Wednesday
Jun192019

ICYMI: Our Social Media Posts This Week – June 16 - 22, 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 6/16/19 we saw that US courts crack down on employees using "slippery" criteria to hide discrimination. We gave a tip: have a solid, definitive reason/basis for adverse action. Now we have another federal circuit holding that an employer may not defend a discrimination charge by using "vague" and "slippery" reasons. Why? See the post. And what does that mean? That employers must provide specific reasons for adverse decisions, including those for example things listed in the post. In this case, a foreign services officer sued, alleging national origin discrimination resulted in a failure to promote. The employer's internal investigation found nothing illegal; the EEOC and then the federal district court agreed. However, on appeal, the federal appellate court said the employer listed vague, subjective criteria, and sent the case back to the intermediate appellate court. It then reversed and sent the case back to the trial court to proceed on the discrimination claim. That's when and how the instant decision came about – the court found that the employee set forth a prima facie case of discrimination, looked at the employer's asserted legitimate nondiscriminatory reason, and ruled as noted in the post.

TAKEAWAY: Let us say it again: if you are taking adverse action, make sure you have a legitimate, non-discriminatory basis for that action.

The post on Monday 6/17/19 was about dogs and miniature horses and dragons, oh my. Know the difference between a service animal and ESA and what the ADA requires. Ok, you will probably not have to deal with a dragon in your workplace, but you should know what is or is not required under the ADA. And the difference between a service animal and an emotional support animal (ESA). The ADA provides that service animals are dogs (and miniature horses) that do certain things as noted in the post. There are limits to and conditions under which a service animal can act – see the post. Can an employer ask anything it wants relative to the service animal? No, only those questions noted in the post. Pretty much none of this, however, applies to an ESA under the ADA (but state law may intercede – know the law).

TAKEAWAY: Know what law requires what, if any, accommodation by way of service animals and ESAs in the workplace – consult an employment lawyer to stay on the right side of the leash.

The post on Tuesday 6/18/19 told us that an employee's personal notes lead to trial. So what happened? A correctional officer sued for an hostile work environment, alleging various things including being the target of crude comments and more in the post. She complained to supervisors, but there was no response that followed the policies. And then lighting struck: during an investigation on a different issue, the employer found plaintiff's handwritten notes of the alleged harassment. The employer's argument as to how the notes should be weighed, and the court's "response", are in the post.

TAKEAWAY: If you receive a complaint, investigate and take appropriate action. Apply policies evenly. Don't allow for wiggle room.

The post on Wednesday 6/19/19 was about a veteran battling an Association on parking patriotic van in driveway. We asked what your Association would do? The van has stars and stripes is meant to honor veterans at funerals, and is otherwise parked in the driveway. The van is at the center of a controversy. Why the homeowners association began citing the owner and more are in the post. And then what happened? See the post for the happy ending to this story.

TAKEAWAY: Interpretation and definition of key provisions of the Governing Documents can be oh so important – make sure your documents are clear and unambiguous before trying to enforce them. Work with a community association lawyer.

In the post on Thursday 6/20/19 we saw that Court finds no CFAA violation where employee shares confidential company information with competitor. We noted that the Third Circuit has not yet ruled, but suggested that you don't wait – protect yourself in contracts and manuals/handbooks. The CFAA (Computer Fraud and Abuse Act) prohibits, in part, "… intentionally accessing a computer without authorization or exceeding authorized access and thereby obtaining … information from any protected computer." So what happened here? Two former employees allegedly sent confidential company information to their personal email accounts and also to a competitor's email accounts. They also took the actions as in the post. The court looked to the definitions of certain terms of the Act and the primary purpose of the Act; its reasoning is in the post. While the Third Circuit (that governs PA) and Supreme Court have not yet ruled, other federal circuit courts have taken the varying positions listed in the post.

TAKEAWAY: With no definitive case law, it is imperative that employers have in place policies and procedures dealing with access to and use of information and systems.

