Monday
Dec042017

ICYMI: Our Social Media Posts This Week – Dec. 3 - 9, 2017

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 12/3/17 told us that B&H Photo settled a race, sex bias suit for $3.2M. (This follows an earlier post we did on this suit). The underlying suit contained allegations of discrimination against women, blacks and Asians who applied for employment at the NY warehouse. The post explains why discrimination was alleged. Now current and former employees get some money for their troubles.

TAKEAWAY: Stay on the right side of the law – hire and promote based on ability and performance, not gender or race.

The post on Monday 12/4/17 showed us Sexual harassment: Congress paid up to $17M in workplace-related settlements since 1997. That's our tax money! And it has gone to pay "settlements and awards to federal government workers in cases of workplace discrimination or unjust working conditions." Private plaintiffs are not guaranteed collecting on settlements or awards, but apparently we the taxpayers fund those guaranteed payments for federal public employees. Read the post for more sordid details.

TAKEAWAY: Know where your tax dollars are going!

In the post on Tuesday 12/5/17 we saw that employees who steal don't win discrimination cases but might win defamation cases. Employers, take heed. Jason worked in the IT department; he had a medical condition that flared up unexpectedly. He was approved for intermittent FMLA leave after being out on FMLA leave a bit. He ended up taking STD leave, intending to parlay that into LTD and retirement. But those plans went awry when the employer found he'd taken company assets and destroyed others. The post gives the specifics – oh Jason. He was terminated. The company also took another action – see the post. Jason lost his disability discrimination and FMLA interference and retaliation claims. But he was able to move ahead on the other claim – see the post.

TAKEAWAY: The company should never have taken the other action, especially when it could have been achieved through another means.  

The post on Wednesday 12/6/17 gave a tip: Employers, take the easy way out: no FLSA jurisdiction. Huh? The plaintiff filed suit under the FLSA, alleging a pattern and practice of not paying the class minimum wages and overtime. More details are in the post. The court looked to see if the definitions under the FLSA were met (so that the employee had the right to sue. It came down to whether or not the employer had annual gross sales/business of at least $500,000. The company argued it did not. The post details what it provided as well as the plaintiff's counter-argument and the court's ruling.

TAKEAWAY: In any suit, make sure the jurisdictional requirements have been met or move to dismiss on that basis – you just might get an easy out.

In the post on Thursday 12/7/17 we asked you to Choose: totally disabled or disabled needing accommodation. The two are not always mutually exclusive. And that makes sense if you think about it. If an employee claims to be totally disabled, then no accommodation could help that person perform the essential duties. If, however, accommodation might help, then the person is not totally disabled. The post gives an example of how this played out.

TAKEAWAY: Be aware of the multiple positions an employee is taking on an issue, especially if they are in conflict.

The post on Friday 12/8/17 was about 3 lessons on holiday parties from "The Office". Yes, the TV show. So what are the tips (from which you can analogize)? One, don't drink so much that you set your hair on fire. A good one! It means that you should always remember that while it is a party, it is a work party – it can affect your job. The other 2 tips are in the post.

TAKEAWAY: Tis the season – for an "oops" at holiday parties and the ensuing discipline – talk to an employment law attorney about how you should (re)act.

Finally, in the post yesterday 12/9/17 we read 5 tips when picking a condo (or other home in a planned community). The first tip is to see if the unit is FHA approved. Why? Because this can seriously impact your ability to finance the sale price (or to sell the unit at a later date). The second tip is to inquire about storage. Whether condo or detached home, know where you can put all of your stuff – you don't want a big surprise after you move in! The other 3 tips are in the post. These tips all lead back to the Declaration (filed document creating the association), Bylaws and any Rules/Regulations – together referred to as the Governing Documents.

TAKEAWAY: The Governing Documents are legal documents that tell you your rights and obligations as an owner– let us review them for you so you know what they say.

Tuesday
Nov282017

ICYMI: Our Social Media Posts This Week – Nov. 26 - Dec. 2, 2017

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 11/26/17 we asked: Want to kill a sex discrimination class action suit? Ford Motor Company case is blueprint. This may not affect too many employers, but it is still instructive for all. The post tells us that the process can be the game-changer – so employers might want to take notice.

TAKEAWAY: If you are engaging in allegedly discriminatory actions, and are the subject of both administrative and judicial actions, resolving one might spell the death knell for the other.

The post on Monday 11/27/17 confirmed: Employee ignored work rules? No unemployment benefits. Yes employers can have rules. Yes they can enforce them. But what is employees break those rules? Can they still recover unemployment benefits? The post answers that question. And explained why.

TAKEAWAY: Know what gives you a valid basis to fight an employee's eligibility for unemployment benefits.

In the post on Tuesday 11/28/17 we reminded you to beware small changes that could be retaliation. If something changes during an FMLA leave, that something might be illegal, even if it's small. The post shows how that plays out – and a court's reaction.

