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ICYMI: Our Social Media Posts This Week -- Sept. 27 – Oct. 3, 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.

The post on Sunday 9/27/15 told us the Supreme Court will decide when the limitations period begins to run for constructive discharge discrimination claims. Yep, that’s a mouthful! You all know that there is a deadline for the filing of charges of discrimination – here the Court will decide what that deadline is in circumstances when the employee alleges s/he had to quit. In the case before the Court, a postal worker alleged that he had to choose between forced retirement and a demotion & transfer to a different position. He quit and filed charges of race discrimination. The Service asked for dismissal on the grounds that the charge was not timely filed. The question was whether the time started to run from when he was given the choice or when he resigned. There is a split among federal courts on this issue.

TAKEAWAY: This case will have an impact on many situations involving constructive discharges, so keep an eye and ear out as this progresses.

In the post on Monday 9/28/15 we learned that a BigLaw firm got hit with an ADA suit. It happens to everyone. Here, a suit was filed against Pepper Hamilton alleging violation of the ADA (termination in retaliation for seeking reasonable accommodation for a disability).  The facts are in the post and make for interesting reading.

TAKEAWAY: It doesn’t’ matter who the employer is but it still must meet its obligations under the ADA (if the employee is entitled to that law’s protections).

In the post on Tuesday 9/29/15, we talked about when a general contractor is an employer of the sub’s workers (a variation of the employee versus contractor quagmire). The case at issue dealt with liability of one who is not the direct employer under Title VII. The general contractor (GC) hired a subcontractor which in turn hired another sub, UCI, for the project. UCI hired Walter as foreman. UCI had no relationship with the GC. UCI paid Walter’s salary and benefits and set his hours. UCI’s superintendent got instructions from the GC and relayed the instructions to Walter, but that happened only if the GC found the finished product unsatisfactory. However, the GC controlled premises access and required all subcontractors’ employees to attend safety training meetings. SO at one point Walter got into an altercation with another subcontractor’s employee. The GC’s superintendent required that Walter and the other employee be permanently removed from the project. Since UCI had no other work for Walter, that left him unemployed. He eventually filed suit, alleging removal form the site due to race (since an altercation on the site between white workers did not result in adverse action). The trial court said the GC was not Walter’s employer. He appealed. The appellate court then addressed what factors are to be considered in determining if a person or entity is an employer. Those factors, and the court’s application of the case facts to them, are in the post.

TAKEAWAY: Especially now, after the NLRB’s joint employer liability ruling, it is oh so important to know whether you might be considered an employer of those not on your payroll. Talk to an employment law attorney if you’re not sure.

The post on Wednesday 9/30/15 was about DOL and beware turning employees into owners. It’s great to think outside the box, but not always so great when the box contains the laws that an employer must follow. Details are in the post; here some employers tried to make employees into owners to avoid paying overtime, worker’s comp, and certain taxes; DOL, after a years-long investigation, shut down the practice and now the companies have to pay over $700,000 in back pay, taxes and damages. Another case ended with that employer being subject to a $600,000 judgment.

TAKEAWAY: Whether employer or employee, have your attorney review in advance any restructuring that changes the employment relationship.

The post on Thursday 10/1/15 was a sexual harassment case reminder for employers: trying to stop harassment is a protected activity. This stems from an employee telling a sexually-harassing supervisor to stop and a finding that was protected activity. Both the discharged female employees and a male employee who objected to their discharges filed suit; under a cat’s paw theory (if you don’t know what that is, contact me!) the employer was held liable.

TAKEAWAY: Not only should employers not allow sexual harassment or discrimination, they shouldn’t allow retaliation arising from someone trying to stop or report the underlying harassment/discrimination.

The post on Friday 10/2/15 was about a 19-year employee who dues for an FMLA violation. Brad alleged employment for over 19 years and needing extensive medical leave in 2014 for 2 separate instances needing hospitalization, surgery and recovery. Background facts are in the post; the case centers around Brad’s request and need for FMLA leave and whether or not he suffered adverse action as a result. The suit is pending.

TAKEAWAY: If an employee is eligible for FMLA leave, don’t retaliate against him/her for taking that leave; merely make him/her follow the letter of the law and move on.

Finally, the post yesterday 10/3/15 talked about when disabilities post a direct threat in the workplace under the ADA. Why do you care? Because the obligation to accommodate is not triggered if there is a direct threat to the health or safety of the employee or others in the workplace. Here, a federal court looked at what can constitute a direct threat. Michael was legally blind; when his original job was eliminated, he was offered a higher-paying warehouse job if he passed a physical. He did, but the doctor said he needed accommodation for his impaired vision. The employer determined it couldn’t reasonably accommodate and so rescinded the job offer. Michael then filed a charge of disability discrimination with the EEOC, which then sued the employer for violation of the ADA. The employer then came out with a direct threat defense based on his impaired vision and the job being in the warehouse. The court’s holding is in the post.

TAKEAWAY: The “direct threat” prong is still underused but that may change I the future, so employers need to be aware of it, how it works, and what they need to show to avoid liability using that defense.

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