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ICYMI: Our Social Media Posts This Week -- Nov. 23 - 29, 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 11/23/14 and how required participation in a wellness plan may violate the ADA. As noted, this is a hot-button topic for the EEOC now. In the plan at issue, the suit was filed because employees had to undergo a biometrics exam and health-risk assessment (or lose their health insurance). This was problematic since the exam and questions were not job related.

TAKEAWAY: Wellness plans can be a boon to employers and employees as long as they are legally compliant; make sure yours is before rolling it out publicly.

The post on Monday 11/24/14 was about improper pickle placement or union busting. A Burger King franchisor was held to have committed several varieties of “union-busting”. It took several actions, including sending a worker home one day because she allegedly did not “put pickles on her sandwiches in perfect  squares as she was supposed to do.“ Ordinarily it is ok to discipline employees for not doing things the way they are supposed to, but here it happened coincidentally the day after she was written up for allegedly violating the no-solicitation policy (by asking a co-worker to fill out a wage questionnaire).

TAKEAWAY:  Employers must keep in mind that even in non-unionized workplaces, employees are permitted to discuss certain things like wages and attempts to stop that can be illegal.

On Tuesday 11/25/14 the post talked about the continuing trend toward individual liability for supervisors under various statutes. The subject case was brought under the FMLA. The employee suffered from severe arthritis in her hips but her performance was always “more than satisfactory” and she had good evaluations. Her supervisor changed in 2011; in December 2011, she told him she needed hip surgery. In August 2012, she told the supervisor that the surgery was set for October. Two days later she was fired, allegedly for a written reprimand from 2006 and a July 2012 incident for which there was no written reprimand. She sued the company and supervisor individually under the FMLA. The judge analogized the FMLA to the FLSA and said the test for individual liability is whether the person (1) had supervisory authority over the employee and (2) was responsible for the alleged violation.

TAKEAWAY:  Just because you are an individual, don’t think you have no liability for illegal actions taken by you on behalf of the employer; you just might.

The post on Wednesday 11/26/14 asked why the N-word is always a part of allegations of race discrimination. This word should never see the light of day, but keeps popping up in the workplace (and, subsequently, lawsuits). The court in one case said that using the N-word once is not the basis of a claim for race discrimination. Another case is the Huddle House case we posted about last week. The third case took place in an OH management company where the manager allegedly “frequently called black employees names such as “n----r”, “ho”, and “black bitch” while allowing white employees more breaks than black employees and disciplining black employees for tardiness while not taking similar action against white employees.

TAKEAWAY:  Employers must take care that employees are treated the same regardless of their race; if the law is violated, the employer will be brought to task.

On Thursday 11/27/14 we took time out to wish everyone a bountiful Happy Thanksgiving.

TAKEAWAY:  Stop every so often and give thanks.  

The post on Friday 11/28/14 was about a $15K settlement in a national origin case about failure to pay overtime. The lawsuit alleged that 6 Chicken Express franchise locations in Oklahoma failed to pay Hispanic cooks overtime wages because of their Latin-American national origin. The settlement involved payment by the employer of $15,000 along with other actions including anti-discrimination training of all management employees.

TAKEAWAY:  Not only should an employer not violate overtime pay requirements, it should not do so based on a protected characteristic – that only makes things worse.

Finally, the post yesterday 11/29/14 recounted racial slurs and nooses (but not the N-word) resulting in another EEOC suit. This time the employer is in NJ. What are the EEOC’s allegations? That the company’s management used “racial language”  like “calling African-American employees ‘ass monkeys,’, making comments about blacks swinging through the trees, and describing African-Americans as lazy and dependent on the government.” As if that wasn’t enough, it was at the same time a stuffed monkey was in the workplace and, at times, had a cord or rope tied around its neck or appeared to be hanging.

TAKEAWAY:   Make sure your employees – management on down – do not take any action that could be construed as discriminatory or harassing – properly train and discipline those who are violating the training and applicable law.

References (8)

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    Austin Law Firm, LLC - York, PA Lawyer - Homeowner, Civil Litigation, Corporate Law - ICYMI: Our Social Media Posts This Week -- Nov. 23 - 29, 2014
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