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Monday
Sep142015

ICYMI: Our Social Media Posts This Week – Sept. 13 - 19, 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 on Sunday 9/13/15 we learned the EEOC’s take on harassment – and how not to become a defendant. After a $1.5M verdict against a NC company, it’s time to look at how you can avoid the same thing. 3 female employees alleged that their male supervisor sexually harassed them and then retaliated when they objected to the harassment. The suit also included charges by a male supervisor who opposed the other supervisor’s harassing actions and supported the female employees. The post includes some of the employer’s mistakes, including not giving temporary employees a handbook (which contained the company’s sexual harassment policy!) and having a supervisor who thought he was invincible (hence his statements that “he wasn’t going to get in trouble, that he ran the area, and that anybody who went to Luanne on him would be fired.” More mistakes are in the post.

TAKEAWAY: Train your employees not to harass or discriminate against other employees (whether subordinate or otherwise) and make sure they act the way they are trained.

The post on Monday 9/14/15 noted that the timing of a discharge can create a factual question re associational discrimination. First, remember that it is not only illegal to discriminate against someone due to their own disability/medical condition, but also due to the disability or medical condition of anyone with whom they associate. The latter category is now seeing more lawsuits. Here, Terry was discharged in March 2012 after 22 years. He filed suit for associational discrimination under the ADA and retaliation under the FMLA based on his wife being diagnosed with cancer and its effect on the employer’s partially self-funded health insurance. More facts are in the post, including the employer’s asserted defenses of poor performance (despite a 2011 review noting improvement from 2010 and having nothing negative) and workforce reduction (except that Terry was the only one terminated at that time). The Court said that the timing was fishy, creating a question of fact, so the case was sent on to a jury trial.

TAKEAWAY: Before taking adverse action, make sure there is a legitimate business reason for doing so – otherwise you might find yourself and your company on the wrong side of the law.

In the post on Tuesday 9/15/15, we talked about avoiding job applicants who smoke and whether snuffing out smokers is discriminatory. In all but 18 states, the answer is no. PA is one of the states that has no law prohibiting discrimination against tobacco users. That means employers can refuse to hire applicants who use tobacco. Further, hiring non-smokers helps the company’s overall wellness which can be important for insurance purposes.

TAKEAWAY: Not everything an applicant (or employee) does is legally protected; smoking is but one example where adverse action can be taken legally.

The post on Wednesday 9/16/15 was about an EEOC question: is your corporate wellness program really voluntary? Hmmm. Earlier this year the EEOC issued proposed guidelines regarding wellness programs under the ADA – how employers can use incentives to encourage participation in programs that might include disability-related questions or medical exams. The first thing the EEOC proposed is that any program penalizing employees (through discipline, termination or cancellation of health insurance) will be considered involuntary and illegal under the ADA. If, however, the total allowable incentive is less than 30% of the total cost of coverage for the employee, the program will be considered voluntary. Other EEOC guidelines are in the post.

TAKEAWAY: It’s great to encourage employees to act in ways that will improve their health (and the company’s bottom line for insurance costs), but it must be done legally, meaning voluntarily.

The post on Thursday 9/17/15 was about religious dress and grooming in the workplace – still a big (legal) deal. Can your company require certain dress or grooming from its employees, especially for image, branding and morale? Absolutely. BUT you cannot interfere with an employee’s sincerely-held religious beliefs, so you may need to make exceptions as long as there are no safety or other legal concerns. The post talks a bit about an employer’s responsibilities to accommodate religious beliefs and when accommodation might not be required. An employment law attorney should be able to help you with this type of issue.

TAKEAWAY: Whether your company is small or large, you need to know the law relative to dress and grooming when it comes to employees’ religious beliefs.

On Friday 9/18/15, the post reminded you not to just dismiss a doctor’s clearance or you may be on the short end of a pregnancy discrimination suit. This employer found out the hard way and is paying $17,500. The EEOC filed suit, alleging the employer fired Maria a mere 9 days after she told them she was pregnant. Even though she had a doctor’s clearance to continue working – without restrictions – the employer, saying it was for her safety and company liability, discharged her. The settlement includes the monetary payment and other items as in the post.

TAKEAWAY: As we’ve said many times before, and probably will many times in the future, don’t take adverse action on the assumption that someone cannot perform his or her job – just maintain the status quo until you see it happening or have a doctor’s note with restrictions.

Finally, in the post yesterday 9/19/15, we talked about a university paying $3M for alleged ethnic discrimination and retaliation. The initial suit was filed over 10 years ago and just now got to this point (after a state appellate court ruling). The suit claimed that the school increased the Japanese-American employee’s workload after he complained about discrimination.

TAKEAWAY: If an employee complains (about discrimination or anything else), don’t take adverse action or otherwise retaliate against him or her; rather, investigate and take appropriate (legal) action as warranted under the circumstances.

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