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ICYMI: Our Social Media Posts This Week -- May 25 – 31, 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.

First up, the post on Sunday 5/25/14 talked about a shifting discrimination defense.  You are probably scratching your head and saying ‘What?”  Keep reading (and go to the post). A female employee complained that she was being paid less than male employees; the company denied that she had ever made the complaint. Soon after, she was reprimanded for taking a day off; the company said she had been told not to, which she denied. So what happened to doom the employer? It couldn’t get its story straight. In the administrative charge phase, it claimed the discharge was due to a changing business focus. Legally acceptable, right? Except that her supervisor testified as to another reasons for the discharge and, in other places, the company tried to assert it was based on poor performance.

TAKEAWAY: If you are going to make an assertion, shore up your support for it beforehand. Otherwise, the court will see right through it.

On Monday 5/26/14, we excitedly posted about the NLRB finally finding something allowable in a Handbook. Was it a full moon? I don’t know, but let’s look at the facts.  Here the NLRB was dealing with an at-will employment provision (the actual clause can be found in the post). There, the provision did not unlawfully restrict protected activity, nor did the employer promulgate the provision in response to union activity or apply it in a discriminatory manner. Also, the provision did not prohibit changes to employment status.

TAKEAWAY: Remember that the NLRA applies to ALL workplaces and, as such, every statement in a Handbook must be looked at to ensure that it does not impact rights provided for under the Act.

Next, on Tuesday 5/27/14 we talked about the mayor who fired a lesbian police chief being caught in a homophobic tirade.  The chief had been on the job over 20 years and shortly after receiving seven (count ‘em, 7!) reprimands about job performance, was fired by the mayor (who, coincidentally, had recently taken office).  Many in the town, including a council member, disagree with the firing. That council member caught the mayor saying things nobody should even think. Go to the post for the entire tirade.

TAKEAWAY: If you are going to fire an employee, make sure there is good reason (or at least nothing that smacks of discrimination).

On Wednesday 5/28/14 we talked about equal rights for men. Ordinarily it is females who are the ones alleging that they have been discriminated against, but the various laws apply equally to men and women. In the case at point, the men argued that they had been paid less than women.   

TAKEAWAY: Laws against discrimination and harassment apply equally to both genders; ensure that your business enforces those laws equally too.

On Thursday 5/29/14 the post was about the NLRA and you (and how you can keep out of its ever-broadening crosshairs). As I’ve said time after time, while the NLRA applies to labor environments (translated: those with unions), it also applies in non-union workplaces to areas that are covered by the Act, such as wages and work conditions. So what can you do to (hopefully) steer clear of the Act? One thing is not to prohibit employees from discussing their wages. Go to the post for others. 

TAKEAWAY:  Non-union employers should have policies in place to let employees know what is expected of them, but those policies must pass muster with many laws, including the National Labor Relations Act. Run yours by an employment attorney to ensure compliance.

The post on Friday 5/30/14 was about the validity of certain non-solicitation clauses. What makes this interesting? The fact that it involves 64,000 plaintiffs who have lodged claims against Apple, Google, Intel Corp and Adobe Systems, seeking $3B. Billion with a b. They allege antitrust violations for an understanding among the defendants (mainly in emails!) not to poach each other's employees, thus restricting the plaintiffs’ prospects of wage growth. Two other defendants, the Pixar and Lucasfilm units of Walt Disney and Intuit, agreed to $9M and $11M settlements respectively and were let out of the case.

TAKEAWAY: Employers should be careful about what type of actions they prohibit and, when there is a prohibition, what they say about it.

Finally, the post yesterday 5/31/14 we talked about the multitude of sins in religious discrimination cases (which are on the rise, especially those involving Muslim employees). What could be impacted? Dress and grooming standards, work schedules, holiday parties and more. The post explores the breadth of the EEOC’s enforcement efforts and talks about some of its recent settlements. One involved a company that required employees to spend at least half their workday attending courses that involved Scientology practices, such as screaming at ashtrays and staring at someone for eight hours without moving, and fired the employees if they refused to participate.

TAKEAWAY: As in other areas, religion should not come into the workplace unless it is job-related. If it is brought in, the employer may be called to task in a very expensive way.

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