The post on Friday 6/21/19 told us that Uber drivers are not employees according to the NLRB (leaving us with one standard for federal law and another for state wage & hour law? Yes, this may well apply to your business so pay attention. In an advice memorandum from mid=May, the NLRB's Office of General Counsel determined that UberX and UberBlack drivers are independent contractors, not employees. While it goes to the now inability of many gig workers to unionize (since they are not employees), it also has application to non-union companies. Why? Because the memo looked to common agency law from a January 2019 NLRB decision and some of the factors, including that drivers set their own schedules and have complete control over their cars, choose their own geographic log-in location, and more as in the post. The General Counsel found the factors pointed toward "entrepreneurial independence" and dismissed the method of payment as an indicator for the reasons in the post. What else the General Counsel said as part of the reasoning is in the post.

TAKEAWAY: The memorandum only applies to unionized business under federal law, so employers may be dealing with one standard on the federal level and another on the state level – talk to your employment lawyer to know how to treat your employees.

Finally, in the post yesterday 6/22/19, we learned about pay for work performed by non-exempt employees and asked: Does hours worked include a few extra minutes? You already (should) know that the Department of Labor has proposed increasing the salary threshold for exemption from the FLSA overtime requirements. That would mean that some employees who are now exempt might not be in the future. It might also mean that those who don't stop working when they are off the clock (or out of time) must be paid under the circumstances noted in the post. But wait, does an employer have to pay for every minute a non-exempt employees works? Not according to the regulations as noted in the post. But of course there is an exception to the exception – yep, see the post.

TAKEAWAY: Have a policy on what after-hours work is allowed and when it is not allowed – and follow the policy. Don't just stick your head in the sand.

 

Tuesday
Jun112019

ICYMI: Our Social Media Posts This Week – June 9-15, 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 6/9/19 we saw that McDonald's workers strike and sue over sexual harassment. Ronald is probably not happy. What? Dozens of female employees filed gender discrimination complaints and cashiers and cooks planned to strike, all before the company's annual meeting. 25 women in 20 cities filed with the EEOC; some can now go to court. One employee recently quit; she said that she and her teenage daughter, who worked at the same restaurant, suffered as noted in the post. And how does the company respond? See the post (hint; deflection).

TAKEAWAY: Even if your (in)action was legal, the court of public opinion may still find you guilty. Know how to control all aspects of adverse (in)action.

The post on Monday 6/10/19 was about a woman who owed her former employer due to leaving while on maternity leave. Yep. So what happened? Emily did not have paid maternity leave at her job, so she took an unpaid FMLA leave. During the leave, she received another job offer. She accepted and gave notice to her current employer. It then sent her the correspondence noted in the post. And the timing: NOW! What she did after that is in the post.

TAKEAWAY: Both employees and employer should know their respective rights and possible obligations under the FMLA – meet with an employment lawyer to be sure and so you are not surprised in the future.

The post on Tuesday 6/11/19 talked about when it’s time to evict an owner or tenant from a Unit in a Condo or Homeowners' Association. Yes, it happens. It's not nice, but it happens, usually because assessments have not been paid. When it's an owner, the process is often similar to that in the post, but depends on the Association's Governing Documents and applicable state law. As to a tenant, it could be easier, but again it depends on the Governing Documents. Concerns and possible issues are in the post.

TAKEAWAY: Board members and owners alike should know what the Governing Documents provide as to eviction form a unit; an experienced community lawyer should also be brought in.

The post on Wednesday 6/12/19 told us about paying non-exempt employees for voluntary charitable activities. Everyone needs to read this. The US Department of Labor recently issued an Opinion Letter dealing with wage and hour compliance relative to corporate volunteer campaigns. What did it say? That non-exempt employees who volunteer time outside of normal work hours need not be paid as long as the conditions in the post are met. How the employer can achieve this is also in the post. This issue arose as an interpretation of the FLSA relative to a bonus. The Opinion Letter also set forth how to know it qualifies as charitable work (in the post).

TAKEAWAY: Having your employees volunteering and out and about in the community is great press for your company – but make sure it's done right or you may need to pay them for their time.

