Monday
Feb292016

ICYMI: Our Social Media Posts This Week – Feb. 28 – Mar. 5, 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 2/28/16, we asked whether an employer can prohibit an employee from job hunting during FMLA leave. The answer is – as it is so many times – it depends. On whether or not the “no looking for a job” policy applies to all employees or just those on FMLA leave (with the latter being illegal). On whether employers want happy employees who want to be there …

TAKEAWAY: A policy can be legal if applied to all employees, but once you start applying it only to a protected class (in this case employees on approved FMLA leave), the legal problems begin.

The post on Monday 2/29/16 was about termination: employee fired for making sexual remarks (and whether it was legal). Here, a federal appeals court affirmed dismissal of a race discrimination suit against the Arkansas DHS. The quick and dirty background (more details are in the post) is that DHS hired Sharon, an African-American female, in February 2010. The 3 clients initially assigned to her were later reassigned to another female employee, Woods. During Sharon’s first visit in 2013, Woods was told that the admissions coordinator had received an inappropriate call at work from Sharon in which Sharon made moaning sounds and made comments including that Sharon was “dying for sex”. Woods was also told that Sharon called back; the admissions coordinator had someone else answer the phone; during the second call, Sharon repeated her comments. Woods told her supervisor and then, upon direction, a manager. An investigation ensured. Sharon denied making the calls. DHS terminated Sharon on September 5th. She internally grieved the discharge; the discharge was upheld after an internal fact-finding hearing and Sharon again appealed. While that appeal was pending Sharon also filed a charge with the EEOC. The grievance panel found in Sharon’s favor; soon after, the EEOC issued a Right to Sue letter. Sharon then sued, alleging race discrimination via the discharge, failure to promote, and failure to reinstate (per the grievance panel’s award). More details on the charges are in the post. On appeal, the appellate court agreed with dismissal of the failure-to-promote and failure-to-reinstate claims for lack of exhaustion of admin remedies. It also agreed with dismissal of the wrongful termination claim for lack of evidence supporting a reasonable inference that DHS’s proffered reason for discharge was pretextual.

TAKEAWAY: Make sure you have support for any adverse action against an employee, but especially when the employee falls into a protected category (such as here with race).

In the post on Tuesday 3/1/16, we talked about the FMLA: when absences and certifications don’t match up. What is an employer to do in this situation? The employer should request recertification – allowable every 30 days unless an exception (see the post) applies. If the original certification and actual absences differ, then that might constitute a change in duration and frequency permitting the employer to recertify. The employer should request the same information as in the original certification, but updated (and may ask if the need for leave is consistent with the absences that have occurred). Recertification is at the sole expense of the employee.

TAKEAWAY: Don’t just let employees on leave run amok – monitor the leaves and whether or not they fit within the approved parameters (and take action if they don’t fit).

The post on Wednesday 3/2/16 was about the Trump campaign sued for gender discrimination. Elizabeth alleges that men and women with the same job titles were not paid equally, that men planned and spoke at rallies while she was not allowed to do that, and that when she met Trump at a rally last summer he told her and another female volunteer, “You guys could do a lot of damage”, referring to their looks. She also alleges that her discharge was gender-related (males who took the same action were not discharged). More details are in the post. Trump denies the allegations.

TAKEAWAY: It’s the season of politics, but that doesn’t give candidates carte blanche to violate the law – let’s see how this one plays out.

In the post on Thursday 3/3/16 we asked if you use the rolling method to calculate FMLA leave (and how one employer learned the hard way). This all starts with the FMLA allowing leave in a 12-month period without specifying how that period is to be calculated (but giving options – see the post). One method is a rolling year, counting backward from the date of an FMLA leave. But if the employer, who sets the method of calculation, fails to tell employees how it will calculate, then the calculation will be deemed to favor the employee (and might put the employer on the wrong side of the law).

TAKEAWAY: Employers can choose the calculation method they will use for FMLA purposes, but to stay out of hot water must tell employees about it and apply it uniformly.

The post on Friday 3/4/16 mentioned not necessarily the mark of the beast: how to accommodate sincerely-held religious beliefs. The first reference is, of course, to the case where an employee refused, on religious grounds, to sue a biometric hand scanner and the company did not offer him any alternatives (but did to physically handicapped individuals). So what should an employer do in a situation involving religious accommodation? The process begins when management learns of a religious belief that conflicts with an employment requirement. After that, the employer must determine if the belief is sincerely held – whether or not it’s widely-held or popular. The next steps are in the post.

TAKEAWAY: Just as employers have learned the interactive accommodation process for disabilities under the ADA, so too must they learn the process when dealing with sincerely-held religious beliefs. And one case is almost never the same as another.

Finally, the post yesterday 3/5/16 talked of Cheddar’s settlement with the EEOC of a sexual harassment suit for $450,000. Yep, that’s a lotta cheese! (Yeah, I know, boo hiss on the attempt at humor.) The EEOC filed suit, alleging hostile work environment by the employer allowing sexual conversations and jokes and letting a GM and bar manager subject female employees to sexual harassment and failure to remedy after complaint. Details of the actions are in the post and include touching. Yuck. Well, Cheddar’s settled and will pay $450,000 to 15 individuals plus other relief. .

TAKEAWAY: The EEOC said it best: “Having and disseminating an anti-harassment policy does not satisfy federal prohibitions against sexual harassment … Employers must also enforce it ….”

Tuesday
Feb232016

ICYMI: Our Social Media Posts This Week – Feb. 21-27, 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 2/21/16, we learned of a manufacturer accused of age discrimination – it asked about age in its application form! The quick and dirty is that Seymour Midwest, a hand-tool manufacturer, picked 58-year-old Steve from an applicant pool for the position of Senior VP of Sales, asked questions (see the post) including whether he was within the company’s “ideal” 45-52 age range, then refused to hire him after getting the answers. The EEOC filed suit.

