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Monday
Aug102015

ICYMI: Our Social Media Posts This Week -- Aug. 9 - 15, 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 8/9/15 the post questioned whether the ADA means that you have to let alcoholics drive trucks? It’s not a simple question and decision includes whether the driver has a “current clinical diagnosis of alcoholism” and whether there is a blanket policy or individual determinations are being made by the employer. One court said that in the former situation (current alcoholic diagnosis), the ADA does not apply. Another said that a blanket policy (never permitting those self-reporting alcohol abuse to return to driving) violated the ADA since there was no individualized determination. More details are in the post.

TAKEAWAY: While alcoholism itself is not something that entitles one to ADA protection, the facts of the situation may still bring it within the ambit of the ADA. Know what rights and obligations the employer and employee each have in a specific situation.

The post on Monday 8/10/15 asked what’s the law on paying for travel time? This normally only comes up when dealing with non-exempt employees. Ordinarily, the employee is paid for time travelling to and from his work location unless s/he usually works at a fixed location and is given a one-time assignment elsewhere. Note that travel from job site to job site counts as compensable hours worked; also, travel as part of the employee’s job during normal work hours is compensable. Likewise, overnight travel is compensable during work hours on both regular work days and non-work days. The post gives an example of how this works.

TAKEAWAY: Just because an employee is not on the employer’s premises does not mean that what s/he is doing is not compensable. Know the law on when travel is compensable (before you get caught for not properly paying the employee).

The post on Tuesday 8/11/15 provided 9 pearls of wisdom from Dr. Seuss. Yes, really. So what are they? (1) ‘I meant what I said, and I said what I meant.” Does this really need further clarification? (2) “A person’s a person no matter how small.” Treat everyone the same, no matter their position. (3) “You’ll miss the best things if you keep your eyes shut.” As an employer, know what your employees are (or are not) doing and take action as required (whether it be commending or disciplining them). (4) “When a fox is in the bottle where the tweetle beetles battle with their paddles in a puddle on a noodle-eating poodle, THIS is what they call ….”  Don’t talk or write like this; be clear and specific so that both you and the employees know what is expected. Other tidbits are in the post.

TAKEAWAY: Yes there are things that we can learn from comics and humorous writings, even those intended for children. Just apply them correctly to see how they fit.

The post on Wednesday 8/12/15 was about a gender discrimination suit that settled for $400,000. That amount is to be split among 5 women who settled their 3-year old lawsuit. The women filed charges with the EEOC, claiming they were denied jobs on drilling rigs despite being as qualified as men; the EEOC ended up filing suit on their behalf. The suit includes allegations that employees said that having a woman on the rig would be distracting and that a rig manager said “he would not hire [her] because she was ‘too pretty’ and then they ‘couldn’t get anything done out here’”. The company denied liability but agreed to the settlement. More details about the individual women, their specific factual allegations and their split of the settlement are in the post.

TAKEAWAY: If gender has nothing to do with job performance, then don’t take it into consideration in hiring, discipline or firing. Period.

The post on Thursday 8/13/15 reaffirmed that “Me Too” race discrimination is insufficient to carry a hostile environment case. Here, 24 African-American (current and former) employees sued Austal, for race discrimination at its shipyard in AL. The allegations included vulgar racial graffiti in the bathroom, nooses, displays of the Confederate flag, and racial slurs.  More details about the allegations (which seem unbelievable but these things still happen in this day and age) are in the post. The trial court dismissed the case as to 13 plaintiffs, saying their work environment was not objectively hostile. On appeal, the court looked at those and jury verdicts against 2 other employees; a key question across the board was how frequent and severe was each employee’s exposure to racial misconduct. The court reaffirmed that each employee must prove that the work environment was both objectively and subjectively hostile as to him/her since they worked in different departments for different supervisors at different times and that proof does not include other employees’ experiences of harassment of which the complaining employee was unaware (i.e., saying “me too” doesn’t always work in court). The post contains more details about the court’s analysis and who has to prove what in court and applies the alleged facts to the law.

TAKEAWAY: Employees must have sufficient evidence that they subjectively and objectively experienced a hostile work environment to have a viable claim; just because one employee experienced something illegal does not mean another employee has a claim too.

The post on Friday 8/14/15 reminded us that employers don’t always know what’s best for their employees. An example is in the post. Timothy was a laborer installing conveyor belts. He had a heart attack but was later released to return to work with no restrictions. The employer only let him return for 2 days, thinking Timothy’s job was harmful to his health, and then terminated his employment. The EEOC ended up bringing suit under the ADA; the company denied the allegations. The suit was resolved by the company paying $50,000.

TAKEAWAY: Don’t make decisions for employees using facts you assume but don’t really have in hand, even if you mean well. It can cost you real money in the end.

Finally, the post yesterday 8/15/15 was about a court ruling that a lawyer driving to work wasn’t working. Huh? If the facts are changed just a bit, the outcome could be drastically different. So what happened? Christopher, a law firm partner, was in an auto accident; the other driver sued for $1M. Christopher’s insurance coverage was $100,000, so he tried to ensure that the law firm’s insurance applied and would cover the balance. The question was whether he was using the vehicle for firm business or personal business at the time of the accident. Christopher made several arguments, including that since he also works from a home office, he was travelling between work locations, not commuting, and that he normally thought about work-related issues during his drive to work. The court did not buy any of his arguments. The post has more details on the court’s reasoning (which is interesting).

TAKEAWAY: While this was a law firm employer, the facts could apply to any employer and a determination of whether the employee was providing services in the nature of work, meaning the employer’s vehicle insurance comes into play. Keep this in mind when drafting policies for your employees.

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