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ICYMI: Our Social Media Posts This Week – Nov. 6-12, 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 11/6/16 we asked: do the federal employment discrimination laws apply to your business? The answer (which is common to legal questions) is "it depends". On what? The number of employees. If there are any employees, the equal pay law applies. If there are 15-19 employees, the equal pay law applies; in addition, the laws prohibiting discrimination based on race, religion, color, sex (including pregnancy, sexual orientation and gender identity), national origin, disability, and genetic information apply. If there are 20 or more employees, see the post. There might also be state or local laws that apply.

TAKEAWAY: Laws governing the employer-employee relationship are myriad and can be minefields – consult an employment law attorney before step on a mine.

The post on Monday 11/7/16 asked when to say when: court ruled on when accommodation isn't working. A recent federal court ruling held that an employee's poor performance in a light-duty position can relieve the employer from further obligation to find a reasonable accommodation under the ADA. The post has the details, but suffice it to say that when the employee doesn't even try the accommodation offered by the employer – without good reason – then termination may be a valid result.

TAKEAWAY: Both sides must try – when one does not, the other may be justified in ending the interactive accommodation process (and terminating employment).

In the post on Tuesday 11/8/16 we talked about the floodgates open: NLRB says misclassification of independent contractors can, by itself, be a violation. This is big! In an Advice Memorandum from December 2015, the NLRB authorized issuance of complaints where employees are misclassified as independent contractors (and that such by itself may be a violation of the NLRA).

TAKEAWAY: This is another instance where ALL employers, unionized or not, need to be careful. Misclassification of workers can get an employer is extremely hot water in so many way.

The post on Wednesday 11/9/16 was about an Army vet with a service dog saying a restaurant asked her to leave. Shelly said the restaurant wouldn't serve her and her husband because they didn't have papers for the service dog. The post explains the details, but the ADA doesn’t' require papers to be showed.

TAKEAWAY: 2 questions are allowed: Is this a service dog and what task is it trained to help you with? That's it.

In the post on Thursday 11/10/16 we learned an employer can win the suit but still lost on litigation costs and fees. Yep. A federal court in Philadelphia affirmed a trial court verdict that relieved a plaintiff in an employment litigation suit from paying litigation costs to the pharma employer (Eli Lilly). During the case, and after removal to federal court, Lilly moved for summary judgment. That motion was granted on all counts except retaliatory discharge. After a trial, the jury verdict was for Lilly on that count too. Lilly then filed a Bill of Costs. The plaintiff asked for relief and cited her circumstances. The court agreed that she was unable to pay Lilly's litigation costs.

TAKEAWAY: Winning a suit is great – being awarded and collecting your fees from the other party is even better if it actually happens.

The post on Friday 11/11/16 asked are there condo or homeowner Association fees on your credit report (and suggested contacting us to discuss legal ramifications). Many people live in planned communities (either condominium/townhouse or single-family neighborhoods that are subject to a Declaration of Covenants and Restrictions, Bylaws, and sometimes Rules or Regulations [together called the Governing Documents]). All owners are members of the Association and pay dues or assessments in order that the Association fulfills its responsibilities. What is happening now is that some Associations are reporting late or unpaid dues/assessments to credit reporting agencies and that is showing up on credit reports (thus negatively affecting credit scores). The post mentions some reasons an Association may not want to report and how the reporting will not necessarily help cure the delinquency, but it is still a reality. 

TAKEAWAY: Associations must decide whether or not to report delinquencies and if they do report, ensure that all information reported is correct in order to avoid legal liability. Those damaged by an incorrect report may have legal remedies.

Finally, the post yesterday 11/12/16 noted DOL sued Analogic for wage discrimination – paying females less than males in similar jobs. Women in certain jobs (listed in the post) were paid less than males in the same jobs. OFCCP found the disparity and an administrative complaint was filed, requesting that the disparity cease, the females be given back pay, and other relief.

TAKEAWAY: Gender should have nothing to do with the pay decision – pay based on performance or skills. To do otherwise may subject you or your company to legal liability.

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