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ICYMI: Our Social Media Posts This Week -- Jan. 18 - 24, 2015

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 1/18/15 was about minimum wage requirements 101 – tips, applicable law, and more. As if it’s not enough to properly classify someone, you need to know if there are any limitations on their pay too. Keep in mind the FLSA, the PA Minimum Wage Act, and what can or cannot be deducted and if there are any exceptions or exemptions.

TAKEAWAY: As with many areas, a mistake in paying employees can be costly – check with your employment law attorney if you have questions.

In the post on Monday 1/19/15 we talked about the dollar value of employment law cases. Why should you care? Because despite your best efforts and having done nothing illegal, you may someday find yourself (or your company) as the subject of a lawsuit. Knowing how much it might be worth will go a long way toward settlement negotiations. So what types of things are taken into consideration when determining the potential value of the suit? Lost pay (if applicable), lost benefits (including insurance and retirement), lost bonuses, and other items listed in the post.

TAKEAWAY: You cannot prevent people from bringing suit against you(r company), so knowing how to calculate the potential value of the suit will help you begin settlement negotiations and, hopefully, arrive at a successful resolution.

The post on Tuesday 1/20/15 was about a Walmart pharmacist fired for a drug policy violation who will get a jury trial. Why do you care? Because the case lends insight into how courts may look at an employer’s defense to an employee’s accommodation request. Here, the employee slipped and fell at work; Walmart allowed her to take longer and more frequent breaks and to sit down some at work. After her doctor released her without restriction, she still took pain meds. About 6 months after that, she submitted requests (including from doctors) requesting a worksite evaluation inside the pharmacy by someone with HIPAA training. Walmart would only allow an evaluator outside the pharmacy window, saying there were privacy concerns. After another employee reported this employee’s work condition, Walmart fired her for violation of its drug policy. She brought suit, including alleging a failure to accommodate. The court found that while she did not complete the company’s required form, she submitted 2 doctor’s notes and spoke with her supervisor about the need to accommodation via worksite evaluation. Further, since Walmart had allowed third parties behind the pharmacy window in the past in certain circumstances and this person would be HIPAA trained, privacy concerns might be misplaced. Whether or not having the evaluator outside the pharmacy window as a reasonable alternative was found to be a jury question. The court also found there to be questions as to whether each party carried its burden and thus the case was ripe for jury consideration.

TAKEAWAY: As we’ve said before, if you have a policy, use it and enforce it evenly. If you don’t have a policy, don’t make up one for trial; the court (and jurors) will see right through it and you.

In the post on Wednesday 1/21/15 we posted about the latest zing against Zillow, this time for age discrimination. Jennifer, a 41-year-old sales employee, had a manager who asked her if she was “too old to close” and to “try to keep up with us.” The suit also includes allegations of wrongful termination (after an injury and requests for relief or accommodation from orders that she stand and make sales calls for several hours, and after contacting HR with no actionable result, she was discharged). Zillow, on the other hand, says that it did not receive the required documents for accommodation and thus deemed Jennifer to have quit. More facts are in the complaint embedded in the post.

TAKEAWAY: It is difficult enough for employers to deal with an employee in one protected class, much less more than one; employers must ensure that any (in)action by them is based on legally-permissible bases and supported by valid evidence, documents or statements.

The post on Thursday 1/22/15 takes us underwater diving with Google Underwater Street View – just like being there. Just look.

TAKEAWAY: Once you become enthralled by this, it’s time to experience it for yourself – get certified to scuba dive.

On Friday 1/23/15, the post was about an award of $300K punitive damages with only $1 nominal compensatory damages under Title VII. Three hundred thousand times the compensatory damages awarded as punitives – wow! So what happened? After trial, the jury awarded only $1 nominal damages and almost $870K punitive damages. Based on US Supreme Court precedent, the court then reduced the punitive award to $300K.

TAKEAWAY:  Even if the employee has little to no actual damages, the employer’s behavior can form the basis of a hefty punitive damages award under certain circumstances – don’t put your company in that position.

Finally, in the post yesterday 1/24/15, we talked about how jokes about pregnancy can give birth to a lawsuit.  What were some of the comments made by the optometrist employer? It’s ”too bad [worker] had to go and get pregnant” and he prefers to hire women with “dead eggs” rather than “viable eggs”. Small wonder a sex discrimination case was brought after he fired a pregnant employee! Even though the employer said she was discharged for falsifying time records (and violating other rules), the court said there was a cloud based on the pregnancy comments (which the employer tried to pass off as jokes). The court therefore sent the case toward jury trial.

TAKEAWAY: Employers need to train employees – and themselves – not to make jokes in the workplace. Even if the joke was truly meant to be humorous, it might backfire in a big, illegal way. Just don’t take the chance.

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