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).

Sunday
Oct012017

ICYMI: Our Social Media Posts This Week – Sept. 24-30, 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 9/24/17 we noted that United Airlines wins judgment in discrimination case by man accused of taking food from plane. Yes he was a former employee – a customer service rep – for about 18 years. His employment ended when the company fired him for allegedly taking food off of a flight in violation of policy (and federal regulations).A white employee who was also caught taking food was treated differently – the post tells why. And that's why his suit failed too.

TAKEAWAY: Just because two (or more) employees of different races are treated differently after taking the same action does not mean there was discrimination – you need to get all of the facts to make sure their situations were the exact same.

The post on Monday 9/25/17 was an ALERT: DOL withdraws its guidance on independent contractors and joint employment. What does it mean? The EEOC said it will continue to "fully and fairly" enforce all laws under its purview, but that doesn't really tell anyone anything about any changes as a result of the withdrawn guidance. Further, as noted in the post, the NLRB is still pushing a broad interpretation of joint employment. Keep your eyes and ears open as the current Administration continues to move in sometimes-different directions than the prior Administration.

TAKEAWAY: Rather than needing agency guidance on whether something is or is not illegal, don't get that close to the line in the first place.

In the post on Tuesday 9/26/17 we asked: Could barring a former employee from your premises lead to suit? Perhaps. This decision comes from the NLRB, but may have broader implications, so be aware of it. The employer, a resort and casino in Reno, has restaurants, lounges, bars, clubs, a casino, and performance venues, all of which are open to the general public. Tiffany worked there briefly as a beverage supervisor and filed suit for unpaid wages. Her boyfriend later started to work at the resort's facilities. She visited that facility and others over a period of tie after her employment had ended. And see the post as to the employer's policy on former employees' access to the various premises. One time she was denied access and then she got a letter bring her based on her pending litigation. She filed an unfair labor practice charge under Section 8 (which protects Section 7 rights – and, as applicable to you, remember that Section 7 applies to both union and non-inion workplaces). The ALJ ruled against the employer as did the NLRB in a recent decision. Its reasoning is in the post and makes quick but interesting reading.

TAKEAWAY: Yes, there are things an employer can do so as not to become a party to a suit like this, including having updated policies that say what the employer wants them to (and reflect how it does or may act in certain situations).

The post on Wednesday 9/27/17 noted that EEOC sues Golden Corral for disability discrimination and harassment. So what happened? The EEOC alleges that the employer discriminated against a disabled employee but subjecting him to a hostile work environment based on disability and sex (and that the employee resigned as a result). Sean, who has high-functioning autism, was a dishwasher. A male assistant manager took actions that underlie the EEOC's complaint – they are in the post. He complained and asked to transfer to a different shift. After being assigned again to work with the same assistant manager, he quit. Pre-litigation conciliation failed, so suit was filed.  

TAKEAWAY: Just because an employee is different – on any basis or characteristic – does not mean s/he deserves to be treated differently. Treat all employees the same (unless legally required to do otherwise) and you will probably stay out of legal hot water.

In the post on Thursday 9/28/17 we noted LinkedIn over your head: when socmedia posts count as solicitation. Look at the post as a warning. While the subject case was out of state, the same facts in PA would probably result in a similar ruling. The employee was subject to a non-solicitation agreement. She added former co-workers as connections on LinkedIn after starting to work for a competitor. The court's ruling on that is in the post. Likewise, the post also mentions other recent cases on the same subject which turned out differently. In one of them the subject employee (the defendant) posted things to LinkedIn that were akin to solicitations (see the post for the details) – but did not extend the non-solicitation period as the employer did not show any damages.   

TAKEAWAY: If employers are going to use non-solicitation agreements, then they need to police social media (and do other things) to enforce the agreements.  

The post on Friday 9/29/17 was a follow-up: Attorney for Annapolis car wash denies discrimination against Hispanic workers. Recall our 9/14/17 post where we described the allegations against the employer car wash. Well now the employer's attorney has denounced the suit as revenge as a result of 39 undocumented immigrants having been discharged several years ago. Counsel also denied the allegations in the complaint. Other comments he made are in the post.

TAKEAWAY: It is helpful if both hands are saying and doing the same thing – and have proof in support of the allegations that are being made. Check on that before taking adverse action.

