Tuesday
Aug132019

ICYMI: Our Social Media Posts This Week – Aug. 11 - 17, 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 8/11/19 we learned about a close call: winning ADA case by one vote, but the warning signals for employers are loud and clear. So what happened? Bilinsky started at American Airlines in 1991 as a communications specialist. There was no formal job description. Due to her medical condition (noted in the post), she was allowed to work remotely from Chicago despite her team being in Dallas. In 2013, American Airlines merged with US Airways, resulting in a restructuring of departments. Bilinsky's position changed and she now had to be in Dallas. She said no. What then happened is in the post. After she was terminated, she sued under the ADA. The trial court found that she was not a qualified individual under the ADA. Bilinsky appealed. On appeal, the court had to determine the essential functions of the job since there was no job description. What the court did is in the post. Likewise, how it arrived at its decision is also in the post. On affirming, the court said that it was fact-specific.

TAKEAWAY: To ensure that you don't end up fighting a similar battle, ensure that job descriptions are in place and accurate, even after changes to the job.

The post on Monday 8/12/19 asked whether to hug or not to hug: a 5-step guide to embracing at work. In today's environment and culture, one cannot just hug colleagues. So how do you know whether or not to hug a co-worker? First, read the room. Think about the culture and geographic influence. Next, keep in mind the power dynamic. Meaning that the one in power should NOT be hugging. Even after asking, for the reason noted in the post. It might be ok between colleagues whose positions are on a par. Other tips are in the post.

TAKEAWAY: The safest way to proceed with hugging is not to do it unless you ask and are sure any affirmative response is not given under duress or pressure.

The post on Tuesday 8/13/19 asked: what type of antenna or dish must a condominium or homeowners' association allow? Note the answer is not IF, but what kind. That is because of the rule noted in the post. The rule applies to video antennae (including direct to home satellite dishes of the listed size), TV antennas, and wireless cable antennas. What the rule prohibits is in the post. The rule was amended as also noted in the post. To whom the rule applies is in the post, as well as how, if at all, Associations' limits are effective or valid.  

TAKEAWAY: Know what can and cannot be restricted relative to antenna and dish installations – consult a community association lawyer for assistance.

The post on Wednesday 8/14/19 taught us that performance counseling and mediation are not adverse actions for federal discrimination purposes. We suggested you know what is and is not an adverse action. Hopefully you know that not everything unfavorable that occurs in the workplace is not illegal. Something must be adverse to be actionable, and even then not every adverse action qualifies. In the post, a new principal began to criticize Fields' work and lesson plans, but did offer assistance with corrections. Suit was filed for race and age discrimination. What happened next is in the post; Then additional charges/claims were filed – see the post. On appeal, the court affirmed the trial court's ruling. Its analysis is in the post.

TAKEAWAY: Let's say it again: know what is and is not an adverse action. Run it by your employment lawyer first if you are not sure.

In the post on Thursday 8/15/19, we saw that a federal judge allows a sexually hostile environment discrimination suit to move forward. Kim filed suit against the Toyota dealership and its GM. Before she sued, she resigned after having worked there for almost 7 years. She quit because the GM intentionally antagonized her; the owner and HR were aware of some of what the GM did, including calling females staff names and other things noted in the post. The GM admitted to much of what was alleged and tried to explain it away as noted in the post. A male former employee testified that the GM did not treat women well, including the incidents noted in the post. With all that, the judge denied the dealership's motion for summary judgment for the reasons in the post.

TAKEAWAY: Train your employees so they know what they can and cannot do and discharge them if they violate the law.

The post on Friday 8/16/19 talked about Amazon risking a legal gray area by indefinitely holding Alexa recordings. We asked about your "confidentiality" ... Unless you've had your head in the sand, you know that Amazon confirmed in writing that Alexa's transcripts and underlying data are not truly scrubbed from the cloud or third-parties. Even if the user manually deletes the recordings. Yes, Alexa gives notice of what it does and the ability to make changes; no, it doesn’t tell the things in the post. And does this violate US privacy laws? See the post. How this way of operating may pose a legal risk to Amazon is in the post.

TAKEAWAY: While AI can make your life easier, it also needs information and data to get to that point – and what it does with that information and data may reveal more about you to others than you want revealed, whether in life generally, at the workplace, or as part of a suit.

Finally, in the post yesterday 8/17/19 we saw that employee preference has little place in FMLA and FLSA compliance. We suggested you know what is required. Is it what the employee wants? What the employer provides? Something in the middle? Well, it depends (on what the applicable law requires). For example, employees can no longer ask that the employer not deem a qualifying leave as FMLA leave- why that is so is explained in the post. And what if the employee then decides not to take the leave? See the post and be careful how you proceed. Something else that is not necessarily optional or up to the preference of the employee is classification as an employee or contractor. Why not is explained in the post.  

