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Monday
May042015

ICYMI: Our Social Media Posts This Week -- May 3 - 9, 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 5/3/15 we posted about remembering that FMLA leave doesn’t count when firing for attendance reasons. That’s right. You cannot include allowed FMLA leave for evaluation purposes or when counting absences. In this case, Jamie transferred within departments at the employer, the University of Pittsburgh Medical Center. She was eligible for FMLA leave at the time of transfer. She shortly accrued at least 6 tardies and 3 absences (including one for which she submitted a false doctor’s note and another where she tried too late for a shift change, arrived late and left early). The following month, Jamie called off to take her mother to the ER. The next day she called the employer to ask for FMLA leave. Two days later, the employer terminated her based on the absences. Jamie brought suit, alleging FMLA violation. The matter went to trial where the employer showed the jury evidence of the absences and that it made the decision to terminate prior to the date on which she took her mother to the ER (thus not taking into account the FMLA leave request). The jury believed the employer.

TAKEAWAY: If done right, an employer can still discipline or discharge an employee for poor performance even if the employee is on or has requested FMLA leave.

The post on Monday 5/4/15 was about retaliation: you can get mad at an employee, but don’t try to get even! It’s tempting, I know, but just don’t do it. The post talked about a case out of Massachusetts where the employee had a hearing impairment but could normally hear well with hearing aids. He had previously worked for the employer, S&H Construction, Inc. and was rehired in 2003. He did not report grapevine comments about another employee making disparaging remarks about him. However, at some point, S&H’s owners learned some supervisors did not want him on their jobs – it was not related to his hearing impairment but was instead performance-related. In Fall 2005, the employee’s hearing aids stopped working and he could not afford a new one. He stopped going to company meetings but was not disciplined. He served as job supervisor on 2 jobs between January – April 2006 and worked on other jobs. He then took an unpaid leave for knee surgery and returned to work in June 2006, still with no working hearing aid. On one job after his return, the supervisor complained because he had to explain things to the employee several times and felt the employee had a bad attitude. On another job, the employee performed poorly and the customer complained. On yet another job, the employee was a co-supervisor; his fellow supervisor alleged that he was often not on the job, reading in his truck, and painted his truck in the homeowner’s driveway instead of working. The final straw from October 2006 is in the post. His employment was terminated. He filed an admin charge on the basis of his disability. So far, so good. Then S&H filed suit against him in state court to collect monies it had loaned him. Default judgment was entered for S&H. To collect, it took possession of a minivan the employee’s ex-wife was using for his 3 children. The ex rightfully panicked; she called one of S&H’s owners to try and resolve the situation. Again, so far, so good. But then the S&H owner told the employee’s ex that they would return the car to her if she got the employee to drop his admin charge. Oooh, bad employer. The employee then amended his admin charge to add retaliation. The admin agency ruled against the employee on his disability claim, but, no surprise, ruled in his favor on the retaliation charge. The reasoning is in the post. He was awarded $25,000 in emotional distress damages and S&H had to pay a $5,000 civil penalty and reimburse the employee’s attorneys’ fees.

TAKEAWAY: Even if the employee files charges or sues for what you believe to be no legal basis, don’t retaliate – you can win the underlying suit but still lose big on the retaliation claim.

In the post on Tuesday 5/5/15, we talked about an overbroad medical info requirement resulting in payment of $477,000 to 12 employees under a suit brought by the EEOC for disability discrimination. The EEOC sued for violation of the ADA when the employer required all of its truck drivers to notify the employer whenever they had contact with a medical professional, including routine matters. The court ordered the company to change its policy and obtain such medical information only when job-related. Earlier this year, the court ordered the employer to pay over $225,000 in back pay and interest, over $49K in compensatory damages, and over $202,000 in punitive damages.

TAKEAWAY: Medical inquiries have their place and reason, but must be job-related; remember that before asking for information.

The post on Wednesday 5/6/15 reminded us about 5 types of co-workers nobody wants to work with – and asked how many are in your workplace. Why is this important? Because you need to know how to recognize the types and deal with them, disciplining as necessary but applying your policies uniformly.

TAKEAWAY: Employees may fall into general categories or types, but make sure (legally) that the traits and actions they show are not caused by something that is a legally-protected characteristic or disability.

In the post on Thursday 5/7/15, we learned that severance payments are considered wages for federal income tax purposes. This is based on a US Supreme Court decision issued in 2014. The case came about when a company filed for bankruptcy protection and terminated thousands of employees. It offered various severance packages and reported payments under the packages as wages, withholding the employees’ share of federal taxes and paying its share. Subsequently, the company asserted that the severance payments should not have been taxable and requested a refund of the taxes paid. The IRS denied the request; the matter went through the courts until the Supreme Court decided in in favor of the IRS.

TAKEAWAY: Remember that severance payments are considered wages for federal tax purposes; severance agreement should include a provision that taxes will be deducted from any such payments.

The post on Friday 5/8/15 was about a “Male help wanted” sign and whether it was discriminatory. The business owner said he needed someone strong to lift heavy boxes and do other work. A female asked that the sign be replaced with one that was gender-neutral; she was asked to leave the store. Federal anti-discrimination law doesn’t apply as the store has fewer than the threshold 15 employees. That state’s (LA) anti-discrimination law also did not apply. The female hadn’t applied for a job and been denied employment, so she could not file a charge with the EEOC.

TAKEAWAY: Remember that there are thresholds for applicability of laws. However, just because a business CAN do something does not mean it SHOULD. The court of public opinion might tell it otherwise.

Finally, in the post yesterday 5/9/15, we talked about permissible discrimination in health benefits. Yes you can (in certain circumstances). The post talks about some of the health factors on which eligibility cannot be based (including health status and genetic information) and others which are allowable to use, including part-time versus full-time work status.

TAKEAWAY: Yes you can discriminate against certain employees relative to eligibility for health benefits, but only if done legally.

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