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Monday
Jun022014

ICYMI: Our Social Media Posts This Week -- June 1 – 7, 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 6/1/14 talked about the possibility of an employee’s comment resulting in big financial liability for Subway. What’s it about? The employee wrote “Big Mama” on an order, the customer saw it and broke down crying and questioned her appearance. IN a case of vicarious liability (which is alleged here), the act must have taken place within the scope of employment. Here, the employee admits to writing it while wrapping the customer’s order, so that prong is satisfied. Apparently the customer was offered a $5,000 settlement if she signed a confidentiality agreement; she refused. .

TAKEAWAY: Employers are usually responsible for any product or service that goes out under the company name, so they should ensure that processes and procedures are in place to prevent something like this from happening.

On Monday 6/2/14 the post was about age discrimination and a $300K lawsuit settlement. The suit was brought by the EEOC in federal court for back wages on allegations the employer harassed three employees and fired them because of their age. One example of the basis for the allegations: a supervisor of one of the complainants (who was 45 at the time) told her, "You need more make-up because of your wrinkles." Ouch.

TAKEAWAY: Remember the rules: (1) Don’t discriminate on any illegal basis. (2) If you do, don’t allow your employees to add wood to the fire that will be used to cook the company.

Next, on Tuesday 6/3/14 we talked about the fact that liability for sexual harassment can be avoided – and gave some tips how. Tops on the list: prompt & remedial action. Read the post for more.

TAKEAWAY: As the post says, employers should be prepared, prompt, careful.

On Wednesday 6/4/14 we talked about a recent decision (in favor of the EEOC no less): physical presence is not necessarily an essential job function. The issues in this ADA case were whether the physical-presence requirement was an essential job function or telecommuting would create an undue hardship. What doomed the employer’s argument that physical presence was an essential job function? The EEOC’s showing that telecommuting options were available to others in the same position and that at the office the vast majority of communications were conference calls.

TAKEAWAY: as in so many other situations, if you as an employer are going to take a legal stance make sure you have the facts to back it up.

On Thursday 6/5/14 the post was about a discharging an employee who can't return to work after FMLA leave.  So can an employer do this? Maybe. But not immediately. First the employer must satisfy its obligation of undergoing the ADA interactive accommodation process.

TAKEAWAY:  When dealing with either the FMLA or ADA, don’t forget about the other as they too often overlap.

The post on Friday 6/6/14 talked about whether federal law applies regardless of probationary status. In this case, the EEOC filed suit on behalf of a Marine veteran on allegations that the employer (whose headquarters are in PA) violated federal law when it refused to give unpaid leave to the veteran with PTSD and fired him as a result of his disability. The company has a policy of providing up to 26 weeks of paid leave to non-probationary employees, but here refused his doctor’s note for 6 weeks’ unpaid medical leave due to his probationary status. The case is still pending.

TAKEAWAY:  Applicable statutes do not mention a specific employment status when proscribing conduct; they just talk about protections given to employees (or, in some cases, applicants). Employers should know the laws and not build into them something that is not there.

Finally, the post yesterday 6/7/14 was about the FMLA, veterans, and an employer’s obligations. As explained in the post, family members of covered veterans with serious injuries or illnesses may take up to 26 weeks’ unpaid leave in any twelve month period to care for the veteran. A veteran is covered if s/he was a member of the armed forces, including National Guard or Reserves, and whose discharge or release was not dishonorable. If an employee wishes to take FMLA leave to care for a family member who is in the military or for a veteran, the injured person must have been discharged within the five-year period before the employee first takes leave to care for him or her. For example, if a veteran was discharged eight years ago and get sick tomorrow, s/he is not a covered veteran. There are also exceptions for veterans discharged prior to March 8, 2013, so read the post.

TAKEAWAY: As in so many areas, veterans deserve – and are entitled to – special treatment. The FMLA extends that treatment not only to the veteran, but to those caring for the veteran. Employers must be aware of this portion of the law as the number of veterans in the workforce continues to increase.

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