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ICYMI: Our Social Media Posts This Week – Jan. 24-30, 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.

In the post on Sunday 1/24/16 we learned the NLRB found a Section 8(a)(1) violation by having & enforcing a confidentiality rule barring wage rate talk & firing an employee for violating the rule. So this employer did two things wrong: first it tried to stop employees from talking about their wages, then it fires someone who violated that rule. The Board’s decision is the post.

TAKEAWAY: Remember that this is one of the sections of that law that apply to all employers. Don’t try to stop or limit your employees from talking about the terms or conditions of their employment.

The post on Monday 1/25/16 contained key questions to ask when terminating a chronically ill worker. As the post says, “How the employer does things, the questions it asks and investigations it makes are just as important as the final decision to terminate someone.” Here, Percy had worked for the company for 18 years and was a manager. There were 19 other employees. Percy began missing a lot of work due to several medical conditions. The company never asked for a doctor’s note; they trusted that he was really sick. When he returned to work after a hernia operation and 7-week absence, he was discharged for chronic absenteeism. He was given the choice of working for one year and being done or accepting six month’s pay in lieu of notice and leaving immediately. The rest of the background is in the post. Suffice it to say the employer lost the ensuing suit because it did not follow the proper procedure.

TAKEAWAY: If an employee is absent a lot, it might be the best course to find out why – the result might trigger the employer’s obligation to engage in the interactive accommodation process but will stop a suit brought for its failure to take that action.

The post on Tuesday 1/26/16 told us that if you have a successful business, not to undervalue employee compensation. What does that mean, you ask. It means that employers must know which laws apply to which employees and how to compensate the employees based on those laws, including exempt versus non-exempt workers (especially with the impending increased wage threshold for overtime eligibility). Employers should also have in place appropriate job descriptions and deal with any wage issues immediately – don’t bury your head in the sand.

TAKEAWAY: You should already know (from MANY prior posts) that the Department of Labor has been and continues to crack down on proper classification (and resulting wages) – don’t give them more to do.

The post on Wednesday 1/27/16 gave us 10 tips for workplace investigations. The first tip is to talk first to the person making the complaint, then the alleged wrongdoer. Next, interview ALL potential witnesses and keep the parties separated (at least until the investigation is over). The rest of the tips are in the post.

TAKEAWAY: If someone makes a complaint, take it seriously and perform a proper and thorough investigation (then take appropriate action).

In the post on Thursday 1/28/16, we learned that employers can be liable for the acts of anonymous harassers. Yep. Failure to perform an investigation, or doing it improperly, can lead to liability for the employer. In the case in the post, an African-American flight attendant for United complained after finding a note in her mailbox with a drawing of a person hanging from a nose; it had the “n-word” and other bad stuff (see the post). Her supervisor didn’t follow proper procedure; further, other supervisors to whom other employees had complained of similar conduct also did not follow procedure. More? Those same supervisors didn‘t cooperate with an investigation by the police and United closed the investigation without telling the employees. The first employee filed suit. The trial court found for United on the basis that even if it has properly investigated, it wouldn’t have found the wrongdoer. The appellate court disagreed, finding that United should have acted so as to attempt to end the harassment. The case was then sent back for a jury trial.

TAKEAWAY: In case you didn’t get it from yesterday’s post, investigate all complaints – even if you don’t know who the alleged wrongdoer might be.

The post on Friday 1/29/16 was about how to appropriately address transgender issues in the workplace. If you’ve not yet been confronted with this, it probably won’t be long so pay attention. Usually the first way this comes into the work environment is relative to restrooms (and which one the transitioning employee should use). Remember that the EEOC treats actions based on gender identity as sex discrimination so be careful what you do (and don’t do). Some suggestions (and factual scenarios) are in the post.

TAKEAWAY: At this early stage of the development of the law for transitioning (or transitioned) employees, the safest course might be to consult with an employment law attorney before taking (or failing to take) action.

Finally, the post yesterday 1/30/16 questioned if an employee can seek disability benefits after lying about the injury. The starting point is that employees must be able to perform the essential functions of their job. Here, Alphonso applied and was found eligible for Social Security disability benefits after back and neck issues; he also was hired as a security guard at the same time. His application for that position said he had no relevant disability. When his supervisor questioned his pain, Alphonso told him about the medical issues. The supervisor then required Alphonso to pass a physical exam before returning to work, Alphonso waited for the exam to be scheduled but when it wasn’t, he thought he’d been discharged. He then sued. Because he said in the SS application that his disabilities barred him from performing the essential functions of his job, the court found the employer not liable.

TAKEAWAY: It may seem like an employee is lying, but the truth may be that the employee is disabled for one purpose but can perform the essential functions of his or her job, with or without reasonable accommodation, such that the employer has an obligation to engage in the interactive process.

References (6)

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