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ICYMI: Our Social Media Posts This Week -- July 27 – Aug. 2, 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 post on Sunday 7/27/14 was about whether older employees are welcome in the Mouse House (aka Disney). The 22-year employee and head of the story department filed suit against Disney, alleging age discrimination. His complaint says that he was replaced with his former assistant, a younger female. Also, he says that soon after he was fired, another older employee was also discharged.

TAKEAWAY:  Disney may be there to make kids feel good, but lawsuits certainly don’t make employers feel good. To avoid suits (or have a good defense if one is filed), ensure that there is a legitimate non-discriminatory reason when an employee is discharged.

On Monday 7/28/14 the post was about the NLRB’s continual targeting of employee handbooks. Employees must remember that Section 7 of the NLRA gives both union and non-union employees the right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .” Also, under Section 8 of the Act, it is an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” These apply even to non-union employers such that Handbook policies must be crafted with the Act in mind. Employers keep getting tagged for violations. The post talked about a few examples, including language prohibiting “discourteous or inappropriate attitude or behavior” as being over-broad and possibly construed as to preclude discussion of employment in violation of Section 7.  Other examples are in the post.

TAKEAWAY: ALL employers must ensure that their Handbook policies comply with the NLRA or they might get embroiled in a legal dispute that could prove costly in many ways.

The post on Tuesday 7/29/14 talked about 3 things to know when retaining a lawyer for your business. The post talked about the different types of retainers and why and when you might want the various types of relationship indicated by the different retainers.

TAKEAWAY:  Understand for what and how you are engaging an attorney, along with how any retainer will be applied.

On Wednesday 7/30/14 we posted about what you can do about bad employees. The first thing is to know the law. PA is a strong at-will state, so you should know what that means and what rights or obligations are given to or required of both employers and employees. Make sure everything is documented, then decide what, if any, action to take relative to bad employees.

TAKEAWAY:  Employers need not be stuck with bad employees in perpetuity – they just need to know how to legally discharge those persons. Consulting an employment attorney is always a good idea.

On Thursday 7/31/14 the post served as a reminder that anything can turn into a labor violation (and how Starbucks found out the hard way). This was another case involving a decision of the NLRB in a non-Union workplace (Starbucks). What happened? An employee who was a known union supporter was in a profanity-laced argument with a manager in front of customers (on premises but off-shift). The manager also used profanity, but was not disciplined. In the long and winding saga of the case, in 2010 the NLRB decided the discharge was based on the employee being a known union supporter (and therefore illegal). Starbucks appealed the decision and the appeals court (in 2012) sent the case back to the Board to decide if it made a difference since the conduct had taken place in front of customers (therefore being so outrageous as to remove any protections under the NLRA). On 6/16/14, the Board again said the discharge violated the Act since other employees had been treated more leniently for similar conduct and the manager had not been disciplined at all, such that it seemed likely to have been based (at least in part) on the employee’s union support.

TAKEAWAY: Depending on the whole of the circumstances, what seems like a simple discharge for mass profanity can turn into a big deal – and a finding of a labor law violation. Employers must be careful!

Friday 8/1/14 the post was about keeping your hands (and sexual thoughts) to yourself. Yep, even in today’s workplaces, many individuals never learned a basic lesson from kindergarten: keep your hands to yourself. And then there are those who feel the need to tell others at work what they would like to be doing with their hands (or other body parts). One case involved detailed and overwhelming evidence of disturbing sexual harassment, culminating in a violent sexual assault by a coworker, along with evidence that the manager laughed along with the harassers – needless to say, the court entered judgment in favor of the employees against the employer and the manager individually. In another case, a dental assistant felt compelled to quit after the dentist’s sexual advances culminated in him forcibly grabbing and fondling her breasts. Go to the post for more, including situations where it is not just sexual touching or might even just be words or images.

TAKEAWAY:  Employers must ensure that no sexual harassment occurs in the workplace and, if discovered or even alleged, must investigate and take appropriate action.

Finally, yesterday 8/2/14 the post was about a case where revocation of a job offer after knowledge of age resulted in a lawsuit (settlement). Here the EEOC brought suit against the Bobby Dodd Institute. Why? Two women over age 70 applied for a shared mail clerk position and were given job offers. After the CEO found out their ages, the offers were revoked (a mere 1 day before they were scheduled to start). Then, to make matters worse, the company hired 2 younger people for the position. While denying liability, the company settled for $40,000.

TAKEAWAY: Even if a decision is made for legitimate non-discriminatory business reasons, you should be prepared to prove that basis – especially if the circumstances looks funny.

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