Monday
Aug292016

ICYMI: Our Social Media Posts This Week – Aug. 28 - Sept. 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 8/28/16 we learned that managers can no longer say they didn't know employees were working overtime. Why? A federal court in OH put liability on the employer to know how many hours its empl9oyees are working – and whether they are entitled to pay for overtime – even if the employee didn't claim overtime pay and if the company has a formal policy prohibiting overtime. Ouch. Here, the bookkeeper often worked more than 40 hours per week. She kept detailed time records but, thinking she was not eligible for overtime, only charged her regularly hourly rate for the hours in excess of 40 per week. When she learned, she sued. The defense: her boss didn't know she was working overtime. The post includes more on the defense and how the court dealt with it.

TAKEAWAY: While this case does not govern here in PA, the analysis makes sense – employers SHOULD know whether or not their employees are working overtime and whether pay is due for those hours.

The post on Monday 8/29/16 was about medical leave as a reasonable accommodation under the ADA: how far must an employer go? The EEOC certainly has something to say about this question given that it just issued guidance in May 2016. There is nothing concrete, but still the opinion that it should be considered, even beyond that under FMLA. Of course, each case stands on its own facts. The post reviews several areas, including whether or not someone is a qualified individual, how to handle requests for indefinite leave, and extensions of prior leaves (and by how long).

TAKEAWAY: Remember that the FMLA and ADA go hand in hand for medical leaves – consider requests under both.

In the post on Tuesday 8/30/16 we learned that an owner can stretch out tax sale redemption payments in a Chapter 13 bankruptcy in PA. A Bankruptcy Judge in Philadelphia recently ruled this way, so it's not binding everywhere else in PA, but it is something to keep in mind. The issue centers on whether the right of redemption after a tax sale is an asset or a claim. The Judge here decided it was closer to a secured claim, thus allowing it to be repaid over the life of a Chapter 13 plan. The post gives a nice summary of the court's analysis.  

TAKEAWAY: This might be important for someone looking to save their house after a tax sale – or, on the other side, for the purchaser at tax sale to know when his/her purchase is absolute.

The post on Wednesday 8/31/16 was about a white teacher suing the school board after being denied a job that included teaching Spanish. The teacher sued the Miami-Dade County School Board when she was not hired for a position that required teaching an hour of Spanish each day. That requirement is part of the duties for teachers in the extended foreign language track. Her attorney admits that she could not speak Spanish but said the Board could have had someone else teach Spanish for the one hour each day. She also alleges retaliation (interesting theory in the post).

TAKEAWAY: When an employment-related decision is affected by a protected characteristic, be careful of any legal implications of any action (not) taken.

In the post on Thursday 9/1/16 we noted 3 statements best left unsaid. Seems vague, but when you read the post you will see it's actually very clear. One, "personal issues shouldn’t affect your performance." The others are in the post.

TAKEAWAY: Train your managers in what they should not say to employees – it will make for a better workplace and possibly protect you from suit.  

The post on Friday 9/2/16 was about a court rejecting a lesbian's employment discrimination suit. We wonder who will settle this issue (Congress or the Supreme Court). Kimberly Hively sued her former employer (after having gone through the EEOC process) for violation of Title VII based on denial of a full-time position and a promotion due to her sexual orientation. Both the trial and appellate courts said that Title VII does not include protection based on sexual orientation (contrary to the EEOC's guidance on same). The analysis is in the post. The court here was bound by precedent, but contrary results have come down in other venues.

TAKEAWAY: Will Congress act on the Equality Act, will the Supreme Court rule, or will courts continue to issue their interpretations of whether or not Title VII covers sexual orientation?

Finally, the post 9/3/16 asked EEOC: how conciliatory should you be? Conciliation is one of the options available in the EEOC process (the other being mediation). If the employer does not want to mediate, it submits the required documents (including those noted in the post), the EEOC reviews the case and determines the charge to be for cause, and then tries to conciliate. If conciliation fails (or the employer decides not to participate), the EEOC may sue or the employee may sue (or the case may just die on its own). The post gives more details on the conciliation process.  

TAKEAWAY: Remember that working with an enforcement agency can often be a good thing, but there are both good and bad things that may come from EEOC conciliation. Talk to an employment law attorney about your best option in each case.

Monday
Aug222016

ICYMI: Our Social Media Posts This Week – Aug. 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.

The post on Sunday 8/21/16 was about how marijuana legalization affects drug test policies. This applies in PA now too so pay attention! Pre-hiring testing could turn up a positive test for something related to a medical condition that may not require an accommodation, but if the applicant mentions it s/he might not get the job or might be known as a pot user. It’s a double-edged sword for the employee: s/he can’t be prosecuted for using the marijuana but has no protections relative to employment. (See what the post says about alcohol use.)

TAKEAWAY: The question of whether or not drug testing policies must, or will, change with legalized medical marijuana use is important and should be discussed with an employment law attorney as to the legal implications of any answers.

The post on Monday 8/22/16 asked Does an FMLA leave request double as a request for reasonable accommodation? And should you care? In reverse, YES you should care. And yes it might in the right circumstances. In the case in the post, Fred was a mixing technician. He required and was approved for intermittent FMLA leave. At some point the employer questioned it – after he was arrested for a DUI on a day he called in sick. He was fired and then sued. One of the allegations he made was that the employer violated the ADA by not treating his leave request as one for a reasonable accommodation. The trial court rejected that argument. BUT … a situation may present itself where the opposite holds true. Don’t be the case to find out.

TAKEAWAY: If an employee requests leave, no magic words are required – look at the reason, how it affects the employee’s ability to perform the essential functions of his/her job, and whether or not leave is required under either the FMLA or ADA (as a reasonable accommodation).

