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ICYMI - Our Social Media Posts This Week - Jan. 3-9, 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 1/3/16 asked how you are doing with the law requiring background checks for certain volunteers and employees. If you are asking what law, then you have a big problem. The new law went into effect July 1, 2015, and expanded the persons who need background clearance if providing care, supervision, guidance or control of children, having routine interaction with children, or working with children. Read the post for general info on the law and when its provisions kick(ed) in for which persons.

TAKEAWAY: This is a state law many employers might forget about but which might greatly affect them through application to their employees or volunteers – make sure to know what’s required and of whom.

In the post on Monday 1/4/16, we reminded that if you have confidential information, keep it confidential. This issue is as much what the former employee did as what the company did not do. An example of the latter is in the post. Head Over Heels ran a gymnastics academy; Harriet was hired in 2006. By 2012, Harriet started developing a business plan for her own gym. When Head Over Heels discharged her, she put her plan into action. That resulted in approximately 30 gymnasts leaving Head Over Heels for Harriet’s new gym. Head Over Heels sued Harriet on many bases, including that “everyone ‘understood’ that the customer list was intended solely for the purpose of Head Over Heels’ business and was neither publicly known nor available”. Sounds good, right? Not really. Read the post to see why Head Over Heels lost the case and what it could and should have done differently.

TAKEAWAY: It’s YOUR confidential information – take steps to protect it. Others will not do that for you and your business will be the loser.

In the post on Tuesday 1/5/16 we reminded you of the steps to take before firing a no-show employee. Everyone knows what no-call no-show means, right? In most businesses, that can result in automatic discharge. But should it? The post lists some suggested steps to take before firing the person, including trying to contact him/her (to ensure there is no legal reason supporting the no-call no-show) and following your policy.

TAKEAWAY: If you have a relevant policy (and you should), follow it, but ensure that it is not preempted by a statutory obligation.

The post on Wednesday 1/6/16 talked about the top 10 scariest employment challenges in 2016 (and asked if you agree). So what are the challenges (in the author’s opinion)? Same-sex marriage (and how it will affect COBRA, FMLA, ERISA, and more). Reasonable accommodations for an increasingly diverse workforce (including religion, disability and pregnancy - remember the recent US Supreme Court cases of AEEOC v. Abercrombie & Fitch Stores, Inc. and Young v. UPS?). Paid sick leave. This is mandatory in some jurisdictions (states or localities) but not others. NLRB pursuit of workplace policies. Yes this matters to you even if your business is not unionized. We’ve said numerous times, and repeat here, that ALL EMPLOYEES ARE ENTITLED TO CERTAIN PROTECTIONS UNDER THE NLRA so make sure your business – including handbooks and policy manuals – doesn’t run afoul of that law. More of the Top 10 list is in the post.

TAKEAWAY: Businesses and their owners need to be ever vigilant of what statutes apply and how courts are interpreting them so that no legal issues arise.

In the post on Thursday 1/7/16 we talked about how a butt dial spelled disaster. Yes it sounds funny, but I’m sure it wasn’t to the person involved. What happened? While Matt was running a company with his wife that designed, manufactured, sold and installed custom residential storage components, he was hired as a travelling software salesperson. He told the employer that upon hire, he’d transfer operational duties in his company to his wife. Also, as part of the employment offer, Matt had to acknowledge certain guidelines including a ban on outside work or soliciting same on company premises, by using the company’s equipment or during company time. Matt also acknowledged that a violation of the policy could result in discipline up to and including discharge. Good so far, right? Well, Matt cancelled a weekly phone meeting with his boss, claiming a client appointment conflict. (Read the post to see why that was a white lie.) Twice that afternoon, during the time originally set for the meeting with his boss, Matt butt dialed his boss. The boss heard him talking with a subcontractor about installing storage equipment for Matt’s business. As if more were needed, Matt ignored 2 work emails sent to him that afternoon and used the company’s cell phone for calls for his private business. The company discharged Matt who then sued. The court went through the many things Matt did wrong (see the post) and how they justified termination.

TAKEAWAY: Technology has and will doom many a job; make sure employees don’t use it to derail your business in favor of their own.

In the post on Friday 1/8/16 we noted it was recently the season for moonlighting: FMLA leave and secondary employment, and asked if you had to address this issue. Believe it or not, employees out on approved FMLA leave perform work for themselves or another employer during the leave; this seems to occur more in the last few months of the year than at other times. (Perhaps they want more disposable income for gifts?) Don’t immediately discharge the employee as there might not be a legal basis to do so. For starters, the second job may be within the person’s medical limitations but the regular job (at your company) may not. Also, the FMLA doesn’t prohibit other employment; only if the employer has a policy and applies it to all situations does this become an issue. Some steps an employer can take to prevent this from occurring are in the post.

TAKEAWAY: Don’t wait for this to happen – consult with an employment law attorney and put in place a policy setting forth when, if at all, employees may work while employed by your company and what happens if they violate the policy.

Finally, the post yesterday 1/9/16 was about a Ford Motor employee fired for an anti-gay comment bringing suit for religious discrimination. So how did this move from what appeared to be sexual- to religious discrimination? See the post and keep reading here. Thomas’s suit describes himself as a Christian who worked at Ford for 3 years and commented on a Ford intranet article celebrating GLBT inclusion by saying Ford “had no place promoting sodomy or ‘immoral sexual conduct’ and should be ‘thoroughly ashamed’”. The post contains more of the basis for his comment and suit. A few weeks later he was fired for violating Ford’s anti-harassment policy. After the EEOC declined to act on his charge, he sued. NOTE that the suit was filed in Michigan where (like PA) there is no law prohibiting discrimination on the basis of sexual orientation or gender expression.

TAKEAWAY: Look at a situation from all angles before terminating an employee – and even discuss it with an employment law attorney – to avoid what might turn out to be a costly legal battle.

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