Monday
Feb122018

ICYMI: Our Social Media Posts This Week – Feb. 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 2/11/18 we asked: can homeowners prevent neighbors from installing security cameras? Questions like this become ever more important as the number of people living in planned communities (single-family, detached homes or attached townhouses or condominium buildings) continues to increase. Do you want your neighbors "spying" on you? Do you want to 'spy" on your neighbors? The easy answer is probably yes (possibly after approval by the association). But then there are constitutional (privacy) issues that crop up. The post talks about some of these concerns.

TAKEAWAY: If you want to install a security camera pointed at a neighbor's house, or if a neighbor has installed one pointed at your house, contact an attorney to ensure all is legal.

The post on Monday 2/12/18 told us an employer paid $85K to settle a transplant recipient's ADA leave claims. So what happened? The employer, an inpatient and outpatient healthcare services provider (so you'd think it would be a bit more up on this!), granted leave for the employee's liver transplant surgery. Then the employee asked for additional time off. See the post for the employer's actions.

TAKEAWAY: Reasonable accommodation under the ADA may require leave in excess of 12 weeks under the FMLA. Remember to look at them in tandem.

In the post on Tuesday 2/13/18 we saw that a failure to promote and low pay increase were not due to an EEOC charge. At least according to the federal court. The Plaintiff was hired as a legal secretary in 1995 and was shortly promoted to managing editor. About 15 years later, her job responsibilities and pay had both increased. She asked that for certain changes (see the post). Her request was denied but she got good evals and raises. A few years later she got a new supervisor; she also asked again and was again denied. She then claimed the supervisor has discriminating and retaliated against her (the bases are in the post). She lost. The court's reasoning is in the post.

TAKEAWAY: Documentation – of uniformity and discipline – can be key to any claim or suit.

The post on Wednesday 2/14/18 was a Valentine's Day wish – and a reminder about the holiday in the workplace.

TAKEAWAY: Holidays do not trump workplace polices – make sure to evenly enforce them.

In the post on Thursday 2/15/18 we asked: what can an association do about an owner's disruptive tenant (and what would happen in your Association)? Yep, planned community life. So what happens if a tenant (assuming rentals are allowed) isn't following the Governing Documents? The post gives the answer under IL law, but it should be the same under PA law (barring anything to the contrary in the individual association's Governing Documents).

TAKEAWAY: Know what rights and obligations owners and the association have in a planned community – contact an attorney with experience in these matters (you can find one at www.cai-padelval.org ).

The post on Friday 2/16/18 noted that the EEO poster violation penalty has increased to $545. Do it right. Hopefully you already know this, but every employer covered by Title VII, the ADA, or GINA must post certain notices in a common area where workers normally congregate. For the information to be covered, and other tips, see the post.

TAKEAWAY: Don't needlessly subject yourself to a penalty – post the notice as required.

Finally, in the post yesterday 2/17/18 we noted that the interplay of the FMLA and ADA precludes automatic termination after FMLA leave. You know the FMLA guarantees an eligible employee up to 12 weeks of unpaid, job-protected leave. But do you know what happens if the person asks for additional time when the FMLA leave expires? (You do if you read our post from earlier this week!). See the post for the answer

TAKEAWAY: We (almost) started and ended the week talking about the ADA and FMLA. It is important: know how they interact and get legal help if necessary.

Sunday
Feb042018

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

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

In the post on Sunday 2/4/18 we saw that a former IT worker sued Penn State for discrimination and retaliation. Antoinette alleges that after repeated complaints, including to the University President, about discrimination, the retaliation escalated and the school did nothing. Details are in the post. She retired 9 years before the time she had planned to. Her claim also includes FMLA violation (as noted in the post). Penn State has not issued any response or comment yet.

TAKEAWAY: May sure pay and treatment of employees is the same regardless of gender and medical condition – and investigate any complaints. Failure in any of those areas may lead to suit and an expensive public flogging (regardless of the outcome).

The post on Monday 2/5/18 was about condo & homeowner association boards trying to address pot smoking before it is legalized. What is your Association doing? We know that PA has legalized medical marijuana, and the legal use of recreational marijuana may not be too far behind. But it is still illegal under federal law. Has your Association dealt with the issue at all? Perhaps by allowing it for card-carriers within their own walls? What about cigarette smokers? Differentiating between common areas and private areas? The post gives some ideas about the types of things associations might want to consider.

TAKEAWAY: Make sure to enact legal rules and regulations and then enforce the legally – contact a lawyer well-versed in this type of law to help you.

