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ICYMI: Our Social Media Posts This Week -- Sept. 14 - 20, 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.

In the post on Sunday 9/14/14, we talked about alienage discrimination being alive under Section 1981.  The defendant in this first-of-a-kind suit is Northwestern Mutual. It is accused of illegally rejecting qualified non-US citizen job candidates without permanent resident visas. The plaintiff is a 25-year-old honors college graduate who is authorized to work in the US through DACA and provided documentation of same after being interviewed and upon request by Northwestern Mutual.

TAKEAWAY:  Employers cannot pick and choose which verification documents they will accept. Be careful about this.

The post on Monday 9/15/14 was about what to do when an employee calls you a “f****** crook” while complaining about work and wages. Imagine you call an employee and 2 managers to your office to discuss the employee’s attitude. He complains that he and coworkers are underpaid, don’t get proper breaks, and the bathrooms are too far away. You tell him he can always work elsewhere. He jumps up and tells you that ““you’re a “f****** crook,” a “f****** mother f******,”an “a******” that nobody likes and that if you fire him, you’ll “regret it.” You tell him he’s fired. What happens next? The NLRB tell you to rehire him and pay him back wages. Sounds like a sci-fi movie, right? Nope. Because the employee was discussing terms and conditions of employment (wages, breaks and bathrooms) his tirade was legally protected activity (with insufficient evidence to show his conduct was “objectively menacing, physically aggressive or belligerent”.

TAKEAWAY:  Even non-union employers must know and follow the dictates of the NLRA. Yes it can seem odd at times, like here, but a failure to know and follow the law will land the employer in hot (and expensive) water.

On Tuesday 9/16/14, the post talked about whether PA law allows (former) employees to view their personnel file. The answer is “it depends”. On what the person wants to see. On the person’s employment status (current or former employee) and if the latter, how long ago the employment ended.

TAKEAWAY:  Employers cannot just refuse an employee’s request to view a personnel file. They must look at the circumstances and might want to consult an employment attorney if unsure of their obligation.

On Wednesday 9/17/14 the post confirmed that a report of sexual harassment is protected conduct but doesn’t always result in retaliation. Walt Disney was glad for the result. In this case, a former employee sued, claiming he was fired in September 2011 for reporting that his co-worker was sexually harassing another employee. He also said that he was fired for allegedly lying during the HR investigation and did not disclose pertinent facts. The judge agreed that his report of the sexual harassment was protected conduct, but did not agree that there was retaliation: he said no link between the harassment report and the firing. Score one for the Mouse House!

TAKEAWAY:  While retaliation is often easier to prove than the underlying action, there must still be a tie-in between the two.

Thursday 9/18/14 the post was about the sweet smell of chocolate (at least for a retaliation case settlement). An employee who worked at the company for 3 months filed suit against Edward Marc Chocolatier in January. She alleges that she was told to hire “the all American girl”, especially those who were young, “blonde, blue-eyed and college educated, preferably a Duquesne University student.” She complained and refused to follow the policy and was then fired. The employer alleged in its response that the employee “made a racially insensitive comment … about an African-American applicant’s hair” and, among other things, that she made misrepresentations on her employment application. The case was dismissed by agreement of the parties (with no details given).

TAKEAWAY:  Retaliation against an employee who complains of discrimination can get an employer in hot water even if the underlying discrimination itself is hard to prove.

The post on Friday 9/19/14 reminded us that the “regarded as” prong under the ADA is indeed alive. Here, the EEOC sued a nursing home for firing an employee because of her disability. She had been hired as a cook and dietary aide. She has a physical impairment that limits her use of the left side of her body. Shortly after hire, her supervisor asked what was wrong with her left arm. She said she could perform her job duties. A few weeks later, her supervisor told her she did not believe the employee could perform her duties without the use of both arms; soon after, the employee was fired. The suit was filed after the voluntary conciliation process failed. Now, the EEOC wants back pay, compensatory damages and punitive damages (plus injunctive relief).

TAKEAWAY:  If an employee tells you s/he can do the job, let her/him do it. If there are performance issues, then document them as you would any other employee. Don’t treat the employee as disabled unless and until s/he asks for accommodation.

Finally, the post yesterday 9/20/14 was about a rare case of reverse discrimination. Some quick background facts: the male plaintiff was the only Caucasian employee among a majority of Hispanic co-workers and supervisors. Among other things, he claimed discrimination because of his race and a hostile work environment as a result of signs often being posted inly in Spanish and his coworkers calling him “gringo” and “maricon” (with management even chiming in that he was “not bad for a white boy”. To top it off, he was fired the day after filing a worker’s comp claim. The court found that the employee met his burden of showing that Petco was the unusual employer that discriminated against the majority.

TAKEAWAY:  Employers should not discriminate against ANY employee. Period. It will not go well.

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