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ICYMI: Our Social Media Posts This Week -- May 11 - 17, 2014

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

First up, the post on Sunday 5/11/14 was about one comment normally not being sufficient for a hostile work environment. But, and you may hear this a lot, it depends. On whether the comment was directed at the person alleging the hostile work environment; on whether it was part of many comments or actions against that person; on whether the employer took prompt action to investigate and remediate. On other factors.

TAKEAWAY: Employers can’t just sit back and do nothing about one comment; it may or may not lead to charges or a finding of a hostile work environment (and liability for damages).

On Monday 5/12/14 we posted about the NLRB finding 3 workplace rules (on negative comments, negativity or gossip, and positive representation) overbroad and violated the Act. What were the rules? That employees will “not make negative comments about fellow team members [which included coworkers and managers]” and will “not engage in or listen to negativity or gossip.” Also, the policy that employees will “represent [the employer] in the community in a positive and professional manner in every opportunity” was found to violate the Act.

TAKEAWAY: It is increasingly a minefield for employers to ensure their Handbooks or Policy Manuals are legally compliant. An employment law attorney should be consulted.

Next, on Tuesday 5/13/14 we talked about how French bosses are banned from contacting workers outside of work hours.  How you think this would go over in the US? The idea has pros and cons for both employees and the employers, but would certainly alter the work environment as we know it.

TAKEAWAY: If you expect your employees to work outside of normal work hours by using their smart phone or similar device, then also expect to pay them for the work. If you don’t want to pay them, don’t let them do the work.

On Wednesday 5/14/14 the post confirmed that a warning for a medically-related absence + discharge (can) = illegal pretext. This case was out of PA. The employee worked as a table games supervisor at a casino. The employee was given a warning concerning her medically-related absences. Subsequently she was granted FMLA (intermittent) leave. Another time she followed the casino’s policies to deal with a situation that had arisen. After being discharged for allegedly violating the policy, she asserted that reason was really pretext for her taking time off under the approved FMLA leave.  

TAKEAWAY: An employer should have a valid, legal reason to discharge an employee – if not, why fire the person? If you are not sure the reason will hold up, talk to an employment lawyer first.

On Thursday 5/15/14 we posted about whether your employees make too much to qualify for overtime pay under the FLSA. Most people are at least somewhat familiar with the most common test for exemption from overtime pay under the FLSA, but few remember the pay test. Go to the post for a reminder.

TAKEAWAY: There is more than one way to skin the FLSA overtime cat – know what exemptions are available and make sure your payroll or HR personnel do too.

The post on Friday 5/16/14 was about after-the-fact leave approval being required to avoid FMLA liability. What? Sometimes an employee cannot return from a quick leave or other absence as anticipated; the reason for extension might qualify for FMLA leave. But if the employee doesn’t know about the needed extension until it occurs, s/he cannot ask for the extension in advance.

TAKEAWAY: Employers must be flexible with FMLA leave requests or extensions to avoid possible suits and liability for damages if it turns out that the leave/extension should have been granted and was not.

Finally, yesterday 5/17/14 the post was about the fact that a single incident involving touching can be enough to create a hostile work environment. In the subject case, the fact that the employee had been a victim of domestic violence and the supervisor knew about it before trying to kiss her all played into the ruling – that the single act was sufficient in these circumstances to form a hostile work environment.

TAKEAWAY: As the author said, warn managers and supervisors to keep their hands – and lips – off their subordinates or risk liability for your company.

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