ICYMI: Our Social Media Posts This Week – June 12-18, 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 6/12/16 we noted the NLRB said you can’t stop employees from taping meetings. NOTE: this applies to all employers subject to PA law. In a recent decision the NLRB ruled that blanket policies prohibiting the use of devices to record conversations and company meetings is illegal, thus finding the subject policy (“… recording conversations, phone calls, images or company meetings without the approval of top management or consent of all participants would result in discipline up to and including discharge”). The NLRB, as it has been want to do, found the policy might interfere with Section 7 rights to protected concerted activity. How, you ask. Even one person might record something to further a course of group action and the exercise of the protected rights cannot depend on permission of the employer or all parties’ consent. This can be adapted to specific situations and in order to comply with applicable law (see the post for one such example).

TAKEAWAY: As we’ve seen, ALL EMPLOYERS MUST BE CAREFUL NOT TO ABRIDGE EMPLOYEES’ SECTION 7 RIGHTS; doing it without meaning to is no legal defense. Have policies reviewed by an employment law attorney to ensure they pass legal muster. And make sure you also comply with PA law relative to recordings.

The post on Monday 6/13/16 told us the failure to respond to a request for reasonable accommodation cost AT&T $250K – so don’t be like AT&T! The EEOC filed suit against AT&T on behalf of Miguel Melendez. He began working for a predecessor company in 2001 as a switch technician. In 2009, Miguel became visually impaired; in 2009 he was medically cleared to return to work and requested a reasonable accommodation (adaptive technology software). He never got a response to his request but 1-1/2 years later was removed from his position and not permitted to return to work. He filed a charge with the EEOC in 2010. See the post for more details about the suit and its resolution.

TAKEAWAY: When an employee requests reasonable accommodation, respond; don’t stick your head in the sand like AT&T (unless you also have a purse like AT&T).

In the post on Tuesday 6/14/16 we talked about protecting trade secrets from theft by ex-employees. Atlantic Marine Construction Company sued its former VP of Construction and his new employer alleging trade-secret theft after he was fired (using software to access the information). Atlantic says he installed the software on his work computer without authorization, then logged in post-discharge to steal information (the number of times of access and information taken are in the post). The suit is brought under the Computer Fraud and Abuse Act and state law.

TAKEAWAY:  Might this have been avoided by wiping clean the ex-employee’s computer immediately at or after discharge? We don’t know for sure, but the post contains that and other tips on how to minimize this type of risk.

The post on Wednesday 6/15/16 listed 13 reasons why non-union workplaces can’t ignore the NLRB (and suggested you let us help your business comply). Yes, all businesses must sit up and take notice! The NLRB has greatly broadened the definition and application of “concerted protected activity”, thus giving it jurisdiction (and authority to remedy any deemed violations). So in what areas might the Board enter your business life? Socmedia policies, off-duty access restrictions, and many more listed in the post.

TAKEAWAY: Again, even if you are not a union workplace, make sure your business has the appropriate policies in place and that they meet the current legal mandates of the NLRB.

In the post on Thursday 6/16/16 we noted that layoffs for the inability to speak English may be discriminatory. Does it seem strange to you that a plastics manufacturer hired Hispanic and Asian employees, despite their inability to speak English, then fired them for that reason? Well, a federal court agrees. The details are in the post, but suffice it to say the company laid off a large percentage of its Hispanic and Asian employees and replaced them with a majority of Caucasians to increase English-speaking employees. The EEOC sued on the basis of race or national origin discrimination. The employer moved for summary judgment, asserting (apparently with a figurative straight face) that the layoffs had no discriminatory motive but rather were based on English language skills which, it said, was a deciding factor in whom to lay off. The laid-off employees argued that the language preference could not be a non-discriminatory reason. The court ruled against both sides, but did note a strong correlation between non-English-speakers and national origin, a protected class. So now the case goes to a jury to decide if the language preference was legitimate or an excuse to discriminate.

TAKEAWAY: Make sure any adverse decision, even one as seemingly innocuous as language skills, is legal and supported by business necessity.

The post on Friday 6/17/16 confirmed that Yes, you can be fired for being pretty. (It then asked if this should be legal.) So you are cute and work for someone whose spouse is worried about a possible affair – and then the boss fires you. Do you have any legal recourse? Many courts say no. Dilek Edwards just found that out in NY. She taught yoga and worked as a massage therapist for a chiropractor. Her boss’s wife co-owns the practice and is COO. After about a year of employment, the boss told Dilek that his wife might become jealous because she was “too cute”. Four months later, the wife told her – via text! - she was “unwelcome”; the rest of the test is in the post. The next day brought an email from the wife firing Dilek. Later she filed sued, alleging gender discrimination under state law (which in NY is broader than in PA). Despite the broad statutory language, the court said she was not in a protected class (attractive) as it applied only to transgender or gender identity cases. Something similar happened in Iowa several years ago.

TAKEAWAY: While courts have expanded the reach of gender discrimination, it can still depend on the statutory language and drafters’ intent as interpreted by the courts. Make sure you know the language and interpretation before taking adverse action that may be illegal.

Finally, the post yesterday 6/18/16 noted a retirement community is to pay $132K to settle a suit for failure to accommodate a pregnant nurse. This case comes to us out of Philadelphia, apparently not always the City of Brotherly Love. This suit by the EEOC tells us that Amy worked as an RN/charge nurse and campus supervisor for 8 years before she requested a lifting accommodation for a medical disability. Apparently the employer refused to accommodate despite having accommodated non-pregnant employees with similar restrictions. Instead of accommodating Amy, the employer put her on indefinite leave due to her pregnancy and disability and told her to re-apply after birth and no restrictions existed. She did, but (as if there wasn’t already enough fodder!) the employer refused to rehire her and made an illegal medical inquiry. So the EEOC sued. Under the settlement, she gets $132,500 and the employer has other things it must (or must not) do.

TAKEAWAY: Pregnancy itself is not a disability, but can result from or in other conditions that are a disability to be accommodated – don’t brush it aside or you will find yourself rowing upstream without a paddle.