TAKEAWAY: If an employee is taking an approved FMLA leave, don't make changes to the job unless they were in the works before the leave (or can otherwise be legally justified).

The post on Wednesday 11/29/17 was about providing reasonable accommodations under the ADA Regulations. Covered employers (defined in the post) must provide reasonable accommodation to enable a covered employee to perform the essential functions of the job. But what is reasonable? Some examples are in the post. But that comes only as part of the entire process (again, laid out in the post).

TAKEAWAY: Know when you must engage in the interactive accommodation process, when you don't have to, and the reason for each.

In the post on Thursday 11/30/17 we read that not all jokes, propositions are necessarily workplace sexual harassment. Good to know with everything that is going on. First, as the post points out, they have to be "harassment". Then they have to be work-related. There are also other requirements as in the post.

TAKEAWAY: Employers should never condone off-color jokes or sexual propositions, but their mere existence does not necessarily mean that illegal harassment occurred. Check with your employment law attorney.

The post on Friday 12/1/17 was a reminder: personal email is discoverable. A federal judge just served up that reminder in a sex discrimination case. Emails are sent from so many sources – all may be subject to turnover in litigation. The post has a few tips to help in this area.

TAKEAWAY: If you don't want a personal email account to be fair game in litigation, don't use it for work-related emails.

Finally, in the post yesterday 12/2/17 we saw that the feds fined a potato processor $100,000 for employment status discrimination. The allegations were that it discriminated against immigrants during employment authorization verifications. The post tells how certain people were singled out (and why that was allegedly illegal). But it settled, for a lot of taters.

TAKEAWAY: Treat all employees the same unless there is a valid legal reason to treat them differently – and then check with your employment law attorney just to be sure.

Monday
Nov202017

ICYMI: Our Social Media Posts This Week – Nov. 19-25, 2017

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 11/19/17 we noted that one who could get to work on time by waking up an hour earlier isn't entitled to an accommodation allowing her to be late. Seems logical, right? Well apparently not as a case like that made it to federal court here in Pennsylvania. The employee had to be at work at 8:30am and needed 60-90 minutes before driving to allow her medically-prescribed eye drops to work. Her saga is in the post. The employer suggested she wake up earlier to arrive on time; she ended up being discharged. And then sued. The Court's ruling and rationale (which are exceedingly logical) are in the post.

TAKEAWAY: Engaging in the interactive accommodation process is required – but not providing the exact accommodation requested. Or even any accommodation if none is needed.

The post on Monday 11/20/17 noted that it's almost time to deck the (workplace) halls. Read the post. Why? To ensure that you don't offend anyone = give anyone basis for suit. The post talks about some situations and what is or isn't required to be done, along with EEOC guidance.

TAKEAWAY: yes, you can celebrate in the workplace, but in an even, legal way, so check with your employment law attorney if you are not sure what (not) to do.

In keeping with the holiday theme, in the post on Tuesday 11/21/17 we noted it's also time to think about holiday bonuses … Whether to give them is up to you as the employer, but keep in mind how they can affect pay and overtime compensation. First, for non-exempt employees (probably most of your workforce), bonuses are part of "regular compensation" – used to determine the rate of overtime pay - unless they fall within an exception (you knew there was a catch, right?!?). The post explains the exemption for a true holiday or special occasion gift. The post also explains year-end bonuses that don't fall within the holiday gift exception, but are still exempt. Finally, the post provides a short test as to whether a bonus is exempt or not.

TAKEAWAY: You can make your employee's joyous with year-end or holiday bonuses, but make sure you know what if any effect that has on their compensation and overtime pay.

The post on Wednesday 11/22/17 told us Netflix settles after employee accuses it of tolerating harassment and discrimination. And the concerned employee was a former HR Director! After making a complaint and being fired, he sued. The details are in the post, including male on male sex harassment. Netflix' statement in response to the complaint and settlement is also in the post.

TAKEAWAY: Even short-time employees can file charges or suits – don't underestimate them. Of course, the best thing is not to take (or omit taking) illegal action in the first place – or clear any adverse action with your employment law attorney.

In the posts on Thursday 11/23/17, here and here, we suggested you give thanks for all you have and share your bounty with others.

TAKEAWAY: Sometimes we must take a moment away from work to say thank you – to those who've helped us and to those we can help.

The post on Friday 11/24/17 reminded us that a worker must object to harassment before suing. Yep. With everything that is in the news these days, it is timely to remember that an employer cannot take steps to stop or cure harassment or discrimination of which it is not made aware. The post talks about an employee who, after working at the same store for 40 years, quit. Her reason is in the post, as are the types of harassment she alleged occurred. The court's ruling on her suit is also in the post.

