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ICYMI: Our Social Media Posts This Week – Nov. 29 – Dec. 5, 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 11/29/15 asked if you know that the ADA has specific parking guidelines. Yep, it does (for public access). See the post for more background.

TAKEAWAY: If the public is invited to your business premises and you provide parking, you may be required to adhere to the ADA as to parking so know what it says.

The post on Monday 11/30/15 reminded us that managing FMLA leave is not as easy as you’d think. Who is covered by the FMLA is in the post in case you’ve forgotten. But what are some of the issues that arise and how to work your way through them? First is when the 12-month leave period begins. It could be based on a calendar year, any fixed 12-month leave “year”, the 12-month period going forward from when that employee’s first FMLA leave starts, or a rolling 12-month period measured backward from the date the employee uses FMLA leave. All have pros and cons and should be discussed with an employment law attorney prior to promulgating your policy (or changing it). Other issues include notice for intermittent leave, FMLA leave abuse, recertification, the intersection with the ADA, and same-sex spouses. Some details about each of those are in the post.

TAKEAWAY: Before dealing with any of these FMLA issues in your policy (or amending your policy to deal with them) – you do have a policy on FMLA leave, right? - consult with an employment-law attorney.

In the post on Tuesday 12/1/15, we talked about the case of the lipstick lesbian: avoiding gender stereotyping claims. “Lipstick lesbian” is a(n outdated) term that implies that lesbians either do or don’t fit the traditional female gender stereotypes. And that is the problem. Gender stereotyping has been and remains the starting point for many a Title VII (or state law) discrimination claim. Is there still an accepted “norm” for men or women relative to attire, hair, makeup, jewelry, style, expression, or mannerism in this day and age? Maybe but probably not. The case mentioned in the post is but one example of a female employee who was forced to re-interview for a job she’d held and from which she was later fired; after suit the federal appellate court sent the case on to a jury after finding the employee set forth a claim of discrimination “because of sex.”

TAKEAWAY:  Employees are permitted to have policies or codes on many things, including dress, grooming, and how to interact with customers. But when those things differ by gender, legal problems may arise …

The post on Wednesday 12/2/15 was about a jury penalizing an employer for testing employees’ DNA – and reminding us about GINA. So, in reverse, remember that GINA is not the girl next door, but the federal Genetic Information Nondiscrimination Act. The employer in the case described in the post apparently forgot and was slapped by a jury as a result. The background facts are interesting: the warehouse employer discovered that someone left feces on the floor and on top of canned goods (yes, yuck!) and conducted an investigation to find out who did it. As part of the investigation, the 2 plaintiffs were summoned and asked to provide saliva for a DNA sample. They did but say (in their complaint) they were never told of their rights and obligations under GINA. More details are in the post, but suffice it to say that not only did the tests show them not to be the perpetrators, but a jury came back with a verdict of $500,000 compensatory damages and $1.75 million punitive damages!

TAKEAWAY: Employers still have fairly free reign to conduct their business, including investigations, but must remember not to invade things held sacrosanct by federal or state law (like GINA now does).

The post on Thursday 12/3/15 reminded you to know when the ADA trumps your policy. Can employers still take adverse action against employees, such as discipline and discharge? Yes, but they must be aware of the situations when such action may be legally prohibited by the ADA. The post talks about 2 situations where the employer didn’t’ remember. In the first (which we posted about long ago when it happened), Walgreens was on the wrong side of the line the entire time. A loss-control supervisor found an empty potato-chip bag under the counter; when questioned, the employee said “My sugar low, not have time.” She was fired for violating the no-grazing policy. After suit, Walgreens was found to have violated the ADA (to the tune of $180,000). The second case, dealing with an alcoholic, is described in the post.

TAKEAWAYThe post says it best: Be careful. Consult counsel.

On Friday 12/4/15, the post said that all Muslims do is blow up people and buildings – and that Walmart is now paying for that statement. Literally paying, to the tune of $75,000. The EEOC’s suit alleged that a Gambian and Muslim employee was harassed by a store manager in Landover Hills, MD (just down the road) through comments about the employee’s national origin and religion and telling the employee to “go back to Africa” and “all Muslims do is blow up buildings and people”. More salacious details are in the post. When the employee complained, and after an investigation, the same store manager retaliated – including threatening with termination, instituting a one-year “coaching period”, and telling other employees not to cooperate with the employee in performing his job duties. Anyone out there think Walmart was proud of that store manager? Well, apparently any support stopped when Walmart agreed to settle the case filed by the EEOC for money damages and a 30-month consent decree (plus other things).

TAKEAWAY: Why don’t employers remember that anything not job related should not be the basis for adverse action? At least they keep providing good fodder for these blogs.

Finally, in the post yesterday 12/5/15, we were told don’t call your employee “bean burrito” or you will pay (as did that employer). The employer is a hotel in Laughlin, NV (not far from Las Vegas); the $150,000 settlement will go to 6 Latino or brown-skinned workers. The federal suit alleged that slurs like “taco bell” and “bean burrito” (plus others in the post) were directed at them constantly. They were also told not to speak in Spanish on break and, after complaint, one was fired and the hotel took no corrective action.

TAKEAWAY: Train your supervisory staff what (not) to say and how (not) to interact and deal with employees – it can save you a lot of time and money in the long run.

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