ICYMI: Our Social Media Posts This Week – May 12-18, 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 5/12/19 we learned that when attendance is essential, intermittent extended leave is not reasonable. (I noted I could easily see this being decided the same way in PA.) So what happened? The Plaintiff was a full-time paraprofessional for a school system. The employer documented her absenteeism and tardiness. A meeting was held to discuss the problems and a warning was given. A year or so later, there was another meeting and another warning. Shortly after that, she requested intermittent leave for the next year for a serious health condition. The reason the request was denied is in the post. She was eventually suspended without pay, but not discharged. She sued on the bases in the post. The court wasn't buying it, even on appeal. It noted comments about absenteeism in most of her performance reviews. The eventual finding is also in the post and makes complete sense.

TAKEAWAY: Know what is and is not an essential function of the job; ensure that the job description is correct and current.

The post on Monday 5/13/19 was in keeping with the same theme and taught that 24/7 availability can be an essential function. Here, a law-enforcement employee had PTSD from military service. How it manifested is in the post. He asked for numerous accommodation requests, but they were denied. The last incident is in the post; it preceded termination. He sued for ADA violation. The courts did not rule in his favor. Why is in the post.

TAKEAWAY: Let's repeat what we said for the prior post: know what is and is not an essential function of the job; ensure that the job description is correct and current.

The post on Tuesday 5/14/19 asked: Can an association mandate removal of life-size bronze eagle from backyard. In this case, the eagle was displayed by a veteran. He said the ARC okayed it (with conditions noted in the post, which he agreed with). Then the Association overruled and told him to remove it.

TAKEAWAY: Life in a planned community is all about abiding by the Governing Documents, including the process to be followed for various things including landscaping and architecture – know the rules of the community.

The post on Wednesday 5/15/19 noted an employee called "stupid Egyptian" gets to go to trial. No surprise. Curious about the facts? Nashaat was assistant director of risk management for a hospital. He said evals for 4 years said he was "fully competent", but changed under a new supervisor. Nashaat alleged discrimination because he is Egyptian. What the supervisor said is in the post. The trial court entered judgment in favor of the employer on the basis set out in the post. The appellate court reversed because of the factual dispute. Surrounding the supervisor's statement.

TAKEAWAY: Loose lips can sink not only ships, but also employers. Train employees what to say and not to say.

In the post on Thursday 5/16/19 we read about a $322K settlement in EEOC suit for  racial discrimination, harassment and retaliation. The other party was a seller of officially-licensed sports merchandise. It allegedly had a racially divided workplace and subjected employees to racial slurs like that in the post. And then HR got into the act; see the post. Despite complaints, management did nothing. And now the employer is paying out much more than nothing ($322K and more in the post) to settle the suit.

TAKEAWAY: We seem to keep repeating ourselves: train your employees what they can and cannot say.

The post on Friday 5/17/19 noted "Fat shaming" costs employer big bucks. It’s the bases on which this suit was NOT filed to which employers should be alert … A restaurant server in Vegas filed suit, claiming that a sign (with the language in the post) was left out, despite repeated requests to management. The trial court granted judgment for the employer (the Bellagio), but the appellate court allowed the count for intentional infliction of emotional distress go forward. Then the jury got into the game, awarding him $500,000.  The post author then analyzes the IIED claim element by element and comes around to …

TAKEAWAY: Teach employees what they can and cannot say and be careful that things don't cross the line to disability discrimination.

Finally, in the post yesterday 5/18/19, we entered a dangerous game for employers: wage and hour law. Why? Because a loss can be so costly, employers should try to reduce if not eliminate risk for liability. The possible branches on how to do that are in the post.

TAKEAWAY: Before you roll the dice with wage and hour law, contact an employment lawyer to assist you.


ICYMI: Our Social Media Posts This Week – May 5 - 11, 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 5/5/19 we learned that the NLRB weighed in on confidentiality, personal use of company email, and other workplace policies. And yes, this applies to all workplaces under Section 7, so read this. The first subject touched upon was handbook confidentiality – just don't. Next were workplace rules – one on payroll confidentiality and the other banning the use of the employer's emails, even during non-work hours. How the NLRB opined on the first is in the post. As to the second, it implicates Purple Communications and id discussed in the post. Another rule was upheld under Section 7 – this is important to most employers, so see the post. Other rules discussed had to do with clothing, handling of confidential information, media relations, and personal cell phone use – see the post for details.

