took the action in the post, over about a year, Gary filed suit for ADA violation (failure to accommodate and engage in the interactive process) and retaliation. Why the court ruled for the employer is also in the post. Note that the accommodation of last resort, reassignment, is also mentioned in the post.

TAKEAWAY: Assuming the employee is eligible for ADA protection, the employer must engage in the interactive accommodation process – but there are limits. Consult an employment lawyer to be sure of what your rights and obligations are as part of that process.

In the post on Thursday 3/21/19 we saw that the Park School of Baltimore will pay $41,000 to settle an EEOC sex discrimination suit. Out of the mouth of ... the employer. So what happened? The school hired a male softball coach, renewed it twice, and then did not renew it for the third time. The reason it gave for the non-renewal is in the post. The EEOC sued. Now the parties are settling for the items listed in the post.

TAKEAWAY: Well you know what they say about loose lips; it's true. Train your employees on what to say and not to say.

The post on Friday 3/22/19 told us that voicemail disputes lead to a jury trial on FMLA issues. We suggested that you train managers on what to record - have them help make the case. So where does all of this come from? Ms. Holladay was approved for intermittent FMLA leave for migraines. She left a voicemail for her employer when she was absent for 4 days in a row. What did she say in those voicemails? See the post. And why it mattered is also in the post. After she was discharged, she alleged FMLA interference. What – and why – the court ruled is in the post.

TAKEAWAY:  It is important for both the employer and employee to follow the rules/policies; if not, make sure to document it for future reference.

Finally, in the post yesterday 3/23/19 we saw that IHOP settled sex harassment suits. To the tune of $700,000, not peanuts (or pancakes). The allegations? That owners, supervisors, managers and co-workers at 9 locations subjected female employees to sexual harassment including those things listed in the post. When reported, instead of taking corrective action, the employer … see the post. There were also allegations about the inadequate policy maintained by the employer; it too is detailed in the post.  

TAKEAWAY: Yes employers, you should have policies on how, where and to whom reports of harassment should be made– but the policies should be reasonable. And when there are complaints, you must actually investigate.

Monday
Mar112019

ICYMI: Our Social Media Posts This Week – Mar. 10-16, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 3/10/19 we learned that CBS pays actress to settle sex harassment & discrimination matter. #MeToo comes back around to Hollywood? Eliza Dushku was hired for a new series in 2017. She says that almost immediately a male lead started to make sexually inappropriate comments to her. Yes, there's more in the post that has contract and other implications. Eventually she got $9.5M – the basis for that is in the post and includes sex harassment and another count noted in the post.  

TAKEAWAY: Finally, someone made whole in the face of illegal action – don't let your situation get to this point, do it right from the start.

The post on Monday 3/11/19 told us that a KFC worker wins $1.5 million in discrimination lawsuit over breastfeeding. Annette was hired a few months after she gave birth in 2014 and was told that breastfeeding would not be an issue. She was advised to pump every two hours, but was only allowed to pump once during a 10-hour shift. And as if that wasn't bad enough, see what else KFC did as noted in the post. Then she was demoted and co-workers got into in by complaining – yep, see the post. Annette sued for gender discrimination and harassment. She won $25,000 compensatory and $1.5 million punitive damages. Huge!

TAKEAWAY: Treat all employees the same unless the law requires something different – and then discuss with an employment lawyer BEFORE taking the varied action.

The post on Tuesday 3/12/19 was about severance pay: what you need to know. Sometimes it is necessary to discharge an employee. When you do, you need to decide whether or not to offer severance pay or a package. A typical amount is noted in the post, but of course that varies from case to case. It can also depend on any applicable contract provisions. But in addition to the amount of pay, what else might you consider for the package? Retirement account vesting, stock options (or vesting), and other things noted in the post. And why would you want to consider offering a severance package? First, if the discharge is part of a RIF or an early retirement. Also for the situations mentioned in the post. Things to consider when offering a severance package are also listed in the post.  

TAKEAWAY: Severance packages can serve a purpose, but make sure to discuss with employment counsel to ensure it will actually accomplish the purpose you want it to serve.

The post on Wednesday 3/13/19 told us how to turn $147 into $10,000 - the WRONG way! So what happened? Owners purchased a home in 2014. Two years later, owner did not pay a $147 assessment to the homeowners' association. If then assessed a late fee. Things escalated as laid out in the post. The HOA filed a lien and the owner tried to get it removed (the basis is in the post). The owner lost in the trial court and appealed. The appellate court affirmed for the reasons in the post. That $147 turned into a much much larger amount.

TAKEAWAY: Homes that are part of homeowner and condominium associations are subject to the Governing Documents (Declaration, Bylaws, and Rules/Regulations). What they say legally binds both the owners and association, so make sure you know their contents.

In the post on Thursday 3/14/19 we learned that courts rule on limits of ADA accommodation. Read on. Yes, the ADA Amendments Act broadened the scope of disability. But there are still limits. The post talks of 2 examples. In the first, an employee reported to work under the influence of drugs and failed a drug test. She was fired. She sued for discrimination, failure to accommodate and retaliation. Her arguments are in the post. Why the court ruled against her is also in the post. The second case was again about an employee fired after failing a drug test. He too sued, this time for disability discrimination. How the facts played out here are in the post as well as the limits of accommodation.

TAKEAWAY: While the employee might be considered disabled, that does not mean that every accommodation is on the table; it still must be reasonable and the process must be followed at every step.

The post on Friday 3/15/19 noted: I should have written that down ... Famous last words you don't want to hear. You’ve heard it before: location location location in real estate is akin to document document document in the employment context. That is especially true when it comes time to terminate an employee. Without documents, the employee has several bases on which to sue – see the post. So how do you prevent that? First, document everything. Next, be truthful and don't sugar coat. Why you should follow this advice is in the post. Three other tips are also in the post along with why they are important.

