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ICYMI: Our Social Media Posts This Week – Oct. 23 - 29, 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 10/23/16 we talked about firing is ok for cheating discovered curing FMLA leave. Really. FMLA leave scares employers and makes them think their hands are tied for disciplinary purposes; that is not always true. In this case, Kimberly was an administrative assistant, mostly working on a computer. Her boss thought she was cheating on her work hours. When she returned from FMLA leave, he kept closer tabs on her work hours. He called her on it at some point and she denied it. She got fired and sued for FMLA retaliation. A jury ruled in her favor but an appeals court reversed based on what the company found while she was on leave. More details are in the post.

TAKEAWAY: Being on an approved FMLA leave doesn't immunize an employee form action that would be taken against anyone doing (or not going) the same thing. Remember that.

The post on Monday 10/24/16 asked whether FMLA leave weeks should be counted toward vacation benefits? This can make quite a difference to the employee and employer. The easy answer is "it depends". ON what the policy requires – and then treat those on FMLA leave the same way. The post gives more detail, but if you allow vacation accrual only based on hours worked, then someone on FMLA leave would not accrue vacation time.

TAKEAWAY: Make sure to follow the FMLA but treat those on approved leave the same as all other employees.

In the post on Tuesday 10/25/16 we noted a lesbian trooper sued MD police over a bias complaint. State police. Law enforcement. Laws. Get where I'm headed? This suit accuses supervisors and co-workers of discrimination, retaliation and a HWE based on sexual orientation and gender. Chelsea alleges it began 2 months after she was assigned to the Cumberland Barracks where she was the only female and only homosexual trooper. One allegation is that she was assigned more work than other troopers. Others, along with more background, are in the post. She received a letter that corrective action would be taken, but none was. In fact, jokes, comments and jobs got worse after she filed her complaint.

TAKEAWAY: Here, because state law covers it, she did not have to allege that Title VII covers sexual orientation. Suits in other states, like PA, may have to include that claim.

The post on Wednesday 10/26/16 suggests you base layoff decisions on previous job evaluations (or some other objective basis). In this case, Farrell, an African-American, had worked at the company for well over 20 years when he got a new boss who began criticizing him, making racial comments, and praising his co-worker. He stuck it out for 3 years. Then, because he had poor evals, he was part of a company-wide RIF. He sued. The court ruled against him – see the post for the reasoning.

TAKEAWAY: Make sure any adverse decision has objective, legal support – in case you need to defend a discrimination charge or suit.

In the post on Thursday 10/27/16 we talked about what every small business owner should know about the ADA. This federal law prohibits discrimination against individuals with disabilities and requires reasonable accommodation. Most people see this in the employment context, but the law is broader than that. It also applies to barriers to access to places of public accommodation – that means doors, parking spaces, and more. Know what you have to do as the owner of a public business. The post gives you some helpful pointers.

TAKEAWAY: Don't wait until suit is filed to find out what your obligations are under the ADA (and other state or federal laws) – talk to an employment law attorney soon.

The post on Friday 10/28/16 was timely: Hillary or The Donald: a voting guide for employers. I won't repeat it, as you can read the post for yourself, but it compares the presidential candidates on labor and employment issues given their experience and backgrounds. Know what you are voting for when you decide for whom to pull that lever on Nov. 8th.

TAKEAWAY: Employers are voters too – know what candidates have done in the past, what they stand for now, and what they are promising for the future before you enter the voting booth.

Finally, the post yesterday 10/29/16 was about a PA court affirming a punitive damage award for breach of a non-compete. Everyone should pay attention to this. This was a recent appellate court decision in PA and a reminder (or wake-up call) to businesses hiring employees subject to non-compete agreements. Here the individual defendants had valid non-solicit agreements in place when they contacted a recruiter. For 6 months they planned their move, intending to solicit and get business form their current employer's clients. They did some nasty things – see the post. Upon the end of their employment, they immediately began working for the new employer and contacted their then-former employer's clients. They didn't get all the business, but some clients stopped using the prior employer. That company then filed suit against the individuals and their new employer. The trial court awarded the former employer $2.4M in compensatory damages and $4.5M in punitive damages. You read that right. On appeal of the punitives award, the court affirmed; its reasoning is in the post.  

TAKEAWAY: Conduct business as you choose, but when hiring someone who is subject to a non-compete, non-solicit, or non-disclosure agreement, make sure to get it reviewed by legal counsel so you know what that person can and cannot do for your business.

References (3)

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