TAKEAWAY: Investigate every claim or charge that is made by an employee – and make sure to train your employees to encourage reporting.

Finally, in the post yesterday 11/25/17 we noted that after Harvey Weinstein, contracts that keep employees quiet are under scrutiny. Employees and their employers are free to contract away certain rights that might otherwise exist – but some legislators want to change that. See the post for the pending legislation. The intent is to help clarify the provisions in agreements that some argue are unclear and might deter reporting of harassment and discrimination. The contrary view is that employees sign such agreements in exchange for large sums of money and to protect their reputations and careers. Maybe both are right …

TAKEAWAY: Employers should make clear that NDAs and confidentiality agreements pertain only to work product, processes, and company information, not to illegal harassment or discrimination.

Monday
Nov132017

ICYMI: Our Social Media Posts This Week – Nov. 12-18, 2017

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 11/12/17 we talked about website accessibility - the emerging trend under the ADA. In June of this year, a federal court in Florida ruled against Winn Dixie and in favor of a visually-impaired man under the ADA. Then a mere 2 days later, a federal judge in California allowed a similar suit to go forward. Finally, and more recently, 2 federal judges in NY denied business defendants' motions to dismiss website accessibility suits. The analyses for all are in the post. So how do you know if you should be worried? The starting point is to find out if you are in one of the 12 categories of businesses considered "places of public accommodation" and therefore subject to the accessibility requirements. The post even talks about how it works if there is no physical place of business, but only an on-line presence. A suggested reference is also in the post.

TAKEAWAY: Website accessibility is not the next frontier – it is the current battleground. Check your site now to avoid legal trouble later.

The post on Monday 11/13/17 was about a Court breaking from DOJ on transgender rights. This follows DOJ's announcement that Title VII does NOT prohibit discrimination based on gender identity (contrary to the EEOC's stance). The federal court in Oklahoma issued a ruling in late October in a case brought by a transgender former professor alleging harassment and discrimination on the basis of gender identity after having been denied tenure following her transition. The post tells of the procedural path and why the suit will go forward. The most important part is that the Court rejected the argument that gender identity is not protected under Title VII. The Court also ruled on the claims of hostile environment and the Faragher/Ellerth defense – those too are discussed in the post.

TAKEAWAY: Courts will not always rule on an issue in a particular way just because the government says that is the way they should rule – they will look at the facts and applicable law and make a legal interpretation and ruling.

In the post on Tuesday 11/14/17 we learned that 9 credit unions are hit with ADA suits over websites. The suits were filed in federal court in Virginia by the same plaintiff for alleged violation of the ADA. The basis for suit is in the post. Website accessibility is a big deal now.       

TAKEAWAY: The ADA applies to most businesses and website accessibility is the next (well, current) frontier – make sure yours is legal before you end up on the wrong side of any judicial determinations.

The post on Wednesday 11/15/17 told us that a discrimination lawsuit was filed against a county based on association. Robert Straub worked in the Business Resource Center – he took a 30-day leave under the FMLA to care for his wife. A mere 4 days after he returned from leave, he was discharged. Comments made by the administration (or relatives of administration members) are in the post – and should make you say "yuck". The suit was for violation of the FMLA as well as retaliation for association with Robert's wife, a disabled person.

TAKEAWAY: Remember this category under the ADA – association with a disable person. Don't take action based on that.

In the post on Thursday 11/16/17 we had answers on outside employment, firing works on leave, and the FLSA. The first question is whether a company can prohibit its employees from getting outside work. The answer is maybe – if there is a conflict of interest or it violates a legal policy of the employer. The other 2 questions are in the post with the answers.

TAKEAWAY: Know the law – including legal policies, FMLA leave and how it affects business decisions, and FLSA requirements for overtime pay. Contact an employment law attorney for help.

The post on Friday 11/17/17 was about 3 more former Tesla workers alleging racial discrimination and harassment. Yep, a collective ugh. The newest suit was filed by African-American men. They say that coworkers and even supervisors routinely called them the N-word. And more as noted in the post. Complaints did not make the behaviors stop. When the first suit was filed, Tesla investigated – but see the post for what happened. The suit is pending.

TAKEAWAY: Train your employees – management level and other – on what they can and cannot say and do – and then enforce it, with discipline, even discharge, if necessary.

Finally, in the post yesterday 11/18/17 we asked: is customer info a trade secret? Well, not so fast … In this case, a pharmaceutical-return company tried to enjoin former employees from operating a competitor business. It got a TRO and asked for a preliminary injunction which the competitor company opposed. The court's analysis of the terms of the restrictive covenants at issue is in the post and is instructive on how to draw up such a provision and make it stick, starting with how the company seeking the injunction protects its information.

TAKEAWAY: Restrictive covenants serve a purpose; if you are unsure if yours will be upheld when they come into play, check with an employment law attorney.

