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

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

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

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – Oct. 30 - Nov. 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 10/30/16 we talked about a banker winning $3.5M in a sexual orientation suit. Big money! Before he came out to his wife, he was the majority stockholder in a bank. Through the divorce, he gave her enough stock so he no longer had a controlling interest. Then … they supposedly worked to oust him for being gay. The judge agreed. One reason was an email from his sister to his children saying "Your dad has lived a lie for years and years and it has spilled over into the lives of his family causing a lot of heartache." The comment by another stockholder is in the post. He has to repay loans, but will receive $798,733 in back pay, $25,000 for emotional distress, and at least $100,000 per year (to be increased for inflation) for 21 years. Big bucks indeed.

TAKEAWAY: Protected characteristics usually have no bearing on the person's ability to do their job – so don't take adverse action against them based on that characteristic. It can end up costing you a lot in the long run.

The posts on Monday 10/31/16, here and here, simply wished you a Happy Halloween!  

TAKEAWAY: Sometimes you have to take time out for the fun things.

In the post on Tuesday 11/1/16 (yes, November already!) we noted the DOL is investigating Wells Fargo for potential overtime violations (because it needs more trouble). The investigation also covers whistleblower retaliation. The overtime was worked to achieve sales quotas (those things that have been in the news lately relative to Wells Fargo) and the retaliation relates to people who expressed concerns about sales tactics related to the quotas. Ugh. Just ugh.  

TAKEAWAY: Don't make employees do anything illegal. And certainly don't take adverse action against them when they complain about being asked to take or taking the illegal action!

The post on Wednesday 11/2/16 noted yessirree, that's one expensive bottle of orange juice. Huh? In sum, denial of a $1.69 orange juice cost Dollar General $277,565 in back pay and damages. Linda is an insulin-dependent diabetic. She regularly self-injected while on break and stored insulin and OJ in the break room. She asked to keep some OJ near her register since attacks are unpredictable; her request was denied as against policy. Twice when she had attacks she drank OJ to avert the emergencies and both paid for them and reported the incidents to her supervisor afterward. An audit turned up her technical policy violation and she was fired. After the administrative process, a jury awarded her the noted damages. The post contains more detail.

TAKEAWAY: Uniform enforcement of policies is a goal, but not in the face of contrary law. Train your managers accordingly.

In the post on Thursday 11/3/16 we told you to establish a process when terminating employees. What's a (if not the) key? Documentation. And don't tell the employee it's not his or her fault. Have a process and follow it. Other tips are in the post. Using some or all in a termination situation helps give the employer (a) defense(s) in the case of suit.

TAKEAWAY: Don't leave your company open to suit or even damages; have a process to follow for termination and follow it.

The post on Friday 11/4/16 told us McDonald's owes a fired trans teen an apology – and an explanation. While this didn't happen in the US, it could have, with the same outcome. The trans teen, Kenny, was welcomed by his football team. A mere 2 days later, McDonald's fired him. Kenny gave one reasons for the termination; the owner-operator denied it (see the post) but won't give the reason.

TAKEAWAY: While you may not need a reason to terminate someone's employment, there usually will be one (or you'd not move to terminate, right?). So tell them the real reason.

Finally, the post yesterday 11/5/16 (and here) was a timely reminder to turn back your clock one hour. Yes, standard time returns. This will mean darkness for many going to work and again on the return. But the winter solstice is in December and the days start to get longer again at that time.

TAKEAWAY: As the year turns, here it is the clock that changes.


ICYMI: Our Social Media Posts This Week – Oct. 23 - 29, 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 10/23/16 we talked about firing is ok for cheating discovered curing FMLA leave. Really. FMLA leave scares employers and makes them think their hands are tied for disciplinary purposes; that is not always true. In this case, Kimberly was an administrative assistant, mostly working on a computer. Her boss thought she was cheating on her work hours. When she returned from FMLA leave, he kept closer tabs on her work hours. He called her on it at some point and she denied it. She got fired and sued for FMLA retaliation. A jury ruled in her favor but an appeals court reversed based on what the company found while she was on leave. More details are in the post.

TAKEAWAY: Being on an approved FMLA leave doesn't immunize an employee form action that would be taken against anyone doing (or not going) the same thing. Remember that.

