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ICYMI: Our Social Media Posts This Week – July 24-30, 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 7/24/16 we asked If a tree falls in a forest and nobody hears it, can you still retaliate against it? Probably not. In a recent case (binding on PA cases), Kacian complained about a male manager harassing her, including asking for pictures of her in a bikini, telling her to stay off her knees (which she thought of as sexual innuendo), telling her that her regulation shorts were too short, and more in the post. The act for which the employer discharged her, which occurred after she complained about the harassment, had been overlooked for other people (except her boyfriend). The supervisor who discharged her was unaware of the complaint. The trial court found there to be no cause for retaliation if the manager didn’t know of the underlying complaint. On appeal, the court reversed, noting that the underlying complaint was objectively reasonable and circumstantial evidence (including temporal proximity and more noted in the post) could prove a retaliation claim.  

TAKEAWAY: Any time an employee complains about harassment or discrimination, an employer must investigate and ensure that no unwarranted and unsupported adverse action is taken – or it may find itself listed as a defendant in a suit for the underlying action as well as retaliation.

The post on Monday 7/25/16 told us how a federal court ruling drives home the importance of written job descriptions. The case was brought by a truck driver and cancer survivor against a prospective employer. As part of the application process, the applicant disclosed that he’d been out of work due to cancer but was now in remission. The employer did not hire him due to lacking 3 years’ recent driving experience as required by the employer’s insurance underwriter. The applicant then sued under the ADA. Both the trial and appellate courts rule din favor of the employer. Why? Because of the job description, the applicant couldn’t not establish he was a qualified individual with a disability under the ADA. Details about the job description and analysis are in the post.

TAKEAWAY: Job descriptions are important for many reasons, including describing the essential functions of the job that are used to determine eligibility for, and accommodation of, an individual with a disability.

In the post on Tuesday 7/26/16 we were busting employment law myths. First, in an at-will state, employment laws don’t apply. Yeah, right. At-will means only that either party can terminate the employment with no notice and for no reason, as long as it’s not for an illegal reason. Next, employees are entitled to due process pre-termination. Not necessarily; an employer need only do what is required under any contract or applicable law. The other myths that are busted are in the post.

TAKEAWAY: There are a lot of things that have been handed down or are floating around as to what is or is not required in the employment arena – talk to an employment law attorney to be sure you know what is or is not required for your business.

The post on Wednesday 7/27/16 noted that retaliating against whistleblowers can be costly (and how to protect yourself). If your company hasn’t yet been the subject of a retaliation suit, count yourself as lucky – but don’t count yourself out yet. Retaliation claims are on the rise (and often accompany a suit over the underlying job termination). Among others, the EEOC, NLRB and OSHA are concerned with employer retaliation. The post gives some examples of the areas in which they might be interested. So what is a good employer to do to protect itself? Some suggestions (which can vary according to the facts of each situation) include suspending first and then terminating if appropriate and letting time pass. Other suggestions are in the post.

TAKEAWAY: Employers are permitted to discharge employees, but must be careful that there is not only support for the adverse action, but that it is not being taken in retaliation for prior action by the employee.

In the post on Thursday 7/28/16 we asked What? He failed a drug test – so how can he sue under the ADA? Here, John was denied a truck driver job after he failed the medical exam. He took a drug to control narcolepsy; he gave to the company a doctor’s note explaining it would not affect his ability to perform the job. The employer’s doctor told him to get off that drug, take a different one, and see how things were in 6 weeks. He did. But then the same company doctor denied employment due to the underlying narcolepsy. You guessed it, he sued under the ADA. The court found that despite the failed drug test, the employer had not met its obligations because its doctor had not contacted his doctor to see if he could do the job.

TAKEAWAY: Employers should take pains to work with disabled individuals. Period. Or try to get a judge or jury to understand why you didn’t.

The post on Friday 7/29/16 asked Will the new overtime rule mean less or more litigation? First, remember that the new rule is effective 12/1/16 and increases the dollar threshold (to $47,476) for exemption from overtime, thus bringing more workers within its ambit. There is disagreement on whether this will have any effect on FLSA suits. The rule helps in one way: whereas now exemption depends on pay and the duties test, under the new rule one need only look to the amount of wages. If the threshold is not met, the person is exempt regardless of his or her job. So why might litigation actually increase? The post includes some ideas such as employers raising salaries to meet the threshold but not ensuring job duties are performed and employees working off the clock to make sure they get their work done.

TAKEAWAY: Employers must not only correctly classify workers as employees or independent contractors, but for the former must know whether or not they are exempt from overtime pay requirements.

Finally, the post yesterday 7/30/16 talked about FMLA notices and how a missing key piece of info kept an employee’s suit alive. John was a project construction manager at a Federal Reserve branch. His depression caused unscheduled work absences. He was eventually admitted to a hospital; despite doctors recommending a 30-day rehab program, he refused due to concerns about his job. John also turned in a form for short-term leave (which doubled as am FMLA leave request). He was approved for a month of leave but returned to work after a few days. He was assigned to work out of town. He drove to the location in a company car and checked into a hotel at company expense. But he didn’t report to the job. He was put on a PIP and after not meeting a goal, was discharged. He filed suit for FMLA interference, arguing that the company didn’t tell him about his job restoration rights (thereby allaying his fears about his job so he would’ve taken the time off). The employer’s proffered a defense (in the post), but the court let the case move forward because the FMLA notice the employer had sent him did not contain info on his job restoration rights.

TAKEAWAY: Make sure you inform employees of all rights they have under the FMLA (or other applicable laws) so they can make informed choices – and not have a simple basis to sue you.

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