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ICYMI: Our Social Media Posts This Week – Mar. 31 - Apr. 6, 2019

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 3/31/19 we saw that a federal court says disclosure of depression triggered FMLA obligations. We suggested you know when you have to act – which does not mean the employee has to use the acronym FMLA. So the question is, what does the employee have to do or say to trigger the employer's obligations under the FMLA? Here, Hannah told her (government) employer early on that she had depression. At some point, her attendance suffered and her behavior changed (how? See the post). Even though her doctor requested a medical leave, the employer referred Hannah to the EAP. More things happened relative to her condition and FMLA leave (as detailed in the post), and eventually she filed suit. The court let the FMLA interference claim go forward for the reasons noted in the post.

TAKEAWAY: Know when an employer's obligations under the FMLA kick in and what it has to do; consult an employment lawyer to be sure.

The post on Monday 4/1/19 was not a joke; it told us that an employer wouldn't hire women because they 'complain and make trouble,' says the EEOC suit. American Freight and Mattress allegedly intentionally excluded women from certain jobs (noted in the post). How? Corporate told store managers that women "complain and make trouble" and should not be hired. And that's not all – other "instructions" are in the post. Is it any wonder suit was filed?!?

TAKEAWAY: Train your employees and make sure they act as they are trained to act – their failure is your liability.

The post on Tuesday 4/2/19 asked: Must Association Board members be full-time residents? As you guessed, the answer is "it depends". On what? The Association's Governing Documents – the Declaration, Bylaws, and Rules/Regulations. In the post, there was a law that applied. In PA, there is nothing similar.   

TAKEAWAY: Make sure your Association has an attorney well-versed in community association law to keep you on the straight and narrow.

The post on Wednesday 4/3/19 noted that a FB-hacking employer still gets injunctions against ex-employees. Two wrongs ... The employer sued former employees for starting a competing business, stealing trade secrets, and stealing clients. How the employer got the information it used to show what the employees did is in the post. And based on how the employer got the information, the employees argued that the information could not be used against them. The suit went to the federal appellate court (that governs here in PA). The court ruled in favor of the employer; the rationale is in the post. Near the end of the post are tips on how to handle a social media issue, including talking to your employment law attorney.

TAKEAWAY: While bad facts make bad law, employers (and employees) should be aware of this case and what other liability it might have opened up for either side; again, talk to your employment law attorney.

In the post on Thursday 4/4/19 we learned that DOL says employers may not delay FMLA designation, even at the employee’s request. What does that mean? Often when leave is needed, an employee will ask to take paid leave first, then FMLA leave if needed. Before now, the employer could agree (even though that would mean the employee could have more time away from work …). Now, however, the DOL has changed that. It issued an opinion letter 3/14/19 clearly stating what the employer must do: see the post. It supported its position by reference to the Regs – see the post. The opinion seems to help the employer, but it was meant to protect the employer from a situation like that in the post. What employers must do in light of this opinion is in the post.

TAKEAWAY:  Make sure you know what the FMLA provides – and then follow it to the letter.

The post on Friday 4/5/19 told us a jury awards a Walmart pharmacist $744K in ADA suit. Wow! Back to the beginning … Lori was a pharmacist with CP and MS. She requested an accommodation relative to administering vaccines. Doing that was an essential function of her job. The options Lori proposed are in the post; how Walmart responded is also in the post. Lori sued. The jury found in her favor to the tune of $744,000. Walmart says it attempted to accommodate and is evaluating its options.

TAKEAWAY:  The ADA has a process that requires participation by both employer and employee – know when the process is triggered and what obligations each party has as part of the process.

Finally, in the post yesterday 4/6//19 we saw that IBM allegedly illegally fired over 20,000 older workers. Ugh. Former employees sued for a violation of the OWBPA and the ADEA. They allege that in 2014 IBM ended a 10-year practice of providing the information required by the OWBPA upon layoff and, instead, acted as detailed in the post. IBM called its actions Resource Actions. But they changed what it did, and not for the better. It allegedly intentionally violated the ADEA and OWBPA by acting as noted in the post. It even used social media to advance its new objectives. The irony is that in addition to the suit, the employees have had to file age discrimination complaints in arbitration due to IBM's severance agreement.

TAKEAWAY: If you take adverse action against a protected group, whether age or another, have a valid, legal reason for the action. Consult an employment law attorney to ensure you are on the right side of legal.

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