Tuesday
May262015

ICYMI: Our Social Media Posts This Week -- May 24 - 30, 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 5/24/15 the post talked about how a handbook mistake can come back to bite the employer – even if the employee isn’t otherwise entitled to the benefit. Yes, you read that right. Here, an employee who was fired sued for FMLA violation. The employer tried to argue that the employee was not entitled to FMLA protection because it did not have the threshold number of employees, but since it did not say that in its Handbook, the court said it may have waived that argument/defense. Oops.

TAKEAWAY: What you don’t say in your Handbook can be as important as what you do say – have an employment law attorney review your Handbook to ensure you are not obligating yourself to something you might not legally have to.

The post on Monday 5/25/15, Memorial Day, was a sincere thank you and remembrance of those who served and sacrificed for our freedoms.

TAKEAWAY: If you haven’t recently, take time out to thank a veteran for his or her service.

In the post on Tuesday 5/26/15, we questioned whether an employer can ask to see an employee’s social media account? The answer is “it depends”. On the circumstances. Why the employer is asking. What it really wants to see. And so many more things. The post talked about access for 3 main reasons: safety, cultural fit, and adherence to workplace rules. The post gives more details in each of these areas. It also talks about some of the legal downsides, including discovering information the employer has no need to know.

TAKEAWAY: There might be occasions where an employer wants or needs to access an employee’s social media account(s); the employer should consult with an employment law attorney to ensure legal compliance prior to taking any action in this ever-changing area.

The post on Wednesday 5/27/15 told us about a Papa John’s franchise hit with a huge wage judgment: $2M. The New York franchisee allegedly underpaid employees by rounding down hours worked and making delivery persons do other types of work that wouldn’t let them earn tips. Each alleged action resulted in employees being paid less than NY minimum wage.

TAKEAWAY: Pay your employees appropriately – based on (non)exempt classification and minimum wage requirements – or you will get caught and have to pay a lot more.

In the post on Thursday 5/28/15, we learned about employment at-will and what it really means. This is super important in PA, a state where employment is always at will unless varied by written agreement of the parties. So what does it mean? It means that the employee can quit at any time, with or without notice or reason, and that the employer can discharge the employee at any time, with or without notice or reason. The exception for discharge is if it is for an illegal reason, such as being based on a legally-protected characteristic, some of which are listed in the post. It is the exceptions that seem to generate a lot of charges or suits.

TAKEAWAY: Whether employer or employee, the employment relationship remains at will unless there is a written agreement to the contrary; however, remember that courtesy in ending an employment relationship almost always benefits both parties and tends to lessen the possibility of any charges or suit being filed.

The post on Friday 5/29/15 was about a pawn shop settling claims of sexual, ethnic and racial harassment for $300K. This case (again) arose in NY. The allegations included that the former owner referred to his mostly female Hispanic workforce as “Seapod bitches” and other employees as “whipping slaves”. But he was an equal opportunity offender; he allegedly called African-American customers “black bastards” and said that the store smelled because “the monkeys are coming in.” More in the post. Is it any wonder the other owners severed ties and agreed to the settlement?

TAKEAWAY: As an owner, you are responsible not only for your employees’ words and deeds but your own too – don’t let them run you legally amok.

Finally, in the post yesterday 5/30/15, we talked about if you’re HIV positive, you’re fired! Well, not so quick … A national manufacturer and producer settled a disability discrimination suit with the EEOC and agreed to pay $125,000. The suit alleged that the employer fired an employee after finding out he was HIV-positive. He worked as a machine operator in the packaging department and had neither performance nor safety problems, but the employer admitted it fired him because of his HIV-positive status. Of course, this is a violation of the ADA.

TAKEAWAY: Don’t make hiring, discipline or firing decisions based on a legally-protected characteristic; make such decisions based on the ability of the person to perform the job.

Monday
May182015

ICYMI: Our Social Media Posts This Week -- May 17 - 23, 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 5/17/15 we talked about the fact that employers can no longer require PIPs to be kept confidential. You read that right. The NLRB issued this ruling in a case where an employee was put on a Performance Improvement Plan (“PIP”) after a bitter meeting between her and her supervisors. The PIP required that she not talk about it with co-workers (which she did). Further, HR required her to disclose the names of other employees who might have similar complaints about the supervisor. After being discharged, the employee filed a charge with the NLRB. The NLRB found that the employer’s actions illegally chilled concerted activity by (1) requiring her to disclose others’ issues and (2) prohibiting her from discussing the PIP’s terms; these were found to be a violation of Section 7 which gives employees the right to discuss the terms and conditions of their employment.

TAKEAWAY: In ANY type of workplace, be careful what you put in the PIP – Section 7 of the NLRA applies to ALL employers and you don’t want to get caught in something that could be easily avoided.

The post on Monday 5/18/15 was about small businesses struggling with ADA compliance. Yes, this includes making restrooms accessible (unless grandfathered in) to avoid a lawsuit. And be glad you are not in CA – a law there gives plaintiffs at least $4,000 in damages!

TAKEAWAY: Along with other legal compliance, make sure your business meets all required standards of accessibility under the ADA.

In the post on Tuesday 5/19/15, we were reminded of 3 important practices to avoid a sexual harassment lawsuit. As 1 in 4 women report that they have been sexually harassed at work (and more in some industries), this is pretty important. While there is neither federal nor PA law mandating sexual harassment training, there are things you can do to avoid a lawsuit. The first is to be practice about training managers and employees, explaining policies, the procedure to make a complaint, and the investigative process once a complaint has been made. The other 2 practices are in the post.

TAKEAWAY: Make sure you have a policy prohibiting sexual harassment, that employees know how to use it, and that you investigate all complaints (taking action as appropriate).

