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ICYMI: Our Social Media Posts This Week – Oct. 14 - 20, 2018

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 10/14/18 we learned that a federal court affirmed that employers must provide a background check report to an applicant before relying on it to deny employment. Take heed. Yep, just last month the Court of Appeals for the Third Circuit (which governs PA) held that job applicants could sue a prospective employer under the Fair Credit Reporting Act (FCRA) for failure to provide background check reports (referred to under the FCRA as consumer reports) before revoking offers of employment on the basis of information contained in those reports. The law governs, right? Well, see the post for the defenses asserted by the employer. And also see the post for how the Court ruled on those defenses.

TAKEAWAY:  Knowing the law and following it are 2 different things, but both are required of you as an employer. It can be costly if you don't do both.

The post on Monday 10/15/18 provided tips to protect trade secrets and confidential information on employee termination. Are you worried about former employees taking your business's private information with them? You should be, especially those whose employment was terminated involuntarily. You may not be able to fully prevent that from happening, but you can reduce the risk. First, the timing of when the employee's access to files (hard and electronic is important. The post talks about the ideal time and why. Next, remind the employee about all confidentiality provisions and restrictive covenants that apply after the termination. Again, the post explains how and when to do this. Finally, the post contains 2 additional tips to help minimize the risk of departing employees taking confidential information with them.

TAKEAWAY: It is inevitable that an employee's relationship with your company will end; what is not inevitable is whether you protect trade secrets and other confidential information from leaving with them. Consult an employment law attorney for assistance.

In the post on Tuesday 10/16/18 we read about a suit alleging Party City denied a job to a woman with autism.  Ashley, a high school senior, applied for a sales job in October 2017. She had been told that they needed workers for the holiday season. The manager found out about his autism and severe anxiety. So what did he do? See the post. Even after providing additional information, nothing changed – except that other people were hired. The EEOC filed suit on her behalf.

TAKEAWAY: Don't be dumb – train employees on what they can and cannot say and do. Help them save your face and pocketbook.

The post on Wednesday 10/17/18 confirmed that yes, the Association can do that - within limits. Check the Governing Documents and consult an community law attorney (like @Austin_Law and Sara Austin). What can it do? Tell you what color to paint your shutters. Here, Joseph thought weathered shutters would make his new home look great. He supposedly got verbal approval form the Association to do it. Time passed. The post tracks what happened next. More time passed; the post again tells what happened. He went to a Board meeting and was told he'd be contacted. Nothing – except as noted in the post.

TAKEAWAY: Make sure the Association's Governing Documents (Declaration, Bylaws, Rules & Regulations) permit what you want to do – before you do it – or you can be made to remove whatever it is.

In the post on Thursday 10/18/18 we asked: On or Off? What to do with email when an employee is on FMLA leave. This is a question faced by employers every day when continuous FMLA leave is approved. If there is no policy applicable to leaves, the employer must figure out what to do. The post mentions some rationale behind turning off email access. The post also mentions some rationale for leaving it on. Finally, the post talks about how to implement either as a policy and practice.

TAKEAWAY: Even though an employee on FMLA leave is not supposed to work, there might be reasons to leave on the work email. Make sure you have a policy and then follow it.

The post on Friday 10/19/18 was a reminder that anti-discrimination laws don’t protect someone not meeting performance goals. Even if the person is pregnant. While the Pregnancy Discrimination Act prevents treating pregnant employees differently because of the pregnancy, it does not require that they be treated more favorably. The post explains it well.

TAKEAWAY: Treat all employees the same – even pregnant ones – and make sure they meet the requirements of the position.

Finally, in the post yesterday 10/20/18, we saw that the EEOC sued Interim Healthcare for sex-pay discrimination. The suit alleges that the company paid female nurses less than male nurses who performed the same services and that the company did not remedy the situation after complaints. More details are in the post. Also, why the EEOC filed the suit is in the post.

TAKEAWAY: Pay all employees the same for doing the same job – unless there is a valid legal reason for a pay differential.

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