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ICYMI: Our Social Media Posts This Week – Jun. 26 - Jul. 2, 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 6/26/16 we talked about a restaurant forced to rehire an employee blabbing about food quality. So who’s in charge now? This is another case under the NLRA applied to a non-union employee. So if you still think it doesn’t apply to you, please get your head out of the sand. The background, in summary, is as follows: a union lost an election. One of the supporters then asked a company executive for paid sick leave for all employees (which was construed as protected concerted activity). More employees then got into the act, making posters (see the post for the contents which, I have to admit, sounds creative) and putting them in neighborhoods around Jimmy John’s locations. Management was less than happy; they removed the signs, fired the 6 employees it thought were most responsible and disciplined 3 others. The federal court ruled in favor of the employees’ legal protections, saying, in part, (1) the posters had a connection to the paid sick leave issue, (2) the posters had a kernel of truth based on company policy, (3) and Jimmy John’s sandwiches had previously suffered a norovirus outbreak, thus again connecting them to the paid sick leave issue. Oh, but that’s not all. The post details the court’s dissenting opinion and more bases on which the majority found NLRA violations while essentially shrugging off what were argued to be comments by disloyal employees warranting discharge.

TAKEAWAY: If you have not already, heed this advice now: know your obligations as an employer under the NLRA and make sure any adverse action you take against an employee does not run afoul of that law as its interpretation and reach is broadened more and more.

The post on Monday 6/27/16 was about an EEOC consent decree highlight: Employers must prevent ADA claims – or pay the consequences. These are public so the employers cannot escape others pointing fingers at them. In the first case, a paper manufacturing company will pay $187,500 plus have training for plant managers and HR staff on disability discrimination and reasonable accommodation under the ADA. The second case provides that the employer will pay $33,000 plus train managers on non-discrimination and reasonable accommodation. Seeing a trend yet? The third case is in the post but involves a bank.

TAKEAWAY: Make sure your company has a valid, legal, current policies on non-discrimination, EEO, and reasonable accommodation (including leaves) and train employees, especially HR, managers and supervisors) on the policies.

In the post on Tuesday 6/28/16 we learned RockTenn to pay $187,500 to settle EEOC disability discrimination suit. This post actually provided roe detail on the first consent decree mentioned in yesterday’s post. So what happened? Glen began to work for this paper and packaging manufacturer in October 2010 as HR manager. A few months later, he had open heart surgery and was on short-term leave until April 2011. In early March he was cleared early to return for partial days and told the employer he’d do so effective March 21. The employer terminated him March 10th. Yep, confusing. In 2014 the EEOC filed suit for disability discrimination under the ADA and this consent decree now follows.

TAKEAWAY:  Don’t forget that reasonable accommodation under the ADA can take many forms, including a leave of absence.

The post on Wednesday 6/29/16 detailed victory for an Iraq war veteran. The length of the saga is detailed in the first sentence of the post: “He fought for the country, then fought for his state job and now, after eight long years, two gubernatorial administrations, two attorneys general and hundreds of thousands of dollars in legal fees, the battle is over – and he won.” The issue was discrimination in his civilian job because of his military service. The state Supreme Court ruled that suit could be brought under USERRA even as against a state employer – thus affirming there is no sovereign immunity. The background facts are in the post and include deployment to Iraq and Kuwait in 2005, returning in 2007. The suit was filed in 2008. If other states follow this lead, this could be an important casse for veterans.

TAKEAWAY: There are so many veterans in civilian jobs – know the law, especially that it prohibits workplace discrimination or retaliation and gives veterans the right to return to civilian jobs with the same pay, benefits and status had they not bene on active duty.

In the post on Thursday 6/30/16 we talked about a woman suing a movie theater chain in PA for allegedly violating her FMLA rights. Now showing on a big screen near you. (Don’t worry, I won’t be switching careers any time soon.) Kim filed suit in federal court in Harrisburg alleging violations of the FMLA, ADA and PHRA. The allegations include that she started to work for the defendant’s predecessor in 2002 and continued in the same position when the defendant bought the company. She began to take time off to care for a parent in 2014. The company did not tell her about FMLA leave but rather suggested she use vacation time. Upon her return, the company told her she could return at a lower pay rate and gave her one hour to decide on the offer. More in the post.

TAKEAWAY: This case is still pending; the employer has denied the allegations and a mediation conference is scheduled for 8/16/16. Stay tuned. In the meantime, ensure your company follows applicable law relative to leave and return from leave under the FMLA, ADA and PHRA.

The post on Friday 7/1/16 noted 29 former employees sue General Mills claiming age discrimination. Holy Cheerios! The plaintiff employees were all terminated in late 2014 or early 2015 during a restructuring. The suit alleges that employees age 40 and older were more than 3 times as likely to be terminated as younger employees. Statistical evidence cited by the plaintiffs appears to bear out their claims. See the post for the numbers. GM has denied the allegations.

TAKEAWAY: The mere fact that an older employee is terminated and a younger employee is not does not necessarily give rise to a legal claim, but the employee should have valid legal support for the termination in case a charge or suit is filed.

Finally, the post yesterday 7/2/16 talked of a blind man claiming McDonald’s violated the ADA by restricting drive-in customers. Yes, a suit against Ronald’s house. I know you are wondering what happened … Scott is blind. He apparently likes to use McDonald’s drive-up window late at night as a pedestrian. He says when he tried to do that in August 2015, he was laughed at and refused service. He filed suit under the ADA. So who’s laughing now?

TAKEAWAY:  Not only is this bad publicity for the employer, but it is never good business to violate the law (if indeed it did here). To prevent your company’s name from being listed as a plaintiff in a suit, know the law and apply it properly.

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