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ICYMI: Our Social Media Posts This Week -- Nov. 30 – Dec. 6, 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 11/30/14 about gay people being legally able to marry and get fired in PA. Huh? As the post says, “Gay people can now get legally married in more states than where they are legally protected from job discrimination.” PA is one of the 5 states where gay people can legally marry and also be fired just for being gay – there is no national or state law prohibiting discrimination in employment on the basis of sexual orientation. ENDA, the Employment Non-Discrimination Act, has been floating around in Congress for several years but has died in committee due to a fight over whether or not it should also include protection on the basis of gender identity.

TAKEAWAY: While there is no PA law prohibiting discrimination in the workplace on the basis of sexual orientation, it is still better for an employer to stick to performance-related issues if taking adverse action against employees.

The post on Monday 12/1/14 provided 3 top labor & employment enforcement priorities (per DOL and EEOC). What are they? Misclassification enforcement starts the list. This includes who is the employee and who is the employer, along with employee versus contractor and exempt versus non-exempt. The other 2 priorities are in the post.

TAKEAWAY:  It is more important than ever to properly classify those providing services to you (or on your behalf). Consult an employment law attorney if you are not sure.

On Tuesday 12/2/14 the post was about an employee’s snarky Facebook post causing ADA trouble for the employer. Yep, socmedia rules the day – this time under the ADA. So what happened? An employee learned about a co-worker’s injury when she processed his worker’s comp claim and monitored his treatment as part of her job.  She then posted on her Facebook account on her own time and gave detailed information and mentioned the co-worker by name. The co-worker sued the employer, alleging a violation of the ADA.  The court allowed the suit to go forward.

TAKEAWAY:  Employers must train employees on all aspects of social media – over and over – and its intersection with their job duties and confidentiality. If there is a violation, the employer could be liable.

The post on Wednesday 12/3/14 reminds that assuming someone cannot do the job could be disability discrimination. Matthew had his left arm amputated in late 2010. 3 years later, he applied for a busboy position at a restaurant. He was told to report to work the next day. When he showed up and the owner saw he was an amputee, the owner told Matthew he could not bus tables with only one arm.  Despite Matthew responding that he had been a busser elsewhere, the owner refused to let him work and told him to leave. The EEOC has now sued the employer for violation of the ADA.

TAKEAWAY:  Remember what you learned as a child? Don't assume. That still holds true today.

On Thursday 12/4/14 the post was about how an employment law attorney can help employers make tough decisions. First and foremost, they are trained in and keep up with ever-changing employment laws and court interpretations of those laws. Employers often request legal assistance relative to firing someone; other times include worker classification, layoff, changing employee benefits or pension plans. Another time that is good for employers to seek legal assistance that is not in the post is before responding to an administrative agency charge of discrimination or harassment.

TAKEAWAY:  Employers can often handle matters themselves, but sometimes it is better to consult an expert – an employment law attorney.

The post on Friday 12/5/14 reminds us that sexual harassment and hostile environment can land an employer in hot (and expensive) water. Here, it cost a California electrical services company $82,500 (plus other relief) to settle a sexual harassment lawsuit. The allegations in the suit included a male manager continually subjecting female workers to a hostile work environment, including daily grotesque remarks of a sexual nature and explicit sexual propositions on a continual basis. And, to make matters worse, the allegations are also that the supervisors did not report incidents they witnessed and the company’s management inadequately addressed reported harassment.

TAKEAWAY:  If an employee complains about what s/he perceives as harassment or discrimination, don’t ignore it; investigate and take appropriate action.

Finally, the post yesterday 12/6/14 provided a fact sheet relative to FMLA leave (and serves as a good basic reminder). The post reminds us of the reasons available under the FMLA for leave (including birth of a child, care for a serious health condition, and specific provisions related to service members), definitions of certain terms (including spouse and parent), the length of the leave, and enforcement.

TAKEAWAY:  Employers must be aware of an employee’s rights and the employer’s duties under the FMLA.

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