TAKEAWAY: Age almost always has nothing to do with a job (or the qualifications of an applicant or employee to do the job) – so don’t get caught up taking illegal action based on age.

The post on Monday 2/22/16 was hot, hot hot: a sex discrimination suit against Chipotle. Yes it still has problems from the E. coli outbreak. But apparently that wasn’t enough – now Chipotle is facing another suit. 3 former general managers sued, alleging wrongful termination based on sex. The women say that despite receiving similar or better performance evaluation, they were not treated as well as male GMs. The jury was made up of 3 men and 5 women. Part of the early testimony described the former area manager as saying “There sure are a lot of overweight women working here.” Other statements by or about him are in the post. Chipotle argues that the women performed poorly (well, what else did you expect them to say?)

TAKEAWAY: Few cases actually go to trial; when they do, there is often a smoking gun in the hand of the plaintiff. Employers beware!

In the post on Tuesday 2/23/16, we talked about the new way sex discrimination suits will be framed – employers pay attention! Here suit was brought by a mother claiming the insurance carrier refused to pay for her teenage son’s health care during his female to male transition. He was diagnosed in November 2014 and prescribed medications. The insurer says that services and surgery for gender reassignment are specifically excluded. The mother says that if her son had been born a boy, one of the medications would have been covered and if born a girl, the other would also have been covered. Interestingly, the suit also says that the EEOC found reasonable cause for sex discrimination.

TAKEAWAY: Employers must be aware of the minefield that surrounds gender identity, including reassignment, and take care not to make adverse decisions based on same – the EEOC now includes this under sex discrimination.

The post on Wednesday 2/24/16 gave us more hot: Chipotle lost the sex discrimination suit. In a case that went all the way to a jury trial, the verdict was that 3 former general managers were wrongfully terminated based on gender and FMLA violations. The suit claimed a regional manager treated these 3 women differently than male managers. Read the post for more details. The verdict included about $600,000 in damages – mucho caliente!

TAKEAWAY: As an employer there is a chance that illegal conduct on your part may go unchecked, but when you get caught, you will get absolutely stung – so just don’t do it.

In the post on Thursday 2/25/16 we learned (and saw) that Dorney Park offered to rehire a special needs employee after a socmed outrage. So what happened? Chris, a special-needs man, had worked at Dorney Park for 12 seasons, mostly keeping bathrooms clean. Dorney Park changed its interviews for the 2016 season – it now included various activities as listed in the post. Chris didn’t do well; in fact, he says he was told he “didn’t fit in”. Well, that hit socmed and exploded. The next day he received an offer for the 2016 season. Dorney Park’s response is in the post.

TAKEAWAY: Employers are free to hire (and fire) to meet their needs as long as there is no legal violation along the way.

The post on Friday 2/26/16 told us that Rental Pro will pay $37,000 over age discrimination allegations as part of a settlement with the EEOC. The suit alleged that it had terminated the employment of Ronald Johnson, age 52, based on age, as the owner wanted “younger and peppier” employees and more (see the post).

TAKEAWAY: Know the protected characteristics and don’t make adverse employment decisions based in any way on those characteristics. Period.

Finally, the post yesterday 2/27/16 talked about the EEOC suing a Subway franchise for firing an HIV-positive worker. The suit was filed seeking back pay and punitive damages for the unnamed employee who was “fully capable of working and experienced in the restaurant industry”. When the employer found out he was HIV-positive, it fired him. What reason did Subway give him? Read the post.

TAKEAWAY: Employers should not act without knowing the facts – if an employee cannot perform the job (with or without reasonable accommodation), then it might be legally ok to discharge that employee. But acting before knowing … BAD.

Monday
Feb152016

ICYMI: Our Social Media Posts This Week – Feb. 14-20, 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 2/14/16, we wished you a Happy Valentine’s Day (and took a break from the legal).

TAKEAWAY: Sometimes a break is a good thing!

The post on Monday 2/15/16 noted that an employee who threatened to kill a supervisor before psychological treatment may be fired. OK, so this is (hopefully) not your everyday scenario. By way of background, Mayo and others complained that a supervisor was bullying them; 1 reported on the hotline. HR met with the employees. In the presence of co-workers, Mayo then made several threats of gun violence against the supervisors (and others); the threats were reported by the co-workers. After a meeting with Mayo, HR suspended him, barred him from the property, and made a police report. Mayo was hospitalized after a police interview and, thereafter, took 2 months of medical leave. He was cleared to return to work with a suggestion of a different supervisor. The company discharged him. Mayo then brought suit under disability law. More details are in the post. The federal appeals court said that since Mayo couldn’t appropriately handle stress and interact with others, he was not a ‘qualified” individual (and thus there was no violation).

TAKEAWAY: Employers are not helpless in the face of an employee with mental problems, especially when that person might present a threat of violence to self or others.

In the post on Tuesday 2/16/16, we learned that The Pines of Clarkston will pay $42,500 to settle an EEOC disability discrimination suit (resulting from this elderly care center discharging after learning about epilepsy). The employer runs assisted living facilities. The suit alleged that it fired the administrator after learning about her epilepsy (through a medical exam). We don’t know why the medical exam took place, but we know the employer settled the suit.  

TAKEAWAY: Just don’t – take adverse action against an employee (or applicant) based on disability, that it. First engage in the interactive accommodation process (assuming the person is qualified for same).

The post on Wednesday 2/17/16 asked a confidentiality conundrum: can you reveal a complaint to stop sexual harassment? A federal court was faced with this question and answered in the affirmative. Here, Daniel was a married, heterosexual RN. He worked in pediatric ICU as 1 of 2 male nurses in a total group of 9. He claimed that the females harassed him over a period of 5 months, including joking about him having a homosexual relationship with another male nurse in the unit. More of the alleged comments are in the post. As if that wasn’t bad enough, he said doctors and residents joined in too. They never heeded his requests to stop (but instead it got worse). After the employer called a meeting, some comments stopped, but others (and behaviors) did not. He then complained about the retaliation. At HR’s urging that Daniel transfer within the hospital, he looked and didn’t accept 1 offer and skipped an interview for another. The employer then discharged him. He sued. And lost.