TAKEAWAY: Employers must know what is required of them, even if an employee requests a different outcome or different action. Stay on the right side of legal.

Monday
Aug052019

ICYMI: Our Social Media Posts This Week – Aug. 4 - 10, 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 8/4/19 we learned that an appeals court backs American Air in disability case, says not forced under ADA to let worker work from home. Kimberly had worked for American since 1991. She was diagnosed with MS. American granted her the accommodation noted in the post based on the disability. In 2013, American merged with US Airways. The duties of her position changed; so did her accommodation (as noted in the post). She was fired when she refused to relocate. She filed suit, alleging that American violated the ADA when it ended the accommodation.  The trial court granted summary judgment to American and Kimberly appealed. The post contains her argument on appeal, as well as that of American. The appellate court affirmed for the reasons in the post.  

TAKEAWAY: An accommodation for a job may change as the job changes – things are not set in stone.

The post on Monday 8/5/19 noted: “I'm not out here' as Facebook fishing trip video dooms worker's FMLA claim. An employee took intermittent FMLA leave many times for the reasons in the post. At one point, the employee was in a co-worker's live video on Facebook of a fishing trip during an FMLA leave. The employer asked about the video; how he responded is in the post. When he was fired, he sued. He lost for the reasons noted in the post.

TAKEAWAY: Just because someone is having fun while on leave does not mean that person is abusing the leave – get all of the facts and meet with an attorney before taking adverse action that may come back to bite you.

The post on Tuesday 8/6/19 was about another EEOC suit based on sexual harassment - ugh. So what happened? Allegedly the owner and top manager of 2 companies named in the post subjected female employees to a sexually hostile work environment. How? By crude sexual comments. Yelling at female employees and using obscene sexist epithets. And more noted in the post. Many female employees quit when the behavior continued after they complained.

TAKEAWAY: It is not fun and games – it is illegal and you will be sued – don't harass employees by any means.

The post on Wednesday 8/7/19 told us a mother claims she and her family were kicked out of a community pool due to the color of their skin. It happened in a planned community (in Texas) the first time she and her kids used the pool. What happened after that is in the post. But unfortunately it didn't end there – the police arrived. When questioned by the media, the homeowners' association had a different story – see the post. The cameras might tell who's right.

TAKEAWAY: All associations should make sure to have the facts – and that they support whatever action the association will take – before stepping in a quagmire. Consult a community association lawyer.

In the post on Thursday 8/8/19 we said to pick your procedure::EEOC launches parallel gender discrimination pay suits under different statutes. The suits were filed in federal court in Maryland. The first case was filed on behalf of a single female manager alleging that she was paid less than her male subordinates. The second case was filed on behalf of 11 female security guards who allege they were paid less than male counterparts. While they both allege pay inequality, different statutes are involved. In the first case, the EEOC must show the company paid at least one male more than the female for substantially the same work as detailed in the post. If it meets that burden, the case then proceeds as in the post.  However, that is contrary to the second case. There, the EEOC has issues of both class and statute. The post explains it in more detail, including the burden-shifting there. What is interesting is how the second case differs by being brought by the EEOC instead of a private party – see the post for the differences.

TAKEAWAY: The EEOC is not shy about taking positions it thinks it can sustain – here it is on one field with 2 plays at the same time. Employers beware the many arrows of enforcement – and stay the legal course.

The post on Friday 8/9/19 asked: Are you using the correct severance agreements? These are legal documents - involve an employment lawyer. What happens if it is not enforceable? As noted in the post, you "just gave the employee just enough money to engage an attorney on retainer and fund a lawsuit." So what should the agreement include? First, anything to deal with the employee's protected characteristics. Examples are in the post. Also any required language to exhibit a knowing waiver. Again, examples are in the post. Many other considerations are also listed in the post.

TAKEAWAY: Don't just use a form – or even the one you used the last time – consult your employment lawyer to make sure what you want the agreement to contain is legal and what it actually contains.

Finally, in the post yesterday 8/10/19 we saw that Party City settled an EEOC pregnancy and disability discrimination suit. We noted this is probably not an invited guest at your next party ...  Here, Party City agreed to pay $39,000 and other relief. The EEOC alleged that Jahneiss was fired based on her pregnancy and related medical condition. In December 2015, she sought both medical care and an accommodation. Her store contacted HR. What happened next is in the post and led to an EEOC charge and probable cause finding. It then filed suit (after conciliation failed). And now the proposed settlement – whose terms are in the post - has been approved by the judge.

TAKEAWAY: Treat pregnant employees the same as other employees – and don't take adverse action against them solely due to the pregnancy. If you do, they will end up happy with your money.

