Tuesday
Jan152019

ICYMI: Our Social Media Posts This Week – Jan. 13-19, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 1/13/19 we continued the post-holiday theme with ... Moving up the naughty list: following your policy can provide a complete defense. Do you have a (progressive) discipline policy? Do you follow it uniformly? These are important questions. In the case in the post, Todd, over 40 with OCD and bipolar, worked at a hospital with a progressive discipline policy. He quickly moved through the steps; after a certain violation (listed in the post), he was discharged. Todd sued under the ADEA and ADA. The hospital moved for summary judgment. The federal appellate court's rationale is in the post.

TAKEAWAY: Have a discipline policy and use it uniformly.

The post on Monday 1/14/19 was about qualification standards vs essential functions: one can lead to suit for alleged violations. Know the law. Yes this all goes back to those pesky (not really) job descriptions. You must know the difference between an essential function of the job (which should be in the job description) and a qualification standard used for an ADA accommodation. The post explains the difference according to the EEOC. For examples of each, including a court decision, also see the post.

TAKEAWAY: Make sure your job descriptions and accommodation efforts are both based in reality – consult employment law counsel before you are in court.

In the post on Tuesday 1/15/19 we thought: His, hers, other. SCOTUS will hopefully revisit this and provide a final decision. This plays out every day all around the country: someone who was born one gender and transitioned or is in the process of transitioning but identifies as the new gender, uses the restroom of the new gender. Someone else gets upset. Suit is brought. The background in the case at issue is in the post. The Third Circuit Court of Appeals, which governs PA. upheld the policy enacted by the schools (which is detailed in the post). Now the case is at the Supreme Court. Soon we may all know if Title VII (and Title IX) protect transgender persons. The question is whether the word "sex" in the statutes is expansive enough to include gender identity, something that was not at all thought about at the time the statutes were enacted. More background is in the post.

TAKEAWAY: Not knowing how SCOTUS will rule, the best way to act relative to transgender employees is just to treat them like every other employee.

The post on Wednesday 1/16/19 asked: can an Association dictate the type of replacement window? When you live in a house that lies within a planned community, with a homeowners' or condominium association, the answer is "it depends". The first thing to do is review your Governing Documents – the Declaration, Bylaws and Rules/Regulations. See the post. Those documents might answer your question. If not, consult a community association lawyer (like Austin Law Firm).

TAKEAWAY: Before you buy into a planned community, know what you will or will not be able to do as concerns your future home – you will be held to it after purchase (and can hold other owners to the same things).

In the post on Thursday 1/17/19 we saw that an employer must reinstate former employee who shared staffing concerns with media. Note that this might well go beyond the health care industry, so be careful even in your non-union workplace. Yes, this is a decision from the NLRB. Yes, you are a non-union workplace. But yes, you need to pay attention because some portions of the Act apply to ALL businesses, union or non-union. See the post for statutory reference. So what happened? Karen-Jo was a hospital activities coordinator. She contacted a newspaper as to coworker concerns about the hospital's staffing. When it was printed, she was fired. She filed a charge with the NLRB. After a 2-day trial, the ALJ issued a decision. His rationale is in the post and can easily be extended beyond the health-care industry

TAKEAWAY: We will say it again: even non-union businesses need to heed the protections given to employees in some portions of the NLRA – contact employment law counsel if you think something in your business might be implicated.

The post on Friday 1/18/19 was about how to fire someone fairly: Document your decision. In real estate, it is location location location. To employment law attorneys, document document document. As noted in the post, documentary support can win a case for you. Here, Detra, a teacher, took FMLA leave for several conditions. The first time, she completed an FMLA form and it was approved. The rest of the background is in the post. When an issue relative to the approved FMLA leave arose, Detra complained and … see the post. Then, after what happened as in the post, Detra was discharged. She sued. How and why the court ruled are in the post.

TAKEAWAY: An employee against whom adverse action is taken may be considering filing an administrative charge or suing, or may actually do it; you need to be prepared to support your decision as being legal.

Finally, in the post yesterday 1/19/19, we saw an employer was to pay $80K to settle an EEOC sexual harassment case. We also noted that sadly, quid pro quo harassment lives on. Here we saw that Nick, a former manager at a Subway location, sent text messages to two 17-year-old female job applicants. What the messages said is in the post. The EEOC ended up filing suit. The post also lists the terms of the settlement.

TAKEAWAY: Know what is legal and train your employees – don't wait until you are adefendant in a suit.