Finally, in the post yesterday 9/30/17 we noted the employee's FMLA claims survive because the employer miscounted leave days used. Ugh. The employee was formerly a teacher's assistant who filed FMLA interference and retaliation claims. More background details are in the post; suffice it to say that employer error will not be looked upon favorably. Even though the employer asked the court to dismiss the case, it did not because it had to credit the employee's allegations at that early stage (and DOL's Regs re the FMLA as noted in the post).

TAKEAWAY: Know what time does and does not count against approved FMLA leave based on statute and your own policy. Make sure to properly calculate the end of leave and the subsequent return to work date before taking adverse action against the employee.

Wednesday
Sep202017

ICYMI: Our Social Media Posts This Week – Sept. 17-23, 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 9/17/17 we asked: a dog, a cat and a bunny walk into a diner – what's the diner's owner to do? This was actually not a joke without a punch line, but rather a question of accommodation under the ADA. Relative to service animals and emotional support animals. The post helps explain what type of animal can be a service animal, what it does, and where it can go (and under what conditions). The post also mentions briefly what the owner can and cannot ask about the animal or the owner and what the owner can and cannot do when the animal is brought into the diner. These things are not all the same for emotional support animals as they have no ADA protection – but the post does mention a few situations where the law may require its presence.  

TAKEAWAY: Know who can bring what type of animal into your business and under what conditions – before you run afoul (as opposed to fowl) of the law.

The post on Monday 9/18/17 suggested you check your COBRA notice! So you know what COBRA is, that you have to give notice, and the situations in which that has to occur. Great. But do you ever actually check the language of the notice to make sure it says everything it should and in the way it should? Probably not. The post includes where to find a sample notice that you can use. The suit referenced in the post alleges that the sample was not used in full, the part that was used was modified in ways that made it unclear and ambiguous, required information was not provided, and other deficiencies. Since the suit is against Wal-Mart, there might be a huge recovery (or settlement) coming down the pike.

TAKEAWAY: Don't be the name listed as a defendant in a lawsuit; make sure your COBRA notices are proper – and, even better, have your employment law counsel review it for legal compliance.

In the post on Tuesday 9/19/17, we noted that Company offering teen a job + firing her (& a friend) after a complaint of lower pay than a male friend hired at same time = suit filed. No surprise, right? Here the suit was filed by the EEOC against a company that owns multiple pizza shops. 2 teens, Jenson and Jake, applied to work at the pizza joint. Both got interviews and both were hired; then they talked about their pay. Turns out Jake was to be paid more than Jenson, so she called the business to complain. What the employer did next is in the post (and led to the suit).

TAKEAWAY: Pay according to job performance, not gender or any other protected characteristic. You will be found out and taken to task (or sued).

The post on Wednesday 9/20/17 was about common handbook mistakes. Let us help you avoid them. Some of the things to look for in your handbook (you do have one, right? If not, you really need our help!) are the EEO statement/policy, off-duty conduct provisions, separation policies, anti-harassment policies, and others in the post. The list in the post is not exhaustive, but merely some provisions that often end up being land mines in litigation.

TAKEAWAY: Having a handbook (or policy manual) is great, but you also need to keep it updated, both as to the law and your operations. Make sure to run it by an attorney for legal compliance.

In the post on Thursday 9/21/17 we noted that when FMLA medical leave runs out, don't forget the ADA, feds say. The EEOC filed suit recently, alleging the defendant failed to accommodate an employee who was undergoing breast cancer treatment that the failure was in violation of the ADA. The leave began as FMLA leave. That's where the problem arose. Read the post for more background.

TAKEAWAY:  We've said it before; don't look at the FMLA and the ADA in a vacuum, but rather together.

The post on Friday 9/22/17 told us that Hershey's faces an ADA suit (which is not the sweetest thing on earth). First, did you know that Hershey's had a place of business in Seattle? Well, apparently it does. A former employee at that location has sued, saying Hershey's refusal to approve her requested medical accommodation, and then discharged her, in violation of the ADA. The post contains more background information and the crux of the suit.

TAKEAWAY: Make sure to follow the steps of the interactive accommodation process as soon as you get a request for accommodation. All steps.