Monday
Nov062017

ICYMI: Our Social Media Posts This Week – Nov. 5-11, 2017

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 11/5/17 we noted that no boss should comment on language skills, hearing - unless s/he wants to put the employer at risk. The risk is of the employee claiming the existence of a hostile working environment. The post gives an example about how this might play out. Don't let it play out like this for your company.

TAKEAWAY: Treat employees respectfully – even – and especially – when they are different. Unless it has to do with performance, don't comment on differences in speech or hearing abilities.

The post on Monday 11/6/17 noted EEOC sues Professional Endodontics for age discrimination (and suggested you review your policies). The employer was a dental surgery practice; it is now a defendant in a federal lawsuit brought by the EEOC. The post tells us the allegations relative to Karen, a 37-year employee.

TAKEAWAY: Policies or decisions made solely based on age are most likely illegal – talk to an employment law attorney.

In the post on Tuesday 11/7/17 we noted you should feel free to terminate if you find wrongdoing while employee is out on FMLA leave. (But consult an attorney to be sure.) Remember that the key is not to terminate because the employee was out on FMLA leave; but termination for other (valid, legal) reasons is ok. The post gives an example. Tracey worked for a company and also had her own business; as part of that, she signed an agreement with the employer. The terms of the agreement are in the post. While Tracy was out on FMLA leave, a colleague told the employer she had violated the agreement. She was fired and sued. The post provides the outcome of the suit and the rationale.

TAKEAWAY: Remember the key: termination for a valid reason other than taking FMLA leave is acceptable.

The post on Wednesday 11/8/17 noted for dreadlocked servicewoman, the fight for acceptance is both a military and civilian battle. And she has been fighting this battle for over 4 years. It centers on grooming regulations prohibiting soldiers from wearing natural hairstyles. The post gives the detailed history, including the definition of "natural hairstyle", and what the Army finally did this past February relative to some of the hairstyles. So the military battle is partly won, but the civilian battle remains – see the post as to why.

TAKEAWAY: Dress and grooming policies often include prohibitions on certain hairstyles – make sure they don't infringe on an employee's religious beliefs.

In the post on Thursday 11/9/17 we learned that former Tesla factory workers are suing over claims of racially motivated abuse. This is the 2nd suit against Tesla by African-American workers at the Fremont factory. Tesla said there were no internal complaints filed. The allegations in the suit as noted in the post differ and provide some details about what happened. As an aside, tesla also faces an inquiry before the NLRB on whether or not it sought to suppress unionization.

TAKEAWAY: Make sure to train managers on what not to say or do – and how to deal with co-workers who harass or discriminate.

The post on Friday 11/10/17 was about avoiding employment lawsuits over the holiday season. Yes, you need to start to think about it now. The post mentions some things, including religious discrimination (don't do it!) and accommodation (do it!) and the holiday party – voluntary, mandatory, liability for injury, and more.

TAKEAWAY: Don't stop celebrating the season – just do it legally and so it doesn't infringe anyone's rights or beliefs.

Finally, in the post yesterday 11/11/17 we noted a bus driver fired for refusing "Mark of the Devil" in background check can sue employer. The employee didn't want to be fingerprinted for her background check on religious grounds. The employer fired her, thinking fingerprinting was required under applicable law. She then sued. The post tells of her bases for suit and what the employer could or should have done.

TAKEAWAY: It can be difficult when one law requires an employer to do (or not do) something, but another law requires it to do something else – consult an employment law attorney to help determine which law takes precedence.

Monday
Oct302017

ICYMI: Our Social Media Posts This Week – Oct. 29 - Nov. 4, 2017

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 10/29/17 we asked: did Trump's staff break the law by using private email? Or are they just hypocrites? First, the referenced staff members were his son-in-law (and adviser) Jared Kushner, daughter (and adviser) Ivanka Trump, former chief strategist Steve Bannon, former Chief of Staff Reince Priebus, and advisers Stephen Miller and Gary Cohn. The post includes opinions from 7 legal experts in response to the question and what law(s) might be applicable, especially if there are national security implications. The opinions in the post make interesting reading.

TAKEAWAY: Don't claim someone else did something illegal and then turn around and do it yourself – even if it turns out not to be illegal, you will be a hypocrite. This holds true in the workplace and in politics.

The post on Monday 10/30/17 showed that the Plaza Hotel faces multiple sex harassment charges (and noted it's not 5-star behavior if true). Six employees have filed suit against the prestigious NY hotel (part of the Fairmont chain) alleging illegal behavior by senior management and male colleagues and that the owners did nothing when they complained. The post talks about the behaviors of which they complain.  

TAKEAWAY: If an employee makes a complaint, investigate it – and take action if warranted.

In the post on Tuesday 10/31/17 (and here) we wished you a Happy Halloween and reminded you to follow workplace rules (especially dress codes).