TAKEAWAY: Even for non-union workplaces, Section 7 applies, so make sure you vet policies with employment counsel to ensure legality.

The post on Monday 5/6/19 told us an employer settled an EEOC suit with $60K and apology letter to trans applicant. The suit was filed against A&E Tire on the basis of sex discrimination. It alleged the offer of a job to Egan with the requirement of a background check. What they learned is in the post and resulted in him not being hired (but instead hiring someone else).

TAKEAWAY: PA does not yet consider discrimination on the basis of sexual orientation to be illegal, but it might soon – and the Supreme Court might also decide that in the cases it recently accepted for argument.

The post on Tuesday 5/7/19 kept the same theme; it was about a judge tossing a sexual orientation bias case against Parx Casino (based on the status of the law now in PA). A casino worker brought suit, claiming discrimination due to her sexual orientation. She is an African-American identifying as lesbian with a "masculine gender expression". The type of conduct she endured is in the post. After she was fired, she sued. The Court felt compelled to dismiss on the basis in the post, but noted that the future might hold a different result in other cases.

TAKEAWAY: Even though this type of discrimination is not yet illegal in PA, the best way to proceed is to have a valid basis – other than sexual orientation – to take adverse action.

The post on Wednesday 5/8/19 was about what happens when a candidate for the Association Board has already been on for many years? Do you know PA law? Your Governing Documents? It is not uncommon for the same people to remain on the Board for many years – primarily because nobody else volunteers. So the question is, what happens if one of those long-serving Board members will not (or cannot) renew and there is an open position? The post talks about that under its circumstances.

TAKEAWAY: Know what state law and your Governing Documents provide for eligibility for the Board and also to fill open seats. Consult a community association lawyer to assist.

In the post on Thursday 5/9/19 we talked about age discrimination: what it looks like and what to do when it happens. AKA, what employers, employees, and applicants should keep in mind. For federal purposes, the age for discrimination purposes is 40. Yep. Most of the time age discrimination is not blatant, but more circumspect. For example, "I’m not sure you've heard of this modern invention called email" and several other things noted in the post. And what can be done about it? It starts with everyone knowing their rights (for employers, what they can legally do and for employees and applicants, how to respond if they feel that discrimination occurred). Other tips are in the post, including how to fight age discrimination.

TAKEAWAY: Let's say it again: everyone must know what employers can and cannot do (legally) and the rights of employees/applicants if they feel discrimination has occurred. Employment lawyers can help with both situations.

The post on Friday 5/10/19 was about reasonable accommodations: a jury verdict provides practical lessons. The plaintiff in the case in the post had a mental health disability and alleged discrimination as a result (for failure to reasonably accommodate her). Details are in the post. The jury – yes it went to a jury! – came back big for the plaintiff. The actual award is also in the post.

TAKEAWAY: Know how to respond when the ADA is implicated – don't wait for a jury to tell you what you did wrong.

Finally, in the post yesterday 5/11/19, we asked: Does Title VII protect hetreosexuals from discrimination?  Hmmm. What if s/he is expressing an opinion that is bigoted? The post mentions a post that might occur on social media and asks how an employer, who is LGBTQ, might respond. Can the employee be disciplined? And fired if s/he complains about the discipline? This actually happened. What was ironic was that the plaintiff had to argue that Title VII protects against discrimination on the basis of sexual orientation (since it was being eminently hetero that resulted in the bigoted posts). How and why the court ruled is in the post.

TAKEAWAY: What an employee says may be protected, but where and how it is said may not. Consult an employment lawyer to ensure any adverse action in this type of situation is legal.


ICYMI: Our Social Media Posts This Week – Apr. 28 - May 4 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 4/28/19 we saw that a worker's accommodation request negates a "regarded as" claim. Know how the law works. Here, an UPS employee injured his shoulder and was on narcotics. He could not return to his regular position. He started the ADA accommodation process. How that progressed is in the post. How and why the court analyzed the facts as it did are also in the post.

