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ICYMI: Our Social Media Posts This Week – Aug. 14 - 20, 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 8/14/16 we noted you don’t even have to be disabled for ADA protection – remember “record of” and ‘regarded as” prongs! The employer, a blood bank, placed an employee on a deferred donor list when it found he had an active blood infection. After learning of that, the supervisor fired him. The EEOC sued for ADA violation for a perceived disability or record of disability. (And to make it worse, subsequent tests showed the employee did NOT have the infection.) The employer settled the suit with the EEOC for $60,000 and other relief (noted in the post). 

TAKEAWAY: The most common use of the ADA is indeed for an actual disability, but keep in mind the other prongs too to keep you and your business out of legal trouble.

The post on Monday 8/15/16 was about a manager being fired after giving out best butt award. Yes these things really happen! A female server at a bar-restaurant chain was given a “best-butt” award by her manager at a company party in front of 50 co-workers. She was then asked to turn around so they could take pictures of her behind. The manager was subsequently “awarded” a discharge and the owner ordered company-wide sexual harassment training. See the post for more details.

TAKEAWAY: An employer can’t unring a bell, but quick action to show the action was not condoned goes a long way toward preventing suit by the employee subject to the untoward (and possibly illegal) action.

In the post on Tuesday 8/16/16 we noted sick leave? Ok to ask for doctor’s note. Employees are not entitled to complete privacy for medical issues. Here, Danny, a machinist, told a supervisor he needed time off for medical testing. He was out a week. He did email his boss with an update (see the post). When he returned, he was asked for a doctor’s note, but Danny never provided it.  He was discharged for absence without approval per policy. Yep, he sued, alleging discharge for disability. He lost when the court agreed the employer could require medical documentation.

TAKEAWAY: Don’t let employees dictate to you – rather, ensure that your policy requires documentation for any medical-related absence.  

The post on Wednesday 8/17/16 was about 5 best practices to terminate an employee. Let’s jump right to it. (1) Minimize the employee’s embarrassment. This goes a long way to fending off possible suits later. It also allows the employer to remain in control of the situation (see the post for why this is important). (2) Don’t spend time debating the decision with the employee. Instead, explain the next steps. (3) Don’t apologize for the decision. The decision should have valid basis, so there is no reason to apologize. The other 2 best practices are in the post.

TAKEAWAY: It is never easy or fun to discharge an employee, but done right it can be seamless and leave no basis for later suit.

In the post on Thursday 8/18/16 we talked about laws you can use – common condominium questions. More and more people are living in planned communities – those with condo or homeowner associations. The laws in PA governing both are very similar. The Q&A in the post gives some basic information that you might find helpful – for yourself or family or friends thinking about or already residing in a planned community.

TAKEAWAY: It is important to understand the legal rights and obligations of both owners and the Association before buying a house in a planned community. Let us help you.

The post on Friday 8/19/16 asked Words matter at work: is “fitting in” code for bias? Remember not to go in the back door to a place you wouldn’t enter through the front door. “Fitting in” is an example. Adele, an African-American, learned that 2 Caucasian men doing the same job were paid more than she was paid. She complained and her boss put in for a pay raise for her. However, her new supervisor cancelled the request and started other actions (see the post for the pettiness). Adele complained and applied for other positions. The new supervisor nixed it each time, saying she would not “fit in”. Who got the jobs? Caucasian men. Adele sued. The case is still pending, having survived summary judgment.

TAKEAWAY: Make sure workplace decisions, especially those that are adverse, have a sound legal basis. If not, don’t make that decision.

Finally, the post yesterday 8/20/16 noted the ADA allows an employer to reduce an employee to part-time after return from medical leave. So what happens when an employee is out on medical leave and the employer finds out that the duties can be accomplished by a part-time positon rather than the full-time hours the employee had been working? A federal court recently said that is a legitimate business reason under the ADA for changing the work status. There, the employee had sued for violation of the ADA since she was not reinstated to her former position.

TAKEAWAY: Changing a position for a valid business reason while the employee is out on leave under the ADA may pass muster, but it probably won’t when examined under the FMLA. Consult legal counsel before taking any action like that.

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