ICYMI: Our Social Media Posts This Week – Jan. 8-14, 2017

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 1/8/17, we talked about dress code and grooming policies: how to express how to dress. Yes, dress code and grooming policies can be legal; yes, you should review them carefully and periodically to make sure they remain legal. Workplace attire and grooming has changed thanks to millennials – but that doesn't mean the employer gives up all control. The post lists a few tips to keep in mind: consider the culture, don't discriminate, define Casual Friday, and more in the post.

TAKEAWAY: Work with an employment law attorney to ensure your dress code and grooming policies are legally compliant – and when they are, uniformly enforce them.

The post on Monday 1/9/17 mentioned the EEOC alleges McDonald's unlawfully fired an HIV-positive employee under the ADA. In case that wasn't enough, the EEOC also says McDonald's has an illegal policy requiring employees to report their prescription drug use. McDonald's has settled for $103,000 (plus other things). See a bit more detail in the post.

TAKEAWAY: Make sure managers know what to do with various scenarios under the ADA – and that they do it uniformly.

In the post on Tuesday 1/10/17 there was a legal alert re impaired access: ADA website accessibility lawsuits on the rise. Remember that public websites should be accessible to the blind and visually impaired too. Suits are becoming more common, especially in the few industries mentioned in the post. 2016 brought suits against Domino's Pizza, Potbelly Sandwich Works, Reebok, Panera Bread, and more. You don't want your name to be on the list!

TAKEAWAY: If your website is determined to be a "place of public accommodation" under the ADA, then it must be accessible to the blind and visually impaired – make the necessary changes soon.

The post on Wednesday 1/11/17 was about Sikh truckers reaching a settlement in religious discrimination case. It was an expensive lesson. The employer wanted Lakhbir Singh to cut some of his hair for a drug test – but that would have violated his Sikh beliefs. No alternative was offered to him or others in the same situation. The employer, J.B. Hunt Transport Services Inc., also acted wrongly about a urine test – see the post. Eventually, the employer agreed to alternative testing to accommodate their religious beliefs.

TAKEAWAY: Often there is not just one way to do something – and there should be another if the first interferes with someone's religious beliefs. Find the other way and stay legally compliant.

In the post on Thursday 1/12/17 we looked at the EEOC's FY 2016 performance report – which is indeed interesting. Some tidbits: the EEOC got more than $482M (yes, million) for victims of discrimination in fiscal year 2016, the vast majority of which came in other than through suits. The EEOC resolved over 97,000 charges, an increase over FY15. It also took in over 585,000 calls and 160,000 pre-charge inquiries. Those are huge numbers and very telling as to how long is the road to alleviate all illegal discrimination. More details are in the post and the report (for which the link is in the post).

TAKEAWAY: Even though no names are listed, don't become a statistic in this or future years; know the law and follow it. Contact an employment law attorney for assistance.

The post on Friday 1/13/17 was about targeting FMLA fraud and abuse: moonlighting. Is it always something that should lead to termination of the employee? (Hint: no). The post suggests some steps to take when you find out, including surveillance if warranted under the circumstances. Just make sure that whatever you do is legal!

TAKEAWAY: Don't just fire someone you catch moonlighting during an Fapproved MLA leave – that might land you in expensive hot water.

Finally, the post yesterday 1/14/17 noted an express accommodation request is not required under the ADA. Hopefully that is only a reminder to you, not something new. In the case in the post, a medical tech who was unable to complete CPR training after surgery gets a trial on her ADA claim – despite having never specifically requested an accommodation. She had gotten approved FMLA leave for surgery and a doctor's return-to-work form with limitations noted on it. The employer required CPR certification; she informed the employer her doctor was requiring more PT before being able to complete the CPR certification. She was discharged for not being able to do CPR. The trial court found that an essential function and granted summary judgment for the employer. On appeal, the decision was reversed (and the case will go to trial on the issue of whether she made a request for accommodation sufficient to trigger's the employer duty to begin the interactive accommodation process.

TAKEAWAY: As noted in the post, once you find out about an employee's disability and any parts of the job s/he finds difficult due to that disability, begin the accommodation process. Don't stick your head in the sand waiting for the employee to act or you might find it's quicksand.


ICYMI: Our Social Media Posts This Week – Jan. 1 - 7, 2017

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 posts on Sunday 1/1/17, here and here, we wished you and your family and friends a wonderful and successful 2017!

TAKEAWAY: It's a clean slate – yours to write on for the new year. Take advantage!

The post on Monday 1/2/17 was about the EEO policy statement from the HHS Secretary. Well said, Madam Secretary. The statement reaffirms HHS's commitment to diversity and preventing discrimination, harassment and retaliation. The statement is in the post.

TAKEAWAY: At least part of the federal government is taking seriously the diversity of the workforce and protection of the right to that diversity. Why shouldn't you in the private sector do the same?

In the post on Tuesday 1/3/17 we asked: Want to ease FMLA headaches? Doctors prescribe 3 remedies. All of them stem from you asking the doctor if there are questions about FMLA certifications or other administrative issues. So what have some doctors said regarding that? They don't want to be in the middle, so lay the groundwork (see the post). Talk to them on the phone, early in the process, after HIPAA prerequisites (in the post) are met. And finally, take the doctor's determination as to leave duration as a guideline, not a hard line in the sand. Things to ask or obtain are in the post.

