ICYMI - Our Social Media Posts This Week - Jan. 3-9, 2016

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

The post on Sunday 1/3/16 asked how you are doing with the law requiring background checks for certain volunteers and employees. If you are asking what law, then you have a big problem. The new law went into effect July 1, 2015, and expanded the persons who need background clearance if providing care, supervision, guidance or control of children, having routine interaction with children, or working with children. Read the post for general info on the law and when its provisions kick(ed) in for which persons.

TAKEAWAY: This is a state law many employers might forget about but which might greatly affect them through application to their employees or volunteers – make sure to know what’s required and of whom.

In the post on Monday 1/4/16, we reminded that if you have confidential information, keep it confidential. This issue is as much what the former employee did as what the company did not do. An example of the latter is in the post. Head Over Heels ran a gymnastics academy; Harriet was hired in 2006. By 2012, Harriet started developing a business plan for her own gym. When Head Over Heels discharged her, she put her plan into action. That resulted in approximately 30 gymnasts leaving Head Over Heels for Harriet’s new gym. Head Over Heels sued Harriet on many bases, including that “everyone ‘understood’ that the customer list was intended solely for the purpose of Head Over Heels’ business and was neither publicly known nor available”. Sounds good, right? Not really. Read the post to see why Head Over Heels lost the case and what it could and should have done differently.

TAKEAWAY: It’s YOUR confidential information – take steps to protect it. Others will not do that for you and your business will be the loser.

In the post on Tuesday 1/5/16 we reminded you of the steps to take before firing a no-show employee. Everyone knows what no-call no-show means, right? In most businesses, that can result in automatic discharge. But should it? The post lists some suggested steps to take before firing the person, including trying to contact him/her (to ensure there is no legal reason supporting the no-call no-show) and following your policy.

TAKEAWAY: If you have a relevant policy (and you should), follow it, but ensure that it is not preempted by a statutory obligation.

The post on Wednesday 1/6/16 talked about the top 10 scariest employment challenges in 2016 (and asked if you agree). So what are the challenges (in the author’s opinion)? Same-sex marriage (and how it will affect COBRA, FMLA, ERISA, and more). Reasonable accommodations for an increasingly diverse workforce (including religion, disability and pregnancy - remember the recent US Supreme Court cases of AEEOC v. Abercrombie & Fitch Stores, Inc. and Young v. UPS?). Paid sick leave. This is mandatory in some jurisdictions (states or localities) but not others. NLRB pursuit of workplace policies. Yes this matters to you even if your business is not unionized. We’ve said numerous times, and repeat here, that ALL EMPLOYEES ARE ENTITLED TO CERTAIN PROTECTIONS UNDER THE NLRA so make sure your business – including handbooks and policy manuals – doesn’t run afoul of that law. More of the Top 10 list is in the post.

TAKEAWAY: Businesses and their owners need to be ever vigilant of what statutes apply and how courts are interpreting them so that no legal issues arise.

In the post on Thursday 1/7/16 we talked about how a butt dial spelled disaster. Yes it sounds funny, but I’m sure it wasn’t to the person involved. What happened? While Matt was running a company with his wife that designed, manufactured, sold and installed custom residential storage components, he was hired as a travelling software salesperson. He told the employer that upon hire, he’d transfer operational duties in his company to his wife. Also, as part of the employment offer, Matt had to acknowledge certain guidelines including a ban on outside work or soliciting same on company premises, by using the company’s equipment or during company time. Matt also acknowledged that a violation of the policy could result in discipline up to and including discharge. Good so far, right? Well, Matt cancelled a weekly phone meeting with his boss, claiming a client appointment conflict. (Read the post to see why that was a white lie.) Twice that afternoon, during the time originally set for the meeting with his boss, Matt butt dialed his boss. The boss heard him talking with a subcontractor about installing storage equipment for Matt’s business. As if more were needed, Matt ignored 2 work emails sent to him that afternoon and used the company’s cell phone for calls for his private business. The company discharged Matt who then sued. The court went through the many things Matt did wrong (see the post) and how they justified termination.

TAKEAWAY: Technology has and will doom many a job; make sure employees don’t use it to derail your business in favor of their own.

In the post on Friday 1/8/16 we noted it was recently the season for moonlighting: FMLA leave and secondary employment, and asked if you had to address this issue. Believe it or not, employees out on approved FMLA leave perform work for themselves or another employer during the leave; this seems to occur more in the last few months of the year than at other times. (Perhaps they want more disposable income for gifts?) Don’t immediately discharge the employee as there might not be a legal basis to do so. For starters, the second job may be within the person’s medical limitations but the regular job (at your company) may not. Also, the FMLA doesn’t prohibit other employment; only if the employer has a policy and applies it to all situations does this become an issue. Some steps an employer can take to prevent this from occurring are in the post.

TAKEAWAY: Don’t wait for this to happen – consult with an employment law attorney and put in place a policy setting forth when, if at all, employees may work while employed by your company and what happens if they violate the policy.

Finally, the post yesterday 1/9/16 was about a Ford Motor employee fired for an anti-gay comment bringing suit for religious discrimination. So how did this move from what appeared to be sexual- to religious discrimination? See the post and keep reading here. Thomas’s suit describes himself as a Christian who worked at Ford for 3 years and commented on a Ford intranet article celebrating GLBT inclusion by saying Ford “had no place promoting sodomy or ‘immoral sexual conduct’ and should be ‘thoroughly ashamed’”. The post contains more of the basis for his comment and suit. A few weeks later he was fired for violating Ford’s anti-harassment policy. After the EEOC declined to act on his charge, he sued. NOTE that the suit was filed in Michigan where (like PA) there is no law prohibiting discrimination on the basis of sexual orientation or gender expression.

