Monday
Oct262015

ICYMI: Our Social Media Posts This Week -- Oct. 25 – 31, 2015

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

The post on Sunday 10/25/15 asked can you sue the boss for making you answer late-night email? This is another in the line of exempt and non-exempt employee issues – if the employee is non-exempt and due pay for any overtime hours worked, and the late-night emails put her/him into that category, then s/he must be paid for that time. The problem is that many employees just do it and don’t report the hours worked so the employer may not know about it. If, however, the employer is aware of the work, the employer should require the employee to record time for that work and pay for it; if pay is not intended, then the employee must be told to discontinue working late at night. Additional details are in the post.

TAKEAWAY: Employers are responsible to pay employees for all time worked; if working late at night answering emails is authorized by the employer, then pay is due for the time devoted to that duty. Make sure you know what your employees are doing and when they are doing it.

On Monday 10/26/15 the post was about light duty, employment termination, and other Q&A. The first question discussed is if an employee is on light duty, but no light duty is available, can the employment be terminated? As the post notes, if the light duty is due to a disability, then this is a situation of reasonable accommodation under the ADA. Can the person perform the essential functions of the job with or without reasonable accommodation? If so, and that means the person can return to work full time, then no light duty is necessary. If no reasonable accommodation is possible (remember the employer need not create a new position), then both accrued but unused leave and FMLA leave should be considered. If neither is available, but a reasonable length of unpaid leave would pose no hardship to the employer, then that should be looked at as a reasonable accommodation. If leave is not a possibility, and there is no other position to which the employee can be reassigned (even temporarily, as a reasonable accommodation), then discharge can occur. Other questions are in the post and include what to do if an employee is not aware of any reasonable accommodation during the interactive process.

TAKEAWAY: The ADA (and its possible interaction with the FMLA) is usually neither simple nor cut & dry. It is often helpful to discuss the issue with an experienced employment law attorney.

In the post on Tuesday 10/27/15, we reminded you to pay attention to details when disciplining an employee. More information on the specific case are in the post. Details can make or break the ship (so to speak).

TAKEAWAY: One, if not the, most important thing in administering discipline is to ensure adherence to policy (if applicable) and uniformity.

The post on Wednesday 10/28/15 asked are you are using the new FMLA forms (and reminded that if not, you should be). The new forms issued by DOL are effective until 5/31/2018. They appear similar to the old forms but include references to GINA - if you don't know what that stands for, contact us. The post also includes a link to the new forms (in case you don’t have them yet).

TAKEAWAY: Make sure to remain compliant – use the new FMLA forms. If you have questions when completing them, consult an experienced employment law attorney.

The post on Thursday 10/29/15 asked what’s in your employee personnel files? Is there just one file for each employee or do you separate medical information from the rest of the file? If you don’t do the latter, you should.  In fact, you must, legally. The post gives you more details on what should be in the medical portion of the file, along with items that should be separate from the “main” file and what should be in the “main” file.

TAKEAWAY: Know what (legally) may or must be in what part of an employee personnel file. If you are unsure, don’t wait for a finding that you guessed incorrectly – consult with an experienced employment law attorney.

The post on Friday 10/30/15 served as a reminder: when done with the FMLA, don’t forget the ADA. This is the reverse of our post on Monday 10/26. When FMLA leave is up, and the employee cannot yet return to work, discharge is not the automatic next step. Consideration of whether or not there is a qualifying disability under the ADA is the next step. If so, then the interactive accommodation process begins. If not, then discharge might be possible.

TAKEAWAY: In just about every situation, when dealing with either the ADA or FMLA, look at the situation under both laws in case both apply.

Finally, the posts yesterday 10/31/15 (here and here) were not scary but merely conveyed wishes for a Happy Halloween.

TAKEAWAY: Halloween can be fun – but remember that if this is a workday for your business, employees must still adhere to grooming policies unless the employer makes a special exception.

Monday
Oct192015

ICYMI: Our Social Media Posts This Week -- Oct. 18 - 24, 2015

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

The post on Sunday 10/18/15 talked about a woman fighting a medical marijuana firing. Why should you care? Because (limited) legal marijuana use may be coming to PA. Here, the employee was fired after her first day of work because a drug test showed marijuana use (despite informing the employer of her use during an interview). Of course, she has a doctor’s legal permission to use it for medical reasons and did so at home. The employer alleged that the discharge was based on federal law (which does not permit medical marijuana use) and not state law (which did allow it). Additional details are in the post.

TAKEAWAY: Keep abreast of the news and know what your obligations may be if PA legalizes medical marijuana.

On Monday 10/19/15 the post was about Chipotle workers suing for wage violations. Its motto may be “Food With Integrity”, but employees obviously don’t feel that way about their pay from Chipotle. Hundreds of workers in 6 states have filed suit, alleging that they are forced to work off the clock or are misclassified (to avoid being paid overtime). You guessed it – more details about the allegations are in the post.  

TAKEAWAY: Don’t find yourself on the wrong end of a wage suit – classify and pay employees properly from the outset.

In the post on Tuesday 10/20/15, we talked about what to do if you are sued personally. The post lists 3 steps. The first is to contact legal counsel. The other 2 are in the post.

TAKEAWAY: Nobody likes or wants to be sued, especially personally, but it happens – know what to do.

The post on Wednesday 10/21/15 asked if you know what to do when an employee repays a signing bonus? Yeah, I know, it doesn't happen often. Well first, you need to know how much should be repaid and then what steps to follow. They are in the post.

TAKEAWAY: It doesn’t happen often, but you need to know what to do if a signing (or other unearned) bonus is repaid.

The post on Thursday 10/22/15 talked about indiscreet socmedia posts put jobs on the line (in any country). Remember that a post on Facebook or other social media may have an effect on an employer – and bad effects can result in jobs being terminated.

