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ICYMI: Our Social Media Posts This Week – Feb. 7-13, 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 2/7/16, we looked close to home where a Franklin County employee alleged disability discrimination. The man claimed in his suit that he was discharged based on his disability and need for accommodation. The employer was the Franklin County Jail (part of Franklin County). He was a correctional officer for several years; he was injured in May 2013 and, thereafter, required accommodation to work as his ability to walk, climb stairs, and perform manual tasks was limited. His suit claims that he was subjected to a hostile work environment after being placed on light duty, that his complaints were not dealt with properly, and that he was discharged in retaliation for the complains. More details are in the post.

TAKEAWAY: The jury’s still out on this one as the case was just filed in July 2015. But employers can take from it that any adverse action should have a sound, valid, legal basis of support – or risk the employer being named as a defendant in a suit.

The post on Monday 2/8/16 talked about religious accommodation and 5 steps to avoid liability after Abercrombie. The reasons the Supreme Court ruled against Abercrombie are in the post, including the applicant wore a head scarf to the interview and it violated Abercrombie’s dress code. Abercrombie was a good case because it stressed that Title VII has no requirement of knowledge (contrary to the ADA). So what does an employer who wants to be legally compliant do now? 5 tips are in the post, including not assuming and not asking.

TAKEAWAY: It is harder and harder for employers to toe the line and find or keep good employees, but they must toe that line or face possible suit. A good employment attorney will help you stay on the right side of the line.

In the post on Tuesday 2/9/16, we learned that wineries often overlook harassment liability. OK, be honest, even if you don’t care about the legal angle, it’s always interesting to read about wineries, right? Winery employees are often in the field, not office, so harassment training is apparently less (or even non-existent). This can be costly for the employer, especially in places with workforces consisting largely of minority employees. There is also the danger that those with whom the wineries contract for labor will be considered joint employers, making the winery liable for the actions of the contractor. Some tips on how to prevent liability are in the post.

TAKEAWAY: While wineries seem a world away to many of us, they are in fact just another type of workplace. And all workplaces need to ensure legal compliance or face complaints or, worse, suits.

The post on Wednesday 2/10/16 was about a trend alert: NLRB holds employee acting alone engages in concerted activity (and yes, ALL employers care about this). Why do all employers care? Because whether or not the workplace is unionized, employees still have the right under the NLRA to protected concerted activity. Here, by decision 7/29/15, the NLRB said that a lone employee, acting alone, and without the consent of his peers, engaged in protected activity. Yep, many of us are shaking our heads. The employee filed a collective action (not a class action) suit where other members must opt in to participate. The employee was the only named plaintiff and there was no evidence he planned or even discussed the filing with other employees or that they wanted to op in. However, the NLRB said that by initiating the action, the employee sought to initiate or induce group action and, thus, engaged in protected concerted activity.

TAKEAWAY: Employers must be careful, very careful, now that action by a single employee could implicate the NLRA and its protections. Discuss this and any questions with a knowledgeable employment attorney.

In the post on Thursday 2/11/16, we talked about an unsolved problem: claims of post-employment retaliation by (formerly) problem employees. By now you know (or should) that in most circumstances, retaliation against employees is in itself illegal (so just don’t go there). But did you know that actions against former employees may also be illegal retaliation? Actions like providing poor references or refusing to provide a reference, contesting UC applications, and others (in the post). Just don’t do it – resist the urge.

TAKEAWAY: When employers take these types of actions, they may find themselves subject to suit by a former employee. Just when you thought you were done with that person …

The post on Friday 2/12/16 told us that a black nurse’s lawsuit over a white patient’s care was dismissed. So what happened? Tamika Foster said that the hospital intentionally discriminated against black workers, that she was subjected to an adverse employment action, and that she lost a promotion due to her race.  The comment that was apparently the last straw was this, made by a nursing supervisor: “You know, the people in 312 don’t want any black people in there … so just – for now just don’t even worry about it. Don’t go in there.” More details are in the post. The judge dismissed the race discrimination suit since Foster could show no change in shift, hours, position, title, duties, status, pay, benefits or other significant employment aspect based on that nursing assignment. The judge’s decision on the other claims is also in the post.

TAKEAWAY: Possessing a protected characteristic is not alone sufficient to carry the day – there must still be facts to back up any claim of discrimination.

Finally, the post yesterday 2/13/16 told us that Celadon Trucking settled a discrimi-nation suit for $200,000 (a lot of miles). The suit was filed by the EEOC and alleged that Celadon discriminated on the basis of disability by making certain applicants take medical exams before a conditional offer of employment was extended to them (and also by discriminating against applicants based on disability or perceived disability). After the judge’s intermediate rulings (which are in the post), the case settled.

TAKEAWAY:  Remember that the ADA protects not only employees but also applicants for employment – make sure you ae in compliance when dealing with both groups.

References (3)

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