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Monday
Dec152014

ICYMI: Our Social Media Posts This Week -- Dec. 14 - 20, 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 post on Sunday 12/14/14 started the week with signs you have (or are) a horrible boss (some of which can result in legal liability for the employer). So what are some of the signs that could have legal implications? They have a pesky habit of calling you on your day off. Your boss has favorites. They’re passive-aggressive or ignore you. Your boss throws tantrums easily. Others are in the post.

TAKEAWAY: Having or being a bad boss is not itself illegal, but some of the behaviors exhibited by bad bosses can be; know which are legal or illegal.

In the post on Monday 12/15/14, we suggest you make sure you can define what (not) “fitting in” means. This came up in the context of an employer’s rejection of a minority candidate – multiple times – for a job that didn’t even come with a pay raise. Each time a position opened over a 5-year span, it was filled with a Caucasian candidate even though the African-American employee had more training and seniority than each of the 8 candidates selected. When the emplo9yee’s supervisor, who had recommended him for the position, questioned why the employee was not selected, the response was that another candidate was a “better fit” and had a college degree. There had been a similar comment earlier in the process that the employee “did not fit in”. The employee filed administrative charges, alleging race discrimination; after that, he was still not selected, was reassigned, others were told to “keep their distance” from him, he was not considered for future vacancies, all of which led to retaliation charges. He eventually sued. On appeal, the court found that the “fitting in” comments were not stray, but that a jury could conclude the comments were related to race discrimination.

TAKEAWAY:  Treat all employees (and candidates) the same and use objective criteria for selection; also, once a complaint is filed, don’t treat the employee differently than other employees.

On Tuesday 12/16/14 the post was about 8 amazing things you can do only while scuba diving. Off our usual legal topics, but in keeping with the idea that one must have fun to balance out all the hard work.  SO what are some of the things? Speak whale to an actual whale. Immerse yourself in history (diving wrecks). Try that jetpack you’ve always wanted (with a diver propulsion vehicle). Hover like a genie. The others are in the post.

TAKEAWAY:  Scuba diving is an amazing way to meet people, visit new places, and continue learning and honing your skills. It provides a respite from the “regular” world when you are under water.

The post on Wednesday 12/17/14 was about 7 ways a company can legally discriminate against its employees. Yep, legally. So what are some of the things that made the list? If you‘re gay. If you’re transgender. If you’re unattractive or too attractive. The others are in the post.

TAKEAWAY:  There are many areas in which employees lack protection under state or federal law; this does not mean that employers should discriminate on the basis of those things, just that they can do so legally.

The post on Thursday 12/18/14 talked of 1 potato, 2 potato, nope, no 3rd potato if you’re female.  You guessed it: pay discrimination on the basis of sex, a violation of the Equal Pay Act. If employees are doing the same job, they should be paid the same, regardless of their gender. Here, females complained when they found out that was not the case. So what did the employer do? It allegedly retaliated against them after the complaint by firing one and demoting another. This matter is now in conciliation between the EEOC and the City and also the subject of a federal lawsuit.   

TAKEAWAY:  Employers should look at the job, not the person doing it, in establishing pay that is uniform for that job.

The post on Friday 12/19/14 told us how the NLRB raised the stakes, making a grab for broader financial remedies. Again. In a ruling issued 10/24/14, the NLRB said it has broad authority to order expanded remedial measures relative to acts it considers “egregious and pervasive” violations. This employee-friendly Board wants to strike fear in employers. What did the Board require in this case? That the employer reimburse the Board’s General Counsel and the union for their litigation expenses over the several-year period, including reasonable counsel fees, witness fees, transcript and record costs, printing costs, travel expenses, per diems, and more. Further, the employer now has to comply with expanded posting requirements. Finally, and here’s the kicker, the Board ordered that the parties brief the issue of front pay (for wages for the period between the judgment and reinstatement) – something it has not done before and a remedy not requested by the union or General Counsel (nor by any party).

TAKEAWAY:  Employers should remember that at least some provisions of the NLRA apply in EVERY workplace; that means a violation could subject the employer to these increased remedies and penalties if it makes a misstep.

Finally, in the post yesterday 12/20/14 we reaffirmed that employers should not destroy records during a pending employee lawsuit. Here, the employer destroyed records (according to its policy) at least 8 months after the employee filed her EEOC charge and at least 3 months after she filed suit.  What was the result of the employer’s conduct? The jury was to be given an instruction that it could draw an adverse inference from the destruction.

TAKEAWAY:  Even when an employer has in place a regular document destruction policy, it must know when to put that policy on hold. Once a complaint is filed internally, which could be long before administrative charges or suit is threatened or filed, the employer should preserve any and all records relevant to the complaint. 

References (11)

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    Austin Law Firm, LLC - York, PA Lawyer - Homeowner, Civil Litigation, Corporate Law - ICYMI: Our Social Media Posts This Week -- Dec. 14 - 20, 2014
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