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Monday
Dec122016

ICYMI: Our Social Media Posts This Week – Dec. 11-17, 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 12/11/16 we noted that a Kentucky city settled allegations of discriminating against pregnant police officers. There were also allegations of disability discrimination (see the post). Two officers were pregnant but the city employer would not provide light duty work. That might have been ok had the city not previously assigned others to light duty work on a temporary basis when they could not do their regular jobs (for various reasons). Big oops.

TAKEAWAY: Know the law before taking adverse action against an employee who might be in a protected class. If you are not sure, consult with an employment law attorney.

The post on Monday 12/12/16 was about terminating employees: a practical checklist. (And we suggested you use it.) There will probably come a time when every employer will need to end the employment of one of its workers. The checklist in the post will help. Some of the things included are determining the type of relationship, whether cause is required for termination, and whether there is the risk of any litigation. The others are in the post.

TAKEAWAY: Employees have nothing to lose by filing a complaint of discrimination, but the employer has everything to lose. Do it right.

In the post on Tuesday 12/13/16 we asked: Can a fired employee sue for discrimination based on obesity? The answer was "it depends". If the person is merely overweight, probably not. However, the EEOC manual talks of "severe obesity" being an impairment and some courts have ruled it a disability under the ADA.

TAKEAWAY: The ADA protects disabilities and defines that term very broadly. Before you take adverse action against an employee who may be protected under law, consult with an employment law attorney.

The post on Wednesday 12/14/16 noted that an ex-employee called "fat and old" sued for age and national origin discrimination. Maria, age 56, had worked at Grow Financial for 15 years and ended up suing. Maria says that her manager, age 35, made discriminatory remarks including "If you want to stay fat and old, go ahead". More remarks are in the post. Maria asked her to stop, but nothing changed. The manager even allegedly slapped Maria in the face once but nothing was done after Maria reported it. Want ore? Before Maria received a termination notice, colleagues called and told her about it and a rumor that was going around (see the post) that further harmed her reputation. Maria's replacement was a male in his 20s.

TAKEAWAY: Train managers not to make discriminatory remarks – or even remarks not intended to be discriminatory but that could be taken that way.

In the post on Thursday 12/15/16 we talked about how employers are using enhanced FMLA fitness for duty. Did you even know that the FMLA provides for an enhanced fitness-for-duty certification? Yep. The employer must tell the employee about it prior to the return to work from approved FMLA leave. Further, the notice must contain specific things as listed in the post. This may be the next big litigation area so know the law.

TAKEAWAY: It is important to ensure that an employee can perform the essential duties of the position upon return from an FMLA leave, so feel free to use the enhanced certification as long as you follow the letter of the law.

The post on Friday 12/16/16 talked about 3 costly mistakes that could be lurking in your documentation. You may not have documentation, but when you do, you want it to be correct (and not land you in hot water). So what are examples of things that might do that? Using characterizations instead of specific examples (saying "sexual harassment" instead of giving an example of rubbing someone's leg under the table). The other 2 are in the post.

TAKEAWAY: Don't give the employee the opportunity to file suit for conduct not based in fact, but do make sure you give enough facts to show the conduct is indeed based on fact and legally supported.

Finally, the post yesterday 12/17/16 noted that silence may not be golden when it comes to the ADA's interactive process. You know the employee doesn't have to say any magic words to invoke the protection of the ADA, right? You also know that disability is defined very broadly, right? So make sure you as an employer fulfill your obligation to interact with the employee to find a reasonable accommodation if necessary. The post gives some ideas and an example of an employer who didn't do that.

TAKEAWAY: If you as the employer are on notice that the person has medical limitations, that may trigger your obligations under the ADA's interactive accommodation process. Don't just bury your head in the sand or take adverse action.

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