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ICYMI: Our Social Media Posts This Week – Oct. 1-7, 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 10/1/17 we learned that an employee's FMLA claims survive because the employer miscounted leave days used. And math used to be so simple. Cleon was a teacher's assistant. He applied for, and was granted, FMLA leave from 2/23 – 5/16/16. Spring break was from 3/25 – 4/1. The post explains how, if at all, that affected his FMLA leave entitlement. When he didn't return from leave, he was suspended and he sued. The employer's motion to dismiss was not granted because of simple math. Read the post to see why.  

TAKEAWAY: As with any statute, know how to apply it properly before taking adverse action as a result of what you think is a violation of the FMLA.

The post on Monday 10/2/17 was about what not to say to EEOC investigators. Well, pretty much anything the employer in the post said when contacted. Especially when it's not true. And just digs the hole deeper.                                                        

TAKEAWAY: If the EEOC contacts you, take these steps: (1) stop. (2) Take a deep breath. (3) Conduct an internal investigation (if one has not already been done. (4) Get all of the appropriate documents and information to your attorney to advise you on how to proceed.

In the post on Tuesday 10/3/17 we looked at time sheet tips to beat FLSA off-the-clock claims. The post was originally aimed at Labor Day, but applies to any day that time worked needs to be tracked (so pretty much every day). Some companies use the honor system, where employees write down their time on a sheet of paper (or enter it into a computer), others use a punch-card system. No matter how time is recorded, employees can claim they worked before or after the hours that were recorded – and that they should be paid for those hours. And unless the employer meets its burden of proving accurate time records, pay it must. The post contains tips on how to maintain those accurate time records.

TAKEAWAY: Follow the tips in the post to help keep accurate time records. Also, put in place, or enforce an existing, policy that prohibits employees from working before or after recorded hours without express authority from an authorized individual, and evenly and continuously enforce that policy.

The post on Wednesday 10/4/17 noted that IHOP was sued for sex discrimination – not too tasty. After conciliation failed, the EEOC sued 2 IHOP franchises when the male GM and at least two cooks allegedly sexually harassed many female employees (including one still in high school), 2 of the females resigned as a result, and (yes there's more) the male GM at a related franchise sexually harassed a male employee. So what did the GM allegedly do to the women? Regular and repeated sexual touching for starters; more details are in the post. Actions allegedly taken by the GM against the male employee are also in the post. The cherry on this sexual harassment sundae? Although the owner and managers were aware of the conduct, they neither investigated nor acted to stop it.

TAKEAWAY: If an employee complains about possibly illegal conduct, investigate immediately (and take action if warranted). If you know about illegal conduct, don't be an ostrich; rather, take action to stop it (and appropriately discipline those who took the action).

In the post on Thursday 10/5/17 we learned that a Pottsville transgender woman settled a discrimination lawsuit. A while ago we wrote about Kate Lynn's long-standing suit against Cabela's – now that suit has been settled and she can move on. Kate Lynn transitioned about 13 years ago. She filed the suit in 2014, alleging that Cabela's fired her in retaliation for her sex discrimination complaints. When the judge allowed her case to go forward under the ADA this past May, he broke new ground. The basis of his decision is in the post and worth reading and understanding (and probably precipitated the settlement).

TAKEAWAY: The ADA specifically excludes transsexualism from its protection, but this suit went forward on the basis cited by the judge in the post; make sure you know the law and how it is or might be applied before you take adverse action against any employee.

The post on Friday 10/6/17 was about a federal court calling time out on employee leaves (and here's hoping this makes its way toward us). You should already know from reading this blog that after an employee exhausts FMLA leave, but needs more time off, employers must look into additional unpaid time off as a reasonable accommodation under the ADA. Or at least that has been the EEOC's position, and courts have often agreed in specific situations. Well the tide may have changed in an appellate decision issued late last month. While not binding here in PA, employers should take note of it (and prepare in case it does become the law here in the future). The post gives the details, including the judge determining the interplay of the ADA and FMLA and whether the employee was entitled to protection from the former after leave under the latter expired.

TAKEAWAY: You should continue to look to the ADA for a possible reasonable accommodation for an employee who cannot return to work after an approved FMLA leave, but make sure the person is entitled to ADA protection first.

Finally, in the post yesterday 10/7/17 we read that the EEOC was ordered to pay $1.9M for frivolous claim against a trucking company. The EEOC had filed suit against CRST Van Expedited in 2007 as a result of alleged sexual harassment. Now, 10 years later, the EEOC must pay a huge amount of attorney's fees to the company. Let's go back and find out why. In 2013, the trial court awarded $4.7M to the company as a sanction for the EEOC's frivolous filing of the suit. The EEOC appealed. The appellate court reversed and sent it back for additional findings; the EEOC appealed to the US Supreme Court and got the appellate decision reversed. However, when the case was back at the trial court (after remands), the company asked for additional fees for work after the original 2013 award. It wasn't successful there, but still got an award of $1.9M (a reduction from the original $4.7M, but still a hefty amount). The post provides details on why the fee award was entered and its circuitous procedural route (which is important to keep in mind when dealing with the EEOC).

TAKEAWAY: While the EEOC is a federal agency with much pull and discretion, it still has procedures it must follow when processing cases; if it doesn’t follow those processes, you may wish to hold it accountable and seek reimbursement for your attorney's fees and costs (but consult an attorney first).

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