ICYMI: Our Social Media Posts This Week – June 5-11, 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 6/5/16 we talked about the Philadelphia School District denying ADA violation, must schedule settlement conference. A former teacher alleged the District discriminated against him due to a medical condition, then retaliated when he complained. The post talks about allegations that his condition became worse due to requirements that he move metal file cabinets and heavy bookshelves when the temperature exceeded 90 degrees and being assigned to a third-floor classroom (with no elevator). The parties dispute whether he had a qualifying disability but are now under order by the federal judge to schedule a settlement conference. Stay tuned.

TAKEAWAY: While the ADAAA broadened the definition of disability, it is not a sure thing that an employee’s disability qualifies for protection; both parties should satisfy themselves that this first step is taken before going any further in a case.

The post on Monday 6/6/16 was about workplace discrimination: don’t call a transgender employee “It”. Gender identity is the newest category of discrimination moving through the legal system, from administrative to judicial stages. It’s playing out in NY and may be coming to you soon. Victor sued Whole Foods in federal court alleging harassment and discrimination because he is transgender. He was born female but transitioned to male prior to his employment. The claims include that his co-workers referred to him as “she” or even “it”. More claims are in the post. Obviously at this stage there is neither judgment nor settlement on the suit.

TAKEAWAY: The EEOC has said that sex discrimination includes discrimination on the basis of gender identity – don’t be the defendant in a lawsuit to see if courts agree.

In the post on Tuesday 6/7/16 we talked about an $800,000 discrimination lawsuit: former electrician sues city. Yes, ouch! Heather sued, saying she was discriminated against because she is a lesbian and then retaliated against (fired) for filing complaints about the discrimination. More details are in the post, including that after her first complaint she was forced to undergo a psychological exam prior to continuing to work and her boss had called her clothing a “Canadian Tuxedo”.

TAKEAWAY: Stray comments, even if intended to be humorous, and actions might miss their target and subject an employer to liability – stop them all before they start.

The post on Wednesday 6/8/16 was about probationary periods at work: complying with employment laws. The post hits 6 key points, including that probationary periods have no special statutory status and that employers must investigate grievances from probationary employees. The others are in the post.

TAKEAWAY: Remember that laws can apply beginning at the application stage and thus include probationary employees; likewise, an employer’s policies might cover probationary employees too. Make sure to follow and evenly apply all policies.

In the post on Thursday 6/9/16 we noted that (ICYMI), Governor Wolf expanded non-discrimination protection for PA state workers, contractors. Recently the Governor signed executive orders broadening protection for employees and contractors from discrimination based on sexual orientation and gender expression or identity. There is currently no similar statute affording all employees in PA the same protections, but this is a first step.

TAKEAWAY: The train has left the station; protection from discrimination and harassment based on gender identity is reality for PA state employees and contractors and, one day, may be more than a wish for all PA employees.

The post on Friday 6/10/16 told us that Neenah Paper paid $33,000 to settle a disability discrimination suit. Neenah is a manufacturer of premium paper; it recently settled a disability discrimination suit. The suit alleged that it refused to allow Kristoffer to return to his job on the production floor for 7 months because of his disability – despite doctor’s clearance – and that it required him to take medication at work under observation. More details are in the post. The suit settled, but this author’s guess is that other employees were not treated the same way as was Kristoffer.

TAKEAWAY: Employers can certainly make sure employees are not a danger to themselves or others before letting them (return to) work, but that must be accomplished in a legal, even-handed, evenly-applied manner.

Finally, the post yesterday 6/11/16 noted that unreported working lunches may still be work time. Yep. Be careful. While the case here came out of a federal court in Illinois, the principles might carry over to other states. There, Michael sued the IL Dept. of Corrections for FMLA violation for firing him due to absences he says should have been protected leave. The DOC moved for summary judgment on the grounds that Michael had not worked enough hours for FMLA eligibility, but the court denied the motion. See the post. While the DOC argued based on time records, Michael said he’d never taken the ½ hour lunch break and ate on duty. DOC then argued it was unaware and never sanctioned that, so the hours shouldn’t count (and had he applied for OT, it would have been approved). In denying summary judgment due to a material dispute, the court in part said that the burden was on DOC not only to know about the work, but to take steps to prevent unauthorized work. The case will move ahead.

TAKEAWAY: So what can an employer do to minimize its risk for this type of situation? Have a clear policy and enforce it, minimize the chances for off-the-clock work, and don’t automatically deduct time for unpaid meals or other breaks (make the employee affirmatively record the break time).


ICYMI: Our Social Media Posts This Week – May 29 - June 4, 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 5/29/16 we noted that a GYN practice must face a pregnancy bias trial. Durcy was a medical records clerk for an OB/GYN practice. She alleged that she was treated differently because of pregnancy or childbirth – and she did it via direct evidence (as contrasted with the usual indirect-proof McDonnell-Douglas method). Durcy showed that she was fired 3 weeks after giving birth, but the employer’s policy was to allow for 6 weeks of post-delivery leave. The employer attempted to defend by saying her position was eliminated as part of a downsizing. The judge didn’t buy it: he said a prior downsizing was due to doctors leaving but there was no such action this time. Durcy also had other direct evidence which is in the post. The employer probably did itself in here and now must face trial (or settle).

TAKEAWAY: Employers must keep in mind that despite the prevalence of indirect proof in discrimination claims, it is still possible for a plaintiff to prove his/her claims directly – as happened here - if the employer gives the evidence.

The posts on Monday 5/30/16, here and here, were Memorial Day tributes to those who fought to achieve and preserve our freedoms.

TAKEAWAY: There are fights even now over what laws do and don’t allow us to do – but those battlefields are far different than the ones on which veterans fought (and continue to fight) for our freedoms. Please thank them all.

