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ICYMI: Our Social Media Posts This Week – Feb. 19-25, 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 2/19/17 we said that good records help win discrimination cases. The post details an example where good records helped boost the employer's defense against a race and age discrimination complaint.

TAKEAWAY: We've said it before, and we'll say it again (snd again even later in this blog): document document document. Not just documents, though, but good ones.

The post on Monday 2/20/17 was timely: employees learned harsh lesson about right to work laws after skipping work to attend immigration rally. "A Day Without Immigrants" rallies were held around the country recently to raise awareness (and in some cases to protect). For 18 employees, however, their awareness of the state's right to work status was heightened. The post gives more details, but they learned that the company was within its legal rights to terminate their employment.  

TAKEAWAY: Pennsylvania is also a right to work (or at-will employment) state, meaning that employers can fire employees without reason and without notice (as long as there is not an illegal basis for the termination). This should be kept in mind as an employment relationship progresses.

In the post on Tuesday 2/21/17, we learned a clothing retailer must stand trial for firing a bra-less boss. Yes we live in a strange world! A court said that a female regional manager fired after complaining that subordinates spread rumors that she let a top male exec see her breasts can proceed with a retaliation claim. Rochelly did not dispute that when she met with the CEO, she did not wear a bra. What she denied, however, was that she showed him her breasts. The employer issued a written disciplinary warning to a female employee who gossiped about the matter. The alleged basis upon which she was fired, and the judge's reasoning in allowing the case to proceed, are in the post. Keep your eyes open as this case moves forward.

TAKEAWAY: Keep in mind that a retaliation suit does not necessarily require the underlying claim to be found valid in order to proceed.

The post on Wednesday 2/22/17 noted that Fidelity responds to age discrimination allegations. We say it's never clear-cut. Here, Thomas alleged in his suit that Fidelity Brokerage Services fired him without explanation and replaced him with a younger worker. Thomas had about 30 years' experience in the industry and had been working for Fidelity about 5 years. There is a dispute over how Fidelity requires consultants to handle work on accounts – see the post for the options.

TAKEAWAY: If you are taking adverse action against an employee age 40 or older -- especially if that person is being replaced by someone younger than 40 -- make sure there is a valid legal basis for the adverse action or you may find yourself in legal quicksand.

The post on Thursday 2/23/17 says to document every ADA accommodation (it may save your neck one day). It is great that you grant accommodation to disabled employees, but make sure to document what was done (or not done) and why. You might need those notes later if someone claims the disabled employee was treated in a preferential manner. An example of this is in the post and shows how documentation can support the employer (and end a suit quickly in its favor).

TAKEAWAY: Document, document, document – what was requested, by whom, when, the response, and the basis for the response.

The post on Friday 2/24/17 asked: Think your temp is just your temp? Think again – s/he may be your employee! Joint employers are the "thing" now, an extension of an NLRB ruling and the way protections for employees are broadening. It all depends on how much, and what, control you exert over the person placed at your workplace by the temp agency. If you are found to be a joint employer, then you are responsible for all obligations of an employer under all applicable laws. So too is the temp agency. Some of the factors to be used in determining if there is sufficient control to hold one to be a joint employer are in the post. Likewise, there are arguments both in favor of giving a temp worker a copy of your handbook (as in the post) and against it too (because arguably it doesn't apply to one not an employee). For more, see our post from Saturday 2/18/17 on this subject.

TAKEAWAY: Be careful how you treat temporary workers – they may legally be treated as employees whether or not you want them to be.

Finally, the post yesterday 2/25/17 was about turning an FMLA request into one under the ADA – just like magic! A recent decision by the Third Circuit Court of Appeals, which governs PA, is both good and bad for employers. The good is that an employer's honest belief that an employee misused FMLA leave can defeat a retaliation claim, even if the belief turns out to be incorrect. The bad is in the post

TAKEAWAY: As we've said in several prior posts, don't look at the FMLA in a vacuum. Take into consideration other applicable laws, including the ADA, too.

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