In the post on Tuesday 2/6/18 noted the lawsuit against Kellogg over religion and weekend work is back on the table. What's this about? Working on Saturdays. Richard and Guadalupe are Seventh-Day Adventists who did not work every other Saturday (as required) due to their religion. They were eventually fired. The lower court granted Kellogg's motion for summary judgment – the reasoning is in the post. That decision was appealed and a federal appeals court just reversed (for the reason noted in the post). Irony: the co-founder of Kellogg was a Seventh-Day Adventist at the time the company was founded.

TAKEAWAY: Remember that an employer has a duty to reasonably accommodate religious beliefs, whether it wants to or not.

The post on Wednesday 2/7/18 told us a former Fox TV executive sues for gender discrimination and sexual harassment. The tidal wave continues. Denise claims she was fired after complaining about sexist comments in the workplace, including an executive coach retained by FOX telling her to "lift her skirt". Ugh. The suit was filed in CA state court. More details/background are in the post. FOX has not issued any comment yet.

TAKEAWAY: Not every claim of harassment or discrimination is valid, but employers still have a duty to investigate and, if founded, take action to stop the illegal behaviors and try to remedy the situation.

In the post on Thursday 2/8/18 we saw that an ex-campus cop's discrimination suit over razor bumps proceeds against UPenn. Joseph alleges that he was discriminated against for avoiding shaving due to a skin condition common among black men. The actions he says were taken against him are in the post, including paid leave. The trial court judge let some of Joseph's claims go forward (including retaliation and disparate treatment) but dismissed others (including disparate impact). The post contains some of the Judge's reasoning.

TAKEAWAY: After enacting a facially-neutral policy, ensure that its enforcement does not adversely treat one class over another or that its impact is not heavier against one class than another.  

The post on Friday 2/9/18 reminded us that uncivil is not the same as unlawful. Let's look at an example. Arriama complained in a suit about how co-workers referred to her dress and her supervisor's behavior (noted in the post). The court reaffirmed that Title VII is not a civility code and that actual facts are required to prove hostile work environment. The post analyzes it here for the result.

TAKEAWAY: Employees don't have to like their co-workers or managers (or vice-versa). But they do all have to work together to get the job done. Performance, not amity, should be the basis of legal filings.

Finally, in the post yesterday 2/10/18 we read that an employee's lack of records won't get a pay lawsuit tossed (and advised to make sure your records are accurate). In a suit for overtime pay, the burden is on the employer to show the employee was NOT entitled to pay for overtime work. In this case, Faustino was paid the same rate for all hours worked. He sued, claiming he'd not been paid overtime for hours worked over 40 in a week. The employer moved to dismiss the suit. The post tells the court's reasoning and ruling.

TAKEAWAY: employees often keep track of their hours worked; regardless, the employer should carefully track the hours to ensure proper pay. Consult an employment law attorney if an issue arises.

Monday
Jan292018

ICYMI: Our Social Media Posts This Week – Jan. 28 - Feb. 3, 2018

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

In the post on Sunday 1/28/18 we talked about DOL's guidance on whether interns are employees. Know the correct answer. See the post for details.

TAKEAWAY: It used to be so easy – bring on a young adult as an intern to give him or her a learning experience. Not so now as there are many factors going into whether the person is an employee or an intern. Know which.

The post on Monday 1/29/18 reminded us that 40 years later, women who formed Willmar 8 keep up the fight for equality. Amazing! 40 years ago, these women picketed their bank employer for equal pay and equal opportunities for advancement. They did that because a male loan officer candidate was hired without prior notice of the availability of the position. The post includes the bank's response at the time. The women kept fighting as in the post, including being out on strike for 2 years. Now they still fight for equality.

TAKEAWAY: Pay employees based on job performance, not gender. Period.

In the post on Tuesday 1/30/18 we noted you should do research before buying a home or condo governed by a homeowners' association. (Let me help you.) Yep, more than 63 million people live in planned communities. Planned communities can be great as they provide services to the owners, but they also have contractual covenants and rules that all owners must live by. Check the post for background and some things to look at.

TAKEAWAY: Make sure the Association does what it is supposed to and you as a resident are willing to abide by all of the covenants and other governing documents.

The post on Wednesday 1/31/18 noted that restaurants and patrons (and other public places) need to know the law about service animals. True service dogs are there to assist their owners deal with a disability and are therefore covered under the ADA. As noted in the post, there are ADA regulations about service animals and any place of public accommodation should be familiar with them.

TAKEAWAY: Do not treat someone with a service animal differently than anyone else – afford him or her the same treatment.