In the post on Thursday 6/13/19 we saw the EEOC sued GRK Fresh Greek for sexual harassment. Ugh, just ugh. Why ugh? GRK Fresh Greek is a chain of 4 restaurants. It allegedly subjected female employees to groping, grinding, and lascivious comments. What did the district manager supposedly do in addition to touching female employees' breasts and buttocks? See the post. As if that wasn't enough, he also (allegedly) told one employee that she would make a good stripper and that he'd like to sleep with her and made the other comments in the post. More? The employees told him to stop, but he laughed and continued. When they complained to other managers, what happened is in the post. The EEOC filed suit on their behalf.

TAKEAWAY: Make sure your employees don't harass or discriminate against other employees, and when you get a complaint, make sure to investigate and take appropriate action.

The post on Friday 6/14/19 showed that an accommodation request did not 'immunize' worker from termination. Here, a university employee, Smith, received several poor performance reviews and 2 warnings. She then made an ADA accommodation request. After that, her performance was as noted in the post. She was fired and brought suit. How and why the federal appellate court (which has jurisdiction over PA cases) ruled is in the post - and makes sense. Other federal appellate courts have held similarly in other cases examined in the post.

TAKEAWAY: Employers may take adverse action against employees for legitimate, non-discriminatory reasons, but when it follows a protected activity, it can result in an inference that it was a response to the protected activity; be smart and careful.

Finally, in the post yesterday 6/15/19, we asked: You just discovered you hired a sex offender, now what? What should you do and what must you do? The answer depend … in large part on any applicable state law. All states have sex offender (Megan's Law) registries. Some bar an employer from using that information for employment purposes; others do not. Then there's also federal law, The EEOC has weighed in with the publication noted in the post and by prohibiting a blanket rule against anyone with a criminal history; instead, the employer must do as in the post. So what if you do hire the person? You as the employer might have liability on several bases noted in the post if s/he commits a sex crime while on the clock. So, it depends ….

TAKEAWAY: Before making a decision to not hire or to fire the person, discuss the legal implications with an employment lawyer so that you know your possible risk depending on the action taken.

Wednesday
Jun052019

ICYMI: Our Social Media Posts This Week – June 2-8, 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 6/2/19 we learned to think outside the box: carefully review EEOC charge. Here's an example why. The plaintiff filed for disability retaliation. The employer asked that the case be dismissed for failure to exhaust. More specifics are in the post. Why the court ruled the way it did is also in the post.

TAKEAWAY: Whether in relation to an administrative charge or civil litigation, you should consult an employment lawyer to ensure your rights are protected – and that you know what the other side has or has not done and its effect.

The post on Monday 6/3/19 was about avoiding misclassification of workers: employee vs independent contractor. So important. And so not new. You need to have this down in case the IRS or Department of Labor investigate your business. It is not uncommon for an employer to classify employees as independent contractors in an attempt to avoid the payment of taxes (and lower worker's comp premiums). But it can be costly if the classification is wrong. Factors the IRS looks at include behavioral control (as detailed in the post), financial control (again as detailed in the post), and more discussed in the post. One thing alone is probably not determinative, but all must be considered in each case.

TAKEAWAY: Make sure to properly classify workers – it can cost you a lot more than pay if you are wrong.

The post on Tuesday 6/4/19 we saw that self-help doesn't help. Self-help as in trying to make your case/claim better than it really is. This case out of western Pennsylvania demonstrates that. There, Spano was a CNA and her sister filed a proposed class action suit against their employer. The sister alleged claims under the ADEA and WPCL. During discovery, Spano produced documents; how and when she got them is in the post. And she testified about it during her deposition. The information in those documents is pretty important – see the post. The employer then took action and Spano is now the subject of 2 suits (detailed in the post)

TAKEAWAY: Play by the rules, whether in a handbook, contract, or the law; Breaking the rules will not help and will probably hurt you. Consult an employment lawyer and let him/her tell you this same thing.

The post on Wednesday 6/5/19 taught us that a property manager gets prison for defrauding communities of more than $700K. Most agent are honest and do a great job - but you still need to keep tabs on what is going on relative to your Association. So what happened here?  Karen allegedly defrauded at least 19 HOAs (a small fraction of those with whom she contracted – see the post) over a period of 5 years; it stopped when one of her employees found something. As part of her contracts, Karen controlled bank accounts for her client associations. In 2011, she began doing strange things as noted in the post. She got almost $60,000 from one association in 2015 by the scheme detailed in the post.  The irony is that even the community in which she lived and was under her management lost money. Karen was sentenced (see the post) and now works at a grocery store.