TAKEAWAY: Holidays let employees express themselves, but not to the detriment (or in violation) of company policies.

The post on Wednesday 11/1/17 told us that Blac Chyna sued the Kardashians over slut shaming. Yes it's relevant to the workplace. The suit claims that the Kardashians intentionally defamed and interfered with contractual relations. Not new in their world. But what is new is that it was in the context of slut-shaming which, as the post explains, could be cognizable under Title VII if in the workplace. Ouch.

TAKEAWAY: Title VII and its prohibitions against discrimination have far-reaching effect and implication – make sure to discuss them with your attorney to be sure you are not at risk.

In the post on Thursday 11/2/17 we learned that courts rule Onionhead is a religion but Church of the Flying Spaghetti Monster is not. No this isn't a joke, but something to take seriously because religious discrimination applies to a sincerely-held religious belief (even if not of an organized religion). The post goes over the Onionhead suit brought by the EEOC in 2014 and the suit by an individual (in prison) over the Church of the Flying Spaghetti Monster.

TAKEAWAY: Religion can be amusing, but not when it results in charges or suit for discrimination – know your legal obligations.

The post on Friday 11/3/17 confirmed that yes, fathers are entitled to FMLA leave too. Even if the spouse also takes FMLA leave. But the post does tell us the one caveat.

TAKEAWAY: Keep in mind that FMLA coverage is broader than new mothers - know your legal obligations as an employer.

Finally, in the post yesterday 11/4/17 we learned that 21% of the nation lives in a community association. That means a condominium or single-family home community that is governed by an Association – which enforces the Governing Documents consisting of a Declaration, Bylaws and usually Rules or Regulations. All owners are members of the Association and have both the right to enforce the Governing Documents and also the obligation to adhere to them. The statistics in the post, both as to number and value, are staggering – and they will only increase.  

TAKEAWAY: If you live in a planned community, make sure you know your legal rights and obligations. If you are on the Board of a planned community, make sure you know what you can and cannot do in that role. Consult an attorney knowledgeable in this area of the law.

Thursday
Oct262017

ICYMI: Our Social Media Posts This Week – Oct. 22-28, 2017

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 10/22/17 we learned that a blind, deaf patron denied an interpreter wins in suit against movie theater chain. The federal court said that the theater might need to provide an interpreter to such a patron despite the cost. Why did the suit get to continue? The theater chain's past actions (as noted in the post).

TAKEAWAY: When dealing with public accommodations, you still have the obligation to try to accommodate – make sure you fulfill that obligation so as to avoid being on the wrong side of a suit.

The post on Monday 10/23/17 told us a federal court considers if funeral home must allow staff to cross-dress. Once again, the EEOC filed suit to protect what it sees as religious liberty in "the age of transgenderism". Anthony suffers from gender dysphoria; he told the funeral home employer that he would present as a woman at work. He was fired. The bases of the trial and appellate courts' rulings are interesting and in the post, with RFRA front and center.

TAKEAWAY: The US Supreme Court will ultimately have to answer this question, but until then you have to decide what side of the line you want to be on relative to your workforce (especially given that PA currently has no law prohibiting discrimination on the basis of sexual orientation or identification).

In the post on Tuesday 10/24/17 we talked about recording conversations with your cell phone: with great power comes potential legal liability. Seriously. While it's so easy to just turn on the recorder (or record both video and audio), that might not be legal in the circumstances. For example, a meeting at work. So is it legal? The answer is "it depends". The post tells us what the law is in MI as to possible criminal liability; do you know what it is in PA? (You should find out). What about civil liability? Again the post mentions MI law, but you should know PA law. And can the recorded conversation be used in court? The post says …

TAKEAWAY: Don't be trigger-happy just because you have the ability to record conversations with your handy dandy cell phone – make sure you know the law and how it might hit you if you violate it.

The post on Wednesday 10/25/17 was about 3 things to watch as Yahoo fights male employees' gender discrimination suit. The two plaintiffs say they experienced discrimination because they were men in a company that went too far to promote and hire women. They note that 83% of leadership positions at Yahoo were held by women and say it can only be intentional. Yahoo's defense is in the post – if correct, they are off the hook this time. The post also tells us things to keep an eye on as the case progresses. Also identified in the post, almost as a footnote, is that the case could set some precedents relative to the WARN Act and what must be paid out to covered employees.

TAKEAWAY: make sure there is a valid, legal reason to take adverse action against an employee. Even if you think the employee is not part of a protected group, you might find out to the contrary via a charge or suit filed against you.

In the post on Thursday 10/26/17 we read about tips for determining the right fence for you (and suggested you be alert to condo and HOA rules). More and more people each year live in planned communities – those with an Association to take care of some degree of maintenance. With that comes Rules and Regulations, often about landscaping, decorations, and even doors and fences. In addition to any municipal requirements, including permitting, whether you own a house in a planned community or are on the Board, you need to know what the Governing Documents provide as to fences. See the post for more examples and tips.

