ICYMI: Our Social Media Posts This Week -- Aug. 2 - 8, 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.

On Sunday 8/2/15 the post listed 6 legal requirements employers should watch in 2015. So what are they? (1) More accommodation for pregnant employees. (2) Breast-feeding in the workplace. (3) Minimum wage exceptions. The other 3 are in the post.

TAKEAWAY: There are so many things that an employer must be aware of and watch out for that one’s head can spin, but certain areas garner more attention than others from those charged with enforcement. It only makes sense for employers to look more carefully at those areas too.

The post on Monday 8/3/15 was about a lawsuit accusing Tata of favoring South Asians and discriminating against American workers. Hmmm. The suit was filed in federal court in CA by a non-South Asian employee claiming that 95% of the 14,000 Tata employees are South Asian or mostly Indian, such that the workforce is grossly disproportionate. The suit says that Tata discriminates by hiring from those holding H-1B visas (which are primarily for those from India), mostly hiring South Asians when hiring domestically, and disfavoring the few non-South Asians employees in placement, promotion and termination. The suit seeks class action certification. Tata plans to “vigorously defend” the allegations.

TAKEAWAY: Numbers don’t lie; when your workforce is disproportionate and you either don’t care or don’t do anything about it, you may be in legal hot water.

In the post on Tuesday 8/4/15, we asked when is an employee legally working? The question is simple, but the answer not so much. The answer is important though as it can affect employers and employees under many laws, both state and federal. After a bit of history, the post talks about a federal case in which casino security guards had to remain on premises, monitor two-way radios, and respond to emergencies during their meal breaks. The court focused on whether the meal time benefitted primarily the employer or employees. For the court’s decision, go to the post.

TAKEAWAY: Just as proper classification as an employee or contractor is important, so too is whether what the person is doing is compensable or not.

The post on Wednesday 8/5/15 was about the importance of documenting performance. I know you’ve heard me say it before, but I will again: in real estate it’s location location location, and similarly in the employment arena, it’s document document document. Whether using paper and pen(cil) or doing it electronically, make sure to document things about the person’s performance. If you take an adverse action and there is nothing to support it, your back will be against the wall. In the case in the post, Addiel, a hotel chef, was not the best of employees BUT his employer did not document anything in his personnel file. And as if that wasn’t enough, Addiel also alleges that the hotel’s GM of HR told him he was “no longer capable to work at the line because you are old”. Suit was brought for age discrimination; the hotel argued that his termination was based on poor performance but when there was no substantiation, the court ruled against it. (It didn’t help that the hotel didn’t follow its own disciplinary policy either.)

TAKEAWAY: To withstand allegations of illegal discrimination, make sure adverse employment actions are based on performance and that the personnel file contains support for the action.

The post on Thursday 8/6/15 asked who doesn’t like non-competes? The answer seems to be that nobody dislikes them or, conversely, everyone (or at least every employer) wants them. For all employees, not just managerial employees usually associated with non-compete agreements. Make sure you know what the law requires in order that a non-compete be held valid and enforceable (otherwise is no point in having one).

TAKEAWAY: Non-competes are legal agreements and, as such, you should have them prepared by an attorney to cover the specific facts of each position; otherwise you are jeopardizing the enforceability of the agreement.

The post on Friday 8/7/15 told us about a former Harvard professor suing for sex discrimination in tenure denial. The suit, brought under Title IX, alleges that she was denied tenure, retaliated against, paid less, and given less work space because of her advocacy work involving victims of sexual assault. More details about the allegations are in the post. The professor alleges that when questioned by her, Harvard admitted that her political activities contributed to the negative tenure review (and resulting dismissal). However, Harvard’s legal counsel now says that there is no merit to the allegations.

TAKEAWAY: Some employers must be concerned not only with Title VII (and the anti-retaliation provisions of other statutes), but also Title IX.

Finally, the post yesterday 8/8/15 was about when volunteers become employees under anti-discrimination laws. The post links to an article written by my colleague and Connecticut attorney Dan Schwartz; he talks about this in the context of CT law, but it can be applied generally to PA relationships too. The question is, “when that person is carrying out important functions related to the mission of the agency and acting under the direct supervision of the leadership of the agency, can claims of discrimination be brought ….” The CT court faced with the question decided that what matters in determining whether the person was an employee is whether and how s/he was remunerated. The post gives more details on what could constitute remuneration for these purposes.

TAKEAWAY: As in other areas of the law, just because you decide someone is in a position other than employee does not make it legally so; to be sure, discuss the situation with a lawyer well-versed in employment law (or literally pay for the consequences).


ICYMI: Our Social Media Posts This Week -- July 26 – Aug. 1, 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 7/26/15 we listed 10 questions employers should never ask in a job interview. Some of the questions explicitly ask about legally-protected characteristics, others merely hint at them, so just don’t (ask them, that is). So what are the questions? What is your religious affiliation? Are you pregnant? What is your political affiliation? The others are in the post.

TAKEAWAY: The way for an employer to make sure an employee is qualified is to review the essential functions of the job and ask the employee is s/he can perform them, with or without reasonable accommodation. Then let the employee answer (and any necessary dialog continue). Easy peasy.

The post on Monday 7/27/15 was about a university being sued for allegedly firing a professor for transitioning from male to female. And what makes it interesting is that the plaintiff is not the professor, but the Department of justice; the suit is for sex discrimination and retaliation. The professor was a man when hired in 2004; before the start of the 2007-08 school year, she informed the school that she would be transitioning. In 2009, when she applied for tenure, she was denied – despite recommendations from her department chair and other tenured faculty in her department. After the 2010-11 year, she was terminated for not having become tenured. On-line petitions with over 4300 signatures went up after the discharge. The post has more details. The university basically issued a non-statement in response to the allegations. The case remains pending.

