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ICYMI: Our Social Media Posts This Week – May 22-28, 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 5/22/16 we talked about women accusing US Soccer Federation of gender discrimination – NOT the example to set for our youth! The gist of the federal EEOC charge is that the women allege the Federation paid them ¼ of what it paid to men. And that is despite the fact that the women’s national soccer team revenues outpaced that of the men’s team for the 2016 fiscal year.  The Federation’s statement included that it is “open to negotiation”. It is now up to the EEOC to investigate the charge. More details are in the post.

TAKEAWAY: Athletes at all levels may play the sport for fun or pay, but when for pay the laws of gender equality apply.  

The post on Monday 5/23/16 warned: Watch out employees: comply with policies or lose FMLA rights. The end of story is a federal court ruling that an employer legally discharged an employee who did not follow the leave policy while on intermittent FMLA leave. The story itself is that the employee of Kellogg USA had used FMLA leave on about 90 – count ‘em, 90 – occasions before requesting and getting approved for continuing, intermittent FMLA leave. Company policy required certain notifications (see the post). A written warning was issued the first time the employee did not follow the policy. After that, the employee took 3 additional intermittent leaves without following the policy. Each resulted in the assessment of points and the point total led to termination. Details are in the post.

TAKEAWAY: Courts can and do recognize that employers are entitled to enforce valid, legal policies – and that an employee is subject to discharge if s/he does not comply with the policy.

In the post on Tuesday 5/24/16 we talked about a card dealer having suing a casino for discrimination. Close to home, the former dealer at Valley Forge Casino Resort alleged discrimination and discharge based on his medical disability after having been employed there 3 years. He said he had rheumatoid arthritis and that after taking intermittent FMLA leave, management treated him differently (see the post for details), suspended him and eventually discharged him in June 2015.

TAKEAWAY: Employers can deal with their employees how they see fit as long as there are no legal implications – discrimination and retaliation being included.

The post on Wednesday 5/25/16 taught that Mavis Tire will pay $2.1M to settle EEOC class sex discrimination lawsuit. That’s a lot of rubber meeting the road! The suit, brought by the EEOC, alleged that Mavis consistently refused to hire women for field positions, including managers, assistant managers, mechanics and tire technicians (and that Mavis also did not make, keep and preserve employment records). Conciliation failed. The parties then entered into a settlement which includes Mavis paying $2.1M to 46 women (along with other actions and monitoring).

TAKEAWAY:  An employer who violated the law once might be forgiven (if it makes the applicant or employee whole); but an employer who consistently and systemically discriminates on the basis of gender will end up in costly, public legal trouble.

The post on Thursday 5/26/16 was about discrimination arising from disability: 5 examples. Keep in mind that while the post dealt with foreign law, the same concepts apply in the US under the ADA. Further, each example can depend on the facts of the individual case and may not apply to every situation. So what examples did the post include: dismissing an employee for disability-related absence. Failure to consider suitable alternative employment. And 3 more in the post.

TAKEAWAY: If an employee has a disability that qualifies him or her for ADA protection, then the burden shifts to the employer to begin the interactive accommodation process. Failure to so act leaves the employer open to legal liability.

The post on Friday 5/27/16 noted that HR audits can be an effective management tool (and that Austin Law Firm can help you with such an audit). HR audits vary according to the needs of the client entity. Some oft-included parts of an audit are itemized in the post, including policy and document updates and employee classification analysis.

TAKEAWAY: An HR audit now can save an employer much legal headache later by ensuring legal compliance.

Finally, the post yesterday 5/28/16 reminded us that napping is not notice of the need for FMLA leave. Sally, employed as a nurse, occasionally took off from work for migraines. HR asked if any accommodation was necessary. Sally said no but requested FMLA intermittent leave. The employer told Sally to let a manager or co-worker know if she was taking intermittent leave. At one point during a shift, to ease her migraine-related sensitivity to bright lights, she went to a dimmer room across the hall to monitor a patient. Later that shift, after taking migraine meds, Sally became flushed and dizzy. She went to the same dimmed room, sat down, closed her eyes, and (unintentionally) fell asleep. Sally was woken up by a co-worker. Sally called in sick the next few days and did not check emails or use her home phone. The employer was trying to contact her during that period to arrange a meeting. Sally was discharged for sleeping on duty. Sally brought sued, alleging that the employer knew of her condition, that the condition acted up that night and caused her to fall asleep, thus the discharge was unlawful. The employer countered that the discharge was for abandoning the patient and sleeping on the job (both without notifying anyone). Read the court’s ruling in the post.

TAKEAWAY: Once again, a policy, if evenly enforced, can win the day for an employer. Make sure to have appropriate policies and evenly enforce them.

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