In the post on Tuesday 5/31/16 we read that Washington Crossing Inn did not fire the former banquet manager for age discrimination. On appeal, a federal court ruled that the former employee did not carry her burden of proving the employer violated the ADEA or PHRA. By way of background, Lisa was hired in May 2009 by the current employer who had purchased the Inn; she was to be in her same position, banquet manager. Apparently there were differences with new management, including Lisa not liking them telling her not to bring her dog to work. (More details are in the post. Later that year she was discharged, her position eliminated, and a “banquet coordinator” positon (with lower pay and no benefits) created. The new position was offered to one person who turned down the offer. A 22 year-old former subordinate of Lisa’s temporarily performed the responsibilities. In Spring 2010, the employer hired a banquet coordinator, paying benefits but a lesser salary than it had paid Lisa. Lisa filed a charge of age discrimination. The EEOC issued a right to sue notice, after which Lisa filed suit. The District Court granted summary judgment to the employer (based on its argument that the discharge was due to Lisa constantly locking horns with management) and Lisa appealed. The appeals court agreed that Lisa presented no evidence of age discrimination – just because the employee temporarily performing the duties was much younger than Lisa, the burden was not satisfied. See the post for more about the ruling.

TAKEAWAY: A large age discrepancy can evidence of age discrimination – but it also might not. Employers need to assure that there is a legitimate, nondiscriminatory reason for any adverse action before taking that step.

The post on Wednesday 6/1/16 was about a man claiming wrongful termination after surgery. Roger began his employment with Cam Superline in May 2002 and worked in the service parts department for over 12 years. He told the owner he needed 3 weeks off for hernia surgery. He further alleges that the employer did not classify his time off as FMLA leave such that when he called his supervisor to return after the surgery, she told him not to return. Roger filed suit in the Middle District of PA earlier this year. Stay tuned as the suit progresses.

TAKEAWAY: Employers can take adverse action against employees as long as there are no negative legal implications – such as failing to fulfill obligations under an applicable law.

The post on Thursday 6/2/16 talked about a car salesman suing his former employer over age discrimination allegations. Richard worked as a car salesman for about 10 years; he was age 69 at the time of discharge. His suit says that prior to discharge, he and a similarly-situated salesman both signed agreements to sell an average of 10 cars per month. However, after a work injury, Richard was off for 2-1/2 months. He says the discharge was based on his age. This case too is pending in court.

TAKEAWAY: It bears saying over and over – any adverse action (to be) taken by an employer should be based on a legitimate, non-discriminatory reason that has factual support.

The post on Friday 6/3/16 said that yes, managers and supervisors can be sued individually for FMLA violations. A federal court recently ruled that in some situations, employees can be individually liable for FMLA violation claims. In the subject suit, the employee sues for FMLA interference and retaliation, and associational discrimination under the ADA. The trial court dismissed the claims but the appellate court reversed. The factors it looked at are in the post, including whether the manager/supervisor had the power to hire and fire employees.

TAKEAWAY: Courts are broadening the definition of “employer” in finding liability for violation of various laws – everyone should know who might come within an expansive definition and act accordingly.

Finally, the post yesterday 6/4/16 noted that service-animal fraud throws the ADA to the dogs. A nation of animal lovers, the US is apparently subject to a craze of claims of needing various animals as an accommodation of a medical or health condition. It’s often easy to forget that the ADA permits service animals in private places, even those which prohibit pets. This applies to businesses too. What is happening is that non-disabled persons, aware of the low hurdles to bring in animals, are taking advantage of the situation. See the post for details and examples.

TAKEAWAY: The ADA permits service animals, but not all situations are covered by the questions allowed to be asked – pet-owners who do not have service animals are stepping through the wide crack and states cannot act to fill the crack. Business owners need to be aware of this part of the ADA so they don’t run afoul.


ICYMI: Our Social Media Posts This Week – May 22-28, 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 5/22/16 we talked about women accusing US Soccer Federation of gender discrimination – NOT the example to set for our youth! The gist of the federal EEOC charge is that the women allege the Federation paid them ¼ of what it paid to men. And that is despite the fact that the women’s national soccer team revenues outpaced that of the men’s team for the 2016 fiscal year.  The Federation’s statement included that it is “open to negotiation”. It is now up to the EEOC to investigate the charge. More details are in the post.

TAKEAWAY: Athletes at all levels may play the sport for fun or pay, but when for pay the laws of gender equality apply.  

The post on Monday 5/23/16 warned: Watch out employees: comply with policies or lose FMLA rights. The end of story is a federal court ruling that an employer legally discharged an employee who did not follow the leave policy while on intermittent FMLA leave. The story itself is that the employee of Kellogg USA had used FMLA leave on about 90 – count ‘em, 90 – occasions before requesting and getting approved for continuing, intermittent FMLA leave. Company policy required certain notifications (see the post). A written warning was issued the first time the employee did not follow the policy. After that, the employee took 3 additional intermittent leaves without following the policy. Each resulted in the assessment of points and the point total led to termination. Details are in the post.

TAKEAWAY: Courts can and do recognize that employers are entitled to enforce valid, legal policies – and that an employee is subject to discharge if s/he does not comply with the policy.

In the post on Tuesday 5/24/16 we talked about a card dealer having suing a casino for discrimination. Close to home, the former dealer at Valley Forge Casino Resort alleged discrimination and discharge based on his medical disability after having been employed there 3 years. He said he had rheumatoid arthritis and that after taking intermittent FMLA leave, management treated him differently (see the post for details), suspended him and eventually discharged him in June 2015.

TAKEAWAY: Employers can deal with their employees how they see fit as long as there are no legal implications – discrimination and retaliation being included.

The post on Wednesday 5/25/16 taught that Mavis Tire will pay $2.1M to settle EEOC class sex discrimination lawsuit. That’s a lot of rubber meeting the road! The suit, brought by the EEOC, alleged that Mavis consistently refused to hire women for field positions, including managers, assistant managers, mechanics and tire technicians (and that Mavis also did not make, keep and preserve employment records). Conciliation failed. The parties then entered into a settlement which includes Mavis paying $2.1M to 46 women (along with other actions and monitoring).

TAKEAWAY:  An employer who violated the law once might be forgiven (if it makes the applicant or employee whole); but an employer who consistently and systemically discriminates on the basis of gender will end up in costly, public legal trouble.