The post on Wednesday 5/20/15 told us to carefully document discipline after FMLA leave to save the day. If after reading that sentence you are thinking, “yeah, yeah, blah blah blah,”, then you are lucky if you haven’t been the subject of a lawsuit yet. Discipline after FMLA leave can easily look like retaliation, so make sure it’s not. Here, an employee who returned from FMLA leave (his wife gave birth to their child) was allowed to refuse overtime. Others then told the employer that the employee had been less than truthful about his reported work hours and the records existed to support their allegations. The employer fired him for cheating on his timesheets; he sued for FMLA retaliation. The court ruled in favor of the employer since it had evidence supporting its basis for discharge.

TAKEAWAY: The best thing to say is what we started out with: make sure to carefully document the valid, legally-permissible reason for any discipline (including discharge) after an employee’s FMLA leave.

In the post on Thursday 5/21/15, we learned about a suit against Cantor Fitzgerald for pregnancy discrimination (and questioned whether it was real or mere coincidence). Here, Cynthia, a 6-year employee filed suit, saying that she told her boss, the COO, of her pregnancy, to which he responded, “That’s what I figured” and “Don’t get too excited. Most women miscarry with their first child”, accompanied by him not speaking to her any more and avoiding her in the office. Her suit also says that she was fired only 11 days later despite having no performance issues and was replaced by a non-pregnant employee. Worse yet, the suit alleges that she miscarried 11 days after being fired. Cantor Fitzgerald told her the reason for discharge was that her position was eliminated. I guess we all need to stay tuned to see how this turns out.

TAKEAWAY: See a trend here? If you intend to discipline (or discharge) an employee in a protected class, make sure you can prove that the reason for the action has nothing to do with the protected characteristic and everything to do with performance (or other business necessity).

The post on Friday 5/22/15 was about simple math: a request for a mat + discharge after a complaint = $27,500 settlement for discrimination & retaliation. Who had to do this math? A hair salon in Atlanta. An employee had scoliosis and asked for a mat to stand on while working. The employer refused and she complained about discrimination. The employer then fired her. The employer did not engage in the ADA interactive accommodation process; likewise, the employer took adverse action when the employee complained about her treatment. Ugh.

TAKEAWAY: Remember your obligations as an employer under the ADA – to engage in the interactive accommodation process and take no adverse action against the employee for taking advantage of his/her rights under the law.

Finally, in the post yesterday 5/23/15, we talked about nooses in the workplace: investigate and act immediately. You read it right, nooses. And this case is local, from right here in York. 2 African-American water treatment facility employees complained that outside contractor had dirtied the common shower area. The next day, they found what appeared to be a rope noose in the shower area. They complained. A few days later, they found another rope shaped like a noose in another building and complained. The police were called but nobody could find out who hung the ropes or whether or not they were supposed to be nooses. The employees sued the City (the employer) for hostile work environment; they lost because it had done what it should have when it received the complaints.

TAKEAWAY: Take all employee complaints seriously. Document the complaint, investigate it, and make a determination as to any action to be taken as a result. Do not retaliation against the employee for making the complaint.

Monday
May112015

ICYMI: Our Social Media Posts This Week -- May 10 - 16, 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 5/10/15 we posted about a discharge for poor performance or age discrimination (and let you be the judge). In this case, Odell, who was 80 when his employment ended, had worked as a salesman for the company for over 50 years (although ownership changed during that time). He claims he was discharged due to age; he supports that by saying employees made ageist comments, including asking him when he was going to retire, and that when he complained about it, he was fired. He also noted that although the company cited poor performance as the reason for discharge, no similarly-situated employee had been discharged. He filed a suit under the ADEA and state law. The case is currently headed toward a jury trial.

TAKEAWAY: Employers can indeed discharge older employees and, in PA, with no written contract to the contrary, don’t even need a reason. However, make sure the discharge is not based on a protected characteristic like age – and that your manager’s loose lips don’t contribute to the sinking of your ship.

The post on Monday 5/11/15 was about when experience pays: paid vs unpaid internships. This post was a follow-up to our 4/25/15 post on this subject. Colleges are about done finals and students will be looking for internships during the summer (or even during the school year). You as an employer can offer that, but make sure to do it right and not run afoul of the law. This post lists six criteria the Dept. of Labor looks at in determining of the internship can be unpaid; they include that it is similar to training that would be given in an educational environment and is for the benefit of the intern. The others are in the post.

TAKEAWAY: Check with an employment law attorney before you make an offer for the internship to ensure whether or not you must treat the person as an employee or that it can be an unpaid position.

In the post on Tuesday 5/12/15, we were reminded that the ADA interactive process is a two-way street. The news often features an employer who has not done what it needs to under the ADA to accommodate an employee, but sometimes it is the employee who drops the bag (and loses any potential legal claims as to ADA violation). Here, Pamela worked for Kohl’s Department Stores. When Kohl’s restructured, her hours were changed and sometimes included swing shifts. She told her boss that the new schedule aggravated her diabetes; she also turned in a doctor’s note requesting a predictable day-shift position (as an accommodation). Approval was given to avoid scheduling Pamela on swing shifts, but not nights or weekends. She quit. Her boss asked what she could do and that Pamela reconsider to discuss other potential accommodations. Pamela left. A week later, her (former) boss called and again asked her to rethink the resignation and consider possible alternative accommodations. Pamela had no further contact with Kohl’s. After she filed a charge with the EEOC, it sued on her behalf, The trial court entered summary judgment for Kohl’s and the appellate court affirmed, finding that Pamela had not participated in further discussions about possible accommodation.

TAKEAWAY: Accommodation under the ADA is a two-way street with green lights both ways. Both parties must take part; if the employee does not, s/he will not have a valid legal claim against the employer for failure to accommodate.