Finally, in the post yesterday 9/23/17 we asked: When is telecommuting considered a reasonable ADA accommodation? Yes, apparently accommodation under the ADA was our theme for the week. The answer to the question, as you might guess, is "it depends". On the job at issue and whether the essential functions can be performed outside of the workplace, either fully or at all. The post contains other things to take into consideration when discussing a telecommuting accommodation.

TAKEAWAY: Don't just rule out telecommuting - discuss why it would or would not be feasible given the essential job functions at issue in any given situation.

Monday
Sep112017

ICYMI: Our Social Media Posts This Week – Sept. 10-16, 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 9/10/17 we learned that summary judgment was denied to employer who circulated letter re disability discrimination charge. No surprise, right? An employee filed a charge with the EEOC, alleging disability discrimination. As part of its investigation, the EEOC requested information on other employees. Before it provided the information to the EEOC, the employer sent a letter to 146 employees identifying the employee who had filed the charge and discussing the EEOC charge. That led to an EEOC charge of retaliation and interference. Details of the background and what led up to the first charge are in the post. Both sides filed motions for summary judgment (to resolve all or part of the case) and the judge denied them both for the reasons stated in the post.

TAKEAWAY: Be really, really careful as to when and to whom you disclose information about pending administrative charges – the wrong decision might lead to even more legal trouble.

The post on Monday 9/11/17 was an alert: Court to reconsider ruling allowing women to be paid less than men in some circumstances. In April 2017, a panel of the 9th Circuit Court of Appeals ruled that, in some circumstances, women can be paid less than men for the same job. Our 5/14/17 post was about the panel's ruling. The EEOC appealed the panel's ruling and a hearing is set in December.

TAKEAWAY: Might it be legal to pay a woman less for doing the same job as a man? Do you really want to take a chance you will be sued if you try it?

In the post on Tuesday 9/12/17 we talked about workplace language rules: the next new frontier? Top 5 things to know. The EEOC filed suit against a company alleging it discriminated against non-Hispanic applicants by requiring that they be able to speak Spanish. Yes, you read that right. The EEOC set forth 5 bases supporting its position. First, any rule must be justified as a business necessity. Second, rules should be limited to ensuring employees can operate (do their jobs) safely and efficiently. The other 3 bases are in the post. And the scariest thing of all? The last paragraph in the post.

TAKEAWAY: Employers are allowed to have rules for the workplace so that everyone knows what is expected of whom – but the rules still have to be legal.

The post on Wednesday 9/13/17 noted the EEOC sued Estee Lauder for sex discrimination (against men). Again, you read that right. The policy at issue provided male employees who are new fathers less parental leave benefits than female new mother employees. The post details the leave benefits for each gender. After his child was born, a male employee requested benefits (see the post) that would have been granted to a female under the policy. His request was denied so he filed a charge with the EEOC. After it investigated and conciliation failed, the EEOC filed suit.

TAKEAWAY: If you have a rule or benefit in place, make sure it is evenly applied to all employees (or that there is a valid, legal basis for any differences).

In the post on Thursday 9/14/17, we said "and then when you're done with that, please go pick up the dog poop." Sadly, yes this is employment-related. A Maryland company allegedly violated federal law when it treated Hispanic workers differently based on race and national origin. What did it do? It put them in lower-paying jobs and more things in the post. The owners also required the Hispanic workers to do things for them personally, like picking up dog excrement at their houses and other things in the post. The owners also required the Hispanic workers to do things for them personally, like picking up dog excrement at their houses and other things in the post. And if that weren't enough, the company allegedly fired workers who complained. Retaliation at its finest.  

TAKEAWAY: First, don't treat employees differently unless it is based on job performance. Also, don't make employees do non-work-related tasks.

The post on Friday 9/15/17 was about paying employees when weather closes the doors – hurricane, snow, whatever. A timely post due to the recent spate of hurricanes, the rest of hurricane season, and the coming winter weather. So the question is whether you have to pay employees when natural disaster strikes. That can be divided into the following sub-questions: when your business closes, are you required to pay hourly, non-exempt employees for that time? What about salaried, exempt employees? What if the business is open but a salaried, exempt employee cannot get there? What if, due to weather, an hourly non-exempt employee cannot leave and so keeps working? And finally, what if an employee shows up but is sent home early due to inclement weather? All good questions - and answered in the post.

