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ICYMI: Our Social Media Posts This Week – May 19 - 25, 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 5/19/19 we warned: Be careful what you say and where you say it. Especially in response to a charge of discrimination … Don't just throw the documents in the trash or otherwise ignore them. Our post of 5/15/19 told us how that worked in one instance. In another, the federal appellate court said that allegations in an EEOC charge carry the weight of evidence when looking at summary judgment. How that evidence is to be weighed is in the post. But what's good for the goose … means that a court will also look closely at what the employer says or provides in response to an EEOC charge.

TAKEAWAY: While EEOC matters are not a court proceeding, they might later show up in court; consult an employment lawyer to protect your interests now and in the future.

The post on Monday 5/20/19 asked: Must an employee file an EEOC discrimination charge before filing a suit? Soon the US Supreme Court will tell us the answer to that question. It stems from a case where the plaintiff sue for religious discrimination without an EEOC filing. Five years into the suit, the employer realized there has been no admin filing. That set up the issue: whether the admin filing is jurisdictional (meaning the failure to file the admin charge is fatal) or a mandatory claim-processing rule (which means the failure to make the admin filing can be waived).The arguments made to the Court are in the post. And why do you care? Because of the effect the ruling will have on how and when (former) employees can file suit on a charge of discrimination or harassment.

TAKEAWAY: From the employer's view, it is safest to make the admin filing before filing suit. From the employer's perspective, if there was no admin filing, a motion to dismiss the suit should be filed.

The post on Tuesday 5/21/19 was about 2019 EEOC bracketology – Test your knowledge! Everyone knows about March Madness and the Final Four. Well, this is the employment law version using statistics from FY2018. The post lets you complete the bracket. You can also get the statistics behind the winner in the post. Fun and education all at the same time.

TAKEAWAY: Total filings may be down, but the distribution tells the story – don't become a statistic, instead know the law and consult with employment counsel to protect your interests.

The post on Wednesday 5/22/19 told us about threats based on house color in an Association. Ugh. This happened in Texas, but it could have been anywhere. The color the owners painted their house (pictured in the post) was different. It was done during a remodel. And approved by the Association. Until it wasn't. See what happened in the post.

TAKEAWAY: Life in a planned community (condominium, homeowner or cooperative association) is governed by covenants, Bylaws and Rules/Regulations; know what they are and who has what rights and obligations. Contact an attorney well-versed in community association law.

In the post on Thursday 5/23/19 we learned about commonly-used defenses in employment discrimination cases. Discrimination does happen; even when it doesn't, charges and suits are still filed. Either way, know what possible defenses are available. In the case in the post, Jimmy, an African-American male, alleged discrimination and retaliation when he was discharged. It all revolved around him reporting to work one night and then leaving the job site. What each party said happened next is in the post. Jimmy sued. On summary judgment, the trial court ruled in favor of the employer. On appeal, the outcome was different. The appeals court looked at several things that form common defenses, including whether there is a valid comparator/similarly situated employee, whether Jimmy was performing his job satisfactorily, and more in the post.   

TAKEAWAY: Know what possible defenses are available and what is needed to be able to take advantage of it. Employment counsel can help.

The post on Friday 5/24/19 was about retail properties and the ADA: 5 common pitfalls to avoid. This applies not only to big shopping centers, but also to public places (such as your place of business). So where can issues arise? Parking. Perhaps not enough ADA spaces or improper markings. Also sidewalk access. For retail establishments, there must be at least one access into it from public streets and sidewalks and more noted in the post. Want more? Two other areas of concern and that grandfathering clause – does it really exist? See the post for all of those.

TAKEAWAY: The ADA is a law with which everyone who is covered must comply. Know the standards that apply and meet (or exceed) them.

Finally, in the post yesterday 5/25/19, we saw that the Feds ruled that one company's Gig workers are contractors. While the DOL letter is limited, it gives a hint for other employers. The question was whether gig-economy workers are contractors or employees. We finally have a hint from DOL from a letter written to just one company, but it opens the door and lets us look inside to how the question might be answered for other employers. Some telling hints from DOL's recent letter: the company was referred to as a "virtual marketplace" connecting service providers with consumers and 6 things were analyzed. First, the amount of control the employer has over workers. Second, how permanent or transient or temporary was the work relationship (with subcategories identified in the post). Two other things were also analyzed and are in the post. The last item may well be the most important.

TAKEAWAY: DOL has been on a crusade to ensure workers are properly classified and paid – don't get in its cross-hairs. Know which workers are contractors and which are employees.

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