TAKEAWAY: Working with the doctor helps make the FMLA (re)certification process go smoother and easier, both boons for the employer and employee.

The post on Wednesday 1/4/17 asked: In what ways can a company use (or not use) photos of its employees? The first thing is to distinguish between using the photo for security and identification purposes (for which most employees have no problem) and public or commercial purposes. So what should an employer do? The simplest thing is to ask employees if they are ok with being included in a public/commercial photo (and, as the post suggests, get authorization in writing). The post also details some ways that taking or having photos of employees may be risky for an employer, so be careful.

TAKEAWAY: Photos of employees can be put to many purposes – make sure those photos you take and use are legal and authorized (and don't subject you to unnecessary risk of liability).

In the post on Thursday 1/5/17 we talked about the law of managing and maintaining personnel records. Oh so important. Question #1 is always "How long do I have to keep those records?" The real answer is that it depends on the record, what the applicable law says, and what the record might be used for (i.e., what defense or support it could provide for you aside from the purpose for which it was created). The EEOC recommends keeping records for at least 1 year. The FLSA and other federal laws require certain records (listed in the post) to be kept for at least 3 years. Also make sure documents are maintained in the appropriate file (see the post) with access granted only to those with a (statutory) need to know.

TAKEAWAY: Have a policy on records retention and maintenance, including what types of documents will be in each file and who will have access. Then follow the policy.

The post on Friday 1/6/17 was about missing workers hidden in plain sight. Yes this is another in the series about classifying a worker as an employee or independent contractor – the wrong choice can be costly for an employer. The post details what that employer, a limo company, requires the workers (who are drivers) to do if they want to work there – including forming their own LLC as an umbrella for the independent contractor relationship. A judge recently pierced that veil. The decision is on appeal as is a decision awarding a driver unemployment compensation after he was laid off. But nothing has changed as far as how that employer conducts business with the drivers.

TAKEAWAY:  Remember that PA is one of the states cracking down on worker misclassification – ensure that your workers are properly classified before it becomes an issue and an expense.

Finally, the post yesterday 1/7/17 asked: What am I doing wrong? Common FMLA mistakes. One of the most common errors made by employers is not recognizing the employee's notice of the need for FMLA leave. Maybe the employee didn't come out and ask, but the employer found out through another channel – that still triggers the employer's obligations. As with an ADA request, the employee need not say "I need to take FMLA leave" to be the trigger. The post talks about a recent case in which the question of whether the employee provided adequate notice of the need for continuing FMLA leave was to be decided by the jury. The post also talks about another case where the court decided the employee did not provide sufficient notice of the need for FMLA leave (including the employee's refusal to provide additional information when asked by his supervisor).

TAKEAWAY: The employer has obligations once protections under the FMLA are invoked, but there must still be a trigger to start those obligations. Don't ignore the trigger, but don't make up one either.


ICYMI: Our Social Media Posts This Week – Dec. 25 - 31, 2016

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 posts on Sunday 12/25/16, here and here, we wished you and your family and friends a happy holiday!

TAKEAWAY: Sometimes you just have to take a time out and enjoy.

The post on Monday 12/26/16 noted the NLRB challenges confidentiality clauses – something significant to ALL employers. Wait, don't tune out just because this deals with the National Labor Relations Act – this decision affects EVERYONE. Here, Bridgewater Associates had confidentiality provisions in its standards employment agreement. Some of the actual provisions are in the post. One defined confidential info as including any non-public information relating to its business or any current or former officer, director, employee or shareholder. In June 2016, a complaint was served alleging violation of Section 7 (which, among other things, gives employees the rights to mutual aid or protection). The NLRB withdrew the complaint in October 2016 without trial or ruling (so it probably settled). However, the complaint was still filed.

TAKEAWAY: Employers are now on notice that the NLRB will look carefully at confidentiality provisions in legal documents – of all employers, not just those that are unionized -  along with how restrictive they are or could be and whether or not there is any violation of the Act. Be careful.

In the post on Tuesday 12/27/16 we talked about a United Airlines worker's misuse of FMLA leave grounding the claim. So what happened? UA fired an employee for misusing medical leave during a vacation and then lying about it. The employee was approved for intermittent FMLA leave for an anxiety disorder. When UA provided its reason as a defense, he had nothing to show the defense was a pretense for retaliation. The post contains more details on the background, including applicability of the honest belief rule.

TAKEAWAY: Make sure the reasons for FMLA leave are valid and that the employee does not misuse the leave – work with an employment law attorney if there are questions.

The post on Wednesday 12/28/16 noted that job descriptions are key to ADA compliance. Greg accepted an offer for a position that had a job description – except it didn't list travel as an essential duty (or even necessary). He started the job and did travel. During one trip he was injured. He then began to telecommute but never asked for an accommodation He couldn't travel after surgery and asked that someone else stand in at meetings. More details are in the post. Eventually he was discharged. He sued, saying he was disabled and needed accommodation. His complaint was dismissed on several bases (see the post) including reference to the job description.  

TAKEAWAY: Not only should you have job descriptions, they should be accurate and include the essential functions of the job.