In the post on Tuesday 8/23/16 we asked Just how well do you understand salaried, hourly and wages? Again, do you care? Again the answer is a resounding YES. You must properly classify employees so that they are paid appropriately (and legally). “Salaried” does not necessarily equate to being exempt from overtime pay and hourly does not always equate to being non-exempt. Employers must look at the law and regulations to see if overtime is due to an employee given the facts of that person’s job situation.

TAKEAWAY: Proper employee classification for overtime pay is important, especially since the threshold changes in a few months.

The post on Wednesday 8/24/16 talked about a waitress told to wear a skirt for customers winning a sex discrimination case. That case was not in the US, but the law would be the same here. So what happened? At hire, a teenage waitress was told the dress code was black pants or skirt and black shirt.  A month later, a manager asked her to wear a skirt, her hair down, and makeup to be “easy on the eye” for customers. More details are in the post. She complained and was fired. She sued. She won.

TAKEAWAY: Sex discrimination takes many forms, all of which are illegal. Just don’t go there.

In the post on Thursday 8/25/16 we asked another question: Applicant tracking: EEOC can sue for that? You bet. And it is. It all boils down to record-keeping. As an employer you have a legal duty to retain certain records. In this case, the employer didn’t have them (information on the sex, race and ethnicity of applicants) and so the EEOC sued. And won.

TAKEAWAY: Record-keeping applies to just about everything related to the hiring process, including criteria, interviews, drug tests, pre-employment testing, and criminal and credit checks. It’s not just location anymore.

The post on Friday 8/26/16 was about a judge awarding $1,470,000 in an EEOC sexual harassment and retaliation action. Yes, you read it right, almost $1.5 million! Z Foods, a large dried fruit processor, has to pay $1.470 million in a suit accusing it of allowing male supervisors to sexually harass a class of female employees and firing any employee (male or female) who complained about it. The court found the harassment included conditioning hiring and promotions on sexual favors, continuous sexual advances, and more (in the post). The EEOC sued in 2013 after investigating and settled that claim in 2015 for $330,000. It didn’t stop, so in this case the award was the maximum allowed by law (less the prior settlement as an offset), including a finding of emotional distress by the claimants.

TAKEAWAY: It’s bad enough to violate the law and get caught once, but to do it twice takes a special employer …

Finally, the post yesterday 8/27/16 noted the EEOC fights sexual orientation discrimination using the Civil Rights Act. Yes, Title VII. This is the new frontier we’ve mentioned before. The EEOC has ruled that sex discrimination includes that on the basis of sexual orientation; now it’s putting its money where its mouth is and has filed suit. Here a gay male was harassed by his manager about his relationship with another man. The employer never disciplined the manager so the employee resigned. The EEOC alleged that had the employee been a woman having a relationship with a man, the harassment wouldn’t not have occurred.

TAKEAWAY: The case is pending, but it asks PA courts to interpret the law the way President Obama has for federal contractors and the EEOC has in its guidelines and rulings.

Tuesday
Aug162016

ICYMI: Our Social Media Posts This Week – Aug. 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 8/14/16 we noted you don’t even have to be disabled for ADA protection – remember “record of” and ‘regarded as” prongs! The employer, a blood bank, placed an employee on a deferred donor list when it found he had an active blood infection. After learning of that, the supervisor fired him. The EEOC sued for ADA violation for a perceived disability or record of disability. (And to make it worse, subsequent tests showed the employee did NOT have the infection.) The employer settled the suit with the EEOC for $60,000 and other relief (noted in the post). 

TAKEAWAY: The most common use of the ADA is indeed for an actual disability, but keep in mind the other prongs too to keep you and your business out of legal trouble.

The post on Monday 8/15/16 was about a manager being fired after giving out best butt award. Yes these things really happen! A female server at a bar-restaurant chain was given a “best-butt” award by her manager at a company party in front of 50 co-workers. She was then asked to turn around so they could take pictures of her behind. The manager was subsequently “awarded” a discharge and the owner ordered company-wide sexual harassment training. See the post for more details.

TAKEAWAY: An employer can’t unring a bell, but quick action to show the action was not condoned goes a long way toward preventing suit by the employee subject to the untoward (and possibly illegal) action.

In the post on Tuesday 8/16/16 we noted sick leave? Ok to ask for doctor’s note. Employees are not entitled to complete privacy for medical issues. Here, Danny, a machinist, told a supervisor he needed time off for medical testing. He was out a week. He did email his boss with an update (see the post). When he returned, he was asked for a doctor’s note, but Danny never provided it.  He was discharged for absence without approval per policy. Yep, he sued, alleging discharge for disability. He lost when the court agreed the employer could require medical documentation.

TAKEAWAY: Don’t let employees dictate to you – rather, ensure that your policy requires documentation for any medical-related absence.  

The post on Wednesday 8/17/16 was about 5 best practices to terminate an employee. Let’s jump right to it. (1) Minimize the employee’s embarrassment. This goes a long way to fending off possible suits later. It also allows the employer to remain in control of the situation (see the post for why this is important). (2) Don’t spend time debating the decision with the employee. Instead, explain the next steps. (3) Don’t apologize for the decision. The decision should have valid basis, so there is no reason to apologize. The other 2 best practices are in the post.

TAKEAWAY: It is never easy or fun to discharge an employee, but done right it can be seamless and leave no basis for later suit.

In the post on Thursday 8/18/16 we talked about laws you can use – common condominium questions. More and more people are living in planned communities – those with condo or homeowner associations. The laws in PA governing both are very similar. The Q&A in the post gives some basic information that you might find helpful – for yourself or family or friends thinking about or already residing in a planned community.

TAKEAWAY: It is important to understand the legal rights and obligations of both owners and the Association before buying a house in a planned community. Let us help you.