The post on Thursday 5/26/16 was about discrimination arising from disability: 5 examples. Keep in mind that while the post dealt with foreign law, the same concepts apply in the US under the ADA. Further, each example can depend on the facts of the individual case and may not apply to every situation. So what examples did the post include: dismissing an employee for disability-related absence. Failure to consider suitable alternative employment. And 3 more in the post.

TAKEAWAY: If an employee has a disability that qualifies him or her for ADA protection, then the burden shifts to the employer to begin the interactive accommodation process. Failure to so act leaves the employer open to legal liability.

The post on Friday 5/27/16 noted that HR audits can be an effective management tool (and that Austin Law Firm can help you with such an audit). HR audits vary according to the needs of the client entity. Some oft-included parts of an audit are itemized in the post, including policy and document updates and employee classification analysis.

TAKEAWAY: An HR audit now can save an employer much legal headache later by ensuring legal compliance.

Finally, the post yesterday 5/28/16 reminded us that napping is not notice of the need for FMLA leave. Sally, employed as a nurse, occasionally took off from work for migraines. HR asked if any accommodation was necessary. Sally said no but requested FMLA intermittent leave. The employer told Sally to let a manager or co-worker know if she was taking intermittent leave. At one point during a shift, to ease her migraine-related sensitivity to bright lights, she went to a dimmer room across the hall to monitor a patient. Later that shift, after taking migraine meds, Sally became flushed and dizzy. She went to the same dimmed room, sat down, closed her eyes, and (unintentionally) fell asleep. Sally was woken up by a co-worker. Sally called in sick the next few days and did not check emails or use her home phone. The employer was trying to contact her during that period to arrange a meeting. Sally was discharged for sleeping on duty. Sally brought sued, alleging that the employer knew of her condition, that the condition acted up that night and caused her to fall asleep, thus the discharge was unlawful. The employer countered that the discharge was for abandoning the patient and sleeping on the job (both without notifying anyone). Read the court’s ruling in the post.

TAKEAWAY: Once again, a policy, if evenly enforced, can win the day for an employer. Make sure to have appropriate policies and evenly enforce them.


ICYMI: Our Social Media Posts This Week – May 8 - 14, 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 5/08/16 we learned the EEOC filed the first suits for sexual orientation discrimination. The time has come! Federal law does not specifically protect LGBTQ persons from workplace discrimination or harassment. However, the EEOC ruled that discrimination on the basis of sexual orientation is sex discrimination and therefore illegal. Now it’s backed up its talk with a walk (to the courthouse). One of the first 2 cases were filed against a Pennsylvania-based employer, Scott Medical Health Center, alleging that a gay male employee was repeatedly harassed based on his sexual orientation, including his manager calling him anti-gay epithets. Ugh. More details are in the post.

TAKEAWAY: The Supreme Court told us that marriage between persons of the same sex is legally cognizable; now let’s see what courts do with the EEOC’s interpretation of sex discrimination as including sexual orientation.

The post on Monday 5/09/16 noted a federal contractor was sued over alleged hiring discrimination against women and people of color. This NY company with over $46M in federal contracts is in hot water again, this time for allegedly discriminating in hiring practices as against Asians, blacks and women. The suit alleges B&H hires only Hispanic men for entry-level positions in the warehouse while promoting and compensating white workers at higher rates than Hispanics. More allegations are in the post, including denial of equal access to clean, functioning bathrooms. B&H denies the allegations, including that it has no bathrooms segregated by race or religion. Time will tell as this winds its way through the system.

TAKEAWAY: Federal contractors have some anti-discrimination obligations that private-sector employers do not – be careful of what you do (or don’t do) and against whom to stay in compliance.

In the post on Tuesday 5/10/16 we asked: Are you discriminating against older employees without realizing it? Yes, it might be true. The post highlights some things that may not quite be illegal (or could be), but still might be discriminatory against older employees, including using the word “overqualified” to mean “old”.

TAKEAWAY:  Don’t use the term “overqualified” unless you truly mean the person has more or better skills than are required for the job – and nothing more. A younger person could be overqualified too.

The post on Wednesday 5/11/16 told us a Yelp tweet about a fired employee could spell legal trouble. A former Yelp employee posted something on socmedia, alleging that she was fired after asking for time off to care for a sick boyfriend. Nothing strange so far, right? Wait for it. Yelp then replied on socmedia, with details! See the post. Not only did that make their lawyer cringe, it may have gotten Yelp in legal trouble for violating one or more laws. Further, since she denies some of the information in Yelp’s reply, there could be a defamation claim in the works too.

TAKEAWAY: While it can be difficult, an employer does not have to respond to public comments or allegations about its actions – and often it should not in order to stay on firm legal footing.  

The post on Thursday 5/12/16 was about the firing by KFC of a manager who discriminated against a transgender employee.  Our recent post on the underlying incident was here. KFC made the right decision by firing the manager who acted illegally. KFC also hired the employee (again). A good ending.

TAKEAWAY: All companies want to be known, but not for illegal actions – here KFC publicly did the right thing to remedy discrimination practiced by one of its managerial staff. Kudos!

The post on Friday 5/13/16 asked Is Hispanic is a race (a federal court says yes). In short, a white, Italian-American employee sued after being denied a promotion given to a white, Hispanic employee. A jury agreed with him to the tune of $1.35M.  The verdict was upheld on appeal with the ruling that “Hispanic” does indeed refer to a race under Title VII. Details of the case are in the post, but this case broke new ground in broadening and defining the meaning of race under the statute. The decision noted that “Hispanic” has always been deemed a race in reference to Section 1981 cases, then here brought that definition over into Title VII (to sit alongside national origin, which is not covered under Section 1981 and under which “Hispanic” might also fit).

TAKEAWAY: It’s risky to assert new legal ground as a basis to justify what could be an illegal action – the obvious, best course is not to take the potentially illegal action in the first place.

Finally, the post yesterday 5/14/16 told us that SEPTA dues over an ADA project. A borough in Bucks County, PA, has a $36M project to bring its bus station into ADA compliance. SEPTA is all for that. What SEPTA is not all for are issues with fees and regulations. SEPTA asked to be treated like Amtrak (which would exempt it from many fees and regulations). Stay tuned!

TAKEAWAY: Even doing the right, legal thing might not make you immune from suit – just keep that in mind.

