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Monday
Jun082015

ICYMI: Our Social Media Posts This Week -- Jun. 14 - 20, 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 6/14/15 we talked about nonmonetary forms of employee recognition. Yes, other than money. Employees appreciate money, but often are just as happy with other things that recognize their contributions. A few examples are flexible work hours, telecommuting, and tuition reimbursement. Other ideas are in the post. Does your company use any of these already?

TAKEAWAY: A smart employer will recognize employees who perform well – not just by paying them what is due, but by some other method as well. This serves to keep up employee morale and spur on the employee to even higher heights.

The post on Monday 6/15/15 was about whether or not it was really pretextual discrimination. That means something that would otherwise be legal except that it was a pretext for something that was NOT legal. Some examples are dress or grooming codes standing in for race or religious discrimination and educational requirements standing in for disability discrimination. Read more about these and more in the post.

TAKEAWAY: Employers must be careful not to try to go in the back door just because the front door is locked – take lawful action at all times.

In the post on Tuesday 6/16/15, we questioned the protections of transgender employees in Pennsylvania. We learn that Central Pennsylvania actually fares better in this regard than does the state as a whole (which, in the one survey mentioned in the post, comes in 26th out of 50 states in transgender protection). State employees are protected from employment discrimination based on gender identity, but not private-sector employees on a state-wide basis. Some localities have laws protecting transgender employees, including Harrisburg, Lancaster, State College and York.

TAKEAWAY: In most instances, a transgender employee in Pennsylvania has no protection from discrimination because of gender identity or trans process status. However, that doesn’t mean an employer should discriminate just because it legally can.

The post on Wednesday 6/17/15 asked whether your company’s Handbook is current and legally compliant? If you don’t know the answer right off the bat, then you definitely need to consult with an employment law attorney. Some of the things that it should cover include pregnancy accommodation and meeting recent NLRB rulings. More detail is in the post.

TAKEAWAY: You don’t have to have a Handbook, but if you do, make sure it complies with all legal requirements – fulfilling employees’ rights but not putting more of an obligation on the employer than is required.

The post on Thursday 6/18/15 confirmed that lying on a job application can limit damages in a race discrimination suit. We all hope that applicants are honest, but when they are not, what if any effect does that have in a later lawsuit? Here, Fort, an African-American, worked as a material handler and was promoted to yard driver. He had an accident and was suspended pending internal investigation. The general manager recommended discharge; upper management concurred and the action was taken. Fort sued, alleging race discrimination. The company asked that the suit be dismissed or, alternatively, that his damages be limited by misrepresentations on his employment application discovered during the pendency of the case. The court first analyzed the dismissal request (which you can read about in the post) and decided the case could go forward. It then looked at the damage limitation issue. Here, the employer argued that Fort’s damage entitlement should be cut off on the date (during the case) that it found out he’d been untruthful on his application since that would have been grounds for termination. The court agreed.

TAKEAWAY: If an employer gives a reason for discharge, make sure it is the same one given each time asked about it; also, even if it later comes to light that an employee was untruthful about something, that will not completely absolve the employer of liability, but only serve to limit it.

The post on Friday 6/19/15 was about whether Pennsylvania employees are bound by contractual commitments or not. As relevant and noted in the post, enforceable agreements must (1) relate to a contract for employment, (2) be supported by adequate consideration, and (3) be reasonably limited in both time and territory. The timing of execution of an agreement can affect one or more of these factors. Courts especially do not like non-competition agreements or provisions and will look carefully to see if the factors are met. The post gives an overview of what courts may look for and how that may conflict with a law that is on the books.

TAKEAWAY:  If you intend to use any agreement or contract with employees, make sure an employment law attorney reviews it first to advise as to its enforceability and whether or not it will do what you want it to.

Finally, in the post yesterday 6/20/15, we talked about ExxonMobil employees getting $5.5M in back wages and damages. For what? Failure to be paid minimum wage or overtime pay when working at Shell, Exxon, BP and other stations in New Jersey. DOL’s Wage & Hour Division conducted an investigation and found “widespread violations” of the FLSA (which currently requires a minimum wage of $7.25 per hour). Here, the money will be split among over 1100 employees.

TAKEAWAY: Make sure you properly classify and pay your workers – if you don’t it will be a lot more expensive after the fact when damages and interest are added on top of the wages.

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