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Monday
Mar062017

ICYMI: Our Social Media Posts This Week – Mar. 5-11, 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 3/5/17 we talked about anxiety, absenteeism and the ADA – what to do. While an employer must reasonably accommodate a qualified employee, there might be times when no accommodation is possible. Therefore, the employee is unable to perform the essential tasks, even with accommodation, such that the employer may discharge the employee. A recent federal case showed how this works. Williams was a customer service rep for AT&T who had depression and anxiety attacks that caused her to miss work a lot. She was terminated for job abandonment and violation of the attendance policy. She sued under the ADA. On appeal, the court first noted that regular attendance was an essential job function and, given her record (detailed in the post), she could not perform that function and needed accommodation. The next step was whether AT&T failed to offer a reasonable accommodation. The court said that the little information Williams had provided did not meet her burden (and worked against her as in the post). The court ended up finding neither discrimination nor retaliation.

TAKEAWAY: Whether mental or physical disability, make sure the essential functions of the job are clearly spelled out in writing, then make sure the employee can perform those functions with or without reasonable accommodation. If not, then you can terminate. TO make sure you don’t fall into a legal quagmire, consult your employment law lawyer.

The post on Monday 3/6/17 was about how to be sure you received all documents for your home in a planned community (condo or HOA). As more and more people live in planned communities (whether condominium or detached homes), it is important to be sure that you know the rules and regulations (and statutes) that govern that community BEFORE moving there. By law in PA, the builder must give specified documents to the potential buyer; likewise, any other seller must give the documents listed in PA law to the potential buyer. The post gives some examples there.

TAKEAWAY: As either seller or buyer, know what PA law requires you to give or receive to avoid the potential sale becoming unraveled.

In the post on Tuesday 3/7/17 the suit's $155M question: is a law firm partner an employee? This has implications beyond law firms too so keep reading. The law firm is subject to a pending class action alleging gender bias (that it discriminated against female partners). The firm is alleging that she is not an employee and therefore Title VII and the EPA do not apply. She countered that there is a difference between partners and management – and most of the former are not part of the latter, hence they are employees. More details are in the post.

TAKEAWAY: Remember the Clackamas Gastroenterology Assoc. case mentioned in the post and the factors listed there when trying to determine if someone is an employee or owner. Be careful (or you might be sued).

The post on Wednesday 3/8/17 was about how to deal with homeowners who fail to pay assessments (and a suggestion that you let us help you). Why do you as a homeowner care? Because the more people in your community who don't pay their dues, the more you end up paying to cover that shortfall – the expenses don't decrease, just the income. The post gives more details on some suggested processes to have in place to avoid this. It also mentions what might happen if the person files for bankruptcy protection.

TAKEAWAY: Make sure there are processes in place for when people don't pay their dues – and that the Association works with an attorney who can step in if and when the owners who owes money files for bankruptcy protection.

The post on Thursday 3/9/17 told us that employers can enforce call-out policies, even for FMLA leaves. What does that mean? Even if an employee is out on approved FMLA leave, s/he must still follow the employer's call-off policy unless there is an unusual circumstance that prevents it (and then s/he must do what the policy requires as soon as possible). The employee's failure to follow the call-off policy enables the employer to discipline the employee per its policies, up to and including termination (if the policy permits). The post gives a recent example. Kellogg had a call-off policy; failure to comply results in points being assessed. At 8 points, the employee is put on probation and at 9 points, discharged. The policy excuses FMLA-related absence, but still requires employees on those leaves to call in, Alexander had complied with the policy in the past but did not this time; he got points. When he was again absent and failed to follow the call-off policy, he got more points and was discharged for exceeding the limit. He sued for FMLA interference and retaliation. The trial court granted summary judgment for Kellogg and he appealed. On appeal, the court again ruled in favor of Kellogg – the reasons are in the post.

TAKEAWAY: From the employee's perspective, make sure you follow all call-off policies, even when on FMLA leave, or your job could be in danger. From the employers' perspective, make sure employees, even those on FMLA leave, follow all call-off policies or take the steps outlined under the disciplinary policy.

The post on Friday 3/10/17 was an update: the judge declared a mistrial in the Texas Roadhouse discrimination case. Hopefully you have bene following this: the EEOC sued Texas Roadhouse for age discrimination. Now, a jury failed to reach the required unanimous decision, so the judge declared a mistrial. That means the case will be re-tried beginning May 15th if the parties don't settle before then. The background of the suit is in the post including the EEOC's allegations and Texas Roadhouse's responses/defenses.

TAKEAWAY: One big reason this case is important to everyone is that it did not result from a complaint by a (former) employee, so this might set precedent.

Finally, the post yesterday 3/11/17 was about a discrimination lawsuit against a DA – even lawyers are subject to the law. The District Attorney says he fired 2 female employees because a third told him they were plotting to get their supervisor fired (and for other reasons in the post). They say the firings were illegal discrimination based on sex, hostile work environment (HWE) and retaliation. The case (as noted in the post) provides a good reminder of the burden-shifting scheme in a discrimination case and how it played out here. The county approved a settlement with the plaintiffs and extricated itself from the case.

TAKEAWAY: Make sure any supposedly legitimate reason given for an adverse action is not really pretext – and that it will hold up in court if necessary.

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