TAKEAWAY: You’ve heard it before, but if you wouldn’t want to see it in the newspaper, don’t put it on socmedia.

The post on Friday 10/23/15 asked if a situation is illegal discrimination and discharge or merely downsizing. Read the post and tell us what you think.

TAKEAWAY: Things can seem like illegal discrimination to an employee but have a valid legal basis for discharge by the employer – make sure you’re in the latter category before suit is filed.

Finally, the post yesterday 10/24/15 told us that Ruby Tuesday is paying $100,000 to settle a sex discrimination suit. That’s a lot of moolah! So what happened? Ruby Tuesday allegedly would not hire 2 males as servers at a Park City, UT location. Not only that, apparently that was embodied in a written memo. Details are in the post.

TAKEAWAY: Need it be said? If you are going to illegally discriminate, at least don’t put it in writing.

Tuesday
Oct132015

ICYMI: Our Social Media Posts This Week -- Oct. 11 - 17, 2015

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

The post on Sunday 10/11/15 asked if early termination is ok when an employee on FMLA leave resigns. The answer (as with many questions) is maybe and it depends. The FMLA regulations deal with this type of situation and so must be adhered to. If the employee is clear about termination and the same action would be taken relative to someone not on FMLA leave, then the answer is yes.

TAKEAWAY: When it comes to termination (or other adverse action), treat an employee out on FMLA leave the same as any other employee (and consult with an employment law attorney if you’re not sure what you can or cannot do).

On Monday 10/12/15 the post talked about suits alleging Chipotle underpaid employees and made them work off the clock. Its motto is “Food With Integrity” and it supposedly prides itself on ethical fast food, but Chipotle is in hot water for wage issues. The suit alleges Chipotle made employees work off the clock or misclassified them so as not to have to pay overtime. One part of the suit says that “managers-in-training known as ‘apprentices’ are actually glorified burrito rollers with minimal managerial responsibilities …” and so are entitled to overtime. The suits currently include over 643 plaintiffs. Chipotle has denied all allegations (and says it actually goes beyond what the law requires). Another tidbit: past federal investigations of Chipotle stores have turned up pay issues but most have involved minimal dollars and so have gone nowhere.

TAKEAWAY: Make sure you properly classify and pay your employees – if you don’t, it could cost more in the long run, especially if a suit is filed.

In the post on Tuesday 10/13/15, we found an employer breathing easier now after a disability case settled. (Of course, it should never have gotten to that point in the first place ...). Why will Baker Concrete Construction pay $58,000 (plus other relief) to settle a suit brought by the EEOC? Well, the EEOC alleged that the company discharged Maria in 2013 because of her asthma, a disability, by refusing to provide her a reasonable accommodation of working at home for a bit after a bad reaction to chemical dust in the workplace. She was told that, “she … would just become ill again if they gave her permission to work at home for a period because the building was old and she would continue to have breathing problems upon her return.” More of what she was told is in the post. Of course, the company never said why providing the requested accommodation would be an undue hardship; likewise, it did not offer any other reasonable accommodation. Settlement was the smart thing to do.

TAKEAWAY: Just because an employer doesn’t want to accommodate a disabled employee, the legal obligation to do so does NOT disappear.

The post on Wednesday 10/14/15 noted that talking to yourself may now be considered concerted activity (with legal protection following on the heels …). Yes, this is the world of the NLRB, but as you should know it still applies to ALL employers when related to protected concerted activity. Here, a teacher at a private, non-profit religious school yelled to herself “THIS PLACE SUCKS” after another employee asked her to provide proper documentation for expense reimbursement. The school said (in a summary judgment motion) that Section 7 did not apply as activity requires at least 2 employees to be concerted and here she yelled to herself other than in preparation or initiation of group activity. The NLRB outright denied the school’s motion and didn’t even require a response from the Regional Office! So now the matter moved along on the merits (including whether there was concerted activity). NOTE: the Board also denied the school’s argument that it was outside of the Board’s jurisdiction as a religious educational institution (and again required no response from the Regional Office).

TAKEAWAY: Given the current Board’s extreme willingness to stretch the statute, employers must be extra careful these days not to take adverse action on account of anything that could remotely resemble protected concerted activity.

The post on Thursday 10/15/15 was off our normal topics but refreshing: it provided 10 reasons to be a scuba diver. Scuba diving is a passion to some but a joy to all who enjoy it. So what are some of the reasons to become a diver? Explore parts of the world many don’t get to see (remember that 71% of the earth’s surface is water …). It lets you escape everyday technology and Zen out. You get to experience weightlessness. More are in the post. If you are interested in becoming certified to scuba dive or just want to try it once in the pool first, contact me or go to www.scubacentralpa.com .

TAKEAWAY: We all need to get away at times – scuba diving is one surefire way to disengage and refresh.

The post on Friday 10/16/15 reminded us to handle a return from maternity leave with kid gloves. While it talked about a case in Canada, the same things apply here in the US. Lee was hired as a dental hygienist but soon was promoted to office manager. During 7 years of employment, she took 2 maternity leaves, the last ending in July 2011. She had previously worked four days a week from 9a-5p, but was now being moved back to a hygienist position with a different schedule (starting at 8am 3x/week). On her second day back, the schedule again changed, this time to a 10a-6p shift on 3 of the 4 days. Besides her unhappiness with the demotion (and lower pay), the new schedule conflicted with her daycare arrangements. More details are in the post. She was soon discharged and sued. The court said she was entitled to return to the same or a substantially similar position as before her leave and that the schedule change would have been ok if the employer had shown it was a bond fide occupational requirement. More of the court’s reasoning is in the post.

TAKEAWAY: An employer may not like how the FMLA’s provisions play out, but it must still comply – or suffer the consequences.