In the post on Thursday 12/29/16 we learned to apply this (or a similar) fair and firm 5-step progressive discipline policy (and suggested you vet any policy with an employment law attorney). Do you have to have a disciplinary policy? No. Should you? Yes. It allows your managers to have guidelines to follow and employees to know what happens when they don't do what is required. So what steps are suggested? First, a verbal warning. However, make sure to note in the file when the warning was given, by whom, and what it was about, along with consequences if no improvement is seen. The second step is a written warning. This is similar to the verbal (meaning it contains the action to be improved upon and he consequences if that does not happen), and the employee signs and dates it (not as to agreement with it, but that it was received). Steps 3-5 are in the post.

TAKEAWAY: As with all policies, first make sure they are legally compliant, then enforce them in a uniform manner.

The post on Friday 12/30/16 suggested that before you fire, know 3 limits on at-will employment. Most employees in PA are hired on an at-will basis, meaning they can be fired at any time, with no notice, and they can likewise quit at any time, with no notice. However, there are limits to when an at-will employee can be discharged. First, if the job termination has an illegal discriminatory purpose. Second, if the discharge is against public policy. The third reason is in the post.

TAKEAWAY:  While you don't have to talk to an employment law attorney before you fire an employee, it is a good idea to ensure that there are no adverse legal ramifications (or that you can deal with any that exist).

Finally, the post yesterday 12/31/16 asked: Can an employer require an employee to submit an FMLA certification from a specialist for FMLA leave? You have probably dealt with situations in which the primary doctor's certification for a requested FMLA leave is insufficient. So can they require more? Erica coincidentally took a leave after discipline or coaching about her performance. Once she turned in a doctor's note that said she was under the care of a psychiatrist and therapist. The employer then required her to get a certification from the treating psychiatrist, including fitness-for-duty at the end of the leave. Erica got the note and went on approved leave. Prior to return, Erica submitted a return to work note; the employer asked for additional details and didn't allow her to return until that was received. She submitted the second note, then resigned. (More complete details are in the post.) Then sued, alleging the second initial certification and delayed return to work violated the FMLA. The court rejected her claims for several reasons (in the post), including that the primary care doctor referred to the psychiatrist as the basis for FMLA leave and the 2 criteria for return to work (in the statute).  

TAKEAWAY: Employers should get the information they need in order to approve a requested FMLA leave, but also in order that the employee return from that leave.


ICYMI: Our Social Media Posts This Week – Dec. 18 - 24, 2016

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 12/18/16 we noted that same-sex harassment is not actionable when not based on gender. We know that both opposite sex and same-sex harassment can be illegal, but either way it must be based on gender. That point was made recently in a same-sex case in a federal court binding on PA. Betz was a nurse alleging constant sexually offensive working conditions, including "licking, groping, making lewd gestures, or pretending to grope each other's breasts and genitals …." More is in the post. Betz complained and was terminated in retaliation. She lost because gender was not the basis of the harassment.

TAKEAWAY: Harassment should not be tolerated, especially if it rises to the level of illegality as based on gender.

The post on Monday 12/19/16 noted that age discrimination is starting to hit workers in their 40s. Know the law. "The law" being what is meant to protect "older workers" and "older" meaning age 40 or older. Not senior citizens. AARP even filed suit for age discrimination – details are in the post. This is the tip of a massive iceberg that will affect companies of all types and sizes.

TAKEAWAY: We've said it before and will say it again: don't take adverse action against anyone, especially one in a protected class such as age, without a valid legal basis.

In the post on Tuesday 12/20/16 noted that a healthcare entity settled a disability discrimination suit (and asked: Shouldn't it have known?).  Sharp Healthcare has agreed to pay $90,000 to settle the suit filed by the EEOC. What was it about? Sandra applied for a surgical scrub technician position; she was offered the job contingent on passing a medical exam. Later Sharp rescinded the offer based on what it perceived to be a disability related to a minor ankle ailment that wouldn't have affected her performance. She later got the same job at another medical facility. The monetary settlement is in addition to other things Sharp agreed to that are in the post.

TAKEAWAY: Before taking adverse action against an employee or applicant, make sure there is a valid legal basis for the action.

The post on Wednesday 12/21/16 told us that Airbnb Terms of Service blocked a discrimination case in court. Huh? A proposed class action suit in federal court was blocked by Airbnb's Terms of Service – instead the matter goes to private individual arbitrations. The suit alleged systemic discrimination as a result of its system software, specifically impacting African-Americans consumers using the service. How it did that is in the post.

TAKEAWAY: Whether in the employment or public accommodation context, make sure you know the rules of the game in case you get called on an out.

In the post on Thursday 12/22/16 we warned that a long-term shift of essential functions may remove them from the list. Be careful! Under the ADA, employers need not create new jobs or remove essential functions from existing positions in order to accommodate employees/applicants. In this case, the person was a grocery clerk for over 38 years. He was unable to lift more than 35 pounds. Gradually, other employees did that lifting for him. A new manager asked that HR evaluate his ability to safely perform. HR opined he could not perform the essential functions of the job on appeal, the case was sent back to trial on the issue of whether or not lifting more than 35 pounds was an essential function.

TAKEAWAY: If essential functions are removed from a position, even as an accommodation, the employer may later be unable to take action against the employee/applicant based on an inability to perform those tasks. Think before you act!

The post on Friday 12/23/16 told us a new PA law allows the use of payroll debit cards (if certain conditions are met). This can be good news for employers following the Superior Court's recent ruling that employees cannot require payment of wages on a payroll debit card. The law was just signed by the Governor on November 4th and is effective in early May 2017. The law contains requirements in order that the use of payroll debit cards be legal – some are in the post.   