The post on Wednesday 5/13/15 told us that pregnancy discrimination is more common in low-wage, male-dominated jobs. Why do you care? Because you should not allow this to occur and can look especially close at these types of positions. New positions or duties need not be created for pregnant employees, but they cannot be penalized just because they are pregnant. Likewise, don’t assume they cannot do part of their job if pregnant; let them do the job and deal with any issue if and when you get a doctor’s note limiting job performance in some way. Remember the recently-decided Young v. UPS case …

TAKEAWAY: Pregnant employees need not be treated more favorably than other employees similar in their (in)ability to work, but they must be treated at least the same as those other employees.

In the post on Thursday 5/14/15, we learned about employee versus contractor and knowing the right classification. Many state and federal agencies are looking closely at worker classification, so you will want to get it right. Just because the person is called a contractor or receives a Form 1099 does not mean s/he is a contractor for legal, wage and tax purposes. Some of the factors used to determine proper classification are in the post and include whether the person uses his special skill, knowledge or training in doing the work. The most important factor is control – the more control the business exercises, the more likely the worker will be classified as an employee.

TAKEAWAY: We’ve said it before and will again: make sure you properly classify your workers to avoid lawsuits and wage or tax penalties.

The post on Friday 5/15/15 was about a smoking gun or just thick smoke based on a boss’s “Your job or your daughter” comment. This resulted in an ADA associational bias claim. What happened? A receptionist was fired after many absences to care for her daughter. In fact, out of 132 work days, she arrived late 27 times, left work early 54 times, and was absent 17 days. She also worked beyond her scheduled eight-hour shift more than 31 times. She was only disciplined once for being late. One day, her daughter went to the ER; she told her boss who responded that she should not worry about her work absence. She took 2 more days off since her daughter remained in the ER. Later that month and in the following month, she took more time off to care for her daughter; she kept her boss apprised. When she returned to work after the latest absence, she was fired. She was told that the company “needed someone without children in her position.” After asking to keep her job, her boss again said he needed someone who could be there and asked, “How can you guarantee me that [] two weeks from now your daughter is not going to be sick again?” Not surprisingly, she sued under the ADA and state law, asserting disability-based associational discrimination and other claims. The judge denied summary judgment and found that the boss’s comments were either a smoking gun or, at least, a “thick cloud of smoke” sufficient to send the case to trial.

TAKEAWAY: Train your managers (and HR personnel) so they know what they can and cannot say to employees – remember that loose lips can indeed sink big ships.

Finally, in the post yesterday 5/16/15, we talked about how to handle inappropriate social media posts by employees. Think about it and come up with a plan of action before it actually occurs. And make sure to look at both company-owned or sponsored and individual socmedia outlets; both can be harmful to the employer.

TAKEAWAY: It’s no longer a new day; you should have in place legally-compliant policies dealing with employee’s use of social media -- on your company’s sites and their personal sites – and both communicate those policies to employees and enforce them.

Monday
May042015

ICYMI: Our Social Media Posts This Week -- May 3 - 9, 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 5/3/15 we posted about remembering that FMLA leave doesn’t count when firing for attendance reasons. That’s right. You cannot include allowed FMLA leave for evaluation purposes or when counting absences. In this case, Jamie transferred within departments at the employer, the University of Pittsburgh Medical Center. She was eligible for FMLA leave at the time of transfer. She shortly accrued at least 6 tardies and 3 absences (including one for which she submitted a false doctor’s note and another where she tried too late for a shift change, arrived late and left early). The following month, Jamie called off to take her mother to the ER. The next day she called the employer to ask for FMLA leave. Two days later, the employer terminated her based on the absences. Jamie brought suit, alleging FMLA violation. The matter went to trial where the employer showed the jury evidence of the absences and that it made the decision to terminate prior to the date on which she took her mother to the ER (thus not taking into account the FMLA leave request). The jury believed the employer.

TAKEAWAY: If done right, an employer can still discipline or discharge an employee for poor performance even if the employee is on or has requested FMLA leave.

The post on Monday 5/4/15 was about retaliation: you can get mad at an employee, but don’t try to get even! It’s tempting, I know, but just don’t do it. The post talked about a case out of Massachusetts where the employee had a hearing impairment but could normally hear well with hearing aids. He had previously worked for the employer, S&H Construction, Inc. and was rehired in 2003. He did not report grapevine comments about another employee making disparaging remarks about him. However, at some point, S&H’s owners learned some supervisors did not want him on their jobs – it was not related to his hearing impairment but was instead performance-related. In Fall 2005, the employee’s hearing aids stopped working and he could not afford a new one. He stopped going to company meetings but was not disciplined. He served as job supervisor on 2 jobs between January – April 2006 and worked on other jobs. He then took an unpaid leave for knee surgery and returned to work in June 2006, still with no working hearing aid. On one job after his return, the supervisor complained because he had to explain things to the employee several times and felt the employee had a bad attitude. On another job, the employee performed poorly and the customer complained. On yet another job, the employee was a co-supervisor; his fellow supervisor alleged that he was often not on the job, reading in his truck, and painted his truck in the homeowner’s driveway instead of working. The final straw from October 2006 is in the post. His employment was terminated. He filed an admin charge on the basis of his disability. So far, so good. Then S&H filed suit against him in state court to collect monies it had loaned him. Default judgment was entered for S&H. To collect, it took possession of a minivan the employee’s ex-wife was using for his 3 children. The ex rightfully panicked; she called one of S&H’s owners to try and resolve the situation. Again, so far, so good. But then the S&H owner told the employee’s ex that they would return the car to her if she got the employee to drop his admin charge. Oooh, bad employer. The employee then amended his admin charge to add retaliation. The admin agency ruled against the employee on his disability claim, but, no surprise, ruled in his favor on the retaliation charge. The reasoning is in the post. He was awarded $25,000 in emotional distress damages and S&H had to pay a $5,000 civil penalty and reimburse the employee’s attorneys’ fees.