TAKEAWAY: If your head has not been under a rock, you know that gender identity is the next recognized wave of sex discrimination – and therefore prohibited under Title VII.  Use performance for adverse employment decisions, not protected characteristics.

In the post on Tuesday 7/28/15, we talked about maternity leave varying by company size (and state). Remember that the FMLA does not apply to all employees or to all employers, but only to those who meet the requisite thresholds (as specified in the law itself). However, some states may have laws on maternity leave (PA does not) and individual employers may have policies providing maternity leave (paid or unpaid).

TAKEAWAY: Pregnant employees, and especially those who intend to get pregnant, should check into their legal right to maternity leave if it impacts their household financial stability or future work plans. Likewise, employers must remember not to treat pregnant employees differently simple because of the pregnancy.

The post on Wednesday 7/29/15 was about a man filing suit after being discharged for refusing to wear women’s clothing. I do not make up these things. Tristan is a transgender man who was hired by First Tower Loan LLC as a manager trainee. He alleges that a mere week into his job, he was called to the Vice-President’s office to discuss his work clothing; that resulted from Tristan’s supervisor alerting management to him being a transgender man (are your alarm bells going off yet?!?). The only reason the supervisor knew was she questioned “female” being listed as Tristan's gender on his license. Go to the post to see what happened when the VP found out and the ensuing discussions. The suit follows the US Dept. of Justice’s clarification in December 2014 that discrimination on the basis of gender identity is indeed sex discrimination that is prohibited under Title VII. Tower is denying that transgender employees are protected by the DOJ clarification. The case is not over …

TAKEAWAY: Not only do we have the DOJ clarification, we now have the EEOC’s recent guidance, both saying that discrimination on the basis of gender identity is prohibited sex discrimination under Title VII. Just don’t do it.

The post on Thursday 7/30/15 included 5 things not to do when facing workplace harassment or discrimination. These tips are from the angle of the employee, but give insight into what an employer also should think about (not) doing). The first DON’T is to fail to report the action as soon as it happens. Next is DON'T interfere with the investigation. The other tips are in the post.

TAKEAWAY: Nobody wants harassment or discrimination in the workplace, but employers can only remedy what they know about – employees must make sure to follow these tips.

The post on Friday 7/31/15 was about Planet Fitness settling a race and gender discrimination suit for $25K. Not much money, but it still represents a win for anti-discrimination. Rachel, an African-American female, was employed for almost a year. She filed a charge with the EEOC alleging she was not promoted and later discharged based on race and gender. The EEOC determined there was probable cause (and added age and marital status to the mix). More details are in the post, but one tidbit form Planet Fitness is that male worker who was promoted “was more mature, married and has real bills.”  Yuck.

TAKEAWAY: We've said it before and will say it again: make sure employment decisions – hiring, discipline, promotion, and discharge – are based on performance and not any protected characteristic. Period.

Finally, the post yesterday 8/1/15 highlighted a suit for FMLA violation for having to show mastectomy scars before returning to work. Yep, these things happen in the real world! Here Andrea alleges that her employer, Broward Health in Florida, refused to waive a policy requiring employees off for FMLA leave for surgery to all an in-house medical clinic to examine the wound before returning to work. Andrea thought the policy was “demeaning and humiliating” and asked that it be waived; the employer said it was to ensure no open wounds, sutures or staples. A nurse suggested that Andrea obtain a note from her treating physician that there were no open wounds, sutures or staples; she did so and turned it in, but the employer still refused to waive the exam. Andrea then offered to allow her doctor to speak to the employer, but still no exam waiver. She refused to undergo the exam and was discharged. The suit is still pending as you read this.

TAKEAWAY: While it is advisable for employers to uniformly enforce policies, they may need to exercise some variance or discretion when a law comes into play.


ICYMI: Our Social Media Posts This Week -- July 19 - 25, 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 7/19/15 we talked about employee or contractor: proper classification.  Yes we’ve posted about this before but employers just don’t’ seem to get it. This time we linked to a fact sheet in an attempt to give you guidelines; then call us to discuss the situation. If a person is classified as a contractor but is in reality an employee, the employer can be liable for a lot, so don’t make the mistake.

TAKEAWAY: It is possible to have an independent contractor relationship with someone, but certain requirements must be satisfied. Make sure to do it the legal way from the start.

The post on Monday 7/20/15 was about what you should do when an employee doesn’t return FMLA forms. First, remember that the FMLA allows – but does not require – employers to obtain medical certification of an employee’s need for leave. Most do get the information. But what if the forms don’t come back? The employer has to allow at least 15 calendar days for them to be completed and returned – and may need to allow more.

TAKEAWAY: Employers should have a policy about FMLA leave forms and apply it evenly – but also know when to make exceptions.

In the post on Tuesday 7/21/15, we talked about a military veteran suing for age discrimination in being discharged. Now the first thing that makes this different than the usual suit is that the plaintiff mitigated his damages by finding other employment. So why did this 75-year-old marine veteran with about 30 years’ experience operating large motor vehicles sue? He applied on-line, went for an in-person interview, and was hired. When he reported to work (with other new employees), he was pulled aside, told he was too old, and discharged. Yep, he sued.

TAKEAWAY: As we keep saying over and over, don’t let age (or race or any other protected characteristic) determine eligibility to perform a job; let performance be the determining factor.

