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ICYMI: Our Social Media Posts This Week -- May 17 - 23, 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 5/17/15 we talked about the fact that employers can no longer require PIPs to be kept confidential. You read that right. The NLRB issued this ruling in a case where an employee was put on a Performance Improvement Plan (“PIP”) after a bitter meeting between her and her supervisors. The PIP required that she not talk about it with co-workers (which she did). Further, HR required her to disclose the names of other employees who might have similar complaints about the supervisor. After being discharged, the employee filed a charge with the NLRB. The NLRB found that the employer’s actions illegally chilled concerted activity by (1) requiring her to disclose others’ issues and (2) prohibiting her from discussing the PIP’s terms; these were found to be a violation of Section 7 which gives employees the right to discuss the terms and conditions of their employment.

TAKEAWAY: In ANY type of workplace, be careful what you put in the PIP – Section 7 of the NLRA applies to ALL employers and you don’t want to get caught in something that could be easily avoided.

The post on Monday 5/18/15 was about small businesses struggling with ADA compliance. Yes, this includes making restrooms accessible (unless grandfathered in) to avoid a lawsuit. And be glad you are not in CA – a law there gives plaintiffs at least $4,000 in damages!

TAKEAWAY: Along with other legal compliance, make sure your business meets all required standards of accessibility under the ADA.

In the post on Tuesday 5/19/15, we were reminded of 3 important practices to avoid a sexual harassment lawsuit. As 1 in 4 women report that they have been sexually harassed at work (and more in some industries), this is pretty important. While there is neither federal nor PA law mandating sexual harassment training, there are things you can do to avoid a lawsuit. The first is to be practice about training managers and employees, explaining policies, the procedure to make a complaint, and the investigative process once a complaint has been made. The other 2 practices are in the post.

TAKEAWAY: Make sure you have a policy prohibiting sexual harassment, that employees know how to use it, and that you investigate all complaints (taking action as appropriate).

The post on Wednesday 5/20/15 told us to carefully document discipline after FMLA leave to save the day. If after reading that sentence you are thinking, “yeah, yeah, blah blah blah,”, then you are lucky if you haven’t been the subject of a lawsuit yet. Discipline after FMLA leave can easily look like retaliation, so make sure it’s not. Here, an employee who returned from FMLA leave (his wife gave birth to their child) was allowed to refuse overtime. Others then told the employer that the employee had been less than truthful about his reported work hours and the records existed to support their allegations. The employer fired him for cheating on his timesheets; he sued for FMLA retaliation. The court ruled in favor of the employer since it had evidence supporting its basis for discharge.

TAKEAWAY: The best thing to say is what we started out with: make sure to carefully document the valid, legally-permissible reason for any discipline (including discharge) after an employee’s FMLA leave.

In the post on Thursday 5/21/15, we learned about a suit against Cantor Fitzgerald for pregnancy discrimination (and questioned whether it was real or mere coincidence). Here, Cynthia, a 6-year employee filed suit, saying that she told her boss, the COO, of her pregnancy, to which he responded, “That’s what I figured” and “Don’t get too excited. Most women miscarry with their first child”, accompanied by him not speaking to her any more and avoiding her in the office. Her suit also says that she was fired only 11 days later despite having no performance issues and was replaced by a non-pregnant employee. Worse yet, the suit alleges that she miscarried 11 days after being fired. Cantor Fitzgerald told her the reason for discharge was that her position was eliminated. I guess we all need to stay tuned to see how this turns out.

TAKEAWAY: See a trend here? If you intend to discipline (or discharge) an employee in a protected class, make sure you can prove that the reason for the action has nothing to do with the protected characteristic and everything to do with performance (or other business necessity).

The post on Friday 5/22/15 was about simple math: a request for a mat + discharge after a complaint = $27,500 settlement for discrimination & retaliation. Who had to do this math? A hair salon in Atlanta. An employee had scoliosis and asked for a mat to stand on while working. The employer refused and she complained about discrimination. The employer then fired her. The employer did not engage in the ADA interactive accommodation process; likewise, the employer took adverse action when the employee complained about her treatment. Ugh.

TAKEAWAY: Remember your obligations as an employer under the ADA – to engage in the interactive accommodation process and take no adverse action against the employee for taking advantage of his/her rights under the law.

Finally, in the post yesterday 5/23/15, we talked about nooses in the workplace: investigate and act immediately. You read it right, nooses. And this case is local, from right here in York. 2 African-American water treatment facility employees complained that outside contractor had dirtied the common shower area. The next day, they found what appeared to be a rope noose in the shower area. They complained. A few days later, they found another rope shaped like a noose in another building and complained. The police were called but nobody could find out who hung the ropes or whether or not they were supposed to be nooses. The employees sued the City (the employer) for hostile work environment; they lost because it had done what it should have when it received the complaints.

TAKEAWAY: Take all employee complaints seriously. Document the complaint, investigate it, and make a determination as to any action to be taken as a result. Do not retaliation against the employee for making the complaint.

References (3)

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