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ICYMI: Our Social Media Posts This Week – Sept. 24-30, 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 9/24/17 we noted that United Airlines wins judgment in discrimination case by man accused of taking food from plane. Yes he was a former employee – a customer service rep – for about 18 years. His employment ended when the company fired him for allegedly taking food off of a flight in violation of policy (and federal regulations).A white employee who was also caught taking food was treated differently – the post tells why. And that's why his suit failed too.

TAKEAWAY: Just because two (or more) employees of different races are treated differently after taking the same action does not mean there was discrimination – you need to get all of the facts to make sure their situations were the exact same.

The post on Monday 9/25/17 was an ALERT: DOL withdraws its guidance on independent contractors and joint employment. What does it mean? The EEOC said it will continue to "fully and fairly" enforce all laws under its purview, but that doesn't really tell anyone anything about any changes as a result of the withdrawn guidance. Further, as noted in the post, the NLRB is still pushing a broad interpretation of joint employment. Keep your eyes and ears open as the current Administration continues to move in sometimes-different directions than the prior Administration.

TAKEAWAY: Rather than needing agency guidance on whether something is or is not illegal, don't get that close to the line in the first place.

In the post on Tuesday 9/26/17 we asked: Could barring a former employee from your premises lead to suit? Perhaps. This decision comes from the NLRB, but may have broader implications, so be aware of it. The employer, a resort and casino in Reno, has restaurants, lounges, bars, clubs, a casino, and performance venues, all of which are open to the general public. Tiffany worked there briefly as a beverage supervisor and filed suit for unpaid wages. Her boyfriend later started to work at the resort's facilities. She visited that facility and others over a period of tie after her employment had ended. And see the post as to the employer's policy on former employees' access to the various premises. One time she was denied access and then she got a letter bring her based on her pending litigation. She filed an unfair labor practice charge under Section 8 (which protects Section 7 rights – and, as applicable to you, remember that Section 7 applies to both union and non-inion workplaces). The ALJ ruled against the employer as did the NLRB in a recent decision. Its reasoning is in the post and makes quick but interesting reading.

TAKEAWAY: Yes, there are things an employer can do so as not to become a party to a suit like this, including having updated policies that say what the employer wants them to (and reflect how it does or may act in certain situations).

The post on Wednesday 9/27/17 noted that EEOC sues Golden Corral for disability discrimination and harassment. So what happened? The EEOC alleges that the employer discriminated against a disabled employee but subjecting him to a hostile work environment based on disability and sex (and that the employee resigned as a result). Sean, who has high-functioning autism, was a dishwasher. A male assistant manager took actions that underlie the EEOC's complaint – they are in the post. He complained and asked to transfer to a different shift. After being assigned again to work with the same assistant manager, he quit. Pre-litigation conciliation failed, so suit was filed.  

TAKEAWAY: Just because an employee is different – on any basis or characteristic – does not mean s/he deserves to be treated differently. Treat all employees the same (unless legally required to do otherwise) and you will probably stay out of legal hot water.

In the post on Thursday 9/28/17 we noted LinkedIn over your head: when socmedia posts count as solicitation. Look at the post as a warning. While the subject case was out of state, the same facts in PA would probably result in a similar ruling. The employee was subject to a non-solicitation agreement. She added former co-workers as connections on LinkedIn after starting to work for a competitor. The court's ruling on that is in the post. Likewise, the post also mentions other recent cases on the same subject which turned out differently. In one of them the subject employee (the defendant) posted things to LinkedIn that were akin to solicitations (see the post for the details) – but did not extend the non-solicitation period as the employer did not show any damages.   

TAKEAWAY: If employers are going to use non-solicitation agreements, then they need to police social media (and do other things) to enforce the agreements.  

The post on Friday 9/29/17 was a follow-up: Attorney for Annapolis car wash denies discrimination against Hispanic workers. Recall our 9/14/17 post where we described the allegations against the employer car wash. Well now the employer's attorney has denounced the suit as revenge as a result of 39 undocumented immigrants having been discharged several years ago. Counsel also denied the allegations in the complaint. Other comments he made are in the post.

TAKEAWAY: It is helpful if both hands are saying and doing the same thing – and have proof in support of the allegations that are being made. Check on that before taking adverse action.

Finally, in the post yesterday 9/30/17 we noted the employee's FMLA claims survive because the employer miscounted leave days used. Ugh. The employee was formerly a teacher's assistant who filed FMLA interference and retaliation claims. More background details are in the post; suffice it to say that employer error will not be looked upon favorably. Even though the employer asked the court to dismiss the case, it did not because it had to credit the employee's allegations at that early stage (and DOL's Regs re the FMLA as noted in the post).

TAKEAWAY: Know what time does and does not count against approved FMLA leave based on statute and your own policy. Make sure to properly calculate the end of leave and the subsequent return to work date before taking adverse action against the employee.

References (4)

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