TAKEAWAY: Look at a situation from all angles before terminating an employee – and even discuss it with an employment law attorney – to avoid what might turn out to be a costly legal battle.


ICYMI: Our Social Media Posts This Week – 12/27/15 - 1/2/16

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

The post on Sunday 12/27/15 was about how employment lawsuits can ruin your business. So what are some of the ways a lawsuit can hurt your business? You could lose your reputation. You could lose your money. See the post for more.

TAKEAWAY: Ensure proper legal compliance to help avoid – or at least provide a good defense for – lawsuits arising out of the workplace. An employment attorney can help with this.

In the post on Monday 12/28/15, we noted that sometimes the jury gets it right – a BIG verdict for sexual harassment in this case. And by big we mean $18M! So what happened? Among other things, the plaintiff alleged that she was pressured to dress provocatively on the job and that the CEO continually asked her for sex. More allegations are in the post, including the use of social media. Bad, just bad.  

TAKEAWAY: The defendant’s lawyer summed it up pretty well: “his client made some ‘mistakes’ in his treatment of [her] and now he’s going to pay for $18 million of them.”

In the post on Tuesday 12/29/15 we saw that all is not hunky dory for females at Ford Motor plants. Yes, this is more on the class-action sexual harassment suit. Ford has asked the court to dismiss the suit which now involves 33 women at various Ford plants who allege unwelcome touching and sexual advances, requests for sexual favors, male employees showing them pictures of their genitals, and attempted rape. The post has even more of the lurid allegations.

TAKEAWAY: However this plays out in the legal system, Ford loses in the court of public opinion. Don’t let something like this happen to your business.

The post on Wednesday 12/30/15 told us an employer cannot discourage an employee from speaking to others about an investigation into comments written on newsletters. This was a decision from the NLRB about something that took place in unionized workplace, but remember that certain sections of the NLRA apply to ALL employees in ALL work environments, including your business. One of those is the right to discuss the terms and conditions of work.  

TAKEAWAY: The protection afforded to employees to discuss their work environment is broad – and in a law that is being interpreted very broadly now. Employers must be aware of their employees’ rights and not step on them.

In the post on Thursday 12/31/15 we learned that federal courts recognize a “perceived as” religious bias claim. Just one more thing for which employers must be wary. One of those courts is the federal appellate court governing PA. In the PA case, the plaintiff was perceived as Muslim. Here, the plaintiff said he was subject to harassment when he wore his hat backwards and others said it looked like a “topi” (a skullcap worn for religious reasons by Muslim men). There were other incidents of harassment too which are in the post.

TAKEAWAY: Religious discrimination is not cut and dried; its scope is expanding and employers’ vigilance over their employees’ actions must also expand to prevent legal liability.

In the posts on Friday 1/1/16, here and here, we wished you a happy and joyous new year and reminded you that we are here to help with your legal needs in 2016 and beyond.

TAKEAWAY: Just this once, let’s make it simple: be thankful for 2015 and look forward to the possibilities 2016 holds for you.

Finally, the post yesterday 1/2/16, reminded you that the delete button could save your job. Really. We all know that social media rules the world. Given that, employees must be very careful of what they send out (even if they think they are protected by their right to discuss work conditions in a non-union workplace). The post details one situation where an employee would have been reinstated but for his own social media stupidity.

TAKEAWAY: When employees do themselves in an employer is within its rights to follow its policies and discipline or discharge that employee.


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

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

The post on Sunday 12/20/15 talked about decorating the workplace for the holidays (and whether you should have a policy). The decorations could be for employees, customers, or both. But they take time to put up and remove and then, when in place, often cause employees to take time (for which you ae paying them!) to look at the decorations and daydream or sing or something other than do their work. And if the decorations are religious in nature, then that’s something else entirely! While the EEOC has issued guidance on what could be seen as religious decorations (see the post), the limitations are relatively few.

TAKEAWAY: With few legal concerns relative to holiday decorations in the workplace, what is just as important are employee happiness and morale – and making everyone feel welcome during the holidays and all year.

In the post on Monday 12/21/15, a man says Verizon Wireless violated the FMLA – shouldn’t big employers know the law? So what happened? Justin was hired in July 2007 as an assistant store manager and by 2014 worked his way up to major account manager. In March 2013, he started a relationship with Trista, an employee in a different region, and they got married in April 2013. In November, Justin told his manager that Trista (who was then in PA) was pregnant and due in July 2014, requiring him to take time off for doctor’s visits. Was his manager overjoyed? Probalby not - he told Justin to use vacation time. Additional background facts are in the post. Justin was discharged in March and filed suit.

TAKEAWAY: Employers must know when the FMLA kicks in – and the employee doesn’t have to specifically mention the law for that to happen.

In the post on Tuesday 12/22/15, an employer notched a win - FMLA and ADA claims were dismissed when employer continued a misconduct investigation during leaves. Employer learns of performance issue, employee asks for FMLA leave. Ever heard of that situation?!? I thought so. The real question is what the employer should do about the performance issue during the leave. Can it continue investigating? The federal court in this case said that the employer’s actions were legal. Read the post to see what it did.

TAKEAWAY: If an employer follows the dictates of the FMLA and ADA, even during a leave, it can still legally take adverse action against an employee upon his or her return to work.

The post on Wednesday 12/23/15 was about how many (and which) documents an employer should maintain about employees. The answer depends in part on applicable state (or local) law. Some of the things to keep include resumes, job applications, reference lists, any offer letter or employment contract, and withholding forms. Some others are listed in the post. To ensure your employees’ personnel files contain the required documents, consult an employment attorney. And remember that “maintain” does not necessarily mean paper – it could be electronic too.

TAKEAWAY: The law requires employers to maintain certain documents; employers will want to maintain others for liability or other reasons. Know which is which and follow through.