Monday
Jan072019

ICYMI: Our Social Media Posts This Week – Jan. 6 - 12, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 1/6/19 we noted a corporate mole is bound by preliminary injunction (and suggested you k Know who is accessing and using your trade secrets). Employees leave jobs all the time, right? And when they leave, they leave behind someone on the inside to talk about the employee's new job and new employer, right? Nope! But that/s what happened in the post. And to make matters worse, the former employees all had non-compete agreements, but the mole didn't. So how or why was he stopped? That's in the post.

TAKEAWAY: we'll say it again: know who is accessing and using your confidential data and trade secrets and protect them.

The post on Monday 1/7/19 talked about $1.75M reasons to settle allegations of discriminatory leave policies. Wow! That is how much a large company in the health care industry. The EEOC alleged that the company's leave policies did not properly accommodate disabled or pregnant employees. What else? See the post. Not only is the company paying that large settlement, it must take the other actions listed in the post.

TAKEAWAY: don't just have policies, have policies that are legal and enforceable. Consult an employment law attorney to give guidance.

In the post on Tuesday 1/8/19, we read that an owner wants Board decision followed even if budget may not allow for it - right or wrong? Has your Association ever faced this dilemma? Here, an owner wants the Board to stick to its original maintenance schedule despite the funds not being there. The post talks about whether the Board can reverse its prior decision. The post also talks about some situations where the Board could NOT reverse its prior decision.

TAKEAWAY: Boards have a fiduciary duty to fulfill the Association's maintenance obligations, but within reason and financial ability – know what the Board can or cannot, and must or must not, do. Call on a community association lawyer to help.

The post on Wednesday 1/9/19 told us that the EEOC dropped a suit against company for alleged disability discrimination. I said I’m not buying it because if there was insufficient evidence of a violation, the EEOC wouldn't have filed. Or, conversely, if the employer thought it was right, then why wouldn’t it want legal fees reimbursed? Here, Justin had worked there 10 years. He was then diagnosed with depression. With that as a basis, the EEOC sued the printing and packaging company as noted in the post. The company asked that the suit be dismissed; its reasoning is also in the post. The EEOC's attorney wouldn't discuss details of the case and reason the company didn't seek fees and costs is in the post. Hmmm ...

TAKEAWAY: Make sure you have a valid basis for any adverse decision before you make the decision.

In the post on Thursday 1/10/19 we saw that Mrs. Field's Cookies settled a discrimination case. We reminded you not to forget about this law when differentiating among employees. So what happened? The company allegedly discriminated against non-US citizens who were authorized to work in the US – how and when it was done is in the post. But the company did not ask the same thing of US citizens, and therein lay the rub (and violation of the statute noted in the post).  

TAKEAWAY: Whatever the law that applies, make sure to look at it, or what it requires, in the same way for all employees.

The post on Friday 1/11/19 reaffirmed that an employer owes employees more than a paycheck. Or so says the Pennsylvania Supreme Court. In its recent ruling, the Court upset the previous apple cart. So what happened? UPMC was hacked – the thieves stole employee names, SSNs, and more in the post. Ugh. The employees sued, alleging that UPMC did not encrypt their data or establish adequate firewalls, along with other claims noted in the post. The basis for the duty allegedly owed to the employees, which, when violated, led to the alleged failures, is also in the post. The Court agreed with the employees, imposing a duty of reasonable care on UPMC as the employer. How it got to that point, including assumptions it made, is in the post and notable. Note that this decision is contrary to a recent one from the federal Third Circuit, which includes Pennsylvania.

TAKEAWAY: Don't wait to find out if you have a duty to protect your employees' confidential information; just do it. Put the best safeguards in place.

Finally, in the post yesterday 1/12/19 we discussed employers' gifts to (former) employees' attorneys at the holidays (or any time of year) (and suggested you pay attention). Yep, you read it right – employers often give gifts to the attorneys representing their former employees. The post unwrapped the gifts, including performance evaluation puffery, protective instincts, and more. The first noted area is a gift because it almost always backfires in some way; when it is as part of a suit, it is just plain ugly. The post gives a common example of how it plays out. Likewise, common examples of the other "gifts" are also in the post so that you can see how easy it is to help out your former employees when you don’t intend that.

TAKEAWAY: Make sure employees are treated fairly and honestly; don't make the job harder for your attorney by giving ammo to the former employees who become plaintiffs in suits.