The post on Friday 8/19/16 asked Words matter at work: is “fitting in” code for bias? Remember not to go in the back door to a place you wouldn’t enter through the front door. “Fitting in” is an example. Adele, an African-American, learned that 2 Caucasian men doing the same job were paid more than she was paid. She complained and her boss put in for a pay raise for her. However, her new supervisor cancelled the request and started other actions (see the post for the pettiness). Adele complained and applied for other positions. The new supervisor nixed it each time, saying she would not “fit in”. Who got the jobs? Caucasian men. Adele sued. The case is still pending, having survived summary judgment.

TAKEAWAY: Make sure workplace decisions, especially those that are adverse, have a sound legal basis. If not, don’t make that decision.

Finally, the post yesterday 8/20/16 noted the ADA allows an employer to reduce an employee to part-time after return from medical leave. So what happens when an employee is out on medical leave and the employer finds out that the duties can be accomplished by a part-time positon rather than the full-time hours the employee had been working? A federal court recently said that is a legitimate business reason under the ADA for changing the work status. There, the employee had sued for violation of the ADA since she was not reinstated to her former position.

TAKEAWAY: Changing a position for a valid business reason while the employee is out on leave under the ADA may pass muster, but it probably won’t when examined under the FMLA. Consult legal counsel before taking any action like that.

Wednesday
Aug102016

ICYMI: Our Social Media Posts This Week – Aug. 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 8/7/16 we talked about civility training – rock or hard place: comply with EEO laws or violate the NLRA. What? The 2 seem a bit at odds, with compliance with one resulting in possibility liability under the other. Promoting civility might be interpreted by the NLRB as impeding the ability of workers to discuss the terms and conditions of their employment – and thus be a violation of the NLRA. That doesn’t’ mean employers should give up on civility. Rather they need to draft policies with the NLRA (and the Board’s ever-broadening interpretations) in mind. Some examples of acceptable policies are in the post.

TAKEAWAY: All workplaces – even non-unionized – must keep in mind the broad brush with which the NLRB now paints – and how that may bring color within the lines of existing handbook provisions or policies. Make adjustments before liability attaches.

The post on Monday 8/8/16 was about a suit alleging sexual harassment at a dessert manufacturer – all was not sugar and spice there! Randy filed suit against his former employer and former manager individually. He was hired as a production shift manager in November 2013. A year later, he got a new plant manager, Taylor. Taylor made inappropriate comments, including telling an employee that a camouflage hat would be sexy for her to wear (and other things in the post). Randy complained to local management and HR, and even to Taylor too. Taylor’s response was basically that’s me, too bad, so sad, take it or leave. After another manager quit due to Taylor’s harassment and Taylor directed performance contrary to law or company requirements, Randy talked to Taylor. Taylor then put Randy on a PIP and eventually fired him. I bet you’re not surprised that Randy sued! The company and Taylor are defending on several bases (see the post) including alleging Randy’s work was deficient.

TAKEAWAY: Train managerial personnel – and if they say or do something wrong (or illegal), don’t try to cover it up. Rather, make it right and ensure it never happens again. The cover-up (adverse action) often leads to more liability than the initial behavior would have.

In the post on Tuesday 8/9/16 we talked about the new OT: Beware assumptions about hours. This is oh-so important with DOL cracking down on misclassification (and the need to pay for overtime if appropriate). This refers to the new OT regulations going into effect December 1st. Maybe you’re thinking about converting exempt employees to hourly to avoid paying overtime for all of those hours worked over 40 per week? Read on. A survey showed that employers sometimes don’t know what hours the exempt employees are really working – and that some might actually want to work fewer hours.

TAKEAWAY:  Before the deadline, work through classification and working hours with employees – based any decision on your company’s needs and, if possible, their wishes. You may find out the new threshold doesn’t change anything after all.

The post on Wednesday 8/10/16 was a reminder to train your managers: don’t tell an employee on FMLA leave to “get it together”. When it happened here, it cost the company $500,000. No typo there. Amanda requested – and was approved for – intermittent FMLA leave. After Amanda was out a few days, her supervisor contacted her, said she’d spoken with HR, and was concerned about the time off. The manager then told Amanda to ‘get it together” and take a continuous leave. Amanda then did that. After she returned, the employer took some actions she deemed adverse (see the post) and was finally fired. Amanda sued. A jury awarded $30,000 lost wages, $445,000 compensatory damages, and $25,000 emotional distress. Huge!

TAKEAWAY:  Train managers on what they can and cannot say and do relative to the FMLA and ADA (since they often overlap). Help protect your company.

In the post on Thursday 8/11/16 we noted that the FMLA does not require a warm welcome back to work. Nor must the employer forget about pre-leave work performance deficiencies or talk about them in a courteous manner. In this case, Debra took approved FMLA leave to end Sept. 2014. During the leave, her mother died so her leave was extended. Upon her return, Debra met with the person who took on her job responsibilities while she was out and the admin support person; neither warmly welcomed her or offered condolences on her mother’s passing. They did, however, give her a list of tasks she’d not completed pre-leave that she’d said she would. Debra got upset, stood up, and quit. To emphasize the quit, she took other actions in the post. The next day, Debra tried to retract her resignation; the employer said no. Debra sued for FMLA retaliation and constructive discharge. The post contains the court’s ruling on the employer’s motion for summary judgment.

TAKEAWAY: You don’t have to like your job or the people who you work with; similarly, they don’t have to like you. You just have to do your job properly and work together.

The post on Friday 8/12/16 was about a woman claiming the manager posted photos, derogatory comments during the job interview. Now that’s just wrong! The suit alleges the hiring manager took pictures and posted them on Facebook with less than favorable comments during a job interview. Among other things, the posts refer to her as a slut and imply that she is mentally retarded. Worse yet, comments to the post were racially tainted. Of course, it all started when she shoed for the interview and an employee told the hiring manager there’s “some ‘lil slut out here to see you”. Details are in the post, but they are not pretty. As of July 14th, the manager was still employed by the company.

