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ICYMI: Our Social Media Posts This Week – Oct. 21-27, 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 10/21/18 we saw that an Hawaii cable company's 'inflexible' leave policy violated the ADA, EEOC says. The complaint alleges that Spectrum denied leave as an accommodation to some of its customer service representatives at its headquarters. The post talks about the interplay between the FMLA and ADA. Whether or not Spectrum fulfilled its obligations in the interactive accommodation process is also in the post.

TAKEAWAY:  Make sure any leave policy is legally compliant. Just do it.

The post on Monday 10/22/18 told us that a legal marijuana patient wins 'very significant case' against employer who rescinded job offer. We also noted that PA employers should take heed! Federal law still makes marijuana use illegal. But some states, including PA, have legalized at lease medicinal marijuana. The question is whether employers are within their rights to take adverse action against a medical marijuana user. That was the issue in the post when an applicant advised of her legal medicinal use, tested positive, and had adverse action taken. And the ruling, as in the post, may be a harbinger of things to come. Stay tuned.

TAKEAWAY: Know what you are required to do and what you are allowed to do when it comes to an employee's legal medical marijuana use.

In the post on Tuesday 10/23/18 we talked about how Associations can protect against short-term rentals (think Airbnb and others) and the implications/issues. Those issues are usually whether the rental violates Association restrictions by operating as a business and the other one noted in the post. The Association's Governing Documents can ban this type of rental. The reason it's important to do that are in the post. One big reason to ban that type of rental is they are permitted, it could cause the Association’s amenities, such as pools and club houses, to change from ones reserved exclusively for Association member use into ones considered a “public accommodation” under the ADA. The post explains why this is problematic (and expensive).

TAKEAWAY: Protect your Association – make sure the Governing Documents legally ban or limit short-term rentals. Have a community law attorney check for compliance.

The post on Wednesday 10/24/18 was about subtle harassment, code words and implicit bias: proving everyday discrimination in court. Usually there is no smoking gun in a discrimination case, so the subtleties matter. And proving them in court is difficult, but as the post explains, it can happen.

TAKEAWAY: The best way to help your company defend against discrimination suits is to minimize implicit bias by training employees, especially managers.

In the post on Thursday 10/25/18 we saw that a Bath & Body Works manager humiliated employee who requested accommodation. So wrong on many fronts. The employee had vision problems related to a medical condition and asked for a larger monitor the cash register. The employer's response is in the post (and includes what was done to humiliate her in front of co-workers). The employee followed policy, and the result was … in the post.

TAKEAWAY: Don't be an ostrich – honestly and fairly engage in the interactive accommodation process. It will help employee morale and keep you on the right side of legal.

The post on Friday 10/26/18 told us that an applicant who rejected a job offer was entitled to trial on a gender discrimination claim. So what happened? The plaintiff owned and managed a spa for eight years before selling it in 2015. In 2016, she applied to be spa manager at a luxury resort. She was offered a positon and salary negotiators ensured. The post lists some of those steps. The post also talks about who was hired and the eventual pay. The plaintiff sued, resting much of her case on a comment made by the manager (which is noted in the post) and the implications she thought arose from his conduct (also as noted in the post). How and why the court ruled in her favor at this stage is detailed in the post.

TAKEAWAY: Pay based on the position, not the gender of the applicant or employee. And make sure you can support the decision as to what to pay any employee. Otherwise you could be behind the applicant who can refuse an offer and still sue.

Finally, in the post yesterday 10/27/18 we suggested that you don't get confused by "ADA leave". We know that the ADA and FMLA should often be looked at together relative to employees who meet the thresholds. But unlike FMLA leave, there is no such thing as ADA leave. But the ADA may still require accommodation. See the post for an example of how that happened.

TAKEAWAY: Know how and when leave under the FMLA and ADA might be required – consult legal counsel to ensure compliance.

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