TAKEAWAY: If an employer suggests a method of resolving a situation to which the employee agrees, the employee’s failure to participate in implementation is at his/her peril.

The post on Thursday 2/18/16 asked if you can fire an employee for refusing to work overtime. The answer depends (on whether or not the person is bound by a contract or agreement or is an at-will employee).  If the former, then the terms of the document will govern. If the employment is at-will, then the employer can probably fire the employee who refuses to work overtime – as long as the discharge stems solely form that and is for no illegal reason.

TAKEAWAY: Unless there is a writing to the contrary, you can force employees to work overtime – just make sure to pay them properly (and take action you consider appropriate if they refuse the work).

The post on Friday 2/19/16 told us that some people never quit … on racial and ethnic discrimination and retaliation. What do I mean? Well, the owner of Peters’ Bakery allegedly harasses Marcela Ramirez, a sales clerk, with repeated derogatory comments and jokes and eventually fired her. Examples of the comments are in the post. She filed charges with the EEOC. What did the bakery do then? Filed a defamation suit against her (which was dismissed), delayed job reinstatement, told co-workers about her charge and wrote her up. The bakery then tried to fire her again but the EEOC got a TRO. The case is now headed for trial (unless it earlier settles).

TAKEAWAY: When an employer does something that is illegal, it should not dig in its hells and make the situation worse for itself. Rather, it should try to make amends and come out with its head (and reputation) held high if possible.

Finally, the post yesterday 2/20/16 said “I’m Outta Here” – what to do when an employee quits without notice. Do NOT get excited or go on a rampage. So keep it professional, tell staff (under most circumstances), and the other steps mentioned in the post.

TAKEAWAY: Most employment is at-will. While it is usually the employer who ends the employment relationship, sometimes it is the employee who quits – and with no notice at that. Just have a Plan B in case this ever happens.

Thursday
Feb112016

ICYMI: Our Social Media Posts This Week – Feb. 7-13, 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 2/7/16, we looked close to home where a Franklin County employee alleged disability discrimination. The man claimed in his suit that he was discharged based on his disability and need for accommodation. The employer was the Franklin County Jail (part of Franklin County). He was a correctional officer for several years; he was injured in May 2013 and, thereafter, required accommodation to work as his ability to walk, climb stairs, and perform manual tasks was limited. His suit claims that he was subjected to a hostile work environment after being placed on light duty, that his complaints were not dealt with properly, and that he was discharged in retaliation for the complains. More details are in the post.

TAKEAWAY: The jury’s still out on this one as the case was just filed in July 2015. But employers can take from it that any adverse action should have a sound, valid, legal basis of support – or risk the employer being named as a defendant in a suit.

The post on Monday 2/8/16 talked about religious accommodation and 5 steps to avoid liability after Abercrombie. The reasons the Supreme Court ruled against Abercrombie are in the post, including the applicant wore a head scarf to the interview and it violated Abercrombie’s dress code. Abercrombie was a good case because it stressed that Title VII has no requirement of knowledge (contrary to the ADA). So what does an employer who wants to be legally compliant do now? 5 tips are in the post, including not assuming and not asking.

TAKEAWAY: It is harder and harder for employers to toe the line and find or keep good employees, but they must toe that line or face possible suit. A good employment attorney will help you stay on the right side of the line.

In the post on Tuesday 2/9/16, we learned that wineries often overlook harassment liability. OK, be honest, even if you don’t care about the legal angle, it’s always interesting to read about wineries, right? Winery employees are often in the field, not office, so harassment training is apparently less (or even non-existent). This can be costly for the employer, especially in places with workforces consisting largely of minority employees. There is also the danger that those with whom the wineries contract for labor will be considered joint employers, making the winery liable for the actions of the contractor. Some tips on how to prevent liability are in the post.

TAKEAWAY: While wineries seem a world away to many of us, they are in fact just another type of workplace. And all workplaces need to ensure legal compliance or face complaints or, worse, suits.

The post on Wednesday 2/10/16 was about a trend alert: NLRB holds employee acting alone engages in concerted activity (and yes, ALL employers care about this). Why do all employers care? Because whether or not the workplace is unionized, employees still have the right under the NLRA to protected concerted activity. Here, by decision 7/29/15, the NLRB said that a lone employee, acting alone, and without the consent of his peers, engaged in protected activity. Yep, many of us are shaking our heads. The employee filed a collective action (not a class action) suit where other members must opt in to participate. The employee was the only named plaintiff and there was no evidence he planned or even discussed the filing with other employees or that they wanted to op in. However, the NLRB said that by initiating the action, the employee sought to initiate or induce group action and, thus, engaged in protected concerted activity.

TAKEAWAY: Employers must be careful, very careful, now that action by a single employee could implicate the NLRA and its protections. Discuss this and any questions with a knowledgeable employment attorney.

In the post on Thursday 2/11/16, we talked about an unsolved problem: claims of post-employment retaliation by (formerly) problem employees. By now you know (or should) that in most circumstances, retaliation against employees is in itself illegal (so just don’t go there). But did you know that actions against former employees may also be illegal retaliation? Actions like providing poor references or refusing to provide a reference, contesting UC applications, and others (in the post). Just don’t do it – resist the urge.

TAKEAWAY: When employers take these types of actions, they may find themselves subject to suit by a former employee. Just when you thought you were done with that person …

The post on Friday 2/12/16 told us that a black nurse’s lawsuit over a white patient’s care was dismissed. So what happened? Tamika Foster said that the hospital intentionally discriminated against black workers, that she was subjected to an adverse employment action, and that she lost a promotion due to her race.  The comment that was apparently the last straw was this, made by a nursing supervisor: “You know, the people in 312 don’t want any black people in there … so just – for now just don’t even worry about it. Don’t go in there.” More details are in the post. The judge dismissed the race discrimination suit since Foster could show no change in shift, hours, position, title, duties, status, pay, benefits or other significant employment aspect based on that nursing assignment. The judge’s decision on the other claims is also in the post.

