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ICYMI: Our Social Media Posts This Week – Dec. 2 - 8, 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 12/2/18 we saw that Logic Staffing was sued by the EEOC for disability discrimination. Here, Keysi, who is deaf, applied for warehouse positions for which he was qualified. Once the potential employer realized he was deaf, it … see the post. Even though Keysi said he could do the job, the employer said (see the post).

TAKEAWAY:  If no accommodation is requested, you should treat the applicant or employee just like everyone else.

The post on Monday 12/3/18 was an ALERT: Scotus says the ADEA applies to local political subdivisions regardless of their size. In Mt. Lemmon Fire District v. Guido, et. al., the Court was asked to determine whether the numerosity requirement (20 or more employees) applied to all employers or only those engaged in an industry affecting commerce and not States or political subdivisions. The post goes through the background facts and the Court's analysis leading up to its holding. What is really interesting is that Justice Ginsburg delivered this opinion interpreting language (as Justice Alito used to do) and it was unanimous.  

TAKEAWAY: Private employers must meet the 20 or more threshold to have obligations (and potential liability) under the ADEA, whereas States and political subdivisions do not.

In the post on Tuesday 12/4/18 we saw that a scout is suing the Minnesota Twins for age discrimination. Interesting comparison of federal and state law. Howard, who is 60 and lives in Australia, was the Twins' international scouting coordinator; he was good, but he was fired after the 2017 season. See what they said about his performance in the post. He sued for age discrimination. On what did he base his complaint? They hired a 38-year-old as manager, a 33-year-old as chief baseball officer, and more in the post. And the Twins made a (stupid) comment after firing their manager after the 2018 season – see the post. Further, he alleges that 9 other front-office people older than 50 were terminated in favor of younger employees. What's really interesting is the comparison between the ADEA and state law in the post – and why the complaint was filed as it was.

TAKEAWAY: Know the burden each party to a suit must carry – and how you will defend once it shifts to you.

The post on Wednesday 12/5/18 warned you to watch out for homeowner and condominium association rules on holiday lights and decorations. Don't get caught on the wrong foot. Just like many other facets of life in a planned community, there are probably rules about when, what and how owners can decorate their homes for the holidays. The post mentions some things that might happen if there is a rule violation. The post also advises that you read the rules – carefully. Before you decorate.  

TAKEAWAY: Owners get many things as part of living in a planned community; but one tradeoff is having to abide by the Declaration, Bylaws, and Rules.

In the post on Thursday 12/6/18, we read about advice from the NLRB General Counsel on Facebook posts. We also suggested you heed this - because once again it probably applies to ALL workplaces. So what happened? Counsel considered whether an employee at H&M Construction engaged in protected concerted activity by posting comments on Facebook about how employees were treated by H&M's general contractor. How did counsel come down? See the post.  What the employee posted, and why, is explained in the post. The GC mentioned it to H&M, where a supervisor thought it best to lay off the employee. That resulted in a charge being filed with the NLRB. Why the counsel found the post to be protected concerted activity is in the post – and a good tip.

TAKEAWAY: Even in non-union workplaces, employees have their Section 7 right to engage in concerted activities for mutual aid or protection; know how far an employer can go if this becomes an issue. Consult knowledgeable legal counsel.

The post on Friday 12/7/18 was a service animal vs emotional support animal redux, a follow-up to our post on 11/16/18. Do you remember the woman who tried to bring her "emotional support squirrel" onto an airplane in October? This type of thing happens all the time in the workplace, so know the rights and obligations of the parties. The post lists the general definition of service animal under the ADA and how it is limited. The post also notes what the animal must do for the person. A request to bring a service animal to the workplace – usually as an accommodation – should undergo the normal interactive process and not ruled out instantly. Emotional support animals are vastly different – see the post for what they are not, and what they do not do. What is extremely important is the difference under the ADA between service animals and emotional support animals – and that leads into how requests for the latter in the workplace can be dealt with.

TAKEAWAY: Know the difference between service and emotional support animals and how that plays into an accommodation under the ADA.

Finally, in the post yesterday 12/8/18 we learned about the EEOC suit against an employer who retaliated against a race-discrimination suit witness. Ugh. The EEOC alleged that Doug Lytle, the owner of a wedding venue, fired an African-American employee for supporting a co-worker's race discrimination claims. Did we say ugh?!? So what happened? Theo was a witness in another employee's race discrimination suit against a company where Lytle had been a manager. What Lytle did then is in the post. Theo refused to buckle under, so Lytle threatened his job and then took him off the schedule. What the EEOC seeks in the suit is in the post.

TAKEAWAY:  Train your employees on what to say and do and what NOT to say and do – try to prevent potential future liability from loose lips.

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