TAKEAWAY: Managers should be trained so as to keep the employer out of hot water. Even if trained, their actions must be watched as they are imputed to the employer and can result in legal liability if they are illegal.

Finally, the post yesterday 8/13/16 talked about 4 myths encountered by first-time homebuyers. Yes, not everything you read on the internet is true. So what are the myths? (1) Renting is always a bad idea – you’re throwing away money. Not necessarily. Each person’s situation must stand on its own. Don’t overgeneralize. (2) Condos are maintenance-free. Well, sort of. The owner doesn’t have to do a lot of the maintenance or actually find people to do it, but that is part of the periodic dues or assessments paid by owners. The other myths are in the post.

TAKEAWAY: Don’t believe everything you see or hear – especially when it can have serious implications for you financially.

Monday
Aug012016

ICYMI: Our Social Media Posts This Week – Jul. 31 - Aug. 6, 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 7/31/16 we talked about what a prior Fox News discrimination suit shows about Roger Ailes and proving retaliation. In 2008 he sent out a memo reminiscing about times without “petty whining.” Another employee brought suit against Fox back then. She’s complained to Ailes that she wasn’t getting opportunities due to age and gender; he said he’d hire a manager to implement company HR policy. Later she got some things she wanted, but not all and so complained again about discrimination. The next day, the memo came out. Its contents are in the post. The prior case went out on summary judgment in favor of Fox, but is instructive in the current Gretchen Carlson case. The post details the differences.

TAKEAWAY: Prior bad acts can sometimes be used to support discrimination claims – so make sure your company has no prior bad acts.

The post on Monday 8/1/16 was about a farm paying $205,000 to settle an EEOC race and national origin discrimination suit. The suit was filed in August 2014 alleging the employer subjected American and African-American workers to different terms and conditions of employment base don national origin or race. The differences included segregation in buses, work crews, and more detailed in the post. It also alleged the company terminated qualified American or African-American employees in favor of foreign-born workers. The settlement involves 119 workers.

TAKEAWAY: Companies must learn that discrimination is not allowed and they will be made to pay – here it was a six-figure payment plus more.

In the post on Tuesday 8/2/16 we learned a casino settled an age discrimination suit. Spending a lot of chips. $250,000 to be exact. Why were the employees fired? Because they weren’t “young or pretty enough.” The plaintiff women were slot machine attendants at a casino that had just been sold. The new owners/management changed the women’s jobs and fired them. Want more? Apparently managers took pictures of employees and used them to screen out older, less attractive employees.  

TAKEAWAY: Make sure adverse action is legal – and when it’s not, know that the footprints left will be followed.

The post on Wednesday 8/3/16 talked about exactly how NOT to handle FMLA leave. The case in the post shows what NOT to do. Debra was assistant director of the 911 system. She always had good evals and no discipline. When she found out her parents, who lived in another state, needed assistance, she told the employer. A few days later, she was fired, allegedly for poor performance (since she was in the middle of a project at work). Is it any wonder she sued for FMLA interference?!? The employer’s arguments (in the post) were knocked down one by one. Now it calculates damages.

TAKEAWAY: Before you take adverse action against an employee who is requesting or on FMLA leave, make sure what you propose is legal – otherwise you too will pay handsomely.

In the post on Thursday 8/4/16 we learned how the employer’s good notes made it clear why the employee quit. In real estate it’s location location location; in the workplace it’s often document document document. That’s what the employer here did and it won the day! Jan resigned a few days after her supervisor and friend left the company after negotiating a severance package. The friend told Jan about his plans and why he was leaving. Jan then went to HR and complained of mistreatment, requesting a severance package. HR refused. Jan then quit anyway, on principle. But then she sued for constructive discharge, alleging an increased workload and hostile work environment were the reasons. The judge analyzed her claims along with the employer’s written documents and dismissed the case.

TAKEAWAY: Despite the length of time it took to get to trial, the employer maintained documents on meetings and the resignation; that evidence saved the day.

The post on Friday 8/5/16 was about the EEOC settling the first sexual orientation discrimination suit. For $202,500, not peanuts. The suit alleged that a lesbian employee was harassed based on sexual orientation and was fired after complaining about it. The settlement pays $182,200 to the employee and the remainder to an organization working for equality in the workplace. More details are in the post.

TAKEAWAY: Whether or not Title VII encompasses sexual orientation under sex discrimination is the Wild West right now – different circuits are deciding different ways, setting this up for a SCOTUS showdown.

Finally, the post yesterday 8/6/16 told us Norfolk Southern will pay almost $500,000 to settle allegations of race discrimination. Of course another settlement means another case had to be filed to start with … More than 2000 African-Americans will share in the back pay and interest (and 7 non-selected applicants will get jobs).

TAKEAWAY: Race should never be a basis for an employment-related decision. Period.

Monday
Jul252016

ICYMI: Our Social Media Posts This Week – July 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 7/24/16 we asked If a tree falls in a forest and nobody hears it, can you still retaliate against it? Probably not. In a recent case (binding on PA cases), Kacian complained about a male manager harassing her, including asking for pictures of her in a bikini, telling her to stay off her knees (which she thought of as sexual innuendo), telling her that her regulation shorts were too short, and more in the post. The act for which the employer discharged her, which occurred after she complained about the harassment, had been overlooked for other people (except her boyfriend). The supervisor who discharged her was unaware of the complaint. The trial court found there to be no cause for retaliation if the manager didn’t know of the underlying complaint. On appeal, the court reversed, noting that the underlying complaint was objectively reasonable and circumstantial evidence (including temporal proximity and more noted in the post) could prove a retaliation claim.  

