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ICYMI: Our Social Media Posts This Week – Aug. 6 - 12, 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 8/6/17 we talked about the employer's guide to service animals and the ADA – you should know at least the basics. Accommodation under the ADA may include a request to use a service animal – what will you do then, especially if other animals are prohibited on the work premises? What you will do is engage in the interactive accommodation process just as with any other workplace accommodation request. The post lists some things to consider when an animal is involved.

TAKEAWAY: Remember that the ADA's requirement of accommodation may trump a no-animals-in-the-workplace policy if necessary to an accommodation – don't rule it out.

The post on Monday 8/7/17 told us Home Depot fires 70 year old Army vet for confronting shoplifters (and asked if it was from an evenly applied policy or something else). Jim was trained not to confront shoplifters and agrees he violated company policy, but says his military training just kicked in. What he did next is in the post. The employer responded according to what it says is its policy and fired him.

TAKEAWAY: Just because an employee can take action does not mean s/he should take action, especially if there is a policy prohibiting that action. Discharge might legally result.

In the post on Tuesday 8/8/17 we learned that cutting out an accommodation ay be retaliation. Be careful. Here, the EEOC sued for retaliation against an employee who complained about discrimination because an existing religious accommodation was withdrawn. Kelvin was Muslim; he was required to wear a beard. He asked for and was granted an accommodation form the employer's normal grooming policy for his position. Then, after he made a complaint about his supervisor (ugh – see it in the post), he was required to shave. The employer also did more things after that as noted in the post. Kelvin eventually quit.

TAKEAWAY: Investigate every allegation of harassment and discrimination - and do not retaliate against the person making the complaint.

The post on Wednesday 8/9/17 was an alert: federal court confirms one call is all for TCPA violation. Know the (new) law! The case just came out a few weeks ago and is binding in PA. The first issue was whether or not one unsolicited call to a cell phone was a violation of the Telephone Consumer Protection Act. The facts, which will cover even more egregious cases, are in the post. The Court said that yes, this is covered. The second issue was whether or not there was a concrete injury in order that the case could go forward. This is procedural, but important. The Court's decision is in the post.

TAKEAWAY: If the law says not to do something, just don't do it – it is time-consuming and expensive to wait for a court to tell you that you violated the law and must pay.

In the post on Thursday 8/10/17 we read that a Pennsylvania state agency was accused of age bias (and settled the suit). Joseph, older than 40, had 30 years' legal experience, including 17 with the PHRC, when he applied for a positon with the Office of Public Records. During the second interview, the executive director voiced stupid – an allegedly illegal – concern; see the post. A younger, less experienced applicant was selected. The EEOC sued on Joseph's behalf. The case has now settled for $60,000.

TAKEAWAY:  Age rarely if ever will have anything to do with job performance, so don't take adverse action based on age – or you too will find out how costly that can be.

The post on Friday 8/11/17 was a hint: check the filing deadline on an employee's EEOC complaint. What? When an employee files a charge with the EEOC and then receives a right-to-sue notice, s/he has 90 days to bring suit or is barred. Missing the deadline can be fatal to a suit as the post shows.

TAKEAWAY: The employer also should receive a copy of the Notice so make sure to tickle the filing deadline – it may be all the defense you need in an untimely-filed suit.

Finally, in the post yesterday 8/12/17 we asked if employees and contractors do the same work – be prepared to justify classifications. If you have both employees and contractors doing the same thing, and the employees get overtime pay while the contractor does not, you may be in legal trouble. Why? Because they may not legally be contractors. As the facts in the post show, your classification does not always carry the day and you may end up wing money to the "contractor".

TAKEAWAY: As we've said many times, properly classify your workers and pay them properly (and legally) to avoid wage and hour suits.

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