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ICYMI: Our Social Media Posts This Week -- Aug. 3 - 9, 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 8/3/14 talked about proper classification of employees and contractors (and how costly errors can be). In the case profiled, the owners of residential treatment centers for elderly, disabled and mentally ill persons hired independent contractors to care for the residents. DOL investigated and determined that the contractors had been misclassified and were really employees (and that the owners were employers) under the FLSA. DOL ended up with a judgment against the facilities and the owners to the tune of $260,000 for wage and hour violations. And this involved only 10 persons.

TAKEAWAY:  Proper classification of workers remains important; if not done properly, DOL will ding you hard.

On Monday 8/4/14 we posted 10 tips for creating an effective social media policy. For the tips, go to the post. NOTE: we added tip #11: have an employment lawyer review your policy for legal compliance.

TAKEAWAY: Social media is ingrained in both home sand the workplace; employers should have a policy about permitted uses by employees (and that policy should be legally compliant).

The post on Tuesday 8/5/14 was about gender and reverse discrimination in the workplace. Yes, Virginia, it still happens. IN this case out of OH, a male and female employee were taking a smoke break off premises. After, the female employee reported that the male employee had touched her inappropriately; he disputed it and said the incident was consensual (and that she had even initiated it). He further said she reported it only after he refused a further relationship. So what did the employer do? It discharged him and took no action against her. He brought suit alleging reverse gender discrimination. The court denied summary judgment to the employer (such that the case would proceed to trial if it doesn’t settle).

TAKEAWAY:  Make sure that any reports or complaints are investigated and that all parties are treated equally.

On Wednesday 8/6/14 the post confirmed that while work can be limited to 40 hours, confidentiality is 24/7, such that a court found possible ADA liability for an employee’s Facebook comments re another employee’s medical condition. Yes, an employer could be liable for what an employee says on social media. Why? Because it related to a private medical condition and the employee violated the employer’s confidentiality obligation to the other employee. Here, employee George Shoun was injured at work and took a few weeks off work to recover. Jane Stewart, another employee, processed his worker’s comp claim and monitored his medical treatment for the employer so she learned the nature and extent of George’s injury. All good so far. But then she posted on her personal Facebook page: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” The post stayed up for 76 days and, according to Shoun, was viewable by surrounding business communities; he sued the employer under the ADA. Based on the facts, the court denied the employer’s motion to dismiss and the case is moving forward.

TAKEAWAY: Employers must have in place a legally-compliant social media policy and ensure that employees are trained on how to use (and not use) social media also, employees with access to medical and other confidential information should be properly trained as to their obligations of confidentiality.

On the post Thursday 8/7/14 we talked about whether Cabela’s discriminated against a transgender employee. This case was close to home, involving the store in Hamburg, PA.  The EEOC issued a determination that Cabela’s most likely discriminated against the transgender employee; the PHRC had issued a similar ruling in 2010. Some background facts: the employee was hired while in the process of transgendering from male to female. She fought to wear a female uniform and for a nametag properly spelling her name. Even after being given a court order as to her name and gender, Cabela’s refused to allow her to use the female restroom until she provided medical documentation as to “anatomically appropriate gender”; until then, she had to use a unisex restroom on a different floor far away. She intends to file suit based on the EEOC’s finding.

TAKEAWAY: While PA does not (yet) have any law barring discrimination against LGBT workers, there is still federal law – and state law on gender discrimination. However it fits, employers must ensure that all employees are protected, no matter their gender (or gender identity).

Friday 8/8/14 the post was about what IS a hostile work environment. It is a legal term that, according to the EEOC, Involves "unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information" and occurs when "enduring the offensive conduct becomes a condition of continued employment" or the conduct creates an environment "that a reasonable person would consider intimidating, hostile, or abusive." Examples include slurs, epithets, or name calling and physical assaults or threats. The post included more examples too. The post also points out that the conduct can be by supervisors, coworkers, agents of the employer, and even non-employees and that it doesn't have to be offensive to the person it's directed toward, but can be offensive to employees who observe it.

TAKEAWAY:  Employee complaints should not be dismissed out of hand, but investigated. If substantiated, action should be taken in an attempt to remedy the problem. Don’t let the mole hill become a legal mountain that may cost you in more ways than one.

Finally, the post yesterday 8/9/14 was about what is keeping you from filing for bankruptcy protection. It included some of the usual reasons people don’t file: denial about their current financial situation; depression about their current financial situation leading to an inability to act; and a determination to make it work. These can be talked through with a bankruptcy attorney so you get the relief you need.

TAKEAWAY: Bankruptcy may or may not be the right path for you, but at least talk to a bankruptcy lawyer about your current situation. Don’t stick your head in the sand and do nothing.

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