The post on Wednesday 7/22/15 was about the requirements of cause for discrimination under the Equal Pay Act. This law slips under the radar at times, but is still out there when a person of one gender feels s/he is doing the same job but being paid less than a comparable person of the other gender. See the post for the requirements.

TAKEAWAY: Unfortunately it still happens; women are too often paid less than men for doing the same job. Regardless of who is being paid less, the Equal Pay Act can remedy the situation.

The post on Thursday 7/23/15 told us about a sweet-smelling development: aggrieved individuals aren’t needed to bring a Title VII pattern & practice case. This was a decision from a federal court in Illinois but may have far-reaching ramifications. The EEOC sued Rosebud Restaurants (and 13 related entities) for an alleged practice of refusing to hire African-American because of their race (including statements by the owner/controlling person of a preference not to hire black job applicants). The EEOC sued. Rosebud moved to dismiss, saying that THE EEOC needed to point to at least one specific an aggrieved individual to maintain the suit and since that didn’t happen, the suit should be dismissed. Based on the statutory language, the Court said that no specific individual must be named (and further that the EEOC may bring such actions in its own name and pursue widespread discrimination). The court also distinguished a retaliation case from this pattern & practice case. So now the case moves forward…

TAKEAWAY: Owners and managers should be careful about what they say and who they (fail to) hire; using a protected characteristic and not performance as an adverse factor could be very costly.

The post on Friday 7/24/15 was about another suit brought by the EEOC, this time related to a principal discharged on the alleged bases of age and gender discrimination. The employer owns and operated government-funded private schools; it hired Boro as a principal/supervisor. When the employer learned Boro had retired from a prior job, it started to ask questions about his fitness for this job and making age-related comments. It finally fired Boro a few days after hiring him. The suit also alleges that one of the owners made comments to the effect that females were more desirable as employees “because they were passive”. To read more, go to the post.

TAKEAWAY: Have you heard this before? Hire, discipline and fire based on the ability to perform the job and nothing else.

Finally, the post yesterday 7/25/15 highlighted a suit by the subject of racially-charged words and action for race discrimination and retaliation. Here, Kaiser was a phlebotomist who filed suit against a non-profit organization for race discrimination and retaliation. The allegations include that when travelling for business, Kaiser was subjected to racially charged words and remarks including “frequent use of the n-word, comments about President Obama, interracial dating, and stereotypes about blacks and food”.  Once his supervisor told Kaiser not to be offended by the use of the n-word or if people stared at him. Go to the post for more details. Shortly after asking another employee how long he had to endure all of that before reporting it higher up the chain, the other employee reported that Kaiser threatened him. The next day, he was discharged for the alleged threat. He sued.

TAKEAWAY: If an employer is going to have a basis for adverse action, make valid, hopefully with support; don’t make up something because others will see right through it.


ICYMI: Our Social Media Posts This Week -- July 12 - 18, 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 7/12/15 we talked about aggressive litigation continuing that attacks background checks (and not just under Title VII). The suits have been brought by both the EEOC and private plaintiffs when there is an alleged disparate impact on minority applicants and employees. The lawsuits were brought under both Title VII and the FCRA (Fair Credit Reporting Act). Not all cases have gone the way of the plaintiffs (many have fallen on problems with statistics presented in support of the alleged disparate impact). In fact, 2 cases brought by the EEOC under Title VII (against Dollar General and BMW) are still pending. Suits are also being brought under the FCRA, alleging various violations of its procedural requirements when using credit checks relative to employment; some current defendants are Michaels Stores and Whole Foods Markets. Publix just settled an FCRA suit for $6.8M that involved over 90,000 individuals. Read the post for more details.

TAKEAWAY: Using background checks is not illegal, but if done, must be done properly, in compliance with ALL applicable laws, and so as not to have a disparate impact on any protected group.

The post on Monday 7/13/15 was about Fox facing a pregnancy discrimination suit after an employee took a sabbatical for his sick wife. Ouch! The former tax-planning manager at 21st Century Fox has sued, claiming that after his wife gave birth in May 2013, she had severe post-partum depression and that 3 months later he told a supervisor he needed FMLA leave. The supervisor supposedly “reacted negatively” and began treating him differently than others about to take a leave; he also alleges that upon his return from leave, Fox retaliated and wrongfully terminated him. Fox denies the allegations, puts forth the Farragher/Ellerth defense (that he unreasonably failed to use corrective measures), and says termination was unrelated to the leave. We will all have to stay tuned and see how this case progresses …

TAKEAWAY: Remember that FMLA leave is not only for pregnant employees, but also covers leave related to pregnancy, birth or adoption.

In the post on Tuesday 7/14/15, we reminded you to always directly inform workers of FMLA rights. Always. In case we weren’t clear, always. If there is a question as to proper notice, the answer might not be in your favor. Look at what happened in this post.

TAKEAWAY: Even if your Handbook contains the required FMLA notice, make sure that employees asking about it are given a(nother) copy; don’t just assume they will read the Handbook.

The post on Wednesday 7/15/15 described the potential pitfalls of terminating an employee who requests extended leave. Remember that additional leave may be required after expiration of an FMLA leave, so don’t just say no right off the cuff. And don’t terminate the employee immediately if s/he fails to return to work but requests further leave. Read the post for more details.

TAKEAWAY: You probably know all about FMLA leave, but keep in mind the interplay between the FMLA, ADA and other applicable state statutes, all of which may require an employer to grant extended (more than 12 weeks) leave to an eligible employee.