Monday
Dec312018

ICYMI: Our Social Media Posts This Week – Dec. 30, 2018 - Jan. 5, 2019

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 12/30/18 we advised you to beware the contractual boilerplate - you may end up where you don't want to be! Here, Kathleen worked for AT&T for over 30 years. She was going through chemo at age 60 when she was discharged. She sued for age and disability discrimination based on the terms of the discharge (which are in the post) and how that played out (also in the post).AT&T offered to settle and provided a draft release; Kathleen didn't sign it, but included allegations about it in her suit. AT&T moved to strike since the release wasn't signed. Kathleen's contrary argument is in the post. How did the Court hold? See the post. AT&T also asked the Court to dismiss the case for lack of jurisdiction. The Court's reasoning in denying that motion is interesting and in the post.  

TAKEAWAY: make sure all legal documents are legally compliant from the start – in case you are hauled into court even where you don't think you will be.

The post on Monday 12/31/18 was about a year-end bonus or incentive payment (and asked): Can an employer withhold the money from the employee who took FMLA leave? The answer this time is actually not "it depends", but is definitive (and in the post). How that answer plays out is also in the post. Know the law that applies to you (and your employees.

TAKEAWAY: Make sure you know how FMLA is treated for monetary issues – consult employment counsel if needed.

In the posts on Tuesday 1/1/19, here and here, we wished for you a Happy New Year and that the only hot water you see in 2019 is salty and near swaying palm trees!

TAKEAWAY: it's a new year - and another opportunity to stay on the right side of legal in your business.

The post on Wednesday 1/2/19 was another warning: be careful about how your association handles owners' personal information. Privacy is a big deal! Unlike in the post, Pennsylvania law does not mandate any specific information to be collected by an association (other than that to meet the requirements of Sections 3407 and 5407 of the relevant Acts). However, the tips in the post, such as being careful of who can see what information comes into the Association and how they access it, are useful and prudent.

TAKEAWAY: Being a good fiduciary includes keeping confidential what should be; know how to do it for your Association.

In the post on Thursday 1/3/19 we asked: when is an otherwise harassing comment not harassment? We also noted that this scenario would probably play out the same here in the US. So what happened? Mr. Evans worked as a sales rep for almost a year. He was called into a meeting for a PIP prior to being discharged. The PIP was never instituted because he complained about how others addressed him (see the post). He also complained of race and disability discrimination (for which the bases are noted in the post). The employer said that his discharge was a result of poor performance. The court agreed with the employer for the reasons in the post, including the office culture (specifics in the post) and whether Mr. Evans himself participated in it.

TAKEAWAY: Train your employees on what not to say or do and ensure that all facts are at hand when an adverse decision is made – consult legal counsel if you are unsure.

The post on Friday 1/4/19 noted that Amazon's Alexa on the witness stand is going to be a killer for privacy. The digital world inches closer to what fantasy or sci-fi used to be … Yes, Alexa (or her counterparts, all referred to as Alexa for these purposes) can be helpful. Yes, Alexa can be fun. And yes, Alexa might be used against you. Alexa records information, lots of it, to be useful and fun. That is information that you might think is private and might want kept private. But what if that information was helpful in a court case? The post gives but one example of how that question is playing out right now. The post also mentions how that might be expanded and distinguishes Alexa from email and their purposes.

TAKEAWAY: Just as with the rest of the Internet of Things, be careful how you give out personal information and to whom – indeed it might be used against you.

Finally, in the post yesterday 1/5/19 we learned that CBS has grounds to deny Moonves his (up to) $120M severance. We noted that it doesn’t matter who you are, the truth will come out. Unless you've had your head in the ground, you know that CBS fired its former CEO Les Moonves as a result of allegations of sexual misconduct and misleading investigators. The post notes portions of the report prepared by the Board, including that after 4 interviews, they didn't believe Moonves and he mislead them (to say it nicely). Initially 6 women alleged sexual misconduct by Moonves, but the post notes there is another (and what he did in that instance).

TAKEAWAY: Employees, no matter how high up the food chain, should not violate the law. But if they do, you need to know how to (re)act and what, if any, monetary implications follow.

Thursday
Dec202018

ICYMI: Our Social Media Posts This Week – Dec. 23 - 29, 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 12/23/18 we learned that employer obligations under the FMLA exist even before an employee satisfies eligibility. Yessirree. So what are some of those obligations? First, employers cannot manipulate the size of the worksite or number of hours of work available to avoid threshold eligibility for FMLA leave. And what about inducing an employee to waive FMLA rights? The post talks about that. Another thing the employer may not do: retaliate against an employee who requests to take FMLA leave once eligible. The post contains even more things an employer must or must not do prior to FMLA eligibility.