TAKEAWAY: Any time an employee complains about harassment or discrimination, an employer must investigate and ensure that no unwarranted and unsupported adverse action is taken – or it may find itself listed as a defendant in a suit for the underlying action as well as retaliation.

The post on Monday 7/25/16 told us how a federal court ruling drives home the importance of written job descriptions. The case was brought by a truck driver and cancer survivor against a prospective employer. As part of the application process, the applicant disclosed that he’d been out of work due to cancer but was now in remission. The employer did not hire him due to lacking 3 years’ recent driving experience as required by the employer’s insurance underwriter. The applicant then sued under the ADA. Both the trial and appellate courts rule din favor of the employer. Why? Because of the job description, the applicant couldn’t not establish he was a qualified individual with a disability under the ADA. Details about the job description and analysis are in the post.

TAKEAWAY: Job descriptions are important for many reasons, including describing the essential functions of the job that are used to determine eligibility for, and accommodation of, an individual with a disability.

In the post on Tuesday 7/26/16 we were busting employment law myths. First, in an at-will state, employment laws don’t apply. Yeah, right. At-will means only that either party can terminate the employment with no notice and for no reason, as long as it’s not for an illegal reason. Next, employees are entitled to due process pre-termination. Not necessarily; an employer need only do what is required under any contract or applicable law. The other myths that are busted are in the post.

TAKEAWAY: There are a lot of things that have been handed down or are floating around as to what is or is not required in the employment arena – talk to an employment law attorney to be sure you know what is or is not required for your business.

The post on Wednesday 7/27/16 noted that retaliating against whistleblowers can be costly (and how to protect yourself). If your company hasn’t yet been the subject of a retaliation suit, count yourself as lucky – but don’t count yourself out yet. Retaliation claims are on the rise (and often accompany a suit over the underlying job termination). Among others, the EEOC, NLRB and OSHA are concerned with employer retaliation. The post gives some examples of the areas in which they might be interested. So what is a good employer to do to protect itself? Some suggestions (which can vary according to the facts of each situation) include suspending first and then terminating if appropriate and letting time pass. Other suggestions are in the post.

TAKEAWAY: Employers are permitted to discharge employees, but must be careful that there is not only support for the adverse action, but that it is not being taken in retaliation for prior action by the employee.

In the post on Thursday 7/28/16 we asked What? He failed a drug test – so how can he sue under the ADA? Here, John was denied a truck driver job after he failed the medical exam. He took a drug to control narcolepsy; he gave to the company a doctor’s note explaining it would not affect his ability to perform the job. The employer’s doctor told him to get off that drug, take a different one, and see how things were in 6 weeks. He did. But then the same company doctor denied employment due to the underlying narcolepsy. You guessed it, he sued under the ADA. The court found that despite the failed drug test, the employer had not met its obligations because its doctor had not contacted his doctor to see if he could do the job.

TAKEAWAY: Employers should take pains to work with disabled individuals. Period. Or try to get a judge or jury to understand why you didn’t.

The post on Friday 7/29/16 asked Will the new overtime rule mean less or more litigation? First, remember that the new rule is effective 12/1/16 and increases the dollar threshold (to $47,476) for exemption from overtime, thus bringing more workers within its ambit. There is disagreement on whether this will have any effect on FLSA suits. The rule helps in one way: whereas now exemption depends on pay and the duties test, under the new rule one need only look to the amount of wages. If the threshold is not met, the person is exempt regardless of his or her job. So why might litigation actually increase? The post includes some ideas such as employers raising salaries to meet the threshold but not ensuring job duties are performed and employees working off the clock to make sure they get their work done.

TAKEAWAY: Employers must not only correctly classify workers as employees or independent contractors, but for the former must know whether or not they are exempt from overtime pay requirements.

Finally, the post yesterday 7/30/16 talked about FMLA notices and how a missing key piece of info kept an employee’s suit alive. John was a project construction manager at a Federal Reserve branch. His depression caused unscheduled work absences. He was eventually admitted to a hospital; despite doctors recommending a 30-day rehab program, he refused due to concerns about his job. John also turned in a form for short-term leave (which doubled as am FMLA leave request). He was approved for a month of leave but returned to work after a few days. He was assigned to work out of town. He drove to the location in a company car and checked into a hotel at company expense. But he didn’t report to the job. He was put on a PIP and after not meeting a goal, was discharged. He filed suit for FMLA interference, arguing that the company didn’t tell him about his job restoration rights (thereby allaying his fears about his job so he would’ve taken the time off). The employer’s proffered a defense (in the post), but the court let the case move forward because the FMLA notice the employer had sent him did not contain info on his job restoration rights.

TAKEAWAY: Make sure you inform employees of all rights they have under the FMLA (or other applicable laws) so they can make informed choices – and not have a simple basis to sue you.

Monday
Jul182016

ICYMI: Our Social Media Posts This Week – July 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.

In the post on Sunday 7/17/16 we talked about how hiring for culture fit becomes employment discrimination. People tend to hire and promote others like them – but that could be discriminatory. So what’s the new way employers try to get around their biases and predilections? By saying the person wasn’t a good culture fit. It is really another name for the same actions – taking employment action based on personal likes and dislikes. The post mentions just one way some managers apparently decide whether to hire someone: how fun the applicant would be to kill time with while waiting for a flight. More are in the post. One thing a study found is that “sharing a love of teamwork or a passion for pleasing clients” was not evidence of culture fit. Hmmm.

TAKEAWAY:  Employers must keep in mind that taking adverse action – including not hiring an applicant – for any reason that is not directly job related can result in legal liability for discrimination (most often on the basis of a protected characteristic). Just don’t go there.