TAKEAWAY: While it might be nice, it is not always possible, or even the best idea for legal reasons, to change the bases for the termination – be blunt, factual and truthful. Contact employment counsel if there are questions.  

Finally, in the post yesterday 3/16/19 we saw that Whole Foods is beset with sexual harassment claims. Too bad. You know, the wonderful grocery-plus store that was bought by Amazon. The employee alleges that her shift supervisor made sexual remarks almost daily. Examples of what he said are in the post. And there was more noted in the post. This would be too much for anyone, but this employee wasn’t even 21! She told the supervisor to stop, but he didn't. She told the company; it ignored her. And then what did it do? See the post.

TAKEAWAY: Train supervisors how to treat those under them and make sure to investigate all complaints – don't let your case be tried in the court of public opinion or a court of law.

Tuesday
Mar052019

ICYMI: Our Social Media Posts This Week – Mar. 3 - 9, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 3/3/19 we saw that the EEOC sued restaurants for sexual harassment. Yes, Italians (stereotypically) use their hands, but that doesn’t make what happened here right. The EEOC alleges that a male line cook at one Italian restaurant had his private parts repeatedly groped by the kitchen manager, cook and chef. He reported it, and the restaurant's response was… in the post. Then more happened, including the chef grabbing his genitals and more in the post. What the owners did next (in the post) caused the cook to quit. And that's not all. The other restaurant under the same ownership had issues too. There, a female dishwasher, was faced with daily sexual comments and physical touching by the same kitchen manager. There was more as noted in the post

TAKEAWAY: While you want your employees to literally be hands off, you need to be figuratively hands on in ensuring that employees are treated properly. 

The post on Monday 3/4/19 told us that employers can reject accommodation requests that do not facilitate job performance. Makes sense, right? So in this case, the employee, a salesperson who suffers from depression, asked for permission to end sales calls and not deal with those customers in the future if they exacerbated the condition. So what did the employer do? It (smartly) contacted counsel to see how it should proceed. As the post notes, jumping to the hardship phase is not the right thing here. The employer first needs to see if the requests actually is for an accommodation under the ADA. The post reminds us what that entails. The post also tells us how that played out here.

TAKEAWAY: Start at the beginning when you receive a request for accommodation: make sure the person is eligible under the ADA and that the request also falls within the statute's parameters. Contact counsel to be sure.

In the post on Tuesday 3/5/19 we learned everything you need to know about homeowners and condo associations. Well, not everything, but it's a good start. So what did we learn? First, that around 70 million people live in a community association. The residences are owned by individuals and the association owns other land, called common elements. Some things are owned by more than one but fewer than all owners; they are called limited common elements. The post talks about how associations are governed. The post also emphasizes the CC&R, Covenants, Conditions and Restrictions, Declaration – one of the set of Governing Documents. It is a legal document that binds all owners and the association. Rules (or regulations) are another Governing Documents; how they might be effective is also mentioned in the post. It is important to make sure you will be able to abide by the Governing Documents; ask yourself the 5 questions in the post, including whether you will be able to pay all assessments and whether or not there are any pet restrictions. 

TAKEAWAY: Know before you buy – or get on the board. The Governing Documents are to be followed uniformly (unless preempted by statute). Legal counsel is often helpful to both owners and board members.

The post on Wednesday 3/6/19 told us that Buffalo Wild Wings settled a discrimination suit. No more wings flapppin' (ok, bad attempt at humor). The settlement calls for payment of $30,000 to the three males. Why?  See the post as to the underlying allegations.

TAKEAWAY: Treat all employees the same; base any adverse decisions only on job performance.  

In the post on Thursday 3/7/19 we watch from the courtroom: religious accommodation do's and don'ts. DO tell supervisors not to deal with religious accommodation requests (or, really, any accommodation requests), but to take them to HR. Why? The case in the post. Marie was a dishwasher; she needed off one day per week for religious reasons. The employer accommodated her for 6 years. But then it stopped. What the employer did next is in the post. DON'T refuse an accommodation without showing undue hardship. Huh? Yup, the case in the post. The dress code prohibited beards or hair longer than collar length for certain employees, which affected those of certain religions listed in the post. But it didn't stop there; the employer also rejected applicants out of hand if they didn't meet the grooming policy. A final DO is also in the post (and, since it's from PA, worth reading).

TAKEAWAY: Don't sweep under the rug any request for religious accommodation; look at it carefully before making a decision. And consult counsel to make sure you are on solid legal footing.

The post on Friday 3/8/19 told us that a woman with disabilities claims Walmart fired her because she was pregnant. We queried: fired for being pregnant and having a job coach? Angela filed suit against the company and 2 employees, an assistant manager and a manager, alleging sex and disability discrimination and retaliation among the other things listed in the post. Apparently Walmart has a light duty program for those with lifting restrictions, but it did not offer the program to pregnant employees. How Angela was disabled is in the post, along with how Walmart accommodated. But then Walmart went against a decision it made in concert with Angela. When she told Walmart of her pregnancy, things got worse – see the post. The clincher: what the manager said when asked for the reason Angela was fired (yes, it's in the post).   

TAKEAWAY: Loose lips sink ships. Or put an employer at risk for a large liability. Make sure you don't have one of those managers!

Finally, in the post yesterday 3/9/19 we saw that an airline was ordered to pay $77 Million in damages. We noted that’s not peanuts (pun intended)! The case in the post occurred under CA law, but the way it played out might happen under federal law (or other states' law) too. Flight attendants alleged that Virgin Air did not pay for all hours worked, including those listed in the post. It also alleged that Virgin did not allow for certain breaks or pay minimum or overtime wages. How and why the court decided CA was the appropriate jurisdiction is in the post, along with what happened after that.