Tuesday
Jul302019

ICYMI: Our Social Media Posts This Week – Jul. 28 - Aug. 3, 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 7/28/19 we saw it took $690K to settle allegations of failure to promote a female. Apparently someone hit gold! Why did we say that? Because an Alaskan mining company has settled a sex discrimination suit by the EEOC for $690K. The suit alleged that the company denied promotions to a female miner; the comparisons were detailed in the post. Also what the company did when she complained is in the post. Finally, what the company will do as part of the settlement in addition to paying the hefty amount is in the post.

TAKEAWAY:  Treat all employees performing the same job equally – and don't take adverse action against someone who complains.

The post on Monday 7/29/19 was about when taking a Mexican vacation during FMLA leave is not grounds for termination. It is important to know what is and is not FMLA abuse. Here, the employer granted FMLA leave for foot surgery and recovery. The post includes information form the certification submitted by the employee. When he returned, he asked for additional leave for knee surgery. That same day, the employer learned that he had vacationed in Mexico during g his prior leave. What the company did then is in the post. Ultimately it discharged him for FMLA abuse. He sued. Some of what came out at trial is in the post. The jury came back big time for the employee – see the post. The employer appealed on the bases in the post. The appellate court affirmed the verdict for the reasons in the post.

TAKEAWAY: know why an employee is on leave and what s/he has done that is contrary to that BEFORE you even think about taking adverse action against the employee.

The post on Tuesday 7/30/19 noted that the short-term rental trend puts owners at odds with condo and homeowners association rules (and asked if you have something in place to deal with this). Yes it is nice to make money off your house – but can you do it legally under applicable law and the Governing Documents of your Association? It is usually the latter that cause hiccups. Associations may restrict if, and for how long, a unit may be rented out. As members, owners must comply with those restrictions. An example is in the post. Some ways associations are changing or varying those restrictions is also in the post.  

TAKEAWAY: know what restrictions your Association puts on short-term rentals – and enforce them.

The post on Wednesday 7/31/19 gave us 15 great HR tips/lessons. First, teach managers how to have the hard conversations. Second, think about leaving ratings out of evaluations and just use narratives. Next, put in place – and evenly enforce – a policy on CBD products. The other great tips are in the post. Finally, before you make any wholesale change that could adversely affect employees, discuss those changes with your employment lawyer. Otherwise you might be wondering why you didn't follow the tips in the post.

TAKEAWAY:  There are always ways to improve and reduce risk – but do it the smart and legal way.

In the post on Thursday 8/1/19 we read about when key employees quit: 5 things you must do to keep control of critical data. You may not see it coming, but employees will leave your company. That leaves you without their experience. It may also leave you in the lurch if they take confidential information. So what should you do to protect yourself and your information? First, assess the risk, i.e., know what you have and where and how it is retained. This is broken out in the post. Next, collaborate with internal and external IT personnel and providers. Why you need to work closely with both is noted in the post. Three more tips are in the post.

TAKEAWAY: the technology age has made information in the workplace both more accessible and more important – if it's important, protect your data legally and to the best of your ability.

The post on Friday 8/2/19 asked: When is an employer's reason for filing someone actually pretext for age discrimination? Do you care? You bet – it can make the difference between a winning and losing lawsuit or charge. In the post, we see how the analysis fleshes out. Westmorland, the employee, alleged that Time Warner Cable (TWC) fired her because of age. There was a multi-day trial, after which the jury verdict was in favor of the employee and awarded almost $335K in damages. On appeal, the court affirmed the verdict. Why? First, the plaintiff's burden of proof in an age discrimination is as set forth in the post. And if the evidence is circumstantial (rather than direct), the 3-step McDonnell Douglas burden-shifting scheme listed in the post applies. The final step is on what Westmoreland's claim turned. What TWC said was the reason for her discharge is in the post. However, Westmoreland offered more evidence (see the post) that tended to undercut TWC's assertions. Even more facts cited by the appellate court that weighed in favor of Westmoreland are noted in the post.

TAKEAWAY: Facts are important – make sure yours support your position instead of undermining it. Work with an employment lawyer.

Finally, in the post yesterday 8/3/19 we saw that Valley Tool was sued by the EEOC for ADA violation and employee retaliation.  What happened, you ask? Employee worked as sorters in 2016-2018. One disclosed a blood disorder that resulted in her missing work. What the manager said in response is in the post. As if that were not enough, the company then denied her a reasonable accommodation (as noted in the post). It also took other steps (see the post) and ultimately fired her, All of that was after receiving a letter from her doctor noting no medical restrictions at work. And there's more – another employee who complained about what the manager did as noted above experienced the adverse actions noted in the post. So the EEOC sued.

TAKEAWAY: Laws are there to prevent discrimination based on factors that do not affect performance – or to accommodate employees so they can perform. Know the laws and stay within their mandates.

