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ICYMI: Our Social Media Posts This Week -- Jun. 7 - 13, 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 6/7/15 the post talked about the NLRB targeting employer policies (yes, even non-union workplaces). So what is the NLRB concerned with these days? Handbooks (still), dress codes, email and social media that chill employees’ rights under the NLRA. For example, the Board struck down a handbook policy requiring “courteous” communications and restrictions on sharing confidential company information because it might cover heated discussions over employee pay and benefits. The post mentions the other areas too, including social media, use of the employer’s email system, and joint employers.

TAKEAWAY: We can’t say it enough – even if there is no union at your company, you are still subject to some portions of the National Labor Relations Act so make sure you are familiar with and compliant with your obligations and employees’ rights.

The post on Monday 6/8/15 was about that darn “regarded as” prong under the ADA. Yep, it is still alive and kicking (employer’s behinds). In the spotlighted case, an employer allegedly offered Anthony a position but then rescinded the offer when if found out he took prescription seizure medication (thus regarding him as disabled and incapable of doing the job). The EEOC sued and the employer settled, agreeing to pay $30,000 (and other relief).

TAKEAWAY: We are all human and come with preconceived ideas and biases, but when it relates to a person’s (in)ability to perform a job, it could rise to the level of violating the “regarded as” prong under the ADA – be careful.

In the post on Tuesday 6/9/15, we questioned whether it is lawful to withdraw an offer of employment the day after finding out about a birth? The EEOC thinks so and brought suit against Savi Technology, Inc. for pregnancy discrimination. However, rather than fight the suit, Savi chose to settle with the EEOC, agreeing to pay $20,000 (and other relief). In its response issued after the EEOC announced the settlement to the media, Savi said, in part, that the settlement includes Savi’s denial of discrimination and that its withdrawal of the offer had nothing to do with discrimination but everything to do with not being able to meet the applicant’ demands in a counteroffer. More of Savi’s response is in the post.

TAKEAWAY: They are called nuisance settlements for a reason – they may be with or without factual substantiation, but they take both human and financial resources to deal with them, and so it is often better to settle than proceed with the matter.

The post on Wednesday 6/10/15 asked if it’s good enough for SecState, is it good enough for your company? Yes, we are talking about the use of private email accounts for business (whether US Government or your company). Former Secretary of State Clinton’s alleged reason, as noted in the post, is that she didn’t want to carry 2 devices. Personally, I find this disingenuous since devices can be set up to work with numerous email accounts (thus not requiring more than 1 device). But this is just part of the BYOD and “working remotely” issues faced by every company out there and there is not just one right answer, but perhaps just the answer (at least for now) for your company.

TAKEAWAY: Companies that allow employees to use their own devices (or even provide devices) for employees to access email other than on a PC in the office must have in place and evenly enforce a policy detailing what, how, and when the device can be used and what will happen if the employee strays from the policy.

The post on Thursday 6/11/15 described a rare finding of general contractor and not employee status. See, this creature really does exist! Here, a subcontractor hired its own subs, including UCI. The general contractor (GC) gave work orders to UCI which then passed them around to its employee, Walter. Walter, an African-American, got into a fight with another sub’s African-American employee. The GC banned both of them from the job site. This effectively ended Walter’s employment since UCI had no other work for him. He sued the GC for race discrimination. Some salacious allegations are in the post, but in court it came down to whether or not the GC (in addition to UCI) was Walter’s employer. The court here found that Walter was NOT an employee of the GC.

TAKEAWAY: Often a company blurs the lines between contractor and employees, thus finding itself at the short end of the wage stick, but it is possible to have a valid, legal contractor relationship.

The post on Friday 6/12/15 was a reminder that corporate form DOES matter. For various reasons, but this post talks about tax ramifications based on some of the most common types of business form.

TAKEAWAY: Talk to an attorney well-versed in corporate law prior to going into business – it will help you decide what business form is appropriate to protect you and your assets while allowing your business to move forward.

Finally, in the post yesterday 6/13/15, we talked about a $110M gender discrimination suit that was filed against Novartis. Yes, the international drug company. The allegations are that it “routinely denied female employees equal pay and promotion opportunities”. This suit comes only 5 years after the same company suffered a 9-figure jury verdict (over $250M) over similar allegations. This suit makes claims of a “boy’s club atmosphere” that is hostile to females and prohibits them from ascending into positions of leadership. The employer has denied the allegations. I guess we all have to stay tuned to see how this plays out.

TAKEAWAY: Big numbers aside, this is unfortunate; all legal things being equal, if employers would just pay both sexes the same for doing the job, these issues would not arise.

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