TAKEAWAY: Yes, it is common for Associations to hire professionals to help them, including management agents, and for some of them to handle or control finances. But the Board must still keep a careful eye on the funds and professionals – otherwise they are not fulfilling their fiduciary duty and might also be liable for any loss.

In the post on Thursday 6/6/19 we were reminded that in harassment cases, the context of profanity matters (but only sometimes). (Yes, that's like an attorney answering a legal question with "it depends".) So the issue is the use of the C-word in the workplace and how an employer should respond (whether it should is not a question – yes it should). The case discussed in the post had as the issue whether vulgar language to which all employees were exposed was actionable sexual harassment. In its analysis, the court distinguished some things form others – see the post. As part of its clarification, the court put the words in context (also in the post). It then looked at the context for the use of the C-word in that case. The plaintiff claims that every day she experienced discrimination (how is in the post) and that the manager did nothing despite her complaints. The legal effect of that was also noted by the court in the post.

TAKEAWAY: Sticks and stones can break your bones, and words  … can sometimes hurt you. It depends on the word and the context in which it is uttered. Investigate complaints promptly.

The post on Friday 6/7/19 told us that TimeWarnerCable lost marathon bid to thwart age discrimination plaintiff. What did that entail? 2 jury trials and an appeal. The first trial was declared a mistrial due to a hung jury. TWC lost the second trial (before a jury). It then appealed to the federal appellate court which upheld the verdict. The background: Glenda, age 61, was an African-American, long-time employee of TWC; details on her work history are in the post. TWC began to change its focus and Glenda got a new supervisor. When that person found something (see the post), she told Glenda it would not be a problem. But it was. Glenda was fired and then sued for age discrimination. TWC's asserted defense is in the post. In arriving at its decision, the appeals court looked at several things (described in the post). The kicker was probably the statement made by the supervisor – yes, in the post.

TAKEAWAY: We keep saying it over and over, but it apparently bears repeating: train your employees what to say and not say and when to say the allowable things. Their words can be caustic and costly to you.

Finally, in the post yesterday 6/8/19, we saw that a company must pay $80,000 to a woman for rescinding job offer after learning she was pregnant. ScribeX and Brittany arrived at a settlement adopted by the federal judge. Brittany is a medical scribe, assisting physicians as noted in the post. The company offered her a job and she accepted. Additional steps were taken relative to employment as noted in the post. A week before she was scheduled to start, she told the company she was pregnant and would need leave a few months later. Four days later, the job offer was rescinded. What Brittany was told is in the post (yes, an admission!).The employer's defense is also in the post. The employer did not admit liability, but agreed to the settlement to "close" this chapter.

TAKEAWAY: Watch those words and adverse actions – they can take on a life of their own and be costly to you. Consult an employment lawyer to keep things on the straight and legal.

Thursday
May302019

ICYMI: Our Social Media Posts This Week – May 26 - June 1, 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 5/26/19 we saw that 'Preferably Caucasian' job opening for account manager goes viral.  Yes, that's actually what an ad said (and more in the post). When someone saw the ad, she tweeted it back to the job listing company. Then socmed took over. Even the company that posted it commented; see the post. Thank goodness it realized its wrong …

TAKEAWAY: Discrimination takes many forms, but often not as overt as this. Be careful of what is done under your name.

The post on Monday 5/27/19, Memorial Day, was a time to remember – for those in their workplaces or those with the day off.

TAKEAWAY: Remember the reason for the holiday, but also remember to pay employees appropriately for that holiday.

The post on Tuesday 5/28/19 told us about a homeowner out $45K after HOA sues over wine truck in driveway. Ah, springtime – the birds, insects, and improvements to your property. But enter the restrictions in a planned community (condo or homeowners). Jenn learned the hard (and expensive) way. She started a mobile wine truck in 2016. What she did is in the post. Jenn lives in a community with an HOA. At some point she used the truck to move family property. Thereafter, she received a notice from the HOA – the basis is in the post. She did what was asked. Then the HOA sued her on the same basis and more – see the post. Now she has to pay her own attorney's fees and those of the HOA.

