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ICYMI: Our Social Media Posts This Week – Dec. 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.

The post on Sunday 12/24/17 told us that "delete" will not save you in court: employers have a duty to preserve email evidence. A salesperson filed suit against her former employer; she alleged sexual harassment (details are in the post). After a discovery request to produce all emails between the plaintiff and her former boss, the employer deleted them and said they no longer had them (yeah, bad bad bad). The post tells what happened next and how that one stupid act alone hurt the employer.

TAKEAWAY: Don't ever destroy evidence! And follow the steps in the post after discussing them with your attorney.

The post on Monday 12/25/17 was a celebration of the season – and sent warm wishes from us to you.

TAKEAWAY: Always take time to celebrate what matters to you.

In the post on Tuesday 12/26/17 we asked: Where were sexual harassers' bosses? When all of the things of which people everywhere are being accused were going on, where were there bosses? Yes, the people in Hollywood and Congress and elsewhere. Those hallowed halls (and sets) and more are still workplaces. As noted in the post, there might have been willful ignorance by those bosses. That might eventually subject those same bosses to legal liability – see how the post explains it.

TAKEAWAY: Know what your employees are (not) doing – don’t turn a blind eye.

The post on Wednesday 12/27/17 gave us 5 lessons for employers from NBC's handling of the Matt Lauer termination. Sadly, all of the sexual harassment allegations everywhere and the employer's responses are good fodder for us and we can learn from them. So what can we learn from how NBC dealt with the Matt Lauer situation? First, be up-front and as accurate as possible in any public reports or disclosures. As noted in the post, don't issue contradictory statements – they only raise questions. Second, don't rush to make public disclosures. Yep, those contradictory statement again. Wait and make sure you have all of the correct facts. The other 3 tips are in the post.

TAKEAWAY: Act when allegations of harassment are lodged, but act appropriately and legally.

In the post on Thursday 12/28/17 we noted that reassignment can be a post-FMLA accommodation. First, remember that you may well have a duty to accommodate the employee returning from FMLA leave for his or her own illness. If the leave was extended beyond the statutory time, and the former position isn't available, you could consider reassignment. The post tells us how that played out in one case.

TAKEAWAY: Remember that the duty to accommodate does not mean the employee must get the accommodation that is being requested; rather (with certain caveats), AN accommodation must be provided if possible.

The post on Friday 12/29/17 told us the NLRB rolled back the joint employer test. This is good news for ALL employers (yes, even non-union) and potentially bad news for employees looking for a deep pocket. So now the test for liability as an employer depends on control (see the post for an explanation of how this is determined).

TAKEAWAY: Employers can rejoice (a bit), but not too much as the evidence still matters in determining potential liability.

Finally, in the post yesterday 12/30/17 we learned that FMLA mistakes aren't necessarily willful. This matters because it can affect the time in which the employee has to bring suit. Courts are to determine this on a fact-intensive basis as was done in the case in the post.

TAKEAWAY: Accidents happen and things do go awry in the workplace – even when an employer is trying to do the right thing. It may end up wrong, but not intentionally so.

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