TAKEAWAY: Wage and hour issues go beyond whether an employee is exempt or non-exempt, - but that plays into the answer to some of the questions discussed, so know the answers to avoid legal trouble.

Finally, in the post yesterday 9/16/17, we talked about when accommodating one employee's disability triggers another employee's disability. What's the poor employer now in the middle to do? (Hint: "nothing" is not the correct answer.) Now the employer has 2 employees to try to accommodate. Notice the words "to try". The key to accommodation is that the employer must try to find a reasonable accommodation – and it need not be the one requested by the employee. Examples of how other parts of the interactive accommodation process might work are detailed in the post.

TAKEAWAY: Don't stick your head in the sand; that will certainly be viewed as a failure to accommodate. Instead, try to work things out alongside the employee requesting accommodation (and your attorney if legal questions arise as to your obligations).

Monday
Sep042017

ICYMI: Our Social Media Posts This Week – Sept. 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 9/3/17 we saw that Ford Motor Company pays $10M to settle sexual harassment charges at its Chicago plants. Big bucks! The EEOC sued, alleging race discrimination (against African-Americans) and sexual harassment (of women) by co-workers, along with retaliation after they filed complaints. Terms of the settlement are in the post.

TAKEAWAY: Don’t wait for the lawsuit to knock on your door – do the right – and legal – thing from the start. Don’t discriminate against any employee for any reason; look solely at qualifications and job performance.

The post on Monday 9/4/17 was about Labor Day – a reminder to say thank you and celebrate at home or in the workplace.  

TAKEAWAY: Sometimes you should stay on the surface – just remember the reasons we have the freedoms we do in our workplaces and the business world, and say thank you.

In the post on Tuesday 9/5/17 we saw that B&H Photo settles sex and race discrimination suit for $3.2M. That’s a lot of snapshots! Over 1300 employees at the warehouse filed suit, alleging B&H only hired Hispanic men for entry-level jobs and did not pay them properly. See the post for more background details.

TAKEAWAY: You may think you can game the system, but you can’t – and it will be far more costly to you in the long run than just doing it legally from the start.

The post on Wednesday 9/6/17 asked: How should we respond to Charlottesville? This post was an editorial, but raises some interesting, thought-provoking issues and questions. It challenges us all to fight systemic racism with more than words alone. Five steps are suggested. The first is to confront unconscious bias. The post has a link to find out your unconscious biases – what you need to know to start down the road. Another suggested step is to desegregate your life. Make sure to include people of different races and socio-economic strata, shop in local (including minority) businesses, and join diverse groups. The other three suggested steps are in the post.

TAKEAWAY: Yes, our society still sees discrimination in various forms every day – but there are steps you can take in your life and in your workplace to make that discrimination disappear.

In the post on Thursday 9/7/17 we noted that white lies could not prevent a bankruptcy discharge. Then we asked where the line is. So what happened? The person who filed for bankruptcy protection (the debtor) did not list a prior lawsuit or that she had owned a business. The Judge said they were “white lies” that didn’t hurt anyone, so he let her get her discharge (what happens at the end of an individual bankruptcy case and removed the debtor’s legal liability to repay makes most of the listed debts). The post explains the judge’s rationale. I wonder if the outcome would have been the same if the amounts at issue had been larger.

TAKEAWAY: When filing for bankruptcy, the debtor must list all assets and all debts within the referenced timeframes – if not, then creditors (persons or entities to whom the debtor owes money) can take action to ensure their debt survives the bankruptcy.

The post on Friday 9/8/17 showed us everywhere in the US you can still get fired for being gay or trans. Yep, it’s a majority of states. And the current Trump Justice Department filed a brief asserting LGBT Americans have no protection from discrimination on the basis of sex (contrary to the EEOC’s position). But even at the state level, there is little protection for LGBT employees. The post contains a map showing which states have what employment protections. Almost all states adjoining Pennsylvania to the north, east and south prohibit discrimination based on sexual orientation and gender identity. Check out the map to see where PA and other states stand on the issue.

TAKEAWAY: In PA, employees can still be legally fired for being LGBT. But that doesn’t make it right or help build a dedicated workforce.