In the post on Thursday 2/1/18 we learned that experts find people are unaware of radon, the 2nd leading cause of lung cancer. To put it in perspective, about 7 out of 10 homes in York County tests high for radon (prior to any mitigation). Two homes next to each other might have drastically different levels of radon so don't just assume that because your neighbor's home is or is not high in radon, yours will be the same. The post gives some background and data to know about radon.

TAKEAWAY: Radon is colorless, tasteless and odorless – have your house tested and if the level is high, get a mitigation system installed.

The post on Friday 2/2/18 told us that Volvo will pay $70,000 to settle an EEOC disability discrimination matter. So what happened? Volvo made a conditional job offer to an applicant who was a recovering drug addict in a supervised medication-assisted treatment program. He told Volvo about the medically-prescribed drug as part of the physical exam. Volvo fired him on the first day due to the use of the medically-assisted drug. The post talks about what Volvo should have done and why. Instead, it's paying $70,000 plus other relief.

TAKEAWAY: Hire and fire based on the ability to do a job, not a medical reason (that is illegal).

Finally, in the post yesterday 2/3/18 we read that a lesbian firefighter prevails in court after having brain matter flung at her. Her colleagues spat on her and more as listed in the post. They even threw brain matter at her! A jury found in her favor in 2016 and the case went up on appeal. The federal appeals court just upheld the verdict for the reasons in the post.  

TAKEAWAY: Make sure to treat all employees the same regardless of gender or sexual orientation – otherwise you might find yourself on the wrong end of a lawsuit.

Monday
Jan222018

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

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

In the post on Sunday 1/21/18 we talked about the legal differences between sexual harassment and workplace bullying. So important for employees and employers. Bullying by itself may or may not be illegal; that varies among the states. But it is when bullying is because of a protected characteristic that it may cross the line and become illegal sexual harassment or discrimination or create a hostile work environment. The post gives some examples.

TAKEAWAY: Even if legal, bullying has no place at work; employers should take steps to ensure that it never rises to the level of sexual harassment.

The post on Monday 1/22/18 told us how Nicole Bass was slut-shamed by WWE during her sexual harassment lawsuit. Bass is a bodybuilder turned wrestler who died almost a year ago. Soon after her employment with WWE ended, she filed a sexual harassment suit – some of the sordid details are in the post. The WWE successfully defended, but it is the defense that is a teaching moment in today's era of #MeToo. The WWE slut-shamed Bass and more – see the post. Even the lawyers got into the act with procedural tactics – again, see the post.

TAKEAWAY: Slut-shaming and similar defensive moves are just some of the things that work to keep victims of harassment and discrimination quiet – but can also backfire against the employer. Be careful before playing this card.

In the post on Tuesday 1/23/18 we talked about the conundrum of social media at the condo or homeowners' association: who has what rights? We also suggested that you contact us due to our experience in this area. Socmed is a good (and inexpensive!) avenue for the Association to communicate with its members. But it is also fraught with danger if comments or posting is allowed by those same members. There are constitutional concerns as noted in the post. Further, pictures can be problematic; also see the post.

TAKEAWAY: There are ways to handle social media issues before they happen and in a legal way – contact an attorney familiar with the area to assist you.

The post on Wednesday 1/24/18 was about harassment by emojis. You know what an emoji is, right? Those little symbols that appear everywhere: emails, text messages, and more. There is probably more than one emoji for every possible situation – which could spell problems in the workplace. An emoji might be appropriate in the personal sphere, but not at work. All the ways verbal (or other written) expression can be considered harassment apply to emojis too. The post gives some examples. Further, as in the post, emojis can be evidence of a hostile work environment. Yep.  

TAKEAWAY: Employers' policies should be revised or updated to include emojis, and then train employees on the proper (and improper) use of emojis in the workplace.

In the post on Thursday 1/25/18 we saw that an HIV-positive gay man settled a $20M discrimination suit with a major advertising agency. Matthew Christiansen filed suit under Title VII anonymously in 2015; after the employer threatened to fire him and sue him for libel, he went public. Some of the allegations in his suit are in the post; they are somewhat graphic. The trial court dismissed the suit but it was reinstated on appeal. The post even notes some of the many people who filed amicus briefs in support of Christiansen. We won't know how the suit would have turned out now due to the settlement.

TAKEAWAY: Train managers how to act (and not act) – if they take adverse action (which is broad) against someone based on a protected characteristic, the employer can be liable.

The post on Friday 1/26/18 noted James Damore is suing Google for discriminating against white males. Unless you've had your head in the san, you've probably already heard about this. The state-court suit actually alleges bias against conservative viewpoints, men and Caucasians. Damore is the former Google engineer who wrote an internal memo last year about the alleged biological reasons women aren't engineers and was fired. Whether or not the suit will be certified as a class action remains a question. Also, it is interesting since women filed suit in August claiming pay discrimination. See the post on that and more.