The post on Thursday 7/16/15 told us about 6 ways divers rule at life (and how it also applies to you). I know you are probably skeptical, but read the post if you haven’t already. What are a few of the things? Going with the flow, literally and figuratively (being able to respond if things don’t go according to plan). Better communications (checking in to make sure others know what you’re doing or find out what they’re doing). Bravery (after education, training and practice). The others are in the post.

TAKEAWAY: We often see sports analogies applied to the workplace; here we see that skills learned in scuba diving translate perfectly into the work world.

The post on Friday 7/17/15 was about a sheet metal union that has to pay about $12M to partially settle a 44-year-old race bias suit. Yikes on all accounts! Hopefully you will never see either of those numbers (the length of a suit or the settlement figure) next to your company’s name. Here, the settlement relates to a portion of the case for 1991 – 2006 (and supplements a prior settlement of $6.2M for the period 1984 – 1991). The allegations are of a pay disparity based on race.  

TAKEAWAY: If you are party to a lawsuit, there is always the possibility of settlement, even many years down the road, so don’t give up. And settlements are always better because it is something you can live with and is a sure thing; leaving a decision up to a judge or jury is like rolling the dice ….

Finally, in the post yesterday 7/18/15 we noted that if you (plan to) live in a community with a homeowners’ or condo owners’ association, make sure you can afford it. What does that mean? Know what things are your responsibility under the legal documents and what things are the responsibility of the Association. You will probably be paying regular maintenance fees (also referred to as dues or assessments), usually on a monthly, quarterly or annual basis, and possibly special assessments, just to name a few things, on top of your regular mortgage payment, real estate taxes and utility bills. Recognize that all of these expense items will probably increase in the future – even if your income does not – so budget accordingly.

TAKEAWAY: Many people live in planned communities – those covered by a Homeowners’ or Condominium Owners’ Association and related legal documents. Make sure you understand all obligations, especially the financial ones, so you know who is responsible for what.


ICYMI: Our Social Media Posts This Week -- July 5 - 11, 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 7/5/15 we talked about the failure to pay a bonus to a disabled employee possibly being illegal discrimination. Here, the employer had a bonus scheme that disqualified employees who had received a warning for sickness absence (as opposed to those who received warnings related to conduct, which was discretionary). This operated so as to discriminate against disabled employees.  

TAKEAWAY: Whether or not it is facially intended to be discriminatory, if a policy does indeed discriminate against a protected class, you can be taken to task for same.

The post on Monday 7/6/15 contained 8 guidelines for evaluating accommodation requests. They include giving each request individual consideration, never saying never, and never saying always. The remaining 5 guidelines are in the post.

TAKEAWAY: Employers have an obligation to attempt to accommodate an employee’s disability (assuming the person meets the other requirements under the law); fulfilling that obligation can make the difference between a happy employee (and successful employer) and a lawsuit.

In the post on Tuesday 7/7/15, we reminded you to think carefully if you have an English-only rule. Why? Because the EEOC will claim you are discriminating on the basis of national origin. The only time to have such a rule is if it can be tied to a specific business necessity and then it must be limited in scope. Some of the allowed times are listed in the post.

TAKEAWAY: Your handbook or policy manual is indeed yours, and it is your business, but you must still ensure that there is no discrimination – intended or otherwise - on the basis of any protected characteristic.

The post on Wednesday 7/8/15 questioned if small businesses take risks by not following employment laws? Of course the answer is yes. The post talks about some of those risks.

TAKEAWAY: No matter the size of your business, be aware of what laws apply and your obligations under those laws. Ignorance is no excuse.

The post on Thursday 7/9/15 reminded us that although same-sex marriage is legal, Title VII still does not ban discrimination on the basis of sexual orientation.

TAKEAWAY: While something may be legal, that does not mean that it is in the best interests of your company – think carefully before you take even legal adverse action against someone based on their sexual orientation.

The post on Friday 7/10/15 contained 5 things (not) to do when facing workplace harassment or discrimination. The list is written with the employee in mind but can (and should) also be used by employers as a sort of mirror-image checklist. So what are the 5 things? Don’t forget to keep a record (document, document, document). Don’t fail or wait to report the issue. Don’t hamstring the investigation. The remaining 2 items are in the post.

TAKEAWAY: Employees are getting smarter and more litigious; make sure you as the employer know your rights and obligations and act uniformly and legally.

Finally, in the post yesterday 7/11/15 we noted that yes, even the EEOC has a duty to try to accommodate. What happened? The EEOC employee’s lung disease made her sensitive to air quality. She requested a private office with air purifier or the ability to telecommute. Both requests were denied; she was assigned to a cubicle that was too large for the air purifier to work for her. A month later, she spoke to a disability coordinator about her need for accommodation. Two months later she had surgery and returned following the surgery. She was told the EEOC was still looking for an office. By the following month, the employee guessed that the EEOC would not accommodate her. While all this was going on, the employee’s supervisor was allegedly harassing her about caring for her disabled mother. She eventually requested transfer to another office in a specific position; despite that position being open, she was transferred to another position and remained there until going out on disability retirement. Not surprisingly, she then filed suit for failure to accommodate, retaliation and hostile work environment. The EEOC moved to dismiss or for summary judgment. The judge ruled in favor of the EEOC as to a private office and the transfer request, but in favor of the employee on telecommuting as a possible accommodation. Read more of the details in the post.

TAKEAWAY: Even the agency charged with oversight and enforcement of discrimination and accommodation statutes has a duty to comply, so don’t you think you better also?


ICYMI: Our Social Media Posts This Week -- Jun. 28 – July 4, 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.

