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ICYMI: Our Social Media Posts This Week -- Oct. 11 - 17, 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 10/11/15 asked if early termination is ok when an employee on FMLA leave resigns. The answer (as with many questions) is maybe and it depends. The FMLA regulations deal with this type of situation and so must be adhered to. If the employee is clear about termination and the same action would be taken relative to someone not on FMLA leave, then the answer is yes.

TAKEAWAY: When it comes to termination (or other adverse action), treat an employee out on FMLA leave the same as any other employee (and consult with an employment law attorney if you’re not sure what you can or cannot do).

On Monday 10/12/15 the post talked about suits alleging Chipotle underpaid employees and made them work off the clock. Its motto is “Food With Integrity” and it supposedly prides itself on ethical fast food, but Chipotle is in hot water for wage issues. The suit alleges Chipotle made employees work off the clock or misclassified them so as not to have to pay overtime. One part of the suit says that “managers-in-training known as ‘apprentices’ are actually glorified burrito rollers with minimal managerial responsibilities …” and so are entitled to overtime. The suits currently include over 643 plaintiffs. Chipotle has denied all allegations (and says it actually goes beyond what the law requires). Another tidbit: past federal investigations of Chipotle stores have turned up pay issues but most have involved minimal dollars and so have gone nowhere.

TAKEAWAY: Make sure you properly classify and pay your employees – if you don’t, it could cost more in the long run, especially if a suit is filed.

In the post on Tuesday 10/13/15, we found an employer breathing easier now after a disability case settled. (Of course, it should never have gotten to that point in the first place ...). Why will Baker Concrete Construction pay $58,000 (plus other relief) to settle a suit brought by the EEOC? Well, the EEOC alleged that the company discharged Maria in 2013 because of her asthma, a disability, by refusing to provide her a reasonable accommodation of working at home for a bit after a bad reaction to chemical dust in the workplace. She was told that, “she … would just become ill again if they gave her permission to work at home for a period because the building was old and she would continue to have breathing problems upon her return.” More of what she was told is in the post. Of course, the company never said why providing the requested accommodation would be an undue hardship; likewise, it did not offer any other reasonable accommodation. Settlement was the smart thing to do.

TAKEAWAY: Just because an employer doesn’t want to accommodate a disabled employee, the legal obligation to do so does NOT disappear.

The post on Wednesday 10/14/15 noted that talking to yourself may now be considered concerted activity (with legal protection following on the heels …). Yes, this is the world of the NLRB, but as you should know it still applies to ALL employers when related to protected concerted activity. Here, a teacher at a private, non-profit religious school yelled to herself “THIS PLACE SUCKS” after another employee asked her to provide proper documentation for expense reimbursement. The school said (in a summary judgment motion) that Section 7 did not apply as activity requires at least 2 employees to be concerted and here she yelled to herself other than in preparation or initiation of group activity. The NLRB outright denied the school’s motion and didn’t even require a response from the Regional Office! So now the matter moved along on the merits (including whether there was concerted activity). NOTE: the Board also denied the school’s argument that it was outside of the Board’s jurisdiction as a religious educational institution (and again required no response from the Regional Office).

TAKEAWAY: Given the current Board’s extreme willingness to stretch the statute, employers must be extra careful these days not to take adverse action on account of anything that could remotely resemble protected concerted activity.

The post on Thursday 10/15/15 was off our normal topics but refreshing: it provided 10 reasons to be a scuba diver. Scuba diving is a passion to some but a joy to all who enjoy it. So what are some of the reasons to become a diver? Explore parts of the world many don’t get to see (remember that 71% of the earth’s surface is water …). It lets you escape everyday technology and Zen out. You get to experience weightlessness. More are in the post. If you are interested in becoming certified to scuba dive or just want to try it once in the pool first, contact me or go to www.scubacentralpa.com .

TAKEAWAY: We all need to get away at times – scuba diving is one surefire way to disengage and refresh.

The post on Friday 10/16/15 reminded us to handle a return from maternity leave with kid gloves. While it talked about a case in Canada, the same things apply here in the US. Lee was hired as a dental hygienist but soon was promoted to office manager. During 7 years of employment, she took 2 maternity leaves, the last ending in July 2011. She had previously worked four days a week from 9a-5p, but was now being moved back to a hygienist position with a different schedule (starting at 8am 3x/week). On her second day back, the schedule again changed, this time to a 10a-6p shift on 3 of the 4 days. Besides her unhappiness with the demotion (and lower pay), the new schedule conflicted with her daycare arrangements. More details are in the post. She was soon discharged and sued. The court said she was entitled to return to the same or a substantially similar position as before her leave and that the schedule change would have been ok if the employer had shown it was a bond fide occupational requirement. More of the court’s reasoning is in the post.

TAKEAWAY: An employer may not like how the FMLA’s provisions play out, but it must still comply – or suffer the consequences.

Finally, the post yesterday 10/17/15 taught us that if there is but a small amount on the table, know when to fold. Yep, a nuisance settlement. Called that because the suit (or charge) is a nuisance to the employer both in terms of the manpower necessary to respond to various documents and attendance at any required hearings, depositions or trial. It is often better to settle a case (usually by paying something, commonly less than the employer would spend if the suit/charge progressed, and admitting no liability) than to let it move ahead. In the case in the post, Domino’s did not take this advice and lost big time.

TAKEAWAY: Even if you know you’ve done nothing wrong, settling a case/matter may still be in your best interests – consult with your employment law attorney to make this happen.

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