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ICYMI: Our Social Media Posts This Week – Dec. 13 - 19, 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 12/13/15 we asked must your ADA accommodation must be perfect or can it just get the job done. Everyone now knows that an employer must provide a reasonable accommodation to allow an employee to perform the essential functions of the job if there is no undue hardship to the employer. But must the employer provide a specific accommodation (such as one requested by the employee) or just one the employer wants to provide that will do what it needs to. Details of this case are in the post, but suffice it to say that the court decided the latter is the correct answer.

TAKEAWAY: An employer must provide reasonable accommodation to a disabled employee, but not perfect accommodation. Take note.

The post on Monday 12/14/15 noted that offensive racial comments don’t always get you fired (at least under employment law). Is your brow creased in question? Let me explain. As you (should) know, the NLRA protects ALL employees when engaged in protected concerted activities. A recent decision by the NLRB interpreted this provision and took it pretty far. The employer locked out the bargaining unit employees and hired temps. The union started a picket line which the temps crossed going to and from work. Many temps were African-American. The strikers often yelled things at the temps. One striker yelled things like “Hey, did you bring enough KFC for everyone” (other comments are in the post). That striker was fired for making racial comments on the picket line (deeming them gross misconduct in violation of the harassment policy). The union grieved the termination; an arbitrator ruled for the employer. So far, so good, right? Oh but we’re not done. The union also filed an unfair labor charge alleging termination for engaging in protected activity. The ALJ noted that though the comments were racially offensive, they were made on a picket line and therefore protected activity, and the employee was to be reinstated with back pay. The company said it intended to appeal.

TAKEAWAY: Employers are in a catch-22 with racial comments if the comments are deemed (part of) protected activity – and remember this is not limited to the union workplace but applies in ALL workplaces.

In the post on Tuesday 12/15/15, we talked about the Do’s and Don’ts of employment documentation (and if you follow these practices). Just as how location in real estate can be a deal maker or breaker, so to in the employment context can documentation make or break a case. Not just any documentation, but GOOD documentation. And by documentation we mean the recordation of things, whether in paper or electronic form. So what are some Do’s? Establish clear performance expectations. Focus on the facts. More do's are in the post. And some Don’ts? Don’t diagnose why an employee is performing poorly. Don’t include your (the writer’s) mental impressions and editorial comments in performance documents. More don't are also are in the post.

TAKEAWAY: Build your “defense” every day; document document document. It is hard to recreate something when you need it (and it looks strange too) if it’s not already there.

The post on Wednesday 12/16/15 told us that the NLRB declared a conflict of interest policy unlawful on its face. Once again, this applies to ALL employers, not just unionized ones. So what happened? The policy at issue said that, “a conflict of interest with the hotel or company is not permitted” and was found facially unlawful. The policy was in a new handbook distributed by the Sheraton Anchorage. More details are in the post, but, in short, during bargaining negotiations, the employer disciplined employees engaged in protected activity like distributing flyers outside hotel entrances. The Board, in a 2-1 decision, held that the policy was unlawful on its face (as restricting protected activity) and that it could be reasonably interpreted to restrict protected activity (such as employees discussing among themselves the terms and conditions of their employment when in conflict with the employer’s interest).  

TAKEAWAY: ALL conflict of interest policies – repeat, ALL, not just those in union workplaces – must clearly allow employees to exercise protected activity at any time.

The post on Thursday 12/17/15 was about how Dunkin Donuts was certainly not runnin’ on this legal liability. The EEOC charged a company that operates Dunkin’ Donuts stores at BWI with disability discrimination for allegedly (1) refusing to provide a reasonable accommodation of a medical leave to an employee who needed breast cancer surgery and (yes there’s more!) (2) firing her shortly before the leave was to start. It’s no wonder that the EEOC filed suit.

TAKEAWAY: The first (re)action upon learning of an employee’s medical situation should not be adverse; instead, think through your legal obligations as an employer.

In the post on Friday 12/18/15 we learned that the EEOC sued Rotten Ralph’s Restaurant for religious discrimination. Rotten Ralph’s is a popular restaurant in Philadelphia; apparently that popularity went to its head (literally). Tia applied to be a server and told the GM she wore no revealing clothing and covered her hair for religious reasons. She was hired and wore the headscarf until the first time the GM saw it. He was outraged. She again explained it was for religious reasons. He replied that employees were not allowed to wear “hoodies”, would not accommodate her religious beliefs, and fired her. The EEOC sued. For additional details, go to the post.

TAKEAWAY: The Supreme Court has told us that religious beliefs are to be protected and accommodated – besides that legal reason, it’s just the right thing to do for your employees.

Finally, the post yesterday 12/19/15 told us that yes Virginia, you may have a right to a Christmas bonus. If it’s written in an employment contract, then that’s the easy entitlement situation. But if it’s not, or, more likely, if there is no employment agreement, but the employer has paid Christmas bonuses for a number of years in the past, that may have created an implied contract for payment of a bonus this year.

TAKEAWAY: Employers must be careful of setting precedent that may end up legally binding them to something in the future.

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