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Monday
Nov102014

ICYMI: Our Social Media Posts This Week -- Nov. 9 - 15, 2014

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 week started with the post on Sunday 11/9/14. We learned that you really can't ask employees about prescribed medications and over-the-counter drugs or test for legal prescription medications.  How? By the EEOC filing suit under the ADA against a company that allegedly illegally fired an employee for using prescription back pain meds (although he passed fitness-for-duty exams and had a doctor’s release).

TAKEAWAY: Under the ADA and GINA, if you are asking about medications, make sure it is job-related and based on business necessity or prepare for suit.

The post on Monday 11/10/14 was about an employer success in protecting its SocMedia rights. Here, BET prevailed in a dispute with former worker over the employer’s Facebook fan page. The employee created the page by herself; BET then hired her to manage the page, including posting BET’s trademark and logos and giving her exclusive content to post. They later entered into a written agreement about the page; after that, during discussions about making her employment full-time, the employee restricted BET’s page access and BET had FB migrate the fans to another official page and shut down that page. The employee sued. Who won? Check out the post.

TAKEAWAY:  SocMedia is important to so many aspects of a business; make sure you legally keep the upper hand.

On Tuesday 11/11/14 the post was about disabled or just a cantankerous jerk; one can be fired easily. A police officer was cited several times over many years for behavior including being “tyrannical, unapproachable, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” For that and other things, he was discharged. He sued under the ADA, claiming ADHD was a protected disability. In the end, since his ability to work or interact with others was an essential function, he lost the case.

TAKEAWAY:  Does the court in your jurisdiction say ADHD is a disability under the ADA or is the employee just being a jerk?

On Wednesday 11/12/14 the post talked about the wrong way to engage in the ADA interactive process. The facts in the subject case seem totally in favor of the employee: “Upon attempting to return from a medical leave of absence, an employee requests the following accommodations: an ergonomic chair, adjusted lighting in her office, and a part-time schedule for the next eight days. Instead of providing the accommodations, or even discussing their availability, the employer refuses to permit the employee to return to work, instead telling her not to return until it was with no restrictions or accommodations. The company later fires the employee (seven days after she filed an Equal Employment Opportunity Commission charge challenging the failure-to-accommodate), telling her that she failed to engage in the interactive process.” The EEOC sued on her behalf. Does anyone reading this post know of a reason the suit should not succeed?

TAKEAWAY:  Interaction in the accommodation process is not voluntary once the employer knows of the need.

The post on Thursday 11/13/14 was about the latest suit against FedEx, this time for discrimination against deaf employees.  Apparently FedEx is unaware of the myriad of federal laws that it is required to follow, including not discriminating against individuals without legal basis.

TAKEAWAY: If one or more employees are being treated differently, make sure there is a valid legal basis (and that the different treatment doesn’t or won’t lead to suit).  

For some humor, the post on Friday 11/14/14 mentioned some of the strangest issues ever brought to HR (and the one thing they wanted to put in their company’s handbook). These came from a survey of HR professionals. Here’s the first issue: “A maintenance man at a property management company was found in possession of some narcotic prescriptions that were not in his name. He grabbed them from his supervisor and said they had been given to him for his fish. He would NEVER take prescriptions that weren't prescribed for him… really… REALLY they were for the fish…” And a handbook addition: “Keep the drama for your mama! And she doesn't work here!” For more, go to the post.

TAKEAWAY:  Those in the HR field probably see and hear humorous and strange things every day – but they have to make sense of them within the scheme of employment laws. At least they can call on an employment attorney to assist.

Finally, in the post yesterday 11/15/14, we read "Men are breadwinners, women should stay at home". A judge refused to dismiss female sales representatives’ $100 million class-action lawsuit against Merck in which the women allege a 'boys club' atmosphere.  At this stage, the judge ruled that the case could survive an initial motion to dismiss by Merck. The claims include females, especially those who were pregnant, being paid less than males and complaints leading being ignored.

TAKEAWAY: If employees are doing the same job, and all else being equal, pay and treat them the same. Just do it.

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