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Tuesday
May162017

ICYMI: Our Social Media Posts This Week – May 21 - 27, 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 5/21/17 we noted the Trump religious order could affect workplace bias exemptions. One of the many Executive Orders signed by President Trump may have broad reach. On March 4, 2017, the President signed an order directing the Attorney General to provide guidance to all agencies on "interpreting religious liberty protections in Federal law." There are exemptions to the prior orders too (as listed in the post).  The issue of whether a secular, closely-held, for profit corporate entity can apply RFRA (the Religious Freedom Restoration Act) as a shield from anti-discrimination laws is pending in federal court. Trump's order also contained a directive to the IRS; the details are in the post.

TAKEAWAY:  While the Executive Order left in place ones signed by previous presidents barring federal agencies and contractors from discriminating against LGBT employees and applicants (with some exemptions), it opened a possible Pandora's box on other fronts and private employers should remain alert as to any changes.

The post on Monday 5/22/17 told us the dress code in non-union workplaces IS governed by NLRB decisions (and warned you not to ignore them). A recent decision by the National Labor Relations Board held that In-N-Out Burger, a non-union burger chain, had a dress code that violated Section 8 of the National Labor Relations Act. The policy in question banned buttons, pins or stickers on uniforms – for the purpose of creating a "sparkling clean" restaurant image for the public. Some employees wore buttons in support of raising the minimum wage to $15/hour. Supervisors asked them to remove the buttons. They filed an unfair labor charge. The NLRB's analysis is in the post and is instructive.

TAKEAWAY: Unless the policy is necessary to achieve safety or particular business objectives, your dress code should be narrowly tailored and not infringe on employees' protected rights. Have an employment law attorney review it to make sure it's legally valid.

In the post on Tuesday 5/23/17 we learned a job offer was rescinded after the company learned of the applicant's pregnancy and suit was filed and settled. An insurance brokerage firm settled a pregnancy discrimination suit brought by the EEOC for $100,000 and other relief. The complaint alleged that the employer made a written job offer and send an employment agreement. She asked a few questions, including about maternity benefits due to her pregnancy. Almost immediately, the job offer was rescinded (with a comment that hung the employer – see the post).

TAKEAWAY: Treat pregnant employees (or applicants) just like everyone else – pregnancy is not a legal disability.

The post on Wednesday 5/24/17 asked: are Facebook vacation photos taken during FMLA leave grounds for termination? The answer is – it depends. Here, Rodney put in a request for FMLA leave for shoulder surgery. At the end of the leave, he was unable to return full-time and requested a modified position. The employer said no. He then asked for more time off; the employer agreed to an additional month of non-FMLA medical leave. During that time, Rodney went on vacation and not only took pictures, but posted them on Facebook. When Rodney returned to work, he was suspended and then fired. The reasons given for the discharge are in the post. The court (of course he filed suit!) said there was enough that a jury could think the given reasons were mere pretext (for the reasons in the post). So the case goes on.

TAKEAWAY: Not only should an employer have a legally-valid basis for an adverse action, it should make sure to consistently state that basis and not change its story mid-stream.

In the post on Thursday 5/25/17 we noted you can't spell "Cat's Paw" without FMLA. You do remember the cat's paw theory, right? It is that an employer can be liable for the discriminatory intent of an employee with no part in the decision-making but who had some influence on the decision-maker. The question now is to what other types of situations does the cat's paw theory apply. Here, the employer fired Marshall after she returned from her second FMLA leave. In-house counsel had reported to the president (and decision-maker) that Marshall made false allegations to counter allegations made against her. Marshall claimed that her supervisor, who reported her alleged poor performance, was biased against her, and wanted that imputed to the president. See the post for more details. The court said that indeed the cat's paw theory applies to FMLA retaliation claims (under the circumstances noted in the post).

TAKEAWAY: Employers MUST control their employees – things they do or say may be imputed to decisions made by the employer that would otherwise have been legal except for the illegal animus of a "motivated" employee.

The post on Friday 5/26/17 asked: is the tide shifting on whether Title II of the AA covers websites? We've had another post on this topic here on 5/9/17. But now we have some decisions from a federal court in PA that some websites are indeed covered. This departs from prior appellate decisions covering PA which hold that Title II applies only to physical buildings. See the post for more background.

TAKEAWAY: Think of your website as an extension of your physical office – and make sure it is equally as accessible to all.

Finally, in the post yesterday 5/27/17 we noted employers can take steps to detect FMLA leave abuse. Some employees will probably always try to game the FMLA system, so it's up to the employer to take steps to stop the abuse. Some things an employer can do include performing an internal FMLA audit, making sure there are valid reasons for FMLA requests (especially if a request for another type of leave for the same time period is rejected), and watching for patterns of absence. More tips are in the post.

TAKEAWAY: Evenly enforcing FMLA leave, by making employees play by the rules, will benefit the employer in many ways – know what the FMLA requires of both the employee and employer.

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