Tuesday
Jul232019

ICYMI: Our Social Media Posts This Week – July 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 7/21/19 we learned that an employer will pay $425K to settle suit alleging 'regular 'regular and open use' of slurs. Yep. The employer here is Aaron's. The settlement has to do with black employees at a warehouse who were allegedly subjected to race-based hostile work environment. It included racial slurs and more noted in the post. Aaron's will make payment plus other things identified in the post.

TAKEAWAY: Things vary by environment, but make sure not to create one where employees, especially those in protected classes, are adversely affected.

The post on Monday 7/22/19 was an ALERT: SCOTUS says Title VII charge-filing requirement is non-jurisdictional claim-processing rule that is forfeited if untimely asserted. In early June, the Supreme Court finally decided the issue that split appellate courts. The case is Fort Bend County, Texas vs. Davis. In 2010, Davis alleged she was the victim of sexual harassment and retaliation. She filed a charge that was dual-filed with the EEOC; details of the charge are in the post. She checked some boxes on the charge as noted in the post. She got a right to sue letter and then did sue. The employer asked for dismissal and the trial court granted it. The appellate court agreed as to the retaliation claim but reversed on the religious discrimination claim. What the employer argued on remand is in the post. Then the case went back up the appellate ladder and landed at the Supreme Court. The question was whether Title VII's charge-filing pre-condition to suit is jurisdictional or a procedural prescription that is mandatory? The Court analyzed the issue and issued its ruling – see the post.

TAKEAWAY: Don't sit on your laurels – raise an objection as to procedural failure to file or lose it.

The post on Tuesday 7/23/19 was about smoking prohibitions in condominium unit or other areas within planned community. You already k now that community association life is subject to the relevant Governing Documents. Smoking can fall into that category. There are certain occasions when smoking can be prohibited (see the post and your Governing Documents). What can and cannot be prohibited or regulated is in applicable state law and, somewhat, in the post.

TAKEAWAY The covenants, restrictions and rules governing a particular community are subject to change; know what they are and how they can be changed.

The post on Wednesday 7/24/19 confirmed that its's true: not all work restrictions are ADA disabilities. The federal appellate court summed it up nicely: "just because a plaintiff has work restrictions does not mean that he is disabled … simply having a work restriction or being unable to perform a discrete task or a specific job" "does not automatically render one disabled" under the ADA. So what was the background to that decision? In late 2016, the plaintiff filed suit, alleging failure to accommodate and disability discrimination. He was an assembly line worker who had been under permanent work restrictions for over 10 years. On what he based his allegations is in the post. Also, how and why the court ruled against him on the claims is in the post.

TAKEAWAY: Disability under the ADA requires actual limiting impairment; changes in a job may alter the need for an accommodation, so keep the interactive accommodation process alive continuously.

In the post on Thursday 7/25/19 we learned the EEOC says female workers paid less than male employees in case close to home. Parties settle for $50K. Amanda and Beverly worked in sales at Fastenal. Amanda started there in 2012; at that time, she was paid $9/hour while a male in the same position was paid $10/hour. How things progressed is in the post. Only after learning of her EEOC charge did they raise her pay to match that of newly-hired males. Beverly started at Fastenal in 2015 and was also paid less than males in similar positions; she too had her pay raised after the EEOC suit. The EEOC sued on their behalf for violations of the EPA and Title VII. Fastenal's defense is noted in the post. The case settled prior to trial for payment of $50,000 and other things in the post.

TAKEAWAY: If 2 people are doing the same job, pay them the same (unless there is a legally-justifiable reason for a pay disparity).

The post on Friday 7/26/19 told us a federal appellate court permitted terminated employee to present broad comparisons to others. The court is one with jurisdiction over PA, so pay attention! The defendant was GNC. Andujar, age 59, worked there as a sales associate. He was promoted to store manager and stayed in that position for about 13 years. The types of things on which managers are scored are in the post. Andujar failed on one in 2010, 2011, 2012 and 2013. How GNC reacted is in the post. When he got a fourth failing score in early 2014, they put him on an improvement plan. After insufficient improvement, GNC took the action noted in the post, including replacing him with a much younger employee. Andujar sued for wrongful termination and age discrimination (and under state law). The case went to trial. When Andujar presented evidence of comparators, he used 5 younger employees who had received different discipline after failed reviews. The jury instruction and trial court jury's decision are all in the post. On appeal, GNC argued that the comparators were not similarly situated and explained how. The appellate court upheld the verdict – its reasoning is in the post.  

TAKEAWAY: Comparators need not be exactly similar; differences in treatment will be examined closely, so make sure there is a valid basis for adverse action.

Finally, in the post yesterday 7/27/19 we saw that Hyatt is to pay $100K to settle discrimination suit. We noted that's a lot of bed-turndowns ...  The settlement includes payment of $85K for wages and paid leave worth $15K, along with other things noted in the post. So what happened? The EEOC says Hyatt refused to accommodate an employee with a back impairment. He stood at the front desk for prolonged periods which aggravated his impairment and caused severe pain. He asked for a reasonable accommodation (listed in the post) that was at first granted, then withdrawn. The EEOC evaluated whether the requested accommodation interfered with his job – its result is in the post.