TAKEAWAY: As with any statute, know your rights and obligations under the FMLA before you do it incorrectly or get sued.

The post on Monday 12/24/18 talked about what the holiday movie 'Elf' can teach us about the ADA. Yes, the fun movie where Will Ferrell is elf Buddy. Early on Buddy learns he is not an elf when he has toy production issues. The assumption on which the post is built is that Buddy's height is a disability to which the ADA applies. So the first question is whether Santa and the elves must lower production standards for Buddy. No – but they may need to provide reasonable accommodation to help Buddy due to his disability. The post gives an example of how that might work. But what about transferring Buddy to another position as a reasonable accommodation? That is the accommodation of last resort under the ADA and only when the 2 prerequisites listed in the post have been met. And then other things have to happen for the transfer to be a valid reasonable accommodation – again, see the post.

TAKEAWAY: Movies are entertaining, but real-life lessons can be learned, especially when it comes to possible different ways to reasonably accommodate a disabled employee.

In the posts on Tuesday 12/25/18, here and here, we wished you and your families a Merry Christmas and more.

TAKEAWAY: Sometimes you just have to step back and enjoy. Period.

The post on Wednesday 12/26/18 asked: Is veganism a religion? One man seems to think so. He alleges that he was fired for disclosing investments in animal testing. The question, so nicely posed by the post, is "if someone firmly, and sincerely, believes animals are our partners and friends and that any and all forms of exploitation are immoral, to an extent that goes beyond a dietary choice and amounts to an article of faith, couldn't that fall under the hearing of a religion?" The timing of this matter is ironic considering what had just happened not long before (see the post).

TAKEAWAY: One man's religion is not always another's – but if a sincerely-held belief, then it qualifies for legal protection. Keep that in mind.

In the post on Thursday 12/27/18 we asked another question: Can a Director resign from the Association's Board for any reason? Do you know what PA law says? The answer is probably "yes". Directors are volunteers, albeit elected or appointed ones, but still volunteers. If they don't want to serve in that capacity any more, they can't be forced to remain. The post gives a bit more detail. .

TAKEAWAY: Board members should be treated with respect and gratitude – they represent the interests of all owners, equally, and must enforce the Governing Documents whether or not they like the contents.                   

The post on Friday 12/28/18 talked of a blind man suing the Playboy website for not being user friendly to all. You read that right. He says he wants to read the articles but can't. Donald sued for violation of the ADA, saying the website is not compatible with his software. More of his arguments are in the post. Playboy did not comment.

TAKEAWAY: The question of whether websites deserve ADA protection is winding its way through the legal system – the best way to act now is to make yours accessible and then it won't matter on which side the courts come down.

Finally, in the post yesterday 12/29/18, and in keeping with a mini-theme, we noted that when the witch in the office asks for the solstice off, don’t laugh, she’s not joking. A small percentage of Americans identify as Wicca or Pagan (but more than identify as Presbyterian!), so don't stick your head on the ground on this one. Employers must accommodate religious beliefs - to the extent possible - regardless of which religion. The post explains what might be a religion under Title VII (and why Wicca might qualify). There are some common religious accommodations an employer might consider, including exceptions to the company's dress code, schedule changes, and more listed in the post.

TAKEAWAY: Unless you can show an undue hardship, which is difficult and rare, be prepared to accommodate employees' religious beliefs (even if you don't agree with those beliefs).

Monday
Dec172018

ICYMI: Our Social Media Posts This Week – Dec. 16 - 22, 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 12/16/18 we asked: Individual liability for owners? Possibly. Read on. Why? So you know whether or not you individually are an employer. You may not be the majority owner, but if you have other authority, you may be classified as that person's employer for FLSA purposes. Got your attention now, huh?!? The FLSA defines an employer as one who "exercises control over the nature and structure of the employment relationship, or economic control over the relationship." Courts have devised tests arising from that definition; see the post for one example. When the factors were applied to the facts of that case, someone who thought he probably had no liability was surprised at the court's analysis – see the post.

TAKEAWAY:  When you take on responsibility, know what else you take on, such as potential statutory liability as an employer under the FLSA. Consult employment law counsel if you are unsure.

