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ICYMI: Our Social Media Posts This Week -- Sept. 21 - 27, 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 9/21/14, we talked about a criminal background discrimination dragnet catching a government employer. Yep, a federal court certified a class action by approximately 250,000 African-American job applicants for race discrimination against the US Census Bureau. The allegations include unlawful exclusion based on arrest records that never resulted in convictions and rejections for minor crimes or convictions so old they should not have been considered, all of which disparately impacted minority applicants. The case will now move forward.

TAKEAWAY:  Do not use arrest records, period. Moreover, make decisions on a case-by-case basis, taking into account the position at issue and its requirements/duties.

The post on Monday 9/22/14 was a reminder: think about the ADA after FMLA leave ends. Dialysis Clinic, Inc. did not and was sued by the EEOC. What did it do? It fired (and refused to re-hire) a 14-year nurse who needed additional medical leave to finish her cancer treatment. She had been on approved leave for 4 months and was cleared by her doctor to return without restriction in less than 2 months. DCI fired her for exceeding the limits of its leave policy. She then reapplied and was rejected, shortly after which DCI hired a newly-licensed nurse.

TAKEAWAY:  Even when an employee has completed their FMLA-approved (or other medical) leave, they may still be entitled to additional leave under the ADA. Take that into consideration before taking adverse action.

On Tuesday 9/23/14, the post was about 5 things scuba diving can teach you about life. Really? Yes! What are they? 1. Be present. 2. Breathe. 3. Look beneath the surface. The other 2 things are in the post.

TAKEAWAY:  Scuba diving is fun and relaxing, but also provides lessons for life (as listed in the post).

The post on Wednesday 9/24/14 talked about the NLRB finding improper discipline of an employee who obscenely grabbed his crotch in front of a female co-worker. The Union challenged the suspension of 2 employees and discharge of 2 others for mid-strike conduct. The NLRB determined the actions against all 4 violated the Act. The CBA had expired 11/15/12 and a few weeks after the union voted to strike. During the strike, unit employees picketed. The Union offered to return to work uncon-ditionally on 12/11/12; most strikers returned 2 days later. The employer suspended 4 employees and thereafter discharged 2 on 12/17/12. As relevant here, Williamson, a suspended employee, hit a non-unit employee’s car mirror as she left the premises; when she looked at Williamson, he (allegedly) grabbed his crotch and (admittedly) yelled “scab” at her. The NLRB said that while the gesture was “totally uncalled for, and very unpleasant”, it was not a form of actionable sexual harassment under Title VII, did not carry an implied threat of violence or future mistreatment toward a non-unit employee, and likely did not discourage that employee from reporting to work during the strike[1].

TAKEAWAY:  What might seem like a solid basis for discharge may not be – check with employment and labor counsel for an opinion before you take action.

On Thursday 9/25/14, the post was about why you shouldn’t represent yourself in a debt collection lawsuit (as plaintiff or defendant). The post talked about 3 reasons. (1) The court will assume you know the court rules. Among other things, not following a rule can lead to the suit being dismissed (not good for a plaintiff) or judgment being entered (not good for a defendant). (2) The time commit-ment can be extensive. You have to learn and follow the rules, review and understand documents (and what they do or do not mean), travel to court to file documents, prepare for trial, and attend hearings and trial. There might also be discovery which is another matter unto itself. (3) Litigation is stressful. Again, you have to learn, know and follow the rules, including deadlines. You have to file the appropriate documents with relevant, substantive content. And you have to do all this while the rest of your life and the people in it go on …

TAKEAWAY:  There is a reason people went to law school and practice law – they are trained to and have the experience to help others with legal matters including debt collection.

The post on Friday 9/26/14 contained a good analysis of anticipatory discharge: what it is and what to do about it. I won’t spoil the fun – go to the post.

TAKEAWAY:  Both employees and employers should be aware of this legal creature and its possible ramifications in the workplace to know what (not) to do.

Finally, the post yesterday 9/27/14 warned about failure to train claim or litigation. Yes, something else for employers to worry about. A federal court recently said that the failure to train an employee can be a type of discrimination that enables the person to bring suit. Here, Charles Reed, an African-American, began working at Proctor & gamble in 1996. He had 2 promotions in the next 7 years but never qualified for a third. He talked to HR about his job and his beliefs that his supervisor was not helping him to achieve a promotion and Caucasian employees were solicited while he had to ask. When his position was eliminated, he thought it was in retaliation for his earlier complaint and his support of a co-worker’s discrimination complaint. Oh yeah, there was also the noose incident: his team leader took a phone cord and walked out of Reed’s vision; a co-worker said something like “Are you fixing to hang somebody?”, after which the team leader threw something in the trash. Reed thought this meant the team leader had made a noose form the cord. Reed sued based on the elimination of his position, failure to promote, and failure to train (along with hostile work environment for the noose incident). While the case was dismissed on appeal for procedural reasons, the court said that “failure to equally train” is actionable.

TAKEAWAY:  If you think one employee might be deserving of a promotion, don’t just single out that person; give all employees who might be eligible for the promotion the same opportunities and training.


[1] The latter two relate to the ability of an employer NOT to reinstate a former economic striker to his/her former or a  substantially equivalent position unless the employer in good faith believes the person engaged in strike misconduct that “may reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights…”

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