TAKEAWAY: Remember, the employer does not need to provide the accommodation requested by the employee or create a new position; it only needs to provide a reasonable accommodation (absent undue hardship).

The post on Monday 4/29/19 was about a City hit with a $7 Million sex discrimination verdict. Not settlement, verdict. Ok, it was in LA, but still, a verdict! Lili was a former police chief; she alleged sex discrimination over 14 years of service. It included comments from department members that are noted in the post and that they mocked her Peruvian ethnicity. Oh yes, there's more; see the post for the mayor's text after Lili was fired. She sued and the jury returned this verdict.

TAKEAWAY: Train your employees, all of them, and don't make snide comments; it doesn’t play in your favor when heard by a jury.

The post on Tuesday 4/30/19 was about condo owners who have had it with contractor delays. Know who - builder, Association, owner - has what obligation of repair, replacement, and maintenance. So what was at issue here? Sloppy work around a utility box, siding no longer attached, and more noted in the post. Nobody would want to live in a place with all of those issues. The association members certainly didn't, especially when their basements flooded. The contractor had comments – see the post. That doesn’t help the owners.

TAKEAWAY: Make sure all work is to be done by reputable contractors; consider getting insurance or a bond if the job is beg enough.

The post on Wednesday 5/1/19 noted that bashful bladders bring problems for employers. Yes you really should read this. And yes, it is about marijuana in the workplace. Can employers take action if a worker is a legal medical marijuana user? What about drug testing policies? The post notes some laws that may come into play for pre- and post-employment drug tests, including urine tests. What if the employee takes a while trying to provide the sample, so the monitor checks to see what's happening. The employee still cannot provide a sample because of a shy bladder (or undisclosed medical condition). Is that really the case or is it drug use? In one, the ADA or ADEA may be implicated; in the other, not. The types of things that should happen if this is a medical issue are in the post; employers should take heed to stay legal.

TAKEAWAY: Make sure you know what you can, cannot and must do when marijuana enters the equation – consult an employment lawyer to be sure.

In the post on Thursday 5/2/19 we read about being fired for violating HIPAA, not FMLA. The plaintiff was a medical secretary in Pennsylvania; she requested and was approved for numerous periods of intermitted FMLA leave to care for her daughter. In July, she asked for more frequent leave; that too was approved in September. After that, a patient filed a complaint about the plaintiff; the substance is in the post. The employer investigated the complaint and found it to be credible – and a violation of policy. The plaintiff was terminated and then sued, alleging FMLA interference. The allegations are in the post. Also in the post is what happened with plaintiff's requested FMLA leave. The court looked at that and the proximity of FMLA leave to the discharge; the analysis is in the post, along with the intervening event that made the discharge legal.

TAKEAWAY: Even when there is a legitimate, nondiscriminatory reason for adverse action, make sure to follow the entire process – it can only help your defense in case of suit.

The post on Friday 5/3/19 was about I hate my boss: federal court shuts down ADA request for less stressful boss. We all know that the ADAA broadened the scope of disability and made it possible for ore employees to claim coverage under the Act. What we also all know is that doesn't mean every single employee is entitled to protection. Here, Carol worked for Caterpillar for 19 years. In 2015 she started to report work-related stress. She took FMLA leave. Upon return, the company took the steps noted in the post. Her work did not improve so she was put on a PIP. She complained (see the post for the reason) and then alleged retaliation was visited on her. She took a leave of absence and was able to return without doctor's restriction, but with a recommendation noted in the post. She then parlayed that into something a bit bigger, which the company refused. It continued to refuse her request even after another approved leave. She retired and sued. The appellate court ruled in favor of Caterpillar on the ADA claim; its reasoning is in the post. It also let the retaliation claim go forward; again, its reasoning is in the post.

TAKEAWAY: Know what is required for eligibility for ADA protection and what might be deemed a retaliatory action – protect yourself against both.

Finally, in the post yesterday 5/4/19 we saw that an employee's strong performance record keeps ADA suit alive. Know how the facts will (or may) play out. The plaintiff was a dental practice manager with many positive performance reviews over 11 years. The latest? See the post. She told HR of a medical diagnosis (the post mentions what and the accommodation she would have needed) and was fired just over a week later. The court denied summary judgment to the employee for the reasons noted in the post.