The post on Monday 12/17/18 told us that an employee may proceed with claim that employer led her to believe she could take FMLA leave before qualified. We suggested you make sure you know what your managers are promising or a court may force you to fall on that sword. You know the eligibility requirements before someone can take FMLA leave, right? And one is that eligibility must precede the leave, right? Well … Here, Angel was an administrative assistant. She told her employer she needed surgery and scheduled it for just after her one-year work anniversary. The employer put her on medical leave – its reasoning is in the post. Angel then moved up her surgery. The employer's HR Coordinator then made certain representations to Angel – they are in the post. Finally, the employer then denied Angel's FMLA leave request and filled the position. Angel sued. The Court allowed the case to go forward – its reasoning is in the post.

TAKEAWAY: Again we warn you to train your employees on what to say and do and what NOT to say and do, including making representations that might be held to bind the employer in a way it doesn't want to be bound.

In the post on Tuesday 12/18/18 we learned no adverse action, no failure to accommodate claim, or so says this federal court (in contrast to at least one other). That is the issue in deciding if there has been a violation of the ADA. For example, as noted in the post, if an employer refuses to move a wheelchair-bound employee's office a few feet closer to the entrance, is there a violation? It might depend on whether there was an adverse employment action. Federal courts are divided on the answer.  One recently held that adverse action is required in order to find an ADA violation. In that case, the employee broke her arm, limiting her ability to perform some job functions. The post details the timeline that occurred after that, including whether there was any adverse action. That was analyzed on appeal and the court's analysis is in the post.

TAKEAWAY: Know what the law requires relative to your business – or don't even get to that point if you properly handle the reasonable accommodation process.

The post on Wednesday 12/19/18 suggested that you review your Association's existing Governing Documents to know what covenants or Rules/Regulations to enforce going forward. Whether it is basketball hoops as in the post, or anything else, you need to know what is required before you can follow or enforce it.

TAKEAWAY: The Governing Documents are for everyone – get a good community association lawyer to assist you fulfill your fiduciary obligations to the Association.

In the post on Thursday 12/20/18 we saw that FBI training instructors punish women, not men, for mistakes, complaint says. If true, it’s not good but helps explain the gender disparity. Danielle was training to be an FBI agent; she passed her fitness, academic and firearms tests. That left certain training tactics. She had problems and was written up 4 times in one day, then forced out not long before graduation. What about a man who did a similar thing? See the post. Danielle and 11 others accused the FBI of gender discrimination at the training academy; of the 12, seven also claimed race discrimination and 2 disability discrimination. Some of their allegations are detailed in the post. The FBI did not comment on the suit. Danielle wasn't the only one. Terah also passed the first 3 phases and then struggled with tactics. The post reveals her problems. And then there was Paula. A bit about her story is also in the post.

TAKEAWAY: Qualifications are legal, but must be evenly enforced. Make sure you treat all of your applicants and employees the same.

The post on Friday 12/21/18 reminded (or warned?) you to protect your claimed at-will employment relationships. You already (should) know that Pennsylvania is a strong at-will state, meaning either employee or employer can end the relationship at any time, with or without notice and with or without reason/cause, as long as there is no legal violation. Absent a writing to the contrary, at-will employment is presumed. But it is not inviolate. In the post, there was a CBA provision that the employee argued was not enforced. The facts were not uncommon; see the post. And the court must always look at all facts in deciding whether the relationship is at-will or not.

TAKEAWAY: Make sure all writings between your business and the employee do nothing to destroy the at-will relationship – unless that is your intent. Have everything reviewed by an employment lawyer to make sure your intent is fulfilled.

Finally, in the post yesterday 12/22/18 we saw that Simmons Security & Protection Services is to pay $15K to settle a pregnancy discrimination suit filed by the EEOC. What happened? Simmons hired Lakisha as an unarmed security guard. It did not know that she was pregnant. A few weeks later she was asked if she was pregnant. See the post as to what Simmons did after she answered. Which explains why the EEOC sued. The post also tells us what employers should do when they have a pregnant employee.

TAKEAWAY: Treat pregnant employees the same as all other employees unless and until asked for something different.

Monday
Dec102018

ICYMI: Our Social Media Posts This Week – Dec. 9 - 15, 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 12/9/18 we talked about PTO and FMLA Leave – and asked: Can employers force employees to take paid time off? The easy answer used to be "yes". But a recent federal appellate case may change that. Why? Because of the FMLA regulations – 29 CFR 825.207 - as noted in the post. The issue is whether or not the FMLA leave is unpaid. In the subject case. Alice needed surgery and then a 6-week leave. She received a disability benefit. Her employer required her to use vacation and sick leave during the FMLA leave. She sued to regain those benefits. She won! The basis of the court's ruling is in the post.  