EXTRA: on 5/14/16, we posted (here and here as but two examples) congratulations to Sara A. Austin on becoming the 122nd (and only third female) President of the Pennsylvania Bar Association! It is worth taking a minute to check out the video of the procession leading her to the podium.


ICYMI: Our Social Media Posts This Week – May 1-7, 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 5/01/16 we asked: Could lunch periods count toward the FMLA hours eligibility criterion? Quite possibly. The case profiled in the post shows just that. Gus was scheduled to work 11-7 with a ½ hour lunch break. He never took the lunch break, but instead worked through it, eating at his desk. He never explicitly told anyone he was doing that, never got permission, and was never told not to. When he asked for FMLA leave, he was told he had not met the 1250 hour threshold. His calculations, including the lunch periods he’d worked through, indicated he had exceeded the threshold. He took time off, was suspended, and eventually discharged, after which he sued. The employer argued that it did not condone him working through lunches and even his time sheets didn’t request pay for doing so. More details are in the post. The court said it was the employer’s burden to know what its employees were doing and make sure it did not work if he wasn’t supposed to. The time worked through lunches was counted.

TAKEAWAY: Courts often side with an employer that has not knowingly permitted an employee to work certain hours, but on the off chance a court looks at the situation differently it is best for employers to keep track of what employees do and when they do it. Not knowing that information could make an employee eligible for FMLA protection earlier than the employer thinks will occur.

The post on Monday 5/02/16 noted it’s not just for employers: supervisors can also be sued for FMLA violations. Yep, personal liability. And ignorance of the law is no defense. As the post notes, liability turns on how “employer” is defined. So how could a supervisor get on the hook, even unintentionally? A common method is by discouraging an employee from taking FMLA leave by stray comments or not knowing procedures. The post talks about some of the things encompassed by the FMLA so that employers – including managerial employees – know what to look for; the post also lists other laws which, if violated, can lead to personal liability for supervisors.  

TAKEAWAY: When it becomes personal people pay more attention; whether looking to liability of the company or a manager, don’t violate any laws and you won’t have to worry about liability.  

In the post on Tuesday 5/03/16 we learned the feds sued a NYC electronics store for discrimination. The suit alleges that B&H Foto & Electronics Corp. only hired Hispanic men for entry-level laborer jobs, excluding females and most African-American and Asian applicants. The suit also alleges that Hispanic employees were subjected to racist and degrading remarks, paid at a lower rate, and more (yes, even more; see the post). The suit seeks wages, promotions and other lost benefits related to employment. There was no comment from the employer, the largest non-chain photo and video equipment store in the US. Note: the post says that this is not the first legal problem for B&H – the EEOC monitored its hiring and wage practices from 2009-12 as part of a settlement in a prior discrimination case (in which B&H also paid $4.3M to 149 employees discriminated against for being Hispanic).

TAKEAWAY: Illegally discriminating once – stupid. Doing the same or a similar thing twice – beyond belief.

The post on Wednesday 5/04/16 was about how to stay in touch and within legal bounds in the age of BYOD. We explored the various means of communication in this day and age where communication methods seem to change daily (or more frequently). Employee education and training, along with internal communication policies, are highly recommended. The post talks about the types of susceptible communications, which departments or groups may be more prone to issues, and some suggested solutions.

TAKEAWAY: Having a policy on communication, especially involving BYOD, and properly implementing it are key for every business entity today.

In the post on Thursday 5/05/16 we learned of a woman who sued a dental office for pregnancy discrimination and violation of privacy. Ada, a student in a dental assistant program, started an externship at Western Dental & Orthodontics. She was told by her adviser and Western Dental’s office manager that a successful externship would probably result in a job. On Day 1, Ada was told by the managing dentist that the externship was akin to a “four to six week working interview”. She alleges she performed well. But then she overheard a conversation between 2 employees discussing whether Ada was pregnant; it came up because a third employee had supposedly looked through Ada’s purse and found prenatal vitamins. A week after that, the one of the employees, a supervisor, told Ada there was no longer an opening in the same office but there might be one in an office twice as far away. Ada told her adviser that she’d been passed up due to pregnancy. The post gives more details. On the externship’s last day, Ada was given a farewell party and cards for her pregnancy – which Ada had not announced and which was not obvious as she did not yet show. The supervisor told Ada to check back on possible openings after she delivered. Coincidentally, Ada saw online job ads for a dental assistant at the same office she’d been told did not have an opening. Is it any wonder why she sued?

TAKEAWAY: If a situation will look fishy, an employer should take pains to ensure it is legal and aboveboard – otherwise it is the employer which could be subject to the pain of a lawsuit.

In the post on Friday 5/06/16 a Virginia woman claimed KRC fired her for being transgender. Hired and fired within an hour – is that a record? If so, KFC is not a proud record-holder. Georgia Carter says that shortly after hiring her, the KFC manager called her back, confused by her driver’s license which listed her as a male. The supervisor then told Georgia KFC couldn’t hire her as it didn’t know which bathroom she could use. More details are in the post (including that KFC later fired the manager for discrimination and offered employment to Georgia).

TAKEAWAY: PA is one of the states where discrimination on the basis of sexual identity or orientation is not illegal, but that doesn’t’ make it right. Also, the EEOC now says that Title VII covers this type of discrimination, so PA employers should beware.

Finally, the post yesterday 5/07/16 noted that just because you say so, doesn’t make it so (employee versus contract redux). How many times must we say that labelling someone an employee or a contractor doesn’t mean they legally fit into the classification?!? You know – or should by now – that this is one area in which DOL and the IRS continue to concentrate enforcement efforts. The post touches on the DOL’s mid-2015 interpretation and the factors used by a court in determining employee versus contractor status. The post also contains some suggestions on how to get it right and not just call someone a contractor and wish it to be so.

TAKEAWAY: Some ways to stay out of legal hot water on the classification issue include using legal independent contractor agreements and preparing to give up control.