The post on Monday 10/24/16 asked whether FMLA leave weeks should be counted toward vacation benefits? This can make quite a difference to the employee and employer. The easy answer is "it depends". ON what the policy requires – and then treat those on FMLA leave the same way. The post gives more detail, but if you allow vacation accrual only based on hours worked, then someone on FMLA leave would not accrue vacation time.

TAKEAWAY: Make sure to follow the FMLA but treat those on approved leave the same as all other employees.

In the post on Tuesday 10/25/16 we noted a lesbian trooper sued MD police over a bias complaint. State police. Law enforcement. Laws. Get where I'm headed? This suit accuses supervisors and co-workers of discrimination, retaliation and a HWE based on sexual orientation and gender. Chelsea alleges it began 2 months after she was assigned to the Cumberland Barracks where she was the only female and only homosexual trooper. One allegation is that she was assigned more work than other troopers. Others, along with more background, are in the post. She received a letter that corrective action would be taken, but none was. In fact, jokes, comments and jobs got worse after she filed her complaint.

TAKEAWAY: Here, because state law covers it, she did not have to allege that Title VII covers sexual orientation. Suits in other states, like PA, may have to include that claim.

The post on Wednesday 10/26/16 suggests you base layoff decisions on previous job evaluations (or some other objective basis). In this case, Farrell, an African-American, had worked at the company for well over 20 years when he got a new boss who began criticizing him, making racial comments, and praising his co-worker. He stuck it out for 3 years. Then, because he had poor evals, he was part of a company-wide RIF. He sued. The court ruled against him – see the post for the reasoning.

TAKEAWAY: Make sure any adverse decision has objective, legal support – in case you need to defend a discrimination charge or suit.

In the post on Thursday 10/27/16 we talked about what every small business owner should know about the ADA. This federal law prohibits discrimination against individuals with disabilities and requires reasonable accommodation. Most people see this in the employment context, but the law is broader than that. It also applies to barriers to access to places of public accommodation – that means doors, parking spaces, and more. Know what you have to do as the owner of a public business. The post gives you some helpful pointers.

TAKEAWAY: Don't wait until suit is filed to find out what your obligations are under the ADA (and other state or federal laws) – talk to an employment law attorney soon.

The post on Friday 10/28/16 was timely: Hillary or The Donald: a voting guide for employers. I won't repeat it, as you can read the post for yourself, but it compares the presidential candidates on labor and employment issues given their experience and backgrounds. Know what you are voting for when you decide for whom to pull that lever on Nov. 8th.

TAKEAWAY: Employers are voters too – know what candidates have done in the past, what they stand for now, and what they are promising for the future before you enter the voting booth.

Finally, the post yesterday 10/29/16 was about a PA court affirming a punitive damage award for breach of a non-compete. Everyone should pay attention to this. This was a recent appellate court decision in PA and a reminder (or wake-up call) to businesses hiring employees subject to non-compete agreements. Here the individual defendants had valid non-solicit agreements in place when they contacted a recruiter. For 6 months they planned their move, intending to solicit and get business form their current employer's clients. They did some nasty things – see the post. Upon the end of their employment, they immediately began working for the new employer and contacted their then-former employer's clients. They didn't get all the business, but some clients stopped using the prior employer. That company then filed suit against the individuals and their new employer. The trial court awarded the former employer $2.4M in compensatory damages and $4.5M in punitive damages. You read that right. On appeal of the punitives award, the court affirmed; its reasoning is in the post.  

TAKEAWAY: Conduct business as you choose, but when hiring someone who is subject to a non-compete, non-solicit, or non-disclosure agreement, make sure to get it reviewed by legal counsel so you know what that person can and cannot do for your business.


ICYMI: Our Social Media Posts This Week – Oct. 16-22, 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 10/16/16 we talked about the presidential candidates' paid family leave plans. This might be of interest to you before Election Day. Trump's proposal would give new mothers 6 weeks of leave with some payment through unemployment plus child care tax credits. However, the proposal applies only to women who have given birth. What it leaves out (or does not address) is in the post. Clinton's proposal is broader: any family member would get up to 12 weeks' leave with at least 2/3 of their salary paid. The plan would also include care for sick relatives. The post explains how she proposes paying for that.

TAKEAWAY: Know before you vote – but do vote on Election Day, Tuesday November 8, 2016.