TAKEAWAY: Make sure to follow all laws when it comes to your employees, including for pay. It is so much more expensive after the fact than if you do it right at the outset.

Tuesday
Feb262019

ICYMI: Our Social Media Posts This Week – Feb. 24 - Mar. 2, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 2/24/19 we learned about an important decision regarding what constitutes “protected concerted activity” in all workplaces. So yes you need to read this. The NLRB recently issued a decision that narrows what is considered protected concerted activity (those things for or on account of which you cannot take adverse action against an employee). This type of activity does not always require 2 or more people; in certain circumstances it could only relate to 1 person in the types of situations noted in the post. For example, one person speaking out on behalf of co-workers. So what happened in this case? The employer fired a skycap. He had declined to help when asked and instead, in front of co-workers, complained about prior tips. How this played out is in the post. The skycap was eventually fired. The NLRB looked at the complaint and had to decide if it was protected concerted activity or did not rise to that level. Its reasoning, and map for future situations, is in the post and actually makes sense.

TAKEAWAY: Know what is protected under the law – in all workplaces – and what is not before you take adverse action. Contact an employment lawyer to be sure.

The post on Monday 2/25/19 said that Chili's allegedly told a lesbian to dress ‘more gender appropriate’. This author commented that this was disappointing if true as she probably eats at a local Chili’s weekly. The backstory: Meagan is a lesbian single mother. She was offered a promotion but only if she started to 'dress more gender appropriate". What that meant is in the post. How it came about is also in the post. The exact comments are also in the post (and sad if true). And Chili's' statement? Well, it seems to stand behind the manager but twist the words – see the post. And the worst part? Chili's apparently told Meagan (whether verbally or in writing I am not sure) that it could not have been discrimination "because he [the manager] hangs out with gay people". Ugh! The ACLU sued on Meagan's behalf, alleging sex discrimination.

TAKEAWAY: Treat all employees the same regardless of their gender or gender identity or preference. Make decisions solely based on job performance.

In the post on Tuesday 2/26/19 we saw that a federal court finds employee medical marijuana use need not be accommodated at work (and suggested you note if/how this affects PA at this point). Daniel was a forklift operator. He alleged that he took medical marijuana for prior injuries and that he provided documents to the employer that it was safe for him to operate machinery while taking the medical marijuana. Daniel had a work-related injury and was told to take a drug test to return to work (per company policy). He was suspended until he took the test even though he showed his prescription and requested an exemption. The question before the court was whether passing the drug test was an essential function of the job. The court then analyzed that as in the post to come up with its decision. So what should PA employers and employees take from this? That since PA law is similar to NJ law, PA courts may follow this reasoning (again, as noted in the post) – or they may not.

TAKEAWAY: the use of medical marijuana in the workplace, and any action to be taken as a result, should be discussed with counsel first.

The post on Wednesday 2/27/19 reminded us to know who is responsible for what damage to a unit in condominium or homeowners association. Check your Governing Documents and PA law and contact us (or other community association lawyers). Facts: pipe under the concrete slab in first floor unit needed repair. The pipe supplies water to that unit and 23 others. The pipe burst and water flooded the unit. Contractors came in to repair it. The association paid for the repairs. The bill for drying out the unit was sent to the owner of the flooded unit. The owner questioned why the bill was not paid by the association. The answer (as noted in the post) depends on the Governing Documents and applicable state law.  

TAKEAWAY: Know who is responsible for what repairs and replacements relative to each unit in a community association – consult knowledgeable community association law counsel with any questions.

In the post on Thursday 2/28/19 we saw that a court ordered the plaintiff in an FMLA lawsuit to produce private social media content in discovery. Did you really think it would be exempt? Really? Many court cases these days involve social media: the employee wants to keep it out and the employer wants it in. Here, the plaintiff was a valet attendant. The employer tried to get private social media accounts in the race and disability discrimination case. What exactly the plaintiff wanted is in the post; the relevant time period and the reasoning are also in the post. Based on the request and what was both shown and explained in support (listed in the post), the court granted the request.

TAKEAWAY: Under the right circumstances, and for the right reason, an employer may well be able to gain access to an employee's social media.

The post on Friday 3/1/19 showed us that a federal court limited the ADEA's disparate impact application to employees (and not applicants). Query: Will the Third Circuit, which takes precedence in PA, follow? So what happened? Dale unsuccessfully applied for a job as an attorney at CareFusion Corporation. His experience was greater than the maximum listed in the job announcement. CareFusion passed over Dale and instead hired a 29-year-old applicant who met but did not exceed the prescribed experience requirement. Dale then sued for age discrimination on a theory of disparate impact liability (and also disparate treatment). The court started with the plain text of the statute (see the post). It looked at several statutory provisions (noted in the post) and went through why Dale's argument was wrong (as in the post). Finally, the court looked at the background of the ADEA (see the post) and held that while the ADEA protects employees from disparate impact age discrimination, it does not extend that same protection to outside job applicants.

TAKEAWAY: this ruling is not precedential in PA, but its logic makes sense. Know where you stand in PA before making an argument on statutory application.

Finally, in the post yesterday 3/2/19 we saw 5 questions to consider before listing your property for a short-term rental, aka: To Airbnb or Not to Airbnb. You do know what Airbnb is, right? And you want additional, easy, income, right? So you decide to combine the two, right? Maybe. First, know the answers to these 5 questions (and maybe others). First, is your property zoned for short-term rentals? This is a threshold question. If the answer is no, stop, (do not pass Go). Second, is there a requirement that you get a business license or rental permit? This will probably be in the applicable municipal Ordinance or similar. The other three questions are in the post. And when you think you have all of the answers, consult a lawyer to keep you out of hot water.

