Monday
Dec032018

ICYMI: Our Social Media Posts This Week – Dec. 2 - 8, 2018

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 12/2/18 we saw that Logic Staffing was sued by the EEOC for disability discrimination. Here, Keysi, who is deaf, applied for warehouse positions for which he was qualified. Once the potential employer realized he was deaf, it … see the post. Even though Keysi said he could do the job, the employer said (see the post).

TAKEAWAY:  If no accommodation is requested, you should treat the applicant or employee just like everyone else.

The post on Monday 12/3/18 was an ALERT: Scotus says the ADEA applies to local political subdivisions regardless of their size. In Mt. Lemmon Fire District v. Guido, et. al., the Court was asked to determine whether the numerosity requirement (20 or more employees) applied to all employers or only those engaged in an industry affecting commerce and not States or political subdivisions. The post goes through the background facts and the Court's analysis leading up to its holding. What is really interesting is that Justice Ginsburg delivered this opinion interpreting language (as Justice Alito used to do) and it was unanimous.  

TAKEAWAY: Private employers must meet the 20 or more threshold to have obligations (and potential liability) under the ADEA, whereas States and political subdivisions do not.

In the post on Tuesday 12/4/18 we saw that a scout is suing the Minnesota Twins for age discrimination. Interesting comparison of federal and state law. Howard, who is 60 and lives in Australia, was the Twins' international scouting coordinator; he was good, but he was fired after the 2017 season. See what they said about his performance in the post. He sued for age discrimination. On what did he base his complaint? They hired a 38-year-old as manager, a 33-year-old as chief baseball officer, and more in the post. And the Twins made a (stupid) comment after firing their manager after the 2018 season – see the post. Further, he alleges that 9 other front-office people older than 50 were terminated in favor of younger employees. What's really interesting is the comparison between the ADEA and state law in the post – and why the complaint was filed as it was.

TAKEAWAY: Know the burden each party to a suit must carry – and how you will defend once it shifts to you.

The post on Wednesday 12/5/18 warned you to watch out for homeowner and condominium association rules on holiday lights and decorations. Don't get caught on the wrong foot. Just like many other facets of life in a planned community, there are probably rules about when, what and how owners can decorate their homes for the holidays. The post mentions some things that might happen if there is a rule violation. The post also advises that you read the rules – carefully. Before you decorate.  

TAKEAWAY: Owners get many things as part of living in a planned community; but one tradeoff is having to abide by the Declaration, Bylaws, and Rules.

In the post on Thursday 12/6/18, we read about advice from the NLRB General Counsel on Facebook posts. We also suggested you heed this - because once again it probably applies to ALL workplaces. So what happened? Counsel considered whether an employee at H&M Construction engaged in protected concerted activity by posting comments on Facebook about how employees were treated by H&M's general contractor. How did counsel come down? See the post.  What the employee posted, and why, is explained in the post. The GC mentioned it to H&M, where a supervisor thought it best to lay off the employee. That resulted in a charge being filed with the NLRB. Why the counsel found the post to be protected concerted activity is in the post – and a good tip.

TAKEAWAY: Even in non-union workplaces, employees have their Section 7 right to engage in concerted activities for mutual aid or protection; know how far an employer can go if this becomes an issue. Consult knowledgeable legal counsel.

The post on Friday 12/7/18 was a service animal vs emotional support animal redux, a follow-up to our post on 11/16/18. Do you remember the woman who tried to bring her "emotional support squirrel" onto an airplane in October? This type of thing happens all the time in the workplace, so know the rights and obligations of the parties. The post lists the general definition of service animal under the ADA and how it is limited. The post also notes what the animal must do for the person. A request to bring a service animal to the workplace – usually as an accommodation – should undergo the normal interactive process and not ruled out instantly. Emotional support animals are vastly different – see the post for what they are not, and what they do not do. What is extremely important is the difference under the ADA between service animals and emotional support animals – and that leads into how requests for the latter in the workplace can be dealt with.

TAKEAWAY: Know the difference between service and emotional support animals and how that plays into an accommodation under the ADA.

Finally, in the post yesterday 12/8/18 we learned about the EEOC suit against an employer who retaliated against a race-discrimination suit witness. Ugh. The EEOC alleged that Doug Lytle, the owner of a wedding venue, fired an African-American employee for supporting a co-worker's race discrimination claims. Did we say ugh?!? So what happened? Theo was a witness in another employee's race discrimination suit against a company where Lytle had been a manager. What Lytle did then is in the post. Theo refused to buckle under, so Lytle threatened his job and then took him off the schedule. What the EEOC seeks in the suit is in the post.

TAKEAWAY:  Train your employees on what to say and do and what NOT to say and do – try to prevent potential future liability from loose lips.

Wednesday
Nov282018

ICYMI: Our Social Media Posts This Week – Nov. 25 - Dec. 1, 2018

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 11/25/18 we learned that failure to report harassment may not be fatal to employee’s claim. Employers beware. In a federal appellate ruling that is binding here in PA, Sheri alleged that her supervisor made sexual advances toward her for years. The post contains her reason for not reporting it. Since it was not reported, the company said it could not have known to stop it. Sounds reasonable, right? Well …  see the post as to why that argument failed.

TAKEAWAY:  Investigate and take action each and every time you get a complaint – really.

