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ICYMI: Our Social Media Posts This Week – Apr. 17-23, 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 4/17/16, we noted that restaurants, developers and other businesses face a wave of ADA lawsuits related to parking – and that you should know the law. Here, the suits are about handicapped and van accessible disabled parking spaces. The list of defendants includes McDonald’s and Wells Fargo. The suits allege a violation of the ADA’s requirements for parking accessibility - details are in the post.

TAKEAWAY: If you have public parking, know the law on how many accessible spaces you must have – or prepare to join a list of defendants.

The post on Monday 4/18/16 was about firing someone returning from leave – do it right and legally. This post touches on the quandary of (allegations of) retaliating against someone for taking FMLA leave and not knowing the reason for poor performance issues until the leave occurs. Here, Cynthia supervised 55 employees. While she was out on FMLA leave, many complained about her. When she returned from leave, her supervisor talked to her; her performance improved over the next year, and then in year 2 she received a satisfactory rating even though her performance had slipped some. In 2012, she took FMLA leave and had personal issues to deal with. She didn’t return the FMLA forms, so the leave wasn’t approved. Again there were complaints about her while she was on leave. Her supervisor investigated and met with her upon her return to work. The employer fired her based on poor performance. She alleged gender discrimination and retaliation for using FMLA leave. The post tells you how the court ruled on the suit.

TAKEAWAY:  As we’ve said numerous times, an employer should ensure that it has legal support for any adverse action it plans to take against an employee.

In the post on Tuesday 4/19/16 we noted that reducing employees’ hours could lead to discrimination claims under ERISA. In a first of its kind case, a federal court is allowing a suit against Dave & Buster’s to move forward. The issue is whether the company’s “right-sizing” of its workforce was for the purpose of avoiding healthcare costs under the ACA (and therefore was a violation of ERISA – see the post).  The case was filed as a class action. The name plaintiff alleged that her participation in the health insurance plan stopped as a result of the workforce realignment in an effort to reduce health care costs. Stay tuned as this case moves ahead (and others may follow).

TAKEAWAY: Don’t reduce employees’ work hours to avoid ACA obligations without thinking it through and discussing it with an employment law attorney.

The post on Wednesday 4/20/16 told us that Cessna Aircraft Company will pay over $160,000 in an EEOC disability discrimination suit. So what happened? The EEOC charged that Cessna didn’t individually assess the ability of conditional employees to perform the essential functions of their job (but instead relied on workers’ comp standards). In one case, the employee had to meet a national maximum medical improvement standard to be eligible for work even though he had an unlimited return to work note from his doctor. Cessna withdrew its offer of employment regardless.  Another example is in the post. After pre-suit conciliation failed, the EEOC filed suit. The settlement includes Cessna’s payment of $167,500 and other things (listed in the post).

TAKEAWAY: Standards - especially in an unrelated context – are not a stand-in for an individualized assessment of whether or not an employee can perform the essential functions of a job, with or without reasonable accommodation.

In the post on Thursday 4/21/16, we talked about a settlement between the EEOC and Pharmacy Solutions for $85,000 to resolve pregnancy discrimination allegations. The allegations are that 2 former employees received negative comments from the company’s owner about their pregnancies and were fired within a month.

TAKEAWAY: Don’t take adverse action against an employee due to pregnancy – treat her just like any other employee.

The post on Friday 4/22/16 asked about chat: when does it become harassment or discrimination? At issue are questions by a supervisor about when an employee plans to retire. If frequent (enough), and perhaps accompanied by other age-related comments, there might be a legal violation. In one subject case, the president thought the 55-year-old employee who was seeking a managerial promotion “would not remain with the company long enough to learn the manager’s job.” The court dismissed the case, finding the employer had a legitimate interest. The result in another case is in the post. In a third case, we are reminded that encouraging a 63-year-old waitress to retire, calling her a “stupid old yaya” and not letting her dress like younger waitresses could be illegal. Other age-related comments (such as those in the post) could also land an employer in hot water.

TAKEAWAY: Don’t use age as a factor on which to base employment decisions – it usually is not job related and will only get you in legal trouble.

Finally, in the post yesterday 4/23/16, we talked about a Med School professor who claims discrimination. The 19-year associate professor sued Yale, alleging “retaliatory denial of promotion” as a result of retaliation against her (by denying further promotion applications) for a 2012 gender discrimination complaint she had filed against the school. Details are in the post. Yale declined comment.

TAKEAWAY: This is another one we will have to keep an eye on – but it chronicles yet more concerns about impediments to women advancing in formerly all-male medical fields.

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