The post on Monday 10/17/16 was about an EEOC lawsuit accusing Wynn Law Vegas of discriminating against a disabled veteran. The suit was filed last month as a result of alleged discrimination against an Army veteran diagnosed with PTSD. The complaint alleges the Wynn refused to accommodate the disability for a security bike officer position by requiring submission of burdensome doctor's notes. That, according to the complaint, made the stress even worse (and violated the ADA). More details are in the post.

TAKEAWAY: Employers have an obligation to participate in the interactive accommodation process. They are permitted to request certain medical information, but only to the extent necessary for the process. Employers should not try to bully employees under the guise of accommodation.

In the post on Tuesday 10/18/16 we reported that employees don't have the right to wear dreadlocks (per a recent federal court ruling). The decision came out in mid-September. The EEOC had filed suit on behalf of Chastity Jones, a black job applicant. Chastity applied on-line for a CSR position that entailed no public contact. She was brought in for an interview and showed up professionally dressed with short dreadlocks. After the interview, Chastity and others applicants were told by a Caucasian employee that they were hired. Nothing was said about Chastity's hair. There was a brief meeting about a required lab test and then it hit. The woman said the employer couldn't hire Chastity with dreadlocks. The reason given is in the post. When Chastity refused to cut her dreadlocks, the offer of employment was rescinded becasue she would have been in violation of the grooming policy. The company's race-neutral grooming policy is mentioned in the post. The suit alleged race discrimination. The trial court dismissed the case, finding no plausible allegation of intentional race discrimination. The EEOC appealed. The appeals court affirmed on several bases: the EEOC's combining of disparate impact and disparate treatment, precedent regarding the prohibition of discrimination on the basis of immutable traits, and two other bases in the post. The ruling comes down to Title VII dealing with immutable characteristics like race, color and natural origin and a hairstyle, "… even one more closely association with a particular ethnic group, [being] a mutable characteristic." The post gives much more detail on the various bases on which the court ruled against the EEOC.

TAKEAWAY: When it comes to race and natural origin, things are not (literally) black and white. Often a judicial interpretation is required; here it analyzed the situation and determined there was no discrimination. Before having your company dragged through the courts, consult an employment law attorney as to the appropriate course of action.

The post on Wednesday 10/19/16 noted that an age-related comment doesn't always show bias. Huh? It depends … on the context among other things. In the case in the post, Dana was over 40 and refused an initial severance offer. A second offer was made to her and a supervisor said Dana should consider accepting because of her age. She didn't accept and was discharged, then sued for age discrimination. The court ruled against her; its analysis is in the post.

TAKEAWAY: The mere mention of age in the workplace often throws fear into an employer, but it need not as long as age is not being used in a discriminatory manner. That, however, is part of the training employees, especially managerial-level, should get.

In the post on Thursday 10/20/16 we talked about the good and bad of homeowner and condo associations (and suggested you contact us with questions). So what were some of the items mentioned? Membership in the association is required and automatic upon buying a unit in the development. A Board governs the association and enforces the restrictive covenants and bylaws. It is important to know what those documents say before buying. Examples of why are in the post. Associations can be good if properly performing their role of enforcement – that protects property values and often maintain amenities like pools and clubhouses and landscaping. Of course the cost for all of that is shared among the owners so knowing the current and proposed budgets is also a good idea.  

TAKEAWAY: It sounds trite, but it's good advice: know before you buy. A house is a big financial commitment, so when it is located in a condominium or planned community, it is especially important to obtain and read all relevant documents; they are binding legal documents.

The post on Friday 10/21/16 noted that a security firm is to pay $115,000 to settle an EEOC retaliation suit (and asked how safe that makes you feel). Guardsmark is apparently a VERY large security company, but not so large that it can discriminate with impunity. It has agreed to pay $115,000 (plus other relief) to settle an EEOC case. What was the background? A security guard used security cameras to zoom in on a woman's private parts. The subject employee told the woman and she filed an internal complaint for sexual harassment. Good, right? Yes, Except that the next step was the company firing the employee after learning about the woman's complaint. More details are in the post.

TAKEAWAY: If there is a complaint about potentially illegal action, don't retaliate against anyone as a result of the complaint. Rather, look it as a chance to halt any (more) liability and take appropriate action.

