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ICYMI: Our Social Media Posts This Week -- Mar. 8 - 14, 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 3/8/15 the post was about ADA lawsuits on point-of-sale devices and making sure your business is legally compliant. Kiosks offer services and products in so many walks of life – but that also leaves open the businesses to suit for alleged violation of the ADA. For what, you might ask. Allegations of inaccessibility to mobility-impaired persons, those with manual dexterity limitations, hearing-impaired persons, and those with visual impairments. The post offers some hints of where to look for guidance in those areas (in addition to consulting an attorney who is familiar with the ADA).

TAKEAWAY: Don’t assume that just because technology enables your business to provide easier (and perhaps cheaper) services or products to customers, that it is not subject to any laws on accommodation.

The post on Monday 3/9/15 was about 2 all-beef patties, special sauce, and a lawsuit against McDonald’s. This time, 10 former employees of a McDonald’s in Virginia sued, alleging racial discrimination, sexual harassment, and wrongful termination. Most if not all of the workers had previously filed administrative charges. While the franchise owner denies liability, he may not be the only one on the hook – remember the NLRB’s joint-employer ruling that pulls in (corporate) McDonald’s as a whole too.

TAKEAWAY: It is nice for an employer to have a zero-tolerance policy relative to harassment and discrimination, but even better when the employer actually adheres to that policy.

In the post on Tuesday 3/10/15, we talked about Amazon and the NLRB settling a “disrespectful, loud speech” case.  The case centered on an unfair labor practice claim and might result in Amazon’s warehouses becoming unionized. So what happened? During an all-staff meeting, an employee voiced a safety concern. Later, supervisors told him that he was disrespectful and spoke too loudly during the meeting. He claimed he had to speak loudly to be heard. He was then given a verbal reprimand. He filed a charge with the NLRB. Go to the post for the NLRB’s ruling on Amazon’s rule that set up this case for settlement.

TAKEAWAY: Even the most innocuous of rules or policies in a non-Union workplace might violate the NLRA – have an employment attorney review your handbook or manual to ensure legal compliance.

The post on Wednesday 3/11/15 was about the standards for willful misconduct in PA for unemployment compensation purposes. Why does this matter? Because in PA, if employment ends because the employee committed willful misconduct, then the employee is not eligible for unemployment benefits (and the employer’s account is not charged, thus no potential effect on the employer’s rating or premium). Here, the employee did not follow the employer’s required manner of communication and was found ineligible for UC benefits.

TAKEAWAY: Unemployment eligibility can be tricky; employers are advised to consult with an employment attorney if they believe a former employee should not be eligible for benefits.

In the post on Thursday 3/12/15 we talked about Oakland Children’s Hospital paying $300,000 for firing an employee with breast cancer. That just sounds icky, doesn’t it? Imelda was hired in March 2009; in December 2011, she was diagnosed with breast cancer. The hospital gave her a 2-month leave for a double mastectomy. She needed more time off to recover but was discharged because her requested leave extension went beyond the employer’s 6-month leave policy. In July 2012, during a meeting with managers, they said she looked “fragile” and would most likely not return. However, she had a doctor’s note releasing her to return to work in September 2012. The EEOC filed suit; a consent decree was entered.

TAKEAWAY: I always advise employers to uniformly follow their policies, but I ALSO advise that such policies must be read in light of applicable law – including how the ADA or FMLA affect leave policies.

The post on Friday 3/13/15 was about lies, damn lies and (EEOC) statistics. Last month the EEOC issued its Fiscal Year 2014 Enforcement and Litigation Data report, so we have many statistics to chew on and spit back out. What were some things to notice? The total number of charges of discrimination against employers fell almost 5%. Despite that, the total was still almost 90K federal charges of discrimination filed. More good and bad news from the report can be found in the post.

TAKEAWAY: The EEOC’s enforcement will focus on pregnancy discrimination and pay issues (especially employee and independent contractor issues) in 2015; don’t fall victim to any charges or liability.

Finally, the post yesterday 3/14/15, was about a fear of clowns and a lesson on the ADA.  We first learned a new word: coulrophobia (fear of clowns) – thank you Jon. Next, we were reminded that ADA protection requires not only a protected disability, but an employee who is qualified under the statute. That entails looking at the essential functions of the job and what, if any, reasonable accommodation can be made to enable the employee to perform those functions. Sometimes no accommodation is possible and then the ADA does not offer protection.

TAKEAWAY: Just because a disability is protected under the ADA, that does not end the inquiry; the employer must follow through and see what else is required and may or may not be possible.

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