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ICYMI: Our Social Media Posts This Week – June 2-8, 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 6/2/19 we learned to think outside the box: carefully review EEOC charge. Here's an example why. The plaintiff filed for disability retaliation. The employer asked that the case be dismissed for failure to exhaust. More specifics are in the post. Why the court ruled the way it did is also in the post.

TAKEAWAY: Whether in relation to an administrative charge or civil litigation, you should consult an employment lawyer to ensure your rights are protected – and that you know what the other side has or has not done and its effect.

The post on Monday 6/3/19 was about avoiding misclassification of workers: employee vs independent contractor. So important. And so not new. You need to have this down in case the IRS or Department of Labor investigate your business. It is not uncommon for an employer to classify employees as independent contractors in an attempt to avoid the payment of taxes (and lower worker's comp premiums). But it can be costly if the classification is wrong. Factors the IRS looks at include behavioral control (as detailed in the post), financial control (again as detailed in the post), and more discussed in the post. One thing alone is probably not determinative, but all must be considered in each case.

TAKEAWAY: Make sure to properly classify workers – it can cost you a lot more than pay if you are wrong.

The post on Tuesday 6/4/19 we saw that self-help doesn't help. Self-help as in trying to make your case/claim better than it really is. This case out of western Pennsylvania demonstrates that. There, Spano was a CNA and her sister filed a proposed class action suit against their employer. The sister alleged claims under the ADEA and WPCL. During discovery, Spano produced documents; how and when she got them is in the post. And she testified about it during her deposition. The information in those documents is pretty important – see the post. The employer then took action and Spano is now the subject of 2 suits (detailed in the post)

TAKEAWAY: Play by the rules, whether in a handbook, contract, or the law; Breaking the rules will not help and will probably hurt you. Consult an employment lawyer and let him/her tell you this same thing.

The post on Wednesday 6/5/19 taught us that a property manager gets prison for defrauding communities of more than $700K. Most agent are honest and do a great job - but you still need to keep tabs on what is going on relative to your Association. So what happened here?  Karen allegedly defrauded at least 19 HOAs (a small fraction of those with whom she contracted – see the post) over a period of 5 years; it stopped when one of her employees found something. As part of her contracts, Karen controlled bank accounts for her client associations. In 2011, she began doing strange things as noted in the post. She got almost $60,000 from one association in 2015 by the scheme detailed in the post.  The irony is that even the community in which she lived and was under her management lost money. Karen was sentenced (see the post) and now works at a grocery store.

TAKEAWAY: Yes, it is common for Associations to hire professionals to help them, including management agents, and for some of them to handle or control finances. But the Board must still keep a careful eye on the funds and professionals – otherwise they are not fulfilling their fiduciary duty and might also be liable for any loss.

In the post on Thursday 6/6/19 we were reminded that in harassment cases, the context of profanity matters (but only sometimes). (Yes, that's like an attorney answering a legal question with "it depends".) So the issue is the use of the C-word in the workplace and how an employer should respond (whether it should is not a question – yes it should). The case discussed in the post had as the issue whether vulgar language to which all employees were exposed was actionable sexual harassment. In its analysis, the court distinguished some things form others – see the post. As part of its clarification, the court put the words in context (also in the post). It then looked at the context for the use of the C-word in that case. The plaintiff claims that every day she experienced discrimination (how is in the post) and that the manager did nothing despite her complaints. The legal effect of that was also noted by the court in the post.

TAKEAWAY: Sticks and stones can break your bones, and words  … can sometimes hurt you. It depends on the word and the context in which it is uttered. Investigate complaints promptly.

The post on Friday 6/7/19 told us that TimeWarnerCable lost marathon bid to thwart age discrimination plaintiff. What did that entail? 2 jury trials and an appeal. The first trial was declared a mistrial due to a hung jury. TWC lost the second trial (before a jury). It then appealed to the federal appellate court which upheld the verdict. The background: Glenda, age 61, was an African-American, long-time employee of TWC; details on her work history are in the post. TWC began to change its focus and Glenda got a new supervisor. When that person found something (see the post), she told Glenda it would not be a problem. But it was. Glenda was fired and then sued for age discrimination. TWC's asserted defense is in the post. In arriving at its decision, the appeals court looked at several things (described in the post). The kicker was probably the statement made by the supervisor – yes, in the post.

TAKEAWAY: We keep saying it over and over, but it apparently bears repeating: train your employees what to say and not say and when to say the allowable things. Their words can be caustic and costly to you.

Finally, in the post yesterday 6/8/19, we saw that a company must pay $80,000 to a woman for rescinding job offer after learning she was pregnant. ScribeX and Brittany arrived at a settlement adopted by the federal judge. Brittany is a medical scribe, assisting physicians as noted in the post. The company offered her a job and she accepted. Additional steps were taken relative to employment as noted in the post. A week before she was scheduled to start, she told the company she was pregnant and would need leave a few months later. Four days later, the job offer was rescinded. What Brittany was told is in the post (yes, an admission!).The employer's defense is also in the post. The employer did not admit liability, but agreed to the settlement to "close" this chapter.

TAKEAWAY: Watch those words and adverse actions – they can take on a life of their own and be costly to you. Consult an employment lawyer to keep things on the straight and legal.

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