ICYMI: Our Social Media Posts This Week – Apr. 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 4/24/16, we noted: posting beach vacation photos on Facebook during FMLA leave isn’t a good idea. OK, being on FMLA leave does not mean the person can’t live their life. But there’s a limit and it was apparently reached here. Rodney was an activity director overseeing other staff. He took FMLA leave for shoulder surgery and recovery, but still co9undlt return after. The employer granted an additional month off (non-FMLA). Apparently Rodney took many fun trips during the end of the FMLA leave and the following month. He even posted pho9tos from his trips. All good, right? Well, except that some hots were of him swimming (with the recovering shoulder?) in the ocean. More details are in the post. He was discharged after the posts.  The court ruled in favor of the employer (see the post).

TAKEAWAY: FMLA leave does not mean the employee must sit at home twiddling his or her thumbs and doing nothing else. But it does mean that if the employee acts in a way contrary to the reason for leave, the employer can consider taking adverse action.

The post on Monday 4/25/16 talked about workplace retaliation under the FMLA and ADA – just (don’t) do it! This seems like a common sense kind of thing, but … With retaliation complaints increasing in frequency, don’t be on the list of respondents (of an EEOC charge) or defendants (for lawsuits). The post gives more information on what actions may not be taken under the FMLA and ADA; if those actions are taken, they may be considered retaliatory.

TAKEAWAY: Employees are entitled to certain rights under the FMLA and ADA; don’t take adverse action against them for taking advantage of those rights.

In the post on Tuesday 4/26/16 we learned we don’t want to pay $4.7M – EEOC files Supreme Court brief in CRST fee sanctions case. That’s a lot of money at stake – taxpayer money to boot. SO what is at issue? Whether an award of attorneys’ fees is appropriate when the EEOC fails to satisfy its pre-suit investigation duties but the employer was not fully successful on the merits of the case. This all started when the EEOC filed (a presumably class-action) sexual harassment suit against CRST. The trial court granted CRSTs motion for dismissal on the basis that the EEOC had not done any investigation into the specific allegations by the alleged aggreiveds pre-suit – or even attempt conciliation. Thereafter, CRST filed for sanctions by way of attorneys’ fees and costs. Again the trial court ruled in the employer’s favor, awarding $4.7M. Yes. Million. On appeal, the court reversed and remanded (for further determination by the trial court). Details are in the post. After more procedural machinations (in the post), the cert petition was granted late last year. This case was just argued in late March so we should have a decision by the end of June.

TAKEAWAY: The outcome can be important to employers who are fighting an EEOC charge or suit so stay tuned.

The post on Wednesday 4/27/16 was close to home: an ex-worker accused Allied Waste Services of discrimination and harassment. Doug, an African-American male, filed suit in federal court earlier this year. He alleged constant harassment (by his superiors). He also alleges that after a shoulder injury incurred during work, he filed a WC claim and, with permission, used a company vehicle to go to a doctor. The suit continues that he was thereafter discharged for stealing the vehicle, stealing company time and falsifying documents (all of which he denies).

TAKEAWAY: An employer is free to take legal, supported adverse action against an employee – but make sure it is indeed legal and supported in case you have to prove it in court.

In the post on Thursday 4/28/16 we noted that the reason you discriminate against foreign accents starts with what they do to your brain. Yes, occasionally science does intersect with the workplace in a way that can be helpful to employers. Scientists are finding that the way our brains process foreign accents may actually contribute to discrimination. Details on the findings are in the post. Suffice it to say that the foreign accent, especially one we can’t readily understand, results in a lessening of believability which, in turn, may result in discrimination.  

TAKEAWAY: Like many other characteristics employees possess, don’t let a foreign accent be one in which you base adverse behavior or action unless you can prove it is job-related.

In the post on Friday 4/29/16 we asked Does employees’ use of apps lead to violations of workplace policies? This is more of the BYOD saga that employers have been and continue to have to contend with. Many apps supposedly let employees discuss (or complain about) the terms and conditions of their employment (and therefore are presumably protected under the NLRA). However, such comments could lead to wrongful action like bullying or shaming and that, in turn, could turn into illegal harassment or discrimination. See the post for more details on how this might occur. It is early in the game for this type of scenario, but employers should beware.

TAKEAWAY: As with all emerging technology, employers should look carefully at apps and how far they go – or how far employees go when using them – before considering or taking any adverse action.

Finally, the post yesterday 4/30/16, noted that limiting employees’ hours to dodge the ACA’s employer mandate could violate ERISA. Everybody knows about the requirements to provide health insurance (if certain guidelines and criteria are met) and the cost of same to employers. In an effort to reduce that cost, some employers try to reduce employees’ work hours. But this could be a violation of ERISA if the recent case is followed by other courts (and upheld on any appeal). A procedural history of the case is in the post. Turning on the fact that the beleaguered employees already had health care coverage, the court said that there could indeed be a legal violation and denied the employer’s motion to dismiss the case.

TAKEAWAY: Be careful if trying to avoid the ACA mandate – but do so legally and after considering possible outcomes.


ICYMI: Our Social Media Posts This Week – Apr. 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 4/17/16, we noted that restaurants, developers and other businesses face a wave of ADA lawsuits related to parking – and that you should know the law. Here, the suits are about handicapped and van accessible disabled parking spaces. The list of defendants includes McDonald’s and Wells Fargo. The suits allege a violation of the ADA’s requirements for parking accessibility - details are in the post.

TAKEAWAY: If you have public parking, know the law on how many accessible spaces you must have – or prepare to join a list of defendants.

The post on Monday 4/18/16 was about firing someone returning from leave – do it right and legally. This post touches on the quandary of (allegations of) retaliating against someone for taking FMLA leave and not knowing the reason for poor performance issues until the leave occurs. Here, Cynthia supervised 55 employees. While she was out on FMLA leave, many complained about her. When she returned from leave, her supervisor talked to her; her performance improved over the next year, and then in year 2 she received a satisfactory rating even though her performance had slipped some. In 2012, she took FMLA leave and had personal issues to deal with. She didn’t return the FMLA forms, so the leave wasn’t approved. Again there were complaints about her while she was on leave. Her supervisor investigated and met with her upon her return to work. The employer fired her based on poor performance. She alleged gender discrimination and retaliation for using FMLA leave. The post tells you how the court ruled on the suit.

