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ICYMI: Our Social Media Posts This Week -- Nov. 1 - 7, 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 11/1/15 asked whether an employee’s text and his girlfriend’s report are enough to establish notice of the need for FMLA leave. Delbert, who worked at Tyson Foods, decided not to show up for work and asked his girlfriend, who also worked there, to report his absence. She told his supervisor. He also texted the supervisor. They did not say the same things though – see the post. Delbert missed the next few days of work but didn’t tell Tyson anything about those absences. A few days later he received a medical diagnosis and brought in a doctor’s note the following day. He also filled out a leave application, checking the “non-FMLA” box. Tyson determined that Delbert had not followed the call-off policy so his absences were unexcused and he was fired. He filed suit (yeah, I bet you guessed that one – the claims are in the post) and a court said he might actually have done enough to give notice of his need for FMLA leave. The court’s decision was highly dependent on the facts (including that Delbert and his supervisor often texted, so the fact that he reported his initial absence by text instead of calling as the policy required was ok) but can be used as a roadmap.

TAKEAWAY: Make sure to follow a policy uniformly so as not to get caught up in exceptions of your own making; also, don’t force the employee to decide what is or is not FMLA leave when there is no requirement to utter those initials to invoke the law’s protections.

On Monday 11/2/15 the post was about the EEOC suit against Gonnella Baking Company for race harassment. You might ask why you should care. Because, in summary and as the post says, the company allegedly failed “to stop a pattern of disparaging comments about black employees …” at one of its plants (it has some in IL and one in PA). Examples of the comments are in the post and include “you people are lazy.” Pre-suit settlement failed so the EEOC initiated suit.

TAKEAWAY: Train your employees on what they can and cannot say and if they step over the (legal) line, take action as necessary to make it stop – before a court does it for you and on your dime.

In the post on Tuesday 11/3/15, we reminded you to vote on this Election Day.

TAKEAWAY: Take heed of your responsibilities on Election Day – people fought for the freedom to vote!

The post on Wednesday 11/4/15 was about a court directing an employer to let an employee watch porn on the lunch hour. Really. Ok, it happened in Italy, but it is still interesting (and makes one think about how it would play out here in the US). So the employee was discharged for watching porn during lunch hours. The appellate court (after 5 years of litigation) said the employee had done nothing wrong and was “entitled to ‘catching a glimpse’”. See the post. This author thinks it was probably more than a glimpse …

TAKEAWAY: You may or may not be able to control what your employees do on their own time – if you want to place limits, make sure they are legal and enforceable.

The post on Thursday 11/5/15 told us that Staples will pay a fired employee $275K in wages and damages. Why? To settle his claims. Jeffrey had to deal with his wife’s illness but apparently nobody from Staples advised him of his FMLA rights. He used personal, sick and vacation time to care for her.

TAKEAWAY: Don’t wait for an employee to ask about his/or her rights – make sure to fulfill your obligation as an employer and just tell the employee what might be there for him/her.

The post on Friday 11/6/15 reminded us that yes, there is a difference between color and race when it comes to discrimination. Title VII bans discrimination on the basis of many protected characteristics, including race and color. No, they are not duplicative terms. The post gives a good example of the difference and how it might occur in the workplace.

TAKEAWAY: Be aware of all protected characteristics and don’t use them as the basis for any employment decision, especially if it’s adverse.

Finally, the post yesterday 11/7/15 told us that it takes 2 – racial slurs to support a claim of harassment. In the workplace, that is, and according to one federal appeals court. So let’s look at the background in this case. The employee, an African-American female, was a waitress in Ocean City, MD. A manager twice called her a racial slur (which is in the post) and threatened her job. He also used a different term that was racially charged (again, see the post). She complained; that led the owner to ask about her job performance and she was subsequently fired. The court said that even though the slurs were limited, they were serious enough to send the matter to a jury to decide whether or not discrimination occurred. But that’s not all – the case also had a claim of retaliation (the firing after reporting the discrimination). The trial and initial appellate court said that the employee could not have reasonably believed a Title VII violation had taken place, so there could be no retaliation. On further appeal, the court said that reporting even one incident of harassment, even if it could not support a hostile work environment claim, was sufficient to support a claim of retaliation (if other elements were present). It is this holding relative to retaliation that employers should take to heart.

TAKEAWAY: Let’s recap: How many times can an employee hurl racial slurs at other employees? Despite what a court might eventually determine - after much time and money - your answer should be “none”. And must the underlying cause be proven to support a claim of retaliation? No. Employers beware.

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