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ICYMI: Our Social Media Posts This Week -- Dec. 7 - 13, 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 12/7/14 about documented progressive discipline defeats an FMLA claim. Just confirms that it is about documenting, documenting, documenting. Here, the employer showed that the employee would have been fired whether or not he took a protected leave. How? The employer has a progressive discipline system; it was followed with this employee. However, when he was disciplined, his protected FMLA leave was mistakenly considered. When he received his last discipline for poor performance, he was discharged. He sued, alleging an FMLA violation (interference and retaliation) and state-law claims. The court found that even if the discipline couldn’t have been given for absence due to the FMLA leave, it could have been given for failing to follow the call-in procedure, so there was no retaliation claim. Using the same facts, the court also dismissed the interference claim. 

TAKEAWAY: If you have a policy, use it, evenly and uniformly. If you vary from it, don’t try to support any adverse action with the policy.

In the post on Monday 12/8/14 we talked about Popeyes chickening out on an HIV-positive applicant. The franchise settled an EEOC disability discrimination suit for $25,000. The suit alleged that the applicant, who had several years’ restaurant experience, was not hired due to his HIV status. It came to light because he answered “medical” for the reason he left his last job and the hiring manager grilled him on the medical condition during an interview. The manager then told the applicant that he couldn’t work in the restaurant business due to his HIV status. The applicant then filed an EEOC complaint alleging violation of the ADA by the pre-offer medical inquiry and refusal to hire due to HIV status.

TAKEAWAY: Do not assume that someone cannot perform a job – that assumption could be illegal and end up costing you a lot of time and money.

On Tuesday 12/9/14 the post was about how FMLA confidentiality provisions supersede OSHA record-keeping requirements. And it took OSHA itself to say this! What led up to this? A UPS employee submitted an FMLA leave application including a doctor’s statement. The employer, the US Postal Service, did not list the illness on its OSHA log as work-related. The employee filed a complaint with OSHA. After investigating, OSHA issued a citation to the USPS. The USPS then argued (among other things) that an FMLA regulation required it to keep the information confidential. An ALJ upheld the citation and the USPS appealed.  The Commission agreed with the employer and reversed the ALJ. 

TAKEAWAY:  Don’t blindly follow one law without taking into consideration others that might supersede that one.

The post on Wednesday 12/10/14 was about medical questions and the ADA: when and what can employers ask? We saw in Monday’s post that an employer cannot ask medical question pre-offer so we know that timing is important. If dealing with an applicant who has an obvious disability that may affect the ability to perform essential job functions, the employer can (and should) ask about that. Once a conditional offer has been made, but prior to work starting, the employer can ask disability-related questions and require a medical exam related to the essential job functions if the employee does this for all applicants, not just those who may have disabilities or medical conditions. And the questions and exams cannot violate GINA. If the employer is dealing with an employee, there is even less wiggle room; all inquiries and exams must be job-related and consistent with business necessity. Further, the employer can request information and documents to support an accommodation request.

TAKEAWAY:  Know the law – when an employer can and cannot ask medical and disability-related questions and require a medical exam of both applicants and employees.

On Thursday 12/11/14 the post was about the Top 3 mistakes people make before a bankruptcy filing. So what things should not be done prior to a bankruptcy filing? (1) Paying off loans to family members. The bankruptcy trustee will recover this repayment anyway, even if it takes a lawsuit.  (2) Transferring assets out of your name. If you don’t receive consideration (money or something else) in approximately the same value as the asset, then the bankruptcy trustee will sue the person to whom you transferred the asset. The third tip is in the post.

TAKEAWAY:  If you are considering filing for bankruptcy protection, even far in the future, you should consult an experienced bankruptcy attorney so you know what you can and cannot do between now and the filing – this can save you a lot of grief later.

The post on Friday 12/12/14 told us that the Computer Fraud & Abuse Act (CFAA) was no help to an employer suing an employee who took proprietary information; it also talked about how to limit employee access. The employee emailed himself various files with the employer’s confidential, proprietary or trade-secret information and had a co-worker send him more proprietary information he could not access. The employer claimed that there was a violation of the CFAA. The court determined that once an employee is granted access to an employer’s computer system, there is no CFFA violation regardless of how the employee subsequently uses the information. This is a very narrow interpretation of the CFAA’s language and should serve as a warning to employers.

TAKEAWAY:  Employers must be careful about who can access what information in the computer system and how – and with whom – it can be shared.  This may take a continual monitoring process by the employer in addition to one or more documents signed by the employee prior to being given such access.

Finally, in the post yesterday 12/13/14 we learned about a jury award of $499K in a sexual harassment & retaliation case - sometimes a jury has to tell an owner to stop when HR won’t. The employer is EmCare, a physician services provider. The EEOC brought the suit on behalf of the female former Executive Assistant (who was awarded $250K in punitive damages for sexual harassment by her supervisor, the division CEO), a female credentialer ($82K award) and a male recruiter ($167K award). The last 2 awards were for retaliatory discharge (being fired for reporting and opposing a sexually hostile work environment). The trial included testimony about constant lewd sexual comments by the division CEO and other management employees as well as HR’s failure to respond to complaints about the misconduct.

TAKEAWAY:  Once again we warn employers to take seriously any complaint of harassment or discrimination in the workplace – not doing so could be very costly.

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