The post on Monday 11/26/18 asked: What is "de minimis" for pay in light of modern technology? You care because of the requirements of the Fair Labor Standards Act (FLSA) and how easy it is for anyone (including non-exempt employees!) to work from anywhere. The FLSA requires payment, regardless of when the work was performed, as noted in the post. However, there is the de minimis rule and analogous FLSA provision, which is where the question comes in. The post contains the prerequisites in order that it apply and the time spent working not be compensable, along with how that might play out in today's world.

TAKEAWAY: Have a policy on off-the-clock work – including the provisions listed in the post – and strictly enforce it.

In the post on Tuesday 11/27/18 we asked: Can a home be painted any color without HOA or condo association permission? The answer is "it depends". First, on what the Governing Documents say. You know, the Declaration, Bylaws, and any Rules & Regulations. They are the things every owner in the associations lives by – assuming things happen like in the post. If so, then the association can act similarly to the note in the post.

TAKEAWAY: Homeowner and condo associations usually have architectural standards that include paint colors; if they are evenly enforced, then owners must follow the standards or risk being fined (or worse) if in violation.

The post on Wednesday 11/28/18 gave us 15 questions to ask when auditing your employee handbook. And then have it reviewed for legal compliance. Yes, auditing. Reviewing periodically. To make sure it says what you want it to say, fulfills your obligations as an employer, but does not make any additional obligations that you don't want there. So what are the types of things to look for? First, make sure the handbook clearly provides that it is not a contract. Next, if the handbook lists offenses that might result adverse action, make sure to note that the list is not all-inclusive, but merely some examples. Other things to look for are in the post.

TAKEAWAY: Not only should handbooks be the guide all employees must follow and the employer will enforce, it should clearly tell employees what they can expect of the employer, including any applicable legal obligations.

In the post on Thursday 11/29/18, we saw that an ex-assistant coach is suing the team for age discrimination. The former coach is Jim Boylan; the team is the Cleveland Cavaliers. The suit was filed in state court in Ohio by Boylan after his contract was not renewed. While it was the Head Coach who gave him the news, it was supposedly the decision of the General Manager. But it was the words conveyed that gave rise to the suit – see the post. And other things the Head Coach alluded to, which support the allegations in the suit, are also in the post. Even while acknowledging what the Head Coach said, the Cavaliers still intend to defend on the basis in the post

TAKEAWAY: Train your employees in what not to say – it can be oh so important to any liability if adverse action is taken.

The post on Friday 11/30/18 was about what to do when DOL comes knocking at your door. Good tips! Don't play ostrich when DOL comes to conduct a wage and hour audit – know what to say and do to avoid anything that might lead to (more) liability. First, it makes a difference if DOL announces itself with a letter or a literal knock on the door. The difference it makes is in the post. Also in the post is how you must respond if you get a letter. But what should you do if instead you get the knock? First, call your employment lawyer. Do and say what that person says to do and say. Other things to do and say after the knock are in the post, including explanation on why it is appropriate. .

TAKEAWAY: Ignoring DOL, or responding inappropriately or incorrectly, can be as bad as not responding. So when you hear from DOL, contact your employment lawyer and go from there.

Finally, in the post yesterday 12/1/18 we discussed whether it was really a constructive discharge in light of new case law from the governing federal appellate court (meaning you need to know this). In late September, the Third Circuit Court of Appeals announced a new approach to constructive discharge where the employee alleges coerced resignation in lieu of discipline. It came in the case of Holly Judge, a former tenured school principal. She was arrested for DUI, and though she was released that same night, she was not formally charged. Twenty days later, the Superintendent asked her about it and she admitted it. The timeline after that is in the post. That led to her suit filed under several legal theories, some of which were dismissed and others denied through summary judgment. Judge then appealed to the Third Circuit. The Court acknowledged the rebuttable presumption listed in the post, but then went on to explain how constructive discharge claims are to be reviewed. It then listed five factors – see the post – and applied them to Judge's case.

TAKEAWAY:  If an employer is to properly weigh whether to allow an employee to resign instead of adverse action being taken, then these 5 factors must be reviewed to ascertain where the employer really stands.

Tuesday
Nov202018

ICYMI: Our Social Media Posts This Week – Nov. 18-24, 2018

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 11/18/18 we asked: Can your Handbook or Policy Manual hurt you? Then we suggested you let us review it to ensure protection and legal compliance. Ok, you probably guessed the answer is yes, so let's see why. An employee sued the former employer on 11 counts, including for wrongful termination in violation of an employment agreement. One allegation was that the manual was a contract because of what it contained (noted in the post). Of course the employer argued to the contrary. See the post for how and why the court ruled.

TAKEAWAY:  Make sure your handbooks and manuals say what you mean and mean what you say as they will be construed against you and you want to be legally safe.

The post on Monday 11/19/18 told us that turning a deaf ear to insults = $500,000 mistake. Wow! It's great when employees are trained on what constitutes discrimination (so that they do not act illegally). But what about illegal harassment? Here, Augustine sued for disability harassment because of the behavior of a supervisor. What he did is in the post. The key ws that another supervisor backed up Augustine's claims.

TAKEAWAY: Train train train – and ensure that what one person may think is funny is not deemed harassment by others.

In the post on Tuesday 11/20/18 talked about steps to take to update condominium or homeowner association Governing Documents. We suggested you let us help you. So your condo or homeowners' association Governing Documents (Declaration, Bylaws, Rules & Regulations) are either old or outdated or just don't comport with how the association operates. They need to be revised. The first step is to decide who is going to lead the revision process. Then outline the goals of the revision process. Some examples are in the post. Also, other tips are in the post; some depend on the timing of the revisions relative to turnover.