TAKEAWAY: Due to the conflict between the EEOC and DOJ on what Title VII and the prohibition against sex discrimination covers, it is a good idea to advance state law claims if available. Of course, the best thing is for there to be no illegal harassment from the start.

Finally, in the post yesterday 1/27/18 we saw that a Japanese steakhouse settles an EEOC pregnancy discrimination suit. The suit alleged that the person worked as a server and bartender at the Japanese restaurant and was fired due to pregnancy. The post gives a bit of procedural history and notes the settlement terms.  

TAKEAWAY: If there is no illegal discrimination or harassment, there will be no need to settle; otherwise, just get out the pen and checkbook.

Monday
Jan152018

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

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

In the post on Sunday 1/14/18 we learned that a surveillance video foils plaintiff's ADA claim. What did we do before technology?!? Ok, so the plaintiff was hired to assemble harnesses for industrial dryers. It was a very physically-demanding job. In Summer 2015 he brought in a light-duty note from his doctor with details on his restrictions. In August 2015 he got STD but had still not requested light duty (and there was none). The employer surveilled him during the leave; what it found is in the post. In late January 2016, he was fired (as a result of the surveillance). He sued under the ADA. And lost, one not one but 2 bases. The court's explanation is in the post and makes perfect sense.

TAKEAWAY: The start of the ADA's interactive accommodation process is a request by the employee for an accommodation – only then must the employer act. And act on fact, not fiction.

The post on Monday 1/15/18 was about a veteran fighting an HOA to display the US flag (and we noted that Associations and owners should know the law on flags). He served 3 tours in Iraq and is still fighting. This time, it's the homeowners' association on the other side. Why? He put up the US and marine flags at the sides of his driveway and the HOA says it's against the rules. Watch the VID linked in the post.

TAKEAWAY: Associations can have rules and regulations, but they must be legal. Know the Flag Act.

In the post on Tuesday 1/16/18 we noted that when it comes to unemployment benefits, an angry outburst isn't reason enough to quit. We then asked if you know what PA law would say? In this case, Edward was a lab assistant at a college. He quit after a meeting; his reason is in the post. He filed for UC benefits and was denied. The reason, which was upheld on appeal, is in the post.

TAKEAWAY: Would Edgar get unemployment benefits in PA? Probably not since it appears he had no necessitous and compelling reason.

The post on Wednesday 1/17/18 asked: is terminating a severely overweight employee is disability discrimination? Ketryn thought so. She said her new boss made offensive remarks about her weight; one particular one is in the post. Other things he did are also in the post (including paying her less than a thinner, more junior employee). The employer's reason for termination is in the post along with her response to it. She sued and a judge will let the case go to a jury.

TAKEAWAY: Who has to prove what when a discrimination suit is filed are in the post and crucial to any case. Make sure you have all of your I's dotted and T's crossed.

In the post on Thursday 1/18/18 we read that they did not want a Muslim – woman sues after she claims they ordered her to remove hijab for work. Who is "they"? A Dillard's store in Texas. Duha had begun training for a sales position and was told by a department manager that she could not wear her hijab on the floor. After being told it was for religious reasons, the manager apologized. However, read the post to see what happened later – and why she took action.

TAKEAWAY: Employers may not run roughshod over an employee's sincerely-held religious beliefs – even if they run afoul of a policy or rule. Be careful.

The post on Friday 1/19/18 points to a report that Microsoft systematically discriminates against women in pay and advancement. The report was prepared and filed as part of a pending suit filed against Microsoft. The finding is that Microsoft paid low-to mid-level female employees less than similarly-situated male employees and more listed in the post. Another report suggested decisions by Microsoft were subjective. The reports also gave more details about their findings; see the post. And the suit goes on.

TAKEAWAY: Pay employees based on job performance, not gender (or any other non-performance-related characteristic).

Finally, in the post yesterday 1/20/18 we learned that a court affirmed summary judgment for the Penthouse Club in a discrimination suit. The trial court judge found in favor of Penthouse Club in a race and age discrimination suit and was affirmed on appeal. Charles, an African American male, was 50 when hired. He says that almost immediately his boss began calling him names (in the post). A few months later, when in a dispute at an unrelated nightclub, Charles ran into a co-worker in the parking lot. Charles alleges the employee shouted a racial epithet at him and told him he'd been written up. Charles' boss said there was no write-up and the name-calling would stop. Charles wanted more. Then he sued. His reasons, the club's response, and the judge's ruling are all in the post.