TAKEAWAY: Employers can now use payroll debit cards as long as the employee has opted in and other conditions are met.

Finally, the post yesterday 12/24/16 noted that the EEOC enforcement plan for 2017-2021 focuses on the new economy and anti-Muslim bias. It is not really that limited, including Muslims, Sikhs, and those of Arab, Middle Eastern and South Asian descent. It also includes discrimination affecting temporary workers, staffing agencies, independent contractor relationships and the on-demand economy. Some of the priorities are listed in the post.

TAKEAWAY: The EEOC becomes ever more watchful over the workplace and the protection of employees – know the law and follow it.


ICYMI: Our Social Media Posts This Week – Dec. 11-17, 2016

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 12/11/16 we noted that a Kentucky city settled allegations of discriminating against pregnant police officers. There were also allegations of disability discrimination (see the post). Two officers were pregnant but the city employer would not provide light duty work. That might have been ok had the city not previously assigned others to light duty work on a temporary basis when they could not do their regular jobs (for various reasons). Big oops.

TAKEAWAY: Know the law before taking adverse action against an employee who might be in a protected class. If you are not sure, consult with an employment law attorney.

The post on Monday 12/12/16 was about terminating employees: a practical checklist. (And we suggested you use it.) There will probably come a time when every employer will need to end the employment of one of its workers. The checklist in the post will help. Some of the things included are determining the type of relationship, whether cause is required for termination, and whether there is the risk of any litigation. The others are in the post.

TAKEAWAY: Employees have nothing to lose by filing a complaint of discrimination, but the employer has everything to lose. Do it right.

In the post on Tuesday 12/13/16 we asked: Can a fired employee sue for discrimination based on obesity? The answer was "it depends". If the person is merely overweight, probably not. However, the EEOC manual talks of "severe obesity" being an impairment and some courts have ruled it a disability under the ADA.

TAKEAWAY: The ADA protects disabilities and defines that term very broadly. Before you take adverse action against an employee who may be protected under law, consult with an employment law attorney.

The post on Wednesday 12/14/16 noted that an ex-employee called "fat and old" sued for age and national origin discrimination. Maria, age 56, had worked at Grow Financial for 15 years and ended up suing. Maria says that her manager, age 35, made discriminatory remarks including "If you want to stay fat and old, go ahead". More remarks are in the post. Maria asked her to stop, but nothing changed. The manager even allegedly slapped Maria in the face once but nothing was done after Maria reported it. Want ore? Before Maria received a termination notice, colleagues called and told her about it and a rumor that was going around (see the post) that further harmed her reputation. Maria's replacement was a male in his 20s.

TAKEAWAY: Train managers not to make discriminatory remarks – or even remarks not intended to be discriminatory but that could be taken that way.

In the post on Thursday 12/15/16 we talked about how employers are using enhanced FMLA fitness for duty. Did you even know that the FMLA provides for an enhanced fitness-for-duty certification? Yep. The employer must tell the employee about it prior to the return to work from approved FMLA leave. Further, the notice must contain specific things as listed in the post. This may be the next big litigation area so know the law.

TAKEAWAY: It is important to ensure that an employee can perform the essential duties of the position upon return from an FMLA leave, so feel free to use the enhanced certification as long as you follow the letter of the law.

The post on Friday 12/16/16 talked about 3 costly mistakes that could be lurking in your documentation. You may not have documentation, but when you do, you want it to be correct (and not land you in hot water). So what are examples of things that might do that? Using characterizations instead of specific examples (saying "sexual harassment" instead of giving an example of rubbing someone's leg under the table). The other 2 are in the post.

TAKEAWAY: Don't give the employee the opportunity to file suit for conduct not based in fact, but do make sure you give enough facts to show the conduct is indeed based on fact and legally supported.

Finally, the post yesterday 12/17/16 noted that silence may not be golden when it comes to the ADA's interactive process. You know the employee doesn't have to say any magic words to invoke the protection of the ADA, right? You also know that disability is defined very broadly, right? So make sure you as an employer fulfill your obligation to interact with the employee to find a reasonable accommodation if necessary. The post gives some ideas and an example of an employer who didn't do that.

TAKEAWAY: If you as the employer are on notice that the person has medical limitations, that may trigger your obligations under the ADA's interactive accommodation process. Don't just bury your head in the sand or take adverse action.


ICYMI: Our Social Media Posts This Week – Dec. 4-10, 2016

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 12/04/16 we noted a poor performing employee cannot shift the ADA interactive process obligation. The employee had an accident; the employer offered a transfer to an administrative (from a manual labor) position. He accepted but was unsure if he could do the job. The employer gave him training and let him shadow someone. What did the employee do? He didn't do the additional training, missed work with no notice, and arrived late and left early. But he was not discharged. No, the employer tried to find other placements for him. When it could not, he was discharged for poor performance. He sued for failure to accommodate. (More details are in the post.) The court said the employee had a duty to at least try in good faith in the administrative position, which he did not do. That halted the employer's accommodation obligation and allowed discharge.

TAKEAWAY: While the accommodation process is a must, it is still a two-way street and both the employee and employer must participate in good faith.