Finally, in the post yesterday 9/9/17 we saw the EEOC siding with a black chair umpire alleging the USTA discriminated against him. The US Tennis Association is the premier tennis organization in this country – one would think it would be above discrimination, but that’s not what the EEOC thinks. Tony Nimmons is a highly-qualified African-American chair umpire – see the post for more about him. He filed 2 charges with the EEOC in 2015. Some text from the later filing is in the post and identifies other women and minorities who supposedly filed charges of discrimination. The irony is that Nimmons alleges that he was initially hired to bring diversity to the USTA and help it work toward inclusion. Details about some of the things that happened – and that are in one of his filings – are in the post along with the USTA’s responses. The EEOC found probable cause, so conciliation is the next step.  

TAKEAWAY: Even if an employer has the best of intentions, discrimination within its ranks may still exist and may be illegal – be careful this isn’t your business.

Tuesday
Aug292017

ICYMI: Our Social Media Posts This Week – Aug. 27 - Sept 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 8/27/17 we saw a former hospital employee files discrimination charges (alleging that the employer did not act properly in response to her allegation of a racial spear and did not give her the same opportunity to advance as others. More details are in the post. The matter is pending with the EEOC and the employer (of course) disputes the allegations.

TAKEAWAY: Make sure that action you take cannot be construed as adverse and that if it can, there is a valid legal basis for the action.

The post on Monday 8/28/17 told us that the NRC's rules trump the ADA in employee's suit. The Third Circuit, the federal appeals court whose decisions are binding on us here in PA, found no ADA violation when a security officer at a nuclear power plant was fired – the basis for the discharge is in the post.  

TAKEAWAY: It's worth remembering that when laws conflict, one has to give, and it's important to know which one that will be.

In the post on Tuesday 8/29/17 we asked: if you file for bankruptcy, will you lose everything? (The answer is in the post). The support for the answer is both federal and state law.  

TAKEAWAY: To discuss the effect of a personal bankruptcy filing, or if you have had a customer who owes you money file for bankruptcy, contact us for assistance.

The post on Wednesday 8/30/17 was about labor law lessons from our favorite films – Dirty Dancing (apropos on its 30th anniversary). You remember the premise, right? The relationship between Baby Housman, a guest, and Johnny Castle, a staff dance instructor, in the summer of 1963 at a resort in the Catskills. More background details are in the post. So with a film that is now 30 years old, what can we talk about? Whether the resort management violated the NLRA by keeping Johnny from engaging in protected concerted activity by threatening to withdraw a benefit (the summer bonus) in exchange for his silence? (See his possible argument and management's possible response in the post). Whether the resort could show that it would have terminated Johnny regardless of him engaging in protected concerted activity (for the basis of this argument, see the post). And whether the answers will change with the new Trump-era NLRB …  

TAKEAWAY: Even the most unassuming of circumstances can create possible NLRA violations – be careful in your workplace.

In the post on Thursday 8/31/17 we saw that a bookkeeper "retired" by her employer after reaching 66 wins age discrimination case. And that the result would probably be the same in the US. The family business had to pay the employee even though it was an at-will situation. She alleged that she was expected to retire by age 65 and then it was changed to 66, but that she did not want to retire. There was more back-and-forth (see the post); the company argued that if terminated on the basis of its contractual understanding she would retire at age 65, not age itself. See more of the company's argument in the post. The ruling in favor of the woman found no justification for the discrimination.

TAKEAWAY: Don't rely on what you think is a verbal contract; get it in writing. And don’t take illegal adverse action against any employee, but especially not someone in a protected class.

The post on Friday 9/1/17 noted I got the power – EEOC investigatory power trumps dismissal of discrimination case in federal court. You read that right. The question was whether the EEOC could keep investigating a claim after issuance of a right to sue letter. Or after suit was filed and summary judgment awarded in favor of the employer? The Seventh Circuit (a federal appeals court) said yes. The background was the filing of a charge of race discrimination in 2011. The company refused to provide info to the EEOC. A settlement was eventually reached but the EEOC issued a right to sue letter and the employees filed suit. The EEOC again subpoenaed information during pendency of the suit and the company again refused. EEOC issued a subpoena. Summary judgment was granted for the employer and the suit dismissed with prejudice. But that didn't end things. The EEOC brought an enforcement action for refusal to comply with the subpoena.  The arguments are in the post. In the end, noting the circuit split, the court said that neither dismissal nor issuance of the right to sue letter barred further investigation of a properly-filed charge. More support for the court's ruling is in the post.