TAKEAWAY: It's always a good idea to have support for an adverse action – but not support for a claim that the action was illegal. Talk to an employment lawyer about the adverse action, basis, and timing.


ICYMI: Our Social Media Posts This Week – Apr 21 - 27, 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 4/21/19 we learned that FMLA harassment is not actionable without missed leave. Let's look at that more closely. Here, Nancy was a medical secretary at Temple for over 8 years. She requested, and was approved for, leave to care for her daughter. The February 2016 approval was as noted in the post. Then in July 2016, Nancy requested more – see the post. It was granted. But Nancy alleged that her supervisor took actions that are illegal – her allegations are in the post. Eventually Nancy sued for FMLA interference on the basis in the post. The key to the ruling is in the post – and should be noted by every employee and employer. The court also dealt with Nancy's retaliation claim and the basis for its ruling there is in the post.

TAKEAWAY: Make sure each element of a claim is present – know what each party must prove under the statute. Consult an employment lawyer for help.

The post on Monday 4/22/19 told us there are times hidden cameras can record employee behavior—but not always. What about a camera in a hospital that captured patients undergoing sensitive procedures including Caesarian births and hysterectomies? Hmmm, it depends (on the totality of facts). Here, the recordings even caught patients' faces during the procedures listed in the post. Why did the hospital do that? Its statement is in the post. Is that sufficient? Well, it depends on the many things noted in the post, including what was the least intrusive way to accomplish its goal.

TAKEAWAY: If you as an employer are going to use hidden cameras, make sure the process you use to notify employees is legal and transparent – consult an employment lawyer to cover your legal bases.

The post on Tuesday 4/23/19 was from the courtroom: ADA accommodation do's and don'ts. Pay attention. Ok, you know all about the ADA and reasonable accommodation process, right? Hmmm. Here are a few reminders. First, take all accommodation requests seriously. When Kecia was told she would be terminated without providing evidence of her medical recovery, she complied (to a degree). The employer's actions are in the post. She sued and the suit was allowed to go forward. Some more tips (and cases) are in the post.

TAKEAWAY: Know how the process works and follow the steps – don't skip anything and make sure to get all necessary facts.

The post on Wednesday 4/24/19 was about issues to be considered when re-writing Governing Documents. Community Associations (homeowner and condo) need to ensure that the Declaration, Bylaws and Rules/Regulations are up to date, both from the legal compliance and operational viewpoints. Things may have changed since the community was built. Some of the reasons to amend (or re-write) the documents are in the post.

TAKEAWAY: The Governing Documents are living, breathing documents – make sure yours are legally compliant and functionally reasonable and appropriate for your Association – consult a lawyer well-versed in community association law (such as Austin Law Firm) for assistance.

In the post on Thursday 4/25/19 we learned about a settlement in EEOC suit alleging Arby's female teen workers subjected to sexual harassment. Who settled? The owner of more than 51 restaurant franchises in several states. The suit filed by the EEOC alleged that 3 female teen employees were "regaled" by their male team leader with sexual acts he wanted to perform with them and more (yes, more, ugh) as in the post. They complained; it did not stop. What the settlement involved is in the post.

TAKEAWAY: Train your employees as to what they can and cannot do – and if they act inappropriately, take action.

The post on Friday 4/26/19 was about PA medical marijuana & workplace implications. We said you need to know about this. Remember that while it is legal in PA, it is not under federal law. That that is why there are issues in the workplace. The PA Act prohibits employers from taking adverse action against an employee solely based on being certified to use medical marijuana. What it does NOT require employers to do is in the post. How the Act intersects, or contrasts, with federal law that may also apply is causing problems for many employers – and is working through the legal system. Read the post and contact your attorney. 

TAKEAWAY: Make sure your policies and processes comply with the PA Act, but also know what you may or may not do under various federal laws – and then consult an employment lawyer to be sure.