TAKEAWAY: Know the law and its implementing regulations – consult employment law counsel to stay on the right side of legal.

The post on Monday 12/10/18 said you cannot wear a skirt - revisiting religious discrimination. Is there a reason to revisit? You bet! Georgia Blue is a restaurant that had a dress code requiring servers to wear blue jean pants. A new hire who couldn't for religious reasons asked for an accommodation – see the post. The request was denied out of hand. The EEOC sued. There are other cases that have been filed on a similar basis – again see the post. At least this one settled.

TAKEAWAY: If there is an easy way to accommodate an employee, do it – don't risk being hauled into court.

In the post on Tuesday 12/11/18 we asked: Can an Association Board member be removed for breaching fiduciary duties? (This should be a no-brainer – but the answer still could be "it depends". On applicable state law. Or the Governing Documents. There is almost always a fiduciary duty as explained in the post. In fulfilling their fiduciary duties, Board members may rest on the "business judgment rule" – again detailed in the post. Another issue is whether the person was merely negligent or more. If the person acts (or fails to act) in such a way that there is a breach of fiduciary duty, then the process set forth in the statute or Governing Documents must be followed.  

TAKEAWAY: Know what position is occupied by a Board member, when s/he violates the trust and obligations of the position, and what to do about it.

The post on Wednesday 12/12/18 was of faux pas, fibs and legal fees: a cautionary FMLA tale. A federal court refused to dismiss a claim brought by a former employee of an assisted living center. So what happened? She found out she needed Achilles tendon surgery and shortly after talked to HR about having the surgery after becoming eligible for FMLA leave. HR told her when that would be and she scheduled the surgery for soon after that date. All good, right? Keep reading. So what did the HR person do next? Made the employee punch out and go home until healed from surgery and more noted in the post. Yep. So the employee rescheduled the surgery for an earlier date. But then the employer … see the post. Because of what the HR person told the employee, the court allowed the claim to go forward.

TAKEAWAY: Document everything and make sure everyone involved in the process knows the correct way to proceed (or consults an employment law attorney to be sure). 

In the post on Thursday 12/13/18, we saw that with Me Too - women are sometimes the defendants. Yep. Lynda Resnick is a billionaire. Lynda Resnick is a powerful woman. Lynda Resnick is the 10th riches self-made woman in America. Lynda Resnick is also accused by a former employee of pregnancy discrimination and wrongful termination. And that's not all – see the post for the company's track record. Many facts alleged are in the post. And apparently this employee was not the only one who suffered this or a similar fate. Details of the 2012 lawsuit, also for pregnancy discrimination, are in the post. That case settled. The post gives more details about the other employees' situations too – just not at all favorable of the employer.

TAKEAWAY: Where there's smoke, there is often fire – make sure you and your employees know not to start a fire with any illegal adverse comment or action against employees.

The post on Friday 12/14/18 was a good reminder: Make sure your insurance coverage is what you want and need; don't rely on what someone told you it includes. The federal appellate court whose decisions govern us here in PA just weighed in on a related case. The underlying issue was the doctrine of reasonable expectations in the context of a faulty workmanship insurance claim. Hallstone obtained a general liability policy; the owner clearly asked for the "maximum" "soup to nuts" coverage. But what happened when Hallstone was sued by a customer? See the post. The court was asked to decide whether the reasonable expectation doctrine applied and overrode insurance policy provisions. The post contains the court's rationale for its decision.

TAKEAWAY: Don't just ask for certain coverage – have an attorney review your policy to make sure you get it.

Finally, in the post yesterday 12/15/18 we saw that a racial harassment suit cost Murex $50K. Murex is a large oil and gas company that operates in ND. It has agreed to settle a suit filed by the EEOC alleging that Murex subjected an African-American employee to a hostile work environment based on his race. Derrick was subjected to racial harassment by white co-workers; some of the things they called him are in the post (and are not at all nice or polite). Derrick's supervisor witnesses the harassment, but did nothing. The post contains other allegations – in response to which the company again did nothing. The court signed off on the settlement which includes monetary relief and more as in the post.

TAKEAWAY:  Training, and ensuring compliance with anti-harassment and anti-discrimination policies, are of ultimate importance.

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.