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ICYMI: Our Social Media Posts This Week – Feb. 28 – Mar. 5, 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 2/28/16, we asked whether an employer can prohibit an employee from job hunting during FMLA leave. The answer is – as it is so many times – it depends. On whether or not the “no looking for a job” policy applies to all employees or just those on FMLA leave (with the latter being illegal). On whether employers want happy employees who want to be there …

TAKEAWAY: A policy can be legal if applied to all employees, but once you start applying it only to a protected class (in this case employees on approved FMLA leave), the legal problems begin.

The post on Monday 2/29/16 was about termination: employee fired for making sexual remarks (and whether it was legal). Here, a federal appeals court affirmed dismissal of a race discrimination suit against the Arkansas DHS. The quick and dirty background (more details are in the post) is that DHS hired Sharon, an African-American female, in February 2010. The 3 clients initially assigned to her were later reassigned to another female employee, Woods. During Sharon’s first visit in 2013, Woods was told that the admissions coordinator had received an inappropriate call at work from Sharon in which Sharon made moaning sounds and made comments including that Sharon was “dying for sex”. Woods was also told that Sharon called back; the admissions coordinator had someone else answer the phone; during the second call, Sharon repeated her comments. Woods told her supervisor and then, upon direction, a manager. An investigation ensured. Sharon denied making the calls. DHS terminated Sharon on September 5th. She internally grieved the discharge; the discharge was upheld after an internal fact-finding hearing and Sharon again appealed. While that appeal was pending Sharon also filed a charge with the EEOC. The grievance panel found in Sharon’s favor; soon after, the EEOC issued a Right to Sue letter. Sharon then sued, alleging race discrimination via the discharge, failure to promote, and failure to reinstate (per the grievance panel’s award). More details on the charges are in the post. On appeal, the appellate court agreed with dismissal of the failure-to-promote and failure-to-reinstate claims for lack of exhaustion of admin remedies. It also agreed with dismissal of the wrongful termination claim for lack of evidence supporting a reasonable inference that DHS’s proffered reason for discharge was pretextual.

TAKEAWAY: Make sure you have support for any adverse action against an employee, but especially when the employee falls into a protected category (such as here with race).

In the post on Tuesday 3/1/16, we talked about the FMLA: when absences and certifications don’t match up. What is an employer to do in this situation? The employer should request recertification – allowable every 30 days unless an exception (see the post) applies. If the original certification and actual absences differ, then that might constitute a change in duration and frequency permitting the employer to recertify. The employer should request the same information as in the original certification, but updated (and may ask if the need for leave is consistent with the absences that have occurred). Recertification is at the sole expense of the employee.

TAKEAWAY: Don’t just let employees on leave run amok – monitor the leaves and whether or not they fit within the approved parameters (and take action if they don’t fit).

The post on Wednesday 3/2/16 was about the Trump campaign sued for gender discrimination. Elizabeth alleges that men and women with the same job titles were not paid equally, that men planned and spoke at rallies while she was not allowed to do that, and that when she met Trump at a rally last summer he told her and another female volunteer, “You guys could do a lot of damage”, referring to their looks. She also alleges that her discharge was gender-related (males who took the same action were not discharged). More details are in the post. Trump denies the allegations.

TAKEAWAY: It’s the season of politics, but that doesn’t give candidates carte blanche to violate the law – let’s see how this one plays out.

In the post on Thursday 3/3/16 we asked if you use the rolling method to calculate FMLA leave (and how one employer learned the hard way). This all starts with the FMLA allowing leave in a 12-month period without specifying how that period is to be calculated (but giving options – see the post). One method is a rolling year, counting backward from the date of an FMLA leave. But if the employer, who sets the method of calculation, fails to tell employees how it will calculate, then the calculation will be deemed to favor the employee (and might put the employer on the wrong side of the law).

TAKEAWAY: Employers can choose the calculation method they will use for FMLA purposes, but to stay out of hot water must tell employees about it and apply it uniformly.

The post on Friday 3/4/16 mentioned not necessarily the mark of the beast: how to accommodate sincerely-held religious beliefs. The first reference is, of course, to the case where an employee refused, on religious grounds, to sue a biometric hand scanner and the company did not offer him any alternatives (but did to physically handicapped individuals). So what should an employer do in a situation involving religious accommodation? The process begins when management learns of a religious belief that conflicts with an employment requirement. After that, the employer must determine if the belief is sincerely held – whether or not it’s widely-held or popular. The next steps are in the post.

TAKEAWAY: Just as employers have learned the interactive accommodation process for disabilities under the ADA, so too must they learn the process when dealing with sincerely-held religious beliefs. And one case is almost never the same as another.

Finally, the post yesterday 3/5/16 talked of Cheddar’s settlement with the EEOC of a sexual harassment suit for $450,000. Yep, that’s a lotta cheese! (Yeah, I know, boo hiss on the attempt at humor.) The EEOC filed suit, alleging hostile work environment by the employer allowing sexual conversations and jokes and letting a GM and bar manager subject female employees to sexual harassment and failure to remedy after complaint. Details of the actions are in the post and include touching. Yuck. Well, Cheddar’s settled and will pay $450,000 to 15 individuals plus other relief. .

TAKEAWAY: The EEOC said it best: “Having and disseminating an anti-harassment policy does not satisfy federal prohibitions against sexual harassment … Employers must also enforce it ….”

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