The post on Monday 12/05/16 said a supervisor's remark could be used as direct evidence of discriminatory bias. Ouch. The background is that a female healthcare worker was passed over for promotion despite having more experience. The reason given for the failure to promote included a reference to her having bene out on maternity leave. That one comment was all the court needed to let the case go forward. The post gives more details.

TAKEAWAY: Train your employees in what to say – and not to say – to employees. Their words can land you in hot water from which it is difficult to escape unscathed.

In the post on Tuesday 12/06/16 we noted that sometimes quantity CAN be the deciding factor. To what, you ask? Poor performance. We all know (or should) that the FMLA does not require a reduction in performance standards for an employee on intermittent leave (or a reduced work schedule). But the employer might have to adjust productivity requirements based on the leave to see if quotas have been met. As the post notes, this is a quantity adjustment that takes out of the equation the FMLA leave (thus being fairer to the employee). If the employee still can't meet standards, adverse actin may be warranted.

TAKEAWAY: It is true that an employer cannot take adverse actin because the employee was out on approved FMLA leave. However, if a quota is adjusted for the time out on leave and the employee de not meet the adjusted quota, then adverse action may well be legal.

The post on Wednesday 12/07/16 was about planes, trains and automobiles: paying for travel time. The issue is whether or not the employer must pay for travel time by non-exempt employees. Pennsylvania employers should look to the FLSA for the answer, but the post gives some hints. For example, it notes that travel to and from work is generally not compensable (the post does note an exception). A big question always seems to arise relative to travel for business. Actual travel is normally time worked for which the employee must be paid. However, meals (with an exception noted in the post) and commuting between the residence and travel depot is normally not compensable. These rules apply both during the regular workweek and weekends (or other usual days off).

TAKEAWAY: Know for what travel time your employees must be paid to avoid a possible later suit.

In the post on Thursday 12/8/16 we talked about settlement of a same-sex harassment suit. The headline of the article does not bode well: female sales consultant was subjected to unwelcome sexual comments and groping by female co-worker. According to the complaint, despite a member of management witnessing much of the offensive conduct and the employee complaining, nothing was done to stop the conduct. The employer will pay $50,000 and other equitable relief to settle the case.

TAKEAWAY: Remember that sexual harassment is illegal, period. Stop it as soon as you are made aware of it.

The post on Friday 12/9/16 notes a lawsuit accusing Facebook of violating the 1964 Civil Rights Act. I wondered why it took so long for someone to file such a suit. The suit, which was filed as a class action, is based on a feature that allows advertisers to target users by race and ethnicity (by using the "Narrow Audience" feature to exclude certain demographics). The post contains a bit more background.  

TAKEAWAY: Be it employment or any other place of public accommodation, Title VII does not allow for discrimination on the basis of race or ethnicity. Just don't do it.

Finally, the post yesterday 12/10/16 was about a gender-specific bathroom ban for a transgender police officer landing the school employer in hot water. It seems like a gender-neutral bathroom would resolve all issues relative to bathroom use, right? Nope. So what happened? Bradley began employment in 1992 as Brandily, a female. He eventually became a police officer and served for 17 years. In 2011, he began dressing like a man, identifying as a man, and using the men's bathroom at work. Complaints from male coworkers soon followed. He told his bosses he was transgender and transitioning (with more details in the post). He was banned from the men's bathroom and told to use the gender-neutral bathroom (plus other things listed in the post – ugh). The school district then distributed a memo about his situation; he eventually filed an administrative agency complaint for gender-identity discrimination and harassment. The school district then reversed the male bathroom ban. However, when his records were not updated, he sued under federal and state law. Both Bradley and the school district filed for partial summary judgment (the school district's initial defense is in the post). The judge made several rulings: Title VII applies to gender identity (stereotypes about sex), there was direct evidence of discriminatory intent, and the bathroom ban was an adverse action for which the school district had no legitimate nondiscriminatory reason. The judge also denied summary judgment on the harassment and retaliation claims.

TAKEAWAY: Make sure that if you take an action seemingly in accord with the law, it really is legal – and not based on an underlying intent to discriminate.


ICYMI: Our Social Media Posts This Week – Nov. 27 - Dec. 3, 2016

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 11/27/16 we suggested you minimize employee lawsuits: 7 best practices for small business – and really any business. Don't let your worst nightmare (arriving at work only to be greeted by someone handing you lawsuit papers) come true. The steps listed in the post, along with others, can help you avoid that scenario. Those steps include being familiar with applicable federal, state and local laws; having a corporate structure that protects your (the owner's) personal assets, perhaps most importantly consulting with an experienced employment law attorney BEFORE problems arise, and others in the post.  

TAKEAWAY: Protect yourself and your business from charges and lawsuits by (former) employees – take the appropriate steps before your nightmare becomes reality.

The post on Monday 11/28/16 noted a retaliation claim proceeds when evidence allegedly manufactured. Ugh. Yes, a lower-level employee duped the company into thinking there was consensual sexual banter, Andrea, an EMT, alleged that a co-worker, Tyrell, made unwelcome sexual advances toward her, with the final being a naked picture of him texted to her while at work. The company refused her offer to view the texts. Tyrell then allegedly manufactured evidence against Andrea, including those things in the post. Andrea was discharged and filed a retaliation complaint. On appeal, the court said that the company could be held liable for wrongs committed outside the scope of employment when negligent in giving effect to the retaliatory intent of employees. Yes, the cat's paw theory.