On the post on Sunday 6/28/15 we talked about businesses taking risks when not knowing or following employment laws. This applies to all businesses, but can be really worrisome to small businesses, especially those where one or only a few people are the chief cooks and bottle washers. The areas of most concern are wage and hour laws, employee benefits laws, unqualified HR managers/administrators, and uncoordinated HR functions. There are laws that apply to, or must be applied by, each of those categories; all of them can have a profound effect on the business. The post gives additional detail about some employment laws that you should be aware of.

TAKEAWAY: Know what can or does affect your business – whether laws or people – and make sure you know what your obligations are relative to each.

The post on Monday 6/29/15 was about a 3 of the biggest personnel mistakes made by many employers. So what are they? The first is failing to properly document performance problems. You’ve heard the saying in real estate that it is location, location, location? Well, in the HR/employment arena, it’s document, document, document. Whether it be on paper or electronically, you must still document performance issues (along with what is to be done to correct each problem). The other 2 mistakes are in the post.

TAKEAWAY: Employers often make mistakes, but learn from others and don’t make these three mistakes.

In the post on Tuesday 6/30/15, we talked about how NOT to conduct regular (non-Union-context) meetings in relation to a Union steward being unlawfully threatened with suspension for Weingarten meeting conduct. Obviously those in a unionized workplace will want to pay particular attention, but all employers can get pointers from this to apply to their businesses’ investigations. Here, an employee had a performance issue and was called to HR for an investigatory interview. He asked for union presence (exercising his Weingarten rights) and even met with the union steward ahead of time. The steward took notes, including one about the employee’s training. During the interview with HR, the steward pointed to his notes and the employee even read aloud some of the notes. HR directed the steward to close the notes; he refused. HR then told the steward to remove the notes or face suspension; he complied. The issue of whether or not the threatened suspension was a violation of the NLRA. The NLRB said that the steward’s job was not just to sit there silently, but to actively assist the employee. The Board said the use of the notes was providing clarification and counsel to the employee. More details are in the post.

TAKEAWAY: Even in the non-Union context, employers should make sure to give employees every opportunity to provide their views of whatever is being investigated, in their own words, even if some additional time is needed (unless the matter is an emergency).

The post on Wednesday 7/1/15 presented 7 causes of poor employee performance - and how to address them. Four stem from lack of ability and the other 3 from lack of motivation. Some of the causes include lack of resources, obstacles, no carrots, and no sticks. The post gives the details of each of those along with the other 3 causes.

TAKEAWAY: As an employer, you can and should expect proper performance from employees; however, you must also give them, or ensure that they have, the proper tools to perform.

The post on Thursday 7/2/15 mentioned a pregnant waitress “too big to wait tables”. It’s not only children that say the darndest things. Here, the EEOC filed suit against a restaurant that fires pregnant employees it believed were too big to wait on tables.

TAKEAWAY: Treat pregnant employees just like every other employee (unless there is a legal reason to afford them different treatment).

The post on Friday 7/3/15 was about what scuba diving can teach you about policy management. Really. So what is the relationship between the two? In both there is a need to mitigate risk, use the right equipment and prioritize training. As part of any good business plan, employers should assess risks in various areas (and then plan how to alleviate or at least mitigate those identified risks). Likewise, businesses should manage their policies to ensure they are current, complete and correct (all of which might include review by an employment-law lawyer). Finally, training, including ensuring that employees actually read and understand the policies, is oh so important. Details on all of these are in the post.

TAKEAWAY:  Plan your dive, dive your plan. Get the right equipment and take care of it. Prioritize training. ‘Nuff said.

Finally, in the post yesterday 7/4/15 (and also here), we wished everyone a Happy Independence Day and enjoyment of freedom.

TAKEAWAY: Don’t think freedom is really free; others have and continue to fight for it, every day, in so many ways. We hope you enjoyed the day.


ICYMI: Our Social Media Posts This Week -- Jun. 21 - 27, 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.

On Sunday 6/21/15 we talked about “Your Job or Your Daughter” is not the question anyone wants to hear (or should ask). Some of the facts here: of 132 work days, the employee left work early 54 times, arrived late 27 times, and was absent 17 days. She also had other performance issues (detailed in the post). Seems like a no-brainer to fire her, right? Wrong. She was caring for an ill child and had notified her supervisor of that fact. His response? To fire her, saying, among other things, “I need someone who does not have kids who can be at the front desk at all times.” More (stupid and illegal) comments from the supervisor are in the post. She sued under the ADA for associational discrimination. Her case went to a jury. Some tips on what the employer could have done differently are also in the post.

TAKEAWAY: Look at performance and document problems and attempts to help improve it. If the employee is not disabled, no accommodation is necessary to help improve performance. DO NOT stray into territory unrelated to performance.

The post on Monday 6/22/15 was about a former Honda employee’s second lawsuit, including retaliation. Cliff, an African-American, was hired in 2008, promoted 3 times, and in late 2013 complained internally about race discrimination. He filed a charge with the EEOC in November 2013, alleging race discrimination, and was fired January 2014. This suit alleges that he was fired for complaining about the discrimination.

TAKEAWAY: As we’ve said before, even if the underlying suit has no merit, employers must be careful not to take action against the employee for initiating the suit – retaliation has its own legs in a court of law.

In the post on Tuesday 6/23/15, we talked about an employee suing Wilkes-Barre General Hospital for race discrimination. Aneesha said that she was mocked for being black and her pronunciation of certain words, that a doctor once asked her if she eats chicken and watermelon, and that the hospital employer didn’t stop any of it. The employer has denied most of the alleged acts.

