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ICYMI: Our Social Media Posts This Week -- May 31 – Jun. 6, 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 5/31/15 we talked about an isolated deduction not defeating the salary basis for exempt salaried employees. Whew! This is pretty important when the employer wants to preserve that exempt status. Here, the employee managed a store; she was expected to work a minimum of 50 hours per week and at least 5 days per week, for which she was paid a salary of $625 and classified as exempt. One week, she worked fewer than 50 hours and received a paycheck for less than the salaried amount. The court found the employer did not make improper deductions on a regular basis, such that it did not forfeit its ability to treat her as exempt. To bolster its argument, the court noted that while the employee worked fewer than 50 hours on 13 occasions, this was the only time there was a pay deduction. Also, the handbook prohibited improper deductions and provided for reimbursement; this supported the employer’s window-of-correction defense which the court help applied to deductions that were inadvertent OR isolated.

TAKEAWAY: Mistakes happen; employers should own up to them, correct them, and move on without destroying the exempt pay basis of employees.

The post on Monday 6/1/15 was about ruff days at the office – service animals under the ADA. So what truly qualifies as a service animal? A dog or miniature horse individually trained to perform tasks which assist a person with a disability. The law, and the post, give examples of the tasks that can be performed. Note that the ADA specifically excludes animals present for emotional support. Some courts have held that a business need not allow in a service animal if it is a health or safety risk to other patrons or is disruptive to the business itself. In the employment context, courts have looked at requests to bring service animals into the workplace as requests for accommodation – this opens a new can of worms because that part of the law does not automatically exclude support or therapy animals nor is it limited to dogs or miniature horses. The post gives but one example of how a court analyzed a reasonable accommodation request.

TAKEAWAY: The response to the request to admit/bring along a service animal will depend on the applicable section of law, the type of animal, the animal’s purpose, and the possible effect on others or the business itself. Consult an attorney to be sure.

In the post on Tuesday 6/2/15, we noted that your policy can treat probationary employees differently, but the law may not. It is common for an employer to reserve the right to terminate employment at any time during a probationary period. That is fine, but employers must remember that they are not insulated from the fact that the termination must still be legal. The employer in the post learned that the hard (and expensive) way. The employee there was not eligible for FMLA leave, but was an eligible employee under the ADA, hence he was entitled to reasonable accommodation for his condition regardless of being a probationary employee.

TAKEAWAY: You do need to enforce your policies, but not to the extent they conflict with applicable law. Make sure you know when the law requires a variance from the policy.

The post on Wednesday 6/3/15 talked about a company’s shady-looking RIF leading to a $145K settlement. Let’s start out by saying this had to do with firing a disabled employee while he was out on medical leave. Got your attention? It can be done, but carefully. Oh so carefully. Here, the 3-year employee requested and received approval for 12 weeks of FMLA leave as a reasonable accommodation under the ADA. But during the leave, he was terminated; the employer said it was part of a “reduction in force.” That would’ve been acceptable if it were true – but as you can guess, it wasn’t.  No other employees were RIF’ed nor were there department- or facility-wide RIFs then either. All that invited a suit by the EEOC which ended up being settled.

TAKEAWAY: As we’ve noted before, if you are going to assert a reason for an (in)action, you better make sure you can provide proof or support for that reason if called to the mat on it.

In the post on Thursday 6/4/15, we talked about retaliation and what it means for you. Despite everything you hear or see in the news, the #1 claim with the EEOC is for retaliation. Why? Partly because they are easier to prove than the underlying claims of discrimination. The EEOC is the agency with which charges of retaliation are filed. The middle of the post gives a good basic formula for determining if retaliation applies. The post also gives some examples of retaliation.

TAKEAWAY: Even if you are sure, and even if it is proven, that there is no basis for an employee’s claim of discrimination, do not take adverse action against the employee for bringing or filing that claim. (Yes it’s hard, but just don’t do it.)

The post on Friday 6/5/15 was a recap of Hollywood intern cases and the FLSA. Yep, it’s that time of the year again and you need to make sure to do it right if you bring on interns. Courts are still determining whether someone was an intern or not and, more recently, if the Department of Labor’s 6-factor test on the requirement to pay compensation is out of date. Those factors are listed in the post. If they are not met, the employer runs the risk of liability for not (properly) paying the intern as an employee.

TAKEAWAY: The best way to proceed relative to interns is to make sure the duties to be performed by the intern match educational metrics / goals and that the internship as a whole is for the benefit of the intern and not the company.

Finally, in the post yesterday 6/6/15, we talked about how to analyze Equal Pay Act claims. I know – you’ve forgotten about this law. But it still lurks large given the continuing pay disparity between men and women. Most claims are filed under Title VII, alleging discrimination on the basis of sex, but the EPA is still viable and a federal court recently issued a ruling under that statute in a claim brought by a professor against her university employer. In looking at the facts before it, and noting that inconsistencies in the employer’s asserted reasons for the pay disparity, the court decided to send the case to a jury.

TAKEAWAY: The EPA has only limited exceptions that permit a disparity in pay by gender for persons doing essentially the same job. Make sure your situation falls under one of those exceptions before paying one person less than the other; otherwise, you may end up paying a lot more than you planned.

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