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ICYMI: Our Social Media Posts This Week – Jan. 31 - Feb. 6

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 1/31/16 we learned of a company held in contempt for failure to follow a court order (including providing information and paying the EEOC’s attorney’s’ fees). This relates back to a prior post about Sparx Restaurant which operated as a Denny’s. By Order dated 7/28/15, the federal court held it in contempt for violating a prior order requiring it to provide information to the EEOC (about its financial status) and to pay the EEOC’s attorney’s’ fees. That prior order was after the EEOC got a judgment (after jury verdict) that the company retaliated against an employee by firing him after complaining about a racist posting in the Sparx workplace. Sparx didn’t pay so the EEOC began collection efforts. Details on those efforts (and what the contempt against Sparx entails) are in the post.

TAKEAWAY: It’s bad enough that you be found in violation of laws preventing discrimination – don’t pile on top of that and flaunt the order that found you in violation.

The post on Monday 2/1/16 was about a man suing Little Caesars for sexual discrimination – pizza pizza – not not. Troy was subjected to what he claimed was unlawful discrimination based on his sexual orientation. He says he was commonly called “faggot” and the company also made unwelcome and insulting slurs based on his sexual orientation. As if that weren’t enough, he says the company was made aware of this and failed to take timely and appropriate action to correct the problem. Want more? He alleges that in 2014 he was suspended without pay during a 3-day investigation based on an unfounded complaint against him and that post investigation, the company told the supervisor to “make something up” and “fire the … faggot anyway”. He was fired shortly after. More details are in the post.

TAKEAWAY: The EEOC has said that sexual orientation is covered under the prohibition against discrimination on the basis of sex, so don’t do it. Just don’t.

In the post on Tuesday 2/2/16, a woman alleged gender-based discrimination at work. This case was filed in the federal court with jurisdiction over Central Pennsylvania, against a former employer and 2 individuals alleging sex and gender-based discrimination and retaliation after reporting the former. Jean started working for the employer in September 2011 and almost immediately was subjected to continuous gender-based discrimination: males excluding her from interactions and communications and management favoring males employees (as detailed in the post). She began to complaint in 2013 but nothing was done about it (other than retaliation by or on behalf of the employer). The employer says she was terminated as a result of a customer complaint, to which Jean responds “pretext”. More juicy details are in the post.   

TAKEAWAY: Whenever an employee is in one or more protected classes, make sure you have clear support for any adverse action – or you may find yourself in a situation as did this employer.

The post on Wednesday 2/3/16 was about avoiding lawsuits: legal versus illegal interview questions. Be careful when asking any question that touches on a protected characteristic, including age, race, national origin, religion, gender, disability and pregnancy. Don’t wait until suit is filed to revamp the questions you ask job applicants; do it now! Examples of questions you cannot ask include: What is your race? What country are you from? When did you graduate from high school? Do you have children? Do you celebrate religious holidays? Are you taking any medications? Have you ever been arrested? More are in the post. Examples of questions that are permissible include Are you authorized to work in the US? Are you over the age of 18? Would you be willing to work overtime? We often work on holidays and weekends; will this be problematic for you? Can you perform the essential functions of the job? Have you been convicted of theft, embezzlement, or other similar crimes (only if related to the job requirements)? Other examples of legal questions are in the post.

TAKEAWAY: There are ways to elicit the information you seek about potential employees – just make sure you do it the right way. Consult an employment law attorney if you’re not sure.

In the post on Thursday 2/4/16, we talked about a soda & beer manufacturer settling a gender and disability discrimination and retaliation suit for $72,500. Taprite, based in San Antonio, has settled a suit filed by the EEOC. The claims included that Taprite subjected a female employee to sex-based wage discrimination, disability discrimination and retaliation after she questioned the wage disparity between sexes. The EEOC alleged Taprite paid a male more than $3/hour more than this female employee for substantially the same job and that she was retaliated against when complaining about the wage disparity (how tit retaliated is in the post, as are additional background details).

TAKEAWAY: Before taking adverse action against an employee – any employee – make sure it is supported by credible, legal facts/evidence. If not, you too may be visited by the EEOC.

The post on Friday 2/5/16 asked under the FMLA does texting applies to a call-in policy. A federal court said it might and sent the matter back for trial. So what’s the background? ON 12/28/11, Supervisor Delbert was ill and didn’t go to work; he had his girlfriend report his illness for that day and the next few. She fold Delbert’s supervisor of the late/absence on 12/28. Delbert also texted his supervisor – before shift start – about the illness and absence for a few days. While the company’s policy required personal calls to the direct supervisor, Delbert says he often texted his supervisor. He was out 12/28, 12/29 and 12/30 and not scheduled to work 12/31, 1/1 or 1/2. He went to a doctor ½. ON 1/3 he presented the employer with a doctor’s note covering 12/28 – 1/7; he requested leave for those dates, intending to to be FMLA leave. He completed the employer’s form, saying someone else checked the “non-FMLA” box after he signed it. He was approved for non-FMLA leave. He returned 1/9 and was terminated (after investigation by the employer – the details are in the post). He sued for FMLA interference and discrimination for the FMLA leave. The trial court ruled for the company and Delbert appealed. The appellate court analyzed his claims under applicable law and found sufficient factual questions to enable him to go to trial.

TAKEAWAY: If you have a policy, make sure it is followed uniformly; otherwise, you cannot rely on that policy to support adverse employment actions.

Finally, the post on Saturday 2/6/16 talked about handling the habitual leave employee – under the FMLA and ADA. You know, those employees who try to game the system? So what can you do? Know who has what obligations under both the FMLA and ADA and how the 2 might be connected. Document, document, document, Put in place, update, and uniformly enforce leave policies. And create accurate job descriptions. More details under each of these items are in the post.

TAKEAWAY:  You can’t stop someone from trying to game the system, but you can make that employee play by the rules of the game. Know what those rules are before you go to bat.

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