TAKEAWAY: Life in a planned community can be great – until an owner violates a rule, even if unintentionally. Make sure an attorney well-versed in applicable law and the Association's Governing Documents helps tell you your rights or obligations.

The post on Friday 10/27/17 was about a suit for sexual harassment and retaliation. Yep, something's fishy here. The suit by the EEOC is against a seafood processor and staffing firm (hence our attempt at humor) for an alleged hostile work environment. The complaint says the staffing firm took the Spanish-speaking female workers to the plant where supervisors and managers harassed them. The post lists the harassment. Despite complaints, it didn't stop. And after 3 of them filed charges, 2 were discharged. Pre-litigation conciliation failed, hence the suit.

TAKEAWAY: Don't harass or otherwise illegally act toward your employees – you will be found out and end up paying for it.

Finally, in the post yesterday 10/28/17 we learned that a supermarket chain was sued for religious discrimination over dreadlocks. Ugh. The employee, a Rastafarian, had been hired but not yet started to work; he was told to cut his dreadlocks or quit. The post tells of his offer to resolve things and the employer's response.

TAKEAWAY: Respect employees' sincerely-held religious beliefs and try to accommodate them, especially if there is an easy fix.

Monday
Oct162017

ICYMI: Our Social Media Posts This Week – Oct. 15-21, 2017

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 10/15/17 we read that a Banana Republic worker claims boss called her braids too ‘urban. All is not well in paradise. Destiny, a black woman, alleges that her manager would not schedule her any more until she removed her box braids. The post has the details. She wears it that way for protection as do many black women. This runs afoul of EEOC guidelines but not all courts have agreed; see the post.

TAKEAWAY: Remember that race or ethnic or national origin discrimination may come in many forms – don't get caught up in any of them. Carefully think through every adverse decision and make sure you are on solid legal footing before taking the action.

The post on Monday 10/16/17 told us of a suit against Whataburger because manager was told to consider only applications that "sounded white". Yes you read that right. A white manager opposed and refused to participate in a directive to hire only white applicants. The reason for that directive is in the post. And how was she to implement it? See the post. When she refused to comply, she encountered verbal abuse, intimidation, threats, and more (in the post). Is it any wonder the EEOC brought suit on her behalf?!?

TAKEAWAY: Remember that Title VII applies to applicants in addition to current employees – don't take adverse action against applicants based on a protected characteristic.

In the post on Tuesday 10/17/17 we were told that in the Facebook age discrimination lawsuit "older workers 'didn't get it'". The suit was brought by a 52-year-old former employee. Comments Facebook allegedly made are in the post. He also says that Mark Zuckerberg, Facebook's CEO, did not respond when he complained about age discrimination. The suit also says that after complaining, he was accused of poor performance and other things (in the post of course).

TAKEAWAY: When taking adverse action against someone in a protected category (or with a protected characteristic), be sure that you have a valid legal reason behind your action.

The post on Wednesday 10/18/17 asked: Could NASCAR team employees be fired for protesting the National Anthem? Richard Petty wants it to be so. But would it be legal? The answer might depend on whether there is an employment agreement (and what provisions it might contain) or if the employment is at-will. See the post for the distinguishing factors between those 2 scenarios.

TAKEAWAY: When looking at taking adverse action as a result of First Amendment expression in your workplace, take into consideration whether or not there is an employment agreement that covers the situation.

In the post on Thursday 10/19/17 we looked at shifting priorities and concerns for the Iranian-American community - things we in the mainstream don't always think about (but should). A recent shift – since January of this year to be exact. The Iranian-American community is comprised of various religious groups, including Muslim, Baha'i, Zoroastrians and Jewish. The post provides some insight on their support of the new administration. The post also looks at changes within the community since the new administration came in.

TAKEAWAY: Don't look at a group bound by ethnicity or national origin as homogeneous – or all having the same beliefs or agenda. Treat them equally and just like all other employees.

The post on Friday 10/20/17 was about the ABC's of HOAs … why not abiding by the rules can get you in trouble. When you live in a planned community – whether condo or single-family homes – you have to abide by applicable state law and the Association's governing documents too. Some of the more common things that residents encounter, and Boards must enforce, are in the VID in the post.

TAKEAWAY:  Life in planned communities is, in essence, life under contract, so make sure you know what the contract says – get the right attorney to review the documents.

Finally, in the post yesterday 10/21/17 we read about sex discrimination: female chef excluded from working at all-male barbeque. Yep, not so tasty. So what happened? A female chef asked her catering company employer to work a private event; her name, as well as the other males who had asked to work it, were provided. She was turned down for the reason in the post. She sued. The rationale behind the ruling in her favor is in the post (and interesting – employees, especially in the hospitality industry, beware.