TAKEAWAY: Even if the employee files charges or sues for what you believe to be no legal basis, don’t retaliate – you can win the underlying suit but still lose big on the retaliation claim.

In the post on Tuesday 5/5/15, we talked about an overbroad medical info requirement resulting in payment of $477,000 to 12 employees under a suit brought by the EEOC for disability discrimination. The EEOC sued for violation of the ADA when the employer required all of its truck drivers to notify the employer whenever they had contact with a medical professional, including routine matters. The court ordered the company to change its policy and obtain such medical information only when job-related. Earlier this year, the court ordered the employer to pay over $225,000 in back pay and interest, over $49K in compensatory damages, and over $202,000 in punitive damages.

TAKEAWAY: Medical inquiries have their place and reason, but must be job-related; remember that before asking for information.

The post on Wednesday 5/6/15 reminded us about 5 types of co-workers nobody wants to work with – and asked how many are in your workplace. Why is this important? Because you need to know how to recognize the types and deal with them, disciplining as necessary but applying your policies uniformly.

TAKEAWAY: Employees may fall into general categories or types, but make sure (legally) that the traits and actions they show are not caused by something that is a legally-protected characteristic or disability.

In the post on Thursday 5/7/15, we learned that severance payments are considered wages for federal income tax purposes. This is based on a US Supreme Court decision issued in 2014. The case came about when a company filed for bankruptcy protection and terminated thousands of employees. It offered various severance packages and reported payments under the packages as wages, withholding the employees’ share of federal taxes and paying its share. Subsequently, the company asserted that the severance payments should not have been taxable and requested a refund of the taxes paid. The IRS denied the request; the matter went through the courts until the Supreme Court decided in in favor of the IRS.

TAKEAWAY: Remember that severance payments are considered wages for federal tax purposes; severance agreement should include a provision that taxes will be deducted from any such payments.

The post on Friday 5/8/15 was about a “Male help wanted” sign and whether it was discriminatory. The business owner said he needed someone strong to lift heavy boxes and do other work. A female asked that the sign be replaced with one that was gender-neutral; she was asked to leave the store. Federal anti-discrimination law doesn’t apply as the store has fewer than the threshold 15 employees. That state’s (LA) anti-discrimination law also did not apply. The female hadn’t applied for a job and been denied employment, so she could not file a charge with the EEOC.

TAKEAWAY: Remember that there are thresholds for applicability of laws. However, just because a business CAN do something does not mean it SHOULD. The court of public opinion might tell it otherwise.

Finally, in the post yesterday 5/9/15, we talked about permissible discrimination in health benefits. Yes you can (in certain circumstances). The post talks about some of the health factors on which eligibility cannot be based (including health status and genetic information) and others which are allowable to use, including part-time versus full-time work status.

TAKEAWAY: Yes you can discriminate against certain employees relative to eligibility for health benefits, but only if done legally.

Monday
Apr272015

ICYMI: Our Social Media Posts This Week -- Apr. 26 – May 2, 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 4/26/15 we posted about whether employees are entitled to their personnel file. The thing to know in answering the question is that every state has its own law on this issue – or may have no law – and it can differ by the type of employment (i.e., private or public sector). In PA, someone can view a personnel file under certain circumstances and at certain times during employment or for a period after employment ends. If you need to know your rights as an employee or employer relative to personnel files, contact me.

TAKEAWAY: Before agreeing to or denying a request for an employee to view his or her personnel file, know what your obligations are under the law.

The post on Monday 4/27/15 told us that deactivated Facebook accounts are discoverable in litigation (or at least potentially so). Here, the employee, who was suing his employer, responded to a request by the employer that he produce his entire FB page from the beginning of his employment by saying he does not presently have a Facebook account.” That was true since he deactivated it 4 days after receiving the employer’s request. However, he then reactivated it 4 months later and provided 4000 pages from the account for the judge to review. The judge was not pleased. The judge ordered all 4000 pages turned over to the employer and, in addition, that the employee allow the employer to log into his Facebook account.

TAKEAWAY: Know the difference between deactivated and deleted FB accounts and how to preserve data in either situation.

On Tuesday 4/28/15, the post asked “I falsified my time records but I’m still suing you. What???” Yep, it happens in this grand world of ours. A federal court recently ruled that an employee can still sue for overtime (under the FLSA) even when the employee knowingly violated company policy by underreporting hours worked. Seems wrong, doesn’t it? Well, it was what is, but shouldn’t be, a common scenario. The manager told the employee the employer would not pay overtime, so the employee worked off the clock and did not report the hours. However, the company had a policy requiring accurate reporting of hours worked. The employee did not report the manager’s instructions, but worked the hours and did not report them. After he quit, he filed suit for overtime pay. The manager’s action in telling the employee not to report the hours worked trumped the employee’s failure to accurately report his time worked.

TAKEAWAY:  Managers and supervisors must be properly trained so they are not telling employees one thing when a policy (or applicable law) says something else. This can come back to bite the employer.

The post on Wednesday 4/29/15 reminded us that a search of a company vehicle is not an employee interview triggering Weingarten rights. In a unionized workplace, employees are entitled to have a union representative present during investigatory interviews. In February 2015 the NLRB issued an Advice Memorandum on the question of whether an employer’s search of a company car during a pending investigation triggered Weingarten rights. There, the employer found marijuana under chairs where the employee had been sitting; the employer summoned the employee who asked for a union representative. The rep arrived and an initial interview was held. During the ensuing lunch hour, the employer searched the company car used by the employee.  The post mentions what was found. The employer summoned the employee for a second interview and again the union rep was there. Eventually a written reminder of policy was handed out. The union grieved it; the employee then filed a charge alleging violation of her Weingarten rights via search of the company car (as a continuation of the initial interview that finally concluded after the interview after lunch). The Advice Memo is clear that the vehicle search was not an investigatory interview or a continuation of one; the post contains the reasoning.