TAKEAWAY: Make sure the Governing Documents are legally compliant while being realistic and reasonable for the community. Involve association counsel in the revision process early and often.

In the post on Wednesday 11/21/18 we saw that Rosebud is to pay $160K to settle a suit. (Yes we possted about the suit long ago.) The lawsuit against the 9 Italian restaurant "chain" alleged sexual harassment and retaliation. For what? See the post. In one instance, Tina, a female server, was sexually harassed by another server, including unwelcome sexual comments and more as detailed in the post (and it's not pretty). Tina complained but nothing was done. Another employee alleged racial discrimination as in the post. The EEOC filed suit in 2013 and it finally settled in 2017, with the judge entering an order approving it just a few weeks ago. What is included in the settlement in addition to the monetary relief is in the post.

TAKEAWAY: Train your employees – all of them – on what not to do or say. Make sure they abide by the training.

In the posts on Thursday 11/22/18, here and here, we remembered Thanksgiving

TAKEAWAY::Sometimes you just have to take time out for thanks and remembrance.

The post on Friday 11/23/18 asked: can businesses discriminate against transgender workers? The right hand says one thing, the left says another. Yes, DOL told the U.S. Supreme Court that businesses can discriminate against workers based on their gender identity without violating federal law. Of course, the EEOC takes the opposite stance. This all came up in a case before the Court – details are in the post. What is interesting is that the EEOC sued on behalf of the employee and won at the Circuit Court, but only DOJ can represent the federal government before the Supreme Court. And hence the different factions and different arguments as noted in the post.

TAKEAWAY: The Court's decision in this case should decide whether or not sexual orientation and gender identity are entitled to protection from sexual discrimination – stay tuned.

Finally, in the post yesterday 11/24/18 we learned that a waitress who refused sexual advances from boss was awarded $52,000. (We noted this would play out the same here in the US.) Upon hire, Anissa thought Nick, the owner, was a good guy. But then she started to see things he did, like kissing waitresses on the cheeks and neck and groping them and more in the post. She confronted him; his response is in the post. She also asked what might happen if someone refused his advances; again, his response is in the post. When she finally told him to stop, things got worse – see the post. Another employee experienced similar treatment (as detailed in the post), but she needed money so she put up with it until she found another job.

TAKEAWAY:  Treat your employees fairly and humanely – that will probably equate to legal compliance.

Monday
Nov122018

ICYMI: Our Social Media Posts This Week – Nov. 11 - 17, 2018

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 11/11/18 we learned that Winn-Dixie urged a court to reverse a landmark ADA website ruling. We noted that this is not yet the law in PA, but you should think ahead just in case. Where did this start? With a June 2017 ruling which found that the Winn-Dixie's website violated the rights of blind internet users and laid the groundwork for an influx of website accessibility lawsuits. Why Winn-Dixie appealed, what the arguments are on both sides, and the possible impact on you(r business) are all in the post.

TAKEAWAY: Sometimes it's best to be proactive even if not legally required; websites may be one of those times.

The first post on Monday 11/12/18 was a thank-you to veterans (and current members of the armed forces).

The next post on Monday 11/12/18 asked: Can employees bring emotional support animals to the workplace? You need to know how to analyze and answer this question. You've probably seen or heard about the "certification" that someone with an emotional support animal offers to show. Is that sufficient for that person to bring the animal to work as an accommodation under the ADA? The post goes through the analysis, including the threshold question of whether or not the animal would provide an effective means to allow the employee to perform the essential functions of the job. The analysis then goes through the rest of the process, as in the post. One of the most important things to consider relative to emotional support animals is in the post.             

TAKEAWAY: Know what type of accommodation is or is not required under the ADA relative to animals – and consult employment counsel if necessary.

In the post on Tuesday 11/13/18 we learned about the law that changes life for airline passengers, flight attendants and airlines that almost nobody knows about. Really. Recently the President signed into law an FAA bill a little before the moment when everyone else in Washington and beyond was watching a key senator's speech about Judge Brett Kavanaugh (with Congressional support as noted in the post). So what isn't in the bill? There are no restrictions on what airlines can charge for baggage or change fees. What is in it? To start, the bill prohibits airlines from "bumping" passengers who've already boarded a plane. It also requires the FAA to set minimum standards for seat width and pitch. And at least 15 other things listed in the post.

TAKEAWAY: It is good to know your rights as an airline passenger – this bill expanded them in some scenarios.

The post on Wednesday 11/14/18 was about why owners hate their homeowners or condominium associations. We suggested you not be one of those associations. In 2016, approximately 69 million Americans lived in a home within a homeowners’ or condominium association, according to the Community Associations Institute, or about 21% of the U.S. population. That's huge! Even among those who actively participate on the association's board, just 57% said they love their association. The post contains more interesting statistics that might help you whether you are someone who lives with an association or are on the board. For example, what are the top three most-hated rules? Lawn appearance and 2 others in the post.

TAKEAWAY: Associations are supposed to make life easier for residents and they do that via the Governing Documents – make sure those documents are not only enforced, but evenly enforced. Let us help you if there is an issue.

