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ICYMI: Our Social Media Posts This Week – Dec. 16 - 22, 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 12/16/18 we asked: Individual liability for owners? Possibly. Read on. Why? So you know whether or not you individually are an employer. You may not be the majority owner, but if you have other authority, you may be classified as that person's employer for FLSA purposes. Got your attention now, huh?!? The FLSA defines an employer as one who "exercises control over the nature and structure of the employment relationship, or economic control over the relationship." Courts have devised tests arising from that definition; see the post for one example. When the factors were applied to the facts of that case, someone who thought he probably had no liability was surprised at the court's analysis – see the post.

TAKEAWAY:  When you take on responsibility, know what else you take on, such as potential statutory liability as an employer under the FLSA. Consult employment law counsel if you are unsure.

The post on Monday 12/17/18 told us that an employee may proceed with claim that employer led her to believe she could take FMLA leave before qualified. We suggested you make sure you know what your managers are promising or a court may force you to fall on that sword. You know the eligibility requirements before someone can take FMLA leave, right? And one is that eligibility must precede the leave, right? Well … Here, Angel was an administrative assistant. She told her employer she needed surgery and scheduled it for just after her one-year work anniversary. The employer put her on medical leave – its reasoning is in the post. Angel then moved up her surgery. The employer's HR Coordinator then made certain representations to Angel – they are in the post. Finally, the employer then denied Angel's FMLA leave request and filled the position. Angel sued. The Court allowed the case to go forward – its reasoning is in the post.

TAKEAWAY: Again we warn you to train your employees on what to say and do and what NOT to say and do, including making representations that might be held to bind the employer in a way it doesn't want to be bound.

In the post on Tuesday 12/18/18 we learned no adverse action, no failure to accommodate claim, or so says this federal court (in contrast to at least one other). That is the issue in deciding if there has been a violation of the ADA. For example, as noted in the post, if an employer refuses to move a wheelchair-bound employee's office a few feet closer to the entrance, is there a violation? It might depend on whether there was an adverse employment action. Federal courts are divided on the answer.  One recently held that adverse action is required in order to find an ADA violation. In that case, the employee broke her arm, limiting her ability to perform some job functions. The post details the timeline that occurred after that, including whether there was any adverse action. That was analyzed on appeal and the court's analysis is in the post.

TAKEAWAY: Know what the law requires relative to your business – or don't even get to that point if you properly handle the reasonable accommodation process.

The post on Wednesday 12/19/18 suggested that you review your Association's existing Governing Documents to know what covenants or Rules/Regulations to enforce going forward. Whether it is basketball hoops as in the post, or anything else, you need to know what is required before you can follow or enforce it.

TAKEAWAY: The Governing Documents are for everyone – get a good community association lawyer to assist you fulfill your fiduciary obligations to the Association.

In the post on Thursday 12/20/18 we saw that FBI training instructors punish women, not men, for mistakes, complaint says. If true, it’s not good but helps explain the gender disparity. Danielle was training to be an FBI agent; she passed her fitness, academic and firearms tests. That left certain training tactics. She had problems and was written up 4 times in one day, then forced out not long before graduation. What about a man who did a similar thing? See the post. Danielle and 11 others accused the FBI of gender discrimination at the training academy; of the 12, seven also claimed race discrimination and 2 disability discrimination. Some of their allegations are detailed in the post. The FBI did not comment on the suit. Danielle wasn't the only one. Terah also passed the first 3 phases and then struggled with tactics. The post reveals her problems. And then there was Paula. A bit about her story is also in the post.

TAKEAWAY: Qualifications are legal, but must be evenly enforced. Make sure you treat all of your applicants and employees the same.

The post on Friday 12/21/18 reminded (or warned?) you to protect your claimed at-will employment relationships. You already (should) know that Pennsylvania is a strong at-will state, meaning either employee or employer can end the relationship at any time, with or without notice and with or without reason/cause, as long as there is no legal violation. Absent a writing to the contrary, at-will employment is presumed. But it is not inviolate. In the post, there was a CBA provision that the employee argued was not enforced. The facts were not uncommon; see the post. And the court must always look at all facts in deciding whether the relationship is at-will or not.

TAKEAWAY: Make sure all writings between your business and the employee do nothing to destroy the at-will relationship – unless that is your intent. Have everything reviewed by an employment lawyer to make sure your intent is fulfilled.

Finally, in the post yesterday 12/22/18 we saw that Simmons Security & Protection Services is to pay $15K to settle a pregnancy discrimination suit filed by the EEOC. What happened? Simmons hired Lakisha as an unarmed security guard. It did not know that she was pregnant. A few weeks later she was asked if she was pregnant. See the post as to what Simmons did after she answered. Which explains why the EEOC sued. The post also tells us what employers should do when they have a pregnant employee.

TAKEAWAY: Treat pregnant employees the same as all other employees unless and until asked for something different.

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