TAKEAWAY: Do your homework before being called to the principal's office (or court); make sure short-term rentals are allowed before registering to use Airbnb or similar services.

Monday
Feb182019

ICYMI: Our Social Media Posts This Week – Feb. 17-23, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 2/17/19 we looked at military leave and health benefits under USERRA (and noted that as more veterans are in the workforce, you need to know this). You should know that USERRA requires an employer to restore an employee to his or her previous position of employment upon returning from military duty. But do you know what happens when the person is away on military leave? For the most part, whatever is offered to those on other types of non-military leave. As for health / medical benefits, there are some things to know. Coverage is talked about in the post, as is how to elect it. Likewise, the post reviews whether the employer can make the employee pay for premiums during military leave. Finally, the post mentions situations where the employee might want to discontinue coverage.

TAKEAWAY: As with other applicable laws, know what USERRA says are the rights and responsibilities of both the employee and employer – before you need to apply it.

The post on Monday 2/18/19 told us that reporting to work impaired, failing drug test, and failing to request accommodation doom employees’ ADA discrimination lawsuits. Yep, seems about right ... Here, a federal appellate court was faced with several ADA-related claims after an employee had reported to work under the influence of drugs. The Court did the standard burden-shifting analysis on the discrimination claim and found that the plaintiff had a disability and was discharged. It then looked at the employer's reason for termination (see the post) and whether the employee rebutted that reason (again in the post). The Court next analyzed the failure to accommodate and retaliation claims; see the post. Ironically, and perhaps because of the analysis, the next day a different federal appellate court came to the same decision on similar facts (that are noted in the post.

TAKEAWAY: Know what is required of each party under the ADA and how it will play out in a court of law. Consult employment counsel if necessary.

In the post on Tuesday 2/19/19 we asked: Can neighbor dictate improvements to your home if you live in a condo or homeowners' association? The answer is my favorite: it depends. On what? The Governing Documents (Declaration, Bylaws, Rules/Regulations). There might be provisions such as those in the post. There might be an architectural of other committee or groups that has some say. There might be applicable law (like in the post).

TAKEAWAY: know what you can and cannot do – check the Governing Documents before you make any change in your home if you are in a planned community.

The post on Wednesday 2/20/19 noted that the Bird Box method won't work for HR (and suggested that if this is you or your company, you contact me for help). Bird Box as in the Netflix movie. Have you seen it? It has generated many mems on social media, including the one in the first paragraph of the post. Sort of an updated version of sticking your head in the sand. And the parallel to the workplace: HR cannot stick its head in the sand to things that are happening (or should happen and are not). Some examples of things that happen that shouldn't where HR needs to step in: people telling dirty jokes at the water cooler and laughing along; receiving, or even forwarding, off-color or racially-insensitive jokes in emails from co-workers; and more things that could be considered harassment as listed in the post. What about someone struggling to do some or all if her job and you can observe a disability or have been told about it? Have you then taken any of the actions in the post that might qualify as failure to engage in the interactive accommodation process?  More head in the sand things: overlooking wage and hour violations, dispensing with corrective action for poor job performance, and more in the post.

TAKEAWAY: Don't let your company, whether HR or anyone else, use the Bird Box method – it could lead to liability for you.

In the post on Thursday 2/21/19 we read about Hilton employees being fired after being accused of racism. We commented that it is nice to see quick and proper action! Employees at the DoubleTree by Hilton in Portland allegedly evicted a black guest who was speaking on a mobile phone in the lobby.  Allegedly a Caucasian security guard asked for the guest's room number. What happened after that is in the post. So the guest accused the hotel as noted in the post. As well he should have.

TAKEAWAY: Train your employees to do their jobs color-blind – and blind when it comes to any other protected characteristic too.

The post on Friday 2/22/19 was another about Hilton Hotels and told us about a dishwasher awarded $21 million after boss made her work on Sundays. Not a good week (in this blog) for Hilton. Marie worked as a dishwasher at the Conrad Miami. She is a member of the Soldiers of Christ Church which is a Catholic missionary group that helps the poor. She told the hotel from the start that she could not work Sundays due to her religious beliefs. They scheduled her on a Sunday at one point, but it played out as in the post. Six years later, she was again scheduled to work on a Sunday. The kitchen manager put up with Marie's shift swaps for a bit, then Marie was fired (the alleged basis is in the post). A jury came back with a $21.5 million award (but the post explains a damages cap), along with $35,000 in back wages and $500,000 emotional and mental distress. Hilton said it will appeal (but hasn't it already lost in the court of public opinion?).  

TAKEAWAY: Make sure the facts support you, and even consult an employment law if necessary, before taking any adverse action – no matter who the employee is; it's the best way to operate.

Finally, in the post yesterday 2/23/19 we saw that Ford Motor Company is sued by employee who faced demands for sex, photos of her naked. Yes and then we commented on how sad it is that this type of thing still goes on today. DeAnna, an African-American woman, started as a production supervisor in June 2018. She alleges in her suit that she was on the receiving end of unwanted racial and sexist comments and conduct of a sexual nature. Like what? She alleges that her supervisor, continually asked to see her breasts (the wording is in the post), would call her a name (in the post) and explain it in sexual terms (see the post), and asked DeAnna to send him naked pictures of herself. She tried to ignore him, but then he did this (in the post). The suit alleges that this is not the supervisor's first rodeo with this type of thing. Ford's response is in the post – if true, it took some appropriate action. But DeAnna disputes that Ford is innocent, in that management knew – and approved as explained in the post. And it gets worse. See the post. Ick.  

TAKEAWAY: Control your employees – even those who supervise other employees – it could be your head they are helping to take off or your pocketbook they are helping to empty.

