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ICYMI: Our Social Media Posts This Week – Jan. 8-14, 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 1/8/17, we talked about dress code and grooming policies: how to express how to dress. Yes, dress code and grooming policies can be legal; yes, you should review them carefully and periodically to make sure they remain legal. Workplace attire and grooming has changed thanks to millennials – but that doesn't mean the employer gives up all control. The post lists a few tips to keep in mind: consider the culture, don't discriminate, define Casual Friday, and more in the post.

TAKEAWAY: Work with an employment law attorney to ensure your dress code and grooming policies are legally compliant – and when they are, uniformly enforce them.

The post on Monday 1/9/17 mentioned the EEOC alleges McDonald's unlawfully fired an HIV-positive employee under the ADA. In case that wasn't enough, the EEOC also says McDonald's has an illegal policy requiring employees to report their prescription drug use. McDonald's has settled for $103,000 (plus other things). See a bit more detail in the post.

TAKEAWAY: Make sure managers know what to do with various scenarios under the ADA – and that they do it uniformly.

In the post on Tuesday 1/10/17 there was a legal alert re impaired access: ADA website accessibility lawsuits on the rise. Remember that public websites should be accessible to the blind and visually impaired too. Suits are becoming more common, especially in the few industries mentioned in the post. 2016 brought suits against Domino's Pizza, Potbelly Sandwich Works, Reebok, Panera Bread, and more. You don't want your name to be on the list!

TAKEAWAY: If your website is determined to be a "place of public accommodation" under the ADA, then it must be accessible to the blind and visually impaired – make the necessary changes soon.

The post on Wednesday 1/11/17 was about Sikh truckers reaching a settlement in religious discrimination case. It was an expensive lesson. The employer wanted Lakhbir Singh to cut some of his hair for a drug test – but that would have violated his Sikh beliefs. No alternative was offered to him or others in the same situation. The employer, J.B. Hunt Transport Services Inc., also acted wrongly about a urine test – see the post. Eventually, the employer agreed to alternative testing to accommodate their religious beliefs.

TAKEAWAY: Often there is not just one way to do something – and there should be another if the first interferes with someone's religious beliefs. Find the other way and stay legally compliant.

In the post on Thursday 1/12/17 we looked at the EEOC's FY 2016 performance report – which is indeed interesting. Some tidbits: the EEOC got more than $482M (yes, million) for victims of discrimination in fiscal year 2016, the vast majority of which came in other than through suits. The EEOC resolved over 97,000 charges, an increase over FY15. It also took in over 585,000 calls and 160,000 pre-charge inquiries. Those are huge numbers and very telling as to how long is the road to alleviate all illegal discrimination. More details are in the post and the report (for which the link is in the post).

TAKEAWAY: Even though no names are listed, don't become a statistic in this or future years; know the law and follow it. Contact an employment law attorney for assistance.

The post on Friday 1/13/17 was about targeting FMLA fraud and abuse: moonlighting. Is it always something that should lead to termination of the employee? (Hint: no). The post suggests some steps to take when you find out, including surveillance if warranted under the circumstances. Just make sure that whatever you do is legal!

TAKEAWAY: Don't just fire someone you catch moonlighting during an Fapproved MLA leave – that might land you in expensive hot water.

Finally, the post yesterday 1/14/17 noted an express accommodation request is not required under the ADA. Hopefully that is only a reminder to you, not something new. In the case in the post, a medical tech who was unable to complete CPR training after surgery gets a trial on her ADA claim – despite having never specifically requested an accommodation. She had gotten approved FMLA leave for surgery and a doctor's return-to-work form with limitations noted on it. The employer required CPR certification; she informed the employer her doctor was requiring more PT before being able to complete the CPR certification. She was discharged for not being able to do CPR. The trial court found that an essential function and granted summary judgment for the employer. On appeal, the decision was reversed (and the case will go to trial on the issue of whether she made a request for accommodation sufficient to trigger's the employer duty to begin the interactive accommodation process.

TAKEAWAY: As noted in the post, once you find out about an employee's disability and any parts of the job s/he finds difficult due to that disability, begin the accommodation process. Don't stick your head in the sand waiting for the employee to act or you might find it's quicksand.

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