TAKEAWAY: Thoroughly investigate all allegations of harassment and discrimination – don't let the company be used as a paw(n).

In the post on Tuesday 11/29/16 we asked: What qualifies as a request for accommodation under the ADA? Is it only when an employee says "I need an accommodation for my disability?" Of course not. The employee need only ask for help in some way; often this arises in connection with surgery or a doctor's restriction. The post gives us the example of Eugene, a maintenance supervisor at a coal mine, He went to the ER after a potential work injury and got a doctor's excuse for a few days. He had already scheduled a week off and the following week for surgery. However, 2 days into his scheduled week off, he met with the HR manager, about the work injury. The post tells what happened during that meeting, (but I think it is clear the employer was on notice of the need for accommodation). About 2 months later, Eugene met with the GM and an HR person; he was suspended. The employer's alleged basis for suspension is contrary to what Eugene said. Eugene then told them about his upcoming surgery. After meeting with his doctor, but before the doctor wrote a note that Eugene was disabled, the employer decided to discharge Eugene. (See what the post says about how this supposedly occurred). Eugene then advised the company of his doctor's note and was discharged a few days later in writing. Eugene sued for retaliation. The case is now in the court system.

TAKEAWAY: Make sure any request for help is viewed under the ADA's accommodation lens. Keep good records of any such requests and what you as the employer do in response. And make sure there is valid legal support for any adverse action.

The post on Wednesday 11/30/16 noted workers filed 15 EEOC complaints against McDonald's claiming sexual harassment. I doubt Ronald is happy! Fifteen females filed charges against McDonald's as franchisor but also against the franchisees. They allege groping, lewd comments and propositions from store managers and supervisors including cash for sexual favors. They also allege that their internal complaints were ignored. The post mentions in detail the allegations by one employee – and it's not pretty.

TAKEAWAY: Make sure to train your managerial-level employees and insist they follow your anti-harassment and anti-discrimination policies. Investigate complaints – don't put your head in the sane. And discipline if necessary (including discharge).

In the post on Thursday 12/1/16 we read about a $100,000 disability discrimination settlement. That's big money to be paid by Harrison Poultry from GA. The underlying complaint with the EEOC alleged that the male manager asked for a 7-day extension to his prior (approved) vacation to meet doctor's orders restricting him from work. So how did the employer respond? It immediately fired him, even before his vacation was done. More details are in the post.

TAKEAWAY: Remember that an employee request for disability accommodation need not use any magic words, need not mention the ADA, and need not use the work "accommodation" to trigger the employer's obligation to begin the interactive accommodation process (or be caught in the crosshairs as was this employer).

The post on Friday 12/2/16 advised BYOD – but be smart! The post starts with a bit of history: portable electronic devices were initially work-related productivity tools. Then they got smart. They could do more and took up much less space. Employees only wanted to carry one device to do it all, personally and for work. Technology keeps advancing at an alarming pace, but have your policies kept up? Things to look at (and possibly revise even if already included) are the remote wipe, overtime pay, payment for the device or data cost, and litigation holds. The post contains more details on each item.

TAKEAWAY: Employers need to be smarter than the devices their employees use – that includes having and enforcing policies about the possession and use of the devices.

Finally, the post yesterday 12/3/16 noted the EEOC sued Plastipak for sex harassment and retaliation. You're probably saying "so what?" The what is that this came out of the Baltimore office, just down the road and often where local cases are assigned for investigation and determination, and has a cornucopia of joint employment along with harassment and retaliation. The EEOC's suit alleges that Plastipak and a temp agency jointly employed Carrie. After Carrie rejected sexual advances from a Plastipak employee, the employee complained (mostly falsely) to supervisors about Carrie's supposed rule violations. Carrie complained to her immediate supervisor about the sexual harassment and, in return, was terminated by Plastipak. What Plastipak told the temp agency is in the post.

TAKEAWAY: Be careful about joint employment now that the door has been opened. Also, whether you are the employer or joint employer, take all complaints seriously, investigate them, issue discipline, and don't take adverse action against the person complaining (unless s/he knowingly made a false complaint to harm another).


ICYMI: Our Social Media Posts This Week – Nov. 20-26, 2016

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 11/20/16 we learned that Texas Roadhouse ended the sexual harassment suit for $1.4M. Yes, everything is bigger in TX! The suit had been brought on behalf of female servers and hostesses alleging that the male manager subjected female employees – even teenagers! - to unwelcome touching and quid pro quo requests for sexual favors. That is bad enough, right? Wait for it. There were numerous complaints starting in 2007, but the manager wasn't fired until 2011 after camera footage of him touching a teenage employee. The post has more details, including the judge's reaction and warning.

TAKEAWAY: When there is a complaint, investigate it – don't play ostrich. Not only do you endanger your employees, you put yourself and your business at risk for a huge liability.

The post on Monday 11/21/16 noted that 7 Eleven was sued by the EEOC for disability discrimination. The suit alleges it did not provide reasonable accommodations to disabled workers at a warehouse and distribution center. Casey was a stocker; his doctor put him on short-term restrictions for a disability. He asked for a temporary transfer. 7-Eleven told him that since it was not due to an on-the-job injury, there would be no accommodation. For the cherry on the cake, it then fired him after he was going to be absent for 3 days. The post details additional allegations in the suit.