TAKEAWAY: Investigate all complaints of harassment or discrimination and take action if and when appropriate. Do not retaliate against the employee who filed the complaint. Period.

The post on Wednesday 6/24/15 asked whether your company should allow pets for Take Your Dog to Work Day (which fell on 6/26 this year). So did you? Some of the questions to ask for next year include whether or not to let employees bring pets to work, legal implications (including differentiating pets from service animals), and what should be included in a pet policy (yes, you need a pet policy if you intend to allow pets in the workplace). The answers to those questions, along with other Q&A, are in the post.

TAKEAWAY: Having a pet at work can give an employee the warm fuzzies, but it can also cause problems for other employees and for the employer. Make sure to think it through in both business and legal terms before allowing pets in the workplace.

The post on Thursday 6/25/15 confirmed that hiring a newly-licensed professional and then immediately firing her after finding out she’s pregnant is a big NO NO. The EEOC alleges that an employer in Georgia committed this error. April had been employed for about 2 weeks and then was fired 2 days after the company found out she was pregnant. And, to make matters worse, when she asked the reason for termination, the company told her she had deceived it by not disclosing the pregnancy during the interview.

TAKEAWAY: Do not ask about pregnancy unless it is job-related; treat pregnant employees and applicants like all others unless the person asks for something different (and then consider what your legal obligations are in the circumstances).

The post on Friday 6/26/15 was about a problem of recruitment or employment when a border patrol agent spied on female employees in the bathroom. Yep, this happened in the US. A male border patrol agent allegedly filmed women for about 9 months and then told officials the cameras were to catch agents using drugs. Additional details are in the post. The agent has since been indicted and placed on non-work status. Apparently the indictment came after the Border Patrol launched a recruitment drive for more female employees, necessary due to the increased numbers of women and children crossing the border. The question is whether the incident was a problem with recruitment or instead one in the employment realm. Current and former female Border Patrol agents talk of different (read: less favorable) treatment due to their gender.

TAKEAWAY: Outlier incidents that break the law can, and do, happen everywhere, but there is a problem bigger than that if they are merely a symptom in a much larger scheme or issue of discrimination or harassment due to a protected characteristic.

Finally, in the post yesterday 6/27/15, we talked about potential liability to an employee for third-party harassment or discrimination. Your employee is being harassed by a customer or vendor; that party doesn’t stop even though your employee asks. Finally, your employee complains to HR; later, the harassment continues and your employee resigns and sues. Are you liable? Quite possibly.

TAKEAWAY: Employers may well have a duty to prevent harassment of and discrimination against their employees not only by co-workers, but other invitees too, so training as to what is and is not allowable behavior or action is even more important.


ICYMI: Our Social Media Posts This Week -- Jun. 14 - 20, 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.

On Sunday 6/14/15 we talked about nonmonetary forms of employee recognition. Yes, other than money. Employees appreciate money, but often are just as happy with other things that recognize their contributions. A few examples are flexible work hours, telecommuting, and tuition reimbursement. Other ideas are in the post. Does your company use any of these already?

TAKEAWAY: A smart employer will recognize employees who perform well – not just by paying them what is due, but by some other method as well. This serves to keep up employee morale and spur on the employee to even higher heights.

The post on Monday 6/15/15 was about whether or not it was really pretextual discrimination. That means something that would otherwise be legal except that it was a pretext for something that was NOT legal. Some examples are dress or grooming codes standing in for race or religious discrimination and educational requirements standing in for disability discrimination. Read more about these and more in the post.

TAKEAWAY: Employers must be careful not to try to go in the back door just because the front door is locked – take lawful action at all times.

In the post on Tuesday 6/16/15, we questioned the protections of transgender employees in Pennsylvania. We learn that Central Pennsylvania actually fares better in this regard than does the state as a whole (which, in the one survey mentioned in the post, comes in 26th out of 50 states in transgender protection). State employees are protected from employment discrimination based on gender identity, but not private-sector employees on a state-wide basis. Some localities have laws protecting transgender employees, including Harrisburg, Lancaster, State College and York.

TAKEAWAY: In most instances, a transgender employee in Pennsylvania has no protection from discrimination because of gender identity or trans process status. However, that doesn’t mean an employer should discriminate just because it legally can.

The post on Wednesday 6/17/15 asked whether your company’s Handbook is current and legally compliant? If you don’t know the answer right off the bat, then you definitely need to consult with an employment law attorney. Some of the things that it should cover include pregnancy accommodation and meeting recent NLRB rulings. More detail is in the post.

TAKEAWAY: You don’t have to have a Handbook, but if you do, make sure it complies with all legal requirements – fulfilling employees’ rights but not putting more of an obligation on the employer than is required.

The post on Thursday 6/18/15 confirmed that lying on a job application can limit damages in a race discrimination suit. We all hope that applicants are honest, but when they are not, what if any effect does that have in a later lawsuit? Here, Fort, an African-American, worked as a material handler and was promoted to yard driver. He had an accident and was suspended pending internal investigation. The general manager recommended discharge; upper management concurred and the action was taken. Fort sued, alleging race discrimination. The company asked that the suit be dismissed or, alternatively, that his damages be limited by misrepresentations on his employment application discovered during the pendency of the case. The court first analyzed the dismissal request (which you can read about in the post) and decided the case could go forward. It then looked at the damage limitation issue. Here, the employer argued that Fort’s damage entitlement should be cut off on the date (during the case) that it found out he’d been untruthful on his application since that would have been grounds for termination. The court agreed.