TAKEAWAY: In a unionized workplace, not everything entitles employees to have representation present; know what does or does not.

In the post on Thursday 4/30/15, we learned that limo drivers were taken for a ride of their own. What happened? Drivers had to sign various documents, most of which they could not understand, to get paychecks. And those checks include deductions for things like vehicle repairs, uniforms, drug tests, fuel, and more (see the post). The deductions cause earnings to fall below minimum wage. The government investigated and the employer ended up paying over $230,000 to 479 employees on account of the back wages for which inappropriate deductions were taken.

TAKEAWAY: Make sure you have proper authorization (from the employee and under applicable law) to make deductions from a paycheck.

The post on Friday 5/1/15 was about a club you don’t want to join: background check lawsuit defendants. Who are some of the members of this club? Whole Foods, Check E. Cheese, Michael’s Stores, Dollar General, Panera, Publix, and K-Mart. They have all been sued for alleged violations of the Fair Credit Reporting Act (“FCRA”) related to background checks conducted by those companies on potential future or current employees. Some settled, Publix for $6.8M and Dollar General for $4M for example. What are some reasons an employer might want to conduct a background check? The employee is handling cash or is or on another person’s or company’s property. Background checks come within the ambit of “consumer reports” under the FCRA. The law requires that the employer first issue a clear and conspicuous disclosure, in writing, to the (potential) employee that a consumer report may be obtained. Then the (potential) employee must give a written authorization for the employer to obtain the consumer report. After that, the employer has to certify to the reporting agency that the report will be used for a permissible purpose and it has complied with the FCRA and applicable EEO laws. And that’s not all.  If, after obtaining the report, the employer intends to take adverse action – including a denial of employment or other decision that adversely affects an employee – there are required steps to take. See the post for some of them. An employer can be liable for damages for FCRA violations; negligent violations can result in liability for actual damages and reasonable attorneys’ fees/costs, while willful violations can result in actual damages or statutory damages between $100 - 1000 plus punitive damages and attorneys’ fees/costs. The post concludes with 10 steps to take to avoid becoming a member of this club; read the post and contact me if you need help in this area.

TAKEAWAY: Obtaining a background check on a (prospective) employee is neither simple nor a game; do it right or be prepared to fork over dough for a legal violation.

Finally, in the post yesterday 5/2/15, we talked about whether you can smack your harasser under Title VII. A federal judge in Philadelphia was faced with this question: does an employee who complains of sexual harassment and is later fired automatically lose the right to sue for retaliation because she smacked the harasser to beat back his attempt to grope her? The Judge said the answer depends on the context in which the smack occurred. If it was a stand-alone act, then that might result in forfeiture of anti-retaliation protection. If, however, it was because the harassment continued despite the employee’s complaints and employer’s alleged failure to take action, then there could indeed be liability for retaliation.

TAKEAWAY: It is never recommended that employees take physical action against each other, but there are certain circumstances where it will not only be warranted, but provide a legal cause of action to the employee.

Monday
Apr202015

ICYMI: Our Social Media Posts This Week -- Apr. 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.

On Sunday 4/19/15 we posted about the suit against Harvard and MIT for lack of closed captions. Yes you read that correctly. The suit alleges discrimination against deaf or hearing-impaired students as a result of a failure to provide closed captioning in online lectures, courses, podcasts, and other educational materials. The suit seeks class-action status and says that despite request, the schools provided no or only limited closed captioning.

TAKEAWAY: If something you do or put out there is for public consumption and covered by Title VII, make sure it is accessible.

The post on Monday 4/20/15 was about making sure your FMLA policy covers all of the basics. Sounds like an obvious thing, right? Not so for one employer, the Kalamazoo County Road Commission. The court reiterated that the law requires the person to have been employed by a covered employer for 12 months, to have worked 1250 hours during that 12-month period before the requested leave begins, and to work at a location where the covered employer employs at least 50 employees within a 75-mile radius. The employee in this suit met the first and second criteria, but the Commission did not meet the third. Despite that, it sent him a letter saying he was eligible for FMLA leave. More details are in the post. The matter will now go to a jury to decide whether or not the employee relied on that letter in seeking medical treatment.

TAKEAWAY: Know what each law requires and whether or not it covers you or your employees.

In the post on Tuesday 4/21/15, we noted that Walmart is to pay $150,000 to settle an EEOC age and disability discrimination suit. The suit alleged discrimination on the basis of age against the manager of the Keller, TX store and refusal to provide him with a reasonable accommodation for his disability. What did Walmart supposedly do? Frequent taunts from his direct supervisor including “old man” and “old food guy” and ultimately discharging him. Refusing to engage in the interactive process after he requested reassignment to a store co-manager or assistant manager position due to his medical condition and eventually rejecting the request. The suit was filed in March 2014 after conciliation failed.

TAKEAWAY:  It’s bad enough when one employee harasses or discriminated against another, but it’s especially egregious when a supervisor commits the action. Make sure your managers/supervisors are properly trained (and disciplined when necessary).

The post on Wednesday 4/22/15 reminded us to think ahead about summer interns and their pay. Who to hire. And whether they qualify as interns for pay purposes based on recent court decisions.

TAKEAWAY: Summer internships seem to sprout with the flowers, but the former require much more forethought by employers wishing to stay out of legal hot water.

In the post on Thursday 4/23/15, we learned that a bonus scheme linked to attendance was discriminatory. This is probably a scenario you’ve heard or read about time and again: an employee too disability-related time off and received a poor evaluation or no bonus as a result of absences related to the disability. The case was from a foreign jurisdiction, but the premise still applies under US federal law(s).