Finally, the post yesterday 10/17/15 taught us that if there is but a small amount on the table, know when to fold. Yep, a nuisance settlement. Called that because the suit (or charge) is a nuisance to the employer both in terms of the manpower necessary to respond to various documents and attendance at any required hearings, depositions or trial. It is often better to settle a case (usually by paying something, commonly less than the employer would spend if the suit/charge progressed, and admitting no liability) than to let it move ahead. In the case in the post, Domino’s did not take this advice and lost big time.

TAKEAWAY: Even if you know you’ve done nothing wrong, settling a case/matter may still be in your best interests – consult with your employment law attorney to make this happen.

Tuesday
Oct062015

ICYMI: Our Social Media Posts This Week -- Oct. 4 - 10, 2015

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

The post on Sunday 10/4/15 asked if whether a new mother who acts as a surrogate gets PDA accommodation? How did this arise? A woman sued Marriott after being denied lactation breaks (because she was a surrogate) after giving birth. She sued for violation of the Pregnancy Discrimination Act. More details, which help explain a bit more, are in the post.

TAKEAWAY: It may or may not be new ground, but a surrogate still gets pregnant and gives birth, so the safest thing for employers is to treat them as any pregnant employee or new mother would be treated.

In the post on Monday 10/5/15 we learned that a staffing company which assigned temps on the basis of sex will pay $800,000 to settle lawsuits. The EEOC filed suit, alleging violation of the ADA and Title VII, based on the employer’s assignment of female employees to a known hostile work environment. The other 4 bases of the suit are in the post and they are ugly. Conciliation failed so the EEOC filed suit. This settlement comes 4 years into the litigation.

TAKEAWAY: Sex will almost never be a basis to discriminate among employees (or applicants); national origin will not be a basis. Don’t act on those bases unless you too want to pay out a lot of your hard-earned money.

In the post on Tuesday 10/6/15, we talked about more women joining a lawsuit alleging sexual harassment at Ford plants. A pending class action suit alleges sexual harassment and discrimination at 2 Ford Motor Company plants in Chicago – 29 more women just joined the suit. Here’s the reason why just one joined the suit: “I’ve experienced management, supervisors asking me to take pictures of my boobs and send it to them, telling them that they are horny, they want to have sex with me.” More details are in the post. Ford’s statement did not deny the allegations; rather, it said that after investigation, it took appropriate steps in response including discipline if warranted.

TAKEAWAY: If there is a complaint, investigate it and act if warranted.  If the allegations continue, and by more people, investigate again and take appropriate action. Do not bury your head in the sand.

The post on Wednesday 10/7/15 was about construction contractors refusing to hire an applicant because of dyslexia – and paying $120,000 to settle a suit. So what happened? The applicant had 15 years’ experience as a carpenter, various training certifications and a clean safety record; he also had dyslexia. The potential employers refused to hire him after they learned about the dyslexia, saying he’d be a safety risk. More details are in the post.

TAKEAWAY: Without a request for accommodation, assume the applicant (or employee) can do the job and move ahead as you normally would.

The post on Thursday 10/8/15 noted that FMLA is not a magic word – but employers DO need to know how its obligations work.  You hopefully know that an employee (or applicant) does not have to specifically mention the FMLA to invoke its protections – anything that can be deemed to put the employer on notice will suffice.

TAKEAWAY: I can’t say it better than in the post, “If the employer fails to treat the request as one for FMLA leave, the employer assumes all of the risk … If, however, the employer treats the request as one for FMLA leave, the employee assumes all of the risk ….” Make the right choice.

The post on Friday 10/9/15 reminded that if contesting unemployment, be sure you have been fair and uniform. Why? A discharge for what is deemed willful misconduct will bar the employee’s receipt of unemployment benefits. Here, Donald’s wife was sick so he started work early to be able to care for her later. His shift changed; he refused to do a delivery as it would interfere with him caring for his wife. He was fired and found eligible for UC benefits. Why? Because another driver who had refused the same assignment (due to a pregnant wife) had not been fired.

TAKEAWAY: If you claim someone committed willful misconduct, make sure that his/her (in)action was treated the same way as other people (not) doing the same thing.

Finally, the post yesterday 10/10/15 was about an ex-employee suing Red Robin for racial discrimination and wrongful termination – NOT a tasty situation to be in. The employee was fired after questioning the hiring practices, specifically relative to people of color. At the time she sued, she had been working there 11 years in various locations and was managing this latest location. The allegations include her intended hiring of an African-American being overruled by an assistant manager saying “we don’t hire n******* in this store”. More juicy details are in the post. Red Robin has not commented on the suit other than by saying it prohibits discrimination in hiring and in the workplace.

TAKEAWAY: Retaliation is also illegal. ‘Nuf said.

Monday
Sep212015

ICYMI: Our Social Media Posts This Week -- Sept. 27 – Oct. 3, 2015

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

The post on Sunday 9/27/15 told us the Supreme Court will decide when the limitations period begins to run for constructive discharge discrimination claims. Yep, that’s a mouthful! You all know that there is a deadline for the filing of charges of discrimination – here the Court will decide what that deadline is in circumstances when the employee alleges s/he had to quit. In the case before the Court, a postal worker alleged that he had to choose between forced retirement and a demotion & transfer to a different position. He quit and filed charges of race discrimination. The Service asked for dismissal on the grounds that the charge was not timely filed. The question was whether the time started to run from when he was given the choice or when he resigned. There is a split among federal courts on this issue.

TAKEAWAY: This case will have an impact on many situations involving constructive discharges, so keep an eye and ear out as this progresses.

In the post on Monday 9/28/15 we learned that a BigLaw firm got hit with an ADA suit. It happens to everyone. Here, a suit was filed against Pepper Hamilton alleging violation of the ADA (termination in retaliation for seeking reasonable accommodation for a disability).  The facts are in the post and make for interesting reading.