Finally, in the post yesterday 4/27/19 we learned that an Anthropologie employee dubbed 'mom' gets age claim revived. We reminded you to train your employees! Blair was 54 when she was hired. She said she was often called "mom" by other employees, even after she told them not to. And when she showed interest in a promotion, a manager told her (see the post). She reported that and eventually got the promotion. But then the employer retaliated as in the post. She sued. The trial court dismissed her suit, but it was reinstated on appeal.

TAKEAWAY: Training should cover many aspects that managers might encounter, I including harassment, discrimination and complaints of same, along with how to (re)act when those come up. Do not allow ostriches!


ICYMI: Our Social Media Posts This Week – April 14 - 20, 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 4/14/19 we learned that a jury may hear claim that Costco managers ignored disability harassment. Ouch! Here the employee had Tourette's syndrome and OCD. He alleged that his co-workers mocked him; what he alleged about Costco's response is in the post. In allowing the case to go to a jury, the appellate court sided with other federal courts permitting assertion of a hostile work environment claim under the ADA. Why the court ruled that way is in the post.

TAKEAWAY: Hostile work environment does not mean hell, but it does still mean something. Consult an employment law attorney about your situation.

The post on Monday 4/15/19 told us an employer will pay $70,000 to settle sexual harassment lawsuit. We suggested that you just look at the underlying allegations. And what are they? That for about a year and a half, a supervisor demanded sexual favors from 2 non-English-speaking Hispanic female employees. And more discussed in the post. And when one employee refused, she was fired. The EEOC sued.                                                                                     

TAKEAWAY: Train your employees what to do and not to – and make sure they toe the line. Otherwise you will end up in hot water.

The post on Tuesday 4/16/19 was about a woman who lied about her identity and stole $50K from Hollywood Condo Association. We asked: Are your controls in place? The woman served as Association treasurer. Late last year, someone looked at bank statements. What they noticed is in the post.

TAKEAWAY: Make sure you have checks and balances, controls, in place in your Association. Discuss them with a community association lawyer to ensure your risk is minimized.

The post on Wednesday 4/17/19 alerted us to EEOC proposed changes – we suggested you read it. What changes? Expanding use of the electronic portal, clarifying the meaning of a "no cause" dismissal, and more listed in the post. How the changes will play out are also in the post. The comment period extends through 4/23/19. 

TAKEAWAY: Assuming these changes occur, you need to know if and how they will affect you. Pay attention.

In the post on Thursday 4/18/19 we learned that Netflix faces a pregnancy discrimination case. What happened? Tania developed original content for Netflix starting mid-2018. She says that she told her boss about her pregnancy. What he did allegedly after that is in the post. Of course Tania then complained to HR who told her to go discuss the situation with her boss; HR also … see the post. When Tania asked for a transfer, it was denied and she was fired. The saga continues …

TAKEAWAY: Remember that pregnant employees are protected – do what is required and discuss adverse action with an employment lawyer before acting.

The post on Friday 4/19/19 told us that an employer may be liable for harassment by a non-employee. Yep. Employers must protect employees, even if it involves third parties, if they know about the behavior. Here Ms. Gardner worked for an assisted living facility as a CNA. She had appropriate training and experience. She was assigned to work with a patient who the employer knew was more aggressive toward female caregivers, would sexually assault them by grabbing their private areas, and more (yes more!) in the post. Gardner was one staff member who complained. What was the employer's (completely inappropriate and unbelievable) response? See the post. A bad and escalating incident is described in the post, including alleged comments made. Gardner then asked not to provide care for that resident anymore; her request was denied. She went to the ER as a result of injuries from the big incident and was out for 3 months. Soon after her return, she was discharged. The bases given for the discharge are in the post. Gardner filed suit. The appeals court allowed it to proceed since the harassment was known to the employer. The post also mentions another situation where an employer was held liable for third-party harassment.

TAKEAWAY: Create a safe environment for employees by having an anti-harassment policy in place, train everyone on the policy, respond to complaints, and act as appropriate.

Finally, in the post yesterday 4/20/19 we learned that a 600-lb bus driver lost his job and lawsuit. Is obesity covered by applicable law? We asked if you know how this would play out in PA? Ok, so what happened? Corey had never been determined to be disabled and had passed every physical since he was hired as a bus driver in 2005 – and had never weighed less than 500 pounds in that time. In 2015, that changed. See the post for what happened, including a second doctor's opinion (that supported the first). He sued and included a hostile work environment count. Why? Because of the comments from colleagues noted in the post. The court did not find in his favor on any counts; its reasoning is also in the post and makes a good but quick read.

