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Mar312017

ICYMI: Our Social Media Posts This Week – April 2-8, 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 4/2/17 we talked about dispelling the 10 biggest wage & hour myths – part 1. Get them wrong and you will be in quicksand. First, employees are NOT entitled to mandatory work breaks (absent some type of contract or policy to the contrary). Second, all salaried employees are NOT exempt; that is only one question to be asked in determining if someone must be paid overtime wages or is exempt. The others are in the post.

TAKEAWAY: Wage & hour is not an area to wade into or guess – government enforcement can be swift and costly – get it right at the start.

The post on Monday 4/3/17 told us that prior sexual harassment does not ease the burden of proof in a later claim. Various companies have differing approaches to discipline for harassment – that's ok as long as they apply their policy uniformly. But what happens when the harasser is not responding and does it again? Does that mean the victim automatically has a HWE? A recent case in the federal Third Circuit, which governs in PA, dealt with just this issue. The plaintiff settled a prior case with the US Postal Service. Many years later, she filed a new charge with the EEOC – against the same co-worker, but on more limited bases (detailed in the post). The trial court dismissed the case as not rising to the level of a HWE. On appeal, she argued that she should not have to prove HWE due to the prior harassment. The court's ruling (in the post) makes sense and is good news for employers.

TAKEAWAY: Just because plaintiffs did not get a leg up doesn't mean employers are out of the woods – you must still investigate complaints of harassment and take appropriate action based on the result of the investigation.

In the post on Tuesday 4/4/17 asked: Too much experience to be hired? Some older Americans face age bias. As more and more people have to work past the traditional retirement age, more and more of them find themselves searching for a job – and hitting barriers. And it's worse for older women than older men – a double whammy. At least one case is now pending; the post gives some background on it and the status.

TAKEAWAY: Employers should not take (adverse) action based on age – but rather on measurable job performance or requirements.

The post on Wednesday 4/5/17 told us that a Christian university illegally fired a professor who got pregnant and stayed single. We all know that religious beliefs sometimes result in exemption from certain laws. But not in this case. Here, Coty had been an assistant professor at a private, Christian school. She was unmarried and got pregnant, then (had the audacity to) refuse to marry her boyfriend or leave him. The school's actual message to Coty is in the post. She refused to accept the school's "suggestions", later resulting in her being discharged based on the school's sincerely held religious beliefs. Her suit included allegations that unmarried male professors were not discharged for fathering children out of wedlock. She got judgment on one of the claims since the ministerial exception was held not to apply. Read the post as to the other claims.   

TAKEAWAY: If you are asserting that sincerely held religious beliefs either require a certain course of action or prohibit it, make sure you are on firm legal ground before (not) taking the action.

In the post on Thursday 4/6/17 we learned that pretext evidence supports revival of ADA and FMLA claims of employees RIF'd between surgeries. Here, the employee used crutches as a result of childhood bone cancer; he was discharged between 2 surgeries, allegedly as part of a RIF. He sued and the court found that the RIF reason might have been pretext (thus letting the case move forward). His job had been editing videos and his bosses thought it might be more difficult for him as the editing became more electronic. He did not complain or ask for accommodation. He told the employer of 2 upcoming surgeries; they were approved but he was fired after the first surgery, supposedly as part of a RIF. The post gives more details on the court's analysis.

TAKEAWAY: Employers may have a defense to allegations levelled against them – but the defense should remain the same at the administrative level and then into court. If it changes, then it is probably less than truthful (and shouldn't be put forth).

The post on Friday 4/7/17 said easy come, easy go: appeals court reverses $2.6M award in ADA case. Rite-Aid was on the winning side in this one. It started when Rite-Aid started requiring pharmacists to give immunization injections. Christopher couldn’t due to a medical condition so he asked for an accommodation. Rite-Aid decided that it did not need to – and couldn't – accommodate him and so fired him (the rationale is in the post). Christopher sued for violation of the ADA. At trial, a jury awarded him $2.6M in damages. On appeal, Rite-Aid was successful when the court analyzed the ADA's provisions and applied the facts to them (see the post for the analysis). The post also has some useful tips for employers.

TAKEAWAY: Even though in most cases an employer should just assume the employee is disabled within the ADA's provisions and therefore entitled to the interactive accommodation process, that is not always the case – and indeed a situation may turn on that exact question.

Finally, the post yesterday 4/8/17 told us that KASCO settled a Muslim employee's discrimination suit. For $110,000. Latifa, a buyer, alleged that supervisors starting acting up after she began to wear a hijab, including acting like they were scared of her and other things in the post. After an HR complaint, she experienced retaliation and was eventually fired. The post gives more background. The settlement resolved her claims.

TAKEAWAY: Employers should not take adverse action against employees unless based on job performance – or lack thereof – and especially not based on a protected characteristic that has nothing to do with job performance.

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