In the post on Thursday 11/15/18 we read that an employer's legitimate non-discriminatory reason for termination ended a suit. Here, an executive housekeeper at a hotel had run the department since 1977, including managing 50 people and their payroll. Her employment was terminated shortly after she returned from an approved FMLA leave. No surprise, she filed suit, alleging discrimination and retaliation on the bases of age, taking FMLA leave, and opposing discriminatory practices. The employer's response is in the post. Keep in mind the burden-shifting scheme (also in the post) when there is no direct evidence and you will see why the court ruled as it did (see the post).

TAKEAWAY: Employers should always have a legitimate, non-discriminatory reason for adverse actions; that will serve them well in case of suit.

The post on Friday 11/16/18 was again about emotional support animals in the workplace. We suggest that everyone needed to read this. So you read the post from Mon. 11/12/18. But are you sure of the distinction between support and service animals? It can make a huge difference to your pocketbook (when you are sued for making the wrong decision). Emotional support animals are usually a broader mix of animals than are service animals – the post lists just some types. Service animals are trained to perform a specific function for the owner; contrast that with emotional support animals whose purpose is as in the post. So when deciding whether or not to permit an employee to bring an emotional support animal to work, sue the analysis in the post on Mon. 11/12/18 as well as the considerations in the post.

TAKEAWAY: Even if an emotional support animal is not permitted as an accommodation, you may still be required to provide another accommodation – follow through on the interactive process.

Finally, in the post yesterday 11/17/18 we talked about what is "work" and when is it compensable? Yep, pretty important. You may not have thought about this much, or at all, but the federal Department of Labor's Wage & Hour Division sure has. It has issued 23 opinion letters so far in 2018, six of which were pretty recent. Three dealt with what is compensable time. The first area is travel time; the post looks at whether or not that is compensable and the circumstances. The opinion letter changed a long-standing policy/rule even when there is no regular place of employment – see the post. Next up is whether rest time is compensable. Again, the post analyzes the opinion letter and notes that common sense actually prevailed (for once). Finally, the post looks at compensability of participation in employer-sponsored activities like wellness programs and educational opportunities.

TAKEAWAY:  Know when to compensate your employees – it will be cheaper and easier to do it right from the start than to have to go back over it and pay possible penalties or damages.

Monday
Nov052018

ICYMI: Our Social Media Posts This Week – Nov. 4 - 10, 2018

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 11/04/18 we saw that failure to report harassment is not always a bar to trial. Read on. A frequent defense to a discrimination or harassment case is that the employee did not report the alleged behavior. But what if the employer knew about it despite the failure to report? The post answer that question. At first the court had to determine if the alleged conduct could form a hostile working environment. Its analysis is in the post. Then it let the case move forward on the basis of one thing – in the post.

TAKEAWAY: If your managers know about or witness illegal behavior, they must take action (or refer the matter to the proper person to take action). Failure to do so may subject you to liability.

The post on Monday 11/05/18 noted that NLRB General Counsel urges reversal of Purple Communications. This has to do with email communications and yes, you care! Purple Communications allowed employees to use employer email systems for NLRA Section 7 purposes (union organizing and protected concerted activity) during nonworking time. Board Counsel advised it to abandon Purple Communications and go back to prior precedent – see the post.  Counsel argued for the reversal on several bases, including precedent and others in the post. There is one exception to Counsel's suggestion and that too is in the post.

TAKEAWAY: The open period ran 10/5/18 so the Board may rule soon – and so might the federal court before which the Purple Communications appeal is pending. Talk to your lawyer about what employees can and cannot do with your email system.

In the post on Tuesday 11/06/18 we read about an owner fighting to keep sign in front yard – and asked: how would your Association handle this? Yes, let us help with any problems. The owners painted a "sign" for a political race in their front yard – not just any sign, but one over 24 feet long. The HOA was not happy – and acted as in the post.

TAKEAWAY: Residents of planned communities – those with homeowner or condominium associations – must follow the Governing Documents whether or not they approve.

The post on Wednesday 11/07/18 told us that a "Regarded as" claim does not require an employer's subjective belief (but only the plaintiff-employee's belief - which can be shown through facts). The ADAAA finds someone eligible for protection in the "regarded as" category when the employer believes s/he is disabled. In this case, plaintiff complained of an injury and asked for less physically demanding work. After initial approval, there was a series of twists – see the post. And then what did this employer do that met the plaintiff-employee's burden of possible pretext? See the post.

TAKEAWAY: Not only should employees be trained on what (not) to say and do, the employer too must know how to ace so as not to detract from its possible defense. Use employment law counsel if needed.

In the post on Thursday 11/8/18 we learned that the EEOC sued for improper medical inquiry under the ADA. We suggest you Know what you can and cannot say or ask. Deborah was hired as an office manager in mid-2016. All employees had to give the company a copy of all medical prescriptions. For much of 2017, Deborah took prescribed meds at night but did not provide a copy of the prescription to the employer. Then she was required to undergo a random drug test. The post details what Deborah did and what the company did. The EEOC filed suit for the reason in the post.

TAKEAWAY: Make sure there is a valid reason for all medically-related action or requests. Steer clear of liability under the ADA and GINA.

The post on Friday 11/9/18 suggested that you develop a Handbook specific to your business - don’t just cut and paste a form you found. Among other things, handbooks help set expectations, provide guidance on how to handle conflicts, and, when drafted and implemented correctly, can protect your business from legal liability. But a Handbook that you found on the Internet, or "borrowed" from another business, may be bad for you – and might even set you up for legal liability. Make sure your Handbook includes certain sections, such as Sexual Harassment Policy, Procedures, and Training and others listed in the post. And make sure the entire Handbook is legally valid.

