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ICYMI: Our Social Media Posts This Week – Jan. 15-21, 2017

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 1/15/17 we talked about a man alleging a fall in a non-ADA compliant Winn-Dixie bathroom. He alleges he tried to enter the stall with the store-provided scooter, but the scooter would not fit through the doorway. He then tried to stand up and walk in, but fell and was injured (hence the suit). More details are in the post.

TAKEAWAY: If you are going to provide an accommodation, make sure it really works!

The post on Monday 1/16/17 noted that surveillance isn't always FMLA interference. Yes, you read that right. This is a case out of the Third Circuit, a federal appeals court that governs PA (and other states). The Court said that checking to see if an employee is properly using FMLA leave may not be illegal interference. Charles, a police officer, objected to a policy and the employer retaliated by transferring him. It also investigated his use of approved FMLA leave (how it investigated is in the post). An adverse trial court ruling was appealed, the appeals court said that the FMLA has no provision that the employee has the right to be left alone during the leave. The court also said the FMLA requires a showing of harm or prejudice by the employer's violation.

TAKEAWAY: If you intend to use surveillance, make sure to do it only when needed and in a legal fashion – consult an employment law attorney.

In the post on Tuesday 1/17/17 we noted the EEOC issued enforcement guidance on national origin discrimination (and suggested you know your rights and responsibilities). Employers get the EEOC's take on the law in certain situations as well as tips to avoid future suits based on national origin discrimination. The post explains what would be considered discrimination based on national origin. The Guidance also includes some new things, such as that the EEOC interprets Title VII to prohibit discrimination based on perceived national origin. An example (and more) is in the post.

TAKEAWAY: The EEOC is interpreting statutes prohibiting discrimination in the workplace broadly – ensure that your actions do not fall within the zone of actins considered illegal.

The post on Wednesday 1/18/17 told us about a black workers' suit accusing the job agency of favoring Hispanic applicants. This occurred at the Blommer Chocolate Factory – but is not sweet. The suit was filed against a placement agency and several of its clients, including Blommer. The suit alleges that the agency used many illegal practices to avoid placing African-American workers at certain clients' locations, at the request of those clients. Using code words was but one way they allegedly carried out the discrimination. The post contains specific allegations from some of the class plaintiffs.

TAKEAWAY: Make sure all employment decisions – including hiring – are legal and not discriminatory. Period.

In the post on Thursday 1/19/17 we noted a mother-to-be had a cleaning job withdrawn over Facebook because of the pregnancy. Ugh. [NOTE: While this occurred in Britain, it would play out the same here in the US.] Holly said after interviewing and making the employer aware of her pregnancy, she was offered a cleaning job at the supermarket, with a 3-month contract leading up to her due date. However, right before she would have started, she got a FB message (the blatant text of which is in the post) withdrawing the job. Yep, clear pregnancy discrimination.  

TAKEAWAY: Pregnancy discrimination is illegal in the US and abroad. Don't take adverse action based on pregnancy or you just might find yourself in hot (bath)water.

The post on Friday 1/20/17 told us about the sneaky way the new overtime rule has already helped workers (even though a federal court put it on hold). You (should) know that the new overtime rule (increasing the threshold for overtime pay for non-exempt employees) was to take effect 12/1/16; however, a federal judge enjoined the rule so it is not yet in effect. So how did a rule that did not go into effect help workers? Good question. In preparation for the rule's effective date, employers gave many workers raises to put them over the threshold and avoid having to pay overtime. (Others took a different tact that is in the post). Some have now pulled back the raises, but this author can't imagine that is good for morale (doesn't that seem to scream that the employer gave the raise only because of the law and not because the worker is worth it?)

TAKEAWAY: It's great to be prepared before a new law or rule or regulation becomes effective, but beware of the potential downside of taking action that may not be necessary if the law/rule/regulation ends up not going into effect.  

Finally, the post on 1/21/17 noted that 60 Minutes covered ADA shakedowns. You know, all those suits being filed to allege a lack of ADA compliance in retail businesses, even if the plaintiff has not entered – or tried to enter – or purchase goods or services from the business. The post notes an example of the number of cases involving the same plaintiff and the same attorney in a short period of time.

TAKEAWAY: Yes people should follow the law (and be held accountable if they don't) – but in many instances harm should be required prior to suit being filed.

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