TAKEAWAY: For an adverse decision to be illegal, it actually has to be against applicable law. If you are not sure of your position, consult an employment lawyer.


ICYMI: Our Social Media Posts This Week – Apr. 7 - 13, 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 4/7/19 we asked about firing after FMLA leave? Expect a lawsuit. Well, it depends on the facts. In the post, Heather took FLMA leave 3 times in 2015.  She returned to work timely after the last of her leave. When she experienced pain, she went to her doctor; she then gave his note to the employer. The employer then did this (see the post). Heather sued. The reason the court let the case go forward is in the post.  

TAKEAWAY: Employers should make sure that adverse actions are proper and supportable – make sure they do not put your head on the legal liability chopping block.

The post on Monday 4/8/19 was about the new FLSA salary exemption threshold. Yes, you need to know this. DOL set the threshold at $35,308/year. The effective date is in the post. The weekly amount that breaks down to is also in the post. There are also other proposed changes that are detailed in the post.

TAKEAWAY: The numbers are probably a good compromise, but whether or not you believe that to be true, you need to know when overtime will kick in for non-exempt employees.

The post on Tuesday 4/9/19 noted that an employment decision based on years of service does not necessarily violate the ADEA. This decision came to us from the federal appellate court that takes precedence in PA. So what happened? The Virgin Islands enacted a law to reduce payroll but continue to provide necessary public services; the law also encouraged government employees with at least 30 years of service to retire. What retirees would get is in the post. Also in the post is what would be required of those who declined to retire. Some challenged the latter as an age violation. The Court said that the plaintiffs had to prove age was a "but-for" cause of the action at issue. It then went on to analyze whether the statute was age-based and why or why not, as in the post.

TAKEAWAY: Just because an action may seem to impact older employees disproportionately does not mean that it is illegal – the legitimate purpose underlying it may keep it on the right side of legal.

The post on Wednesday 4/10/19 was about a community fed up with emotional support animal "loophole" and asked: What's an Association board to do? The answer is, as is often the case, it depends. On what, if any, provision in the Governing Documents applies. On what, if any, state law applies. On the applicability of the FHA to the situation. The example in the post is but one way things could play out.

TAKEAWAY: The issue of emotional support animals has legal significance; consult a community lawyer for proper analysis and determination.

The post on Thursday 4/11/19 told us that Cummins is to pay $77K in discrimination suit after charges of paying woman less than counterpart. This author would love to know the 'legitimate reason" for the differential! So what happened? While the woman was employed, Cummins did a salary review at her request to determine if her salary was appropriate. What the review found is in the post. No action was taken after the review. At the time she resigned, the woman was still being paid less than the male counterpart. Cummins' statement is in the post and leads to this author's comment above.

TAKEAWAY: Settlements without admission of liability are common; they allow the employer to move forward while resolving the one case at the forefront.

The post on Friday 4/12/19 was a reminder: the FMLA allows leave to care for an adult child. That comes on the heels of a University agreeing to settle a claim for just under $60K. The claim came after a custodian asked for leave to care for an ailing adult child; the University fired the employee during the protected leave period. What the University agreed to besides the monetary payment is in the post.

TAKEAWAY: The FMLA leave provision to care for a child does not require the child to be under 18; rather, as long as the adult child cannot take care of him/herself, the parent can take protected leave.

Finally, in the post yesterday 4/13/19 we learned that an employer that brushed off sexual harassment as 'playful' paid $150K to settle a claim. (We also noted that's expensive "play".) The EEOC brought the case, alleging that a supervisor routinely subjected women to verbal abuse and more listed in the post. Repeated complaints sat for months. Once, a supervisor told the complaining employee that the offender was just being "playful". How that played out is in the post.

TAKEAWAY: Don't let this happen to you; train managers and HR how to handle complaints and bring in an employment lawyer where necessary and appropriate.