TAKEAWAY: Don’t take into account any disability-related absences when evaluating performance or giving bonuses.

The post on Friday 4/24/15 was about hiring and firing – the legal way. What does that mean? That you should be familiar with relevant laws and know what you can or cannot do as part of the application, interview, hiring, discipline, and discharge processes. The post mentions a few laws; some or all may apply to your business. It is always good to have an employment law attorney only a phone call away in case an issue arises (which it will do occasionally) or to guide you proactively (and defensively).

TAKEAWAY: Do things the right way from the get-go and it will help you avoid or minimize liability or, at least, provide you a good defense in case of charge or suit.

Finally, in the post yesterday 4/25/15, we talked about how businesses can avoid the legal risks of using social media. Yes, you want to use social media to attract clients or customers to your business. But you also want to protect your business and your brand from harmful socmedia interactions. The post mentioned some areas where having a social media policy is helpful; they include general employment and confidentiality and privacy. Any policy should be specific enough to cover what is necessary but broad enough to provide discretion; it should also be legally compliant, which, given recent judicial and administrative actions, may result in frequent revision.

TAKEAWAY: Even if your company doesn’t partake of social media, your employees might, so you need a policy that deals with its use. Have an employment law attorney prepare that policy for you and review it frequently in case of needed revision.

Monday
Apr132015

ICYMI: Our Social Media Posts This Week -- Apr. 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.

On Sunday 4/12/15 we posted about a former Kutztown University professor settling a sex discrimination suit. After termination, the former professor sued, alleging it was because he was male. The parties settled the case, with no admission of guilt or liability and payment to him of $40,000. So what led up to the discharge? He received a negative evaluation in 2011. That was his fourth year at Kutztown and the department’s chair had changed the evaluation process to include evals from 3-5 department members; he received 3 votes from female colleagues against his continued employment and 2 votes from male colleagues in favor of continued employment. The tenure committee still voted to continue his employment but he was still discharged. The suit was filed in 2013.

TAKEAWAY: Suits may or may not have merit, but when an employer considers the time and monetary resources it will take to defend, sometimes the best way to proceed is to settle with no admission. A good employment law attorney can advise on this and other facets of the case.

The post on Monday 4/13/15 was about the legal edge of employee computer use. If you are unfamiliar with the civil side of the Computer Fraud and Abuse Act, get your coffee and keep reading. So how does this work? The law says, in part, that “any person who suffers damage or loss … may maintain a civil action against the violator to obtain compensatory damages or injunctive relief or other equitable relief.” There is individual liability under the statute if the person “intentionally accesses a protected computer without authorization and as a result of such conduct causes damage and loss.”

TAKEAWAY: The key to a potential suit and recovery can be authorization; employers should be vigilant in this area and aware that court decisions have varied as to breadth of the definition of “authorization”.

In the post on Tuesday 4/14/15, we clarified that when the bell rings, act! Here, the outer bounds of the ADA were tested in a workplace threat case. What happened? A warehouse worker began suffering from severe depression along with homicidal thoughts. He sent a note to his supervisor while at work: “I’m scared and angry. I don’t know why but I wanna kill someone/’anyone. Please have security accompany you if you want to talk to me. Make sure, please. I’m unstable. I’m sorry. Taj.“ During the next three weeks, he kept trying to tell the employer of his depression diagnosis and need for medical care; he even asked about his insurance coverage. After those 3 weeks, the employer terminated him for posing a direct threat. Not surprisingly, he sued, alleging that the real reason for the discharge was his disability. The employer said the threat required the discharge. While the judge recognized the employer’s dilemma, he also took note of the 3-week delay before the employer acted. That was fatal to the employer’s request that the case be dismissed.

TAKEAWAY:  When an employee rings the bell, respond. Immediately. Delay can be harmful in so many ways.

The post on Wednesday 4/15/15 told us that resisting change in a work assignment can lead to a valid termination. The employee worked at the company for about 10 months; during that time, he had performance issues. In October, his supervisor told him about changes to his work assignment that would not change his pay, hours, location, or supervisor. He refused the new assignment so the company fired him. He sued, alleging race (African-American) and age (69) discrimination. The trial court found that the changed assignment was not adverse since it did not affect hours, pay, work location, or general duties and so dismissed the case. He appealed, now alleging the adverse decision was the termination and not the changed work assignment. On appeal the court again dismissed his suit; it said that his performance mistakes gave the employer a legitimate reason to change his work assignment and his refusal to accept the new assignment then gave the employer a legitimate reason for termination. Score 1 for employers!

TAKEAWAY:  If an employer has a legitimate, non-discriminatory reason for discharge (or other adverse action), and the employee cannot show to the contrary, any suit should be dismissed in favor of the employer.

In the post on Thursday 4/16/15, we learned about the pros and cons of solely using electronic employment applications. Pros include easier processing (due to electronic sorting and searchability); consistency among applications (both in information requested and format); and ease of tracking and analyzing data. Other pros are in the post. Cons include the inadvertent exclusion of qualified applicants without internet access; possible (unfair) rejection of an application based on software parameters; and increased number of applications due to ease of electronic application. Other cons are also in the post.

TAKEAWAY: Employers must decide whether the pros outweigh the cons or the other way around and whether it might be best to accept both electronic and paper applications.

The post on Friday 4/17/15 talked about an employer’s creation of a policy for employee social media posts being a good idea. Your company has policies for other employee actions, why not social media? Whether it is the employer’s social media or the employee’s personal social media, the employer can still be damaged as a result of the employee’s action. The employer should immediately take action, which involves an investigation and possibly discipline up to and including termination. The employer may also have to take to social media itself.

TAKEAWAY: Employers certainly have the right to protect themselves and their brand, but must be careful about adverse action against employees speaking out on social media in certain conditions’ employers should discuss any planned action with an employment law attorney prior to the action being taken.