The post on Thursday 12/24/15 was a reminder not to take along business records to a new job. It often happens innocently, but occasionally intentionally – an employee leaving one job takes along information from the previous employer when s/he goes to a new job. Sometimes it’s to make sure the last paycheck is correct. Other times it’s because the information is on the employee’s personal devices. Then there are the times the information is taken to support a legal claim or suit against the now-former employer. So what should the employer do? Some ideas are in the post.

TAKEAWAY: Employers must always be vigilant of their valuable business information, but even more so upon termination of employment (especially with a managerial-level employee).

In the posts on Friday 12/25/15, here and here, we extended to you and your family warm Christmas wishes. Be safe, be happy.

TAKEAWAY: Holiday time off is important to many; it can give a needed break from the stress of the workplace and allow employees to come back refreshed and more motivated to perform.

Finally, the post yesterday 12/26/15, we learned that Disney has been hit by security-worker lawsuits. All is not happy in Mouse-land. This suit was brought by the workers who are charged with ensuring security at the Disney World resort. Suits were filed alleging harassment and unfair targeting based on race, religion and national origin. In one suit, the jury ruled against the plaintiff. Three other suits were voluntarily dismissed. One was set for trial this summer: a black Haitian woman alleges illegal discrimination and retaliation. The post gives details on other pending suits.

TAKEAWAY: Adverse action against an employee in a protected group is not necessarily illegal, but it may be; make sure you are on legal footing before taking the action – that will help avoid (or defend against) later suits.


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

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

In the post on Sunday 12/13/15 we asked must your ADA accommodation must be perfect or can it just get the job done. Everyone now knows that an employer must provide a reasonable accommodation to allow an employee to perform the essential functions of the job if there is no undue hardship to the employer. But must the employer provide a specific accommodation (such as one requested by the employee) or just one the employer wants to provide that will do what it needs to. Details of this case are in the post, but suffice it to say that the court decided the latter is the correct answer.

TAKEAWAY: An employer must provide reasonable accommodation to a disabled employee, but not perfect accommodation. Take note.

The post on Monday 12/14/15 noted that offensive racial comments don’t always get you fired (at least under employment law). Is your brow creased in question? Let me explain. As you (should) know, the NLRA protects ALL employees when engaged in protected concerted activities. A recent decision by the NLRB interpreted this provision and took it pretty far. The employer locked out the bargaining unit employees and hired temps. The union started a picket line which the temps crossed going to and from work. Many temps were African-American. The strikers often yelled things at the temps. One striker yelled things like “Hey, did you bring enough KFC for everyone” (other comments are in the post). That striker was fired for making racial comments on the picket line (deeming them gross misconduct in violation of the harassment policy). The union grieved the termination; an arbitrator ruled for the employer. So far, so good, right? Oh but we’re not done. The union also filed an unfair labor charge alleging termination for engaging in protected activity. The ALJ noted that though the comments were racially offensive, they were made on a picket line and therefore protected activity, and the employee was to be reinstated with back pay. The company said it intended to appeal.

TAKEAWAY: Employers are in a catch-22 with racial comments if the comments are deemed (part of) protected activity – and remember this is not limited to the union workplace but applies in ALL workplaces.

In the post on Tuesday 12/15/15, we talked about the Do’s and Don’ts of employment documentation (and if you follow these practices). Just as how location in real estate can be a deal maker or breaker, so to in the employment context can documentation make or break a case. Not just any documentation, but GOOD documentation. And by documentation we mean the recordation of things, whether in paper or electronic form. So what are some Do’s? Establish clear performance expectations. Focus on the facts. More do's are in the post. And some Don’ts? Don’t diagnose why an employee is performing poorly. Don’t include your (the writer’s) mental impressions and editorial comments in performance documents. More don't are also are in the post.

TAKEAWAY: Build your “defense” every day; document document document. It is hard to recreate something when you need it (and it looks strange too) if it’s not already there.

The post on Wednesday 12/16/15 told us that the NLRB declared a conflict of interest policy unlawful on its face. Once again, this applies to ALL employers, not just unionized ones. So what happened? The policy at issue said that, “a conflict of interest with the hotel or company is not permitted” and was found facially unlawful. The policy was in a new handbook distributed by the Sheraton Anchorage. More details are in the post, but, in short, during bargaining negotiations, the employer disciplined employees engaged in protected activity like distributing flyers outside hotel entrances. The Board, in a 2-1 decision, held that the policy was unlawful on its face (as restricting protected activity) and that it could be reasonably interpreted to restrict protected activity (such as employees discussing among themselves the terms and conditions of their employment when in conflict with the employer’s interest).  

TAKEAWAY: ALL conflict of interest policies – repeat, ALL, not just those in union workplaces – must clearly allow employees to exercise protected activity at any time.

The post on Thursday 12/17/15 was about how Dunkin Donuts was certainly not runnin’ on this legal liability. The EEOC charged a company that operates Dunkin’ Donuts stores at BWI with disability discrimination for allegedly (1) refusing to provide a reasonable accommodation of a medical leave to an employee who needed breast cancer surgery and (yes there’s more!) (2) firing her shortly before the leave was to start. It’s no wonder that the EEOC filed suit.

TAKEAWAY: The first (re)action upon learning of an employee’s medical situation should not be adverse; instead, think through your legal obligations as an employer.

In the post on Friday 12/18/15 we learned that the EEOC sued Rotten Ralph’s Restaurant for religious discrimination. Rotten Ralph’s is a popular restaurant in Philadelphia; apparently that popularity went to its head (literally). Tia applied to be a server and told the GM she wore no revealing clothing and covered her hair for religious reasons. She was hired and wore the headscarf until the first time the GM saw it. He was outraged. She again explained it was for religious reasons. He replied that employees were not allowed to wear “hoodies”, would not accommodate her religious beliefs, and fired her. The EEOC sued. For additional details, go to the post.