TAKEAWAY: It doesn’t’ matter who the employer is but it still must meet its obligations under the ADA (if the employee is entitled to that law’s protections).

In the post on Tuesday 9/29/15, we talked about when a general contractor is an employer of the sub’s workers (a variation of the employee versus contractor quagmire). The case at issue dealt with liability of one who is not the direct employer under Title VII. The general contractor (GC) hired a subcontractor which in turn hired another sub, UCI, for the project. UCI hired Walter as foreman. UCI had no relationship with the GC. UCI paid Walter’s salary and benefits and set his hours. UCI’s superintendent got instructions from the GC and relayed the instructions to Walter, but that happened only if the GC found the finished product unsatisfactory. However, the GC controlled premises access and required all subcontractors’ employees to attend safety training meetings. SO at one point Walter got into an altercation with another subcontractor’s employee. The GC’s superintendent required that Walter and the other employee be permanently removed from the project. Since UCI had no other work for Walter, that left him unemployed. He eventually filed suit, alleging removal form the site due to race (since an altercation on the site between white workers did not result in adverse action). The trial court said the GC was not Walter’s employer. He appealed. The appellate court then addressed what factors are to be considered in determining if a person or entity is an employer. Those factors, and the court’s application of the case facts to them, are in the post.

TAKEAWAY: Especially now, after the NLRB’s joint employer liability ruling, it is oh so important to know whether you might be considered an employer of those not on your payroll. Talk to an employment law attorney if you’re not sure.

The post on Wednesday 9/30/15 was about DOL and beware turning employees into owners. It’s great to think outside the box, but not always so great when the box contains the laws that an employer must follow. Details are in the post; here some employers tried to make employees into owners to avoid paying overtime, worker’s comp, and certain taxes; DOL, after a years-long investigation, shut down the practice and now the companies have to pay over $700,000 in back pay, taxes and damages. Another case ended with that employer being subject to a $600,000 judgment.

TAKEAWAY: Whether employer or employee, have your attorney review in advance any restructuring that changes the employment relationship.

The post on Thursday 10/1/15 was a sexual harassment case reminder for employers: trying to stop harassment is a protected activity. This stems from an employee telling a sexually-harassing supervisor to stop and a finding that was protected activity. Both the discharged female employees and a male employee who objected to their discharges filed suit; under a cat’s paw theory (if you don’t know what that is, contact me!) the employer was held liable.

TAKEAWAY: Not only should employers not allow sexual harassment or discrimination, they shouldn’t allow retaliation arising from someone trying to stop or report the underlying harassment/discrimination.

The post on Friday 10/2/15 was about a 19-year employee who dues for an FMLA violation. Brad alleged employment for over 19 years and needing extensive medical leave in 2014 for 2 separate instances needing hospitalization, surgery and recovery. Background facts are in the post; the case centers around Brad’s request and need for FMLA leave and whether or not he suffered adverse action as a result. The suit is pending.

TAKEAWAY: If an employee is eligible for FMLA leave, don’t retaliate against him/her for taking that leave; merely make him/her follow the letter of the law and move on.

Finally, the post yesterday 10/3/15 talked about when disabilities post a direct threat in the workplace under the ADA. Why do you care? Because the obligation to accommodate is not triggered if there is a direct threat to the health or safety of the employee or others in the workplace. Here, a federal court looked at what can constitute a direct threat. Michael was legally blind; when his original job was eliminated, he was offered a higher-paying warehouse job if he passed a physical. He did, but the doctor said he needed accommodation for his impaired vision. The employer determined it couldn’t reasonably accommodate and so rescinded the job offer. Michael then filed a charge of disability discrimination with the EEOC, which then sued the employer for violation of the ADA. The employer then came out with a direct threat defense based on his impaired vision and the job being in the warehouse. The court’s holding is in the post.

TAKEAWAY: The “direct threat” prong is still underused but that may change I the future, so employers need to be aware of it, how it works, and what they need to show to avoid liability using that defense.

Monday
Sep212015

ICYMI: Our Social Media Posts This Week – Sept. 20 - 26, 2015

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 9/20/15 we noted that religious discrimination can include non-religion (atheism) too. The Wisconsin city in the news recognized this and banned discrimination on account of “nonreligion” too – very forward-thinking! Go to the post for more details on how they did it.

TAKEAWAY: Remember that religion is whatever the person believes, and believing in nothing (atheism) can be such a belief that entitles the holder to legal protection.

The post on Monday 9/21/15 asked if the Baltimore City FD will pay $60K to settle a disability discrimination case. A former firefighter alleged discrimination when, after suffering a seizure and being given prescription medication, he was not allowed to return to work. He filed a charge with the EEOC but it looks like the case will settle prior to suit being filed.

TAKEAWAY: Whether or not a case has merit, it is often better to settle it and avoid the (nuisance of) financial and human resources that will be invested to investigate and respond to any charges, to say nothing of the legal fees for the charge and any ensuing suit. Of course, the easiest out is to ensure no discrimination …

In the post on Tuesday 9/22/15, we talked about what HR needs to know about tracking employee time. No, not just time clocks. Time records. The questions asked and answered in the post are whether managers can alter time sheets (to correct them), whether exempt employees can be required to submit time sheets, and how to prevent employees from falsifying time records. All are important and impact on an employer’s obligations under the FLSA.

TAKEAWAY: Know the answers to these and other pay- and time-related questions; make sure there is no liability under the FLSA. Contact an employment law attorney if you have questions about compliance.

