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ICYMI: Our Social Media Posts This Week – Aug. 21 - 27, 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.

The post on Sunday 8/21/16 was about how marijuana legalization affects drug test policies. This applies in PA now too so pay attention! Pre-hiring testing could turn up a positive test for something related to a medical condition that may not require an accommodation, but if the applicant mentions it s/he might not get the job or might be known as a pot user. It’s a double-edged sword for the employee: s/he can’t be prosecuted for using the marijuana but has no protections relative to employment. (See what the post says about alcohol use.)

TAKEAWAY: The question of whether or not drug testing policies must, or will, change with legalized medical marijuana use is important and should be discussed with an employment law attorney as to the legal implications of any answers.

The post on Monday 8/22/16 asked Does an FMLA leave request double as a request for reasonable accommodation? And should you care? In reverse, YES you should care. And yes it might in the right circumstances. In the case in the post, Fred was a mixing technician. He required and was approved for intermittent FMLA leave. At some point the employer questioned it – after he was arrested for a DUI on a day he called in sick. He was fired and then sued. One of the allegations he made was that the employer violated the ADA by not treating his leave request as one for a reasonable accommodation. The trial court rejected that argument. BUT … a situation may present itself where the opposite holds true. Don’t be the case to find out.

TAKEAWAY: If an employee requests leave, no magic words are required – look at the reason, how it affects the employee’s ability to perform the essential functions of his/her job, and whether or not leave is required under either the FMLA or ADA (as a reasonable accommodation).

In the post on Tuesday 8/23/16 we asked Just how well do you understand salaried, hourly and wages? Again, do you care? Again the answer is a resounding YES. You must properly classify employees so that they are paid appropriately (and legally). “Salaried” does not necessarily equate to being exempt from overtime pay and hourly does not always equate to being non-exempt. Employers must look at the law and regulations to see if overtime is due to an employee given the facts of that person’s job situation.

TAKEAWAY: Proper employee classification for overtime pay is important, especially since the threshold changes in a few months.

The post on Wednesday 8/24/16 talked about a waitress told to wear a skirt for customers winning a sex discrimination case. That case was not in the US, but the law would be the same here. So what happened? At hire, a teenage waitress was told the dress code was black pants or skirt and black shirt.  A month later, a manager asked her to wear a skirt, her hair down, and makeup to be “easy on the eye” for customers. More details are in the post. She complained and was fired. She sued. She won.

TAKEAWAY: Sex discrimination takes many forms, all of which are illegal. Just don’t go there.

In the post on Thursday 8/25/16 we asked another question: Applicant tracking: EEOC can sue for that? You bet. And it is. It all boils down to record-keeping. As an employer you have a legal duty to retain certain records. In this case, the employer didn’t have them (information on the sex, race and ethnicity of applicants) and so the EEOC sued. And won.

TAKEAWAY: Record-keeping applies to just about everything related to the hiring process, including criteria, interviews, drug tests, pre-employment testing, and criminal and credit checks. It’s not just location anymore.

The post on Friday 8/26/16 was about a judge awarding $1,470,000 in an EEOC sexual harassment and retaliation action. Yes, you read it right, almost $1.5 million! Z Foods, a large dried fruit processor, has to pay $1.470 million in a suit accusing it of allowing male supervisors to sexually harass a class of female employees and firing any employee (male or female) who complained about it. The court found the harassment included conditioning hiring and promotions on sexual favors, continuous sexual advances, and more (in the post). The EEOC sued in 2013 after investigating and settled that claim in 2015 for $330,000. It didn’t stop, so in this case the award was the maximum allowed by law (less the prior settlement as an offset), including a finding of emotional distress by the claimants.

TAKEAWAY: It’s bad enough to violate the law and get caught once, but to do it twice takes a special employer …

Finally, the post yesterday 8/27/16 noted the EEOC fights sexual orientation discrimination using the Civil Rights Act. Yes, Title VII. This is the new frontier we’ve mentioned before. The EEOC has ruled that sex discrimination includes that on the basis of sexual orientation; now it’s putting its money where its mouth is and has filed suit. Here a gay male was harassed by his manager about his relationship with another man. The employer never disciplined the manager so the employee resigned. The EEOC alleged that had the employee been a woman having a relationship with a man, the harassment wouldn’t not have occurred.

TAKEAWAY: The case is pending, but it asks PA courts to interpret the law the way President Obama has for federal contractors and the EEOC has in its guidelines and rulings.

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