TAKEAWAY: The Supreme Court has told us that religious beliefs are to be protected and accommodated – besides that legal reason, it’s just the right thing to do for your employees.

Finally, the post yesterday 12/19/15 told us that yes Virginia, you may have a right to a Christmas bonus. If it’s written in an employment contract, then that’s the easy entitlement situation. But if it’s not, or, more likely, if there is no employment agreement, but the employer has paid Christmas bonuses for a number of years in the past, that may have created an implied contract for payment of a bonus this year.

TAKEAWAY: Employers must be careful of setting precedent that may end up legally binding them to something in the future.


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

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

In the post on Sunday 12/06/15 asked how far an employer need go to offer a reasonable accommodation under the ADA? The answer is not far if the person can’t perform the essential functions of the job even with accommodation. Here we had a medical center chief psychologist with signs of memory loss. An IME was conducted; after the results came in, the employer analyzed what it could or could not reasonably offer by way of accommodation. Details about that are in the post. The employer determined he was not qualified to perform the essential functions of the job, with or without reasonable accommodation, and so discharged him. He sued in federal court under the ADA. On appeal, the court found that the employer need not remove most or all of the position’s duties as an accommodation and so dismissed the case.

TAKEAWAY: If the accommodation(s) needed are so many, that may translate into the employee not being qualified under the ADA and thus having no entitlement to accommodation or the job going forward).

The post on Monday 12/07/15 wished our Jewish friends a Happy Hanukkah and year filled with light!

TAKEAWAY: Different faiths celebrate religious days at different times of the year – all should be respected and honored.

In the post on Tuesday 12/08/15, we talked about what an employer should do with an incomplete FMLA request form. We also noted that “deny the request outright” is NOT the correct answer. The post covered a case from the federal circuit governing Pennsylvania. The employee requested intermittent FMLA leave. The request specified 2 days a week for about a month; it did not mention her condition or its duration. A few weeks later, after she took several days off, she was discharged for excess absences (and told that her FMLA leave request was denied). She sued for FMLA interference and retaliation. More background details are in the post. Based on the regulations, the appellate court found that she was entitled to an opportunity to cure the incomplete or insufficient leave request.

TAKEAWAY: If an employee presents with an incomplete or insufficient FMLA leave request form, don’t deny it out of hand – instead give the employee time to get it completed properly.

The post on Wednesday 12/09/15 told us to make sure any policy on transfer or reassignment does not violate the ADA. So who was the luck employer who got to make headlines and pay a lot of money to settle this case? United Airlines. It had a competitive transfer policy that did not allow a transfer (or reassignment) to be a reasonable accommodation for disabled employees under the ADA. The post has more details. Rather, they had to compete for vacant positions for which they were qualified and which were needed to enable them to continue working. Absent a showing of undue hardship, the need for reasonable accommodation trumped the policy.

TAKEAWAY: Employers need not create a new position to accommodate under the ADA, but they should consider a position transfer or reassignment as a reasonable accommodation if there is no undue hardship.

The post on Thursday 12/10/15 blared that the EEOC sued for Walmart disability discrimination and harassment for denying accommodations to a disabled cancer survivor. Ugh. Nancy initially requested that Walmart provide her a chair in her fitting room and limit her scheduled work hours to accommodate her bone cancer treatment. They did so for months, then, without reason, revoked the accommodation. Walmart did, however, tell her she could get a chair from the furniture department every day if she wanted one (which was hard due to the disability) and then transferred her to a greeter position (which was contrary to her standing restrictions). Was that all? Nope.  A co-worker called her names (see the post), imitated her limp, and hid the chair; Walmart did nothing. The EEOC ended up suing in federal court.

TAKEAWAY:  If a qualified employee requires an accommodation to perform the essential functions of the job, try to figure out a way to provide an accommodation. And certainly don’t provide one and then take it away without reason.

On Friday 12/11/15, the post was about 5 HR challenges for growing businesses. So what are they? (1) Compliance and contracts. Both have to do with laws applicable to employment. To save time and money (in a lawsuit) later, contact an employment law attorney about them today. (2) Holiday calculations. Not just this time of year but all year for any holiday. Make sure employees are properly compensated (according to statute or policy). The other 3 challenges are in the post along with a bit about each.

TAKEAWAY: All businesses face the challenge of complying with laws impacting the workplace. It’s hard to stay on top of all of them, such that owners or senior staff should keep an employment law attorney’s contact information handy.

Finally, in the post yesterday 12/12/15, we learned that a city settled an overtime pay suit for $750,000. That’s a lot of tax dollars! The settlement came in a case filed by employees about a year after the filing and contained a confidentiality provision. The suit was filed by 2 lead plaintiffs who claimed they often worked over 40 hours per week but were not paid overtime. They also allege that they did not come within the overtime exemption for social workers (saying they were misclassified or permitted to work overtime “off the clock”. The City denied any violation.

TAKEAWAY: Especially with the crackdown on enforcement, it is more important than ever to ensure correct classification and pay of employees. Do it right the first time to avoid paying more later.


ICYMI: Our Social Media Posts This Week – Nov. 29 – Dec. 5, 2015

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

In the post on Sunday 11/29/15 asked if you know that the ADA has specific parking guidelines. Yep, it does (for public access). See the post for more background.

TAKEAWAY: If the public is invited to your business premises and you provide parking, you may be required to adhere to the ADA as to parking so know what it says.