Finally, the post yesterday 10/22/16 told us about another settlement: Savannah River Nuclear Solutions for a discrimination suit. This one sticks out because the settlement comes only a few months after the release by the GAO of a scathing report about the company's treatment of employees. Here, Victoria Bradner had filed suit in October 2015 alleging discrimination on the basis of race (she is Hispanic). Victoria was a long-time employee who was terminated in January 2015. But it started before that. She was going through a divorce so a male co-worker brought her a gift; it was in the storage room and she went there to look at it. It was a specially-shaped cake; the post tells you what shape. Victoria left the cake in the storage area where her supervisor and another employee went to look at it. Shortly after, when Victoria expressed interest in an open job that would be a promotion, she was investigated relative to the cake (and other things). She was discharged and a younger, less-experienced Caucasian female promoted into the position. This was on the heels of a conciliation agreement with DOL in August 2015 alleging a history of discrimination against women and black employees from at least 2010; the employer paid almost $234,000 under that agreement. The post gives details on even more suits and charges filed against and settled by the same employer.

TAKEAWAY: If an employer gets its hand slapped once for alleged illegal conduct, it should learn the lesson and realize the government will be watching even closer. A second, third or fourth alleged illegal action is even worse.


ICYMI: Our Social Media Posts This Week – Oct. 9 - 15, 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 10/9/16 we asked did the hospital fire the employee due to age? A federal lawsuit filed by the EEOC says yes. The suit alleges that several employees, including 59-year-old Katherine, were field doe to age or forced to quit due to a HWE, all of which violated the ADEA. The complaint includes comments made by the chief nursing officer against Katherine, including referring to her as an "old b____,", telling her a younger nurse could "dance around the older nurses," and more (yes there were more!) in the post. The hospital denies the allegations and alludes to discharge of an employee for, among other things, violation of HIPAA.

TAKEAWAY: We've said it before and will again: before taking adverse action against an employee in a protected class, be sure there is a valid, legal reason for the action. You may need to show that support if sued.

The post on Monday 10/10/16 noted Chipotle is again under fire, this time for alleged race discrimination. An African-American employee complained that Latino co-workers were given preferential treatment and then she was fired – so say her complaint against Chipotle. Sheqweshu filed suit in CA state court alleging race discrimination, retaliation, wrongful termination, and other claims. The suit alleges that she started working there in June 2012 and was promoted several times. Things changed in December 2015 when she returned from maternity leave – the new Latina district manager and 2 other Latino managers gave Latino workers better shifts and assigned Shaqweshu and other African-American employees to non-preferred shifts. The manager's comment when Shaqweshu spoke to him about it is in the post (and is not a good thing for management to say). The saga continued when the manager changed nothing, Shaqweshu spoke to the District Manager (who thereafter suspended her without reason), and then the discharge came in January 2016.

TAKEAWAY: We don't know if there's any meat on these bones, but any employer taking adverse action - especially when it impacts on persons in a protected class – should ensure that there is a valid, legal basis for the action.

In the post on Tuesday 10/11/16 we highlighted a local case where a man claims Genco Distributions violated the FMLA. The suit was filed May 2016 in the federal court in Harrisburg with allegations of ADA Reg violations, retaliation and wrongful termination in violation of the FMLA and PHRA. Francisco has cervical radiculopathy; he alleges that Genco discriminated against him as a result of the disability and retaliated too – by giving erroneous information to Wal-Mart as a reference after he applied for a job there. More background details are in the post.

TAKEAWAY: Whenever an employee hints of something that might require accommodation under the ADA, the employer should begin the interactive accommodation process – there are no magic words the employee must use or documents the employee must provide prior to the start of the process.

The post on Wednesday 10/12/16 asked are wild sex comments are enough to prove harassment? Comments between co-workers, a complaint to a superior, and further harassment do not necessarily rise to the level of legal harassment (at least in this situation). The first text sent by David to Karen, a co-worker on vacation; the text said Karen should "just have fun and wild sex". The contents of the second text are in the post. After being reprimanded, David allegedly treated Karen rudely, threw a chart at her, and (as lead nurse) sometimes denied her lunch breaks and assigned her more difficult work. The court said the texts were not sexual harassment because they didn't show an "anti-female animus or seek sex with Karen. Further, David's later actions were not actionable as HWE because they were a result of her reporting his texts, not her being a female. Further findings by the court (including a possible claim that Karen left out of her suit) are in the post. The dissent viewed the same facts in an opposite way.

TAKEAWAY: Don't wait for a court to decide whether an employee's actions are harassment or not – stop any such action before it starts by proper training of and control over employees.