TAKEAWAY: Before you move into a planned community, know the rights and obligations of owners and the Association; consult with a community association lawyer to ensure you understand.

The post on Wednesday 5/29/19 told us what a gay skydiver has in common with a woman "too macho" to make partner. Yes, there is common ground. And now, 55 years after enactment, the Supreme Court will decide if Title VII includes sexual orientation and gender identity in its prohibition of discrimination "because of sex". The EEOC says it does; 5 of the 12 federal appeals courts (and many lower federal courts) have also ruled as noted in the post. Two of the cases before SCOTUS were brought by gay men. First, Donald was a skydiving instructor and Gerald a child welfare services coordinator. How their cases got to the Court is in the post. The third case before the Court concerns Aimee, who had worked at a funeral home for 6 years before disclosing she is transgender. She was fired soon after that. The kicker is what the employer said – see the post. When the Court considers those cases, it will do so against the backdrop of a 1971 case finding discriminatory a refusal to hire others of small children, along with other cases like those in 1977 and more in the post. The Court also must contend with prior LGBT cases, starting with Price Waterhouse v Hopkins from the 1980s. Background on that case is in the post, including what the employer told her. The post contains even more history related to the issue and makes for an interesting read.

TAKEAWAY: Courts are divided on whether Title VII bars discrimination on the basis of sexual orientation and gender identity – we might finally get a decisive ruling from the Supreme Court, so stay tuned.

In the post on Thursday 5/30/19 we learned about a $3.8M jury verdict for excessive breastfeeding. Yes, you read that right. Carrie was a paramedic for the City Fire Department. She alleged in her complaint that she was not provided with an appropriate lactation room, consistently, and more as noted in the post. And what were some of the alleged comments? That the employer's scheduler told her that he didn't think she deserved special accommodation and other comments listed in the post (which are just horrible). The jury agreed with Carrie to the tune of $3.8 million. What it found as art of its verdict is in the post.

TAKEAWAY: Know the requirements of both federal and state law relative to pregnant and breastfeeding employees; consult your employment lawyer to ensure you fulfill your obligations.

The post on Friday 5/31/19 told us that SCOTUS was asked to decide whether the ADEA protects outside job applicants. The plaintiff in the case is Dale Kleber, a 58-year-old man, who is supported and backed in his position by AARP. Dale applied for an in-house attorney position. The advertisement requested a minimum of 7 years' experience. Dale was not hired; a 29-year-old was. Dale sued. On appeal, the federal appellate court said that the ADEA does not apply to external applicants. Now the case is in front of the Supreme Court. The basis for the appeal is in the post and has far-reaching effect. Now it is up to SCOTUS to accept or decline to hear the case.

TAKEAWAY: Age discrimination is still prevalent in the workplace – train your employees on what they can and cannot say and do to ensure your name is not listed as a defendant in a case.

Finally, in the post yesterday 6/1/19, we read that an employee fired for panic attacks can take ADA claim to the jury. Judith, a car dealership employee, had anxiety, depression and panic attacks. The court said that she might have a disability based on how those things affected her – see the post. When it first happened, she told her supervisor, then followed up later. She kept him in the loop. What the employer argued is in the post; why the court ruled against it is also in the post. See how just one stray comment can make or break a case?!?! .

TAKEAWAY: Well, we said it yesterday, but well say it again – make sure to train employees on what they can and cannot say. It is your name and company on the legal line.

Saturday
May182019

ICYMI: Our Social Media Posts This Week – May 19 - 25, 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 5/19/19 we warned: Be careful what you say and where you say it. Especially in response to a charge of discrimination … Don't just throw the documents in the trash or otherwise ignore them. Our post of 5/15/19 told us how that worked in one instance. In another, the federal appellate court said that allegations in an EEOC charge carry the weight of evidence when looking at summary judgment. How that evidence is to be weighed is in the post. But what's good for the goose … means that a court will also look closely at what the employer says or provides in response to an EEOC charge.