The post on Monday 11/30/15 reminded us that managing FMLA leave is not as easy as you’d think. Who is covered by the FMLA is in the post in case you’ve forgotten. But what are some of the issues that arise and how to work your way through them? First is when the 12-month leave period begins. It could be based on a calendar year, any fixed 12-month leave “year”, the 12-month period going forward from when that employee’s first FMLA leave starts, or a rolling 12-month period measured backward from the date the employee uses FMLA leave. All have pros and cons and should be discussed with an employment law attorney prior to promulgating your policy (or changing it). Other issues include notice for intermittent leave, FMLA leave abuse, recertification, the intersection with the ADA, and same-sex spouses. Some details about each of those are in the post.

TAKEAWAY: Before dealing with any of these FMLA issues in your policy (or amending your policy to deal with them) – you do have a policy on FMLA leave, right? - consult with an employment-law attorney.

In the post on Tuesday 12/1/15, we talked about the case of the lipstick lesbian: avoiding gender stereotyping claims. “Lipstick lesbian” is a(n outdated) term that implies that lesbians either do or don’t fit the traditional female gender stereotypes. And that is the problem. Gender stereotyping has been and remains the starting point for many a Title VII (or state law) discrimination claim. Is there still an accepted “norm” for men or women relative to attire, hair, makeup, jewelry, style, expression, or mannerism in this day and age? Maybe but probably not. The case mentioned in the post is but one example of a female employee who was forced to re-interview for a job she’d held and from which she was later fired; after suit the federal appellate court sent the case on to a jury after finding the employee set forth a claim of discrimination “because of sex.”

TAKEAWAY:  Employees are permitted to have policies or codes on many things, including dress, grooming, and how to interact with customers. But when those things differ by gender, legal problems may arise …

The post on Wednesday 12/2/15 was about a jury penalizing an employer for testing employees’ DNA – and reminding us about GINA. So, in reverse, remember that GINA is not the girl next door, but the federal Genetic Information Nondiscrimination Act. The employer in the case described in the post apparently forgot and was slapped by a jury as a result. The background facts are interesting: the warehouse employer discovered that someone left feces on the floor and on top of canned goods (yes, yuck!) and conducted an investigation to find out who did it. As part of the investigation, the 2 plaintiffs were summoned and asked to provide saliva for a DNA sample. They did but say (in their complaint) they were never told of their rights and obligations under GINA. More details are in the post, but suffice it to say that not only did the tests show them not to be the perpetrators, but a jury came back with a verdict of $500,000 compensatory damages and $1.75 million punitive damages!

TAKEAWAY: Employers still have fairly free reign to conduct their business, including investigations, but must remember not to invade things held sacrosanct by federal or state law (like GINA now does).

The post on Thursday 12/3/15 reminded you to know when the ADA trumps your policy. Can employers still take adverse action against employees, such as discipline and discharge? Yes, but they must be aware of the situations when such action may be legally prohibited by the ADA. The post talks about 2 situations where the employer didn’t’ remember. In the first (which we posted about long ago when it happened), Walgreens was on the wrong side of the line the entire time. A loss-control supervisor found an empty potato-chip bag under the counter; when questioned, the employee said “My sugar low, not have time.” She was fired for violating the no-grazing policy. After suit, Walgreens was found to have violated the ADA (to the tune of $180,000). The second case, dealing with an alcoholic, is described in the post.

TAKEAWAYThe post says it best: Be careful. Consult counsel.

On Friday 12/4/15, the post said that all Muslims do is blow up people and buildings – and that Walmart is now paying for that statement. Literally paying, to the tune of $75,000. The EEOC’s suit alleged that a Gambian and Muslim employee was harassed by a store manager in Landover Hills, MD (just down the road) through comments about the employee’s national origin and religion and telling the employee to “go back to Africa” and “all Muslims do is blow up buildings and people”. More salacious details are in the post. When the employee complained, and after an investigation, the same store manager retaliated – including threatening with termination, instituting a one-year “coaching period”, and telling other employees not to cooperate with the employee in performing his job duties. Anyone out there think Walmart was proud of that store manager? Well, apparently any support stopped when Walmart agreed to settle the case filed by the EEOC for money damages and a 30-month consent decree (plus other things).

TAKEAWAY: Why don’t employers remember that anything not job related should not be the basis for adverse action? At least they keep providing good fodder for these blogs.

Finally, in the post yesterday 12/5/15, we were told don’t call your employee “bean burrito” or you will pay (as did that employer). The employer is a hotel in Laughlin, NV (not far from Las Vegas); the $150,000 settlement will go to 6 Latino or brown-skinned workers. The federal suit alleged that slurs like “taco bell” and “bean burrito” (plus others in the post) were directed at them constantly. They were also told not to speak in Spanish on break and, after complaint, one was fired and the hotel took no corrective action.

TAKEAWAY: Train your supervisory staff what (not) to say and how (not) to interact and deal with employees – it can save you a lot of time and money in the long run.


ICYMI: Our Social Media Posts This Week – Nov. 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.

In the post on Sunday 11/22/15 we learned that United Airlines will pay over $1 Million to settle a disability lawsuit. Wow! The underlying suit filed by the EEOC alleged that United’s competitive transfer policy violates the ADA because it frequently prevented employees with disabilities from continuing employment. The suit was originally filed in June 2009; it was transferred to a different federal court and that court dismissed the case in February 2011 (based on what it thought was earlier governing precedent). ON appeal, the court reversed. In May 2013 the US Supreme Court denied certiorari, leaving standing the ruling that the ADA mandated an employer assigning employees with disabilities to vacant positions for which they are qualified, provided the accommodation is ordinarily reasonable and not be an undue hardship to the employer.

TAKEAWAY: Just because there is a policy or similar provision in place does not mean it is legally enforceable. Consult with an employment law attorney to make sure policies you seek to enforce can be legally enforced (before a court tells you to the contrary).