TAKEAWAY: Don't think just because you win a case the EEOC is off your back – a court may still require you to respond to a subpoena it issued.

Finally, in the post yesterday 9/2/17 we learned that a white judge wins $90000 discrimination settlement. Because there was no reason. The judge accused the Chief Judge of discharging her to be able to appoint more African-American judges. The Chief had no reason for not reappointing. More strange background facts – including the gender and race of the Chief - are in the post. And instead of retention, 2 African-Americans with less experience were appointed to judicial positions. The settlement was felt to be fair based on the facts.

TAKEAWAY: Cases can settle for many reasons that have nothing to do with the actual facts – although one reason can be the party's assessment of the chance of success of its argument. (Of course, not taking any action that could be perceived as illegal would ensure no suit is filed to begin with …)

Monday
Aug212017

ICYMI: Our Social Media Posts This Week – Aug. 20 - 26, 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 8/20/17 we saw a former supervisor sued Chobani, claiming age discrimination. Hah, it's not so smooth now. Jerry was a former sleeving and maintenance supervisor. His suit claims he was not given training that younger employees were given, did not let him take off weekends even though younger employees were allowed to, and took other actions (in the post) that were not the same with younger employees. The suit also says Chobani did not follow its own policy. Stay tuned for more.

TAKEAWAY: You can certainly discipline and discharge employees if warranted – just make sure the adverse action is legal and that you evenly enforce your policies.

The post on Monday 8/21/17 noted the "Mark of the Beast" case settled for $600,000: are you paying attention (or just paying)? Remember the background? The employer wanted employees to use infrared hand scanners for time clocks; one employee objected on the basis of his honestly-held religious beliefs – that the scanner was the Mark of the Beast (the post explains how). He asked for an accommodation and the employer refused. He retired and sued (after learning of comparators being treated differently).

TAKEAWAY: Remember your obligation to at least try to accommodate religious beliefs honestly held by employees. It can be more costly not to do so (as this employer discovered).

In the post on Tuesday 8/22/17 we were reminded there is no need to over-indulge a chronic complainer. But safest is to check with your employment lawyer. Yes, every workplace has that one person who complains about everything. You should see if there is any substance to the complaints, but you don't have to act if there is not. The post gives an example of how this played out.

TAKEAWAY: Investigate all complaints and act on those that have merit; otherwise, continue to treat the complaining employee just like everyone else.  

The post on Wednesday 8/23/17 told us DOL will begin issuing wage and hour opinion letters again. Employers themselves can ask for guidance from the Department – or have their employment law attorney do it for them. The post explains how an opinion letter can be useful both to the company asking the question and to others.

TAKEAWAY: Don't be afraid to ask for guidance – that's often better than stepping on a mine and having to pay for the damage later.

In the post on Thursday 8/24/17 we were told how to fire a workplace friend. It's never easy but sometimes necessary. The post lists 5 steps to take. First, make sure you've done everything you should, including following the disciplinary policy to the letter. The other steps are in the post.

TAKEAWAY: Working with friends can sometimes be difficult, and even more so when you have to end the employment relationship; keep it professional and follow the policy.

The post on Friday 8/25/17 said being untruthful about the reason for termination can hurt you. In Pennsylvania, where most employees are at-will, no reason is required for the employer to end the relationship. However, often one is given. When that happens, make sure it is true (and legal!). In the case in the post, the employee sued for age discrimination after being fired. The facts would ordinarily not have been in his favor; however, since the employer gave differing reasons for the termination, the judge let the case go to a jury. Ugh.

TAKEAWAY: Truth is always the best way to proceed – it keeps you from having to keep track of other things and, hopefully, keeps you doing what is legal.

Finally, in the post yesterday 8/26/17 we noted the court vacated summary judgment in an ADEA failure to hire case, finding a triable issue of pretext. So what does that long sentence mean? When an employer has a ranking system and does not follow it, and older employees (as defined by the ADEA) are harmed, the employer will have to answer for its actions in court (and not be dismissed from the suit). This ruling is binding on courts in PA, so make sure you read the post and act accordingly.

TAKEAWAY: If you have a policy or rule or some other guideline you put out there for all to follow, then you better follow it yourself or you might be liable for any violation or deviation in a court of law.