TAKEAWAY:  As we’ve said numerous times, an employer should ensure that it has legal support for any adverse action it plans to take against an employee.

In the post on Tuesday 4/19/16 we noted that reducing employees’ hours could lead to discrimination claims under ERISA. In a first of its kind case, a federal court is allowing a suit against Dave & Buster’s to move forward. The issue is whether the company’s “right-sizing” of its workforce was for the purpose of avoiding healthcare costs under the ACA (and therefore was a violation of ERISA – see the post).  The case was filed as a class action. The name plaintiff alleged that her participation in the health insurance plan stopped as a result of the workforce realignment in an effort to reduce health care costs. Stay tuned as this case moves ahead (and others may follow).

TAKEAWAY: Don’t reduce employees’ work hours to avoid ACA obligations without thinking it through and discussing it with an employment law attorney.

The post on Wednesday 4/20/16 told us that Cessna Aircraft Company will pay over $160,000 in an EEOC disability discrimination suit. So what happened? The EEOC charged that Cessna didn’t individually assess the ability of conditional employees to perform the essential functions of their job (but instead relied on workers’ comp standards). In one case, the employee had to meet a national maximum medical improvement standard to be eligible for work even though he had an unlimited return to work note from his doctor. Cessna withdrew its offer of employment regardless.  Another example is in the post. After pre-suit conciliation failed, the EEOC filed suit. The settlement includes Cessna’s payment of $167,500 and other things (listed in the post).

TAKEAWAY: Standards - especially in an unrelated context – are not a stand-in for an individualized assessment of whether or not an employee can perform the essential functions of a job, with or without reasonable accommodation.

In the post on Thursday 4/21/16, we talked about a settlement between the EEOC and Pharmacy Solutions for $85,000 to resolve pregnancy discrimination allegations. The allegations are that 2 former employees received negative comments from the company’s owner about their pregnancies and were fired within a month.

TAKEAWAY: Don’t take adverse action against an employee due to pregnancy – treat her just like any other employee.

The post on Friday 4/22/16 asked about chat: when does it become harassment or discrimination? At issue are questions by a supervisor about when an employee plans to retire. If frequent (enough), and perhaps accompanied by other age-related comments, there might be a legal violation. In one subject case, the president thought the 55-year-old employee who was seeking a managerial promotion “would not remain with the company long enough to learn the manager’s job.” The court dismissed the case, finding the employer had a legitimate interest. The result in another case is in the post. In a third case, we are reminded that encouraging a 63-year-old waitress to retire, calling her a “stupid old yaya” and not letting her dress like younger waitresses could be illegal. Other age-related comments (such as those in the post) could also land an employer in hot water.

TAKEAWAY: Don’t use age as a factor on which to base employment decisions – it usually is not job related and will only get you in legal trouble.

Finally, in the post yesterday 4/23/16, we talked about a Med School professor who claims discrimination. The 19-year associate professor sued Yale, alleging “retaliatory denial of promotion” as a result of retaliation against her (by denying further promotion applications) for a 2012 gender discrimination complaint she had filed against the school. Details are in the post. Yale declined comment.

TAKEAWAY: This is another one we will have to keep an eye on – but it chronicles yet more concerns about impediments to women advancing in formerly all-male medical fields.


ICYMI: Our Social Media Posts This Week – Apr. 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 4/10/16, we talked about a white officer passed over for promotion moving forward with his racial bias suit. The white Italian-American officer was passed over for an ethnically Hispanic officer; he alleged the former mayor, an African-American, specifically promoted the other officer due to race. The mayor argued that since the other officer self-identified as white, there could be no discrimination since “Hispanic” is not a race for federal discrimination purposes. A jury agreed with the plaintiff in May 2014 and awarded him $1.35M. The mayor appealed. The appellate court disagreed with the mayor, finding that Section 1981 claims include discrimination based on ancestry and ethnicity, including the lack thereof, and that same is also a cognizable claim under Title VII. Note: see the post regarding what the court did with the $1.35M jury award.

TAKEAWAY: It is much safer not to discriminate based on any non-job-related characteristic than to have to argue in court why the basis of discrimination is not illegal.

The post on Monday 4/11/16 put all jiggery-pokery aside to talk about Justice Scalia’s impact on employment law. He sided with employers in Young v UPS (arguing in his dissent for a narrower standard than was adopted by the majority). His narrower interpretation is in the post. He sided with the employee in EEOC v Abercrombie & Fitch (writing the majority opinion holding employers liable even if the applicant’s need for accommodation was but a motivating factor in the decision not to hire). More on Scalia’s legacy is in the post.

TAKEAWAY: It is always sad when a Supreme Court justice dies, but here Justice Scalia left big shoes to fill in the employment law area.

In the post on Tuesday 4/12/16 we talked about Employment Law 101: national origin, citizenship & immigration status discrimination. The starting point is, of course, Title VII. IRCA also comes into play. Both require employers not to discriminate on the basis of national origin, citizenship or immigration status relative to any significant aspect of employment. The post details the types of violations and what counts as national origin, citizenship or immigration status, as well as what to do if a managerial employee causes the violation or if national origin or citizenship is a job requirement, and whether retaliation can play a part. The post also gives some examples.

TAKEAWAY: Employers now are (or should be) used to ignoring national origin when making employment decisions. Citizenship and immigration status should be added to the “do not consider” pile too.

The post on Wednesday 4/13/16 was about record retention and disclosure rules under the ADA and FMLA. Be alert employers! The ADA focuses on whether discrimination occurred against the employee; therefore, records should be kept on the accommodation request and the reasons any attempts to accommodate were unsuccessful. The medical information MUST be kept in a separate file and treated as confidential. To whom that information may be disclosed is listed in the post. In contrast with the ADA, the FMLA requires that employers retain records for 3 years from the last date of entry for payroll information, dates and hours of leave taken, and other items listed in the post. Confidentiality of medical information is similar to that under the ADA.

TAKEAWAY: Know what you must keep and in what form (whether all together or in separate files) and who is permitted access to the files. Doing it incorrectly may subject you to liability and damages.