TAKEAWAY: If an employer gives a reason for discharge, make sure it is the same one given each time asked about it; also, even if it later comes to light that an employee was untruthful about something, that will not completely absolve the employer of liability, but only serve to limit it.

The post on Friday 6/19/15 was about whether Pennsylvania employees are bound by contractual commitments or not. As relevant and noted in the post, enforceable agreements must (1) relate to a contract for employment, (2) be supported by adequate consideration, and (3) be reasonably limited in both time and territory. The timing of execution of an agreement can affect one or more of these factors. Courts especially do not like non-competition agreements or provisions and will look carefully to see if the factors are met. The post gives an overview of what courts may look for and how that may conflict with a law that is on the books.

TAKEAWAY:  If you intend to use any agreement or contract with employees, make sure an employment law attorney reviews it first to advise as to its enforceability and whether or not it will do what you want it to.

Finally, in the post yesterday 6/20/15, we talked about ExxonMobil employees getting $5.5M in back wages and damages. For what? Failure to be paid minimum wage or overtime pay when working at Shell, Exxon, BP and other stations in New Jersey. DOL’s Wage & Hour Division conducted an investigation and found “widespread violations” of the FLSA (which currently requires a minimum wage of $7.25 per hour). Here, the money will be split among over 1100 employees.

TAKEAWAY: Make sure you properly classify and pay your workers – if you don’t it will be a lot more expensive after the fact when damages and interest are added on top of the wages.


ICYMI: Our Social Media Posts This Week -- Jun. 7 - 13, 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.

On Sunday 6/7/15 the post talked about the NLRB targeting employer policies (yes, even non-union workplaces). So what is the NLRB concerned with these days? Handbooks (still), dress codes, email and social media that chill employees’ rights under the NLRA. For example, the Board struck down a handbook policy requiring “courteous” communications and restrictions on sharing confidential company information because it might cover heated discussions over employee pay and benefits. The post mentions the other areas too, including social media, use of the employer’s email system, and joint employers.

TAKEAWAY: We can’t say it enough – even if there is no union at your company, you are still subject to some portions of the National Labor Relations Act so make sure you are familiar with and compliant with your obligations and employees’ rights.

The post on Monday 6/8/15 was about that darn “regarded as” prong under the ADA. Yep, it is still alive and kicking (employer’s behinds). In the spotlighted case, an employer allegedly offered Anthony a position but then rescinded the offer when if found out he took prescription seizure medication (thus regarding him as disabled and incapable of doing the job). The EEOC sued and the employer settled, agreeing to pay $30,000 (and other relief).

TAKEAWAY: We are all human and come with preconceived ideas and biases, but when it relates to a person’s (in)ability to perform a job, it could rise to the level of violating the “regarded as” prong under the ADA – be careful.

In the post on Tuesday 6/9/15, we questioned whether it is lawful to withdraw an offer of employment the day after finding out about a birth? The EEOC thinks so and brought suit against Savi Technology, Inc. for pregnancy discrimination. However, rather than fight the suit, Savi chose to settle with the EEOC, agreeing to pay $20,000 (and other relief). In its response issued after the EEOC announced the settlement to the media, Savi said, in part, that the settlement includes Savi’s denial of discrimination and that its withdrawal of the offer had nothing to do with discrimination but everything to do with not being able to meet the applicant’ demands in a counteroffer. More of Savi’s response is in the post.

TAKEAWAY: They are called nuisance settlements for a reason – they may be with or without factual substantiation, but they take both human and financial resources to deal with them, and so it is often better to settle than proceed with the matter.

The post on Wednesday 6/10/15 asked if it’s good enough for SecState, is it good enough for your company? Yes, we are talking about the use of private email accounts for business (whether US Government or your company). Former Secretary of State Clinton’s alleged reason, as noted in the post, is that she didn’t want to carry 2 devices. Personally, I find this disingenuous since devices can be set up to work with numerous email accounts (thus not requiring more than 1 device). But this is just part of the BYOD and “working remotely” issues faced by every company out there and there is not just one right answer, but perhaps just the answer (at least for now) for your company.

TAKEAWAY: Companies that allow employees to use their own devices (or even provide devices) for employees to access email other than on a PC in the office must have in place and evenly enforce a policy detailing what, how, and when the device can be used and what will happen if the employee strays from the policy.

The post on Thursday 6/11/15 described a rare finding of general contractor and not employee status. See, this creature really does exist! Here, a subcontractor hired its own subs, including UCI. The general contractor (GC) gave work orders to UCI which then passed them around to its employee, Walter. Walter, an African-American, got into a fight with another sub’s African-American employee. The GC banned both of them from the job site. This effectively ended Walter’s employment since UCI had no other work for him. He sued the GC for race discrimination. Some salacious allegations are in the post, but in court it came down to whether or not the GC (in addition to UCI) was Walter’s employer. The court here found that Walter was NOT an employee of the GC.

TAKEAWAY: Often a company blurs the lines between contractor and employees, thus finding itself at the short end of the wage stick, but it is possible to have a valid, legal contractor relationship.

The post on Friday 6/12/15 was a reminder that corporate form DOES matter. For various reasons, but this post talks about tax ramifications based on some of the most common types of business form.

TAKEAWAY: Talk to an attorney well-versed in corporate law prior to going into business – it will help you decide what business form is appropriate to protect you and your assets while allowing your business to move forward.

Finally, in the post yesterday 6/13/15, we talked about a $110M gender discrimination suit that was filed against Novartis. Yes, the international drug company. The allegations are that it “routinely denied female employees equal pay and promotion opportunities”. This suit comes only 5 years after the same company suffered a 9-figure jury verdict (over $250M) over similar allegations. This suit makes claims of a “boy’s club atmosphere” that is hostile to females and prohibits them from ascending into positions of leadership. The employer has denied the allegations. I guess we all have to stay tuned to see how this plays out.