TAKEAWAY: While EEOC matters are not a court proceeding, they might later show up in court; consult an employment lawyer to protect your interests now and in the future.

The post on Monday 5/20/19 asked: Must an employee file an EEOC discrimination charge before filing a suit? Soon the US Supreme Court will tell us the answer to that question. It stems from a case where the plaintiff sue for religious discrimination without an EEOC filing. Five years into the suit, the employer realized there has been no admin filing. That set up the issue: whether the admin filing is jurisdictional (meaning the failure to file the admin charge is fatal) or a mandatory claim-processing rule (which means the failure to make the admin filing can be waived).The arguments made to the Court are in the post. And why do you care? Because of the effect the ruling will have on how and when (former) employees can file suit on a charge of discrimination or harassment.

TAKEAWAY: From the employer's view, it is safest to make the admin filing before filing suit. From the employer's perspective, if there was no admin filing, a motion to dismiss the suit should be filed.

The post on Tuesday 5/21/19 was about 2019 EEOC bracketology – Test your knowledge! Everyone knows about March Madness and the Final Four. Well, this is the employment law version using statistics from FY2018. The post lets you complete the bracket. You can also get the statistics behind the winner in the post. Fun and education all at the same time.

TAKEAWAY: Total filings may be down, but the distribution tells the story – don't become a statistic, instead know the law and consult with employment counsel to protect your interests.

The post on Wednesday 5/22/19 told us about threats based on house color in an Association. Ugh. This happened in Texas, but it could have been anywhere. The color the owners painted their house (pictured in the post) was different. It was done during a remodel. And approved by the Association. Until it wasn't. See what happened in the post.

TAKEAWAY: Life in a planned community (condominium, homeowner or cooperative association) is governed by covenants, Bylaws and Rules/Regulations; know what they are and who has what rights and obligations. Contact an attorney well-versed in community association law.

In the post on Thursday 5/23/19 we learned about commonly-used defenses in employment discrimination cases. Discrimination does happen; even when it doesn't, charges and suits are still filed. Either way, know what possible defenses are available. In the case in the post, Jimmy, an African-American male, alleged discrimination and retaliation when he was discharged. It all revolved around him reporting to work one night and then leaving the job site. What each party said happened next is in the post. Jimmy sued. On summary judgment, the trial court ruled in favor of the employer. On appeal, the outcome was different. The appeals court looked at several things that form common defenses, including whether there is a valid comparator/similarly situated employee, whether Jimmy was performing his job satisfactorily, and more in the post.   

TAKEAWAY: Know what possible defenses are available and what is needed to be able to take advantage of it. Employment counsel can help.

The post on Friday 5/24/19 was about retail properties and the ADA: 5 common pitfalls to avoid. This applies not only to big shopping centers, but also to public places (such as your place of business). So where can issues arise? Parking. Perhaps not enough ADA spaces or improper markings. Also sidewalk access. For retail establishments, there must be at least one access into it from public streets and sidewalks and more noted in the post. Want more? Two other areas of concern and that grandfathering clause – does it really exist? See the post for all of those.

TAKEAWAY: The ADA is a law with which everyone who is covered must comply. Know the standards that apply and meet (or exceed) them.

Finally, in the post yesterday 5/25/19, we saw that the Feds ruled that one company's Gig workers are contractors. While the DOL letter is limited, it gives a hint for other employers. The question was whether gig-economy workers are contractors or employees. We finally have a hint from DOL from a letter written to just one company, but it opens the door and lets us look inside to how the question might be answered for other employers. Some telling hints from DOL's recent letter: the company was referred to as a "virtual marketplace" connecting service providers with consumers and 6 things were analyzed. First, the amount of control the employer has over workers. Second, how permanent or transient or temporary was the work relationship (with subcategories identified in the post). Two other things were also analyzed and are in the post. The last item may well be the most important.

TAKEAWAY: DOL has been on a crusade to ensure workers are properly classified and paid – don't get in its cross-hairs. Know which workers are contractors and which are employees.

Wednesday
May152019

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.

Monday
May062019

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.

Tuesday
Apr302019

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.

Tuesday
Apr232019

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!

Wednesday
Apr172019

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.