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ICYMI: Our Social Media Posts This Week – Jan. 10-16, 2016

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 1/10/16 was about Macy’s and a cautionary tale on employee handbook provisions. As you (should) know, the NLRB has been very active and ALL EMPLOYERS must pay attention. This time, the decision went against some of Macy’s policies. Details are in the post and give insight into what policies will be found legal or not if questioned.

TAKEAWAY: Policies and handbooks are an important part of an employment relationship, but only if they are legal and uniformly enforced. Employers should consult an employment law attorney about the former and be vigilant as to the latter.

In the post on Monday 1/11/16, we dealt with FAQ about service animals and the ADA (which could impact your business). You’ve probably seen a dog or cat with a vest that has decals on it – that animal is probably a service animal. The animals (which are not limited to dogs and cats) provide support to the person for a wide variety of things. A big current issue seems to revolve around emotional support animal. See Question 3 in the post as to whether an animal providing this service qualifies as a service animal under the ADA. There are many other informative questions and answers in the post too.

TAKEAWAY: Before automatically allowing or not allowing an animal onto your business premises, make sure that it either is an ADA-qualified service animal (and allow it) or is not an ADA-qualified service animal (and then you can prevent it from entering.

In the post on Tuesday 1/12/16 we talked about an ADA decision that shows the need to accommodate an employee who doesn’t fit the … mold. Yes that word use was intentional. Resa was hired for a government job. Almost from the beginning she had physical symptoms, but only when at work. She was also pregnant at the time. She asked to be relocated and have the air quality tested; her request was denied. Resa then learned the building had mold and made the request again, this time with doctors’ notes. She again was denied. A lawsuit followed. What is important is that the court denied the employer’s motion to dismiss. Some of the findings are in the post, including that the employer did not fulfill its obligations under the ADA.

TAKEAWAY: Whenever an employee requests accommodation – and remember the magic word ADA does not need to be used – it should be taken seriously.

The post on Wednesday 1/13/16 reminded that gender transitions in the workplace require a transition of employment policies too. While 18 states and DC have laws barring discrimination against workers because of sexual orientation or gender identity, that leaves a majority of states which do not. Federal law may fill in some of the gap so employers must know who has what rights and obligations in certain circumstances. The post contains some tips for employers when dealing with employees in gender transition, including permitting the employee to dress with his/her gender identity as long as it complies with any applicable policy and having the employee be consistent in gender presentation during the transition when in a continuing relationship with a client. More tips are in the post.

TAKEAWAY: Employees may evenly enforce policies – but that may require reworking them given the changing laws and interpretations thereof relative to employees’ gender identity and sexual orientation.

In the post on Thursday 1/14/16 we talked about overtime pay for checking email – and the fact that DOL is cracking down on this. Remember that any time an employee is doing work for you, the employer, s/he is entitled to pay. This is often an issue for non-exempt employees when they perform services when out of the office by using email on laptops, smartphones or tablets. DOL is working on new overtime regs that will deal with this issue. In the meantime, as the post notes, one result of the new minimum weekly salary floor in the proposed overtime regs s that exempt employees may be moved into hourly positions – this will make it easier on the employer by not having to meet a higher salary for exemption, but it will also mean that every minutes worked literally counts.

TAKEAWAY: Now more than ever employers must pay attention to classification of employees as exempt or non-exempt, whether by salary amount or job duties, and pay overtime to non-exempt employees when legally required.

The post on Friday 1/15/16 told us that Abercrombie & Fitch dropped its appeal in a Muslim Woman’s employment discrimination case. Yes, that same Abercrombie that was the subject of a recent US Supreme Court decision. The female employee wore a head scarf to her interview. She was not hired as a result (with Abercrombie claiming it conflicted with the dress code). She sued; the trial court found in her favor but, upon appeal that decision was reversed. In June 2015, the US Supreme Court decided that she needed no specific request to wear the scarf since she had it on during the interview (and reversed the appellate court, keeping the case alive). Thereafter, Abercrombie asked the appellate court to dismiss the case, alleging the EEOC did not object to dismissal. More details are in the post (of course).

TAKEAWAY: Even if the case is dismissed, it still made headlines at the Supreme Court and gave us guidelines as to what an applicant or employee must (or need not) do to have Title VII protection.

Finally, the post yesterday 1/16/16 was about when and where service animals are allowed (bringing us full circle). In brief, those that qualify as service animals under the ADA (for more on that see the post from 1/11/16) are NOT allowed in shopping carts (!) but ARE allowed in restaurants and bars but must remain on the floor, not seated at the table. More clarifications are in the post.

TAKEAWAY: The threshold question is whether or not the animal qualifies as a service animal under the ADA. If so, then know where (and under what limitations) it is allowed in your place of business.

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