TAKEAWAY: If an employee is entitled to an accommodation, and you can accommodate without hardship, do it, just do it.

Monday
Jul152019

ICYMI: Our Social Media Posts This Week – July 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 7/14/19 we saw that Pilgrim's Pride settled a suit based on a discrimination claim. What type of claim? Disability. The employee asked for and was granted leave for absences due to heart surgery. He attempted to return to work after. What did the company do? See the post. The EEOC filed suit on his behalf after conciliation failed. As part of the settlement, the company will pay $50K plus the other relief as noted in the post.

TAKEAWAY:  Comply with the law – and make sure adverse action is legally justifiable.

The post on Monday 7/15/19 told us an employee could rely upon former supervisor's statement about existence of discrimination. Huh? David said that his former supervisor at Citizens Telecom told him that he did not receive a promotion for three reasons: he was a former Verizon employee and the 2 other things in the post. The former supervisor still worked for the company at that time. On appeal, the court allowed in the former supervisor's statement for the reasons in the post. Because of that, summary judgment for the company was reversed on the failure to promote claim.

TAKEAWAY: Make sure to train employees what NOT to say – it may come back to bite you in an expensive way.

The post on Tuesday 7/16/19 relayed that JPMorgan Chase settled a class action suit, will give equal parental leave to mothers and fathers. You may recall that JPMorgan Chase was sued a while back for not giving fathers the same leave as mothers. Derek tried to claim primary caregiver status when his son was born; what he was told is in the post. The result was he got 2 weeks' pf paid parental leave (instead of the 16 weeks given to mothers). He filed a charge with the EEOC. JPMorgan Chase then acted as noted in the post. The suit was then amended to relate to primary caregiver status and not leave time.

TAKEAWAY: Ensure that policies are both facially and actually gender neutral.

The post on Wednesday 7/17/19 asked: Should patio owners pay for deck repair  or replacement in community associations? Ok, let's add a few more facts. Some homes have patios, others have decks. The association is responsible for the maintenance of both patios and decks; now decks need to be replaced. So should patio owners have to pay for that? The answer is: it depends. On applicable state law. On provisions of the Governing Documents. See the post for how it works in that situation.

TAKEAWAY: Part of living in a community association is paying for things that you might not use or form which you might not benefit because others are paying for things that you DO use or form which you DO benefit. Consult a community lawyer to be sure of your rights and obligations.

In the post on Thursday 7/18/19 we learned that an assumption that marijuana card holder used cannabis led to an ADA claim. We noted this could play out the same in PA - beware. Remember that the ADA applies to applicants and employees. Here, the person suffered from PTSD and depression. He applied for a position of receiver lift/forklift operator. He received a conditional offer and had to undergo a drug test. During an interview with HR, he mentioned his medical cannabis registration. What HR told him is in the post. Despite the conversation, and prior to the drug test, HR withdrew the job offer. He filed suit. The company responded with a motion to dismiss, alleging he was not entitled to ADA protection on the basis noted in the post. How and why the court ruled in his favor (at least at this stage) is all in the post.

TAKEAWAY: Be careful on what you base adverse actions – make sure whatever it is legally supports the action.

The post on Friday 7/19/19 noted that documentation of employee's poor performance defeats FMLA interference claim. Here, Brandy alleged that she was fired based on negative performance reviews which were based in part on protected absences. What else she alleged is noted in the post. Brandy's supervisor documented performance issues along with the other things listed in the post. Both the trial and appellate courts granted summary judgment for the employer; their rationale is in the post.

TAKEAWAY: Document document document. It can make or break your defense.

Finally, in the post yesterday 7/20/19 we noted that you'd (not?) be surprised how far the ADA goes. It reaches even to the PGA. Pro golfer John Daly apparently requested permission to ride a cart in the PGA Championship due to osteoarthritis in his knee. Yes, an accommodation request that runs afoul of the rule requiring players to walk the course (with a caddy). Daly was not the first pro to request a cart – see the post. But the prerequisites for ADA protection are all there – again, see the post.

TAKEAWAY: The ADA was meant to be broad, and so it is – it is often best to think of accommodation rather than eligibility.