Sunday
Aug132017

ICYMI: Our Social Media Posts This Week – Aug. 13 - 19, 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 8/13/17 we talked about new harassment checklists from the EEOC – get them. And then use them. They include a chart on risk factors for workplace harassment, a checklist for leadership use in assessing workplace culture, and 3 others (listed and linked in the post). They do not replace the advice of legal counsel, but they are a good start.

TAKEAWAY: Materials to help you are available from the agency charged with enforcement – why wouldn't you get them, read them, and use them?!?!

The post on Monday 8/14/17 noted the Atlanta Hawks sued for alleged racism, discrimination. A former employee, Security Operations Manager Samuel Hayes, has sued for alleged discrimination against black celebrities and employment contract termination. It all results from what he says were racially discriminatory security protocols that were not uniformly enforced. He says extra security was put in place at certain venues (see the post for details) and celebrity clients got more or less security privileges based on skin color. Examples are in the post.  Hayes alleges that after he complained about this, he was discharged. The Hawks deny all allegations.

TAKEAWAY: Even if there is no discrimination or differential treatment on the basis of a protected characteristic, a suit alleging same can take valuable human recourses and cost real money – just make sure everything is legally supported and there should be fewer suits.

In the post on Tuesday 8/15/17 was about fear of avoidance: can we terminate employee who has mental illness? We suggested you know the law (and let us help you). And do you know the law (and the answer)? It is: it depends. On whether your locality has an ordinance dealing with this situation (which is unlikely in PA). On whether state law deals with this type of situation (which it probably won't based on the facts). On whether federal law applies – and that's where you get caught. As detailed in the post, the ADA has provisions based on the safety and security of the person and other workers.

TAKEAWAY: Know what you can – or should - and cannot do if an employee poses a safety or security threat to him/herself or to others – contact legal counsel if necessary to ensure all rights are protected and obligations fulfilled.

The post on Wednesday 8/16/17 noted Amy's Country Candles accused of firing woman who claimed sexual harassment by owner's son. Ugh. Just ugh. The suit was filed by the EEOC based on the discharge of a female employee a mere 4 days after she reported sexual harassment by the company owner's son. Allegations include that in May 2015, an assistant store manager got a call from a co-worker, the owner's son, which contained sexual language (see the post for more details). She complained to the owner right after and over the next 3 days. On Day 4 she was fired by text message from the owner. The employer's defense is noted in the post but did not hold up before the EEOC.

TAKEAWAY: Even if an adverse action is legal, it may appear not to be so, thus resulting in the filing of administrative charges or suit against which you will have to defend. Just don't get into that situation in the first place.

In the post on Thursday 8/17/17 asked: What am I doing wrong? Common FMLA mistake: assuming adult child is not a covered family member. Yes the FMLA also covers adult children (those 18 or older) incapable of caring for themselves due to physical or mental disability (as defined by the ADA). The post reviews 2 federal court opinions dealing with this provision. In the first, the court found the child's situation to fit squarely within the FMLA provision, whereas in the second it did not. Read the post to see the differences and nuances.

TAKEAWAY: When confronted by an employee asking for FMLA leave to care for an adult child, don't immediately deny the request – see if it is covered by the law and then fulfill whatever your obligations might be.

The post on Friday 8/18/17 noted the interactive accommodation process requires good faith – from both sides. The post gives a good example of how this might play out. Derrick worked for the City of Austin as a laborer and field supervisor. After a vehicle accident he could not do physical labor. An extended leave followed, after which the City offered him an Admin Assistant position. The post details what the City did to help him succeed in the position. The post also details what Derrick did (not do) to acclimate to the new position. At some point, the termination process started since he could not perform the required duties. After termination, he sued for failure to accommodate. He lost on appeal for the reasons set out in the post.

TAKEAWAY: If accommodation is requested, offer a reasonable one and, if the employee doesn’t give it a good-faith try, go ahead and discharge.

Finally, in the post yesterday 8/19/17 we saw a court vacated summary judgment in an ADEA failure to hire case, finding a triable issue of pretext. Pay attention to this decision from the federal court governing PA. So what happened? 5 seasonal crew members worked for the Delaware River & Bay Authority's ferry, applied for full-time positions, were interviewed, but none was hired. The interviews are ranked and then the hiring decision is made. Deviation from the rankings is allowed for good reason. More on the process is in the post. The plaintiffs sued for age discrimination and retaliation (since they complained about the discrimination). In court, the plaintiffs satisfied their initial burden, so the court looked at the proffered legitimate nondiscriminatory reason that centered on the hiring process to determine if that was mere pretext for some of the positions (with its decision in the post). The court also looked at the other failure to hire claims, found the employer satisfied its burden, but that the employees offered evidence of pretext sufficient to overcome summary judgment. The Court's reasoning is in the post.