Finally, in the post yesterday 4/18/15, we talked about a former Bloomberg correspondent filing a pregnancy-bias suit and how to deal with pregnancy in the workplace. What happened? The employee, Megan, claimed she was pulled off stories after she informed the company about her pregnancy. When she wanted to work on a story about medical marijuana, she was told it would look “weird” and a male was assigned to do the story. Another time, when Megan wanted to work on election coverage, she was told “Don’t bother with midterms. You are not going to want to leave your baby.” Finally, she alleges that after telling the company about her pregnancy, another female junior producer with less experience and who was unmarried and without children, received more on-air assignments than Megan. Other allegations are also in the post. When she questioned why she was being fired, she was told Bloomberg eliminated her position and moved its political coverage to NY; she believed that explanation was pretext because 2 male correspondents in DC were not discharged. Megan filed suit in February. Stay tuned to the story …

TAKEAWAY: Again, if employers intend to take adverse action against an employee, especially one who might be in a protected class, the employer should have a legitimate, non-discriminatory reason for the action.

Monday
Apr062015

ICYMI: Our Social Media Posts This Week -- Apr. 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.

On Sunday 4/5/15 we posted about more charges against McDonald’s and franchisees under the NLRB’s joint employer theory. In case you have lost count, the prior 13 complaints with 78 charges are now supplemented by these 6 new complaints with 23 additional charges against McDonald’s USA for alleged illegal actions by its franchisees. Those actions include discriminatory discipline, reductions in hours, and discharges. The NLRB’s joint employer theory is founded on allegations of McDonald’s amount of control over franchisees’ operations other than related to the McDonald’s brand.

TAKEAWAY: The joint employer theory could have wide-reaching effect in the franchise world – and possibly could be extended to other things in the employment law arena.

The post on Monday 4/6/15 told us about an EEOC memo saying Title VII protects workers from discrimination based on sexual orientation and gender identity. The memo came out February 3rd. A portion of the memo states, “Individuals who believe they have been discriminated against becaseu of their sexual orientation should be counseled that they have a right to file a charge with the EEOC, and their charges should be accepted under Title VII and investigated as claims of sex discrimination ….” The memo also reaffirms protection for transgender workers under Title VII and notes that those charges will also be accepted and investigated as claims of sex discrimination.

TAKEAWAY: Employers must do business legally in this brave new world; one thing that has not changed is that employers should judge employees by performance and not other protected factors (such as sexual orientation and gender identity) that have nothing to do with the job.

In the post on Tuesday 4/7/15, we warned you to beware the generosity of volunteers that could result in a perceived employer-employee relationship. What does that mean? A federal court was faced with the question of whether the work of unpaid volunteers closely resembled that of paid employees (which makes a difference in entitlement to Title VII protection). Here, the court went beyond the normal right-to-control test and the fact that the volunteers were not paid, saying those were only factors to be looked at in the overall assessment. Here, the court ruled in favor of the employer (finding only a volunteer relationship).  

TAKEAWAY:  This is another proper classification issue - employee or volunteer - and has legal ramifications, so make sure you do it right.

The post on Wednesday 4/8/15 told us that often a (threatened) discharge will result in allegations of discrimination, harassment or more. Here, an elected official in FL threatened to push to fire the City Attorney; she, in turn, accused him of gender and race discrimination and creating a hostile work environment. The allegations are now under investigation.

TAKEAWAY:  Regardless of the timing, employers must make sure to promptly investigate all claims if discrimination and harassment.

In the post on Thursday 4/9/15, we learned about the EEOC claim that WalMart discriminated against a lesbian employee – and that $100,000 in medical bills is at stake. The employee worked in a Boston-area store; she sought health-care coverage for her sick wife beginning in 2008 but WalMart didn’t provide it until 2014 (when it expanded its policy to include same-sex couples). In 2012 the employee’s wife was diagnosed with cancer. The parties are attempting to settle matters as ordered by the EEOC.  

TAKEAWAY: For a business in a state that recognizes same-sex marriage (as does PA), treating an LGBT employee differently can be deemed illegal discrimination.

The post on Friday 4/10/15 talked about an Atlanta ex-fire chief who sued (on religious and freedom of speech bases) after being discharged for writing a book slamming homosexuality. In his 2013 book, he called homosexuality “vulgar” and “the opposite of purity”. He is seeking a return to work along with back pay (but no other monetary damages or legal fees). He also filed a charge with the EEOC. In defense of the city, the Mayor said the discharge was due to questions about the chief’s judgment and managerial abilities raised (and possible policy violation) based on the book. Stay tuned …

TAKEAWAY: Employers must be careful to separate personal beliefs from job performance, especially when one does not implicate the other; commingling the two may result in the employer being in legal hot water.

Finally, in the post yesterday 4/11/15, we again talked about employees versus independent contractors and the consequences of misclassification. What areas can be implicated by an erroneous classification? Taxes. Health care. See the post for more.

TAKEAWAY: It is always a good idea for an employer to refer any questions about proper worker classification to an employment law attorney.

Monday
Mar302015

ICYMI: Our Social Media Posts This Week -- Mar. 29 – Apr. 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 Sunday 3/29/15's post we confirmed that there is a difference between discrimination on the basis of race and color under Title VII. People tend to use the terms interchangeably but there can be a difference in the legal world of Title VII. This federal court case shows the difference. There were allegations of discrimination on the basis of both race and color, including that the employee’s manager told her she was “too black”. That was enough to revive her color discrimination suit. Read more in the post.

TAKEAWAY: Employers should remember to train employees not to discriminate on any basis, including what is or is not a protected characteristic and any differences between them.

The post on Monday 3/30/15 showed how to apply the NLRB General Counsel’s memo on handbook rules and was a follow-up to our posts on 3/24/15, found here, and here.