Monday
Feb112019

ICYMI: Our Social Media Posts This Week – Feb. 10-16, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 2/10/19 we read about the 7 best practices for ADA compliance. And what are they? First, write clear employee handbook policies. So not only should you have a handbook, but make it clear and able to be understood by all employees. What goes along with this policy is in the post. Next: don't skimp on training for supervisors and managers. That is just like slitting your throat. The people on the ground who enforce the policy (that you've no so carefully crafted) need to know how to enforce it. An example is in the post. The other tips are also in the post.

TAKEAWAY: You know you have to comply with the ADA – so why not make it easier on yourself and follow tried and true practices (and tips).

The post on Monday 2/11/19 reminded us that firing an employee over a compensation dispute may be costly. (We also noted that what's in the post would probably play out the same way under PA law.) You know about PA's strong at-will stance, right? You know what that means, right? And you know the exceptions, right? It's the last thing that is the subject of the post. Josh was an at-will employee who was fired. He sued, alleging wrongful termination (the basis for that is in the post). The court would not dismiss the suit. Also, another tip to remember when a wage dispute occurs is in the post.

TAKEAWAY: Don't think that just because the employment at-will relationship is over, all dealings with the employee are also concluded – wage issues might crop up, so be ready.

In the post on Tuesday 2/12/19 we learned that removal of voluntary OT could form the basis of a Title VII suit. We suggested that you watch what your #supervisors do – they may set up your business for legal liability! While the case in the post is not binding on us here in PA, its reasoning makes sense, so pay attention. Tamika was hired in 2002 and alleged that her supervisor was sexually harassing her starring the following year. (What he did/said is in the post.) Tamika reported it, but the company did not follow its own policy. And when the alleged harassing supervisor found out, he removed Tamika's ability to volunteer for OT. She reported that. Other employees were also in contact (what they told HR is in the post). The company then investigated and its findings and actions are noted in the post. More happened, Tamika complained again, with the same result. Then Tamika sued. The court's reasoning in finding that the denial of voluntary OT was an adverse action is in the post, including one action that probably sunk the employer's ship.

TAKEAWAY: Make sure your managers and supervisors know what they can and cannot do and say – since you will be held liable if they are on the wrong side of legal.

The post on Wednesday 2/13/19 told us why Association dues can spell “Bad News” for security clearance holders. And why is it, you might ask? Let's walk through it. Say you live in a community association (condo or homeowners) and fail to pay your dues. If there is no basis, that might affect your security clearance (as noted in the post). Other examples of violations that might also affect your security clearance are in the post. One final way a failure to pay your dues might come back to haunt or adversely affect your security clearance is near the end of the post and worth thinking about.

TAKEAWAY: It's not just failing to pay something you are supposed to pay (for services that benefit you), but it can have a much more far-reaching effect, including to your security clearance. Just pay the dues.

In the posts on Thursday 2/14/19, here, and here, we wished you a Happy Valentine's Day! We also suggested you not let the food or feelings interfere with the work to be done. What does that mean? It might be a day of fun, frivolity and food, but the work still needs to get done, professionally.

TAKEAWAY: Valentine's Day can bring to the forefront office romances – know what your policies are and enforce them.

The post on Friday 2/15/19 told us the ADA does not obligate an employer's on-the-spot accommodation of the employee's choosing. Huh? Ok, you know that under the ADA, both parties have an obligation to engage in the interactive accommodation process. But there are limits. Here, Melissa was a sorter and injured her back while unloading heavy packages from a UPS truck (yes, UPS in the news again). She went out on worker's comp leave and then a leave of absence. Upon return, she had doctors' notes as in the post. UPS started the interactive process and requested documentation from her but kept her on leave pending that. What happened after that is in the post. Melissa then sued for failure to accommodate and disability discrimination. Why the trial and appellate courts ruled against Melissa is in the post.

TAKEAWAY: The ADA accommodation process is interactive, which means that both the employer and employee must participate. If one stops, the other has no duty to proceed (and may have either a claim or a defense).

Finally, in the post yesterday 2/16/19 we read about RIFs, WARN, OWBPA, and disparate impact – an alphabet soup for a future downturn. We suggested that you know what the acronyms mean (and if they might affect you). Things to think about when the economy is good, to protect against an (eventual) downturn, include performance evaluations (the reasoning is in the post), the WARN Act (again, the reasoning is in the post), and 2 more things listed in the post.

TAKEAWAY: Have your plan for a downturn in place before you need it – and run it by an employment lawyer to make sure it's all legal.

Monday
Feb042019

ICYMI: Our Social Media Posts This Week – Feb. 3 - 9, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 2/3/19 we learned about having no hippopotamus for Christmas - employee requests for service animal accommodations. OK, the 'service hippo" is a bit extreme, but you still need to know how to respond if an employee asks to bring a service animal to the workplace, especially a non-traditional animal. The first step is defining "service animal". See the post for that. The next step is determining what is reasonable in each set of circumstances. The post uses one industry as an example – with an outcome that might surprise you.

TAKEAWAY: A reasonable accommodation request under the ADA starts the interactive process – that does not change when the request is for a service animal. Know all parties' rights and responsibilities and involve an employment lawyer to keep you on the right side of legal.

The post on Monday 2/4/19 told us that an employer’s litigation hold is not unlawful, NLRB advice says to ALL employers. But a directive for employees not to discuss a case which involved wage issues WAS unlawful. Beware how you fulfill your legal duty of preservation. So where does this all come from? Remember that the NLRB, which pertains to ALL workplaces when it comes to protected activities, was looking closely at handbooks and policy manuals. As part of that, in late December 2018 it released an Advice memorandum (from October 2018) evaluating an employer's directive that employees preserve all communications relative to a wage and hour class action matter. Exactly what the employer said to its employees is in the post. The employer also did something else noted in the post. One employee filed a charge alleging a violation of his Section 7 rights. The memo says that the first directive from the employer was unlawful; the reasoning is in the post. On the contrary, the litigation hold was not unlawful for the reasons in the post.