TAKEAWAY: Know the law and your obligations under it – including whether or not you must try to accommodate disabled employees. Don't just stick your head in the sand or say no.

In the post on Tuesday 11/22/16 we asked: Are you courting a wrongful discharge suit? What does that mean, you ask in return? It means that need to know what questions to ask or things to look for before terminating an employee. The list includes a history of WC claims, refusing to follow orders to violate applicable law, filing wage-and-hour complaints, refusing a polygraph test, and more in the post. If any of these questions leads to an affirmative response, be careful so as not to "encourage" a retaliation suit.

TAKEAWAY: Make sure any adverse action to be taken against an employee, including termination, is supported by a valid, legal basis. Period.

The post on Wednesday 11/23/16 told us this ADA violation (and settlement payment) could have easily been avoided. Hmmm. The employer agreed to pay $60,000 in damages and back pay to a former hair stylist to settle a disability discrimination suit brought by the EEOC. Nora worked at a salon owned by Regis Corporation. Nora was a claustrophobic and could not work in a confined space between others. She was first assigned to a more open station, then moved to a space between others. She continually asked to be moved back, to no avail. The post details what happened after Nora had to go to the ER.

TAKEAWAY: If there is an easy way to accommodate a disabled employee, just do it. Don't make a big deal out of it. The big deal could end up being a big headache for you down the road.

In the posts on Thursday 11/24/16, here and here, Happy Thanksgiving wishes were sent to you and your family and friends.

TAKEAWAY: Sometimes it is appropriate to just say thank you. This is one of them.

The post on Friday 11/25/16 told us a nightclub illegally fired a disabled employee after an unlawful medical inquiry based on HIV hearsay. Ugh. So what happened? After hearing from someone that the employee was HIV-positive, the employer required the employee to provide medical proof that she was not HIV-positive and when she did not, it fired her. The owner has no proof that even if she were HIV-positive it would be dangerous, but just acted. More details are in the post.

TAKEAWAY: Before you act, make sure you are acting on something that is real and that needs to be acted on – otherwise you could cause yourself trouble that need not be there.

Finally, the post yesterday 11/26/16 asked: What is immediate and appropriate? At least in the context of the employer's obligation to act after investigation of an harassment complaint. This of course depends on the facts of each situation, but the list includes that the action be quick, be proportional, and the other items listed in the post.

TAKEAWAY: Fulfill your legal obligation to act if an investigation determines harassment occurred – delay or no action could lead to lability for you.


ICYMI: Our Social Media Posts This Week – Nov. 13-19, 2016

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 11/13/16 we noted the EEOC sued M&T Bank for disability discrimination. What happened? Allegedly Candace had been a branch manager for a few years when she told M&T she was pregnant and would need surgery to prevent a miscarriage. She took FMLA leave (per her boss's instructions) and filed for short-term disability. During the leave, M&T told her that her positon would be filled unless he could return to work in 10 days with medical clearance. Months later, after birth and medical clearance, M&T forced her to apply for vacant positions but didn't assign her to any. The suit alleges that M&T failed to accommodate and fired her due to her disability. More details are in the post.

TAKEAWAY: Treat all employees the same unless the law requires uneven treatment. That includes those who are disabled.

The post on Monday 11/14/16 told us that yes, your boss could legally be allowed to body shame you. As noted in the post, "if a boss of any gender decides they simply don't like their employees' bodies – all genders, fat or thin – and wants to make it known, there's not much that can be done from a legal standpoint in most parts of the country." Horror stories abound, including some in the post. As long as all employees sharing the same protected characteristic are treated the same (for example, men and women are shamed due to weight), there is probably nothing illegal (unless it falls under some other type of harassment or discrimination).

TAKEAWAY: While it may be legal, it's probably not in your company's best interests for managers to body-shame employees.

In the post on Tuesday 11/15/16 we reminded you that effective 12/1, the annual salary below which overtime must be paid (for 40 or more hours worked) increases to $47,476. Yes there is at least one lawsuit pending (to stop the increase), but so far the law is on pace to go into effect 12/1.

TAKEAWAY: Make sure you have in place what you need to comply – including proper job classifications and pay rates. Contact an employment law attorney for assistance if needed.

The post on Wednesday 11/16/16 noted the EEOC sued an employer of intellectually and developmentally disabled employees for disability discrimination. Yes, really. Work Services., Inc. employed 6 intellectually and developmentally disabled employees to work on the production line at a turkey processing plant in SC. Allegedly the company discriminated against them by denying them wages or paying them less than other employees or denying them benefits. The post details more of the alleged illegal conduct, including restricting their freedom of movement and calling them names relating to their disabilities. Sadly (or perhaps good for them), this came to light in 2014 when a NYT journalist visited the plant while researching the back story for an earlier , similar case taken to trial by the EEOC.

TAKEAWAY: Disabled employees can and do perform their jobs not only adequately, but quite well. Don't take advantage or illegally discriminate against them due to their disability – the cost may be very high.

In the post on Thursday 11/17/16 we noted an ex-employee accuses media company Emmis of sex discrimination. Kristine is a former digital content manager for the media company. She alleges that producers of a local sports radio station sexually harassed her and made derogatory gay jokes. To make matters worse, she alleges that the employer took no action after she reported the harassment. The post details more of the alleged harassment, including escalating conduct after disciplining one of the harassers.

TAKEAWAY: Have a policy on harassment and discrimination and enforce it – even against managerial-level employees. Limited enforcement will lead to liability and damages for your company.