Thursday
Jul042019

ICYMI: Our Social Media Posts This Week – Jul. 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 7/7/19 we learned that years later, women still fight Walmart over discrimination. Sometimes bravery is demonstrated on the battlefield of law. This battle started in 1993. Claire began a job at pace membership Warehouse and was the sole income in her household. Sam's Club bought Pace soon thereafter; Claire was hopeful about her opportunities to advance based on materials Sam's disseminated. What happened over the ensuing years is in the post (and, unfortunately, is not uncommon). At one point, a statement made by a district manager (noted in the post) just made no sense to her. But she kept going back, day after day until she left in 2002. Claire's not the only one – there are hundreds who have filed suit as noted in the post. Most of them have similar general facts: earning less than men in similar roles, being told the men needed to support their families, and more as noted in the post. Note that Walmart has a history with class claims, starting in 2001 and detailed in the post. Some of the women still involved now were part of it back then too. The post also talks about others' stories of pay discrimination based on gender and the reasons they were given in an attempt to justify the discrepancy. While Walmart says it has made changes to ensure pay equity (see the post), these women – and the EEOC - say it is not enough.

TAKEAWAY:  Unless there is a valid LEGAL reason to the contrary, pay everyone doing essentially the same job the same wage. Really.

The post on Monday 7/8/19 told us that the Justice Department tells SCOTUS that Title VII applies when workers are denied transfer. Broad application. This encompasses lateral transfers, not just an adverse transfer. See the post for how this arose and the status of the case.

TAKEAWAY: If you don't discriminate against employees on the basis of any protected characteristic, you don't have to worry about whether adverse action is required to support a cause under Title VII.

The post on Tuesday 7/9/19 noted an association was sued over radon – be careful how you enforce architectural and similar rules/restrictions. You know what radon is, right? That odorless, colorless gas that is the second-leading cause of lung cancer in the US. It enters homes and, if above a certain level, should be remediated by installation of a system to vent it out of the home. Tony needed to mitigate his condo; the association put restrictions on what could happen and when as noted in the post. More about radon is in the post.

TAKEAWAY: While life in a planned community (one with a condo or homeowners' association) is subject to legal documents including a Declaration, Bylaws and Rules/Regulations, those documents must be enforced evenly and reasonably 9and in legal fashion). Consult a community association lawyer for help.

The post on Wednesday 7/10/19 reminded us that when counseling jerk employees, focus on behavior. Yes, you know, the employee who is a jerk. So how do you counsel that person so as to stay out of lawsuit range? First, recognize that "jerk" is not a legally-protected class. You are entitled to, and should, discipline those employees. So what do you do? Don't ask the cause of the jerkiness. DO take the steps noted in the post. DON'T delay just because the jerk is a long-time employee. Again, do act as suggested in the post.

TAKEAWAY: Don't be an ostrich when it comes to jerk employees; if for no other reason than that their behavior might subject you to a hostile work environment claim by other employees, take action.  

In the post on Thursday 7/11/19 we saw a court OKs prorated bonus for worker on FMLA leave. Here, Moody's was the employer; it prorated a bonus based on the FMLA leave. Gregory was entitled to incentive payments based on his performance and that of his team. He took FMLA leave for cancer. Moody's then prorated his bonus based on the absence (and lost production). Gregory sued, alleging FMLA interference. The federal court sided with Moody's – its reasoning is in the post. And, based on the facts in the post, it makes sense (at least to this author).

TAKEAWAY: When one makes an interference claim, s/he must show that the employer actually interfered with the leave – which is hard to do if there has been no interference.

The post on Friday 7/12/19 told us that a failure to explain inconsistency between SSDI application and ADA claims results in dismissal. Sounds strange in light of the US Supreme Court case referred to in the post, right? Not really. In this case, the plaintiff voluntary quit after being required to cross-train for different positions. Then she filed for SSDI benefits; the basis she listed on that application is in the post. She then filed suit for an alleged ADA violation (failure to offer a reasonable accommodation). The employer asked that the suit be dismissed based on the difference in statements between the SSDI application and the lawsuit. The court here agreed with the employer for the reasons noted in the post and how that played out under the Supreme Court case.

TAKEAWAY: In any situation where failure to reasonably accommodate is the basis for suit, make sure the employee has only one position relative to the alleged disability. Get legal assistance.

Finally, in the post yesterday 7/13/19 we learned about reductions in force (RIF) and ADEA implications. So does an employees who was let go as part of a RIF when a younger employee was retained have a valid legal claim? The answer (as you suspected) is "it depends". On the facts of course. In the case in the post, the company's business decreased so it did a RIF and the plaintiff was terminated, but a much younger employee was not. The company's reasons as noted in its motion to dismiss the case are in the post. What the court said when denying the motion to dismiss is also in the post. Of course, the President's statement (in the post) didn't help the company either…

TAKEAWAY: Just as with any other adverse action, make sure there is valid legal support for a RIF – engage an employment lawyer to keep you out of legal quicksand.