TAKEAWAY: Make sure your Handbook fits your needs and is legally compliant - let employment law counsel help you prepare or revise your Handbook.

Finally, in the post yesterday 11/10/18 we asked: Sexual horseplay or sexual discrimination? The half-million dollar question. Because a federal court recently upheld a verdict against a small Chicago retailer after it concluded that a male employee was the victim of sex discrimination. The employer admitted that the behavior complained of occurred, but its defense is in the post – and interesting.  What behavior, you ask? Much of it is listed in the post and is not nice. And what, if any, role management had – also in the post. See the post for what happened after he complained. He quit and sued. The company's defense was unique but based on the statute itself – see the post.

TAKEAWAY: Know what's going on in your workplace and make sure managers stay within legal bounds.

Monday
Oct292018

ICYMI: Our Social Media Posts This Week – Oct. 28 - Nov. 3, 2018

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 10/28/18 we learned about the new FCRA rule/form for background checks for employment. It came down from the CFPB, the agency that administers and oversees the FCRA. The new form was effective 9/21/18 so make sure you have it. The post rmeinds employers of the timing of steps relative to a background check for employment purposes. The post also has a link to the new form. Use it.

TAKEAWAY:  If you are going to be in business, you need to do it legally – so ensure you follow procedures and use required forms and notices.

The post on Monday 10/29/18 asked if during bankruptcy: Can the Association’s lien for unpaid assessments be stripped off? I suggested you contact me for help when a bankruptcy occurs. The case in the post came out of New Jersey so under the same facts, a Pennsylvania court might not decide it the same way, but often NJ and PA courts see eye to eye. So what happened? The Association was owed $9,000 for filed liens and another $4,700 at the time the owner filed for bankruptcy protection. Monthly dues were $250. The unit had no equity over the first mortgage. The post explains what the court decided and why.

TAKEAWAY: Make sure you protect your Association's interests and act as soon as it is worth it to ensure that more money is not thrown away on the unit in arrears. Get help from an attorney familiar with both community law and bankruptcy law.

In the post on Tuesday 10/30/18 we read about a $3M jury award for gender discrimination. We suggested you make sure you have the facts to back up your defense! This case occurred in federal court in Pittsburgh, so pay attention. A female scientist who worked at PPG for 23 years and then was fired sued, alleging gender discrimination. The facts upon which she made her allegation are in the post, including comments made by her supervisor. PPG disagreed; its asserted defense is in the post.

TAKEAWAY: Whichever side of a case you are on, make sure you have the facts to back up your assertions – it could get quite expensive otherwise.

The post on Wednesday 10/31/18 was a holiday reminder for a Happy Halloween and a reminder: Don't let holiday antics or costumes interfere with your business or policies. There are ways that employees can have fun but still follow policies for attire and behavior.

TAKEAWAY: You have policies in place and expect employees to abide by them – holidays are no exception. Enforce evenly.

The post on Thursday 11/1/18 was about yet another reason to properly classify employees and independent contractors - tax implications to you and them! You already know that proper classification is imperative, but the 2017 Tax Act provides even more impetus. There is a new Internal Revenue Code section providing a 20% tax deduction for certain independent contractors – see the post for details. That might prove to be so beneficial that someone wants to move from being an employee to take contractor status – but the IRS will require proof as noted in the post. The old test used by the IRS for contractor status was replaced in 2018 with a much shorter, 3- factor test; see the post. If someone is classified as a contractor but determined to be an employee, it can be quite expensive for the employer due to taxes and other items that must be (re)paid.  

TAKEAWAY: Make sure to properly classify all workers – don't just go along with their wishes in light of the new tax provision. It will sting you as badly, or worse, than it will sting them, so stay on this side of legal.

The post on Friday 11/2/18 told us about 6 new opinion letters from DOL on the FMLA and FLSA - be aware! They came from the Wage and Hour Division and follow earlier ones issued in April 2018. Two of the letters have to do with the FMLA; one deals with whether employees who request time off to donate an organ are eligible for FMLA leave even if in good health prior to the donation. The second FMLA opinion letter is described in the post. There were also 4 letters dealing with the FLSA. One was about the application of the commissioned sales employee overtime exemption; the 3 others are described in the post.

TAKEAWAY: You need to know not only the law, but any exceptions to it and interpretations by any agency overseeing enforcement of the law. Consult a lawyer for assistance when needed.

Finally, in the post yesterday 11/3/18 we learned that DOL ruled that time spent on wellness activities is not compensable. Employers can breathe a sigh of relief! You know all of those things that you've asked employees to do to keep insurance premiums down? Well, the question was whether or not you had to pay for the time they spent on all of those activities (since they did benefit you). DOL's Wage and Hour Division recently issued an opinion letter on that question (and others noted in our post 11/2/18). DOL's opinion letter was specific as to why the time spent on those wellness activities is not compensable – see the post – and examples of the types of wellness activities it covers.

TAKEAWAY: when employees act in the interest of their employer, they are due compensation – but wellness activities may be an exception if they meet DOL's guidelines. Consult legal counsel to make sure you know whether or not to pay for that time.

