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ICYMI: Our Social Media Posts This Week – July 17 - 23, 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 7/17/16 we talked about how hiring for culture fit becomes employment discrimination. People tend to hire and promote others like them – but that could be discriminatory. So what’s the new way employers try to get around their biases and predilections? By saying the person wasn’t a good culture fit. It is really another name for the same actions – taking employment action based on personal likes and dislikes. The post mentions just one way some managers apparently decide whether to hire someone: how fun the applicant would be to kill time with while waiting for a flight. More are in the post. One thing a study found is that “sharing a love of teamwork or a passion for pleasing clients” was not evidence of culture fit. Hmmm.

TAKEAWAY:  Employers must keep in mind that taking adverse action – including not hiring an applicant – for any reason that is not directly job related can result in legal liability for discrimination (most often on the basis of a protected characteristic). Just don’t go there.

The post on Monday 7/18/16 we noted that an Ex-lovers’ spat for harassment will stay in high school, not court. A teacher in NY filed suit for sex discrimination and retaliation, alleging the school district treated him unfairly after his ex-wife – who is also his supervisor – reported he was harassing her during the school day. The judge found nothing of which he complained was an adverse employment action under Title VII. SO, the background. John and Kristy were married co-workers; during the divorce proceedings, she filed administrative complaints and a police report and then got a TRO against him. The basis of her complaints is in the post. The judge found that John “suffered a series of minor indignities, which he found to be personally offensive, but which had no discernible impact on the material terms and conditions of his employment.” More of his allegations and the court’s analysis ae in the post. .  

TAKEAWAY: As always, make sure the facts support the allegations, whether in a complaint, charge or lawsuit.

In the post on Tuesday 7/19/16, we learned the Newark Port Authority automobile processing facility will pay $350,000 to settle an EEOC race discrimination suit. FAPS, Inc. is one of the country’s largest auto re-delivery service firms – the bigger they are, the harder they fall. Here the EEOC charged that FAPS engaged in a pattern or practice of discrimination against African-Americans in recruitment and hiring, refused to hire qualified African-Americans, and falsely told African-American applicants that no positions were available when they were. More details are in the post. FAPS will pay $350,000 plus provide other relief.

TAKEAWAY:  Yep, another example of making sure the facts support your argument – whether it be that a violation occurred or something in defense of such allegation.

The post on Wednesday 7/20/16 was about when tragedy strikes: how employers can assist after mass shootings and disasters. Timely (and sad) indeed. Some of the things touched on in the post include leave and other benefits for affected employees or their family members, FMLA, ADA, what the company should do if an employee died, what else an employer might consider, and more.

TAKEAWAY: Employers can help themselves, their employees and perhaps others in the face of a mass disaster while remaining within legal constraints.

In the post on Thursday 7/21/16 we read about a McDonald’s worker fired for being HIV-positive. Yep, ugh. The allegations in the suit filed by the EEOC include that the employee was fired after admitting to the GM that he had “an interest” in a co-worker and telling the co-worker that he was HIV-positive. Apparently a week prior to termination he’d been questioned by a manager and was told he might lose his job because the employer had previously fired an HIV-positive female employee.

TAKEAWAY: Employers, do not take adverse action against an employee (especially if based on a protected characteristic) unless it is clearly job-related. Just don’t do it.

The post on Friday 7/22/16 was about pre-offer background checks: employer beware. May an employer conduct a background check on an applicant prior to extending an offer of employment (even if it usually does the background checks post-offer)? While legal, it’s probably not a good idea for several reasons, including that it deviates from normal practice (and may form the basis for a later suit) and may reveal information about a protected characteristic that is not job related (and, again, may form the basis for a later suit). Other reasons are in the post.  

TAKEAWAY: Background checks on applicants can be legal if done properly, but the timing is also important.

Finally, the post yesterday 7/23/16 told us 15 tactics to prevent FMLA abuse. So what are these proactive steps employers can take? Training managers. Using the rolling method to track leave. Requiring concurrent leave. Treating people evenly. And 10 more in the post.

TAKEAWAY:  Employers must know how to respond when employees ask for FMLA leave and also how to (hopefully) prevent that leave from being abused. That way, everyone is happy.

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