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ICYMI: Our Social Media Posts This Week – Nov. 4 - 10, 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 11/04/18 we saw that failure to report harassment is not always a bar to trial. Read on. A frequent defense to a discrimination or harassment case is that the employee did not report the alleged behavior. But what if the employer knew about it despite the failure to report? The post answer that question. At first the court had to determine if the alleged conduct could form a hostile working environment. Its analysis is in the post. Then it let the case move forward on the basis of one thing – in the post.

TAKEAWAY: If your managers know about or witness illegal behavior, they must take action (or refer the matter to the proper person to take action). Failure to do so may subject you to liability.

The post on Monday 11/05/18 noted that NLRB General Counsel urges reversal of Purple Communications. This has to do with email communications and yes, you care! Purple Communications allowed employees to use employer email systems for NLRA Section 7 purposes (union organizing and protected concerted activity) during nonworking time. Board Counsel advised it to abandon Purple Communications and go back to prior precedent – see the post.  Counsel argued for the reversal on several bases, including precedent and others in the post. There is one exception to Counsel's suggestion and that too is in the post.

TAKEAWAY: The open period ran 10/5/18 so the Board may rule soon – and so might the federal court before which the Purple Communications appeal is pending. Talk to your lawyer about what employees can and cannot do with your email system.

In the post on Tuesday 11/06/18 we read about an owner fighting to keep sign in front yard – and asked: how would your Association handle this? Yes, let us help with any problems. The owners painted a "sign" for a political race in their front yard – not just any sign, but one over 24 feet long. The HOA was not happy – and acted as in the post.

TAKEAWAY: Residents of planned communities – those with homeowner or condominium associations – must follow the Governing Documents whether or not they approve.

The post on Wednesday 11/07/18 told us that a "Regarded as" claim does not require an employer's subjective belief (but only the plaintiff-employee's belief - which can be shown through facts). The ADAAA finds someone eligible for protection in the "regarded as" category when the employer believes s/he is disabled. In this case, plaintiff complained of an injury and asked for less physically demanding work. After initial approval, there was a series of twists – see the post. And then what did this employer do that met the plaintiff-employee's burden of possible pretext? See the post.

TAKEAWAY: Not only should employees be trained on what (not) to say and do, the employer too must know how to ace so as not to detract from its possible defense. Use employment law counsel if needed.

In the post on Thursday 11/8/18 we learned that the EEOC sued for improper medical inquiry under the ADA. We suggest you Know what you can and cannot say or ask. Deborah was hired as an office manager in mid-2016. All employees had to give the company a copy of all medical prescriptions. For much of 2017, Deborah took prescribed meds at night but did not provide a copy of the prescription to the employer. Then she was required to undergo a random drug test. The post details what Deborah did and what the company did. The EEOC filed suit for the reason in the post.

TAKEAWAY: Make sure there is a valid reason for all medically-related action or requests. Steer clear of liability under the ADA and GINA.

The post on Friday 11/9/18 suggested that you develop a Handbook specific to your business - don’t just cut and paste a form you found. Among other things, handbooks help set expectations, provide guidance on how to handle conflicts, and, when drafted and implemented correctly, can protect your business from legal liability. But a Handbook that you found on the Internet, or "borrowed" from another business, may be bad for you – and might even set you up for legal liability. Make sure your Handbook includes certain sections, such as Sexual Harassment Policy, Procedures, and Training and others listed in the post. And make sure the entire Handbook is legally valid.

TAKEAWAY: Make sure your Handbook fits your needs and is legally compliant - let employment law counsel help you prepare or revise your Handbook.

Finally, in the post yesterday 11/10/18 we asked: Sexual horseplay or sexual discrimination? The half-million dollar question. Because a federal court recently upheld a verdict against a small Chicago retailer after it concluded that a male employee was the victim of sex discrimination. The employer admitted that the behavior complained of occurred, but its defense is in the post – and interesting.  What behavior, you ask? Much of it is listed in the post and is not nice. And what, if any, role management had – also in the post. See the post for what happened after he complained. He quit and sued. The company's defense was unique but based on the statute itself – see the post.

TAKEAWAY: Know what's going on in your workplace and make sure managers stay within legal bounds.

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