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Monday
Apr062015

ICYMI: Our Social Media Posts This Week -- Apr. 5 - 11, 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 4/5/15 we posted about more charges against McDonald’s and franchisees under the NLRB’s joint employer theory. In case you have lost count, the prior 13 complaints with 78 charges are now supplemented by these 6 new complaints with 23 additional charges against McDonald’s USA for alleged illegal actions by its franchisees. Those actions include discriminatory discipline, reductions in hours, and discharges. The NLRB’s joint employer theory is founded on allegations of McDonald’s amount of control over franchisees’ operations other than related to the McDonald’s brand.

TAKEAWAY: The joint employer theory could have wide-reaching effect in the franchise world – and possibly could be extended to other things in the employment law arena.

The post on Monday 4/6/15 told us about an EEOC memo saying Title VII protects workers from discrimination based on sexual orientation and gender identity. The memo came out February 3rd. A portion of the memo states, “Individuals who believe they have been discriminated against becaseu of their sexual orientation should be counseled that they have a right to file a charge with the EEOC, and their charges should be accepted under Title VII and investigated as claims of sex discrimination ….” The memo also reaffirms protection for transgender workers under Title VII and notes that those charges will also be accepted and investigated as claims of sex discrimination.

TAKEAWAY: Employers must do business legally in this brave new world; one thing that has not changed is that employers should judge employees by performance and not other protected factors (such as sexual orientation and gender identity) that have nothing to do with the job.

In the post on Tuesday 4/7/15, we warned you to beware the generosity of volunteers that could result in a perceived employer-employee relationship. What does that mean? A federal court was faced with the question of whether the work of unpaid volunteers closely resembled that of paid employees (which makes a difference in entitlement to Title VII protection). Here, the court went beyond the normal right-to-control test and the fact that the volunteers were not paid, saying those were only factors to be looked at in the overall assessment. Here, the court ruled in favor of the employer (finding only a volunteer relationship).  

TAKEAWAY:  This is another proper classification issue - employee or volunteer - and has legal ramifications, so make sure you do it right.

The post on Wednesday 4/8/15 told us that often a (threatened) discharge will result in allegations of discrimination, harassment or more. Here, an elected official in FL threatened to push to fire the City Attorney; she, in turn, accused him of gender and race discrimination and creating a hostile work environment. The allegations are now under investigation.

TAKEAWAY:  Regardless of the timing, employers must make sure to promptly investigate all claims if discrimination and harassment.

In the post on Thursday 4/9/15, we learned about the EEOC claim that WalMart discriminated against a lesbian employee – and that $100,000 in medical bills is at stake. The employee worked in a Boston-area store; she sought health-care coverage for her sick wife beginning in 2008 but WalMart didn’t provide it until 2014 (when it expanded its policy to include same-sex couples). In 2012 the employee’s wife was diagnosed with cancer. The parties are attempting to settle matters as ordered by the EEOC.  

TAKEAWAY: For a business in a state that recognizes same-sex marriage (as does PA), treating an LGBT employee differently can be deemed illegal discrimination.

The post on Friday 4/10/15 talked about an Atlanta ex-fire chief who sued (on religious and freedom of speech bases) after being discharged for writing a book slamming homosexuality. In his 2013 book, he called homosexuality “vulgar” and “the opposite of purity”. He is seeking a return to work along with back pay (but no other monetary damages or legal fees). He also filed a charge with the EEOC. In defense of the city, the Mayor said the discharge was due to questions about the chief’s judgment and managerial abilities raised (and possible policy violation) based on the book. Stay tuned …

TAKEAWAY: Employers must be careful to separate personal beliefs from job performance, especially when one does not implicate the other; commingling the two may result in the employer being in legal hot water.

Finally, in the post yesterday 4/11/15, we again talked about employees versus independent contractors and the consequences of misclassification. What areas can be implicated by an erroneous classification? Taxes. Health care. See the post for more.

TAKEAWAY: It is always a good idea for an employer to refer any questions about proper worker classification to an employment law attorney.

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