The post on Wednesday 9/23/15 was about don’t ask, don’t tell and the law on invisible disability disclosure. This started (ok, was further brought to light) by the recent plane crash caused by the pilot with a history of depression. Mental illness often goes untreated and even more often is invisible in the workplace. Employers can’t ask questions (except under certain circumstances) and employees are scared to talk about it for fear of repercussion (even though that would probably be illegal). The post gives some examples of how the issue can be addressed, including when the employee is a threat to him/herself or others in the workplace and when the disability is obvious.

TAKEAWAY: Even though mental illness can be a very real disability, unless an employer knows about it or has reason to suspect it, every employee must be treated the same and judged solely on performance.

The post on Thursday 9/24/15 was about an employer’s dawdling that revived an employee’s retaliation claim. Got your attention? In the case here, an employer said, in response to an employee’s retaliation suit, that it had decided to discharge prior to the employee’s filing of an EEOC charge. Great, right? Keep reading. Linzie started his job in 2007. In June 2010, he received a warning; later that month, he filed an EEOC charge alleging race discrimination and retaliation. In September 2010, he filed suit. More of the timeline is in the post, but the employer claims that it decided to terminate “on or about” 10/14/10, 9 days prior to learning that Linzie filed another EEOC charge and 10 days before actually terminating him. He filed another suit (of course) alleging retaliation for the first EEOC charge. The appellate court reversed the trial court and sent the matter to a jury, finding that the timing of the discharge was suspicious, especially when there was no documentation of a critical event and the employer’s “dawdling” after a meeting.

TAKEAWAY:  Don’t wait for a judge or jury to decide if the facts you allege are credible and support your legal position – make sure to have the supporting facts in place before an adverse action is taken.

On Friday 9/25/15, the post told us about a suit filed by a transgender Barnes & Noble employee who was denied female identity. This author thinks we will see more and more of this type of matter in the workplace as gender identity issues take the forefront and the legal world tries to catch up. So what happened here? Victoria, a transgender woman, claimed that her managers refused to allow her to present as female at work (by not recognizing her as female, prohibiting her from using women’s facilities, female pronouns or even discussing her transition with coworkers) and then fired her when she stopped complying. More details are in the post. It’s ironic that this suit happened when Barnes & Noble has been touting its “perfect score” on the Human Rights Campaign’s Corporate Equality Index for 7 years. Stay tuned to the news to see how this one progresses.

TAKEAWAY: Employers must remember that the EEOC has said that gender identity comes under the gender discrimination heading, such that it must be dealt with in the same manner, i.e., no different treatment unless the job requires it.

Finally, the post yesterday 9/26/15 was about an HR director who alleged race discrimination (and asked if she was right). The allegations were made by the HR director for the University of Oklahoma athletics department on the basis of race, gender and disability. The school denies the allegations. Details of the allegations are in the post, but include unequal employment conditions and a lower salary and benefits due to gender and race.

TAKEAWAY: Have you heard it before? To avoid legal complications, treat all similarly-situated employees the same, regardless of gender, race, or disability (or any other protected or other basis) and make job performance the only differentiating factor.

Monday
Sep142015

ICYMI: Our Social Media Posts This Week – Sept. 13 - 19, 2015

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 9/13/15 we learned the EEOC’s take on harassment – and how not to become a defendant. After a $1.5M verdict against a NC company, it’s time to look at how you can avoid the same thing. 3 female employees alleged that their male supervisor sexually harassed them and then retaliated when they objected to the harassment. The suit also included charges by a male supervisor who opposed the other supervisor’s harassing actions and supported the female employees. The post includes some of the employer’s mistakes, including not giving temporary employees a handbook (which contained the company’s sexual harassment policy!) and having a supervisor who thought he was invincible (hence his statements that “he wasn’t going to get in trouble, that he ran the area, and that anybody who went to Luanne on him would be fired.” More mistakes are in the post.

TAKEAWAY: Train your employees not to harass or discriminate against other employees (whether subordinate or otherwise) and make sure they act the way they are trained.

The post on Monday 9/14/15 noted that the timing of a discharge can create a factual question re associational discrimination. First, remember that it is not only illegal to discriminate against someone due to their own disability/medical condition, but also due to the disability or medical condition of anyone with whom they associate. The latter category is now seeing more lawsuits. Here, Terry was discharged in March 2012 after 22 years. He filed suit for associational discrimination under the ADA and retaliation under the FMLA based on his wife being diagnosed with cancer and its effect on the employer’s partially self-funded health insurance. More facts are in the post, including the employer’s asserted defenses of poor performance (despite a 2011 review noting improvement from 2010 and having nothing negative) and workforce reduction (except that Terry was the only one terminated at that time). The Court said that the timing was fishy, creating a question of fact, so the case was sent on to a jury trial.

TAKEAWAY: Before taking adverse action, make sure there is a legitimate business reason for doing so – otherwise you might find yourself and your company on the wrong side of the law.

In the post on Tuesday 9/15/15, we talked about avoiding job applicants who smoke and whether snuffing out smokers is discriminatory. In all but 18 states, the answer is no. PA is one of the states that has no law prohibiting discrimination against tobacco users. That means employers can refuse to hire applicants who use tobacco. Further, hiring non-smokers helps the company’s overall wellness which can be important for insurance purposes.

TAKEAWAY: Not everything an applicant (or employee) does is legally protected; smoking is but one example where adverse action can be taken legally.

The post on Wednesday 9/16/15 was about an EEOC question: is your corporate wellness program really voluntary? Hmmm. Earlier this year the EEOC issued proposed guidelines regarding wellness programs under the ADA – how employers can use incentives to encourage participation in programs that might include disability-related questions or medical exams. The first thing the EEOC proposed is that any program penalizing employees (through discipline, termination or cancellation of health insurance) will be considered involuntary and illegal under the ADA. If, however, the total allowable incentive is less than 30% of the total cost of coverage for the employee, the program will be considered voluntary. Other EEOC guidelines are in the post.