The post on Monday 7/18/16 we noted that an Ex-lovers’ spat for harassment will stay in high school, not court. A teacher in NY filed suit for sex discrimination and retaliation, alleging the school district treated him unfairly after his ex-wife – who is also his supervisor – reported he was harassing her during the school day. The judge found nothing of which he complained was an adverse employment action under Title VII. SO, the background. John and Kristy were married co-workers; during the divorce proceedings, she filed administrative complaints and a police report and then got a TRO against him. The basis of her complaints is in the post. The judge found that John “suffered a series of minor indignities, which he found to be personally offensive, but which had no discernible impact on the material terms and conditions of his employment.” More of his allegations and the court’s analysis ae in the post. .  

TAKEAWAY: As always, make sure the facts support the allegations, whether in a complaint, charge or lawsuit.

In the post on Tuesday 7/19/16, we learned the Newark Port Authority automobile processing facility will pay $350,000 to settle an EEOC race discrimination suit. FAPS, Inc. is one of the country’s largest auto re-delivery service firms – the bigger they are, the harder they fall. Here the EEOC charged that FAPS engaged in a pattern or practice of discrimination against African-Americans in recruitment and hiring, refused to hire qualified African-Americans, and falsely told African-American applicants that no positions were available when they were. More details are in the post. FAPS will pay $350,000 plus provide other relief.

TAKEAWAY:  Yep, another example of making sure the facts support your argument – whether it be that a violation occurred or something in defense of such allegation.

The post on Wednesday 7/20/16 was about when tragedy strikes: how employers can assist after mass shootings and disasters. Timely (and sad) indeed. Some of the things touched on in the post include leave and other benefits for affected employees or their family members, FMLA, ADA, what the company should do if an employee died, what else an employer might consider, and more.

TAKEAWAY: Employers can help themselves, their employees and perhaps others in the face of a mass disaster while remaining within legal constraints.

In the post on Thursday 7/21/16 we read about a McDonald’s worker fired for being HIV-positive. Yep, ugh. The allegations in the suit filed by the EEOC include that the employee was fired after admitting to the GM that he had “an interest” in a co-worker and telling the co-worker that he was HIV-positive. Apparently a week prior to termination he’d been questioned by a manager and was told he might lose his job because the employer had previously fired an HIV-positive female employee.

TAKEAWAY: Employers, do not take adverse action against an employee (especially if based on a protected characteristic) unless it is clearly job-related. Just don’t do it.

The post on Friday 7/22/16 was about pre-offer background checks: employer beware. May an employer conduct a background check on an applicant prior to extending an offer of employment (even if it usually does the background checks post-offer)? While legal, it’s probably not a good idea for several reasons, including that it deviates from normal practice (and may form the basis for a later suit) and may reveal information about a protected characteristic that is not job related (and, again, may form the basis for a later suit). Other reasons are in the post.  

TAKEAWAY: Background checks on applicants can be legal if done properly, but the timing is also important.

Finally, the post yesterday 7/23/16 told us 15 tactics to prevent FMLA abuse. So what are these proactive steps employers can take? Training managers. Using the rolling method to track leave. Requiring concurrent leave. Treating people evenly. And 10 more in the post.

TAKEAWAY:  Employers must know how to respond when employees ask for FMLA leave and also how to (hopefully) prevent that leave from being abused. That way, everyone is happy.

Monday
Jul112016

ICYMI: Our Social Media Posts This Week – July 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.

In the post on Sunday 7/10/16, we talked about Wearables at work: 9 security steps worth taking (and noted the last few are super-important). This post is relevant to everyone. Tip #1: get used to it. BYOD is everywhere and you need to deal with it. Tip #2: consider the ecosystem. No this doesn’t mean the rainforests of Peru. Your office’s cloud or other system. The other tips are in the post; read them now or re-read them if you already read the post.

TAKEAWAY: Technology moves at an alarmingly quick pace – you need to be in the race and controlling what happens to, from and related to your office.

The post on Monday 7/11/16 was Hot hot: termination for conduct caused by side effects of prescription medication not disability discrimination. Lisa worked for Chipotle (yes, now you see the pun!) as a crew member; she had a long medical history. In April 2013 she told her manager she took medication and mentioned the condition, but not any side effects or other ramifications of the medication. The following Month she got new meds and took a few days off. She worked for 4 days and then arrived in what seemed like a drunken state. She was sent home and fired later that day for violating the Drug & Alcohol Policy (details of which are in the post). Lisa claimed disability discrimination along with FMLA interference and retaliation. The latter were dismissed (the reason is in the post). She claimed that firing her for the medication’s side effects was akin to firing her for her disability. The court analyzed the situation, referring to a US Supreme Court decision, and found the termination legal as being from application of a neutral policy. Details of the analysis are in the post.

TAKEAWAY: Facially neutral policies can sometimes be found to be discriminatory, but this one was not – even though it adversely affected a person otherwise protected as a disabled employee.

In the post on Tuesday 7/12/16 talked about telecommuting as an ADA accommodation – whether or not the employer likes it. Remember, the employer does not have to create a new job, but it must consider if presence at the job site is an essential function of the existing job when faced with a request to telecommute as an accommodation.

TAKEAWAY: It is a good idea to consider location and whether or not job-site presence is an essential function of the job – if so, note it on the job description.

The post on Wednesday 7/13/16 was about a trans employee and ACLU suing a healthcare provider for insurance discrimination (based on sex). Joe worked as an operating room nurse and began transitioning to a woman about a year ago. Prior to his first surgery, he realized his insurance policy excluded transgender-related treatment. He filed a charge with the EEOC, alleging discrimination based on sex. The employer denied the allegations (its reasoning is in the post). The ACLU didn’t buy it either and helped him sue.

TAKEAWAY: Trans employees may be protected by local, state or federal law or order; know what is required in your jurisdiction for your business.

