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ICYMI: Our Social Media Posts This Week – Sept. 10-16, 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 9/10/17 we learned that summary judgment was denied to employer who circulated letter re disability discrimination charge. No surprise, right? An employee filed a charge with the EEOC, alleging disability discrimination. As part of its investigation, the EEOC requested information on other employees. Before it provided the information to the EEOC, the employer sent a letter to 146 employees identifying the employee who had filed the charge and discussing the EEOC charge. That led to an EEOC charge of retaliation and interference. Details of the background and what led up to the first charge are in the post. Both sides filed motions for summary judgment (to resolve all or part of the case) and the judge denied them both for the reasons stated in the post.

TAKEAWAY: Be really, really careful as to when and to whom you disclose information about pending administrative charges – the wrong decision might lead to even more legal trouble.

The post on Monday 9/11/17 was an alert: Court to reconsider ruling allowing women to be paid less than men in some circumstances. In April 2017, a panel of the 9th Circuit Court of Appeals ruled that, in some circumstances, women can be paid less than men for the same job. Our 5/14/17 post was about the panel's ruling. The EEOC appealed the panel's ruling and a hearing is set in December.

TAKEAWAY: Might it be legal to pay a woman less for doing the same job as a man? Do you really want to take a chance you will be sued if you try it?

In the post on Tuesday 9/12/17 we talked about workplace language rules: the next new frontier? Top 5 things to know. The EEOC filed suit against a company alleging it discriminated against non-Hispanic applicants by requiring that they be able to speak Spanish. Yes, you read that right. The EEOC set forth 5 bases supporting its position. First, any rule must be justified as a business necessity. Second, rules should be limited to ensuring employees can operate (do their jobs) safely and efficiently. The other 3 bases are in the post. And the scariest thing of all? The last paragraph in the post.

TAKEAWAY: Employers are allowed to have rules for the workplace so that everyone knows what is expected of whom – but the rules still have to be legal.

The post on Wednesday 9/13/17 noted the EEOC sued Estee Lauder for sex discrimination (against men). Again, you read that right. The policy at issue provided male employees who are new fathers less parental leave benefits than female new mother employees. The post details the leave benefits for each gender. After his child was born, a male employee requested benefits (see the post) that would have been granted to a female under the policy. His request was denied so he filed a charge with the EEOC. After it investigated and conciliation failed, the EEOC filed suit.

TAKEAWAY: If you have a rule or benefit in place, make sure it is evenly applied to all employees (or that there is a valid, legal basis for any differences).

In the post on Thursday 9/14/17, we said "and then when you're done with that, please go pick up the dog poop." Sadly, yes this is employment-related. A Maryland company allegedly violated federal law when it treated Hispanic workers differently based on race and national origin. What did it do? It put them in lower-paying jobs and more things in the post. The owners also required the Hispanic workers to do things for them personally, like picking up dog excrement at their houses and other things in the post. The owners also required the Hispanic workers to do things for them personally, like picking up dog excrement at their houses and other things in the post. And if that weren't enough, the company allegedly fired workers who complained. Retaliation at its finest.  

TAKEAWAY: First, don't treat employees differently unless it is based on job performance. Also, don't make employees do non-work-related tasks.

The post on Friday 9/15/17 was about paying employees when weather closes the doors – hurricane, snow, whatever. A timely post due to the recent spate of hurricanes, the rest of hurricane season, and the coming winter weather. So the question is whether you have to pay employees when natural disaster strikes. That can be divided into the following sub-questions: when your business closes, are you required to pay hourly, non-exempt employees for that time? What about salaried, exempt employees? What if the business is open but a salaried, exempt employee cannot get there? What if, due to weather, an hourly non-exempt employee cannot leave and so keeps working? And finally, what if an employee shows up but is sent home early due to inclement weather? All good questions - and answered in the post.

TAKEAWAY: Wage and hour issues go beyond whether an employee is exempt or non-exempt, - but that plays into the answer to some of the questions discussed, so know the answers to avoid legal trouble.

Finally, in the post yesterday 9/16/17, we talked about when accommodating one employee's disability triggers another employee's disability. What's the poor employer now in the middle to do? (Hint: "nothing" is not the correct answer.) Now the employer has 2 employees to try to accommodate. Notice the words "to try". The key to accommodation is that the employer must try to find a reasonable accommodation – and it need not be the one requested by the employee. Examples of how other parts of the interactive accommodation process might work are detailed in the post.

TAKEAWAY: Don't stick your head in the sand; that will certainly be viewed as a failure to accommodate. Instead, try to work things out alongside the employee requesting accommodation (and your attorney if legal questions arise as to your obligations).

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