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Monday
May022016

ICYMI: Our Social Media Posts This Week – May 1-7, 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 5/01/16 we asked: Could lunch periods count toward the FMLA hours eligibility criterion? Quite possibly. The case profiled in the post shows just that. Gus was scheduled to work 11-7 with a ½ hour lunch break. He never took the lunch break, but instead worked through it, eating at his desk. He never explicitly told anyone he was doing that, never got permission, and was never told not to. When he asked for FMLA leave, he was told he had not met the 1250 hour threshold. His calculations, including the lunch periods he’d worked through, indicated he had exceeded the threshold. He took time off, was suspended, and eventually discharged, after which he sued. The employer argued that it did not condone him working through lunches and even his time sheets didn’t request pay for doing so. More details are in the post. The court said it was the employer’s burden to know what its employees were doing and make sure it did not work if he wasn’t supposed to. The time worked through lunches was counted.

TAKEAWAY: Courts often side with an employer that has not knowingly permitted an employee to work certain hours, but on the off chance a court looks at the situation differently it is best for employers to keep track of what employees do and when they do it. Not knowing that information could make an employee eligible for FMLA protection earlier than the employer thinks will occur.

The post on Monday 5/02/16 noted it’s not just for employers: supervisors can also be sued for FMLA violations. Yep, personal liability. And ignorance of the law is no defense. As the post notes, liability turns on how “employer” is defined. So how could a supervisor get on the hook, even unintentionally? A common method is by discouraging an employee from taking FMLA leave by stray comments or not knowing procedures. The post talks about some of the things encompassed by the FMLA so that employers – including managerial employees – know what to look for; the post also lists other laws which, if violated, can lead to personal liability for supervisors.  

TAKEAWAY: When it becomes personal people pay more attention; whether looking to liability of the company or a manager, don’t violate any laws and you won’t have to worry about liability.  

In the post on Tuesday 5/03/16 we learned the feds sued a NYC electronics store for discrimination. The suit alleges that B&H Foto & Electronics Corp. only hired Hispanic men for entry-level laborer jobs, excluding females and most African-American and Asian applicants. The suit also alleges that Hispanic employees were subjected to racist and degrading remarks, paid at a lower rate, and more (yes, even more; see the post). The suit seeks wages, promotions and other lost benefits related to employment. There was no comment from the employer, the largest non-chain photo and video equipment store in the US. Note: the post says that this is not the first legal problem for B&H – the EEOC monitored its hiring and wage practices from 2009-12 as part of a settlement in a prior discrimination case (in which B&H also paid $4.3M to 149 employees discriminated against for being Hispanic).

TAKEAWAY: Illegally discriminating once – stupid. Doing the same or a similar thing twice – beyond belief.

The post on Wednesday 5/04/16 was about how to stay in touch and within legal bounds in the age of BYOD. We explored the various means of communication in this day and age where communication methods seem to change daily (or more frequently). Employee education and training, along with internal communication policies, are highly recommended. The post talks about the types of susceptible communications, which departments or groups may be more prone to issues, and some suggested solutions.

TAKEAWAY: Having a policy on communication, especially involving BYOD, and properly implementing it are key for every business entity today.

In the post on Thursday 5/05/16 we learned of a woman who sued a dental office for pregnancy discrimination and violation of privacy. Ada, a student in a dental assistant program, started an externship at Western Dental & Orthodontics. She was told by her adviser and Western Dental’s office manager that a successful externship would probably result in a job. On Day 1, Ada was told by the managing dentist that the externship was akin to a “four to six week working interview”. She alleges she performed well. But then she overheard a conversation between 2 employees discussing whether Ada was pregnant; it came up because a third employee had supposedly looked through Ada’s purse and found prenatal vitamins. A week after that, the one of the employees, a supervisor, told Ada there was no longer an opening in the same office but there might be one in an office twice as far away. Ada told her adviser that she’d been passed up due to pregnancy. The post gives more details. On the externship’s last day, Ada was given a farewell party and cards for her pregnancy – which Ada had not announced and which was not obvious as she did not yet show. The supervisor told Ada to check back on possible openings after she delivered. Coincidentally, Ada saw online job ads for a dental assistant at the same office she’d been told did not have an opening. Is it any wonder why she sued?

TAKEAWAY: If a situation will look fishy, an employer should take pains to ensure it is legal and aboveboard – otherwise it is the employer which could be subject to the pain of a lawsuit.

In the post on Friday 5/06/16 a Virginia woman claimed KRC fired her for being transgender. Hired and fired within an hour – is that a record? If so, KFC is not a proud record-holder. Georgia Carter says that shortly after hiring her, the KFC manager called her back, confused by her driver’s license which listed her as a male. The supervisor then told Georgia KFC couldn’t hire her as it didn’t know which bathroom she could use. More details are in the post (including that KFC later fired the manager for discrimination and offered employment to Georgia).

TAKEAWAY: PA is one of the states where discrimination on the basis of sexual identity or orientation is not illegal, but that doesn’t’ make it right. Also, the EEOC now says that Title VII covers this type of discrimination, so PA employers should beware.

Finally, the post yesterday 5/07/16 noted that just because you say so, doesn’t make it so (employee versus contract redux). How many times must we say that labelling someone an employee or a contractor doesn’t mean they legally fit into the classification?!? You know – or should by now – that this is one area in which DOL and the IRS continue to concentrate enforcement efforts. The post touches on the DOL’s mid-2015 interpretation and the factors used by a court in determining employee versus contractor status. The post also contains some suggestions on how to get it right and not just call someone a contractor and wish it to be so.

TAKEAWAY: Some ways to stay out of legal hot water on the classification issue include using legal independent contractor agreements and preparing to give up control.

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