Thursday
Jul042019

ICYMI: Our Social Media Posts This Week – Jun. 30 - Jul. 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 6/30/19 we saw that Scribe-X Northwest is to pay $80,000 to settle EEOC a pregnancy discrimination lawsuit. Let's start with saying that as a medical documentation service, the employer should know better. So what happened? Brittany, all of 28 years old, applied on-line for a position. The employer made her an offer and all pre-hire screens were completed. Brittany mentioned she was pregnant and the employment offer was withdrawn (by whom you ask? See the post). Then the employer dug a deeper hole by what the person also told Brittany (again in the post). So in the end the EEOC ended up filing suit and the case has settled. Brittany will get $80K for emotional distress and lost wages; the employer must take the other steps noted in the post.

TAKEAWAY: Treating an employee any differently due to pregnancy is a no-no; just don't do it.

The post on Monday 7/1/19 taught us about firing an employee without triggering a lawsuit. So important. Job terminations will happen – so learn how to do it and minimize the chances of a suit (no you can't guaranty there will be no suit). First and foremost in Pennsylvania is that unless there is a writing between the parties to the contrary, employment is at will. That means the employee can quit at any time, with no reason and no notice, and the employer can fire the person at any time with no notice and for no reason – as long as it is not for an illegal reason such as those in the post. But if there is a policy requiring progressive discipline or some step prior to termination, then the policy should be followed; do it as written and as noted in the post. Timing of the termination can also be important. Some tips on timing are in the post (caution: if you intend to offer a severance agreement of any type, make sure an employment lawyer has vetted it first). The post also mentions circumstances where there is valid reason to terminate immediately.

TAKEAWAY: Know your rights and obligations relative to the employment relationship and consult an employment lawyer if you want to make sure you are protected.

The post on Tuesday 7/2/19 noted that workers on FMLA leave have no right to be 'left alone'. Yep. Here, an employee was fired 6 days prior to expiration of her FMLA leave and lost her suit. Let's look at what happened. She began a business in competition with the employer and took other steps noted in the post. The employer learned of all of that while she was on FMLA leave and asked for an explanation. She did not explain and was fired. Why the court (which is precedential in PA) ruled in favor of the employer is in the post and provides a map for how employers can proceed relative to FMLA leave.

TAKEAWAY: Before contacting an employee who is out on FMLA leave, make sure the purpose of the communication is legal and does not interfere with any FMLA rights.

The post on Wednesday 7/3/19 asked: Can an Association install security cameras in common areas? The answer can depend on applicable law as well as the community's Governing Documents. If cameras are only recording common areas, the answer is probably yes. However, there might be caveats as in the post. There might also be the question of who can approve it: Board or owners. See the post and the Governing Documents.

TAKEAWAY: there is usually no expectation of privacy in common areas, but there might be competing legal concerns; the best way to proceed relative to cameras is to consult a community association lawyer.

The posts on Thursday 7/4/19, here and here, were simple and to the point.

TAKEAWAY: Hope you enjoyed the celebration!

The post on Friday 7/5/19 was about handbooks/manuals and confidentiality: is it legal? This is something that came from the NLRB but, due to all employees' rights, union or not, it is important to you. So the question is whether you can require employees to keep the contents of your handbooks confidential. The NLRB's General Counsel said no. The reasons are in the post. There is, however, a caveat that might come into play – it too is in the post.

TAKEAWAY: While handbooks and manuals are not employment contracts, they DO have legal implications; have them vetted by an employment lawyer to keep you on the safe side of legal.

Finally, in the post yesterday 7/6/19 we learned about workplace legal FAQs: social media, the FMLA and animals. A lot of ground was covered! First up, social media and whether an employee who posted on-line negative comments about the employer be disciplined or discharged. Yes the employee has First Amendment protection, as well as Section 7 protections under the NLRA (regardless of the union status of the employer), but of course the employer also is allowed to have certain expectations of its employees' behavior. This is an open item at the NLRB right now, so consult an employment lawyer and consider taking the steps in the post. Next up is whether an employer can terminate someone who does not return from FMLA leave. This is fact-dependent; start with the FMLA, look at the ADA when necessary (which is often), and consult counsel. Some of the considerations are in the post. A question about animals in the workplace is also dealt with in the post, so check it out. You can also look back at our recent posts, here and here, on that topic.

TAKEAWAY: Questions often arise in the workplace that require good knowledge of applicable law(s) and the relevant facts – while you don't have to consult an attorney with every question, it is not a bad idea when there might be large legal ramifications for an incorrect answer.

Tuesday
Jun252019

ICYMI: Our Social Media Posts This Week – June 23-29, 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 6/23/19 we read about accommodating service animals in the workplace. We suggested you know what is required under which law and put policies in place if they don’t already exist. Yes, the ADA can override your pet policies, BUT the animal in question must be a service animal. The first requirement is that it be a dog (ok, or miniature horse, but that's extremely rare). Next, it must be trained to do work or perform tasks for a person with a disability. Examples of covered tasks, which must be directly related to the disability, are in the post. So how do you know if the animal is covered? What can you ask the employee? Only the 2 questions listed in the post. What you cannot ask or do is also in the post. The animal must remain under control; under certain circumstances (listed in the post), the employer can ask the employee to remove the animal from the workplace. So what do you do if one employee needs the service animal and another is allergic? See the post.