Tuesday
Oct232018

ICYMI: Our Social Media Posts This Week – Oct. 21-27, 2018

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 10/21/18 we saw that an Hawaii cable company's 'inflexible' leave policy violated the ADA, EEOC says. The complaint alleges that Spectrum denied leave as an accommodation to some of its customer service representatives at its headquarters. The post talks about the interplay between the FMLA and ADA. Whether or not Spectrum fulfilled its obligations in the interactive accommodation process is also in the post.

TAKEAWAY:  Make sure any leave policy is legally compliant. Just do it.

The post on Monday 10/22/18 told us that a legal marijuana patient wins 'very significant case' against employer who rescinded job offer. We also noted that PA employers should take heed! Federal law still makes marijuana use illegal. But some states, including PA, have legalized at lease medicinal marijuana. The question is whether employers are within their rights to take adverse action against a medical marijuana user. That was the issue in the post when an applicant advised of her legal medicinal use, tested positive, and had adverse action taken. And the ruling, as in the post, may be a harbinger of things to come. Stay tuned.

TAKEAWAY: Know what you are required to do and what you are allowed to do when it comes to an employee's legal medical marijuana use.

In the post on Tuesday 10/23/18 we talked about how Associations can protect against short-term rentals (think Airbnb and others) and the implications/issues. Those issues are usually whether the rental violates Association restrictions by operating as a business and the other one noted in the post. The Association's Governing Documents can ban this type of rental. The reason it's important to do that are in the post. One big reason to ban that type of rental is they are permitted, it could cause the Association’s amenities, such as pools and club houses, to change from ones reserved exclusively for Association member use into ones considered a “public accommodation” under the ADA. The post explains why this is problematic (and expensive).

TAKEAWAY: Protect your Association – make sure the Governing Documents legally ban or limit short-term rentals. Have a community law attorney check for compliance.

The post on Wednesday 10/24/18 was about subtle harassment, code words and implicit bias: proving everyday discrimination in court. Usually there is no smoking gun in a discrimination case, so the subtleties matter. And proving them in court is difficult, but as the post explains, it can happen.

TAKEAWAY: The best way to help your company defend against discrimination suits is to minimize implicit bias by training employees, especially managers.

In the post on Thursday 10/25/18 we saw that a Bath & Body Works manager humiliated employee who requested accommodation. So wrong on many fronts. The employee had vision problems related to a medical condition and asked for a larger monitor the cash register. The employer's response is in the post (and includes what was done to humiliate her in front of co-workers). The employee followed policy, and the result was … in the post.

TAKEAWAY: Don't be an ostrich – honestly and fairly engage in the interactive accommodation process. It will help employee morale and keep you on the right side of legal.

The post on Friday 10/26/18 told us that an applicant who rejected a job offer was entitled to trial on a gender discrimination claim. So what happened? The plaintiff owned and managed a spa for eight years before selling it in 2015. In 2016, she applied to be spa manager at a luxury resort. She was offered a positon and salary negotiators ensured. The post lists some of those steps. The post also talks about who was hired and the eventual pay. The plaintiff sued, resting much of her case on a comment made by the manager (which is noted in the post) and the implications she thought arose from his conduct (also as noted in the post). How and why the court ruled in her favor at this stage is detailed in the post.

TAKEAWAY: Pay based on the position, not the gender of the applicant or employee. And make sure you can support the decision as to what to pay any employee. Otherwise you could be behind the applicant who can refuse an offer and still sue.

Finally, in the post yesterday 10/27/18 we suggested that you don't get confused by "ADA leave". We know that the ADA and FMLA should often be looked at together relative to employees who meet the thresholds. But unlike FMLA leave, there is no such thing as ADA leave. But the ADA may still require accommodation. See the post for an example of how that happened.

TAKEAWAY: Know how and when leave under the FMLA and ADA might be required – consult legal counsel to ensure compliance.

Monday
Oct152018

ICYMI: Our Social Media Posts This Week – Oct. 14 - 20, 2018

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 10/14/18 we learned that a federal court affirmed that employers must provide a background check report to an applicant before relying on it to deny employment. Take heed. Yep, just last month the Court of Appeals for the Third Circuit (which governs PA) held that job applicants could sue a prospective employer under the Fair Credit Reporting Act (FCRA) for failure to provide background check reports (referred to under the FCRA as consumer reports) before revoking offers of employment on the basis of information contained in those reports. The law governs, right? Well, see the post for the defenses asserted by the employer. And also see the post for how the Court ruled on those defenses.

TAKEAWAY:  Knowing the law and following it are 2 different things, but both are required of you as an employer. It can be costly if you don't do both.

The post on Monday 10/15/18 provided tips to protect trade secrets and confidential information on employee termination. Are you worried about former employees taking your business's private information with them? You should be, especially those whose employment was terminated involuntarily. You may not be able to fully prevent that from happening, but you can reduce the risk. First, the timing of when the employee's access to files (hard and electronic is important. The post talks about the ideal time and why. Next, remind the employee about all confidentiality provisions and restrictive covenants that apply after the termination. Again, the post explains how and when to do this. Finally, the post contains 2 additional tips to help minimize the risk of departing employees taking confidential information with them.

TAKEAWAY: It is inevitable that an employee's relationship with your company will end; what is not inevitable is whether you protect trade secrets and other confidential information from leaving with them. Consult an employment law attorney for assistance.