TAKEAWAY: Let us say it again: if you take adverse action against an employee, don't do it based on a protected characteristic – or you will find out just how pricey is the protection to which the employee is entitled.

Monday
Oct092017

ICYMI: Our Social Media Posts This Week – Oct. 8 - 14, 2017

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 10/8/17 we found out about a waitress fired for pants religious objection. Really. The employee is a Pentecostal which forbids her from wearing the required denim pants. She told the manager that before she was hired. When she arrived for work the first day wearing a denim skirt, she was fired. The employer's reasoning (I use that term that loosely) is in the post. The EEOC sued for failure to accommodate her religious beliefs.

TAKEAWAY: If you cannot accommodate an employee's religious beliefs, make sure it is for a legally valid reason.

The post on Monday 10/9/17 told us that the Trump Administration says employers can fire people for being gay. Yes, this now puts the Administration at odds with the EEOC. The lawyer for the Administration who argues the case said "Employers under Title VII are permitted to consider employees' out-of-work sexual conduct ... There is a common sense, intuitive difference between sex and sexual orientation." Counsel for the plaintiff summed it up in basic terms; see the post. This is all occurring in a case being heard by the full Second Circuit and after the Seventh Circuit recently ruled in favor of the plaintiff in a similar case.                                                                        

TAKEAWAY: LGBT employees can legally be fired in PA for that reason alone, but that doesn’t mean employers should rush to do that – it's not good for morale or business and, needless to say, closes the door on employees performing their jobs day in and day out.

In the post on Tuesday 10/10/17 we talked about how to avoid a sexual discrimination lawsuit. The post gave us 5 tips including setting clear policies, training, and others in the post.

TAKEAWAY: Don't take adverse action against an employee because of sex – make sure any adverse action is based solely on work (non)performance.

The post on Wednesday 10/11/17 asked: Can spousal jealousy provide grounds for a discrimination claim? In the case in the post, the answer was yes. So what happened? The husband and wife owned a chiropractic office. They hired a female massage therapist and yoga instructor. Husband directly supervised the employee. What did he say to her that started this whole mess? See the post. And then a short time later, wife followed that up with a text message (again, see the post). After that, husband fired her. She sued for sex discrimination. And won on appeal.

TAKEAWAY: Yep, what we said above: Don't take adverse action against an employee because of sex – make sure any adverse action is based solely on work (non)performance.

In the post on Thursday 10/12/17 we read that a construction company will pay $125,000 to settle an EEOC race harassment suit. The suit alleged that the company subjected 2 black employees to a hostile work environment, including physical threats, based on their race. The employees were carpenters who were subjected to racial harassment form their supervisor, a white male, both verbally and by action. What he said and did are in the post. The settlement was signed off by the court on September 7th of this year and included both the monetary payment and other equitable relief (listed in the post).

TAKEAWAY: Employees should be treated equally and solely based on performance – don't let race (or any other type of) discrimination darken your company's doorstep.

The post on Friday 10/13/17 was about fat-shaming in the workplace: actionable?  The post starts off with a good question and sets the tone for what follows. Yes, fat-shaming is a thing. And apparently may be a legal basis on which to harass employees and create an hostile work environment. The post first attempts to define fat-shaming. Then it tries to answer the question of whether or not it is actionable. The post goes through some scenarios where it might give rise to a claim, including the language used in one case.

TAKEAWAY: Again, just because taking adverse action against an employee might be legal, that does not mean you should green-light it. You might find that an illegal reason underlies the action, thereby opening you up to liability.

Finally, in the post yesterday 10/14/17 we learned the EEOC sued Con Edison for allegedly requiring job applicants to submit to medical exams and provide genetic information. Ugh. The suit was just filed 9/27/17 in federal court in NY. Why? It says that the company violated the ADA, GINA and Title VII by discriminating against 3 employees with disabilities. What it allegedly did is in the post. Con Ed says it expects to get the case resolved.

TAKEAWAY: These laws are there for a reason – to protect people from actions taken not based on performance, but a protected characteristic that has nothing at all to do with performance. Don't get caught in the trap.

Tuesday
Oct032017

ICYMI: Our Social Media Posts This Week – Oct. 1-7, 2017

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 10/1/17 we learned that an employee's FMLA claims survive because the employer miscounted leave days used. And math used to be so simple. Cleon was a teacher's assistant. He applied for, and was granted, FMLA leave from 2/23 – 5/16/16. Spring break was from 3/25 – 4/1. The post explains how, if at all, that affected his FMLA leave entitlement. When he didn't return from leave, he was suspended and he sued. The employer's motion to dismiss was not granted because of simple math. Read the post to see why.  