TAKEAWAY: Possessing a protected characteristic is not alone sufficient to carry the day – there must still be facts to back up any claim of discrimination.

Finally, the post yesterday 2/13/16 told us that Celadon Trucking settled a discrimi-nation suit for $200,000 (a lot of miles). The suit was filed by the EEOC and alleged that Celadon discriminated on the basis of disability by making certain applicants take medical exams before a conditional offer of employment was extended to them (and also by discriminating against applicants based on disability or perceived disability). After the judge’s intermediate rulings (which are in the post), the case settled.

TAKEAWAY:  Remember that the ADA protects not only employees but also applicants for employment – make sure you ae in compliance when dealing with both groups.

Monday
Feb012016

ICYMI: Our Social Media Posts This Week – Jan. 31 - Feb. 6

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 1/31/16 we learned of a company held in contempt for failure to follow a court order (including providing information and paying the EEOC’s attorney’s’ fees). This relates back to a prior post about Sparx Restaurant which operated as a Denny’s. By Order dated 7/28/15, the federal court held it in contempt for violating a prior order requiring it to provide information to the EEOC (about its financial status) and to pay the EEOC’s attorney’s’ fees. That prior order was after the EEOC got a judgment (after jury verdict) that the company retaliated against an employee by firing him after complaining about a racist posting in the Sparx workplace. Sparx didn’t pay so the EEOC began collection efforts. Details on those efforts (and what the contempt against Sparx entails) are in the post.

TAKEAWAY: It’s bad enough that you be found in violation of laws preventing discrimination – don’t pile on top of that and flaunt the order that found you in violation.

The post on Monday 2/1/16 was about a man suing Little Caesars for sexual discrimination – pizza pizza – not not. Troy was subjected to what he claimed was unlawful discrimination based on his sexual orientation. He says he was commonly called “faggot” and the company also made unwelcome and insulting slurs based on his sexual orientation. As if that weren’t enough, he says the company was made aware of this and failed to take timely and appropriate action to correct the problem. Want more? He alleges that in 2014 he was suspended without pay during a 3-day investigation based on an unfounded complaint against him and that post investigation, the company told the supervisor to “make something up” and “fire the … faggot anyway”. He was fired shortly after. More details are in the post.

TAKEAWAY: The EEOC has said that sexual orientation is covered under the prohibition against discrimination on the basis of sex, so don’t do it. Just don’t.

In the post on Tuesday 2/2/16, a woman alleged gender-based discrimination at work. This case was filed in the federal court with jurisdiction over Central Pennsylvania, against a former employer and 2 individuals alleging sex and gender-based discrimination and retaliation after reporting the former. Jean started working for the employer in September 2011 and almost immediately was subjected to continuous gender-based discrimination: males excluding her from interactions and communications and management favoring males employees (as detailed in the post). She began to complaint in 2013 but nothing was done about it (other than retaliation by or on behalf of the employer). The employer says she was terminated as a result of a customer complaint, to which Jean responds “pretext”. More juicy details are in the post.   

TAKEAWAY: Whenever an employee is in one or more protected classes, make sure you have clear support for any adverse action – or you may find yourself in a situation as did this employer.

The post on Wednesday 2/3/16 was about avoiding lawsuits: legal versus illegal interview questions. Be careful when asking any question that touches on a protected characteristic, including age, race, national origin, religion, gender, disability and pregnancy. Don’t wait until suit is filed to revamp the questions you ask job applicants; do it now! Examples of questions you cannot ask include: What is your race? What country are you from? When did you graduate from high school? Do you have children? Do you celebrate religious holidays? Are you taking any medications? Have you ever been arrested? More are in the post. Examples of questions that are permissible include Are you authorized to work in the US? Are you over the age of 18? Would you be willing to work overtime? We often work on holidays and weekends; will this be problematic for you? Can you perform the essential functions of the job? Have you been convicted of theft, embezzlement, or other similar crimes (only if related to the job requirements)? Other examples of legal questions are in the post.

TAKEAWAY: There are ways to elicit the information you seek about potential employees – just make sure you do it the right way. Consult an employment law attorney if you’re not sure.

In the post on Thursday 2/4/16, we talked about a soda & beer manufacturer settling a gender and disability discrimination and retaliation suit for $72,500. Taprite, based in San Antonio, has settled a suit filed by the EEOC. The claims included that Taprite subjected a female employee to sex-based wage discrimination, disability discrimination and retaliation after she questioned the wage disparity between sexes. The EEOC alleged Taprite paid a male more than $3/hour more than this female employee for substantially the same job and that she was retaliated against when complaining about the wage disparity (how tit retaliated is in the post, as are additional background details).

TAKEAWAY: Before taking adverse action against an employee – any employee – make sure it is supported by credible, legal facts/evidence. If not, you too may be visited by the EEOC.

The post on Friday 2/5/16 asked under the FMLA does texting applies to a call-in policy. A federal court said it might and sent the matter back for trial. So what’s the background? ON 12/28/11, Supervisor Delbert was ill and didn’t go to work; he had his girlfriend report his illness for that day and the next few. She fold Delbert’s supervisor of the late/absence on 12/28. Delbert also texted his supervisor – before shift start – about the illness and absence for a few days. While the company’s policy required personal calls to the direct supervisor, Delbert says he often texted his supervisor. He was out 12/28, 12/29 and 12/30 and not scheduled to work 12/31, 1/1 or 1/2. He went to a doctor ½. ON 1/3 he presented the employer with a doctor’s note covering 12/28 – 1/7; he requested leave for those dates, intending to to be FMLA leave. He completed the employer’s form, saying someone else checked the “non-FMLA” box after he signed it. He was approved for non-FMLA leave. He returned 1/9 and was terminated (after investigation by the employer – the details are in the post). He sued for FMLA interference and discrimination for the FMLA leave. The trial court ruled for the company and Delbert appealed. The appellate court analyzed his claims under applicable law and found sufficient factual questions to enable him to go to trial.