TAKEAWAY: This case was a rarity – so clear on the facts that the court did not require hearing or oral argument, only briefs. And it reaffirms that the facts need to be on your side for a successful outcome.

Sunday
Jan072018

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

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

In the post on Sunday 1/7/18 we found out that Bojangles will pay $15,000 to settle an EEOC sexual harassment and retaliation lawsuit. Not getting Southern warm fuzzies from that one. The suit alleges that Jonathan, a transgender woman, was subjected to offensive comments over and over and that management made illegal demands – see the post. She reported the harassment but it continued and, to make things worse, she was fired. Everything that Bojangles agreed to is in the post.

TAKEAWAY: More and more courts are finding that gender identify is protected against discrimination by Title VII or other laws – and the EEOC takes that position – so be careful of the actions your managers take (or don’t take but should).

The post on Monday 1/8/18 said that PA State Police paid $8M to settle claims against troopers. Yep, it's not just Congress and Hollywood.  And that payout was for 18 sexual harassment and discrimination cases since 2001, with 4 more cases pending now. The allegations in the cases that settled, along with the ranks of the plaintiffs, are in the post. The payouts ranged from $5,000 - $435,000; but the post also mentions payouts of $6.3M to settle claims against just one trooper. And the $8M does not include $250,000 from a jury verdict last month. Details about some of the cases that settled are in the post. It is sad that a law enforcement agency has been and remains embroiled in remedying this type of behavior – it needs to stop.

TAKEAWAY: It doesn’t matter who the employer is – discrimination and harassment should not happen. If it does, it must be stopped, the victim made whole (if possible), and the perpetrator punished. Period.

In the post on Tuesday 1/9/18 we asked: what is a homeowners' or condo association – and what does it mean to you? We suggest you talk to us before you buy (or if you are already residing in a planned community or on the Board of one). More and more people every day reside in condominiums or single-family homes in planned communities – those with a homeowners' association and certain documents that govern many facets of life in the community. The post gives some tips on what to know before buying.

TAKEAWAY: The documents that govern in a planned community are a legal contract and provide for rights and responsibilities of both homeowners and the Association – consult an attorney to know what they mean.

The post on Wednesday 1/10/18 told us 5 steps to take if the investigation does not prove out harassment allegations. Well, let's start with the assumption (yes, that can be dangerous!) that if a complaint is lodged, the employer investigates it, promptly and fully. But what if the facts do not support the complaint? Well, initially, and as the post notes, that doesn't mean the allegations were false or that the person who made the complaint should be disciplined; rather, there are degrees of things that may be in play (as in the post). But there are 5 things that are good to do anyway, including having the alleged harasser sign a(nother) copy of the company's anti-harassment policy, thanking the person who complained for being concerned, and 3 more in the post.

TAKEAWAY: The hope is that an investigation will not support allegations of harassment or discrimination in the workplace, but employers should take certain steps afterward to protect themselves nonetheless.

In the post on Thursday 1/11/18 we learned that being rude isn't a protected ethnic trait. In a federal court case in PA, Ina, a recently naturalized citizen, was discharged. Management documented its bases for the discharge. Ina sued for national origin discrimination. The court agreed with the employer's defense (see the post) and dismissed the suit.

TAKEAWAY: We've said it before: document document document. Make sure to have support for what you claim.

The post on Friday 1/12/18 noted that parking restrictions should be rooted in reality, not for the sake of appearance. How do yours measure up? This is another talking about life in a planned community, this time one with parking restrictions. Actually, most of them have parking restrictions so you probably are or know someone who has to live with the restrictions. But are they legal and reasonable? It will depend on the circumstances (see the post for an example). The post also gives a few ideas on what to do if the restrictions are not reasonable under the circumstances.

TAKEAWAY: Life in a planned community is governed by rules, whether or not the owners like the rules. But there are things to do and ways to change those rules – consult an attorney who practices in this area of law.

Finally, in the post yesterday 1/13/18 we learned that small Carlisle Borough settled an age bias case for $650,000. Yes, your read that right. The former public works director had filed charges of age discrimination in his discharge (and more in the post). We will never get to find out the true facts now due to the payout. The post also notes the breakdown between insurance coverage and taxpayer-funded payout.

TAKEAWAY: Sometimes, even if a complaint is untrue, it is better for both parties to settle than to litigate. But the settlement parameters – and dollars – will vary from case to case.

