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ICYMI: Our Social Media Posts This Week – June 12-18, 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 6/12/16 we noted the NLRB said you can’t stop employees from taping meetings. NOTE: this applies to all employers subject to PA law. In a recent decision the NLRB ruled that blanket policies prohibiting the use of devices to record conversations and company meetings is illegal, thus finding the subject policy (“… recording conversations, phone calls, images or company meetings without the approval of top management or consent of all participants would result in discipline up to and including discharge”). The NLRB, as it has been want to do, found the policy might interfere with Section 7 rights to protected concerted activity. How, you ask. Even one person might record something to further a course of group action and the exercise of the protected rights cannot depend on permission of the employer or all parties’ consent. This can be adapted to specific situations and in order to comply with applicable law (see the post for one such example).

TAKEAWAY: As we’ve seen, ALL EMPLOYERS MUST BE CAREFUL NOT TO ABRIDGE EMPLOYEES’ SECTION 7 RIGHTS; doing it without meaning to is no legal defense. Have policies reviewed by an employment law attorney to ensure they pass legal muster. And make sure you also comply with PA law relative to recordings.

The post on Monday 6/13/16 told us the failure to respond to a request for reasonable accommodation cost AT&T $250K – so don’t be like AT&T! The EEOC filed suit against AT&T on behalf of Miguel Melendez. He began working for a predecessor company in 2001 as a switch technician. In 2009, Miguel became visually impaired; in 2009 he was medically cleared to return to work and requested a reasonable accommodation (adaptive technology software). He never got a response to his request but 1-1/2 years later was removed from his position and not permitted to return to work. He filed a charge with the EEOC in 2010. See the post for more details about the suit and its resolution.

TAKEAWAY: When an employee requests reasonable accommodation, respond; don’t stick your head in the sand like AT&T (unless you also have a purse like AT&T).

In the post on Tuesday 6/14/16 we talked about protecting trade secrets from theft by ex-employees. Atlantic Marine Construction Company sued its former VP of Construction and his new employer alleging trade-secret theft after he was fired (using software to access the information). Atlantic says he installed the software on his work computer without authorization, then logged in post-discharge to steal information (the number of times of access and information taken are in the post). The suit is brought under the Computer Fraud and Abuse Act and state law.

TAKEAWAY:  Might this have been avoided by wiping clean the ex-employee’s computer immediately at or after discharge? We don’t know for sure, but the post contains that and other tips on how to minimize this type of risk.

The post on Wednesday 6/15/16 listed 13 reasons why non-union workplaces can’t ignore the NLRB (and suggested you let us help your business comply). Yes, all businesses must sit up and take notice! The NLRB has greatly broadened the definition and application of “concerted protected activity”, thus giving it jurisdiction (and authority to remedy any deemed violations). So in what areas might the Board enter your business life? Socmedia policies, off-duty access restrictions, and many more listed in the post.

TAKEAWAY: Again, even if you are not a union workplace, make sure your business has the appropriate policies in place and that they meet the current legal mandates of the NLRB.

In the post on Thursday 6/16/16 we noted that layoffs for the inability to speak English may be discriminatory. Does it seem strange to you that a plastics manufacturer hired Hispanic and Asian employees, despite their inability to speak English, then fired them for that reason? Well, a federal court agrees. The details are in the post, but suffice it to say the company laid off a large percentage of its Hispanic and Asian employees and replaced them with a majority of Caucasians to increase English-speaking employees. The EEOC sued on the basis of race or national origin discrimination. The employer moved for summary judgment, asserting (apparently with a figurative straight face) that the layoffs had no discriminatory motive but rather were based on English language skills which, it said, was a deciding factor in whom to lay off. The laid-off employees argued that the language preference could not be a non-discriminatory reason. The court ruled against both sides, but did note a strong correlation between non-English-speakers and national origin, a protected class. So now the case goes to a jury to decide if the language preference was legitimate or an excuse to discriminate.

TAKEAWAY: Make sure any adverse decision, even one as seemingly innocuous as language skills, is legal and supported by business necessity.

The post on Friday 6/17/16 confirmed that Yes, you can be fired for being pretty. (It then asked if this should be legal.) So you are cute and work for someone whose spouse is worried about a possible affair – and then the boss fires you. Do you have any legal recourse? Many courts say no. Dilek Edwards just found that out in NY. She taught yoga and worked as a massage therapist for a chiropractor. Her boss’s wife co-owns the practice and is COO. After about a year of employment, the boss told Dilek that his wife might become jealous because she was “too cute”. Four months later, the wife told her – via text! - she was “unwelcome”; the rest of the test is in the post. The next day brought an email from the wife firing Dilek. Later she filed sued, alleging gender discrimination under state law (which in NY is broader than in PA). Despite the broad statutory language, the court said she was not in a protected class (attractive) as it applied only to transgender or gender identity cases. Something similar happened in Iowa several years ago.

TAKEAWAY: While courts have expanded the reach of gender discrimination, it can still depend on the statutory language and drafters’ intent as interpreted by the courts. Make sure you know the language and interpretation before taking adverse action that may be illegal.

Finally, the post yesterday 6/18/16 noted a retirement community is to pay $132K to settle a suit for failure to accommodate a pregnant nurse. This case comes to us out of Philadelphia, apparently not always the City of Brotherly Love. This suit by the EEOC tells us that Amy worked as an RN/charge nurse and campus supervisor for 8 years before she requested a lifting accommodation for a medical disability. Apparently the employer refused to accommodate despite having accommodated non-pregnant employees with similar restrictions. Instead of accommodating Amy, the employer put her on indefinite leave due to her pregnancy and disability and told her to re-apply after birth and no restrictions existed. She did, but (as if there wasn’t already enough fodder!) the employer refused to rehire her and made an illegal medical inquiry. So the EEOC sued. Under the settlement, she gets $132,500 and the employer has other things it must (or must not) do.

TAKEAWAY: Pregnancy itself is not a disability, but can result from or in other conditions that are a disability to be accommodated – don’t brush it aside or you will find yourself rowing upstream without a paddle.

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