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ICYMI: Our Social Media Posts This Week – Aug. 28 - Sept. 3, 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 8/28/16 we learned that managers can no longer say they didn't know employees were working overtime. Why? A federal court in OH put liability on the employer to know how many hours its empl9oyees are working – and whether they are entitled to pay for overtime – even if the employee didn't claim overtime pay and if the company has a formal policy prohibiting overtime. Ouch. Here, the bookkeeper often worked more than 40 hours per week. She kept detailed time records but, thinking she was not eligible for overtime, only charged her regularly hourly rate for the hours in excess of 40 per week. When she learned, she sued. The defense: her boss didn't know she was working overtime. The post includes more on the defense and how the court dealt with it.

TAKEAWAY: While this case does not govern here in PA, the analysis makes sense – employers SHOULD know whether or not their employees are working overtime and whether pay is due for those hours.

The post on Monday 8/29/16 was about medical leave as a reasonable accommodation under the ADA: how far must an employer go? The EEOC certainly has something to say about this question given that it just issued guidance in May 2016. There is nothing concrete, but still the opinion that it should be considered, even beyond that under FMLA. Of course, each case stands on its own facts. The post reviews several areas, including whether or not someone is a qualified individual, how to handle requests for indefinite leave, and extensions of prior leaves (and by how long).

TAKEAWAY: Remember that the FMLA and ADA go hand in hand for medical leaves – consider requests under both.

In the post on Tuesday 8/30/16 we learned that an owner can stretch out tax sale redemption payments in a Chapter 13 bankruptcy in PA. A Bankruptcy Judge in Philadelphia recently ruled this way, so it's not binding everywhere else in PA, but it is something to keep in mind. The issue centers on whether the right of redemption after a tax sale is an asset or a claim. The Judge here decided it was closer to a secured claim, thus allowing it to be repaid over the life of a Chapter 13 plan. The post gives a nice summary of the court's analysis.  

TAKEAWAY: This might be important for someone looking to save their house after a tax sale – or, on the other side, for the purchaser at tax sale to know when his/her purchase is absolute.

The post on Wednesday 8/31/16 was about a white teacher suing the school board after being denied a job that included teaching Spanish. The teacher sued the Miami-Dade County School Board when she was not hired for a position that required teaching an hour of Spanish each day. That requirement is part of the duties for teachers in the extended foreign language track. Her attorney admits that she could not speak Spanish but said the Board could have had someone else teach Spanish for the one hour each day. She also alleges retaliation (interesting theory in the post).

TAKEAWAY: When an employment-related decision is affected by a protected characteristic, be careful of any legal implications of any action (not) taken.

In the post on Thursday 9/1/16 we noted 3 statements best left unsaid. Seems vague, but when you read the post you will see it's actually very clear. One, "personal issues shouldn’t affect your performance." The others are in the post.

TAKEAWAY: Train your managers in what they should not say to employees – it will make for a better workplace and possibly protect you from suit.  

The post on Friday 9/2/16 was about a court rejecting a lesbian's employment discrimination suit. We wonder who will settle this issue (Congress or the Supreme Court). Kimberly Hively sued her former employer (after having gone through the EEOC process) for violation of Title VII based on denial of a full-time position and a promotion due to her sexual orientation. Both the trial and appellate courts said that Title VII does not include protection based on sexual orientation (contrary to the EEOC's guidance on same). The analysis is in the post. The court here was bound by precedent, but contrary results have come down in other venues.

TAKEAWAY: Will Congress act on the Equality Act, will the Supreme Court rule, or will courts continue to issue their interpretations of whether or not Title VII covers sexual orientation?

Finally, the post 9/3/16 asked EEOC: how conciliatory should you be? Conciliation is one of the options available in the EEOC process (the other being mediation). If the employer does not want to mediate, it submits the required documents (including those noted in the post), the EEOC reviews the case and determines the charge to be for cause, and then tries to conciliate. If conciliation fails (or the employer decides not to participate), the EEOC may sue or the employee may sue (or the case may just die on its own). The post gives more details on the conciliation process.  

TAKEAWAY: Remember that working with an enforcement agency can often be a good thing, but there are both good and bad things that may come from EEOC conciliation. Talk to an employment law attorney about your best option in each case.

References (3)

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