ICYMI: Our Social Media Posts This Week – Mar. 31 - Apr. 6, 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 3/31/19 we saw that a federal court says disclosure of depression triggered FMLA obligations. We suggested you know when you have to act – which does not mean the employee has to use the acronym FMLA. So the question is, what does the employee have to do or say to trigger the employer's obligations under the FMLA? Here, Hannah told her (government) employer early on that she had depression. At some point, her attendance suffered and her behavior changed (how? See the post). Even though her doctor requested a medical leave, the employer referred Hannah to the EAP. More things happened relative to her condition and FMLA leave (as detailed in the post), and eventually she filed suit. The court let the FMLA interference claim go forward for the reasons noted in the post.

TAKEAWAY: Know when an employer's obligations under the FMLA kick in and what it has to do; consult an employment lawyer to be sure.

The post on Monday 4/1/19 was not a joke; it told us that an employer wouldn't hire women because they 'complain and make trouble,' says the EEOC suit. American Freight and Mattress allegedly intentionally excluded women from certain jobs (noted in the post). How? Corporate told store managers that women "complain and make trouble" and should not be hired. And that's not all – other "instructions" are in the post. Is it any wonder suit was filed?!?

TAKEAWAY: Train your employees and make sure they act as they are trained to act – their failure is your liability.

The post on Tuesday 4/2/19 asked: Must Association Board members be full-time residents? As you guessed, the answer is "it depends". On what? The Association's Governing Documents – the Declaration, Bylaws, and Rules/Regulations. In the post, there was a law that applied. In PA, there is nothing similar.   

TAKEAWAY: Make sure your Association has an attorney well-versed in community association law to keep you on the straight and narrow.

The post on Wednesday 4/3/19 noted that a FB-hacking employer still gets injunctions against ex-employees. Two wrongs ... The employer sued former employees for starting a competing business, stealing trade secrets, and stealing clients. How the employer got the information it used to show what the employees did is in the post. And based on how the employer got the information, the employees argued that the information could not be used against them. The suit went to the federal appellate court (that governs here in PA). The court ruled in favor of the employer; the rationale is in the post. Near the end of the post are tips on how to handle a social media issue, including talking to your employment law attorney.

TAKEAWAY: While bad facts make bad law, employers (and employees) should be aware of this case and what other liability it might have opened up for either side; again, talk to your employment law attorney.

In the post on Thursday 4/4/19 we learned that DOL says employers may not delay FMLA designation, even at the employee’s request. What does that mean? Often when leave is needed, an employee will ask to take paid leave first, then FMLA leave if needed. Before now, the employer could agree (even though that would mean the employee could have more time away from work …). Now, however, the DOL has changed that. It issued an opinion letter 3/14/19 clearly stating what the employer must do: see the post. It supported its position by reference to the Regs – see the post. The opinion seems to help the employer, but it was meant to protect the employer from a situation like that in the post. What employers must do in light of this opinion is in the post.

TAKEAWAY:  Make sure you know what the FMLA provides – and then follow it to the letter.

The post on Friday 4/5/19 told us a jury awards a Walmart pharmacist $744K in ADA suit. Wow! Back to the beginning … Lori was a pharmacist with CP and MS. She requested an accommodation relative to administering vaccines. Doing that was an essential function of her job. The options Lori proposed are in the post; how Walmart responded is also in the post. Lori sued. The jury found in her favor to the tune of $744,000. Walmart says it attempted to accommodate and is evaluating its options.

TAKEAWAY:  The ADA has a process that requires participation by both employer and employee – know when the process is triggered and what obligations each party has as part of the process.

Finally, in the post yesterday 4/6//19 we saw that IBM allegedly illegally fired over 20,000 older workers. Ugh. Former employees sued for a violation of the OWBPA and the ADEA. They allege that in 2014 IBM ended a 10-year practice of providing the information required by the OWBPA upon layoff and, instead, acted as detailed in the post. IBM called its actions Resource Actions. But they changed what it did, and not for the better. It allegedly intentionally violated the ADEA and OWBPA by acting as noted in the post. It even used social media to advance its new objectives. The irony is that in addition to the suit, the employees have had to file age discrimination complaints in arbitration due to IBM's severance agreement.