TAKEAWAY: If you have a policy, make sure it is followed uniformly; otherwise, you cannot rely on that policy to support adverse employment actions.

Finally, the post on Saturday 2/6/16 talked about handling the habitual leave employee – under the FMLA and ADA. You know, those employees who try to game the system? So what can you do? Know who has what obligations under both the FMLA and ADA and how the 2 might be connected. Document, document, document, Put in place, update, and uniformly enforce leave policies. And create accurate job descriptions. More details under each of these items are in the post.

TAKEAWAY:  You can’t stop someone from trying to game the system, but you can make that employee play by the rules of the game. Know what those rules are before you go to bat.

Monday
Jan182016

ICYMI: Our Social Media Posts This Week – Jan. 24-30, 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 1/24/16 we learned the NLRB found a Section 8(a)(1) violation by having & enforcing a confidentiality rule barring wage rate talk & firing an employee for violating the rule. So this employer did two things wrong: first it tried to stop employees from talking about their wages, then it fires someone who violated that rule. The Board’s decision is the post.

TAKEAWAY: Remember that this is one of the sections of that law that apply to all employers. Don’t try to stop or limit your employees from talking about the terms or conditions of their employment.

The post on Monday 1/25/16 contained key questions to ask when terminating a chronically ill worker. As the post says, “How the employer does things, the questions it asks and investigations it makes are just as important as the final decision to terminate someone.” Here, Percy had worked for the company for 18 years and was a manager. There were 19 other employees. Percy began missing a lot of work due to several medical conditions. The company never asked for a doctor’s note; they trusted that he was really sick. When he returned to work after a hernia operation and 7-week absence, he was discharged for chronic absenteeism. He was given the choice of working for one year and being done or accepting six month’s pay in lieu of notice and leaving immediately. The rest of the background is in the post. Suffice it to say the employer lost the ensuing suit because it did not follow the proper procedure.

TAKEAWAY: If an employee is absent a lot, it might be the best course to find out why – the result might trigger the employer’s obligation to engage in the interactive accommodation process but will stop a suit brought for its failure to take that action.

The post on Tuesday 1/26/16 told us that if you have a successful business, not to undervalue employee compensation. What does that mean, you ask. It means that employers must know which laws apply to which employees and how to compensate the employees based on those laws, including exempt versus non-exempt workers (especially with the impending increased wage threshold for overtime eligibility). Employers should also have in place appropriate job descriptions and deal with any wage issues immediately – don’t bury your head in the sand.

TAKEAWAY: You should already know (from MANY prior posts) that the Department of Labor has been and continues to crack down on proper classification (and resulting wages) – don’t give them more to do.

The post on Wednesday 1/27/16 gave us 10 tips for workplace investigations. The first tip is to talk first to the person making the complaint, then the alleged wrongdoer. Next, interview ALL potential witnesses and keep the parties separated (at least until the investigation is over). The rest of the tips are in the post.

TAKEAWAY: If someone makes a complaint, take it seriously and perform a proper and thorough investigation (then take appropriate action).

In the post on Thursday 1/28/16, we learned that employers can be liable for the acts of anonymous harassers. Yep. Failure to perform an investigation, or doing it improperly, can lead to liability for the employer. In the case in the post, an African-American flight attendant for United complained after finding a note in her mailbox with a drawing of a person hanging from a nose; it had the “n-word” and other bad stuff (see the post). Her supervisor didn’t follow proper procedure; further, other supervisors to whom other employees had complained of similar conduct also did not follow procedure. More? Those same supervisors didn‘t cooperate with an investigation by the police and United closed the investigation without telling the employees. The first employee filed suit. The trial court found for United on the basis that even if it has properly investigated, it wouldn’t have found the wrongdoer. The appellate court disagreed, finding that United should have acted so as to attempt to end the harassment. The case was then sent back for a jury trial.

TAKEAWAY: In case you didn’t get it from yesterday’s post, investigate all complaints – even if you don’t know who the alleged wrongdoer might be.

The post on Friday 1/29/16 was about how to appropriately address transgender issues in the workplace. If you’ve not yet been confronted with this, it probably won’t be long so pay attention. Usually the first way this comes into the work environment is relative to restrooms (and which one the transitioning employee should use). Remember that the EEOC treats actions based on gender identity as sex discrimination so be careful what you do (and don’t do). Some suggestions (and factual scenarios) are in the post.

TAKEAWAY: At this early stage of the development of the law for transitioning (or transitioned) employees, the safest course might be to consult with an employment law attorney before taking (or failing to take) action.

Finally, the post yesterday 1/30/16 questioned if an employee can seek disability benefits after lying about the injury. The starting point is that employees must be able to perform the essential functions of their job. Here, Alphonso applied and was found eligible for Social Security disability benefits after back and neck issues; he also was hired as a security guard at the same time. His application for that position said he had no relevant disability. When his supervisor questioned his pain, Alphonso told him about the medical issues. The supervisor then required Alphonso to pass a physical exam before returning to work, Alphonso waited for the exam to be scheduled but when it wasn’t, he thought he’d been discharged. He then sued. Because he said in the SS application that his disabilities barred him from performing the essential functions of his job, the court found the employer not liable.

TAKEAWAY: It may seem like an employee is lying, but the truth may be that the employee is disabled for one purpose but can perform the essential functions of his or her job, with or without reasonable accommodation, such that the employer has an obligation to engage in the interactive process.

Monday
Jan182016

ICYMI: Our Social Media Posts This Week – Jan. 17-23, 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.