TAKEAWAY: As with any statute, know how to apply it properly before taking adverse action as a result of what you think is a violation of the FMLA.

The post on Monday 10/2/17 was about what not to say to EEOC investigators. Well, pretty much anything the employer in the post said when contacted. Especially when it's not true. And just digs the hole deeper.                                                        

TAKEAWAY: If the EEOC contacts you, take these steps: (1) stop. (2) Take a deep breath. (3) Conduct an internal investigation (if one has not already been done. (4) Get all of the appropriate documents and information to your attorney to advise you on how to proceed.

In the post on Tuesday 10/3/17 we looked at time sheet tips to beat FLSA off-the-clock claims. The post was originally aimed at Labor Day, but applies to any day that time worked needs to be tracked (so pretty much every day). Some companies use the honor system, where employees write down their time on a sheet of paper (or enter it into a computer), others use a punch-card system. No matter how time is recorded, employees can claim they worked before or after the hours that were recorded – and that they should be paid for those hours. And unless the employer meets its burden of proving accurate time records, pay it must. The post contains tips on how to maintain those accurate time records.

TAKEAWAY: Follow the tips in the post to help keep accurate time records. Also, put in place, or enforce an existing, policy that prohibits employees from working before or after recorded hours without express authority from an authorized individual, and evenly and continuously enforce that policy.

The post on Wednesday 10/4/17 noted that IHOP was sued for sex discrimination – not too tasty. After conciliation failed, the EEOC sued 2 IHOP franchises when the male GM and at least two cooks allegedly sexually harassed many female employees (including one still in high school), 2 of the females resigned as a result, and (yes there's more) the male GM at a related franchise sexually harassed a male employee. So what did the GM allegedly do to the women? Regular and repeated sexual touching for starters; more details are in the post. Actions allegedly taken by the GM against the male employee are also in the post. The cherry on this sexual harassment sundae? Although the owner and managers were aware of the conduct, they neither investigated nor acted to stop it.

TAKEAWAY: If an employee complains about possibly illegal conduct, investigate immediately (and take action if warranted). If you know about illegal conduct, don't be an ostrich; rather, take action to stop it (and appropriately discipline those who took the action).

In the post on Thursday 10/5/17 we learned that a Pottsville transgender woman settled a discrimination lawsuit. A while ago we wrote about Kate Lynn's long-standing suit against Cabela's – now that suit has been settled and she can move on. Kate Lynn transitioned about 13 years ago. She filed the suit in 2014, alleging that Cabela's fired her in retaliation for her sex discrimination complaints. When the judge allowed her case to go forward under the ADA this past May, he broke new ground. The basis of his decision is in the post and worth reading and understanding (and probably precipitated the settlement).

TAKEAWAY: The ADA specifically excludes transsexualism from its protection, but this suit went forward on the basis cited by the judge in the post; make sure you know the law and how it is or might be applied before you take adverse action against any employee.

The post on Friday 10/6/17 was about a federal court calling time out on employee leaves (and here's hoping this makes its way toward us). You should already know from reading this blog that after an employee exhausts FMLA leave, but needs more time off, employers must look into additional unpaid time off as a reasonable accommodation under the ADA. Or at least that has been the EEOC's position, and courts have often agreed in specific situations. Well the tide may have changed in an appellate decision issued late last month. While not binding here in PA, employers should take note of it (and prepare in case it does become the law here in the future). The post gives the details, including the judge determining the interplay of the ADA and FMLA and whether the employee was entitled to protection from the former after leave under the latter expired.

TAKEAWAY: You should continue to look to the ADA for a possible reasonable accommodation for an employee who cannot return to work after an approved FMLA leave, but make sure the person is entitled to ADA protection first.

Finally, in the post yesterday 10/7/17 we read that the EEOC was ordered to pay $1.9M for frivolous claim against a trucking company. The EEOC had filed suit against CRST Van Expedited in 2007 as a result of alleged sexual harassment. Now, 10 years later, the EEOC must pay a huge amount of attorney's fees to the company. Let's go back and find out why. In 2013, the trial court awarded $4.7M to the company as a sanction for the EEOC's frivolous filing of the suit. The EEOC appealed. The appellate court reversed and sent it back for additional findings; the EEOC appealed to the US Supreme Court and got the appellate decision reversed. However, when the case was back at the trial court (after remands), the company asked for additional fees for work after the original 2013 award. It wasn't successful there, but still got an award of $1.9M (a reduction from the original $4.7M, but still a hefty amount). The post provides details on why the fee award was entered and its circuitous procedural route (which is important to keep in mind when dealing with the EEOC).

TAKEAWAY: While the EEOC is a federal agency with much pull and discretion, it still has procedures it must follow when processing cases; if it doesn’t follow those processes, you may wish to hold it accountable and seek reimbursement for your attorney's fees and costs (but consult an attorney first).