Monday
Jan012018

ICYMI: Our Social Media Posts This Week – Dec. 31, 2017 - Jan. 6, 2018

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

In the post on Sunday 12/31/17 we saw that the Masterpiece Cakeshop had its day before SCOTUS – what we know as we wait for a decision. Five years ago a customer requested a wedding cake. Now that request is before the US Supreme Court. Ok, back to the history. Charlie and David asked Jack, masterpiece's owner, to create a cake for their same-sex wedding. He said no due to his religious beliefs. They filed a charge with the state HRC. The post details the rulings of the HRC, the state appeals court and the state supreme court on the way to SCOTUS. There, Phillips argued his constitutional rights to free speech and free exercise. Many individuals and groups filed briefs supporting the parties. Stay tuned.

TAKEAWAY: Constitutional freedoms are important, but they can't all be paramount – sometimes one must trump the other and that is what is to be decided here.

The post on Monday 1/1/18 wished you health, wealth and wisdom to see you through the year!

TAKEAWAY: It's a fresh start for all – make it a good one!

In the post on Tuesday 1/2/18 we learned the ex-CEO of BNA filed a wrongful termination suit against the airport authority. In firing him, the employer cited 6 issues (see the post). The suit, however, says the employer did not let him resume his duties when he returned from an approved FMLA leave. The bases upon which the suit was filed are in the post.

TAKEAWAY: Even if there is a legitimate reason for an adverse action, the timing can make it look suspect; be careful.

The post on Wednesday 1/3/18 was about an employee fired 2 days after company doctor suggests he suffered on-the-job hernia advancing claims. The discharge was allegedly for working unsafely. The federal court judge denied the employer's motion to dismiss and found in favor of the employee on various claims under the ADA and more (as in the post). To avoid being that employer, see what the employer did (as in the post) and don't do the same thing. Also keep in mind a lesser-used prong under the ADA (record of disability).  

TAKEAWAY: As with our post from 1/2/18, even if there is a legitimate reason for taking adverse action against an employee, keep in mind the timing of that action so that it doesn’t look suspect.

In the post on Thursday 1/4/18 we saw that $1.16M was awarded in a transgender employment discrimination trial. A jury trial. So what happened? Dr. Rachel Tudor, a male-to-female transgender tenure-track professor, sued the university employer, alleging that it discriminated against her on the bases of gender and gender identity (with specific bases and background facts mentioned in the post). The tenure committee recommended granting tenure; administrators rejected that recommendation. What happened next is in the post. DOJ filed suit on her behalf (wow!) and later she intervened with another claim. DOJ settled out prior to trial. The post explains in more detail what sex stereotyping is.  

TAKEAWAY: Litigation is proving out that discrimination on the basis of gender identity is illegal – but stay tuned since DOJ has now changed its stance under the current Administration.

The post on Friday 1/5/18 told us workplace civility rules get a boost from Labor Board decision. And yes, even you non-union employers care. In mid-December the NLRB overturned a prior decision and how (or whether) it applied (see an example in the post). Now, Boeing was successful relative to a "no-camera" rule banning employees from taking photos or videos on job sites without permission. The question now is whether the rule is mere workplace civility or something else. And that is where the EEOC will come in with possible discrimination.

TAKEAWAY: Yes employer, there is the ability to have civility rules, but make sure not to enforce them in a way that is discriminatory (and invites a second look from the EEOC).

Finally, in the post yesterday 1/6/18 we learned about common mistakes employers make in handling complaints of sexual harassment. So timely. And so important. First, there is the failure to promptly and competently investigate. In other words, don't be an ostrich. Keep that head up, acknowledge the complaint, and investigate it thoroughly (taking action if necessary). Four other common mistakes are in the post with tips on how to avoid (or remedy) them.

TAKEAWAY: Mistakes happen – but try to avoid them if possible by taking complaints of harassment seriously and processing them properly. Get legal help if necessary.

Friday
Dec222017

ICYMI: Our Social Media Posts This Week – Dec. 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.

The post on Sunday 12/24/17 told us that "delete" will not save you in court: employers have a duty to preserve email evidence. A salesperson filed suit against her former employer; she alleged sexual harassment (details are in the post). After a discovery request to produce all emails between the plaintiff and her former boss, the employer deleted them and said they no longer had them (yeah, bad bad bad). The post tells what happened next and how that one stupid act alone hurt the employer.

TAKEAWAY: Don't ever destroy evidence! And follow the steps in the post after discussing them with your attorney.

The post on Monday 12/25/17 was a celebration of the season – and sent warm wishes from us to you.

TAKEAWAY: Always take time to celebrate what matters to you.

In the post on Tuesday 12/26/17 we asked: Where were sexual harassers' bosses? When all of the things of which people everywhere are being accused were going on, where were there bosses? Yes, the people in Hollywood and Congress and elsewhere. Those hallowed halls (and sets) and more are still workplaces. As noted in the post, there might have been willful ignorance by those bosses. That might eventually subject those same bosses to legal liability – see how the post explains it.

