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ICYMI: Our Social Media Posts This Week -- May 24 - 30, 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 5/24/15 the post talked about how a handbook mistake can come back to bite the employer – even if the employee isn’t otherwise entitled to the benefit. Yes, you read that right. Here, an employee who was fired sued for FMLA violation. The employer tried to argue that the employee was not entitled to FMLA protection because it did not have the threshold number of employees, but since it did not say that in its Handbook, the court said it may have waived that argument/defense. Oops.

TAKEAWAY: What you don’t say in your Handbook can be as important as what you do say – have an employment law attorney review your Handbook to ensure you are not obligating yourself to something you might not legally have to.

The post on Monday 5/25/15, Memorial Day, was a sincere thank you and remembrance of those who served and sacrificed for our freedoms.

TAKEAWAY: If you haven’t recently, take time out to thank a veteran for his or her service.

In the post on Tuesday 5/26/15, we questioned whether an employer can ask to see an employee’s social media account? The answer is “it depends”. On the circumstances. Why the employer is asking. What it really wants to see. And so many more things. The post talked about access for 3 main reasons: safety, cultural fit, and adherence to workplace rules. The post gives more details in each of these areas. It also talks about some of the legal downsides, including discovering information the employer has no need to know.

TAKEAWAY: There might be occasions where an employer wants or needs to access an employee’s social media account(s); the employer should consult with an employment law attorney to ensure legal compliance prior to taking any action in this ever-changing area.

The post on Wednesday 5/27/15 told us about a Papa John’s franchise hit with a huge wage judgment: $2M. The New York franchisee allegedly underpaid employees by rounding down hours worked and making delivery persons do other types of work that wouldn’t let them earn tips. Each alleged action resulted in employees being paid less than NY minimum wage.

TAKEAWAY: Pay your employees appropriately – based on (non)exempt classification and minimum wage requirements – or you will get caught and have to pay a lot more.

In the post on Thursday 5/28/15, we learned about employment at-will and what it really means. This is super important in PA, a state where employment is always at will unless varied by written agreement of the parties. So what does it mean? It means that the employee can quit at any time, with or without notice or reason, and that the employer can discharge the employee at any time, with or without notice or reason. The exception for discharge is if it is for an illegal reason, such as being based on a legally-protected characteristic, some of which are listed in the post. It is the exceptions that seem to generate a lot of charges or suits.

TAKEAWAY: Whether employer or employee, the employment relationship remains at will unless there is a written agreement to the contrary; however, remember that courtesy in ending an employment relationship almost always benefits both parties and tends to lessen the possibility of any charges or suit being filed.

The post on Friday 5/29/15 was about a pawn shop settling claims of sexual, ethnic and racial harassment for $300K. This case (again) arose in NY. The allegations included that the former owner referred to his mostly female Hispanic workforce as “Seapod bitches” and other employees as “whipping slaves”. But he was an equal opportunity offender; he allegedly called African-American customers “black bastards” and said that the store smelled because “the monkeys are coming in.” More in the post. Is it any wonder the other owners severed ties and agreed to the settlement?

TAKEAWAY: As an owner, you are responsible not only for your employees’ words and deeds but your own too – don’t let them run you legally amok.

Finally, in the post yesterday 5/30/15, we talked about if you’re HIV positive, you’re fired! Well, not so quick … A national manufacturer and producer settled a disability discrimination suit with the EEOC and agreed to pay $125,000. The suit alleged that the employer fired an employee after finding out he was HIV-positive. He worked as a machine operator in the packaging department and had neither performance nor safety problems, but the employer admitted it fired him because of his HIV-positive status. Of course, this is a violation of the ADA.

TAKEAWAY: Don’t make hiring, discipline or firing decisions based on a legally-protected characteristic; make such decisions based on the ability of the person to perform the job.

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