The post on Sunday 1/17/16 talked about employees being eligible for FMLA leave on their first day of work. Seems strange but it might happen relative to a government contract if applicable factors (including use of the same plant, continuity of work force, similarity of jobs and working conditions, and more in the post) are met relative to a successor-in-interest employer. And a merger or transfer of assets is not always required. This could leave an employer open to an employee being eligible for FMLA leave on his or her first day by having fulfilled eligibility requirements under the predecessor in interest. Beware!  

TAKEAWAY: Successor government contractors should take into consideration the factors when deciding whether or not to approve an FMLA leave request – do it carefully and do it right.

In the post on Monday 1/18/16, the EEOC said a hair salon fired employees for complaining about race discrimination. Say it ain’t so! The lawsuit filed by the EEOC alleges that Regis Corporation, a company operating a chain of hair salons, violated federal law. Hope and Anne were hair stylists; the soon-to-be salon manager told them both in June 2014 that she didn’t want African-American’s working there. (Yes, I know, ugh.) The next month, they told an African-American applicant that they thought she’d not be hired because of race. August 2014 brought discharges for Hope and Anne supposedly for lying when telling the candidate she wasn’t hired due to race. More details are in the post. The lawsuit alleges they were fired for complaining about (what they thought was) race discrimination.

TAKEAWAY: Remember that not only is actual discrimination prohibited, but so is acting against someone who complains about what s/he thinks is an illegal act.

The post on Tuesday 1/19/16 brought more EEOC, this time suing a Subway owner for sex harassment. The complaint says that the store manager offered two 17-year-old females jobs in exchange for sex. They’d both applied for sandwich artist positions; the manager sent each of them an explicit text message asking for or suggesting sex in relation to their job offers. They refused (thank goodness) and were not hired.

TAKEAWAY: Make sure you properly train your managerial-level employees and take prompt action (as to them and any persons against whom they took illegal action) when you find out about their wrongful actions.

The post on Wednesday 1/20/16 told us why the new overtime regulations will keep businesses up at night. Yes, this means you. The new Regs are not effective yet but DOL is discussing them and soliciting comments. The biggest change is the eligibility threshold, from $23,650 to $50,400, making anyone less than the new number eligible for overtime pay. That will pull in many more employees who were previously exempt from overtime pay. What may happen is that employers change job duties to minimize the impact of this change. See the post for more details.

TAKEAWAY: Make sure you know how this overtime change will impact your workforce and plan accordingly.

In the post on Thursday 1/21/16, we suggested (even though it shouldn’t need to be said) you take action when customers harass employees. Employers should take all complaints of harassment seriously, no matter who is doing the harassing. Here, Tatiana was told that security caught someone taking pictures up her skirt. Security got the person’s contact info, deleted the pictures, and threw out the customer. What security didn’t do was contact the police (and the customer was a repeat offender in that store!). Tatiana complained to management to no avail. After a different customer groped her, security merely escorted him out. When she found out the first customer’s name, she filed a police complaint. Suddenly her shift changed and so did her location (stockroom). She quit and sued. Her case survived an early motion to dismiss on the basis that since management was on notice, it might be liable for the second harassment.

TAKEAWAY: Protect your employees from ALL harassment, no matter the actor.

The post on Friday 1/22/16 told us about McLane Foodservice paying $40,000 to settle a disability discrimination suit. So what happened? The EEOC alleged that McLane did not hire an applicant because it regarded him as disabled and he had a record of a disability.

TAKEAWAY: Remember the two less-used prongs under the ADA, having a record of a disability and being regarded as having a disability; action on those bases is still illegal and can land an employer in hot water.

Finally, the post yesterday 1/23/16 was about an employment law autopsy: “Old Fart” gets fired. Hopefully you all know not to call someone “old fart” (at all, but especially if you might fire him in the future). Also, hopefully you all know not to call co-workers “old farts” before firing them. More? Yes. Don’t give “progressive” warnings to that “old fart” on the day you discharge. More details (and an analysis of sorts) are in the post.

TAKEAWAY:  While Pennsylvania is a very strong at-will employment state, that won’t save an employer who otherwise violates the law (so don’t violate the law).

Monday
Jan112016

ICYMI: Our Social Media Posts This Week – Jan. 10-16, 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.

The post on Sunday 1/10/16 was about Macy’s and a cautionary tale on employee handbook provisions. As you (should) know, the NLRB has been very active and ALL EMPLOYERS must pay attention. This time, the decision went against some of Macy’s policies. Details are in the post and give insight into what policies will be found legal or not if questioned.

TAKEAWAY: Policies and handbooks are an important part of an employment relationship, but only if they are legal and uniformly enforced. Employers should consult an employment law attorney about the former and be vigilant as to the latter.

In the post on Monday 1/11/16, we dealt with FAQ about service animals and the ADA (which could impact your business). You’ve probably seen a dog or cat with a vest that has decals on it – that animal is probably a service animal. The animals (which are not limited to dogs and cats) provide support to the person for a wide variety of things. A big current issue seems to revolve around emotional support animal. See Question 3 in the post as to whether an animal providing this service qualifies as a service animal under the ADA. There are many other informative questions and answers in the post too.

TAKEAWAY: Before automatically allowing or not allowing an animal onto your business premises, make sure that it either is an ADA-qualified service animal (and allow it) or is not an ADA-qualified service animal (and then you can prevent it from entering.

In the post on Tuesday 1/12/16 we talked about an ADA decision that shows the need to accommodate an employee who doesn’t fit the … mold. Yes that word use was intentional. Resa was hired for a government job. Almost from the beginning she had physical symptoms, but only when at work. She was also pregnant at the time. She asked to be relocated and have the air quality tested; her request was denied. Resa then learned the building had mold and made the request again, this time with doctors’ notes. She again was denied. A lawsuit followed. What is important is that the court denied the employer’s motion to dismiss. Some of the findings are in the post, including that the employer did not fulfill its obligations under the ADA.

TAKEAWAY: Whenever an employee requests accommodation – and remember the magic word ADA does not need to be used – it should be taken seriously.