TAKEAWAY: Know what might be considered to interfere with protected rights, even in a non-Union workplace. Check with labor & employment counsel if you're not sure.

In the post on Tuesday 2/5/19 we asked: What if any are the requirements to serve on your homeowners or condo Association Board? Can a tenant be a Board member? What about an owner who is delinquent in paying assessments/dues? The answer is "it depends". On what the Association's Governing Documents say. One type of example is in the post.

TAKEAWAY: Know who is eligible to serve on the Board of your Association – contact a community association attorney if you need assistance with determining eligibility or amending Governing Documents.

The post on Wednesday 2/6/19 was a reminder about harassment in the workplace: document details and track complaints. In real estate, it's location location location. In the workplace, it's document document document. Whether hard or electronic, do it. Document EVERYTHING. An example of how this all plays out is in the post. Bridgette was one of the few females working on a service truck in her company (and the industry). The company policy promised confidentiality to the extent possible. Other handbook promises are in the post. Bridgette reported harassment and provided the details requested by management. What happened next is in the post. When Bridgette asked to take it further, the company gave instructions as to how to proceed; Bridgette didn't follow up. After she was discharged, she sued. The post tells how the court ruled and why.

TAKEAWAY: If you have in place a complaint procedure, make sure it is followed (by employees and management) to the letter. If there isn't one, put one in place (and follow it). Help yourself while there is time.

In the post on Thursday 2/7/19 we saw a Court grants judgment for employer where decision-maker was unaware of Plaintiff’s medical history. Often an employer is loath to act against an employee who has medical issues, but if done property, it is perfectly legal. In the post, the plaintiff was a team leader in the IT department. Colleagues knew about some of his medical issues (as outlined in the post). When a third-party found performance issues, the plaintiff was discharged. He sued for disability discrimination. How and why the court ruled are in the post.

TAKEAWAY: Any adverse decisions should always be based on fact, not a protected characteristic or what someone else says/reports.

The post on Friday 2/8/19 noted that independent contractor misclassification can result in big fines. Remember, labels aren't everything. A rose by any other name … Pick your analogy, you can't game the system. The game cost the companies in the post $3.2M.  The companies were all owned by the same person. He had drivers be hired as contractors by one of the companies and then assigned them to drive for the other 2 companies. How it worked is in the post. And why the settlement included reclassifying them as employees is also in the post.  

TAKEAWAY: There are ways to properly and legally establish an independent contractor relationship – discuss it with your employment counsel to make sure it is done right.

Finally, in the post yesterday 2/9/19 we saw that an FMLA claim was not barred by failure to tell proper manager about absence. So what happened? The plaintiff was hired as a supervisor, working under the director. She started treating for eye problems that related to diabetes. Eventually she received a severe diagnosis (see the post). That eventually led to her requesting, and the company approving, intermittent FMLA leave. When she needed to take it one day, she did not follow the required chain of command. She was fired. She sued for an FMLA violation. Why the court denied the employer's motion for summary judgment is in the post.   

TAKEAWAY: As in our Takeaway relative to the post on Wednesday, if there is a policy, make sure it is followed to the "T" by employees and management; if it isn't, it won't provide the support it is meant to.

Monday
Jan282019

ICYMI: Our Social Media Posts This Week – Jan. 27 - Feb. 2, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 1/27/19 we learned of a BIG settlement in failure to accommodate disability case. Six digits to the left of the decimal. A subsidiary of M&T bank will pay $700,000 (and other things) to settle the case with the EEOC. It all stems from the employer's policy of putting employees with disabilities or impairments on involuntary leave until receipt of a doctor's clearance for a full (no limit) return. Many employees with disabilities requested accommodations; how they were affected is in the post. Also, but one specific example is in the post. The court entered a consent decree that includes the $700,000 payment plus the other items listed in the post.

TAKEAWAY: Yes, you can have policies and evenly enforce them. No, you cannot enforce them even in the face of a law that tells you otherwise.

The post on Monday 1/28/19 was about a male Disney worker who claims his female boss harassed him. Yes, it does happen. What kind of harassment? Bullying him about his age, bragging about sleeping with married men in the office, and more in the post. Anthony says that the top execs and managers in his division were female, an anomaly when compared to the division's entire workforce. Specifically, Anthony alleges that his former boss called him a 'stuffy old fart", moved him office to a space without a window, and more (so much more!) noted in the post. To make it worse, he alleges that he was discharged after making a complaint to HR. Disney's statement denied the claims.

TAKEAWAY: Female on male harassment/discrimination is rare, but it does happen. Investigate and treat it just like any other matter – fully, honestly, and completely – and take action as warranted. Consult an employment lawyer if needed.

In the post on Tuesday 1/29/19 we read about a settlement in a retaliation case. Apparently tis the season … to settle. Here, the EEOC settled with a credit union, on behalf of a former bank manager, for $110,000. The suit alleged that it field Connie because she opposed, and assisted another in opposing, a racially offensive video for a training session. What was in the video? It's despicable and in the post. Of course, so is the action of the credit union (as in the post).

TAKEAWAY: Before taking adverse action against an employee, especially one in a protected class, consult an employment lawyer – it will save you heartache and money in the short- and long run.

The post on Wednesday 1/30/19 warned to make sure your Association can deal with this type of holiday decoration situation. Your Bylaws or Rules/Regulations probably already limit how early (before a holiday) decorations can be put up and how long after the holiday they may remain up. Right? (If not, they should; contact Austin Law firm if you need help with this.) What would you do if a situation like in the post happens? What if it conforms to the Bylaws/Rules & Regs? Uh-oh.

TAKEAWAY: Cover your bases to the extent you can, but know that not everything can be dealt with beforehand. That's Association life.

