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ICYMI: Our Social Media Posts This Week -- Mar. 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.

On Sunday 3/1/15 the post was about what the Department of Labor will be doing in 2015 (and what you will do in response). The first question is easy: DOL said it will increase (1) audits and prosecutions of minimum wage and overtime violations and (2) scrutiny of independent contractor classifications, and issue a revision to the FLSA white collar overtime exemption rules. So on to the second question, what will you do knowing that. You should ensure that all of your workers are properly classified and properly paid. Further, if the white collar overtime exemption applies to any of your workers, make sure you become familiar with the revised interpretive rules so that you can properly apply them.

TAKEAWAY: If you toe the line on worker classification and pay (including any applicable overtime exemptions), you don’t have to worry about DOL’s increased emphasis on those areas in 2015.

The post on Monday 3/2/15 told us that an employee ineligible for RMLA leave might actually be eligible for FMLA leave. Huh? In a recent lawsuit, the employer had fewer than 50 employees within 75 miles so the employee was not eligible for FMLA leave. Slam dunk, right? Nope. The employer’s handbook stated, “… employees covered under the [FMLA] are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.” This statement, which did not contain the FMLA’s numerical employee within geographic area requirement, estopped the employer from denying FMLA leave to the employee.

TAKEAWAY: Be careful that you follow the dictates of the law and don’t provide less-strict guidelines to your employees (unless you really intend it).

In the post on Tuesday 3/3/15, we talked about a tale of 2 employment discrimination lawsuits: Revlon and Saks Fifth Avenue. Revlon has been sued (in federal court in New York) by its former chief scientific officer, Alan Myers, for religious discrimination (Jewish) and retaliation (for raising safety concerns to Revlon’s President and CEO, Lorenzo Delpani). Revlon said that Meyers “repeatedly demonstrated critical lapses in judgment and failed to perform at the high standard …” it demands of its employees. Across the country, Saks is a defendant in a suit filed in federal court in Houston by Leyth O. Jamal, a transgender woman. She brought an EEOC charge against Saks in 2012, after which her employment was terminated. The allegations in the suit include that Jamal was required to use the men’s restroom, withstand intentional and repeated use of male pronouns by coworkers, and that she was told by management that she could not wear makeup. Saks insists the allegations are meritless. We will have to see whether discovery brings a settlement in either (or both) of these hi-profile cases or whether they proceed to trial.

TAKEAWAY: Unfortunately, discrimination happens every day in the workplace – but you really don’t want it to be front-page news when it happens to you.

The post on Wednesday 3/4/15 was about whether Sara Lee discriminated against black employees. The charge filed with the EEOC says the company disproportionately assigned black employees to hazardous areas of a baking facility in Texas where they were exposed to asbestos, mold and other toxins. Supposedly the EEOC’s investigation showed that plant managers subjected black employees to racial slurs, intimidation and racial graffiti; further, black employees were less likely than white employees to be promoted. Shades of the Paula Deen lawsuit? While the facility was closed in 2011, the charges (and possible suit), proceed.

TAKEAWAY: Managers must be trained to treat all employees the same, with any differences based on performance or other non-discriminatory characteristic. While they may think nobody will ever know, they are almost always wrong.

In the post on Thursday 3/5/15 we asked if you know what the ministerial exception is? Well, like it sounds, it comes into play at the intersection of religion and employment. A recent federal court decision strengthened the decision so that religious employers have almost total control over who they hire, fire and discipline. For more details go to the post.

TAKEAWAY: While anti-discrimination laws are either state or federal, religious employers are not bound by them; this gives the employer much leeway but gives employees fewer civil rights.

On Friday 3/6/15 the post reminded you to think twice about changing an employee’s duties or hours during FMLA leave. Why? Because it could be deemed a violation of the FMLA (or retaliation for the employee taking FMLA leave).

TAKEAWAY: When making changes that affect an employee on FMLA leave (or about to take FMLA leave), only make changes you would make regardless of the leave and make sure you can support that assertion.

Finally, in the post yesterday 3/7/15, we noted that the EEOC reports fewer disability discrimination claims. Of course, we also questioned whether they are really decreasing in number or just not being reported. This decline was the second year in a row as reported by the EEOC. In the fiscal year ended 9/30/14, the EEOC received 25,369 complaints of disability discrimination. IN the prior year, it received 25,957 complaints in that area. Of the 2013-14 complaints, almost 20% led to favorable outcomes for the charging parties and the EEOC secured over $95M in monetary awards.

TAKEAWAY: While the number of EEOC charges may be declining (in one or more areas), there are still MANY charges filed; make sure your workplace follows the law so you are not one of those charged.

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