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ICYMI: Our Social Media Posts This Week – Nov. 22 - 28, 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.

In the post on Sunday 11/22/15 we learned that United Airlines will pay over $1 Million to settle a disability lawsuit. Wow! The underlying suit filed by the EEOC alleged that United’s competitive transfer policy violates the ADA because it frequently prevented employees with disabilities from continuing employment. The suit was originally filed in June 2009; it was transferred to a different federal court and that court dismissed the case in February 2011 (based on what it thought was earlier governing precedent). ON appeal, the court reversed. In May 2013 the US Supreme Court denied certiorari, leaving standing the ruling that the ADA mandated an employer assigning employees with disabilities to vacant positions for which they are qualified, provided the accommodation is ordinarily reasonable and not be an undue hardship to the employer.

TAKEAWAY: Just because there is a policy or similar provision in place does not mean it is legally enforceable. Consult with an employment law attorney to make sure policies you seek to enforce can be legally enforced (before a court tells you to the contrary).

The post on Monday 11/23/15 talked about successor liability for discrimination claims. This was at issue in a recent federal court case. In the case, one corporation operated a restaurant called Sparx, a property company owned the restaurant building, and a third corporation operated a Denny’s restaurant. All 3 corporate entities were owned by the same person. After Sparx went out of business, the Denny’s opened in the same location and even hired Sparx’s former managers and many of its former employees. The court said that Sparx and Denny’s “carried on the same restaurant business at the same location” even though under different names and themes. Why did this matter? Because Sparx had been sued by the EEOC for race retaliation, a jury had found in favor of the EEOC, and Sparx then dissolved. The court’s finding meant that the corporation that owned Denny’s was really Sparx’s successor and therefore liable for the judgment. The elements considered by the court in making the successor liability determination are in the post and include whether the predecessor entity could have provided relief to the employee after its dissolution.

TAKEAWAY: Don’t try to use a back door; it may lead right to the same lawsuit you are trying to avoid through the front door.

In the post on Tuesday 11/24/15, the EEOC sued the employer for disability discrimination; the fired employee was believed to be HIV positive. What could be worse? Well, the employer here is a plasma collection center. There's more … After an initial screening for a plasma donation showed a viral marker for HIV, the employee was placed on a deferred donor list. His supervisor learned of that and immediately discharged him. Could it get even worse? Yep. Later tests showed the employee was actually negative for HIV. The EEOC sued, alleging the employer discharged anyone who tested positive for a viral marker (violating the ADA under the disability or record of having a disability prong). The suit is pending.

TAKEAWAY: Employers sometimes forget how broad is the definition of disability – and that gets them in trouble. Don’t take adverse action against an employee unless you are sure you can safely – legally – do it.

The post on Wednesday 11/25/15 was about paying employees for travel – knowing the law with the holidays fast approaching. The question is when an employee must be paid for travel that is outside of the normal commute between home and work. The federal Fair Labor Standards Act governs the four situations when pay applies: (1) in certain emergency situations, (2) for travel as part of a special assignment outside of the normal workplace. The other 2 situations are in the post.

TAKEAWAY: Know the law about when you must pay employees for travel and avoid future headaches if you don’t comply.

The post on Thursday 11/26/15 was to wish our friends and families a Happy Thanksgiving.

TAKEAWAY: We all have to take time out to give thanks. Thank you for letting Austin Law Firm LLC help with your legal issues over the years and into the future.

On Friday 11/27/15, the post was about an ex-employee suing state agency officials over nude photos demand. Yes, you read that right. A former Georgia Department of Natural Resources employee is suing for sex discrimination and retaliation, claiming she was fired for reporting that a senior staff member demanded nude photos of her in order to get a promotion. The complaint says she complied and was promoted. When there was another possible promotion opportunity a few years later, the supervisor asked, “What are you going to give me this time?” When she refused to comply, the position was awarded to a substantially less qualified person. More details are in the post, including that after she accelerated her complaints, she was fired.

TAKEAWAY: Employers, whether private or public, are accountable for the actions of their employees – train them to do what’s legal so as to avoid suits.

Finally, in the post yesterday 11/28/15, we talked about a radio station that can't shake an age discrimination claim. Here, a case in federal court is moving toward trial thanks in large part to age-related statements by management. So what happened? The employee went out for back surgery after 16 years of employment; about 6 weeks after her return, she was fired. At that time, she was 59. Her duties were temporarily assigned to a 26 year old and eventually given to a 48 year old. Age-related issues with other employees also occurred, including comments from management about wanting “new blood”. The post contains more details and background. The radio station said the discharge was due to insubordination and poor performance, not age. The court denied the employer’s motion to dismiss based on the “new blood” and other age-related comments. The court’s analysis of the facts pled in the case and the station’s defenses is in the post. So now the radio station as employer must face the music.

TAKEAWAY: Tell your employees, over & over, that age cannot be a factor for any decision. Period.

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