In the post on Thursday 1/31/19 we saw that a former Marriott exec says he was forced to dance for colleagues. Daryl, an African-American former sales executive, was hired in February 2017 and sold timeshares. He had over 20 years' experience and was a good performer. Marriott made promises as to what would happen after training (see the post), but instead of keeping those promises, this happened (see the post). Further, during sales meetings, his director of sales told him to dance when music was played, often the type of music in the post. Oh, that's not all. There is more in the post, including how his boss tried to justify it all. When HR wouldn’t tell him the results of the investigation he demanded, he quit and sued.

TAKEAWAY: Know what your employees are doing and saying – and when there is a complaint, investigate and take appropriate action; don't be an ostrich!

The post on Friday 2/1/19 told us the Mariners were hit with a lawsuit alleging race and gender discrimination. We noted that this might be fun to follow ... Well we already know that professional sports are indeed a world unto themselves. But in that world, discrimination apparently exists. Lorena became employed with the Seattle Mariners baseball organization in November 2017 as Director of High Performance; in that role, she reported to the GM. Her complaint alleges that after she was hired, the GM and other execs reduced her duties and authority, including those things listed in the post. One big thing that fed into the gender discrimination allegation? See the post. The allegations also include derogatory comments toward the Latino community and females, including calling her a "cocky Latina" and saying the thing in the post. After she was discharged (without notice) in October 2018, she sued.

TAKEAWAY: At-will employees can indeed be fired for no reason and with no notice – but make sure they don’t fall into a protected group that might lead to charges of discrimination. Consult an employment lawyer to be sure.

Finally, in the post yesterday 2/2/19, we affirmed that leaving work early due to fear of rush hour traffic is not a reasonable accommodation. Ok, stop laughing. When Heather was pregnant, she had a panic attack while driving home in rush hour. Her supervisor changed her work hours until after she gave birth. And what else did the employer do to help her for the entire next year? See the post. Then a new supervisor came into the picture and changed her schedule. She asked for an accommodation so she would not have to drive in rush hour. The employer denied it on the basis listed in the post. Heather quit – and sued. The case went up to the federal appeals court before the decision in the post came out.

TAKEAWAY: It's great to do more for an employee than the law requires, but beware taking it away as that may then come back to bite you – hard.

Monday
Jan212019

ICYMI: Our Social Media Posts This Week – Jan. 20 - 26, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 1/20/19 we learned 13 ways to improve written warnings and manage employees better. Yep. Written warnings – those things you use to record when something needs to change, how it should change, and when the employee was advised of it. Written warnings should be a guidepost for the employee and a record for the employer. So how to make them better for both? First, be specific about the offending conduct. The rationale and use of the details are in the post.  Next, provide the real reason for the warning (and not what sounds better). As noted in the post, do this to protect the company in case of any future litigation. Third, connect the employee's conduct to a rule or policy. Again, this helps with uniform enforcement and provides a defense in case of potential future litigation. Ten more tips are in the post – read and use them.

TAKEAWAY: Written warnings are not just busy work – they can make or break defense of a lawsuit, so help yourself before there is a suit by improving the warnings.

The post on Monday 1/21/19 told us about a settlement in a racial discrimination suit against a former car wash owner. The post follows and updates our earlier post. If you recall, the managers were accused of discriminating against Hispanic employees and making them work at the managers' homes for no extra pay. The settlement involves payment of $300,000 plus the other things in the post. And will former employees share in the largesse? See the post. To recap, some of the allegations were that employees had to drink unfiltered water, use a unisex bathroom that had a camera, and more in the post. The former owner entered into a settlement prior to this one (perhaps because he wants his pending medical cannabis dispensary license to be approved?).

TAKEAWAY: Don't treat one group of employees worse than any other group – it will come out and you will be worse off than had you just played the game legally. Consult employment law counsel if you are not sure how to proceed.

In the post on Tuesday 1/22/19 we suggested that you know who is responsible to repair what damage to a unit within a homeowner or condo association - and what happens if insurance is involved. The first step is always to check the Governing Documents (Declaration, Bylaws, Rules and Regulations). Knowing what applicable state law says is also helpful. And then look at the insurance policy to see what is covered. How that might play out is walked through in the post. And, if necessary, consult an attorney if more than one insurance policy is involved to ensure both pay what they should be paying. The post gives some examples.

TAKEAWAY: Damage is both emotionally and financially draining – make it easier all around by knowing where responsibility lies for what items.

The post on Wednesday 1/23/19 told us that UPS is to shell out $4.9 million to settle a religious discrimination lawsuit. What was the suit about, you ask? Allegedly UPS excluded employees from certain religious groups, including Muslims and Sikhs, from promotion opportunities and based it on an appearance policy. The post details more religious groups who were allegedly excluded. The post also mentions the appearance policy that was supposedly violated by the subject employees – but of course UPS forgot that religious beliefs can trump a company's rule. How it did that, and what it did instead, are in the post. The suit was filed in mid-2015 and recently settled.

TAKEAWAY: In case you didn't get it the first time we said it, we will say it again: treat all employees the same – unless there is a valid legal reason for different treatment. And then double-check with employment law counsel to keep you on the right foot.

In the post on Thursday 1/24/19 we saw that the NLRB General Counsel upholds workplace civility rules. And yes, this applies to non-union workplaces too, so you care.  Unsure what "workplace civility" means? The NLRB was applying it to rules enforcing a positive workplace even though it got knocked down by several court decisions. But now things have changed – and the General Counsel issued a memo on the change. The post has more detail on the background and the rule at issue. Before the change, the rule would have been found in violation of the NLRA; now, not so. Good news for employers. See the post for an outline of the type of wording that now passes muster.

TAKEAWAY: To ensure your policies do not run afoul of the National Labor Relations Act, even in a non-union workplace, consult with labor and employment law counsel.