In the post on Tuesday 10/16/18 we read about a suit alleging Party City denied a job to a woman with autism.  Ashley, a high school senior, applied for a sales job in October 2017. She had been told that they needed workers for the holiday season. The manager found out about his autism and severe anxiety. So what did he do? See the post. Even after providing additional information, nothing changed – except that other people were hired. The EEOC filed suit on her behalf.

TAKEAWAY: Don't be dumb – train employees on what they can and cannot say and do. Help them save your face and pocketbook.

The post on Wednesday 10/17/18 confirmed that yes, the Association can do that - within limits. Check the Governing Documents and consult an community law attorney (like @Austin_Law and Sara Austin). What can it do? Tell you what color to paint your shutters. Here, Joseph thought weathered shutters would make his new home look great. He supposedly got verbal approval form the Association to do it. Time passed. The post tracks what happened next. More time passed; the post again tells what happened. He went to a Board meeting and was told he'd be contacted. Nothing – except as noted in the post.

TAKEAWAY: Make sure the Association's Governing Documents (Declaration, Bylaws, Rules & Regulations) permit what you want to do – before you do it – or you can be made to remove whatever it is.

In the post on Thursday 10/18/18 we asked: On or Off? What to do with email when an employee is on FMLA leave. This is a question faced by employers every day when continuous FMLA leave is approved. If there is no policy applicable to leaves, the employer must figure out what to do. The post mentions some rationale behind turning off email access. The post also mentions some rationale for leaving it on. Finally, the post talks about how to implement either as a policy and practice.

TAKEAWAY: Even though an employee on FMLA leave is not supposed to work, there might be reasons to leave on the work email. Make sure you have a policy and then follow it.

The post on Friday 10/19/18 was a reminder that anti-discrimination laws don’t protect someone not meeting performance goals. Even if the person is pregnant. While the Pregnancy Discrimination Act prevents treating pregnant employees differently because of the pregnancy, it does not require that they be treated more favorably. The post explains it well.

TAKEAWAY: Treat all employees the same – even pregnant ones – and make sure they meet the requirements of the position.

Finally, in the post yesterday 10/20/18, we saw that the EEOC sued Interim Healthcare for sex-pay discrimination. The suit alleges that the company paid female nurses less than male nurses who performed the same services and that the company did not remedy the situation after complaints. More details are in the post. Also, why the EEOC filed the suit is in the post.

TAKEAWAY: Pay all employees the same for doing the same job – unless there is a valid legal reason for a pay differential.

Monday
Oct082018

ICYMI: Our Social Media Posts This Week – Oct. 7 - 13, 2018

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 10/7/18 we learned about the proposed NLRB Joint Employer Rule: Substantial Control Requirement. Yes, it's back. The Board feels that this issue,”has significant consequences for the businesses, unions, and employees alike ….” The post talks about the starting point in a joint employer determination and the history of this saga through the Board. The post also talks about the implications of the current status and what the proposed Rule will do.

TAKEAWAY: Be aware of this as it will no doubt spill over from the union environment to the non-union workplace; know how you and your partners might be treated.

The post on Monday 10/8/18 told us that IHOP stores settle with the EEOC for $1M. OK, it's a $975,000 settlement over allegations that management turned a blind eye to sexual harassment directed at 16 teenage employees. Ugh. The post mentions the alleged conduct which, unfortunately, goes beyond sexual comments.  

TAKEAWAY: Just don't do it - and train your employees not to do it. The EEOC has a huge push to protect teen workers against discrimination and harassment and will litigate if necessary.

In the post on Tuesday 10/9/18, we saw that an Association is to pay a penalty for failure to reasonably accommodate. The woman asked the Association to remove carpet from her second-floor, one-bedroom condo and install hardwood floors. Why she did that is in the post. She also provided a letter from her downstairs neighbor saying there was no objections to the flooring change. But the Association denied the request; its basis is in the post along with more undercutting it.  

TAKEAWAY: Don’t end up like this Association – consult a community lawyer to stay on the right side of legal and know if, when and how to reasonably accommodate.

The post on Wednesday 10/10/18 asked: Is it "debt collection" if you never asked for money? The Supreme Court will hear arguments on this issue during its current term. First, why do you care? Because the law requires certain things of debt collectors and they can be liable for damages if they don't follow those steps. So what exactly does the term “debt collection” mean in the context of the FDCPA? As noted in the post, Congress did not define the term “debt collection” anywhere in the Act. Further reasons this is still a question are in the post. Federal appellate courts have reached different conclusions on whether a “debt collection” communication must make a demand on the debtor for payment of money in order to be subject to the FDCPA; their rationale is in the post. The case before the Supreme Court is on whether the FDCPA applies to a collector’s communications made in connection with non-judicial foreclosure proceedings, but the ruling might come down more broadly and give guidance.

TAKEAWAY: Make sure you know the law of your state if you are collecting another's debt – don't get caught on the wrong legal foot.

In the post on Thursday 10/11/18 we saw that a jury claps back at age insults and awards millions. After deliberating for 4 days, the jury awarded a record-setting sum to a California woman who, after 36 years on the job, was replaced by a much younger man. What did they give her? Sit down and see the post. It all began when her supervisor started to make remarks about her age. Some of them are in the post. The company chose not to settle and now has an uphill battle to get the jury's award reduced.

TAKEAWAY: Don't get behind the 8 ball; train your employees from the start on what not to say.