TAKEAWAY: Know what is required under the ADA related to service animals. Also know what may be required, especially if it is more, under applicable state law, Consult an employment lawyer to assist you.

The post on Monday 6/24/19 said: You’ve got my mail: court rejects challenge to employer's computer access. I know you've imagined it – what happens when former employees do things with email and computer files? In the example in the post, the employer terminated its former Executive Director, Robert Christie. They were negotiating severance details when the employer asked for information from him. Christie did not answer, so it went into his computer and looked through his emails. What they found (in the post) resulted in a withdrawal of the severance offer. Christie sued, alleging a violation of the CFAA and other laws (federal and state). The employer counterclaimed (on the bases in the post). The court recently ruled in favor of the employer on all claims. The most relevant is the CFAA claim. The Court said the claim, and potential liability, hinged on the wording of the statute and the facts – see the post for what it meant. The analysis of the other claims is also in the post.

TAKEAWAY: Know how the various laws apply to employer and employee alike – and what remedies are available to whom for any violations.

The post on Tuesday 6/25/19 was about how to prepare your condo or homeowners' association for turnover from the developer. There comes a time in almost every community association where the developer turns over control to owners – the timing may vary, but it (usually) happens. So what should owners do before that time? Ask for copies of certain documents (such as those noted in the post), or at least review those documents (and take notes). Think about doing what is suggested in the post to aid in the transition.  

TAKEAWAY: Applicable state law provides for certain things to happen at turnover; to ensure the law is complied with, or to assist if it is not, consult a community association lawyer.

The post on Wednesday 6/26/19 told us the EEOC sued O'Reilly Auto Parts for sexual harassment and retaliation. (We noted that is not the way for any employee, especially a manager, to act). You know, the same O'Reilly for which you hear ads on the radio. Well, the EEOC alleged in a suit it filed that O'Reilly violated the law by subjecting females to sexual harassment. How? Well … by making sexually charged comments (like asking women for oral sex and other things in the post), grabbing female employees on the buttocks and taking other actions noted in the post. Employees complained. Sometimes managers laughed when interviewing women relative to the complaints. And then O'Reilly managers retaliated as noted in the post. Keep your eyes open as this suit progresses.

TAKEAWAY: Don't let your employees do anything that those in the post did – train them and take appropriate action if deserved.

In the post on Thursday 6/27/19, we learned that you don’t panic! 3 things to know about a recent ADA court ruling.  While the decision was in the auto dealership context, it has wider application, so pay attention. Judith worked as an accounts payable clerk. Soon after she began employment, she had chest pains and went to the ER. She learned it resulted from a panic attack. Judith told her employer and tried to return to work. What happened next is in the post. When she again tried to return to work, she was discharged for the reasons in the post. Yes, she filed a charge with the EEOC and then it filed suit on her behalf, alleging a violation of the ADA. The judge just denied the employer's motion to dismiss and let the case proceed toward trial. Why the judge ruled as he did is analyzed in the post.

TAKEAWAY: There are things an employer can do to help in case of administrative charge or lawsuit – work with an employment lawyer to get those things in place early on.

The post on Friday 6/28/19 was a reminder about trade secrets - courts won’t protect you if you don’t protect yourself! In this example, the company sued former employees and a competitive company they started for misappropriation of trade secrets in violation of the Defend Trade Secrets Act of 2016 and state law. The alleged violations are in the post. The company wanted an injunction and money damages.  The court denied the preliminary injunction after reviewing the facts in front of it. Facts that weighed against the injunction included not having in place any non-disclosure and confidentiality agreement, having no applicable policy, and more noted in the post.

TAKEAWAY: If it's valuable to you and your business, then take care to protect it - evenly and always.

Finally, in the post yesterday 6/29/19 we learned that a court said rumors about sex for promotions constitute actionable sexual harassment. Let's delve into that a bit. We've all heard or seen (but hopefully not experienced) the fact that successful women are often the subject of rumors that they've slept their way to the top. Well, it's that rumor that led to a lawsuit and court ruling. Parker alleged that after rapid promotions, the rumors started to fly about her, which blocked further promotions. She complained. What happened after that is in the post. She sued on the bases of hostile environment, sexual harassment and retaliation. The trial court ruled in favor of the employer. On appeal, the court reversed and remanded for trial on the basis of that rumor (and how it applies – see the post.

TAKEAWAY: Any time something affects employment, especially if there is a complaint, don't sit idly by; instead, properly and fully investigate and take appropriate action.

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.