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ICYMI: Our Social Media Posts This Week -- Jan. 4 - 10, 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 1/4/15 was about how actions speak louder than words, like a jury awarding $185 MILLION punitive damages in a pregnancy discrimination suit. Yes, million. The defendant employer, AutoZone, put the employee on a performance improvement plan and then demoted her, both shortly after the employee said she was pregnant. She then filed an administrative charge, got her right-to-sue letter, and filed suit. She was then fired and amended the suit to include other claims as well. So where did AutoZone fall short? Evidence that after finding out she was pregnant, the manager urged her to step down from being Store Manager due to the pregnancy and that she was given more work with shorter deadlines than male counterparts with worse-performing stores. But wait, there’s more. AutoZone also said it discharged her for a policy violation, but couldn’t identify the policy; also, it did not uniformly enforce the alleged policy when it didn’t discipline another employee for doing the same thing as part of the same incident for which this employee was discharged. At trial, the jury was obviously angry and awarded $25 million more in punitives than was requested.

TAKEAWAY: If you are going to assert a policy violation, you must actually have the policy and evenly enforce it.

In the post on Monday 1/5/15 we talked about a federal court ordering the NLRB Regional Director, acting for the Board, to pay more than $55K in attorney’s fees to an employer. And this was despite the NLRB being awarded much of the relief it requested in the suit! So what happened? The new owner of a company was told by Homeland Security that he could treat all employees as new hires and use E-Verify. He fired 4 of the “new hires” and the NLRB alleged the firings were due to their support for the union and therefore illegal. The employer offered to reinstate the 4 employees if they completed E-Verify (a requirement under that state’s law); the NLRB wanted unconditional rehire but the court disagreed. The court then granted the employer’s request for attorneys’ fees related to the unconditional rehire demand.

TAKEAWAY: There are limits to what the NLRB can get; here, due to the overreaching, the employer asked for and received an award of attorney’s’ fees.

The post on Tuesday 1/6/15 turned thoughts to warm weather and 5 ways scuba diving works your body all over. How, you ask? Head-to-toe toning (because water is heavier than air and provides more resistance while remaining low-impact). Crazy calorie burns – an average of at least 400 calories per dive. Better breathing – by increasing lung capacity, strengthening your respiratory system, lowering blood pressure, quelling depression, anxiety and stress-related disorders, and possibly cutting your risk of lung disease. The others are in the post.

TAKEAWAY: Scuba is not only fun but good for you. Consider adding it to your life (if you are not a certified diver) or diving more (if you are already certified).

In the post on Wednesday 1/7/15 we began to delve into the ADA and talked about knowledge and consistency – the 5 definitions to know about the ADA. You should definitely know what “disability” and “qualified individual with a disability” mean in the context of the ADA. “Disability” means someone who has a physical or mental impairment that substantially limits his/her ability to perform one or more major life activities, someone who has a record of such impairment, or someone who is regarded by the employer as having such an impairment. The term "disability” is very broad now thanks to the changes under the ADA Amendments Act. So what about “qualified individual with a disability”? That means the person has the skills, experience and other job-related requirements for the position. The other 3 definitions under the ADA that you should know are in the post.

TAKEAWAY: Administering the ADA’s provisions can be complex – employers and employees may not always be sure of their rights or obligations and should consult an experienced employment law attorney to help.

Continuing the ADA theme, the post on Thursday 1/8/15 talked about a $75K settlement of an EEOC suit for a rejected applicant with HIV. Yes, an applicant. The health staffing company refused to hire the person (to sit with patients at a VA hospital) because he is HIV positive.

TAKEAWAY: Remember that the ADA applies to employees AND applicants for employment.

On Friday 1/9/15, the post was about an employer that got slapped for not practicing what it preached. Here, a disability aid service fired an employee with a disability. First, the background. The deaf employee was an independent living specialist; he requested reasonable accommodations including TTY equipment, a video phone and the ability to text message. The employer rejected the accommodation requests, did not provide alternative accommodation, and finally fired him. The EEOC noted the hypocrisy of a non-profit whose mission is to help disabled individuals discharging an employee because of a disability. Ugh. Just ugh.

TAKEAWAY: Employers must take seriously their duty to engage in the interactive accommodation process if the employee has ADA protection – failure to fulfill its obligation can land the employer in legal trouble.

Finally, finishing up the ADA theme, in the post yesterday 1/10/15 we talked about the ins & outs of the ADA. We were first reminded that the ADA includes coverage for recruitment, hiring, placement, training, promotion, transfer, benefits, discipline and discharge. The ADA covers a qualified individual with a disability who, with or without accommodation, can perform the essential functions of the job. Assuming the person meets this threshold (which is not that difficult thanks to the ADAAA), the employer must then engage in the interactive accommodation process. Some types of accommodation are listed in the post, but the actual accommodation will vary based on the the situation. If the employer can show that providing an accommodation would be an undue hardship (which will vary with each employer and situation), it is excused from accommodation.

TAKEAWAY: An employer should take seriously its obligations under the ADA and try to accommodate a qualified individual with a disability – but the employer does not have to create a new position in order to accommodate.

References (3)

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