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ICYMI: Our Social Media Posts This Week – Apr. 24-30, 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 4/24/16, we noted: posting beach vacation photos on Facebook during FMLA leave isn’t a good idea. OK, being on FMLA leave does not mean the person can’t live their life. But there’s a limit and it was apparently reached here. Rodney was an activity director overseeing other staff. He took FMLA leave for shoulder surgery and recovery, but still co9undlt return after. The employer granted an additional month off (non-FMLA). Apparently Rodney took many fun trips during the end of the FMLA leave and the following month. He even posted pho9tos from his trips. All good, right? Well, except that some hots were of him swimming (with the recovering shoulder?) in the ocean. More details are in the post. He was discharged after the posts.  The court ruled in favor of the employer (see the post).

TAKEAWAY: FMLA leave does not mean the employee must sit at home twiddling his or her thumbs and doing nothing else. But it does mean that if the employee acts in a way contrary to the reason for leave, the employer can consider taking adverse action.

The post on Monday 4/25/16 talked about workplace retaliation under the FMLA and ADA – just (don’t) do it! This seems like a common sense kind of thing, but … With retaliation complaints increasing in frequency, don’t be on the list of respondents (of an EEOC charge) or defendants (for lawsuits). The post gives more information on what actions may not be taken under the FMLA and ADA; if those actions are taken, they may be considered retaliatory.

TAKEAWAY: Employees are entitled to certain rights under the FMLA and ADA; don’t take adverse action against them for taking advantage of those rights.

In the post on Tuesday 4/26/16 we learned we don’t want to pay $4.7M – EEOC files Supreme Court brief in CRST fee sanctions case. That’s a lot of money at stake – taxpayer money to boot. SO what is at issue? Whether an award of attorneys’ fees is appropriate when the EEOC fails to satisfy its pre-suit investigation duties but the employer was not fully successful on the merits of the case. This all started when the EEOC filed (a presumably class-action) sexual harassment suit against CRST. The trial court granted CRSTs motion for dismissal on the basis that the EEOC had not done any investigation into the specific allegations by the alleged aggreiveds pre-suit – or even attempt conciliation. Thereafter, CRST filed for sanctions by way of attorneys’ fees and costs. Again the trial court ruled in the employer’s favor, awarding $4.7M. Yes. Million. On appeal, the court reversed and remanded (for further determination by the trial court). Details are in the post. After more procedural machinations (in the post), the cert petition was granted late last year. This case was just argued in late March so we should have a decision by the end of June.

TAKEAWAY: The outcome can be important to employers who are fighting an EEOC charge or suit so stay tuned.

The post on Wednesday 4/27/16 was close to home: an ex-worker accused Allied Waste Services of discrimination and harassment. Doug, an African-American male, filed suit in federal court earlier this year. He alleged constant harassment (by his superiors). He also alleges that after a shoulder injury incurred during work, he filed a WC claim and, with permission, used a company vehicle to go to a doctor. The suit continues that he was thereafter discharged for stealing the vehicle, stealing company time and falsifying documents (all of which he denies).

TAKEAWAY: An employer is free to take legal, supported adverse action against an employee – but make sure it is indeed legal and supported in case you have to prove it in court.

In the post on Thursday 4/28/16 we noted that the reason you discriminate against foreign accents starts with what they do to your brain. Yes, occasionally science does intersect with the workplace in a way that can be helpful to employers. Scientists are finding that the way our brains process foreign accents may actually contribute to discrimination. Details on the findings are in the post. Suffice it to say that the foreign accent, especially one we can’t readily understand, results in a lessening of believability which, in turn, may result in discrimination.  

TAKEAWAY: Like many other characteristics employees possess, don’t let a foreign accent be one in which you base adverse behavior or action unless you can prove it is job-related.

In the post on Friday 4/29/16 we asked Does employees’ use of apps lead to violations of workplace policies? This is more of the BYOD saga that employers have been and continue to have to contend with. Many apps supposedly let employees discuss (or complain about) the terms and conditions of their employment (and therefore are presumably protected under the NLRA). However, such comments could lead to wrongful action like bullying or shaming and that, in turn, could turn into illegal harassment or discrimination. See the post for more details on how this might occur. It is early in the game for this type of scenario, but employers should beware.

TAKEAWAY: As with all emerging technology, employers should look carefully at apps and how far they go – or how far employees go when using them – before considering or taking any adverse action.

Finally, the post yesterday 4/30/16, noted that limiting employees’ hours to dodge the ACA’s employer mandate could violate ERISA. Everybody knows about the requirements to provide health insurance (if certain guidelines and criteria are met) and the cost of same to employers. In an effort to reduce that cost, some employers try to reduce employees’ work hours. But this could be a violation of ERISA if the recent case is followed by other courts (and upheld on any appeal). A procedural history of the case is in the post. Turning on the fact that the beleaguered employees already had health care coverage, the court said that there could indeed be a legal violation and denied the employer’s motion to dismiss the case.

TAKEAWAY: Be careful if trying to avoid the ACA mandate – but do so legally and after considering possible outcomes.

References (4)

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    Response: paper writers
    Law firms are the regulatory bodies which are introduced the lawful legal activities in the society and practices the justice in the society. The law firm are consist of the bunch of the people which is well known by the society and regulates the law in the economy.
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