The post on Friday 11/18/16 told us Tyson Foods to pay $1.6M to settle a discrimination case. That's not chicken feed! The settlement proceeds will be divided among about 5700 rejected job applicants from 6 facilities. This arises out of allegations that Tyson violated a federal order prohibiting discrimination on the basis of sex, race or ethnicity. Tyson also agreed to other things detailed in the post. Tyson denied liability.

TAKEAWAY: Fool me once, ok; fool me twice, not ok. Don't be the one who gets slapped with a hefty damages award (or high settlement amount) after your discriminatory practices come to light. Follow the law from the start.

Finally, the post yesterday 11/19/16 noted a deputy filed a discrimination complaint against the sheriff and county officials (and this one is close to home). Jessica is a deputy sheriff with the Lancaster County Sheriff's Office. She filed charges with the EEOC, again accusing the Sheriff of sexual harassment. Yes, again. She alleges it began innocently when she was an intern in the office and escalated over time. For fear of her job, she ignored his comments and advances. Details are in the post, including graphic stories he told her. Apparently the County Commissioners asked the sheriff to resign beginning in August.

TAKEAWAY: Nobody should be fearful of reporting harassment or discrimination – foster an environment where transparency reigns and no harassment or discrimination is tolerated.


ICYMI: Our Social Media Posts This Week – Nov. 6-12, 2016

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 11/6/16 we asked: do the federal employment discrimination laws apply to your business? The answer (which is common to legal questions) is "it depends". On what? The number of employees. If there are any employees, the equal pay law applies. If there are 15-19 employees, the equal pay law applies; in addition, the laws prohibiting discrimination based on race, religion, color, sex (including pregnancy, sexual orientation and gender identity), national origin, disability, and genetic information apply. If there are 20 or more employees, see the post. There might also be state or local laws that apply.

TAKEAWAY: Laws governing the employer-employee relationship are myriad and can be minefields – consult an employment law attorney before step on a mine.

The post on Monday 11/7/16 asked when to say when: court ruled on when accommodation isn't working. A recent federal court ruling held that an employee's poor performance in a light-duty position can relieve the employer from further obligation to find a reasonable accommodation under the ADA. The post has the details, but suffice it to say that when the employee doesn't even try the accommodation offered by the employer – without good reason – then termination may be a valid result.

TAKEAWAY: Both sides must try – when one does not, the other may be justified in ending the interactive accommodation process (and terminating employment).

In the post on Tuesday 11/8/16 we talked about the floodgates open: NLRB says misclassification of independent contractors can, by itself, be a violation. This is big! In an Advice Memorandum from December 2015, the NLRB authorized issuance of complaints where employees are misclassified as independent contractors (and that such by itself may be a violation of the NLRA).

TAKEAWAY: This is another instance where ALL employers, unionized or not, need to be careful. Misclassification of workers can get an employer is extremely hot water in so many way.

The post on Wednesday 11/9/16 was about an Army vet with a service dog saying a restaurant asked her to leave. Shelly said the restaurant wouldn't serve her and her husband because they didn't have papers for the service dog. The post explains the details, but the ADA doesn’t' require papers to be showed.

TAKEAWAY: 2 questions are allowed: Is this a service dog and what task is it trained to help you with? That's it.

In the post on Thursday 11/10/16 we learned an employer can win the suit but still lost on litigation costs and fees. Yep. A federal court in Philadelphia affirmed a trial court verdict that relieved a plaintiff in an employment litigation suit from paying litigation costs to the pharma employer (Eli Lilly). During the case, and after removal to federal court, Lilly moved for summary judgment. That motion was granted on all counts except retaliatory discharge. After a trial, the jury verdict was for Lilly on that count too. Lilly then filed a Bill of Costs. The plaintiff asked for relief and cited her circumstances. The court agreed that she was unable to pay Lilly's litigation costs.

TAKEAWAY: Winning a suit is great – being awarded and collecting your fees from the other party is even better if it actually happens.

The post on Friday 11/11/16 asked are there condo or homeowner Association fees on your credit report (and suggested contacting us to discuss legal ramifications). Many people live in planned communities (either condominium/townhouse or single-family neighborhoods that are subject to a Declaration of Covenants and Restrictions, Bylaws, and sometimes Rules or Regulations [together called the Governing Documents]). All owners are members of the Association and pay dues or assessments in order that the Association fulfills its responsibilities. What is happening now is that some Associations are reporting late or unpaid dues/assessments to credit reporting agencies and that is showing up on credit reports (thus negatively affecting credit scores). The post mentions some reasons an Association may not want to report and how the reporting will not necessarily help cure the delinquency, but it is still a reality. 

TAKEAWAY: Associations must decide whether or not to report delinquencies and if they do report, ensure that all information reported is correct in order to avoid legal liability. Those damaged by an incorrect report may have legal remedies.

Finally, the post yesterday 11/12/16 noted DOL sued Analogic for wage discrimination – paying females less than males in similar jobs. Women in certain jobs (listed in the post) were paid less than males in the same jobs. OFCCP found the disparity and an administrative complaint was filed, requesting that the disparity cease, the females be given back pay, and other relief.

TAKEAWAY: Gender should have nothing to do with the pay decision – pay based on performance or skills. To do otherwise may subject you or your company to legal liability.