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ICYMI: Our Social Media Posts This Week – Apr. 7 - 13, 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 4/7/19 we asked about firing after FMLA leave? Expect a lawsuit. Well, it depends on the facts. In the post, Heather took FLMA leave 3 times in 2015.  She returned to work timely after the last of her leave. When she experienced pain, she went to her doctor; she then gave his note to the employer. The employer then did this (see the post). Heather sued. The reason the court let the case go forward is in the post.  

TAKEAWAY: Employers should make sure that adverse actions are proper and supportable – make sure they do not put your head on the legal liability chopping block.

The post on Monday 4/8/19 was about the new FLSA salary exemption threshold. Yes, you need to know this. DOL set the threshold at $35,308/year. The effective date is in the post. The weekly amount that breaks down to is also in the post. There are also other proposed changes that are detailed in the post.

TAKEAWAY: The numbers are probably a good compromise, but whether or not you believe that to be true, you need to know when overtime will kick in for non-exempt employees.

The post on Tuesday 4/9/19 noted that an employment decision based on years of service does not necessarily violate the ADEA. This decision came to us from the federal appellate court that takes precedence in PA. So what happened? The Virgin Islands enacted a law to reduce payroll but continue to provide necessary public services; the law also encouraged government employees with at least 30 years of service to retire. What retirees would get is in the post. Also in the post is what would be required of those who declined to retire. Some challenged the latter as an age violation. The Court said that the plaintiffs had to prove age was a "but-for" cause of the action at issue. It then went on to analyze whether the statute was age-based and why or why not, as in the post.

TAKEAWAY: Just because an action may seem to impact older employees disproportionately does not mean that it is illegal – the legitimate purpose underlying it may keep it on the right side of legal.

The post on Wednesday 4/10/19 was about a community fed up with emotional support animal "loophole" and asked: What's an Association board to do? The answer is, as is often the case, it depends. On what, if any, provision in the Governing Documents applies. On what, if any, state law applies. On the applicability of the FHA to the situation. The example in the post is but one way things could play out.

TAKEAWAY: The issue of emotional support animals has legal significance; consult a community lawyer for proper analysis and determination.

The post on Thursday 4/11/19 told us that Cummins is to pay $77K in discrimination suit after charges of paying woman less than counterpart. This author would love to know the 'legitimate reason" for the differential! So what happened? While the woman was employed, Cummins did a salary review at her request to determine if her salary was appropriate. What the review found is in the post. No action was taken after the review. At the time she resigned, the woman was still being paid less than the male counterpart. Cummins' statement is in the post and leads to this author's comment above.

TAKEAWAY: Settlements without admission of liability are common; they allow the employer to move forward while resolving the one case at the forefront.

The post on Friday 4/12/19 was a reminder: the FMLA allows leave to care for an adult child. That comes on the heels of a University agreeing to settle a claim for just under $60K. The claim came after a custodian asked for leave to care for an ailing adult child; the University fired the employee during the protected leave period. What the University agreed to besides the monetary payment is in the post.

TAKEAWAY: The FMLA leave provision to care for a child does not require the child to be under 18; rather, as long as the adult child cannot take care of him/herself, the parent can take protected leave.

Finally, in the post yesterday 4/13/19 we learned that an employer that brushed off sexual harassment as 'playful' paid $150K to settle a claim. (We also noted that's expensive "play".) The EEOC brought the case, alleging that a supervisor routinely subjected women to verbal abuse and more listed in the post. Repeated complaints sat for months. Once, a supervisor told the complaining employee that the offender was just being "playful". How that played out is in the post.

TAKEAWAY: Don't let this happen to you; train managers and HR how to handle complaints and bring in an employment lawyer where necessary and appropriate.

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