The post on Monday 11/23/15 talked about successor liability for discrimination claims. This was at issue in a recent federal court case. In the case, one corporation operated a restaurant called Sparx, a property company owned the restaurant building, and a third corporation operated a Denny’s restaurant. All 3 corporate entities were owned by the same person. After Sparx went out of business, the Denny’s opened in the same location and even hired Sparx’s former managers and many of its former employees. The court said that Sparx and Denny’s “carried on the same restaurant business at the same location” even though under different names and themes. Why did this matter? Because Sparx had been sued by the EEOC for race retaliation, a jury had found in favor of the EEOC, and Sparx then dissolved. The court’s finding meant that the corporation that owned Denny’s was really Sparx’s successor and therefore liable for the judgment. The elements considered by the court in making the successor liability determination are in the post and include whether the predecessor entity could have provided relief to the employee after its dissolution.

TAKEAWAY: Don’t try to use a back door; it may lead right to the same lawsuit you are trying to avoid through the front door.

In the post on Tuesday 11/24/15, the EEOC sued the employer for disability discrimination; the fired employee was believed to be HIV positive. What could be worse? Well, the employer here is a plasma collection center. There's more … After an initial screening for a plasma donation showed a viral marker for HIV, the employee was placed on a deferred donor list. His supervisor learned of that and immediately discharged him. Could it get even worse? Yep. Later tests showed the employee was actually negative for HIV. The EEOC sued, alleging the employer discharged anyone who tested positive for a viral marker (violating the ADA under the disability or record of having a disability prong). The suit is pending.

TAKEAWAY: Employers sometimes forget how broad is the definition of disability – and that gets them in trouble. Don’t take adverse action against an employee unless you are sure you can safely – legally – do it.

The post on Wednesday 11/25/15 was about paying employees for travel – knowing the law with the holidays fast approaching. The question is when an employee must be paid for travel that is outside of the normal commute between home and work. The federal Fair Labor Standards Act governs the four situations when pay applies: (1) in certain emergency situations, (2) for travel as part of a special assignment outside of the normal workplace. The other 2 situations are in the post.

TAKEAWAY: Know the law about when you must pay employees for travel and avoid future headaches if you don’t comply.

The post on Thursday 11/26/15 was to wish our friends and families a Happy Thanksgiving.

TAKEAWAY: We all have to take time out to give thanks. Thank you for letting Austin Law Firm LLC help with your legal issues over the years and into the future.

On Friday 11/27/15, the post was about an ex-employee suing state agency officials over nude photos demand. Yes, you read that right. A former Georgia Department of Natural Resources employee is suing for sex discrimination and retaliation, claiming she was fired for reporting that a senior staff member demanded nude photos of her in order to get a promotion. The complaint says she complied and was promoted. When there was another possible promotion opportunity a few years later, the supervisor asked, “What are you going to give me this time?” When she refused to comply, the position was awarded to a substantially less qualified person. More details are in the post, including that after she accelerated her complaints, she was fired.

TAKEAWAY: Employers, whether private or public, are accountable for the actions of their employees – train them to do what’s legal so as to avoid suits.

Finally, in the post yesterday 11/28/15, we talked about a radio station that can't shake an age discrimination claim. Here, a case in federal court is moving toward trial thanks in large part to age-related statements by management. So what happened? The employee went out for back surgery after 16 years of employment; about 6 weeks after her return, she was fired. At that time, she was 59. Her duties were temporarily assigned to a 26 year old and eventually given to a 48 year old. Age-related issues with other employees also occurred, including comments from management about wanting “new blood”. The post contains more details and background. The radio station said the discharge was due to insubordination and poor performance, not age. The court denied the employer’s motion to dismiss based on the “new blood” and other age-related comments. The court’s analysis of the facts pled in the case and the station’s defenses is in the post. So now the radio station as employer must face the music.

TAKEAWAY: Tell your employees, over & over, that age cannot be a factor for any decision. Period.


ICYMI: Our Social Media Posts This Week -- Nov. 15 - 21, 2015

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

The post on Sunday 11/15/15 asked is telecommuting is a reasonable accommodation. The answer will vary form case to case depending on the essential functions of the job and whether or not telecommuting would cause an undue hardship for the employer. The post talked about a recent federal case that dealt with this issue (and how the court analyzed the situation and ruled).

TAKEAWAY: Don’t rule out telecommuting as a reasonable accommodation without exploring it under the circumstances in the case before you.

On Monday 11/16/15 the post was about tattoo-ism: where body art meets employment discrimination (and whether the employer can dictate personal appearance). We are talking about visible tattoos, not those under clothing. Tattoos may not be the image an employer wants to project, so the question is whether or not it can dictate an appearance code to its employees. The answer is (you guessed it!) “it depends”. On whether there is a reason for the body art or if it is just personal preference. More on this is in the post.

TAKEAWAY: While employers have an interest in protecting their image, they also must not discriminate against employees or applicants who, for religious or other legally-protected reasons, have visible tattoos. Talk to an employment attorney before making on adverse decision based on visible tattoos.

In the post on Tuesday 11/17/15 we talked about 7 former McDonald’s employees suing over age discrimination (job terminations for being over age 40). Other claims are included in the suit too.  The complaint alleged that first the employer tried to get them to quit by marginalizing them. It didn’t work. Then, when the store underwent a remodeling, younger employees were transferred to another location but others, including the plaintiffs, were not but were told they could reapply when the store reopened. When at least one of the plaintiffs asked to be transferred, the manager said she wanted only “puro gente joven” – only young people. Further ageist comments by the manager are in the post.

TAKEAWAY: There might be a special sauce on the sandwiches, but the way these employees were allegedly treated sounds far from special. Employers should not take adverse action based solely on age and certainly should not say that’s why they are doing something.