TAKEAWAY: Know what your employees are (not) doing – don’t turn a blind eye.

The post on Wednesday 12/27/17 gave us 5 lessons for employers from NBC's handling of the Matt Lauer termination. Sadly, all of the sexual harassment allegations everywhere and the employer's responses are good fodder for us and we can learn from them. So what can we learn from how NBC dealt with the Matt Lauer situation? First, be up-front and as accurate as possible in any public reports or disclosures. As noted in the post, don't issue contradictory statements – they only raise questions. Second, don't rush to make public disclosures. Yep, those contradictory statement again. Wait and make sure you have all of the correct facts. The other 3 tips are in the post.

TAKEAWAY: Act when allegations of harassment are lodged, but act appropriately and legally.

In the post on Thursday 12/28/17 we noted that reassignment can be a post-FMLA accommodation. First, remember that you may well have a duty to accommodate the employee returning from FMLA leave for his or her own illness. If the leave was extended beyond the statutory time, and the former position isn't available, you could consider reassignment. The post tells us how that played out in one case.

TAKEAWAY: Remember that the duty to accommodate does not mean the employee must get the accommodation that is being requested; rather (with certain caveats), AN accommodation must be provided if possible.

The post on Friday 12/29/17 told us the NLRB rolled back the joint employer test. This is good news for ALL employers (yes, even non-union) and potentially bad news for employees looking for a deep pocket. So now the test for liability as an employer depends on control (see the post for an explanation of how this is determined).

TAKEAWAY: Employers can rejoice (a bit), but not too much as the evidence still matters in determining potential liability.

Finally, in the post yesterday 12/30/17 we learned that FMLA mistakes aren't necessarily willful. This matters because it can affect the time in which the employee has to bring suit. Courts are to determine this on a fact-intensive basis as was done in the case in the post.

TAKEAWAY: Accidents happen and things do go awry in the workplace – even when an employer is trying to do the right thing. It may end up wrong, but not intentionally so.

Monday
Dec182017

ICYMI: Our Social Media Posts This Week – Dec. 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 12/17/17 we noted racism is not necessarily employer's fault even if incident occurs on its premises. Read the post.

TAKEAWAY: There must be an actual nexus between the alleged discrimination and the employer's (in)action. Mere coincidence won't be enough.

The post on Monday 12/18/17 asked: What is a condo (or home in another planned community)? Know your rights and obligations. These types of homes come with legal documents that govern what you can and cannot do in and around (and sometimes on or in) your home, so make sure you read them and understand them before buying. And you pay for certain things, whether or not you want or need them. The post gives some examples of these and other categories.

TAKEAWAY: If you are thinking about purchasing a home that is in a community with a homeowners' association, make sure you understand the Governing Documents. Take them to an attorney.

In the post on Tuesday 12/19/17 we learned that employee told to "go back to Poland" suffered direct race discrimination (and noted this would probably play out the same here). The plaintiff alleged his colleague subjected him to many discriminatory behaviors, including his annual leave being denied unless he gave the colleague a bottle of vodka (and more in the post). The court said none of those was sufficient proof of discrimination under the facts before it, but it did find discrimination in one comment. The employee asked to work a shift with his daughter so he could safely walk her home after. The post contains the colleague's response and set up the company for liability.

TAKEAWAY: In the right circumstances, a single comment can lead to liability for discrimination Train your employees.

The post on Wednesday 12/20/17 told us that failing to address harassment allegations can cost employers (financially and in the court of public opinion). The first example in the post is when a complainant brought a response "Oh, no, not again". Not good. There are other examples in the post.

TAKEAWAY: If you receive an allegation of harassment, don't stick your head in the sand and hope it will go away – or automatically assume it is not well-founded. Investigate. And take action as warranted.

In the post on Thursday 12/21/17 we talked about he said / she said: pronoun use and the evolving landscape of transgender rights in the workplace. In other words, addressing someone using the wrong pronoun can subject your company to liability for sex discrimination or harassment. The post gives examples of some laws and cases Even the EEOC has guidance on this – see the post. Of course, the DOJ has now asserted that Title VII does not protect against discrimination on the basis of gender identity and so is at odds with the EEOC. Until a court decides this finally, employers should look carefully at the areas identified in the post to stay out of hot water.

TAKEAWAY: Make it easy on yourself – refer to your employees how they ask to be referred to. Simple.

