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ICYMI: Our Social Media Posts This Week – Dec. 9 - 15, 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 12/9/18 we talked about PTO and FMLA Leave – and asked: Can employers force employees to take paid time off? The easy answer used to be "yes". But a recent federal appellate case may change that. Why? Because of the FMLA regulations – 29 CFR 825.207 - as noted in the post. The issue is whether or not the FMLA leave is unpaid. In the subject case. Alice needed surgery and then a 6-week leave. She received a disability benefit. Her employer required her to use vacation and sick leave during the FMLA leave. She sued to regain those benefits. She won! The basis of the court's ruling is in the post.  

TAKEAWAY: Know the law and its implementing regulations – consult employment law counsel to stay on the right side of legal.

The post on Monday 12/10/18 said you cannot wear a skirt - revisiting religious discrimination. Is there a reason to revisit? You bet! Georgia Blue is a restaurant that had a dress code requiring servers to wear blue jean pants. A new hire who couldn't for religious reasons asked for an accommodation – see the post. The request was denied out of hand. The EEOC sued. There are other cases that have been filed on a similar basis – again see the post. At least this one settled.

TAKEAWAY: If there is an easy way to accommodate an employee, do it – don't risk being hauled into court.

In the post on Tuesday 12/11/18 we asked: Can an Association Board member be removed for breaching fiduciary duties? (This should be a no-brainer – but the answer still could be "it depends". On applicable state law. Or the Governing Documents. There is almost always a fiduciary duty as explained in the post. In fulfilling their fiduciary duties, Board members may rest on the "business judgment rule" – again detailed in the post. Another issue is whether the person was merely negligent or more. If the person acts (or fails to act) in such a way that there is a breach of fiduciary duty, then the process set forth in the statute or Governing Documents must be followed.  

TAKEAWAY: Know what position is occupied by a Board member, when s/he violates the trust and obligations of the position, and what to do about it.

The post on Wednesday 12/12/18 was of faux pas, fibs and legal fees: a cautionary FMLA tale. A federal court refused to dismiss a claim brought by a former employee of an assisted living center. So what happened? She found out she needed Achilles tendon surgery and shortly after talked to HR about having the surgery after becoming eligible for FMLA leave. HR told her when that would be and she scheduled the surgery for soon after that date. All good, right? Keep reading. So what did the HR person do next? Made the employee punch out and go home until healed from surgery and more noted in the post. Yep. So the employee rescheduled the surgery for an earlier date. But then the employer … see the post. Because of what the HR person told the employee, the court allowed the claim to go forward.

TAKEAWAY: Document everything and make sure everyone involved in the process knows the correct way to proceed (or consults an employment law attorney to be sure). 

In the post on Thursday 12/13/18, we saw that with Me Too - women are sometimes the defendants. Yep. Lynda Resnick is a billionaire. Lynda Resnick is a powerful woman. Lynda Resnick is the 10th riches self-made woman in America. Lynda Resnick is also accused by a former employee of pregnancy discrimination and wrongful termination. And that's not all – see the post for the company's track record. Many facts alleged are in the post. And apparently this employee was not the only one who suffered this or a similar fate. Details of the 2012 lawsuit, also for pregnancy discrimination, are in the post. That case settled. The post gives more details about the other employees' situations too – just not at all favorable of the employer.

TAKEAWAY: Where there's smoke, there is often fire – make sure you and your employees know not to start a fire with any illegal adverse comment or action against employees.

The post on Friday 12/14/18 was a good reminder: Make sure your insurance coverage is what you want and need; don't rely on what someone told you it includes. The federal appellate court whose decisions govern us here in PA just weighed in on a related case. The underlying issue was the doctrine of reasonable expectations in the context of a faulty workmanship insurance claim. Hallstone obtained a general liability policy; the owner clearly asked for the "maximum" "soup to nuts" coverage. But what happened when Hallstone was sued by a customer? See the post. The court was asked to decide whether the reasonable expectation doctrine applied and overrode insurance policy provisions. The post contains the court's rationale for its decision.

TAKEAWAY: Don't just ask for certain coverage – have an attorney review your policy to make sure you get it.

Finally, in the post yesterday 12/15/18 we saw that a racial harassment suit cost Murex $50K. Murex is a large oil and gas company that operates in ND. It has agreed to settle a suit filed by the EEOC alleging that Murex subjected an African-American employee to a hostile work environment based on his race. Derrick was subjected to racial harassment by white co-workers; some of the things they called him are in the post (and are not at all nice or polite). Derrick's supervisor witnesses the harassment, but did nothing. The post contains other allegations – in response to which the company again did nothing. The court signed off on the settlement which includes monetary relief and more as in the post.

TAKEAWAY:  Training, and ensuring compliance with anti-harassment and anti-discrimination policies, are of ultimate importance.

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