TAKEAWAY: Remember that ALL EMPLOYEES enjoy protection under Section 7 of the NLRB, meaning ALL EMPLOYERS must make sure not to violate those rights.

In the post on Tuesday 3/31/15, we asked what is a “man’s man”? The court in a suit brought against high-end watch-maker Breitling also tried to answer. The question arose in the context of a lawsuit brought by a gay salesman claiming he was discharged because the new boss didn’t think he was a “man’s man”. Of course, the suit also alleged that female employees were treated more poorly than male employees because they too didn’t meet macho standards. Time will tell (pun intended) how this turns out.

TAKEAWAY: Remember that stereotyping can and often does lead to charges of discrimination or harassment – don’t put your company through that, make sure ell employees are properly trained.

The post on Wednesday 4/1/15 was not a joke; rather, we talked about General Mills’ Project Refuel and the age discrimination lawsuit it engendered. After filing an administrative charge with the EEOC, 14 former employees of GM have now sued for age discrimination. Their ages range from 42 to 64. The suit alleges that after the plaintiffs were discharged, GM hired and promoted younger employees as replacements and that in some cases, the former employees had to train the new hires.

TAKEAWAY: Employers sometimes might need to discharge an employee older than age 40; if and when that happens, make sure it is for a valid reason and age is not implicated in any way.

In the post on Thursday 4/2/15 we talked about whether Chapter 13 bankruptcy protection might be the right path for you.  The post gives a few tips on when Chapter 13 might be helpful and still get you out of a financial mess.

TAKEAWAY: Don’t think of bankruptcy as a nasty word; it is helpful to many people who do not want to be in the situation in which they find themselves and are merely using a resource that is available.

The post on Friday 4/3/15 reminded that mistakes in a handbook or policy manual can indeed come back to bite you. Yes, this is in addition to the rules and policies having to comply with the NLRA and its protections for employees. Here, a handbook did not contain the full requirements for FMLA leave as under the statute, so the employee thought he was eligible (even though he wasn’t).  The case was sent on toward a jury trial.

TAKEAWAY: While the handbook may not be a contract, it is still a document with potential legal implications that may end up in court; make sure yours says what you want it to and that it is legally compliant.

Finally, in the post yesterday 4/4/15, we reminded you to document, document, document, since good records are your best defense in court. In this instance, the employer (a hospital) had detailed disciplinary records to support its argument that the employee, a neurosurgery resident, was terminated for poor performance and not gender.

TAKEAWAY: Documentation doesn’t have to be on paper; it can be electronic. What is most important is that it exists.

Monday
Mar232015

ICYMI: Our Social Media Posts This Week -- Mar. 22 - 28, 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 3/22/15 the post reminded us that a mere belief of age discrimination is not enough to carry a burden under the law. Just because someone thinks an action (or failure to act) might have been caused by age discrimination, if there is no evidence to support the allegation, then the case will go nowhere (except to the dismissal bin). Go to the post for the facts here.

TAKEAWAY: It is usually employers who are told to document, document, document. But it is the complaining employee who has the initial burden and if that is not met, then the employer benefits (by dismissal).

The post on Monday 3/23/15 was about snow day pay Q&A (and the hope that you will not need it for many months to come). Yes, I know, you don’t even want the word “snow” in your head now. But if you get this straight now, you won’t have to worry about it next season when the flakes are falling. Check out some hints in the post and start working on your company’s policy or employment contracts.

TAKEAWAY: Know what to ask (classification, contract, policy, etc.) and the answers in determining if employees are entitled to pay for snow (or other inclement weather) days.

In the post on Tuesday 3/24/15, we talked about tweeting yourself into the unemployment line. Ok, not necessarily you, but it could be if you don’t watch out. So what happened? A TX teenager issued this tweet the night before she was to start a new job at a pizza place: “Ew, I start this (profanity deleted) job tomorrow” and 7 thumbs-down emojis. Well, that apparently made her employer-to-be none too happy as the response was “And … no you don’t start that “profanity deleted” job today! I just fired you! Good luck with your no money, no job life!”

TAKEAWAY: While there was probably nothing illegal in this scenario, employers must always be careful of anything involving social media and any legal implications.

The post on Wednesday 3/25/15 was clear that businesses must adapt to employees’ changing needs. Not just technology, but how things get done and by whom. The types of things to consider include CRM systems, secure data and document access, and an appropriate accounting system. Others are in the post.

TAKEAWAY: What you have may work for you, but there might be other bells and whistles out there that do it better or faster or both; be on the constant lookout.

In the post on Thursday 3/26/15 we asked if you know your rights relative to condo & homeowner association documents & information in PA. Why? Because the post highlights a situation where information should have been provided to the homeowner and wasn’t (and what the person’s rights might be now).

TAKEAWAY: Owning a home in a planned community (one with a condo or homeowner’s association) is a commitment to live under certain legal documents; know the rights and responsibilities of both yourself and the association.

The post on Friday 3/27/15 was a bit off topic. It asked repair or replace: the broken asset dilemma. If this hasn’t happened to you yet, it will. You buy something and at some point need to decide whether to repair it or just buy a new one. This post helps you decide.

TAKEAWAY: Newer isn’t always better; take control of your finances and decide whether replacement of an asset is necessary or if repair will do.

Finally, in the post yesterday 3/28/15, we talked about whether federal or state law overrides the “mark of the beast”. Already intrigued, aren’t you?! Here, a fundamentalist Christian applied for a job; when he was asked to provide his Social Security number, he refused because he had renounced it as the “mark of the beast.” He was not hired, which led to him filing suit for religious discrimination. The federal court dismissed the suit on the grounds that federal law requires an employer to collect the SSN, such that no religious accommodation is possible.

TAKEAWAY: While employers should look to accommodate when possible, any accommodation should not be in violation of applicable law.