TAKEAWAY: It’s great to encourage employees to act in ways that will improve their health (and the company’s bottom line for insurance costs), but it must be done legally, meaning voluntarily.

The post on Thursday 9/17/15 was about religious dress and grooming in the workplace – still a big (legal) deal. Can your company require certain dress or grooming from its employees, especially for image, branding and morale? Absolutely. BUT you cannot interfere with an employee’s sincerely-held religious beliefs, so you may need to make exceptions as long as there are no safety or other legal concerns. The post talks a bit about an employer’s responsibilities to accommodate religious beliefs and when accommodation might not be required. An employment law attorney should be able to help you with this type of issue.

TAKEAWAY: Whether your company is small or large, you need to know the law relative to dress and grooming when it comes to employees’ religious beliefs.

On Friday 9/18/15, the post reminded you not to just dismiss a doctor’s clearance or you may be on the short end of a pregnancy discrimination suit. This employer found out the hard way and is paying $17,500. The EEOC filed suit, alleging the employer fired Maria a mere 9 days after she told them she was pregnant. Even though she had a doctor’s clearance to continue working – without restrictions – the employer, saying it was for her safety and company liability, discharged her. The settlement includes the monetary payment and other items as in the post.

TAKEAWAY: As we’ve said many times before, and probably will many times in the future, don’t take adverse action on the assumption that someone cannot perform his or her job – just maintain the status quo until you see it happening or have a doctor’s note with restrictions.

Finally, in the post yesterday 9/19/15, we talked about a university paying $3M for alleged ethnic discrimination and retaliation. The initial suit was filed over 10 years ago and just now got to this point (after a state appellate court ruling). The suit claimed that the school increased the Japanese-American employee’s workload after he complained about discrimination.

TAKEAWAY: If an employee complains (about discrimination or anything else), don’t take adverse action or otherwise retaliate against him or her; rather, investigate and take appropriate (legal) action as warranted under the circumstances.

Monday
Sep072015

ICYMI: Our Social Media Posts This Week – Sept. 6 - 12, 2015

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 9/6/15 we saw that it just keeps coming: the NLRB’s assault on employee handbooks – potentially illegal workplace rules and policies. ALL employers, not just those with unionized workforces, must pay attention. Why? Because certain rights under the National Labor Relations Act are guaranteed to ALL employees and the current Board is applying the relevant provisions very broadly. If a rule or policy is found to chill employees in the exercise of their statutory rights, or if they would possibly construe the rule as doing so, or the rule was adopted in response to union activity or has been applied to restrict the exercise of statutory rights, then the rule/policy is illegal. The post talks about some areas where the NLRB has been extremely active in knocking down rules, including at-will employment contract disclaimers and confidential information rules and policies. More are in the post.

TAKEAWAY: Keep in mind that while your handbook or manual may not be a contract of employment, it is still a document with legal implications. Make sure yours passes legal muster in all respects, including the NLRA, by having it reviewed by an employment law attorney.

The post on Monday 9/7/15 (Labor Day) noted that FMLA leave requires more than 1 doctor’s visit (and cautioned that you should know the nuances of the law). In this recent federal case, Kendrick Johnson was scheduled to work May 1-15, 2011. Early on, he told his supervisor he wasn’t feeling well (giving details); when Johnson was unable to get through to an employee relations supervisor, he left a message that he was going to see a doctor. The doctor diagnosed Johnson, prescribed medication, and told him to go to his regular doctor. He also gave Johnson a note that he could return to work May 16th. Johnson then gave the note to a supervisor. The next day, employee relations told him he needed a different doctor’s note; Johnson brought in one from a paramedic but that was also deemed insufficient. After a short suspension, Johnson was terminated. (NOTE: more complete facts are in the post.) The employer never gave him notice of his FMLA rights and obligations. Johnson sued for FMLA interference and retaliation. What doomed Johnson’s case was the lack of evidence of follow-up treatment within the statutory 30 days such that he couldn’t meet the “continuing care” requirement. Also, the doctor he saw was not his regular doctor and so that visit didn’t come under the “regiment of continuing treatment” requirement. Since he wasn’t entitled to FMLA leave, there could be no procedural deficiencies, interference or retaliation.

TAKEAWAY: Know what the FMLA requires of both employees and employers, including whether one doctor’s visit satisfies the statutory requirements to trigger a leave.

In the post on Tuesday 9/8/15, we talked about a blatant employer violation leading to a $20,000 settlement in a pregnancy discrimination case. The employer was an assisted-living facility. It hired the employee to work as a kitchen assistant; on the first day, the employee told her supervisor that she was pregnant. A mere 3 hours later, she was terminated (and replaced by someone who was not pregnant). She was told she could reapply after giving birth. It should come as no surprise that the EEOC filed suit (after being unable to reach a settlement through conciliation).

TAKEAWAY: Don’t assume that pregnant employees cannot do the job for which they were hired. In fact, don’t take any action relative to pregnant employees unless you would take the same action relative to an employee who was not pregnant.

The post on Wednesday 9/9/15 told us that a reference search through social media doesn’t create an FCRA claim. This is good news as more and more employers use every available means to find out information on applicants and employees. In this case, what was challenged was the employer’s LinkedIn search as an alleged violation of the Fair Credit Rights Act. One name plaintiff (in the class action) alleged that she had applied for a position through LinkedIn, was hired after a telephone interview, and a week later had the offer rescinded based on the employer’s referenced review through LinkedIn. The cited search function lets paid subscribers obtain (1) the name and list of the search target’s current and former employers and (2) a list of other LinkedIn members in the same professional network of the search initiator who may have worked at the same company in the same time period as the search target. LinkedIn then generates results; what is included is in the post. The court dismissed the claim, ruling that the FCRA applies only to “consumer reporting agencies” that provide “consumer reports” and that the search here did not meet the definitions.