In the post on Thursday 7/14/16, we talked about Security: 6 steps to protect your office from rogue or careless employees. While this was directed to law firms, it applies equally in most, if not all, industries – BYOD crosses all lines. So what are the tips? First, have a policy (and make sure employees read and sign it). Second, turn on email archiving. This preserves (saves) all email even if the user deleted it. Third, disable accounts for inactive or former employees. Use the checklist in the post to aid in this step.  The other 3 steps are in the post.

TAKEAWAY: Know how employees are accessing your company’s data – and control it to make sure there is no harm done by that access.

The post on Friday 7/15/16 was a reminder that the EEOC increased fines 150% for employers violating the notice posting requirements. This final rule was published and became effective July 5, 2016. Notices are required relative to Title VII, the ADA, and GINA. The maximum penalty rose from $210 per violation to $525. To see which employers are covered by the posting requirement, go to the post.

TAKEAWAY: If you are a covered employer, make sure you are properly posted to avoid being fined. It can get costly. And that’s even before the lack of notice results in harm to (or alleged by) an employee.

Finally, in the post yesterday 7/16/16 we learned Enterprise Rent-A-Car discriminated against black applicants (or so DOL has alleged). The complaint says that Enterprise favored white applicants during entry-level screening for management trainee positions (and also did not maintain proper records). Mediation failed so the suit was filed. DOL wants back pay or that Enterprise be barred from federal contract participation. 560 applications by blacks were reviewed and it appeared that white applicants were twice as likely to be hired. The company disputes the allegations.

TAKEAWAY: Don’t just talk the talk about diversity in hiring; make sure you walk the walk or you too might be on the wrong end of a lawsuit.

Wednesday
Jul062016

ICYMI: Our Social Media Posts This Week – July 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.

In the post on Sunday 7/3/16 we followed-up a prior post and noted the US Soccer Federation defends against gender discrimination & equal pay allegations. Now remember that although this is playing out in the media, it is occurring at the EEOC. The Federation asked the EEOC to dismiss the charges, saying the pay disparity is based on factors other than gender, including that there are collective bargaining agreements in place and that US Soccer supplements the female players’ salaries. More details on the defenses are in the post.                                          

TAKEAWAY: There is usually more than one side to a suit and this case is no different. While it plays out, employers should remember that any disparity in pay between men and women should be based on (and provable by) a valid, legal basis other than gender.

The posts on Monday 7/4/16, here and here, wished you a Happy Independence Day and asked that while you enjoy yourself, you remember from where our freedoms came.

TAKEAWAY: Enjoy our holidays, but remember why we have them.

In the post on Tuesday 7/5/16, we noted a suit claiming failure to accommodate a FMLA leave request & failure to advise of FMLA rights. Oops?!? This case came out of Western PA. The suit was filed in early May alleging that in August 2015, Joseph had headaches and he had to miss work. The company president allegedly told him she’d take care of his staff while he was out sick. Then, in direct contrast, the president started to harass him for not doing the things she said she’d do in his absence. After requesting but not being approved for FMLA leave, in September he learned through others that he’d been terminated. More details are in the post.

TAKEAWAY:  There is probably more to this than appears in the quick article; if not then it seems a no-brainer. However, to prevent your company from being the next defendant, make sure to respond properly to all requests for FMLA leave and not take adverse action against anyone to whom the FMLA might apply.

The post on Wednesday 7/6/16 taught that Prime Inc. will pay $3M to settle a sex discrimination suit. Ouch is right. Prime is the 20th largest carrier in the US, so one would think it would know how to comply with applicable law. Apparently not. The EEOC sued, alleging that Prime’s policy that female drivers could only be trained by female trainers acted to deny women driving jobs based on gender. While Prime agreed to settle, it denied the allegations and said that at least some in the trucking industry were behind the policy (which it discontinued). Go to the post for more details.

TAKEAWAY: While the policy was well-meant – to prevent male trainers from sexually harassing female truck operators – it was still based on gender and therefore violated the law. Employers’ good intentions will not necessarily win the day.

In the post on Thursday 7/7/16 we asked should you pay off your mortgage early (and things to consider). The question matters even for those not close to retirement who, with low interest rates, can continue working and have more time to build their retirement funds. Each person should look at his/her financial goals and current interest rate.

TAKEAWAY: The media is replete with advice to pay off one’s mortgage as quickly as possible, but that is not always the best advice for you. Look at your unique situation and determine what’s best for you.

The post on Friday 7/8/16 was about an IT admin facing felony charges for deleting files under the hacking law. Employers take heed! How broad are the hacking laws? IT administrator Michael found out. He deleted files before leaving his job in 2011 and was sued for violating the Computer Fraud and Abuse Act (CFAA). That law was enacted in 1986 to prevent (and enable prosecution of) malicious hacking. He was not charged with unauthorized access since, as IT admin, he had full access. Instead, he was charged with unauthorized damages based on the employer’s allegations that his file deletions were malicious and resulted in over $5K damages. More details (including him fleeing to Brazil and the US seizing some assets) are in the post.

TAKEAWAY: This case might set precedent – dangerous for employees, possibly a boon to employers. We will have to see how it plays out, but in the meantime all should be careful of actions that might possibly be connected to this law.

Finally, the post yesterday 7/9/16 noted that employers and applicants need to know what job interview questions are out of bounds. I think everyone knows that “how old are you” is an inappropriate (and illegal) question. The post mentions other areas that should not be the subject of interview questions – unless they are directly job-related (which most protected characteristics are not). One example in the post is not to ask if the applicant has children or family obligations when the intent is to find out if the applicant is available to work outside of normal business/work hours; instead, just ask what is intended.

TAKEAWAY:  Employers usually have the company’s best interests in mind, but sometimes step into quicksand with some questions – avoid that by writing down questions and sticking to them in the interview.