TAKEAWAY: If you take adverse action against a protected group, whether age or another, have a valid, legal reason for the action. Consult an employment law attorney to ensure you are on the right side of legal.


ICYMI: Our Social Media Posts This Week – Mar. 24-30, 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 3/24/19 we saw that breaking contracts has consequences (and what could happen relative to restrictive covenants).  The featured case is from the Third Circuit Court of Appeals, a federal appellate court whose decisions are binding on us here in PA. So what happened? Michael worked for Heartland soliciting people to use Heartland's credit and debit card services. He signed a manager's agreement with provisions detailed in the post. He also signed commission agreements (whose relevant terms are noted in the post). There were differences between the manager's agreement and commission agreements that are listed in the post. After Michael resigned to work for a competitor, he breached the manager's agreement. He also did other things listed in the post.  Michael's arguments as to which agreement governed and why are in the post. Also in the post is the Court's rationale as to its ruling.

TAKEAWAY: When there is more than one agreement in play, court will look at all of them and see if one supersedes the other(s). This can be important when dealing with restrictive covenants, so consult employment law counsel relative to the interplay among your agreements.

The post on Monday 3/25/19 was about documenting the failure to document (which is applicable in any employment context). Blumentritt was supposed to keep proper charts for the Mayo Clinic. Practices that were required are in the post. However, the post also talks about what the Mayo Clinic did not do. When Blumentritt was fired and sued (on the basis that he was a gay male), the practices prevailed.

TAKEAWAY: Document, document, document. And follow and enforce policies.

The post on Tuesday 3/26/19 told us Amazon was sued over bathroom breaks in a federal ADA lawsuit. A call center employee brought the suit, alleging he was fired for "time theft". Why? Nicholas has Crohn's disease which requires frequent bathroom breaks. What happened is in the post. And how much is requested for damages? See the post.

TAKEAWAY: No matter the size of your workplace, know what is required of you under applicable law and follow through.

The post on Wednesday 3/27/19 asked: When is a business NOT a business? This can make a difference in homeowner and condominium associations. Here, the homeowner bought the home in 2003. In 2005, they planted a vineyard after ARC approval. The Governing Documents had a provision noted in the post. The owner first harvested in 2009 and began selling wine in 2009. Neighbors objected. What happened in response is in the post. At trial, the owner testified; what he said is in the post. The court analyzed the facts and what, if any, effect there was on the community and the impact of the Governing Documents if taken literally.

TAKEAWAY: Even though something is classified one way for tax purposes, it may not be determined to be the same thing for community Association purposes, especially if the Association has a rational reason. Consult a community association lawyer if needed.

In the post on Thursday 3/28/19 we learned that a country club pays to settle an age discrimination suit. This is local news, occurring in Eastern PA. The suit, filed by the EEOC, alleged that starting in January 2013, the Country Club started treating the oldest groundskeeper differently than younger workers. How? See the post. But that wasn’t all. In December 2016 and Spring 2017 there was more – see the post. Especially damning was what the groundskeeper was told (which is in the post).

TAKEAWAY: Loose lips … sink employment lawsuits. Teach your employees what to say and not say and be legally compliant.

The post on Friday 3/29/19 told us that a restaurant owner sued the attorneys who filed a 'drive-by' ADA lawsuit against him. So the attorneys have apparently been filing many ADA suits against businesses around CO, including Michael's. In that suit, the plaintiff alleges ADA violations but what they told Michael is in the post. As the case progressed … see the post. So because of all that, and his losses, Michael is suing the attorneys who sued him. .

TAKEAWAY:  Make sure there is a valid factual and legal basis for the underlying action before suing someone – or when someone sues you.

Finally, in the post yesterday 3/30/19 we learned that Christini’s Ristorante Italiano is to pay $80,000 to settle an EEOC sexual harassment suit. (It must be restaurant week here in the blog ...) Ok, this one's not PG. The restaurant's owner, Chris, allegedly created and encouraged an environment where sexual comments and conduct was ok and commonplace and the female bartender was repeatedly propositioned. What he said is in the post. When she complained, he fired her. Dumb.

TAKEAWAY: whether owner or manager, know what to say and what not to say to employees – don't hand them your head on a legal platter.


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.


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.