TAKEAWAY: Big numbers aside, this is unfortunate; all legal things being equal, if employers would just pay both sexes the same for doing the job, these issues would not arise.


ICYMI: Our Social Media Posts This Week -- May 31 – Jun. 6, 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.

On Sunday 5/31/15 we talked about an isolated deduction not defeating the salary basis for exempt salaried employees. Whew! This is pretty important when the employer wants to preserve that exempt status. Here, the employee managed a store; she was expected to work a minimum of 50 hours per week and at least 5 days per week, for which she was paid a salary of $625 and classified as exempt. One week, she worked fewer than 50 hours and received a paycheck for less than the salaried amount. The court found the employer did not make improper deductions on a regular basis, such that it did not forfeit its ability to treat her as exempt. To bolster its argument, the court noted that while the employee worked fewer than 50 hours on 13 occasions, this was the only time there was a pay deduction. Also, the handbook prohibited improper deductions and provided for reimbursement; this supported the employer’s window-of-correction defense which the court help applied to deductions that were inadvertent OR isolated.

TAKEAWAY: Mistakes happen; employers should own up to them, correct them, and move on without destroying the exempt pay basis of employees.

The post on Monday 6/1/15 was about ruff days at the office – service animals under the ADA. So what truly qualifies as a service animal? A dog or miniature horse individually trained to perform tasks which assist a person with a disability. The law, and the post, give examples of the tasks that can be performed. Note that the ADA specifically excludes animals present for emotional support. Some courts have held that a business need not allow in a service animal if it is a health or safety risk to other patrons or is disruptive to the business itself. In the employment context, courts have looked at requests to bring service animals into the workplace as requests for accommodation – this opens a new can of worms because that part of the law does not automatically exclude support or therapy animals nor is it limited to dogs or miniature horses. The post gives but one example of how a court analyzed a reasonable accommodation request.

TAKEAWAY: The response to the request to admit/bring along a service animal will depend on the applicable section of law, the type of animal, the animal’s purpose, and the possible effect on others or the business itself. Consult an attorney to be sure.

In the post on Tuesday 6/2/15, we noted that your policy can treat probationary employees differently, but the law may not. It is common for an employer to reserve the right to terminate employment at any time during a probationary period. That is fine, but employers must remember that they are not insulated from the fact that the termination must still be legal. The employer in the post learned that the hard (and expensive) way. The employee there was not eligible for FMLA leave, but was an eligible employee under the ADA, hence he was entitled to reasonable accommodation for his condition regardless of being a probationary employee.

TAKEAWAY: You do need to enforce your policies, but not to the extent they conflict with applicable law. Make sure you know when the law requires a variance from the policy.

The post on Wednesday 6/3/15 talked about a company’s shady-looking RIF leading to a $145K settlement. Let’s start out by saying this had to do with firing a disabled employee while he was out on medical leave. Got your attention? It can be done, but carefully. Oh so carefully. Here, the 3-year employee requested and received approval for 12 weeks of FMLA leave as a reasonable accommodation under the ADA. But during the leave, he was terminated; the employer said it was part of a “reduction in force.” That would’ve been acceptable if it were true – but as you can guess, it wasn’t.  No other employees were RIF’ed nor were there department- or facility-wide RIFs then either. All that invited a suit by the EEOC which ended up being settled.

TAKEAWAY: As we’ve noted before, if you are going to assert a reason for an (in)action, you better make sure you can provide proof or support for that reason if called to the mat on it.

In the post on Thursday 6/4/15, we talked about retaliation and what it means for you. Despite everything you hear or see in the news, the #1 claim with the EEOC is for retaliation. Why? Partly because they are easier to prove than the underlying claims of discrimination. The EEOC is the agency with which charges of retaliation are filed. The middle of the post gives a good basic formula for determining if retaliation applies. The post also gives some examples of retaliation.

TAKEAWAY: Even if you are sure, and even if it is proven, that there is no basis for an employee’s claim of discrimination, do not take adverse action against the employee for bringing or filing that claim. (Yes it’s hard, but just don’t do it.)

The post on Friday 6/5/15 was a recap of Hollywood intern cases and the FLSA. Yep, it’s that time of the year again and you need to make sure to do it right if you bring on interns. Courts are still determining whether someone was an intern or not and, more recently, if the Department of Labor’s 6-factor test on the requirement to pay compensation is out of date. Those factors are listed in the post. If they are not met, the employer runs the risk of liability for not (properly) paying the intern as an employee.

TAKEAWAY: The best way to proceed relative to interns is to make sure the duties to be performed by the intern match educational metrics / goals and that the internship as a whole is for the benefit of the intern and not the company.

Finally, in the post yesterday 6/6/15, we talked about how to analyze Equal Pay Act claims. I know – you’ve forgotten about this law. But it still lurks large given the continuing pay disparity between men and women. Most claims are filed under Title VII, alleging discrimination on the basis of sex, but the EPA is still viable and a federal court recently issued a ruling under that statute in a claim brought by a professor against her university employer. In looking at the facts before it, and noting that inconsistencies in the employer’s asserted reasons for the pay disparity, the court decided to send the case to a jury.

TAKEAWAY: The EPA has only limited exceptions that permit a disparity in pay by gender for persons doing essentially the same job. Make sure your situation falls under one of those exceptions before paying one person less than the other; otherwise, you may end up paying a lot more than you planned.