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ICYMI: Our Social Media Posts This Week – June 5-11, 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 6/5/16 we talked about the Philadelphia School District denying ADA violation, must schedule settlement conference. A former teacher alleged the District discriminated against him due to a medical condition, then retaliated when he complained. The post talks about allegations that his condition became worse due to requirements that he move metal file cabinets and heavy bookshelves when the temperature exceeded 90 degrees and being assigned to a third-floor classroom (with no elevator). The parties dispute whether he had a qualifying disability but are now under order by the federal judge to schedule a settlement conference. Stay tuned.

TAKEAWAY: While the ADAAA broadened the definition of disability, it is not a sure thing that an employee’s disability qualifies for protection; both parties should satisfy themselves that this first step is taken before going any further in a case.

The post on Monday 6/6/16 was about workplace discrimination: don’t call a transgender employee “It”. Gender identity is the newest category of discrimination moving through the legal system, from administrative to judicial stages. It’s playing out in NY and may be coming to you soon. Victor sued Whole Foods in federal court alleging harassment and discrimination because he is transgender. He was born female but transitioned to male prior to his employment. The claims include that his co-workers referred to him as “she” or even “it”. More claims are in the post. Obviously at this stage there is neither judgment nor settlement on the suit.

TAKEAWAY: The EEOC has said that sex discrimination includes discrimination on the basis of gender identity – don’t be the defendant in a lawsuit to see if courts agree.

In the post on Tuesday 6/7/16 we talked about an $800,000 discrimination lawsuit: former electrician sues city. Yes, ouch! Heather sued, saying she was discriminated against because she is a lesbian and then retaliated against (fired) for filing complaints about the discrimination. More details are in the post, including that after her first complaint she was forced to undergo a psychological exam prior to continuing to work and her boss had called her clothing a “Canadian Tuxedo”.

TAKEAWAY: Stray comments, even if intended to be humorous, and actions might miss their target and subject an employer to liability – stop them all before they start.

The post on Wednesday 6/8/16 was about probationary periods at work: complying with employment laws. The post hits 6 key points, including that probationary periods have no special statutory status and that employers must investigate grievances from probationary employees. The others are in the post.

TAKEAWAY: Remember that laws can apply beginning at the application stage and thus include probationary employees; likewise, an employer’s policies might cover probationary employees too. Make sure to follow and evenly apply all policies.

In the post on Thursday 6/9/16 we noted that (ICYMI), Governor Wolf expanded non-discrimination protection for PA state workers, contractors. Recently the Governor signed executive orders broadening protection for employees and contractors from discrimination based on sexual orientation and gender expression or identity. There is currently no similar statute affording all employees in PA the same protections, but this is a first step.

TAKEAWAY: The train has left the station; protection from discrimination and harassment based on gender identity is reality for PA state employees and contractors and, one day, may be more than a wish for all PA employees.

The post on Friday 6/10/16 told us that Neenah Paper paid $33,000 to settle a disability discrimination suit. Neenah is a manufacturer of premium paper; it recently settled a disability discrimination suit. The suit alleged that it refused to allow Kristoffer to return to his job on the production floor for 7 months because of his disability – despite doctor’s clearance – and that it required him to take medication at work under observation. More details are in the post. The suit settled, but this author’s guess is that other employees were not treated the same way as was Kristoffer.

TAKEAWAY: Employers can certainly make sure employees are not a danger to themselves or others before letting them (return to) work, but that must be accomplished in a legal, even-handed, evenly-applied manner.

Finally, the post yesterday 6/11/16 noted that unreported working lunches may still be work time. Yep. Be careful. While the case here came out of a federal court in Illinois, the principles might carry over to other states. There, Michael sued the IL Dept. of Corrections for FMLA violation for firing him due to absences he says should have been protected leave. The DOC moved for summary judgment on the grounds that Michael had not worked enough hours for FMLA eligibility, but the court denied the motion. See the post. While the DOC argued based on time records, Michael said he’d never taken the ½ hour lunch break and ate on duty. DOC then argued it was unaware and never sanctioned that, so the hours shouldn’t count (and had he applied for OT, it would have been approved). In denying summary judgment due to a material dispute, the court in part said that the burden was on DOC not only to know about the work, but to take steps to prevent unauthorized work. The case will move ahead.

TAKEAWAY: So what can an employer do to minimize its risk for this type of situation? Have a clear policy and enforce it, minimize the chances for off-the-clock work, and don’t automatically deduct time for unpaid meals or other breaks (make the employee affirmatively record the break time).

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