The post on Wednesday 1/13/16 reminded that gender transitions in the workplace require a transition of employment policies too. While 18 states and DC have laws barring discrimination against workers because of sexual orientation or gender identity, that leaves a majority of states which do not. Federal law may fill in some of the gap so employers must know who has what rights and obligations in certain circumstances. The post contains some tips for employers when dealing with employees in gender transition, including permitting the employee to dress with his/her gender identity as long as it complies with any applicable policy and having the employee be consistent in gender presentation during the transition when in a continuing relationship with a client. More tips are in the post.

TAKEAWAY: Employees may evenly enforce policies – but that may require reworking them given the changing laws and interpretations thereof relative to employees’ gender identity and sexual orientation.

In the post on Thursday 1/14/16 we talked about overtime pay for checking email – and the fact that DOL is cracking down on this. Remember that any time an employee is doing work for you, the employer, s/he is entitled to pay. This is often an issue for non-exempt employees when they perform services when out of the office by using email on laptops, smartphones or tablets. DOL is working on new overtime regs that will deal with this issue. In the meantime, as the post notes, one result of the new minimum weekly salary floor in the proposed overtime regs s that exempt employees may be moved into hourly positions – this will make it easier on the employer by not having to meet a higher salary for exemption, but it will also mean that every minutes worked literally counts.

TAKEAWAY: Now more than ever employers must pay attention to classification of employees as exempt or non-exempt, whether by salary amount or job duties, and pay overtime to non-exempt employees when legally required.

The post on Friday 1/15/16 told us that Abercrombie & Fitch dropped its appeal in a Muslim Woman’s employment discrimination case. Yes, that same Abercrombie that was the subject of a recent US Supreme Court decision. The female employee wore a head scarf to her interview. She was not hired as a result (with Abercrombie claiming it conflicted with the dress code). She sued; the trial court found in her favor but, upon appeal that decision was reversed. In June 2015, the US Supreme Court decided that she needed no specific request to wear the scarf since she had it on during the interview (and reversed the appellate court, keeping the case alive). Thereafter, Abercrombie asked the appellate court to dismiss the case, alleging the EEOC did not object to dismissal. More details are in the post (of course).

TAKEAWAY: Even if the case is dismissed, it still made headlines at the Supreme Court and gave us guidelines as to what an applicant or employee must (or need not) do to have Title VII protection.

Finally, the post yesterday 1/16/16 was about when and where service animals are allowed (bringing us full circle). In brief, those that qualify as service animals under the ADA (for more on that see the post from 1/11/16) are NOT allowed in shopping carts (!) but ARE allowed in restaurants and bars but must remain on the floor, not seated at the table. More clarifications are in the post.

TAKEAWAY: The threshold question is whether or not the animal qualifies as a service animal under the ADA. If so, then know where (and under what limitations) it is allowed in your place of business.

Monday
Jan042016

ICYMI - Our Social Media Posts This Week - Jan. 3-9, 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.

The post on Sunday 1/3/16 asked how you are doing with the law requiring background checks for certain volunteers and employees. If you are asking what law, then you have a big problem. The new law went into effect July 1, 2015, and expanded the persons who need background clearance if providing care, supervision, guidance or control of children, having routine interaction with children, or working with children. Read the post for general info on the law and when its provisions kick(ed) in for which persons.

TAKEAWAY: This is a state law many employers might forget about but which might greatly affect them through application to their employees or volunteers – make sure to know what’s required and of whom.

In the post on Monday 1/4/16, we reminded that if you have confidential information, keep it confidential. This issue is as much what the former employee did as what the company did not do. An example of the latter is in the post. Head Over Heels ran a gymnastics academy; Harriet was hired in 2006. By 2012, Harriet started developing a business plan for her own gym. When Head Over Heels discharged her, she put her plan into action. That resulted in approximately 30 gymnasts leaving Head Over Heels for Harriet’s new gym. Head Over Heels sued Harriet on many bases, including that “everyone ‘understood’ that the customer list was intended solely for the purpose of Head Over Heels’ business and was neither publicly known nor available”. Sounds good, right? Not really. Read the post to see why Head Over Heels lost the case and what it could and should have done differently.

TAKEAWAY: It’s YOUR confidential information – take steps to protect it. Others will not do that for you and your business will be the loser.

In the post on Tuesday 1/5/16 we reminded you of the steps to take before firing a no-show employee. Everyone knows what no-call no-show means, right? In most businesses, that can result in automatic discharge. But should it? The post lists some suggested steps to take before firing the person, including trying to contact him/her (to ensure there is no legal reason supporting the no-call no-show) and following your policy.

TAKEAWAY: If you have a relevant policy (and you should), follow it, but ensure that it is not preempted by a statutory obligation.

The post on Wednesday 1/6/16 talked about the top 10 scariest employment challenges in 2016 (and asked if you agree). So what are the challenges (in the author’s opinion)? Same-sex marriage (and how it will affect COBRA, FMLA, ERISA, and more). Reasonable accommodations for an increasingly diverse workforce (including religion, disability and pregnancy - remember the recent US Supreme Court cases of AEEOC v. Abercrombie & Fitch Stores, Inc. and Young v. UPS?). Paid sick leave. This is mandatory in some jurisdictions (states or localities) but not others. NLRB pursuit of workplace policies. Yes this matters to you even if your business is not unionized. We’ve said numerous times, and repeat here, that ALL EMPLOYEES ARE ENTITLED TO CERTAIN PROTECTIONS UNDER THE NLRA so make sure your business – including handbooks and policy manuals – doesn’t run afoul of that law. More of the Top 10 list is in the post.

TAKEAWAY: Businesses and their owners need to be ever vigilant of what statutes apply and how courts are interpreting them so that no legal issues arise.

