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ICYMI: Our Social Media Posts This Week – March 12-18, 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 3/12/17 we noted that a gentlemen's club agreed to extend a settlement agreement in an EEOC race discrimination suit. Ok, so the adult-entertainment employer had an agreement in place with the EEOC to resolve allegations of race discrimination and retaliation. Bad, right? Wait, then it allegedly violated the terms of the settlement agreement and the EEOC filed for contempt. I know you want to know what it did to "earn" the suit in the first place. It (allegedly) subjected African-American entertainers to arbitrary fees and fines, forced them to work less lucrative shifts, and excluded them from company advertisements. Other allegations are in the post (and are not pretty). As part of the settlement of the underlying suit, the company had to pay $50K to the affected employees plus other injunctive and other relief; it made the payment, but that's it. To resolve the contempt request, the earlier settlement agreement was amended (as noted in the post).

TAKEAWAY: Ok, you messed up, did something that is illegal and entered a settlement agreement to resolve it. Don't make things worse by violating the settlement agreement – that is just asking for a heap of trouble (and financial stress and bad publicity …).

The post on Monday 3/13/17 talked about accommodation and the ADA: who is qualified and what is reasonable? Whether or not attendance is a job requirement and unpaid leave an accommodation under the ADA are valid questions. There is no question that unpaid leave IS a reasonable accommodation if the person intends to return after treatment/recovery. Also, modification of a no-fault attendance policy may be required as an accommodation – see the post for details. The post also gives an example of when attendance on the job is an essential function and inability to attend makes the person unqualified.

TAKEAWAY: Once things move from the FMLA into the ADA arena, or even if they start there, make sure the employee is eligible for protection and then approach the accommodation itself with an open mind.

In the post on Tuesday 3/14/17 we noted the EEOC urges the court to toss the AARP wellness program lawsuit. Remember that the EEOC issued final rules this past May permitting employers to assess penalties against workers refusing to participate in wellness programs (and provide medical and genetic information)? Well, AARP sued, alleging the rules violate GINA and the ADA and increase the risk of age discrimination. December brought a ruling refusing to put the rules on hold but allowing the suit to go forward. Some interesting tidbits: the EEOC's position in this suit is opposite that it had taken earlier and it has alleged that AARP has no standing to bring the suit.

TAKEAWAY: We don't know how much weight deference to the Agency will carry, nor the effect of any ACA repeal, but the outcome (if it gets one) will have a far-reaching impact.

The post on Wednesday 3/15/17 told us that yes Virginia, age discrimination is alive and well. And it's worse for women than men. Ugh. These things have been asserted in many ways for many years, but now there's statistical proof: a study by the San Francisco Federal Reserve from a nationwide field test. The post gives background information including the age groups used and how the test was run. The "double standard of aging" is mentioned in the post too.

TAKEAWAY: Don't take age into account when making employment decisions. Period.

The post on Thursday 3/16/17 provided 11 tips to avoid employment lawsuits. Are there just 11 ways to avoid suits? Of course not, but the 11 in the post are good ones. So what are they? The first is to hire a good HR person – and make sure that person knows his or her stuff! Next is if you can't hire an HR person, have someone on call to respond to these issues, whether HR consultant or attorney or someone else. Third, you as the owner (or manager) should be at least passingly familiar with applicable laws, including what is or is not considered discrimination and harassment and what the company can or cannot do in response to an employee committing such acts. The other 8 tips are in the post (you didn't really think I'd review all 11 here did you?).

TAKEAWAY: Being the defendant in a lawsuit is no laughing matter - and can be quite costly in terms of human time, financial resources, and effect on your reputation. So take steps to avoid that situation.

The post on Friday 3/17/17 noted that a lawsuit claims age discrimination at Fiat Chrysler – again. Yes again. For the second time in two months. The allegations this time are that Fiat mistreats older employees during evals which results in lower pay and fewer promotions than younger employees. To buttress the argument, the suit claims that employees' pictures are used during evals, such that upper-level managers who rarely if at all work with the employee being evaluated has the photo at eval time and this leads to lower evals for older employees, even if the intermediate supervisors have given high marks. Read more of the background and supporting data in the post. Fiat Chrysler of course denies the allegations.

TAKEAWAY: Use only valid data when evaluating employees, not extrinsic things that are irrelevant and might subject you to a suit like this.

Finally, the post yesterday 3/18/17 told us about one time you don't have to give FMLA notice. You already know that you have to tell an employee about his or her rights under the FMLA if it might apply (and especially if s/he asks about those rights). But does it make a difference if the employee has already been off on FMLA approved leave? Yes (at least in the case in the post. There, Georjane was a Delta Airlines flight attendant. She violated a rule and was terminated; after treatment she was reinstated under a last-chance agreement. She then violated the call-in policy (by not notifying Delta soon enough that she was too tired after caring for her mother) and, due to the last-chance agreement, was again terminated. She brought suit under the FMLA because Delta didn't tell her about her FMLA rights. Delta's defense was successful: since she had already taken FMLA leave, she knew how to ask for it and take it and didn't need notice each and every time. The post also mentions the other reasons the termination was upheld – and that harkens back to our 3/9/17 post on the same subject).

TAKEAWAY: You do need to make sure an employee is aware of his or her rights under the FMLA and ensure that the process is followed, but once the employee is aware, you may not need to tell the employee again.

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