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Monday
Dec222014

ICYMI: Our Social Media Posts This Week -- Dec. 21 - 27, 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 12/21/14 was about action taken as a general prankster or because of a protected characteristic. There is a HUGE legal difference (and hopefully you know the difference!).  Pranks happen, but they can rise to the level of a hostile work environment that violates Title VII, the ADA or the ADEA (to name a few). It’s those latter ones that can put the employer in legal hot (and expensive) water.

TAKEAWAY: Employers should try to keep the workplace free of pranks, but especially ensure they do not become illegal harassment or discrimination.

In the post on Monday 12/22/14, we talked about why you should seek legal guidance when using agreements with arbitration provisions. These are legal provisions that may or may not be enforced, depending on the state and how they are worded. However, if not drafted properly and if not in compliance with applicable law, the provision may not survive.

TAKEAWAY:  As with other legal provisions or documents, if you want an arbitration provision in a contract or agreement, consult an employment attorney to ensure that it is legal and will accomplish what you want it to.

The post on Tuesday 12/23/14 was about what to expect when you’re expecting: fair treatment under the law.  To avoid having to settle a lawsuit by the EEOC as did Triple T Foods (on allegations it fired an employee the day she announced her pregnancy), pay attention to the Pregnancy Discrimination Act in hiring, promotion, discipline, and firing. In Pennsylvania, there are both federal and state laws to comply with. The post gives you a taste of both.

TAKEAWAY:  Pregnancy is a big deal: for the employee whose life will be changed forever and for the employer who will be affected, if only for a short time. Treat the pregnant employee fairly and legally to stay out of hot water.

The post on Wednesday 12/24/14 told us that the old (law) is new again: plaintiffs are increasing using an old PA law to challenge background check decisions. Which law? The Criminal History Record Information Act.  If an applicant is rejected based on criminal records, the employer must make sure the rejection complies with this law. What does the law say? That employers can consider felony and misdemeanor criminal conviction in hiring if they “relate to the applicant’s suitability for employment in the position for which he has applied”. The employer also must provide to the applicant, in writing, notice if the rejection is based on criminal history (whether in who9le or in part). The law is broad, applying to ANY criminal record information, not necessarily just that which is received from third-party screening agents. The post also talks about remedies available to an applicant, including attorney’s fees and costs. Finally, the post includes reference to 2 recent PA cases. In one case, the court held that a decision not to hire based on an omission from or falsification on an employment application is not “because of” criminal history and therefore CHRIA does not apply. In the other case, the court allowed a case to go forward where it said the applicant sufficiently alleged the decision not to hire was made on the mere fact of the arrest (and not due to a finding of being not credible in discussing an arrest as the employer claimed).

TAKEAWAY: Employers should be careful not to violate any law when using criminal history information in hiring (and other employment-related) decisions.

The posts on Thursday 12/25/14, here and here, wished everyone a happy, healthy and Merry Christmas.

TAKEAWAY: Yes, we truly hope you had a wonderful and wondrous holiday!

The post on Friday 12/26/14 was a reminder about military leave and the FMLA. Yep, the FMLA was amended in 2008 to provide special benefits for military personnel/families. It now has Qualifying Exigency Leave and Military Caregiver Leave provisions. The threshold for applicability is the same under both leave types (the employer must have at least 50 employees and the employee must have worked there at least one year (not consecutively), worked at least 1250 hours in the preceding year AND work at a location with at least 50 employees within a 75-mile radius. Details on Qualifying Exigency Leave are both in the post and the statute itself.

TAKEAWAY:  Employers must remember the FMLA is broad and contains provisions for dealing with military employees or their families.

Finally, in the post yesterday 12/27/14 we talked about a well-known restaurant chain’s settlement of a race discrimination suit. The underlying suit accused McCormick & Schmick’s of race discrimination by refusing to hire African-Americans for front-of-house positions at its Baltimore locations and that those working in front-of-house positions were denied equal work assignments due to race. Further, the suit alleged that advertising for positons showed visual preferences for non-African-American workers. McCormick & Schmick’s settled for $1.3M along with injunctive relief.

TAKEAWAY:  Race rarely (if ever) is job-related, so don’t use it as a factor on which to base employment decisions.

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