In the post on Thursday 10/13/16 we cautioned you to think twice before suing your (former) employer. Why? Several reasons. One: the employer probably didn't make the (adverse) decision lightly. You may not like what happened, but chances are pretty good that the employer doesn’t either. Two: the employer probably did not discriminate against you. While it does exist, there is much less discrimination in the workplace than people think, and certainly every adverse action is not a result of discrimination. Three other reasons are in the post.

TAKEAWAY: Employees should know their rights and feel free to consult an employ6ment law attorney or take administrative or legal action they feel appropriate, but they should keep in mind that there is probably no pot of gold at the end of the (non-existent) rainbow for them.

In keeping with the apparent theme of the week, the post on Friday 10/14/16 noted that sexual harassment goes digital. Yes, Gretchen Carlson got a $20M settlement from FOX News. Yes, sexual harassment continues to exist in the workplace. And yes, sexual harassment now takes more and different forms – electronic and digital – than it used to. Email, texts messages, IMs, and socmedia all increase the ability of employees to interact – and harass each other, with the employer being held liable. The post talks about some things an employer can do relative to harassment through electronic communications, including ensuring the harassment policy includes electronic communications and online and socmedia activities and expressly prohibiting sexually explicit communications on company technology.

TAKEAWAY: Employers must take steps to prevent employees from being harassed; that helps protect employees and lowers the risk of liability for the employer.

Finally, the post yesterday 10/15/16 talked about the fault line running under "no fault" attendance policies (and what happens under PA law). Often an attendance policy is n-fault, meaning points are given or other action taken regardless of the intention of the absent employee. Sounds easy and uniform, right? It is, except when there are exceptions under applicable law – such as the ADA and FMLA and others. And, as noted in the post, rewards and bonuses cannot take into account statutorily-required and allowed absences. The post also mentions a few things employers can do to protect themselves.

TAKEAWAY: Uniformity is great, except when the law requires otherwise; be careful enforcing no-fault attendance policies so as not to run afoul of laws that prevent that enforcement. Talk to an employment law attorney to be sure.


ICYMI: Our Social Media Posts This Week – Oct. 2-8, 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 10/2/16 we talked about labor and employment tips for start-up and existing businesses. Let's dive right in: (1) Know the difference between employees and contractors – properly classify. (2) Pay employees properly. (3) Pay interns. The other tips are in the post.

TAKEAWAY: Protect the company you have or will work hard to build – know and comply with the various applicable laws.

The post on Monday 10/3/16 gave us the Top 7 ADA developments you need to know about. So let's get right to them: (1) EEOC issued new enforcement guidance on retaliation. (See our other post on this). (2) Federal enforcement of associational discrimination. If you don't understand this, contact an employment law attorney. (3) Yes you can refuse to hire someone because they are too fat – if they don't meet the requirements for ADA protection. The other tips are in the post.

TAKEAWAY: There are a myriad of ways the ADA can be violated – intentionally or otherwise. Make sure you know the law and have an attorney on call to be proactive.

In the post on Tuesday 10/4/16 we said leave denied? Yeah so is employee's lawsuit. Just because something bad happened does not mean that there was discrimination. Yes, shocking. (hahaha). Here, Martin, a 75-year-old mailman, alleged age discrimination when his supervisor didn’t approve a leave request for a specific day. The complaint was dismissed internally and by the EEOC. He then filed suit and earned a dismissal from the court on the basis that the single day of denied leave did not constitute an adverse action. The appeal was also quickly dismissed. More details are in the post.

TAKEAWAY: Even though an employee's allegations (or suit) might be frivolous or groundless, you must still investigate fully (to earn that dismissal if suit comes).  

The post on Wednesday 10/5/16 told us to avoid becoming friends with your employees. Why? The post gives more detail, but because they stop being an employee and instead are your friend.  It makes decisions that much harder (or impossible) to make. It also all but ensures favoritism of that person and lowering of morale (at best) by other employees. 

TAKEAWAY: Let's just say it again: avoid becoming friends with your employees to help avoid future legal entanglements. 

In the post on Thursday 10/6/16 we noted that a simple list of job duties could have saved company in ADA bias suit. Yes this is another Wal-Mart story from which we can all take heed. Wal-Mart paid $90,000 to settle a suit for disability discrimination (after firing an intellectually-disabled employee). William started working at Wal-Mart in 1994; he needed a written list of daily tasks. Wal-Mart had done that for a long time, but decided to stop at some point. William then could not perform as well; Wal-Mart fired him for not performing. The EEOC sued.

