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ICYMI: Our Social Media Posts This Week – May 14 - 20, 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 5/14/17 we saw that a federal court says an employer can pay women less than men based on salary history. Ugh. The court said that an employer can pay a woman less than a man for the same work if he was paid more in his previous job and the employer used prior salaries as a measure in a reasonable business policy. The court justified it by saying the prior salaries were "a factor other than sex" and so there was no Equal Pay Act violation. The appeals court then sent the case back to the lower court to determine the actual business reasons behind the salaries at issue. Note that the employer had provided 4 reasons (detailed in the post) and now has a chance to show they are the actual business reasons.

TAKEAWAY:  While this case does nothing to advance pay equity, it is also not binding in PA. Therefore, all employers should (continue to) pay women the same as men for the same job to avoid discrimination based on sex.

The post on Monday 5/15/17 told us what steps to take when a former employee threatens to sue you. The suit might be based on age, race, gender, national origin, disability, color, religion, pregnancy, or other things. Normally an administrative charge (often with the EEOC) must be filed before the person can go to court. The deadline to file with the EEOC is in the post. A simple outline of the EEOC process is also in the post. Wage claims are a bit more involved and can go straight to court – they also can award the former employee double damages and attorneys' fees if s/he was not paid correctly. Other claims may also go straight to court (as noted in the post).

TAKEAWAY: If you are threatened with suit, or receive anything from an administrative agency or court, talk to your employment law attorney immediately – don't just stick your head in the sand as it won't go away.

In the post on Tuesday 5/16/17 we learned a Baltimore hospital settles allegations of disability discrimination with an $180,000 payment. What happened? Allegedly the hospital fired Jerome due to a disability. Jerome had a kidney transplant and needed to take meds which, in turn, weakened his immune system. He asked for an accommodation when in certain rooms. Look at the post to see how the employer responded.

TAKEAWAY: Employers have obligations to reasonably accommodate after a request is made – acting as this employer did will get you in legal hot water.

The post on Wednesday 5/17/17 confirmed that yes, employees can use company email on their own time – for protected communications IN ANY WORK ENVIRONMENT. Why is the last part important? Because this decision came from the NLRB but applies to both union and non-union workplaces when employees' protected rights are concerned. The post describes the types of things employees can do on company email on their own time – even if the company has a prohibition in place. NOTE: the NLRB has a new Chairman who, coincidentally, dissented from this decision. Things may be changing in the future for employers.

TAKEAWAY: All employers should make sure their email and other electronic media policies do not infringe on employees' Section 7 rights. Have an employment law attorney review the policies to be sure.

In the post on Thursday 5/18/17 we asked: what should you tell employees on leave about their FMLA use? (and answered: everything!). Here, Amanda contacted her employer to request time off for surgery; she was approved for an FMLA leave. Three weeks after her 12-week FMLA leave ended, but before she returned to work, she was discharged. She sued (I bet you saw that coming!). The bases for her suit are in the post. The court did not take kindly to the employer's proffered defenses (also in the post).

TAKEAWAY: Even if you think you may not have to provide information to an employee, do it anyway – it can save you time and legal trouble in the long run.

The post on Friday 5/19/17 noted dueling federal court deadlocks, no rehearing for Bass Pro Shops in "Big Fish" EEOC case. Quick background: the EEOC sued Bass Pro Shops, alleging violations of Title VII on the basis of gender or race or both. The suit was brought as a representative action and under the pattern or practice theory. Whether the EEOC had any evidence or statistics on the number of aggrieved individuals it claimed existed is detailed in the post. The federal trial court allowed the representative claim, seeking individualized compensatory and punitive damages, in the pattern or practice race discrimination case. The federal appellate court affirmed. Bass Pro Shops then asked for rehearing by the full appellate court; its request was denied. So why do you care? Because, in an unusual move, both the 7 judges in favor of denying the rehearing and the 7 judges in dissent issued opinions. The dissent argued (as detailed in the post) that the law does not allow a pattern or practice claim for individualized damages for a class action. The panel (which voted to deny rehearing) disagreed, saying that the EEOC was authorized by statute to sue on behalf of the individuals and to obtain punitive damages (for the reasons in the post).

TAKEAWAY: Thank goodness this case is not binding here in PA! But keep following it as it may wind its way up to SCOTUS and we will have a binding decision. Until then, be prepared to argue this issue both ways if you become involved in a case to which it relates.

Finally, in the post yesterday 5/20/17, we saw 3 reasons "after-acquired evidence" matters in an employment discrimination case. The post was written from the employee perspective, but employers should pay attention too (as it is still on point for them). This has to do with information discovered after a discharge for which the employer would have terminated the employee even absent the alleged discrimination. The post reminds us that a 1995 Supreme Court case said that type of information could be used to limit damages available to the employee who was discriminated against. So how does this apply? First, any such information can be used to limit monetary damages (for example, to the time frame from the illegal, discriminatory action until it discovered the other information for which termination would have been legal, as opposed to a longer time period) and remove the requirement of reinstatement. The other 2 reasons are in the post and provide good pointers for both employees and employers.

TAKEAWAY: From the employee's perspective, make sure there is nothing your former employer can use against you if you sue for discrimination. From the employer's viewpoint, find out everything you can about the former employee's performance and use it to counter allegations of discrimination.

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