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ICYMI: Our Social Media Posts This Week – Nov. 25 - Dec. 1, 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 11/25/18 we learned that failure to report harassment may not be fatal to employee’s claim. Employers beware. In a federal appellate ruling that is binding here in PA, Sheri alleged that her supervisor made sexual advances toward her for years. The post contains her reason for not reporting it. Since it was not reported, the company said it could not have known to stop it. Sounds reasonable, right? Well …  see the post as to why that argument failed.

TAKEAWAY:  Investigate and take action each and every time you get a complaint – really.

The post on Monday 11/26/18 asked: What is "de minimis" for pay in light of modern technology? You care because of the requirements of the Fair Labor Standards Act (FLSA) and how easy it is for anyone (including non-exempt employees!) to work from anywhere. The FLSA requires payment, regardless of when the work was performed, as noted in the post. However, there is the de minimis rule and analogous FLSA provision, which is where the question comes in. The post contains the prerequisites in order that it apply and the time spent working not be compensable, along with how that might play out in today's world.

TAKEAWAY: Have a policy on off-the-clock work – including the provisions listed in the post – and strictly enforce it.

In the post on Tuesday 11/27/18 we asked: Can a home be painted any color without HOA or condo association permission? The answer is "it depends". First, on what the Governing Documents say. You know, the Declaration, Bylaws, and any Rules & Regulations. They are the things every owner in the associations lives by – assuming things happen like in the post. If so, then the association can act similarly to the note in the post.

TAKEAWAY: Homeowner and condo associations usually have architectural standards that include paint colors; if they are evenly enforced, then owners must follow the standards or risk being fined (or worse) if in violation.

The post on Wednesday 11/28/18 gave us 15 questions to ask when auditing your employee handbook. And then have it reviewed for legal compliance. Yes, auditing. Reviewing periodically. To make sure it says what you want it to say, fulfills your obligations as an employer, but does not make any additional obligations that you don't want there. So what are the types of things to look for? First, make sure the handbook clearly provides that it is not a contract. Next, if the handbook lists offenses that might result adverse action, make sure to note that the list is not all-inclusive, but merely some examples. Other things to look for are in the post.

TAKEAWAY: Not only should handbooks be the guide all employees must follow and the employer will enforce, it should clearly tell employees what they can expect of the employer, including any applicable legal obligations.

In the post on Thursday 11/29/18, we saw that an ex-assistant coach is suing the team for age discrimination. The former coach is Jim Boylan; the team is the Cleveland Cavaliers. The suit was filed in state court in Ohio by Boylan after his contract was not renewed. While it was the Head Coach who gave him the news, it was supposedly the decision of the General Manager. But it was the words conveyed that gave rise to the suit – see the post. And other things the Head Coach alluded to, which support the allegations in the suit, are also in the post. Even while acknowledging what the Head Coach said, the Cavaliers still intend to defend on the basis in the post

TAKEAWAY: Train your employees in what not to say – it can be oh so important to any liability if adverse action is taken.

The post on Friday 11/30/18 was about what to do when DOL comes knocking at your door. Good tips! Don't play ostrich when DOL comes to conduct a wage and hour audit – know what to say and do to avoid anything that might lead to (more) liability. First, it makes a difference if DOL announces itself with a letter or a literal knock on the door. The difference it makes is in the post. Also in the post is how you must respond if you get a letter. But what should you do if instead you get the knock? First, call your employment lawyer. Do and say what that person says to do and say. Other things to do and say after the knock are in the post, including explanation on why it is appropriate. .

TAKEAWAY: Ignoring DOL, or responding inappropriately or incorrectly, can be as bad as not responding. So when you hear from DOL, contact your employment lawyer and go from there.

Finally, in the post yesterday 12/1/18 we discussed whether it was really a constructive discharge in light of new case law from the governing federal appellate court (meaning you need to know this). In late September, the Third Circuit Court of Appeals announced a new approach to constructive discharge where the employee alleges coerced resignation in lieu of discipline. It came in the case of Holly Judge, a former tenured school principal. She was arrested for DUI, and though she was released that same night, she was not formally charged. Twenty days later, the Superintendent asked her about it and she admitted it. The timeline after that is in the post. That led to her suit filed under several legal theories, some of which were dismissed and others denied through summary judgment. Judge then appealed to the Third Circuit. The Court acknowledged the rebuttable presumption listed in the post, but then went on to explain how constructive discharge claims are to be reviewed. It then listed five factors – see the post – and applied them to Judge's case.

TAKEAWAY:  If an employer is to properly weigh whether to allow an employee to resign instead of adverse action being taken, then these 5 factors must be reviewed to ascertain where the employer really stands.

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