The post on Friday 12/22/17 noted a former Penn State employee sued for more than $150,000 for age discrimination. Tracey was hired by PSU in 1985 and was promoted over her 31 years of employment. She was fired in 2017. She alleged it was based on age (not performance). A mere 8 days after papers showed how much she would get at retirement, the retirement program was changed. The post has the details. PSU denies any wrongdoing.

TAKEAWAY: If you are going to take adverse action against an employee, make sure it is for a valid reason and not one that you come up with after the fact.

Finally, in the post yesterday 12/23/17 we noted a move affecting income might be retaliation. Loose lips … You know. Leonard was a statistics professor, black and from Nigeria. He uses a textbook he wrote in his class, thus earning additional income. He filed many complaints over the years about being underpaid. Finally management agreed. But … see what happened next in the post. Aargh. And the court let his newest suit go forward.

TAKEAWAY: It's bad enough to discriminate against an employee. But you can almost bet that if it hits their pocketbook, they will file a charge or sue (thus hitting your pocketbook).

Tuesday
Dec122017

ICYMI: Our Social Media Posts This Week – Dec. 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 12/10/17 we read about 4 types of employees nearly every company has and what to do about them. We noted that you will recognize all of them. First is the office romance. The employee who brings love to co-workers. Whether or not it is a problem for an employer depends on consensuality, chain of command, and more. See the post with how to deal with this. Other types include the office revolutionary and 2 more in the post (which also talks about how to handle them).

TAKEAWAY: You don't have to like all of your employees, but you do have to treat them legally (and pursuant to your policies).

The post on Monday 12/11/17 noted that prior entitlement to FMLA leave is not a free ticket to miss work for non-FMLA covered reasons. In a case binding on us here, the court affirmed an employer's decision to discharge an employee pursuant to its absenteeism policy despite the employee's prior FMLA leave. Why? See the post. The court looked at her work history, the FMLA leave, and more in the context of her FMLA interference and retaliation and ADA claims and dismissed them all. The reasoning is in the post.  

TAKEAWAY: Even if an employee had an approved FMLA leave, you can still enforce your absenteeism policy for absences not related to the reason for the FMLA leave.

In the post on Tuesday 12/12/17 we saw that the EEOC (finally!) scores victory in sexual orientation discrimination lawsuit. And in a federal court in Pittsburgh to boot! The court awarded more than $55,000 to the EEOC on behalf of the employee. This was one of the first cases the EEOC filed about sexual orientation and one of the first holding sexual orientation discrimination is prohibited sex discrimination. So what is the background? Dale was a telemarketer. From day 1, his supervisor harassed him about his sexual orientation – the many ways he did it are in the post. Dale reported it and the CEO/owner did nothing. Dale quit, field charges … and here we are. The post contains more details on the suit and the damages phase, including where the employer fell short.

TAKEAWAY: Make sure to train employees on anti-harassment and anti-discrimination policies. Then enforce those policies.

The post on Wednesday 12/13/17 was about how to identify serial harassers in the workplace. You know, those people who do it again and again, with impunity. Many accused of that behavior have been or are in the news now. An article mentioned in the post talks about ensuring that the first to report is not victimized again – by creating some type of repository until there is another. The post explains how it might work and change the culture that seems to pervade today's society.

TAKEAWAY: Whatever system you choose in your workplace, encourage reporting of harassment – and then investigate and take action as appropriate. Don't turn a blind eye.

In the post on Thursday 12/14/17 we found out that timing is everything when defending a retaliation claim. Especially with this case that is binding on us here in Central PA. Miriam worked as a ticket agent for a bus company. She was fired. Two weeks after telling the company she needed FMLA leave for breast cancer surgery. The post gives more background details – you will (hopefully) cringe when your read them. The court did and let Miriam's retaliation claim go forward. The rationale is in the post.

TAKEAWAY: If you take adverse action against an employee, make sure there is a valid, legal basis for it – from all angles.

The post on Friday 12/15/17 told us about a car dealership paying $150,000 to settle a discrimination suit. That's a lotta green! The suit alleged that it paid Chinese technicians less than other workers. And more – in the post.

TAKEAWAY: Don't tell an employee anything you wouldn't want to see on the front page of the Washington Post – and don't pay them less for a reason that isn't legally valid.

Finally, in the post yesterday 12/16/17 we see the Department of Labor aggressively pursuing back pay claims. And suggest you not be on the wrong side – contact us. The FLSA is sometimes confusing, but don't get mired down and end up paying more than you had to from the start. The post gives a good (but hopefully extreme) example of a small amount being owed but not paid for overtime, the employee complaining, and nothing being done – until the DOL filed suit.

TAKEAWAY: Make sure to properly pay employees, each and every pay period.