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Our Social Media Posts This Week -- Apr. 13 - 19, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the prior week.  You can check out the full posts by clicking on the links.

First up, the post on Sunday 4/13/14 was a quick note about another ruling by the NLRB that could affect you, this time finding that a company’s warnings to employees using company email to communicate with co-workers about new background check requirements, but allowing such email to be used for non-work-related activities, were a violation of the NLRA.

TAKEAWAY: Again and again the NLRB is reminding us that THE NLRB MATTERS, whether or not the business is unionized, and it will take action if there is a violation. Make sure your policies and actions comply.

On Monday 4/14/14, the post was about the ADA and web accessibility. Who was involved: the US Dept. of Justice and H&R Block. What was it about? A settlement of a suit alleging that H&R Block needs to make its websites and mobile apps accessible (to blind people) under the ADA. The suit was brought under Title III of the Act (which deals with public accommodations), an area where court decisions have split on applicability to the on-line presence of places of public accommodation.

TAKEAWAY: Businesses should be concerned with Title I of the ADA (accommodating employees), but also making sure any on-line presence is accessible under Title III if the business is a public accommodation.

Next, on Tuesday 4/15/14 we followed Sunday 4/13/14’s post about the recent NLRB ruling that affects everyone and noted that the Board also said that the company’s rule requiring employees to avoid actions “that could reasonably be expected to … discredit the [employer] “ and disciplining employees pursuant to that rule was ok.

TAKEAWAY: yes Virginia, you need to be aware of the NLRA and how it might apply to your company’s policies and rules - even if you are not unionized.

On Wednesday 4/16/14, we talked about a recent federal court ruling that a temporary impairment can be a disability under the ADAAA. The quick background is that the employee worked for a government contractor; his job required travel to the client’s location. The employer’s policy permitted employees to work remotely if the client approved. After injury, he asked the employer about STD and working remotely during recovery. The employer agreed to discuss accommodations to allow for a return to work but suggested STD. The employee followed up with emails to his employer and the client on how he might return to work, including working remotely. The employer never replied, nor did it engage in the interactive accommodation process. Rather, it discharged him. He then filed suit under the ADA alleging wrongful discharge (due to disability) and failure to accommodate. The trial court dismissed both claims and he appealed only dismissal of the wrongful discharge claim. The appeals court looked to Regulations and ADAAA cases to see if the employee was disabled -  even with a temporary impairment – and found that he could be.

TAKEAWAY: the ADAAA broadened the definition of disability; employers must be aware of what is or is not covered. The safest course is for an employer to assume the employee will be found disabled udner the Act and to engage in the interactive accommodation process.

On Thursday 4/17/14, the post was about when it is ok to deviate from a progressive discipline policy. The short answer is “it depends”. On the policy language. On the reason for deviation. On the records and treatment of the subject employee and others against whom the same policy was or was not enforced. 

TAKEAWAY:  If an employer has a policy, it should enforce the policy; any deviation should be carefully thought out and, if possible, discussed with an employment attorney to ensure awareness of possible legal ramifications.

The post on Friday 4/18/14 was about whether beauty is only gender deep. Ah yes, another company settles with the EEOC. Here the company sold makeup, beauty products, jewelry and other personal care items to retailers. The EEOC alleged that the company refused to hire males in managerial positions (and in retaliation for a complaint, set up for failure the “token” male so positioned). The company has to pay over $350,000 plus agreed to other tracking and reporting requirements.

TAKEAWAY: gender discrimination is not only the province of females; males are protected too. Employers must be conscious of ANY discrimination due to gender.

Finally, yesterday 4/19/14, we posted about whether a non-Union employer having no evidence could still result in a violation of the NLRA. Hint: the answer is YES. At issue was a non-Union company’s confidentiality policy (which prohibited general discussion of “financial information” and “personnel information”.  Huh? The NLRB said that employees could reasonably construe the policy as saying they would be terminated if they talked about wages with anyone outside of the company. The company argued that there was no evidence that it had enforced the rule in that way or that employees even interpreted the rule that way. The court said none of that mattered because the policy was too broad.

 TAKEAWAY: Even for a non-Union employer, policies must be specific enough so as to avoid possible violation of the NLRA but still tell employees what their rights and obligations are.


     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.

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