TAKEAWAY: If you have a policy or process, apply it evenly. Uneven application or enforcement may come back to bite you, hard.

Monday
Aug072017

ICYMI: Our Social Media Posts This Week – Aug. 6 - 12, 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 8/6/17 we talked about the employer's guide to service animals and the ADA – you should know at least the basics. Accommodation under the ADA may include a request to use a service animal – what will you do then, especially if other animals are prohibited on the work premises? What you will do is engage in the interactive accommodation process just as with any other workplace accommodation request. The post lists some things to consider when an animal is involved.

TAKEAWAY: Remember that the ADA's requirement of accommodation may trump a no-animals-in-the-workplace policy if necessary to an accommodation – don't rule it out.

The post on Monday 8/7/17 told us Home Depot fires 70 year old Army vet for confronting shoplifters (and asked if it was from an evenly applied policy or something else). Jim was trained not to confront shoplifters and agrees he violated company policy, but says his military training just kicked in. What he did next is in the post. The employer responded according to what it says is its policy and fired him.

TAKEAWAY: Just because an employee can take action does not mean s/he should take action, especially if there is a policy prohibiting that action. Discharge might legally result.

In the post on Tuesday 8/8/17 we learned that cutting out an accommodation ay be retaliation. Be careful. Here, the EEOC sued for retaliation against an employee who complained about discrimination because an existing religious accommodation was withdrawn. Kelvin was Muslim; he was required to wear a beard. He asked for and was granted an accommodation form the employer's normal grooming policy for his position. Then, after he made a complaint about his supervisor (ugh – see it in the post), he was required to shave. The employer also did more things after that as noted in the post. Kelvin eventually quit.

TAKEAWAY: Investigate every allegation of harassment and discrimination - and do not retaliate against the person making the complaint.

The post on Wednesday 8/9/17 was an alert: federal court confirms one call is all for TCPA violation. Know the (new) law! The case just came out a few weeks ago and is binding in PA. The first issue was whether or not one unsolicited call to a cell phone was a violation of the Telephone Consumer Protection Act. The facts, which will cover even more egregious cases, are in the post. The Court said that yes, this is covered. The second issue was whether or not there was a concrete injury in order that the case could go forward. This is procedural, but important. The Court's decision is in the post.

TAKEAWAY: If the law says not to do something, just don't do it – it is time-consuming and expensive to wait for a court to tell you that you violated the law and must pay.

In the post on Thursday 8/10/17 we read that a Pennsylvania state agency was accused of age bias (and settled the suit). Joseph, older than 40, had 30 years' legal experience, including 17 with the PHRC, when he applied for a positon with the Office of Public Records. During the second interview, the executive director voiced stupid – an allegedly illegal – concern; see the post. A younger, less experienced applicant was selected. The EEOC sued on Joseph's behalf. The case has now settled for $60,000.

TAKEAWAY:  Age rarely if ever will have anything to do with job performance, so don't take adverse action based on age – or you too will find out how costly that can be.

The post on Friday 8/11/17 was a hint: check the filing deadline on an employee's EEOC complaint. What? When an employee files a charge with the EEOC and then receives a right-to-sue notice, s/he has 90 days to bring suit or is barred. Missing the deadline can be fatal to a suit as the post shows.

TAKEAWAY: The employer also should receive a copy of the Notice so make sure to tickle the filing deadline – it may be all the defense you need in an untimely-filed suit.

Finally, in the post yesterday 8/12/17 we asked if employees and contractors do the same work – be prepared to justify classifications. If you have both employees and contractors doing the same thing, and the employees get overtime pay while the contractor does not, you may be in legal trouble. Why? Because they may not legally be contractors. As the facts in the post show, your classification does not always carry the day and you may end up wing money to the "contractor".

TAKEAWAY: As we've said many times, properly classify your workers and pay them properly (and legally) to avoid wage and hour suits.