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ICYMI: Our Social Media Posts This Week – May 7-13, 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 5/7/17 we saw a PA court looked favorably on disfavored restrictive covenant – are the rules changing? The Superior Court's ruling was not in favor of employees trying to avoid non-solicitation agreements (which is good news for employers). Here, Doug and Ray had employment agreements with non-solicit provisions after employment ended. After the contract period, the employer terminated the contracts but kept Doug and Ray on an at-will basis. A year later they were discharged. The employer then sued, alleging a violation of the non-solicit provision of the at-will employment. They said the non-solicits ended with the employment agreements. The trial court agreed but the appellate court did not. Its reasoning is in the post.

TAKEAWAY:  Employers may now be able to have at-will employees with obligations remaining from a prior employment agreement. Be sure to have an attorney review any restrictive covenants you intent to use and enforce.

The post on Monday 5/8/17 noted that calling your boss a "Nasty Motherf***er" shouldn't get you fired (said a federal court). Yes, there's a catch. Si here's what happened: in late 2011, Hernan got chewed out by his boss. A union campaign was going on at the time. He then posted something to Facebook – see the post for the exact language. He removed the post after it came to management's attention, but he was still fired. Recently a federal court said Hernan had the right to make the post. More details about the court's ruling and rationale (including the use of similar language in the workplace and how the employer reacted to it) are in the post.

TAKEAWAY: Employees have certain statutory rights relative to the terms and conditions of their work, even in a non-union environment; be careful not to run afoul of the NLRA in disciplining employees for taking advantage of their rights.

In the post on Tuesday 5/9/17 we found out that McDonald's website violates the ADA (alleges a federal lawsuit). A legally blind man filed suit in CA because he's been unable to use the website and mobile app.

TAKEAWAY: Make sure your website is accessible to all – and not in violation of the ADA.

The post on Wednesday 5/10/17 noted the expansion of Title VII protections: potential impact of Evans v. Georgia Regional Hospital case. This all has to do with whether or not sexual orientation is protected under Title VII. In March 2017, the Eleventh Circuit said no (but rehearing en banc has been requested). Shortly after, the Second Circuit also said no (but an extension to request rehearing en banc has been granted). Then in early April 2017, the Seventh Circuit said yes – and stood in line with the EEOC's guidance. There is now a Circuit split that will likely need to be resolved by SCOTUS. The post has a bit more background.

TAKEAWAY: There is yet no final ruling on whether Title VII prohibits discrimination on the basis of sexual orientation, but since it has nothing to do with job performance, why chance being on the wrong side of the law? Just don't do it.

In the post on Thursday 5/11/17 we learned Green Chevrolet will pay $65,000 to settle an EEOC discrimination suit. It also must provide other relief too as part of the settlement. The background: Green allegedly forced an employee to transfer to a new position when it learned he was experiencing kidney failure and would need regular dialysis. When the employee said he was healthy and could do his regular job, the employer responded as in the post. Then it fired him. Ugh.

TAKEAWAY: Don't assume that an employee will need or want accommodation – wait until you are put on notice of the need for it before taking any adverse (and possibly illegal) action.

The post on Friday 5/12/17 told us a restaurant owner promised to fire employees who allegedly sang "F-ck That Police" to the cops. And this is from NC, a state not always known (especially lately) for non-discrimination. First, the police protective association issued a Facebook post after employees – and a manager – sang "F-ck the police" while officers were eating at the restaurant. The owner has said he will fire the participating employees. Are they legally protected? See the post.

TAKEAWAY: Know what your employees can and cannot say or do before you take any adverse action against them – it is not always a clear-cut situation.

Finally, in the post yesterday 5/13/17, we learned an employee's safety may be a legitimate reason to end the employment contract. Here, Dennis, a non-Muslim white man, had a one-year contract to work in Bahrain. Before the contract was up, he made comments to his students that they took as anti-Muslim and disturbing. Dennis became fearful for his safety. The school's following actions are in the post. He sued after not being rehired but lost.

TAKEAWAY: Personal safety can indeed be taken into account by an employer – as should the terms and conditions of any contract that is in place.

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