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Monday
Jun262017

ICYMI: Our Social Media Posts This Week – June 25 - July 1, 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In the post on Sunday 6/25/17 we asked: DOL guidance on joint employer-independent contractor withdrawn - now what? What happened is that DOL quietly withdrew its former position on who is the employer in a franchise setting, giving some employees one less deep pocket to look to in some situations. See the post for a more in-depth overview. The question now is whether the NLRB will back away from its "indirect control" or joint employer theory.

TAKEAWAY: If you don't violate any law in your treatment of anyone performing services for you in any capacity, you don't need to worry about whether or not you are considered a joint employer.

The post on Monday 6/26/17 included 3 things "The Office" taught me about employment law – part 2. This follows our earlier post with Part 1. Here, we talk about workplace violence and the fact that it must be taken seriously. The post is peppered with scenes from the TV series to illustrate the lesson.

TAKEAWAY: Workplace violence happens – be ready with a policy that is evenly enforced and on which managers are trained.

The post on Tuesday 6/27/17 asserted that the Trump Administration forgets about LGBTQ people in its EEO statement (and asked if omissions are becoming a habit). The Department of Commerce removed sexual orientation and gender identity from its EEO statement. At least as of now the EEOC will still enforce discrimination on those bases, the removal does not bode well for federal employees under the current Administration.

TAKEAWAY: Not only is there no reason to discriminate on the basis of sexual orientation or gender identity, but it could cause you to lose customers or be subject to suit.

The post on Wednesday 6/28/17 told us that transgender employees may have rights under the ADA in PA. A transgender female employee sued Cabela's under Title VII and the ADA. The case is interesting because the law specifically excludes gender identity disorder from its coverage. That, then, would possibly be a violation of equal protection. So how did the Court get around this quicksand? It narrowly interpreted the exception to avoid the constitutional implications. See the post for more details.

TAKEAWAY: Rights granted to LGBTQ employees are expanding as interpretations broaden – be careful that you know your obligations under the ADA and other laws.

In the post on Thursday 6/29/17 we asked: Want to get sued? Read this self-help primer (and suggested you then call us). The first item on the list of things to do to ensure you get sued is to run your business the way you want. Don't worry about the law, employees, or anyone else. Insult your employees – when they move too slowly, tell them they "are getting a little long in the tooth" and other comments in the post. Next, don't hire an HR person. That person might do what your attorney suggests (and more in the post). More tips are in the post, ending with just doing anything to make money, regardless of what gets in your way.

TAKEAWAY: Once you get through the post, and realize you actually don't want to get sued, call me for an employment audit to ensure all practices and policies are legal and evenly enforced.

The post on Friday 6/30/17 told us a Restaurant & Pizzeria to pay $50,000 to settle a national origin discrimination suit. Yes that's a lotta dough (you knew that had to be said, right?!?). A small chain of pizza joints in NY settled a suit with the EEOC by agreeing to pay $50,000 (and other relief in the post). Allegations were that the chain discriminated against Hispanic employees by subjecting them to name calling, slurs, creating and maintaining a hostile work environment due to national origin, and requiring that only English be spoken (with a business reason for that rule). More details are in the post.

TAKEAWAY: National origin will rarely if ever make a difference in job performance – so don’t take adverse action against an employee based on that characteristic.  

Finally, in the post yesterday 7/1/17, we noted that a purged disciplinary record can be considered in future litigation. And you thought it was done and gone, right? It depends on the terms under which the record was purged. In the post, the necessary language was not there.

TAKEAWAY: Make sure that any settlement or agreement contains all terms and conditions – that will help avoid any surprises in the future.

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