The post on Friday 1/25/19 told us that a woman claims in a lawsuit that former boss forced her to adopt Scientology. Was this legal? Julie worked as a receptionist at a physical and occupational therapy business. She filed suit alleging that Jeff, her boss, forced her to adopt Scientology or forego a raise and promotion. Examples of what happened are in the post. She did not adopt Scientology. What she says happened next is in the post. So far there is no response to the suit by her former boss.

TAKEAWAY: Managers can believe in whatever religion they want, but they cannot force their beliefs on others if it violates the others' religious freedom and beliefs. Train your employees.

Finally, in the post yesterday 1/26/19, we learned that Jackson Energy agreed to payout for injured Meridian dispatcher in EEOC disability discrimination case. Apparently both the first and the second times are the charm. The energy company agreed to its second settlement with the EEOC in 2018. So what was this one about? Jackson fired Penny in November 2015. At that time she was recovering from surgery and needed PT. More of the background is in the post. To return to work, Peggy asked for what she thought was a reasonable accommodation, but the company refused. What did it say was the undue hardship? See the post.  

TAKEAWAY: Wow, let's say it yet again – treat all employees the same, and take seriously any request for accommodation, especially when it's an easy one to grant/approve. Talk to your employment law counsel before s/he becomes your trial counsel.

Tuesday
Jan152019

ICYMI: Our Social Media Posts This Week – Jan. 13-19, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 1/13/19 we continued the post-holiday theme with ... Moving up the naughty list: following your policy can provide a complete defense. Do you have a (progressive) discipline policy? Do you follow it uniformly? These are important questions. In the case in the post, Todd, over 40 with OCD and bipolar, worked at a hospital with a progressive discipline policy. He quickly moved through the steps; after a certain violation (listed in the post), he was discharged. Todd sued under the ADEA and ADA. The hospital moved for summary judgment. The federal appellate court's rationale is in the post.

TAKEAWAY: Have a discipline policy and use it uniformly.

The post on Monday 1/14/19 was about qualification standards vs essential functions: one can lead to suit for alleged violations. Know the law. Yes this all goes back to those pesky (not really) job descriptions. You must know the difference between an essential function of the job (which should be in the job description) and a qualification standard used for an ADA accommodation. The post explains the difference according to the EEOC. For examples of each, including a court decision, also see the post.

TAKEAWAY: Make sure your job descriptions and accommodation efforts are both based in reality – consult employment law counsel before you are in court.

In the post on Tuesday 1/15/19 we thought: His, hers, other. SCOTUS will hopefully revisit this and provide a final decision. This plays out every day all around the country: someone who was born one gender and transitioned or is in the process of transitioning but identifies as the new gender, uses the restroom of the new gender. Someone else gets upset. Suit is brought. The background in the case at issue is in the post. The Third Circuit Court of Appeals, which governs PA. upheld the policy enacted by the schools (which is detailed in the post). Now the case is at the Supreme Court. Soon we may all know if Title VII (and Title IX) protect transgender persons. The question is whether the word "sex" in the statutes is expansive enough to include gender identity, something that was not at all thought about at the time the statutes were enacted. More background is in the post.

TAKEAWAY: Not knowing how SCOTUS will rule, the best way to act relative to transgender employees is just to treat them like every other employee.

The post on Wednesday 1/16/19 asked: can an Association dictate the type of replacement window? When you live in a house that lies within a planned community, with a homeowners' or condominium association, the answer is "it depends". The first thing to do is review your Governing Documents – the Declaration, Bylaws and Rules/Regulations. See the post. Those documents might answer your question. If not, consult a community association lawyer (like Austin Law Firm).

TAKEAWAY: Before you buy into a planned community, know what you will or will not be able to do as concerns your future home – you will be held to it after purchase (and can hold other owners to the same things).

In the post on Thursday 1/17/19 we saw that an employer must reinstate former employee who shared staffing concerns with media. Note that this might well go beyond the health care industry, so be careful even in your non-union workplace. Yes, this is a decision from the NLRB. Yes, you are a non-union workplace. But yes, you need to pay attention because some portions of the Act apply to ALL businesses, union or non-union. See the post for statutory reference. So what happened? Karen-Jo was a hospital activities coordinator. She contacted a newspaper as to coworker concerns about the hospital's staffing. When it was printed, she was fired. She filed a charge with the NLRB. After a 2-day trial, the ALJ issued a decision. His rationale is in the post and can easily be extended beyond the health-care industry

TAKEAWAY: We will say it again: even non-union businesses need to heed the protections given to employees in some portions of the NLRA – contact employment law counsel if you think something in your business might be implicated.

The post on Friday 1/18/19 was about how to fire someone fairly: Document your decision. In real estate, it is location location location. To employment law attorneys, document document document. As noted in the post, documentary support can win a case for you. Here, Detra, a teacher, took FMLA leave for several conditions. The first time, she completed an FMLA form and it was approved. The rest of the background is in the post. When an issue relative to the approved FMLA leave arose, Detra complained and … see the post. Then, after what happened as in the post, Detra was discharged. She sued. How and why the court ruled are in the post.

TAKEAWAY: An employee against whom adverse action is taken may be considering filing an administrative charge or suing, or may actually do it; you need to be prepared to support your decision as being legal.

Finally, in the post yesterday 1/19/19, we saw an employer was to pay $80K to settle an EEOC sexual harassment case. We also noted that sadly, quid pro quo harassment lives on. Here we saw that Nick, a former manager at a Subway location, sent text messages to two 17-year-old female job applicants. What the messages said is in the post. The EEOC ended up filing suit. The post also lists the terms of the settlement.

TAKEAWAY: Know what is legal and train your employees – don't wait until you are adefendant in a suit.