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ICYMI: Our Social Media Posts This Week – Aug. 7-13, 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 8/7/16 we talked about civility training – rock or hard place: comply with EEO laws or violate the NLRA. What? The 2 seem a bit at odds, with compliance with one resulting in possibility liability under the other. Promoting civility might be interpreted by the NLRB as impeding the ability of workers to discuss the terms and conditions of their employment – and thus be a violation of the NLRA. That doesn’t’ mean employers should give up on civility. Rather they need to draft policies with the NLRA (and the Board’s ever-broadening interpretations) in mind. Some examples of acceptable policies are in the post.

TAKEAWAY: All workplaces – even non-unionized – must keep in mind the broad brush with which the NLRB now paints – and how that may bring color within the lines of existing handbook provisions or policies. Make adjustments before liability attaches.

The post on Monday 8/8/16 was about a suit alleging sexual harassment at a dessert manufacturer – all was not sugar and spice there! Randy filed suit against his former employer and former manager individually. He was hired as a production shift manager in November 2013. A year later, he got a new plant manager, Taylor. Taylor made inappropriate comments, including telling an employee that a camouflage hat would be sexy for her to wear (and other things in the post). Randy complained to local management and HR, and even to Taylor too. Taylor’s response was basically that’s me, too bad, so sad, take it or leave. After another manager quit due to Taylor’s harassment and Taylor directed performance contrary to law or company requirements, Randy talked to Taylor. Taylor then put Randy on a PIP and eventually fired him. I bet you’re not surprised that Randy sued! The company and Taylor are defending on several bases (see the post) including alleging Randy’s work was deficient.

TAKEAWAY: Train managerial personnel – and if they say or do something wrong (or illegal), don’t try to cover it up. Rather, make it right and ensure it never happens again. The cover-up (adverse action) often leads to more liability than the initial behavior would have.

In the post on Tuesday 8/9/16 we talked about the new OT: Beware assumptions about hours. This is oh-so important with DOL cracking down on misclassification (and the need to pay for overtime if appropriate). This refers to the new OT regulations going into effect December 1st. Maybe you’re thinking about converting exempt employees to hourly to avoid paying overtime for all of those hours worked over 40 per week? Read on. A survey showed that employers sometimes don’t know what hours the exempt employees are really working – and that some might actually want to work fewer hours.

TAKEAWAY:  Before the deadline, work through classification and working hours with employees – based any decision on your company’s needs and, if possible, their wishes. You may find out the new threshold doesn’t change anything after all.

The post on Wednesday 8/10/16 was a reminder to train your managers: don’t tell an employee on FMLA leave to “get it together”. When it happened here, it cost the company $500,000. No typo there. Amanda requested – and was approved for – intermittent FMLA leave. After Amanda was out a few days, her supervisor contacted her, said she’d spoken with HR, and was concerned about the time off. The manager then told Amanda to ‘get it together” and take a continuous leave. Amanda then did that. After she returned, the employer took some actions she deemed adverse (see the post) and was finally fired. Amanda sued. A jury awarded $30,000 lost wages, $445,000 compensatory damages, and $25,000 emotional distress. Huge!

TAKEAWAY:  Train managers on what they can and cannot say and do relative to the FMLA and ADA (since they often overlap). Help protect your company.

In the post on Thursday 8/11/16 we noted that the FMLA does not require a warm welcome back to work. Nor must the employer forget about pre-leave work performance deficiencies or talk about them in a courteous manner. In this case, Debra took approved FMLA leave to end Sept. 2014. During the leave, her mother died so her leave was extended. Upon her return, Debra met with the person who took on her job responsibilities while she was out and the admin support person; neither warmly welcomed her or offered condolences on her mother’s passing. They did, however, give her a list of tasks she’d not completed pre-leave that she’d said she would. Debra got upset, stood up, and quit. To emphasize the quit, she took other actions in the post. The next day, Debra tried to retract her resignation; the employer said no. Debra sued for FMLA retaliation and constructive discharge. The post contains the court’s ruling on the employer’s motion for summary judgment.

TAKEAWAY: You don’t have to like your job or the people who you work with; similarly, they don’t have to like you. You just have to do your job properly and work together.

The post on Friday 8/12/16 was about a woman claiming the manager posted photos, derogatory comments during the job interview. Now that’s just wrong! The suit alleges the hiring manager took pictures and posted them on Facebook with less than favorable comments during a job interview. Among other things, the posts refer to her as a slut and imply that she is mentally retarded. Worse yet, comments to the post were racially tainted. Of course, it all started when she shoed for the interview and an employee told the hiring manager there’s “some ‘lil slut out here to see you”. Details are in the post, but they are not pretty. As of July 14th, the manager was still employed by the company.

TAKEAWAY: Managers should be trained so as to keep the employer out of hot water. Even if trained, their actions must be watched as they are imputed to the employer and can result in legal liability if they are illegal.

Finally, the post yesterday 8/13/16 talked about 4 myths encountered by first-time homebuyers. Yes, not everything you read on the internet is true. So what are the myths? (1) Renting is always a bad idea – you’re throwing away money. Not necessarily. Each person’s situation must stand on its own. Don’t overgeneralize. (2) Condos are maintenance-free. Well, sort of. The owner doesn’t have to do a lot of the maintenance or actually find people to do it, but that is part of the periodic dues or assessments paid by owners. The other myths are in the post.

TAKEAWAY: Don’t believe everything you see or hear – especially when it can have serious implications for you financially.

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