The post on Wednesday 11/18/15 was about what managers can learn from Nasty Gal’s pregnancy discrimination suit. What is Nasty Gal? An LA-based clothing retailer. Suit was recently filed alleging the company illegally fired 3 pregnant employees last year along with a male employee about to embark on paternity leave. The company denies the allegations (see the post), noting the terminations were around the time of a restructuring and layoffs of up to 10% of staff. So maybe it’s mere coincidence that those let go comprised every expecting or recent parent on the staff? This is just not good for a female-led company.  

TAKEAWAY: Do not take adverse action against an employee based on her being pregnant or having just given birth (or a male employee taking paternity leave). Just don’t do it.

The post on Thursday 11/19/15 asked, Would your company pass this discrimination test? The question arises in the aftermath of the EEOC v. Abercrombie & Fitch decision. The post talks about a study that was done on racial discrimination. Fake resumes were sent out – with White-sounding and Black-sounding names. Those with White-sounding names got 50% more callbacks for interviews. More findings of the study are in the post.

TAKEAWAY:  Ensure that all employment decisions, including (not) hiring, are based on measurable, job-related characteristics and reasons; otherwise, your company might end up on the other end of a lawsuit.

The post on Friday 11/20/15 was about narrowing the gender pay gap – EEOC suits under the Equal Pay Act. Yes, the EEOC continues to crack down on equal pay violations. Federal law requires that men and women be paid the same amount for doing the same work. What must be shown to prove a violation is in the post. However, a wage differential can be justified by seniority, merit, quantity or quality of work, or a factor other than sex. Employees have 2 years (or longer if the violation was “willful) to file suit – this is much longer than the statute of limitations to initiate administrative action under Title VII. Also, any disparity in pay cannot be cured by lowering males’ wages, but only by raising the females’ wages (in addition to other potential damages).

TAKEAWAY: To avoid a pay disparity suit, employers should periodically review the pay of all persons performing comparable work to ensure that any wage differential is due to something other than gender.

Finally, the post yesterday 11/21/15 gave us 6 things to research before buying a condo. Some of these items apply equally to a single home in a planned community. Why do we set apart condos (and detached homes in planned communities)? Because they are subject to legal documents that set forth obligations (and rights) of both the homeowners’ association and the owners (you, the potential buyer). So what types of things should you look at before you buy? The property itself. The budget (which must be disclosed according to PA law). The owner occupancy rate. Other things are in the post.

TAKEAWAY: The legal documents governing life in a condominium (or detached homes planned community) can provide many benefits to homeowners. However, they also put many burdens and obligations on owners, so know before you buy – let an attorney experienced in this area of law review the documents and explain them to you.


ICYMI: Our Social Media Posts This Week -- Nov. 8 - 14, 2015

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

The post on Sunday 11/8/15 talked about 2 good reasons to keep job descriptions current and accurate. The first reason is to ensure that the position is classified correctly for wage and hour purposes. This means not letting the title be the deciding factor – but rather looking to the duties (to be) performed by the person holding the position. The other reason is in the post.

TAKEAWAY: Job descriptions are not just busy work – they can be extremely important to an employer in case of charge or suit, so make sure they are current and accurate.

On Monday 11/9/15 the post asked if you can terminate an employee on FMLA leave. The answer, as it is so many times, is "it depends". If the FMLA leave is being considered in the decision to terminate, then no. Likewise, if the person was out on approved FMLA leave and is released to return to work at the end of the leave, then (usually) no. If the employee’s position is being eliminated (and that has nothing to do with the FMLA leave), then the employee may be terminated. Similarly, if the employee’s performance was sub-par, and s/he would be terminated even if not on FMLA leave, then termination is possible. The file should also contain support for why the decision to terminate was not made prior to the FMLA leave (or wait until the employee returns from leave and then terminate, assuming a valid basis). More details are in the post.

TAKEAWAY: Before terminating an employee on FMLA leave, make sure to have support for a valid basis for the termination in case it is challenged in any way.

In the post on Tuesday 11/10/15 we reminded you that when an employee has FMLA history, beware punishing him/her for suddenly going home. This might be part and parcel of an approved intermittent leave (even though the employee is unable to give advance notice).

TAKEAWAY: FMLA leave can take many forms and advance notice form the employee may not always be possible – err on the side of caution and the sudden departure being covered (unless and until you find out to the contrary).

The post on Wednesday 11/11/15 asked if an employee can be fired for threatening to file a discrimination complaint. Well, the answer is again “it depends”. For a retaliation claim to lie, there is practically no difference between threatening to file a complaint or charge and actually doing it. However, that is not the end of the road. The employee would still need to prove that it was the threat or actual filing of the charge/complaint that resulted in whatever adverse action occurred (and not some other reasons or basis). More details are in the post. If there is a valid reason for discharge (i.e., one that has nothing to do with the threat or filing), then it may well be appropriate.

TAKEAWAY: Employers should always ensure they have valid legal support before taking any adverse action against an employee, and doing do after the employee either threatens to file a charge or complaint or actually does so is no exception.

The post on Thursday 11/12/15 was about when the ADA and FMLA overlap – things to know. There is a different threshold for when the laws might apply, but usually they both apply when dealing with leave for an employee’s medical condition. The FMLA provides a specific limit on allowed unpaid leave – 12 weeks (taken in lump(s) or as intermittent leave). The ADA, in contrast, has no limit other than what is a reasonable accommodation. The employee might be taking leave under either the ADA or FMLA and then, when that is over, need leave under the other. The most common order is FMLA leave (since there is a time limit) and then ADA leave (as a reasonable accommodation with no time limit). The post works through a fact pattern as an example of how the 2 laws might work together.

TAKEAWAY:  If dealing with medical leave under either the ADA or FMLA, keep in mind the other law too as it may well come into play. Consult an employment law attorney to be sure of your obligations.