TAKEAWAY: Not all socmedia searches that are legally challenged will end up with a result as favorable as this one – employers must be careful that they are legally compliant in all aspects of hiring. Working with an employment law attorney is a good way to accomplish that.

The post on Thursday 9/10/15 asked if you are using a particular term and answered that if you are, just open your wallet. Yep, another “digital native” warning. Employers used to say “new grad”, meaning younger persons (which could also be legally problematic), but now have moved to “digital native”. The post lists some large companies whose ads included that term and noted that the term is merely a back-door to age discrimination. Why? Because while older persons may know technology, they didn’t grow up with it and supposedly always have a hint of the pre-tech age in them. It is interesting that (according to the post) the EEOC filed 111 charges in 2014 for job advertisements discriminating against older applicants.

TAKEAWAY:  While it is best not to use this term when advertising for applicants, the term alone probably won’t result in legal liability. However, if there are other relevant facts, then liability may lie at the feet of the employer.

On Friday 9/11/15, the post noted that an informal complaint to a supervisor about pay bars retaliation under the FLSA. This case follows a Supreme Court case ruling that oral complaints satisfy the law if they are sufficiently clear and detailed for the employer to understand. What the Court did not decide was whether verbal complaints without any administrative procedure still raise whistleblower (and anti-retaliation) protection. Here, in a federal case, the court extended that protection to information verbal complaints made to a supervisor. The facts are in the post. The court said that the FLSA does not require the employee to undertake the administrative process to receive anti-retaliation protection.  QUERY: would this case come out the same if the supervisor wasn’t the owner?

TAKEAWAY: When an employee complains, whether in writing or verbally, note the complaint, investigate and take appropriate action. Do not retaliate against the complaining employee for making the complaint.

Finally, in the post yesterday 9/12/15, we talked about 3 strategies to get the lowest possible debt settlement. What does that mean? Paying less than you owe on a debt. So what types of things might give you leverage? Delinquent taxes and child support might help settle credit card debt. This is because in most states, even if the credit card company gets a judgment against you, it will stand behind the IRS and person to whom you owe child support if it (the credit card company) tries to garnish wages – if you work in a state where that is allowed such as Maryland. Two other times you might have debt negotiation leverage are in the post. You might also consider consulting an experienced debtor-creditor rights attorney who is used to handling this type of matter.

TAKEAWAY: Negotiating and settling a debt can be a better alternative to filing for bankruptcy if it resolves the situation; knowing when you might have leverage in the negotiation process is important to that end.

Monday
Aug312015

ICYMI: Our Social Media Posts This Week -- Aug. 30 – Sept. 5, 2015

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

The post on Sunday 8/30/15 was about a Linked In reference search not being an FCRA consumer report. In this age, employers search for information about applicants and employees in various ways – including social media. Here, applicants sued Linked In for alleged violation of the Fair Credit Reporting Act relative to its “reference Search” function. More details about the complaint are in the post, but suffice it to say that after analysis, the court decided that Linked In was not acting as a consumer reporting agency and the information provided was not a consumer report, both defined terms under the law.

TAKEAWAY: While this case was against Linked In, others have and will be filed against employers for their use of socmedia. Know what you can and cannot do – consult with an employment law attorney BEFORE you act.

The post on Monday 8/31/15 taught that a Baltimore company will pay $25,000 to settle an EEOC race discrimination suit. The allegations were that the real estate management company underpaid and refused to promote an African-American employee because of race. Yep, the sordid allegations are in the post.

TAKEAWAY: We’ve said it before and will many times again: race can NEVER have anything to do with job performance, so don’t even think about it when making employment decisions. Just don’t do it.

In the post on Tuesday 9/1/15, we talked about how to successfully live under a condo or homeowners’ Association. As more and more people live in planned communities, it becomes ever more important to know what rights and obligations both owners and the Association have under the documents that govern the relationship. The post is just the tip of the iceberg – contact me with questions.

TAKEAWAY: A planned community’s Declaration, Bylaws and Rules/Regulations are legal documents – they must be followed by the Association and owners. Know what they say.

The post on Wednesday 9/2/15 was about a seafood restaurant that’s on the hook for $185,000 for FLSA violations. This case was one of a few that went all the way to a jury trial. Here, it was alleged that the owner threatened and then retaliated against employees who cooperated with the agency investigating FLSA violations. The types of violations are in the post.

TAKEAWAY: If there has been a legal violation, admitting it and then correcting it is the best course – not trying to cover it up or retaliating against others.

The post on Thursday 9/3/15 was a reminder that in this BYOD world, think about the Apple watch & similar devices – know about them and what employees are – or should (not) be – doing with them. Not only must employers think about what employees are doing at their desks, home computers, smart phones or tablets, they must also be concerned with various types of wearable devices and the impact they can have on employers’ data.

TAKEAWAY: Technology keeps making the world both larger and smaller at the same time – make sure to protect your data from all possible methods of encroachment or wrongful/inappropriate use.

The post on Friday 9/4/15 was about linguistics: when you say __, employees hear ___. One example: you say “It’s company policy” and they hear “I don’t agree with that dumb rule either, but I’m forced to enforce it and not criticize it”. More are in the post.

TAKEAWAY: Be careful to say what you mean and mean what you say – don’t leave things open to other interpretations.

Finally, the post yesterday 9/5/15 talked about whether a non-applicant for a position can still sue the employer for sex discrimination? The answer is a big fat MAYBE. If the person was discouraged from even applying due to the employer’s (in)actions and can prove it, then there is the possibility of suit by the person who did not get the position. The post has more details.

TAKEAWAY: As with anything, an employer must be careful about what it does and does not do and how both are perceived by (potential) employees – liability could be lurking just around the corner.

