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ICYMI: Our Social Media Posts this Week -- Aug. 16 - 22, 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.

In the post Sunday 8/16/15 we mentioned an NLRB update: Let's Talk About Wages - Or Not? Once again we remind all readers that certain provisions of the National Labor Relations Act apply to ALL employers, not just those which are unionized. Here, employees at a Chipotle restaurant were protesting their wages; the company said they violated a rule against talking about wages. A local union filed a charge with the NLRB and the judge agreed with them (that the employees ahve the absolute right to protected concerted activity). More details on this case and some other cases are in the post.

TAKEAWAY: Employees have a legal right to talk about their wages. Period.

The post on Monday 8/17/15 was about a sudden find of performance issues after deployment is announced being a possible violation of USERRA. This could apply to other laws too. Here, the company used complaints about the employee and performance that coincidentally surfaced after 4 years of positive reviews; the court didn’t buy it and denied the employer’s motion for summary judgment (meaning the case continues toward trial if not earlier settled). So what did the court look at relative to discrimination under USERRA? Proximity between the military activity and the adverse employment action; inconsistencies between the employer’s proffered reason and its other actions; the employer’s express hostility toward the military activity; and disparate treatment of the employee when compared to other employees with similar work records or offenses. More details about the background and the court’s analysis of those factors are in the post. Since the court found that the employer’s proffered legitimate reason AND the illegal basis could both have been the cause of termination, the case goes on.

TAKEAWAY: Be careful of when you take action: it may belie your asserted motives and be used against you.

In the post on Tuesday 8/18/15, we noted that a broad English-only rule can now subject even a non-union employer to liability under the NLRA (in addition to Title VII absent business necessity). This has been a long time coming; The EEOC has been against adoption of English-only rules as constituting race- or national origin discrimination if there if no business necessity. Now such a rule has been found to violate the NLRA relative to employees’ rights to concerted activity (because it could be construed as prohibiting the discussion of terms and conditions of work at any time in their native language).

TAKEAWAY: As with all policies, make sure they are founded in business necessity, are reasonable, and do not violate any law.

The post on Wednesday 8/19/15 gave us 3 real-world examples of pregnancy issues in the workplace. The examples dealt with (1) leave given to female employees to bond with a recently-born child and whether male employees must be treated similarly, (2) whether a newly-hired and pregnant employee is entitled to approval of her request for leave due to pregnancy complications from an employer that doesn’t grant medical leave to employees until after their 90-day probation period; and (3) whether a policy granting up to 10 weeks’ pregnancy-related medical leave for pregnancy and childbirth (as part of a short-term disability plan) and 6 weeks’ unpaid parental/bonding leave to all employees is discriminatory. The answers are in the post.

TAKEAWAY: When dealing with pregnancy and related issues, look to the PDA, FMLA, ADA and Title VII, and be careful when distinguishing pregnancy and maternity leave from other medical leaves.

The post on Thursday 8/20/15 talked about applications for other jobs killing an employee’s stress-related reasonable accommodation claim. Certain actions taken by an employee while on FMLA leave might work against requests for reasonable accommodation under the ADA in the future. How does that work, you ask? Here, the employee was a medical benefits administrator. She took 4 weeks’ FMLA leave. About a year later, she was counseled and disciplined for poor performance; subsequently, she was hospitalized relative to the same medical condition. After her return to work, she requested additional FMLA leave. Her doctor suggested 8 weeks’ leave and then part-time leave. Only the former was approved. On the last day of the leave, the doctor asked for a one-month extension. The employer noted that her FMLA leave expired about a week before that and that if she did not return, she would be deemed to have quit. The employee neither returned nor contacted the employer, but filed an EEOC complaint alleging failure to reasonably accommodate by denial of the part-time leave. More on the background and decisive facts there is in the post.

TAKEAWAY: Employees should be careful – and employers should be on the lookout – for actions that might be helpful in one scenario but harmful to a request or claim in another.

The post on Friday 8/21/15 told us about a jury awarding a woman more than $13 million in a work discrimination case. Sandra was called “Big Girl”, suffered obscene gestures when her voice came over the radio, and was told she was “losing her mind” and “throwing fits” when she complained of harassment. Sandra alleged she suffered harassment and gender discrimination from male colleagues while she was a shipping supervisor making less than her male predecessor (despite arguably more experience than he had). (More details in the post.) Well who’s laughing now?!?! A federal jury in Pittsburgh recently found the company liable for discrimination, hostile work environment and retaliation, awarding her more than $13 million in damages and pay (of which about $12.5 million was punitive damages). Some jurors interviewed said they wanted to send the company a message – I think they did just that.

TAKEAWAY: If an employee complains, investigate and take appropriate action; if you ignore the complaint or make light of it, it could end up that your wallet is lighter.

Finally, the post yesterday 8/22/15 was about beaners, wetback and more and a driller settling a discrimination claim for $14.5 million. This was a week of large dollars changing hands in discrimination matters. Latino drillers on an oil rig were called “beaners” and “tacos” which led to fights and guns and ended in a settlement between the employer and EEOC. Allegations of nation-wide discrimination and harassment on the basis of race and national origin (including opening a portable toilet where a Hispanic worker was sitting and throwing cleaning fluid on him - UGH) were resolved via the settlement. See the post for more of what the workers experienced

TAKEAWAY: Do not condone harassment or discrimination of any type in the workplace and if it happens, take immediate action to stop it and take appropriate corrective action. Failure to do so can lead to liability for the employer.

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