Continuing with the ADA/FMLA theme, the post on Friday 11/13/15 posed a question: can a fragrance allergy lead to an ADA or FMLA claim? The short answer is “maybe”. Part of the explanation is that the allergy may well qualify the employee for ADA protection; it might also be such as to allow FMLA leave (even intermittent if it only periodically flares up). The post tells us of one situation where these laws were implicated in a suit filed alleging that they were violated by the employer.

TAKEAWAY: Employers must be careful when discharging employees who have made an FMLA leave request or are out on FMLA leave – make sure there is valid legal support for the discharge, including explanation for any timing hiccups.

Finally, the post yesterday 11/14/15 suggested that we should come to work and … get some sleep, noting that if it is a reasonable accommodation, it just might happen. What? Yes you read it correctly. This might happen under the ADA, especially if the employee suffers from sleep apnea or has side effects from medication. When, where and how the sleep might be permitted would be part of the interactive accommodation process – assuming it is the agreed-upon accommodation and poses no undue hardship to the employer.

TAKEAWAY: Often the reasonable accommodation process under the ADA takes strange twists – like here and possibly allowing an employee to sleep while at work. To be sure all obligations are met, consult an employment law attorney.


ICYMI: Our Social Media Posts This Week -- Nov. 1 - 7, 2015

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

The post on Sunday 11/1/15 asked whether an employee’s text and his girlfriend’s report are enough to establish notice of the need for FMLA leave. Delbert, who worked at Tyson Foods, decided not to show up for work and asked his girlfriend, who also worked there, to report his absence. She told his supervisor. He also texted the supervisor. They did not say the same things though – see the post. Delbert missed the next few days of work but didn’t tell Tyson anything about those absences. A few days later he received a medical diagnosis and brought in a doctor’s note the following day. He also filled out a leave application, checking the “non-FMLA” box. Tyson determined that Delbert had not followed the call-off policy so his absences were unexcused and he was fired. He filed suit (yeah, I bet you guessed that one – the claims are in the post) and a court said he might actually have done enough to give notice of his need for FMLA leave. The court’s decision was highly dependent on the facts (including that Delbert and his supervisor often texted, so the fact that he reported his initial absence by text instead of calling as the policy required was ok) but can be used as a roadmap.

TAKEAWAY: Make sure to follow a policy uniformly so as not to get caught up in exceptions of your own making; also, don’t force the employee to decide what is or is not FMLA leave when there is no requirement to utter those initials to invoke the law’s protections.

On Monday 11/2/15 the post was about the EEOC suit against Gonnella Baking Company for race harassment. You might ask why you should care. Because, in summary and as the post says, the company allegedly failed “to stop a pattern of disparaging comments about black employees …” at one of its plants (it has some in IL and one in PA). Examples of the comments are in the post and include “you people are lazy.” Pre-suit settlement failed so the EEOC initiated suit.

TAKEAWAY: Train your employees on what they can and cannot say and if they step over the (legal) line, take action as necessary to make it stop – before a court does it for you and on your dime.

In the post on Tuesday 11/3/15, we reminded you to vote on this Election Day.

TAKEAWAY: Take heed of your responsibilities on Election Day – people fought for the freedom to vote!

The post on Wednesday 11/4/15 was about a court directing an employer to let an employee watch porn on the lunch hour. Really. Ok, it happened in Italy, but it is still interesting (and makes one think about how it would play out here in the US). So the employee was discharged for watching porn during lunch hours. The appellate court (after 5 years of litigation) said the employee had done nothing wrong and was “entitled to ‘catching a glimpse’”. See the post. This author thinks it was probably more than a glimpse …

TAKEAWAY: You may or may not be able to control what your employees do on their own time – if you want to place limits, make sure they are legal and enforceable.

The post on Thursday 11/5/15 told us that Staples will pay a fired employee $275K in wages and damages. Why? To settle his claims. Jeffrey had to deal with his wife’s illness but apparently nobody from Staples advised him of his FMLA rights. He used personal, sick and vacation time to care for her.

TAKEAWAY: Don’t wait for an employee to ask about his/or her rights – make sure to fulfill your obligation as an employer and just tell the employee what might be there for him/her.

The post on Friday 11/6/15 reminded us that yes, there is a difference between color and race when it comes to discrimination. Title VII bans discrimination on the basis of many protected characteristics, including race and color. No, they are not duplicative terms. The post gives a good example of the difference and how it might occur in the workplace.

TAKEAWAY: Be aware of all protected characteristics and don’t use them as the basis for any employment decision, especially if it’s adverse.

Finally, the post yesterday 11/7/15 told us that it takes 2 – racial slurs to support a claim of harassment. In the workplace, that is, and according to one federal appeals court. So let’s look at the background in this case. The employee, an African-American female, was a waitress in Ocean City, MD. A manager twice called her a racial slur (which is in the post) and threatened her job. He also used a different term that was racially charged (again, see the post). She complained; that led the owner to ask about her job performance and she was subsequently fired. The court said that even though the slurs were limited, they were serious enough to send the matter to a jury to decide whether or not discrimination occurred. But that’s not all – the case also had a claim of retaliation (the firing after reporting the discrimination). The trial and initial appellate court said that the employee could not have reasonably believed a Title VII violation had taken place, so there could be no retaliation. On further appeal, the court said that reporting even one incident of harassment, even if it could not support a hostile work environment claim, was sufficient to support a claim of retaliation (if other elements were present). It is this holding relative to retaliation that employers should take to heart.

TAKEAWAY: Let’s recap: How many times can an employee hurl racial slurs at other employees? Despite what a court might eventually determine - after much time and money - your answer should be “none”. And must the underlying cause be proven to support a claim of retaliation? No. Employers beware.