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ICYMI: Our Social Media Posts This Week – July 23 - 29, 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 7/23/17 we learned that a jury mostly clears Sears in a discrimination suit. A loss-prevention specialist was stabbed in the line of duty and was fired weeks after returning to work. The question was whether the discharge was lawful (on the bases in the post).

TAKEAWAY: Don't be that company – make sure any discharge has a legal basis and won't smack of retaliation.

The post on Monday 7/24/17 noted that a hiring dispute brings a second lawsuit against Shell. So what happened? Earlier this year, Crocket Oaks III sued Shell for (allegedly) firing him after he objected to hiring preferences based on age and gender (the exact details are in the post). That case settled. However, the applicant at the center of the underlying hiring controversy in the first suit then brought a suit against Shell based for not being hired. Again, more of the background details are in the post. One email quoted in the post really does not look good for Shell.

TAKEAWAY: When adverse action is taken, even against a job applicant, make sure the action is legally viable and there is nothing out there to undermine the asserted basis of the action.

In the post on Tuesday 7/25/17 we listed 4 parental leave questions employers must answer before changing a policy. First, what to call it. Is it maternity leave? Paternity leave? Parental leave? Second, how to pay for and administer the leave. It is a stand-alone policy? Is it a short-term disability? A combination of the two? Something else? These questions and the other 2 in the post must be answered to ensure the policy is legal.

TAKEAWAY: It's good to have policies to ensure that everyone knows the rules to play by and to evenly enforce – but you need to make sure the policies are legal.

The post on Wednesday 7/26/17 told us the company "loses" the lawsuit and the former employee "wins" $1. Yes you read that right. A civil rights suit led to a $1 jury verdict in favor of the employee. The suit alleged race discrimination, harassment and retaliation. But apparently the jury only thought 1 claim, race discrimination, was worthy of a verdict. The jury held the company liable, but found not much harm and so awarded only $1 damages. The bases for the verdict are in the post, including co-workers using racially pejorative terms toward the plaintiff. So why is this case even in the blog? Because a verdict of even $1 can, under the right circumstances, lead to liability by the employer for the plaintiff's attorneys' fees and costs.  

TAKEAWAY: The best scenario is to have no suits brought against you. The next best is to win the suit. Next is to win the suit and have a minimal damages award with no liability for the other party's attorneys' fees and costs.

In the post on Thursday 7/27/17 we learned the ADA says you get to decide what job functions are essential. Why is that important? Because the ADA requires accommodation only to enable a qualified employee to perform essential job functions with or without accommodation. In the post, the threshold issue was whether or not the employee was qualified under the ADA. And in making that determination, what the employee says isn't really relevant.

TAKEAWAY: While the ADAAA made it easier for employees to show they are protected under the statute, it did not eliminate the requirement that the employee be qualified – so employers should look carefully at that issue before moving to the next step.

In keeping with the disability theme, the post on Friday 7/28/17 noted that you make disability assumptions at your own risk: $900,000 verdict for employee upheld. That's a costly assumption! Here, John was employed by the Department of Natural Resources in Iowa. He injured his back in 2011 and went on a leave of absence. He returned to light-duty in January 2012. He slowly resumed his normal duties but always required some help with moving heavy things. In September 2012, he had a physical that ended up with some restrictions which led to questions about whether the employer could accommodate. The post details what happened next – but note that John was never contacted. When he was terminated, he sued and a jury awarded over $900,000 in damages. That was upheld on appeal.

TAKEAWAY: While it is the employer's duty to accommodate (when legally required), it must remember to include the employee in the interactive process and not make assumptions for or about the employee.

Finally, in the post 7/29/17 we learned about the $100,000 mistake the company made with a pregnant job candidate. Ouch! After advertising an upper-level positon and interviewing 6 candidates, you offer the position to one. She accepts and asks about maternity benefits since she is pregnant. Minutes later you send an email rescinding the job offer (using the language in the post). You get sued. And then you agree to pay $100,000 to settle.

TAKEAWAY: Don't make this your company's story. Treat pregnant applicants (and employees) just like everyone else.

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