The post on Friday 10/12/18 questioned whether it is a boys club at Spotify or just part of doing business? That is the basis of a suit filed by Hong Perez, an Asian-American woman and former sales leader at Spotify. Some of her allegations against the male leader of US sales are in the post, along with the fact that they were internally referred to as "boys' trips". The post includes her allegations about discrimination in pay due to gender and what Spotify made her do. Stay tuned as this progresses.

TAKEAWAY: Workplace culture has changed and it now must have nothing to do with rewarding one gender over the other for reasons unrelated to performance – make sure your business complies.

Finally, in the post yesterday 10/13/18, we learned about a $165K #settlement with the EEOC for a manager trainee. That's a lot of bucks! A large sporting goods retailer will pay that amount and provide other relief to settle a racial discrimination and retaliation lawsuit. Allegedly the manager and assistant managers subjected management trainee Robert Sanders, the only African-American, to ongoing racial harassment and death threats. Some of what they did (which is repugnant) is in the post. Sanders was forced to go on several leaves due to stress and was eventually fired.

TAKEAWAY: We've said it before, even earlier this (here), but we will say it again: train your employees on what they can and cannot say. It can mean a huge difference to your pocketbook.

Tuesday
Oct022018

ICYMI: Our Social Media Posts This Week – Sept. 30 - Oct. 6, 2018

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.

The post on Sunday 9/30/18 provided confirmation that sleeping on the job is a terminable offense. Seems like a no-brainer, right? Well …. The plaintiff was employed by BNSF Railway Co. from 2012 until Aug. 26, 2016, as a border custom clerk. When she complained of exhaustion, she was told to contact the EAP. She did not. What happened after that is in the post. This was not an isolated incident over a period of many months. The court analyzed the facts and gave its reasoning for the outcome – see the post.

TAKEAWAY: Have policies and enforce them – they can save you when an employee doesn't follow them.

The post on Monday 10/1/18 told us that the EDPa says proper forum for collection suit is where plaintiff resides or signed contract. In this federal suit in PA, the question was where a collection lawsuit against a consumer should be filed. Here, Drexel University accepted plaintiff as a student, sending the offer of admission to his residence in Virginia. He e-signed the Tuition Repayment Agreement, important terms of which are in the post. Later log-ins to the system were from PA. When he withdrew from Drexel, he owed tuition. Drexel filed suit in state court in Philadelphia. The post walks us through the procedure after that. The plaintiff then filed this FDCPA case against Drexel’s debt collector in federal court for allegedly failing to comply with the statute by filing the collection action in the wrong state. The court looked to the contractual and statutory language in making its decision as outlined in the post.

TAKEAWAY: the first thing a court will always look at is the document or statute at issue – know what they say and get legal assistance.

In the post on Tuesday 10/2/18, we read about a pain in my butt: UPS manager's comments factor in decision to send ADA case to trial. The employee says she was fired because she is disabled. The federal court said there was enough to let the case go forward. Its rationale is in the post.

TAKEAWAY: Training managers on what to say and do – and what NOT to say and do – is more important than ever. Do it.

The post on Wednesday 10/3/18 told us that digitizing Association data is a worthwhile  investment. What types of documents, data and records do community associations have? Policies, proposals, statements, invoices, ballots, contracts, correspondence and more. Most of that is digital now, but what about older stuff? Digitize it. Many of the reasons are in the post, as are the options for accomplishing that. Considerations as to what to save (transfer to digital media) and what to let go are in the post.                          

TAKEAWAY: Digitizing data makes it easier to store, easier to access, and easier to be transparent to members. So why not do it?!

In the post on Thursday 10/4/18 we asked a question about the FMLA: How much time off are employees entitled to? So let's say that an employee takes time off, and then later becomes eligible for FMLA leave. Does that trigger entitlement to an FMLA leave? The post analyzes the example and the law and comes up with the answer.

TAKEAWAY: Know how and when the FMLA is triggered so that you can properly account for leave time.

The post on Friday 10/5/18 gave us a 30-Day warning: Major changes to PA Contractor and Subcontractor Payment Act (CASPA). We suggest you know what's coming! The new law applies to construction contracts entered into on or after October 10, 2018. The purpose of the amended CASPA is to provide contractors, subcontractors or suppliers with more robust protections to better ensure prompt payment for completed work. CASPA, as amended, contains 5 new parts. First, there are four key changes to strengthen protections against over-withholding and, most importantly, even against good-faith withholding without timely notice. The post goes through each of the changes, along with contract and project considerations (see the post), Next, the amendments add a framework for contractors, subcontractors and suppliers to stop work if they are not timely paid; the post provides more details. The third and fourth changes are in the post, along with contract and project considerations for each.

TAKEAWAY: Contracts that exist prior to the effective date of the CASPA amendments will be governed by the existing law; new contracts by the amended law. Know that the changes are and how they affect you.

Finally, in the post yesterday 10/6/18, we saw that Infosys was sued by an ex-employee over wage complaint. The plaintiff alleges that the company refused to pay him overtime for hours he worked on nights and weekends under the threat that he would be sent back to his native India if he persisted in seeking payment. How many hours are at issue and more background facts are in the posts; it is not minimal. Infosys denies the allegations. The post specifically mentions what one manager did and said as central to the suit. And as if that isn't enough, Infosys has had similar issues several times in the past – see the post.

TAKEAWAY: Stay on the legal side; pay employees the proper amount for all time worked. Period.