In the post on Thursday 4/14/16, we learned that prison officials illegally fired or punished guards because doctors didn’t let them work overtime due to medical conditions. Sounds convoluted but it’s really not. A federal lawsuit alleges that prison officials in Lackawanna County (about 2 hours north of Southcentral PA) took illegal action by firing 3 guards and punishing 3 others. The allegations include the officials calling them lazy or harassing them with derogatory names, fliers and posters for refusing to work overtime. Part of the County’s defense is that the EEOC already dismissed the charge on the basis that the union contract allows official to require guards to work overtime. Interestingly, the guards don’t want reinstatement. See the post for more details.

TAKEAWAY: The question is whether the ADA, FMLA and state law trump a union contract by requiring accommodation for, and preventing retaliation on account of, a medical condition.

The post on Friday 4/15/16 questioned how is the FMLA to be covered in joint employment situations. The post lays out generally the responsibilities under the FMLA along with which employer (primary or secondary) that responsibility falls to. For example, jointly-employed employees are to be counted for coverage and eligibility determinations by both the primary and secondary employers. The post covers other areas of responsibility including the employee-eligibility determination, notices, leave, and benefits.

TAKEAWAY: Joint-employer liability is not going away; even if you aren’t the primary employer, you might be the secondary employer and, as such, have liability under the FMLA. Know your obligations (and the employee’s’ rights).

Finally, in the post yesterday 4/16/16, we noted the subject FMLA policy was missing something kind of important. Make sure yours is not like this one. So what happened? The IL Dept. of Corrections didn’t specify the 12-month period it would use to calculate employees’ entitled to leave. That came up in the context of a suit by a former employee who’d taken time off and requested it count as FMLA leave. DOC said he exceeded his allowable time and terminated his employment. He sued for FMLA interference because he’d never been told how the leave was being calculated or from what date the calculation started (among others in the post). In ruling against DOC on its summary judgment motion, the court said that DOC hadn’t proven that it clearly articulated when the 12-moonth period for calculating FMLA leave began. Therefore the court calculated it in a way most beneficial to the employee (which left him with additional eligibility to cover the absences). The court then sent the matter to a jury trial.

TAKEAWAY: Most employers merely reiterate the legal requirements: leave within a 12-mnth period for eligible employees. Be more specific or the lack thereof might come back to bite, hard.


ICYMI: Our Social Media Posts This Week – Apr. 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 4/3/16, we against asked the question: Independent contractor or employee? The answer can make a HUGE difference. The answer to the question depends first on whether it is for federal or state purposes. Most often the agency will use the economic realities test. Those factors are in the post.

TAKEAWAY: Knowing how to properly classify a worker is important in many ways, including tax withholding and entitlement to the benefit of certain state or federal laws.

The post on Monday 4/4/16 was about Jewish professors filing charges claiming religious discrimination that damaged their reputations & careers. The professors allege that the school's president and other administrators discriminated against them after they spoke out about a lack of a Jewish perspective on campus (which, in turn, has now created a fear in others of speaking out). The post contains additional allegations levelled against the small, 811-undergraduate student school, including that an outside consultant acted as an “enforcer” and further exacerbated matters. The school has denied the allegations. The matter is in the EEOC charge process.

TAKEAWAY: If adverse action is taken or adverse treatment practiced, make sure there is a valid legal reason for same.

In the post on Tuesday 4/5/16 we noted that a failure to timely and thoroughly investigate sexual harassment claims may cost you. A recent federal court decision said that claims of sexual harassment and hostile work environment are not limited to victims of the opposite sex. The decision was based on a finding that the employer failed to take thorough, timely action after a male employee complained of improper, unwanted, offensive physical contact from another male-co-worker. More details are in the post. This case contrasts with one that is binding on PA cases (unless factually distinguishable).

TAKEAWAY: When a complaint of same-sex harassment is filed by an employee, you must investigate it timely and thoroughly, just like you would any other complaint.

The post on Wednesday 4/6/16 provided the Top 10 workplace discrimination claims in 2015 (based on a breakdown from the EEOC). It resolved 92,641 charges in FY15 and secured in excess of $525M for victims in that period. Retaliation was the #1 charge (39,757 charges filed and GINA took the #10 spot with 257 charges filed. The rest are in the post.  

TAKEAWAY: Don’t be (part of) a statistic; always strive to ensure no charges of illegal harassment or discrimination are filed against you.

In the post on Thursday 4/7/16 we talked about a $1.3M discrimination verdict being overturned in a police case. In 2009 the village’s then-Mayor appointed Miguel as the new police chief. A white lieutenant sued the village and Mayor, alleging failure to promote based on race. A jury verdict awarded the lieutenant over $1.3M but ordered a new trial (for procedural reasons).

TAKEAWAY: While this case may not be final yet, it underscores the fact that employers should never make decisions based on race. Period.

The post on Friday 4/8/16 was about how sexual harassment allegations caught up with Peyton Manning after 20 years. He usually maintains a squeaky clean image, but he was named in a complaint filed by a sports team trainer against the University of Tennessee’s athletics department. Facts are in the post but include athletes calling her breasts “midgets” and violence by athletes toward women having been “played down” by supervisors and an effort “made to shield the student athletes”. The 27th allegation concerns Peyton Manning; details are in the post. While that charge was settled, it is still part of a suit recently filed against the University (after an earlier suit filed against Peyton and other family members was also settled and a second suit is closed with no details as to what happened).

TAKEAWAY: Even settled matters involving discrimination and harassment have a way of rearing their ugly heads in the future. The best way to avoid that is to ensure nothing happens to form the basis of a complaint in the first place.

Finally, in the post yesterday 4/9/16, we learned that gay couples sued a hospital for discrimination. Why? Straight couples who worked there were allowed to work in the same unit but the gay couples were not. When the hospital finally relented, it was with behavioral conditions not imposed on hetero couples. Suit was filed earlier this year.

TAKEAWAY: If you allege that an action (or failure to act) violates a policy, make sure that policy has been disseminated and is evenly enforced. Otherwise you too could be facing down the barrel of a suit.