Monday
Jun272016

ICYMI: Our Social Media Posts This Week – Jun. 26 - Jul. 2, 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 6/26/16 we talked about a restaurant forced to rehire an employee blabbing about food quality. So who’s in charge now? This is another case under the NLRA applied to a non-union employee. So if you still think it doesn’t apply to you, please get your head out of the sand. The background, in summary, is as follows: a union lost an election. One of the supporters then asked a company executive for paid sick leave for all employees (which was construed as protected concerted activity). More employees then got into the act, making posters (see the post for the contents which, I have to admit, sounds creative) and putting them in neighborhoods around Jimmy John’s locations. Management was less than happy; they removed the signs, fired the 6 employees it thought were most responsible and disciplined 3 others. The federal court ruled in favor of the employees’ legal protections, saying, in part, (1) the posters had a connection to the paid sick leave issue, (2) the posters had a kernel of truth based on company policy, (3) and Jimmy John’s sandwiches had previously suffered a norovirus outbreak, thus again connecting them to the paid sick leave issue. Oh, but that’s not all. The post details the court’s dissenting opinion and more bases on which the majority found NLRA violations while essentially shrugging off what were argued to be comments by disloyal employees warranting discharge.

TAKEAWAY: If you have not already, heed this advice now: know your obligations as an employer under the NLRA and make sure any adverse action you take against an employee does not run afoul of that law as its interpretation and reach is broadened more and more.

The post on Monday 6/27/16 was about an EEOC consent decree highlight: Employers must prevent ADA claims – or pay the consequences. These are public so the employers cannot escape others pointing fingers at them. In the first case, a paper manufacturing company will pay $187,500 plus have training for plant managers and HR staff on disability discrimination and reasonable accommodation under the ADA. The second case provides that the employer will pay $33,000 plus train managers on non-discrimination and reasonable accommodation. Seeing a trend yet? The third case is in the post but involves a bank.

TAKEAWAY: Make sure your company has a valid, legal, current policies on non-discrimination, EEO, and reasonable accommodation (including leaves) and train employees, especially HR, managers and supervisors) on the policies.

In the post on Tuesday 6/28/16 we learned RockTenn to pay $187,500 to settle EEOC disability discrimination suit. This post actually provided roe detail on the first consent decree mentioned in yesterday’s post. So what happened? Glen began to work for this paper and packaging manufacturer in October 2010 as HR manager. A few months later, he had open heart surgery and was on short-term leave until April 2011. In early March he was cleared early to return for partial days and told the employer he’d do so effective March 21. The employer terminated him March 10th. Yep, confusing. In 2014 the EEOC filed suit for disability discrimination under the ADA and this consent decree now follows.

TAKEAWAY:  Don’t forget that reasonable accommodation under the ADA can take many forms, including a leave of absence.

The post on Wednesday 6/29/16 detailed victory for an Iraq war veteran. The length of the saga is detailed in the first sentence of the post: “He fought for the country, then fought for his state job and now, after eight long years, two gubernatorial administrations, two attorneys general and hundreds of thousands of dollars in legal fees, the battle is over – and he won.” The issue was discrimination in his civilian job because of his military service. The state Supreme Court ruled that suit could be brought under USERRA even as against a state employer – thus affirming there is no sovereign immunity. The background facts are in the post and include deployment to Iraq and Kuwait in 2005, returning in 2007. The suit was filed in 2008. If other states follow this lead, this could be an important casse for veterans.

TAKEAWAY: There are so many veterans in civilian jobs – know the law, especially that it prohibits workplace discrimination or retaliation and gives veterans the right to return to civilian jobs with the same pay, benefits and status had they not bene on active duty.

In the post on Thursday 6/30/16 we talked about a woman suing a movie theater chain in PA for allegedly violating her FMLA rights. Now showing on a big screen near you. (Don’t worry, I won’t be switching careers any time soon.) Kim filed suit in federal court in Harrisburg alleging violations of the FMLA, ADA and PHRA. The allegations include that she started to work for the defendant’s predecessor in 2002 and continued in the same position when the defendant bought the company. She began to take time off to care for a parent in 2014. The company did not tell her about FMLA leave but rather suggested she use vacation time. Upon her return, the company told her she could return at a lower pay rate and gave her one hour to decide on the offer. More in the post.

TAKEAWAY: This case is still pending; the employer has denied the allegations and a mediation conference is scheduled for 8/16/16. Stay tuned. In the meantime, ensure your company follows applicable law relative to leave and return from leave under the FMLA, ADA and PHRA.

The post on Friday 7/1/16 noted 29 former employees sue General Mills claiming age discrimination. Holy Cheerios! The plaintiff employees were all terminated in late 2014 or early 2015 during a restructuring. The suit alleges that employees age 40 and older were more than 3 times as likely to be terminated as younger employees. Statistical evidence cited by the plaintiffs appears to bear out their claims. See the post for the numbers. GM has denied the allegations.

TAKEAWAY: The mere fact that an older employee is terminated and a younger employee is not does not necessarily give rise to a legal claim, but the employee should have valid legal support for the termination in case a charge or suit is filed.

Finally, the post yesterday 7/2/16 talked of a blind man claiming McDonald’s violated the ADA by restricting drive-in customers. Yes, a suit against Ronald’s house. I know you are wondering what happened … Scott is blind. He apparently likes to use McDonald’s drive-up window late at night as a pedestrian. He says when he tried to do that in August 2015, he was laughed at and refused service. He filed suit under the ADA. So who’s laughing now?

TAKEAWAY:  Not only is this bad publicity for the employer, but it is never good business to violate the law (if indeed it did here). To prevent your company’s name from being listed as a plaintiff in a suit, know the law and apply it properly.