TAKEAWAY: Take your obligations under the ADA seriously, especially when it's a simple thing like providing a written list of duties. It can be costly not to do so.

The post on Friday 10/7/16 noted that US & PA DOL partner on worker misclassification – now it's even more important to get it right. The 2 entities will now share information and conduct joint investigations relative to independent contractor misclassification. Other states have the same arrangement with DOL. This just means more eyes will be on how you classify (and pay) those providing services to or on behalf of your business. Read the post for more info.

TAKEAWAY: Classification of employees has always been important – and the Department of Labor (and possibly IRS) would take action if there was a problem. Now you have more eyes on you.

Finally, the post yesterday 10/8/16 told us that schools will pay $50,000 to settle an equal pay discrimination case. The settlement comes between the EEOC and a school district in Minneapolis (which disagrees with the allegations in the suit). However, since, according to the District, it found the employee worked above the job description, higher way was warranted, not that there was any discrimination. The underlying case alleged that the female employee was paid as a custodial aide and not custodian. More details are in the post.

TAKEAWAY: Whether it is based on discrimination or misclassification, businesses that don't properly pay employees will get zinged. Period.


ICYMI: Our Social Media Posts This Week – Sept. 25 - Oct. 1, 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 9/25/16 we reminded you to watch out for witness bias in workplace investigations. Make sure those giving statements or otherwise participating have no axe to grind and don't try to influence adverse decisions against an employee as a result of that axe. Actions like that could land the employer in hot water. See the analysis in the post as to how it works.

TAKEAWAY: Make sure any adverse action rests on legitimate, verified facts, especially if the person against whom the action is being taken is part of a protected demographic.

The post on Monday 9/26/16 talked about Motel 6 being sued by the EEOC for pregnancy discrimination. (I guess the light wasn't left on.)  What happened? Simple (but illegal): the employer allegedly placed the pregnant employee on leave solely due to her pregnancy. More background is in the post.

TAKEAWAY: Don't put someone on leave or otherwise modify their schedule (or take other adverse action) just because you think they need some type of accommodation – wait for him or her to ask.

In the post on Tuesday 9/27/16, we asked: is comp time in lieu of overtime legal? The simple answer is no (at least in the private sector). Overtime work must be paid for. 

TAKEAWAY: Know what hours you must pay employees for working and what alternatives there might be to pay. Consult an employment law attorney if needed.

The post on Wednesday 9/28/16 noted the EEOC has issued retaliation guidance, including ADA interference. One of the most important things to know is that this Guidance broadens the conduct that might be deemed retaliatory, as well as the causation concept. The EEOC also issued a Q&A document and small business fact sheet – the links to both are in the post. The Guidance addresses retaliation under various statutes, not just the ADA, and also interference under the ADA. The Guidance also mentions some situations where lower courts have issued conflicting rulings and interpretations and the EEOC's interpretation also differs. They are in the post.

TAKEAWAY: The EEOC may not be the final word, but courts do give its Guidance deference.

In the post on Thursday 9/29/16, we noted that new managers must learn to play by the rules and not be pushovers. Manage abusers firmly and fairly and help others with appropriate empathy, all while getting the job done for the employer. See the post for details.

TAKEAWAY: Uniformity (unless the law requires something else) is key – know the rules and apply them in the workplace.

The post on Friday 9/30/16 was about a former Girl Scouts employee claiming FMLA violation. This is from Pittsburgh, close to home. The suit in federal court is against the employer and the CEO, alleging an FMLA violation and retaliation. Background facts are in the post. This is newly filed so stay tuned.

TAKEAWAY: When it comes to the FMLA, make sure all I's are dotted and T's crossed – adverse action might lead to suit.

Finally, the post yesterday 10/1/16 asked: what is an HOA (and why do you care)? The acronym stands for homeowners' association; it is a planned community arrangement similar to a condominium, but for single-family, detached homes. The post gives some information as to the purpose of an Association and what you might expect if you live in a planned community.

TAKEAWAY: Know your rights and responsibilities and become familiar with the Governing Documents if you (intend to) live in a planned community. Have an attorney well-versed in this type of law go over the documents with you too – they are a contract to which you become a party.