In the post on Thursday 1/7/16 we talked about how a butt dial spelled disaster. Yes it sounds funny, but I’m sure it wasn’t to the person involved. What happened? While Matt was running a company with his wife that designed, manufactured, sold and installed custom residential storage components, he was hired as a travelling software salesperson. He told the employer that upon hire, he’d transfer operational duties in his company to his wife. Also, as part of the employment offer, Matt had to acknowledge certain guidelines including a ban on outside work or soliciting same on company premises, by using the company’s equipment or during company time. Matt also acknowledged that a violation of the policy could result in discipline up to and including discharge. Good so far, right? Well, Matt cancelled a weekly phone meeting with his boss, claiming a client appointment conflict. (Read the post to see why that was a white lie.) Twice that afternoon, during the time originally set for the meeting with his boss, Matt butt dialed his boss. The boss heard him talking with a subcontractor about installing storage equipment for Matt’s business. As if more were needed, Matt ignored 2 work emails sent to him that afternoon and used the company’s cell phone for calls for his private business. The company discharged Matt who then sued. The court went through the many things Matt did wrong (see the post) and how they justified termination.

TAKEAWAY: Technology has and will doom many a job; make sure employees don’t use it to derail your business in favor of their own.

In the post on Friday 1/8/16 we noted it was recently the season for moonlighting: FMLA leave and secondary employment, and asked if you had to address this issue. Believe it or not, employees out on approved FMLA leave perform work for themselves or another employer during the leave; this seems to occur more in the last few months of the year than at other times. (Perhaps they want more disposable income for gifts?) Don’t immediately discharge the employee as there might not be a legal basis to do so. For starters, the second job may be within the person’s medical limitations but the regular job (at your company) may not. Also, the FMLA doesn’t prohibit other employment; only if the employer has a policy and applies it to all situations does this become an issue. Some steps an employer can take to prevent this from occurring are in the post.

TAKEAWAY: Don’t wait for this to happen – consult with an employment law attorney and put in place a policy setting forth when, if at all, employees may work while employed by your company and what happens if they violate the policy.

Finally, the post yesterday 1/9/16 was about a Ford Motor employee fired for an anti-gay comment bringing suit for religious discrimination. So how did this move from what appeared to be sexual- to religious discrimination? See the post and keep reading here. Thomas’s suit describes himself as a Christian who worked at Ford for 3 years and commented on a Ford intranet article celebrating GLBT inclusion by saying Ford “had no place promoting sodomy or ‘immoral sexual conduct’ and should be ‘thoroughly ashamed’”. The post contains more of the basis for his comment and suit. A few weeks later he was fired for violating Ford’s anti-harassment policy. After the EEOC declined to act on his charge, he sued. NOTE that the suit was filed in Michigan where (like PA) there is no law prohibiting discrimination on the basis of sexual orientation or gender expression.

TAKEAWAY: Look at a situation from all angles before terminating an employee – and even discuss it with an employment law attorney – to avoid what might turn out to be a costly legal battle.

Monday
Dec212015

ICYMI: Our Social Media Posts This Week – 12/27/15 - 1/2/16

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.

The post on Sunday 12/27/15 was about how employment lawsuits can ruin your business. So what are some of the ways a lawsuit can hurt your business? You could lose your reputation. You could lose your money. See the post for more.

TAKEAWAY: Ensure proper legal compliance to help avoid – or at least provide a good defense for – lawsuits arising out of the workplace. An employment attorney can help with this.

In the post on Monday 12/28/15, we noted that sometimes the jury gets it right – a BIG verdict for sexual harassment in this case. And by big we mean $18M! So what happened? Among other things, the plaintiff alleged that she was pressured to dress provocatively on the job and that the CEO continually asked her for sex. More allegations are in the post, including the use of social media. Bad, just bad.  

TAKEAWAY: The defendant’s lawyer summed it up pretty well: “his client made some ‘mistakes’ in his treatment of [her] and now he’s going to pay for $18 million of them.”

In the post on Tuesday 12/29/15 we saw that all is not hunky dory for females at Ford Motor plants. Yes, this is more on the class-action sexual harassment suit. Ford has asked the court to dismiss the suit which now involves 33 women at various Ford plants who allege unwelcome touching and sexual advances, requests for sexual favors, male employees showing them pictures of their genitals, and attempted rape. The post has even more of the lurid allegations.

TAKEAWAY: However this plays out in the legal system, Ford loses in the court of public opinion. Don’t let something like this happen to your business.

The post on Wednesday 12/30/15 told us an employer cannot discourage an employee from speaking to others about an investigation into comments written on newsletters. This was a decision from the NLRB about something that took place in unionized workplace, but remember that certain sections of the NLRA apply to ALL employees in ALL work environments, including your business. One of those is the right to discuss the terms and conditions of work.  

TAKEAWAY: The protection afforded to employees to discuss their work environment is broad – and in a law that is being interpreted very broadly now. Employers must be aware of their employees’ rights and not step on them.

In the post on Thursday 12/31/15 we learned that federal courts recognize a “perceived as” religious bias claim. Just one more thing for which employers must be wary. One of those courts is the federal appellate court governing PA. In the PA case, the plaintiff was perceived as Muslim. Here, the plaintiff said he was subject to harassment when he wore his hat backwards and others said it looked like a “topi” (a skullcap worn for religious reasons by Muslim men). There were other incidents of harassment too which are in the post.

TAKEAWAY: Religious discrimination is not cut and dried; its scope is expanding and employers’ vigilance over their employees’ actions must also expand to prevent legal liability.

In the posts on Friday 1/1/16, here and here, we wished you a happy and joyous new year and reminded you that we are here to help with your legal needs in 2016 and beyond.

TAKEAWAY: Just this once, let’s make it simple: be thankful for 2015 and look forward to the possibilities 2016 holds for you.

Finally, the post yesterday 1/2/16, reminded you that the delete button could save your job. Really. We all know that social media rules the world. Given that, employees must be very careful of what they send out (even if they think they are protected by their right to discuss work conditions in a non-union workplace). The post details one situation where an employee would have been reinstated but for his own social media stupidity.

TAKEAWAY: When employees do themselves in an employer is within its rights to follow its policies and discipline or discharge that employee.