Tuesday
Aug252015

ICYMI: Our Social Media Posts This Week -- Aug. 23 - 29, 2015

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

In the post on Sunday 8/23/15 we learned that the ADA direct threat defense just got a little easier for employers (if they have a reasonable belief, whether or not it’s proven out). When dealing with accommodation under the ADA, many people forget that the employee must be able to perform the essential functions of the job (with or without reasonable accommodation) without being a direct threat to him/herself or others. The post reminds us of the 4 factors that comprise the direct threat defense. In this recent case, the question was whether the employer had to prove the direct threat defense by a preponderance or merely have a reasonable belief as to the risk posed. The court decided on the latter.

TAKEAWAY: While the threat need not actually exist and may not be proven, if the employer reasonably believes that the employee poses a direct threat to him/herself or others, then that is sufficient under the ADA to meet the employer’s burden.

The post on Monday 8/24/15 was about Employment Law 101: Sex Discrimination. Who, what, why. The post answers some of these (and other) questions generally as to Title VII, but it is advisable that you consult with an employment law attorney to make sure you know your rights and obligations under all applicable federal, state and local laws. The post also provides a few examples of how this works in the real world. It also provides a few handy tips.

TAKEAWAY: Unless it is necessary to the job, gender should play no part in hiring, pay, discipline, promotion, or firing – just look at job performance.

In the post on Tuesday 8/25/15, we noted that Howard University will pay $35,000 to settle an EEOC disability discrimination lawsuit. The allegations were that Clarence, a diabetic with resulting kidney failure, applied and was interviewed for both protective services officer and supervisor positons. During the interview, in response to a question about shift preference, Clarence chose evening shift due to his dialysis needs. Clarence, who had much police experience, was not hired but at least 40 others were. When voluntary conciliation failed, the EEOC filed suit. This settlement resolves the matter.

TAKEAWAY: A disabled applicant or employee is not the end of the road, but just the beginning – being made of the disability invokes the employer’s obligation to engage in the interactive accommodation process (if an accommodation is being requested).

The post on Wednesday 8/26/15 reminded us why it’s legal to fire someone for being gay in 28 states. Yes, same-sex marriage is now legally recognized, but that is not the end of the battle for LGBTQ people. Most states (including Pennsylvania) still have no legal protection against employment discrimination on the basis of sexual orientation. Most states’ laws also don’t include sexual identity, but the EEOC has now ruled that discrimination on that basis IS sexual discrimination – we will see how that plays out through the courts. More statistics and information relative to employment discrimination against LGBTQ people is in the post.

TAKEAWAY: While it may not be illegal, that doesn’t mean it’s a good thing for your business to discriminate against LGBTQ people. If the person can do the job, let him or her do the job - regardless of sexual orientation.

The post on Thursday 8/27/15 talked about the hidden costs of home ownership - what else might be your lability under your Association’s governing documents. The post contains a list of 10 things to budget for as part of owning a home, but I’d like to focus on #8: homeowner/ condo associations and #10: grounds maintenance/upgrades. If your home is in a planned community, be it condominium or single-family, then you are bound by the Association’s Governing Documents (Declaration, Bylaws, and any Rules/Regulations that have been enacted). Those documents specify whose obligation it is (yours or the Association's) to repair or replace certain things, including doors, roofs, porches, sidewalks, lights, and the like, and to maintain (or not install) landscaping in a certain way. Make sure you know what you might be liable for in the future – and that when the day comes to make good on your obligation, you must do it in a way that comports with the Governing Documents. Likewise, make sure that whatever you plan to do with landscaping is allowable before you do it – it is not good to have to pay to do something and then pay again to undo it after the fact.

TAKEAWAY: Life in a planned community, with a condominium or homeowners’ association, can be great – but it also requires adherence to legal documents that contain obligations on the part of owners and the associations.

The post on Friday 8/28/15 told us about pay discrimination and that the best man for a job may be a woman. Employers must beware pay discrimination on the basis of gender as that can be more expensive than just paying the woman the same as the man from the start. The case in the post is but one example of how this works under the Equal Pay Act. Here, Kathy’s title was administrative services representative II, but she actually performed management duties for 8 years. In March 2011, the employer undertook a pay classification system based on industry pay grade data; Kathy’s job was listed as Grade 5 based on what the employer thought an administrative assistant normally does. Kathy got a raise, but not one that matched the Grade 7 classification of the duties she actually performed. 3 months later, the employer hired a younger male as the new fleet administrator at the recommended starting salary. Kathy had to train him; he took over much of what she’d been doing and she was told to focus on management and construction projects at field offices. In August 2011, a new facilities manager position was created; the employer initiated contact with a younger male to see if he was interested in the position. Kathy was fired in September 2011 due to alleged complaints about her performance (for which she had never been disciplined and for which her evaluation rated her as excellent). The immediate discharge was contrary to the employer’s policy. The male was indeed hired and negotiated a salary higher than the pay grade salary; his duties were basically those that Kathy had performed. No surprise, Kathy sued. The court analyzed what Kathy and the males did and found that she had performed much the same duties as did they. When the employer said the pay grade system was gender neutral, the court said that was true but insufficient as a defense since that did not explain the wage disparity given the work performed (that the employer knew she was performing). In the end, Kathy gets a trial on her claims under both Title VII and the ADEA.

TAKEAWAY: It’s best if the job title matches the job duties; the next step is to pay the person for the duties performed (and not take into account gender).

Finally, the post yesterday 8/29/15 told us that you should be prepared to justify a termination by citing business reasons unrelated to FMLA leave. This holds true for “regular” situations and those where someone was on FMLA leave.

TAKEAWAY: If there is a legitimate reason to terminate employment, without taking into consideration any FMLA leave, then do it – legally.