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ICYMI: Our Social Media Posts This Week – Oct. 9 - 15, 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 10/9/16 we asked did the hospital fire the employee due to age? A federal lawsuit filed by the EEOC says yes. The suit alleges that several employees, including 59-year-old Katherine, were field doe to age or forced to quit due to a HWE, all of which violated the ADEA. The complaint includes comments made by the chief nursing officer against Katherine, including referring to her as an "old b____,", telling her a younger nurse could "dance around the older nurses," and more (yes there were more!) in the post. The hospital denies the allegations and alludes to discharge of an employee for, among other things, violation of HIPAA.

TAKEAWAY: We've said it before and will again: before taking adverse action against an employee in a protected class, be sure there is a valid, legal reason for the action. You may need to show that support if sued.

The post on Monday 10/10/16 noted Chipotle is again under fire, this time for alleged race discrimination. An African-American employee complained that Latino co-workers were given preferential treatment and then she was fired – so say her complaint against Chipotle. Sheqweshu filed suit in CA state court alleging race discrimination, retaliation, wrongful termination, and other claims. The suit alleges that she started working there in June 2012 and was promoted several times. Things changed in December 2015 when she returned from maternity leave – the new Latina district manager and 2 other Latino managers gave Latino workers better shifts and assigned Shaqweshu and other African-American employees to non-preferred shifts. The manager's comment when Shaqweshu spoke to him about it is in the post (and is not a good thing for management to say). The saga continued when the manager changed nothing, Shaqweshu spoke to the District Manager (who thereafter suspended her without reason), and then the discharge came in January 2016.

TAKEAWAY: We don't know if there's any meat on these bones, but any employer taking adverse action - especially when it impacts on persons in a protected class – should ensure that there is a valid, legal basis for the action.

In the post on Tuesday 10/11/16 we highlighted a local case where a man claims Genco Distributions violated the FMLA. The suit was filed May 2016 in the federal court in Harrisburg with allegations of ADA Reg violations, retaliation and wrongful termination in violation of the FMLA and PHRA. Francisco has cervical radiculopathy; he alleges that Genco discriminated against him as a result of the disability and retaliated too – by giving erroneous information to Wal-Mart as a reference after he applied for a job there. More background details are in the post.

TAKEAWAY: Whenever an employee hints of something that might require accommodation under the ADA, the employer should begin the interactive accommodation process – there are no magic words the employee must use or documents the employee must provide prior to the start of the process.

The post on Wednesday 10/12/16 asked are wild sex comments are enough to prove harassment? Comments between co-workers, a complaint to a superior, and further harassment do not necessarily rise to the level of legal harassment (at least in this situation). The first text sent by David to Karen, a co-worker on vacation; the text said Karen should "just have fun and wild sex". The contents of the second text are in the post. After being reprimanded, David allegedly treated Karen rudely, threw a chart at her, and (as lead nurse) sometimes denied her lunch breaks and assigned her more difficult work. The court said the texts were not sexual harassment because they didn't show an "anti-female animus or seek sex with Karen. Further, David's later actions were not actionable as HWE because they were a result of her reporting his texts, not her being a female. Further findings by the court (including a possible claim that Karen left out of her suit) are in the post. The dissent viewed the same facts in an opposite way.

TAKEAWAY: Don't wait for a court to decide whether an employee's actions are harassment or not – stop any such action before it starts by proper training of and control over employees.

In the post on Thursday 10/13/16 we cautioned you to think twice before suing your (former) employer. Why? Several reasons. One: the employer probably didn't make the (adverse) decision lightly. You may not like what happened, but chances are pretty good that the employer doesn’t either. Two: the employer probably did not discriminate against you. While it does exist, there is much less discrimination in the workplace than people think, and certainly every adverse action is not a result of discrimination. Three other reasons are in the post.

TAKEAWAY: Employees should know their rights and feel free to consult an employ6ment law attorney or take administrative or legal action they feel appropriate, but they should keep in mind that there is probably no pot of gold at the end of the (non-existent) rainbow for them.

In keeping with the apparent theme of the week, the post on Friday 10/14/16 noted that sexual harassment goes digital. Yes, Gretchen Carlson got a $20M settlement from FOX News. Yes, sexual harassment continues to exist in the workplace. And yes, sexual harassment now takes more and different forms – electronic and digital – than it used to. Email, texts messages, IMs, and socmedia all increase the ability of employees to interact – and harass each other, with the employer being held liable. The post talks about some things an employer can do relative to harassment through electronic communications, including ensuring the harassment policy includes electronic communications and online and socmedia activities and expressly prohibiting sexually explicit communications on company technology.

TAKEAWAY: Employers must take steps to prevent employees from being harassed; that helps protect employees and lowers the risk of liability for the employer.

Finally, the post yesterday 10/15/16 talked about the fault line running under "no fault" attendance policies (and what happens under PA law). Often an attendance policy is n-fault, meaning points are given or other action taken regardless of the intention of the absent employee. Sounds easy and uniform, right? It is, except when there are exceptions under applicable law – such as the ADA and FMLA and others. And, as noted in the post, rewards and bonuses cannot take into account statutorily-required and allowed absences. The post also mentions a few things employers can do to protect themselves.

TAKEAWAY: Uniformity is great, except when the law requires otherwise; be careful enforcing no-fault attendance policies so as not to run afoul of laws that prevent that enforcement. Talk to an employment law attorney to be sure.

References (3)

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