Monday
Jan052015

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

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

The post on Sunday 1/4/15 was about how actions speak louder than words, like a jury awarding $185 MILLION punitive damages in a pregnancy discrimination suit. Yes, million. The defendant employer, AutoZone, put the employee on a performance improvement plan and then demoted her, both shortly after the employee said she was pregnant. She then filed an administrative charge, got her right-to-sue letter, and filed suit. She was then fired and amended the suit to include other claims as well. So where did AutoZone fall short? Evidence that after finding out she was pregnant, the manager urged her to step down from being Store Manager due to the pregnancy and that she was given more work with shorter deadlines than male counterparts with worse-performing stores. But wait, there’s more. AutoZone also said it discharged her for a policy violation, but couldn’t identify the policy; also, it did not uniformly enforce the alleged policy when it didn’t discipline another employee for doing the same thing as part of the same incident for which this employee was discharged. At trial, the jury was obviously angry and awarded $25 million more in punitives than was requested.

TAKEAWAY: If you are going to assert a policy violation, you must actually have the policy and evenly enforce it.

In the post on Monday 1/5/15 we talked about a federal court ordering the NLRB Regional Director, acting for the Board, to pay more than $55K in attorney’s fees to an employer. And this was despite the NLRB being awarded much of the relief it requested in the suit! So what happened? The new owner of a company was told by Homeland Security that he could treat all employees as new hires and use E-Verify. He fired 4 of the “new hires” and the NLRB alleged the firings were due to their support for the union and therefore illegal. The employer offered to reinstate the 4 employees if they completed E-Verify (a requirement under that state’s law); the NLRB wanted unconditional rehire but the court disagreed. The court then granted the employer’s request for attorneys’ fees related to the unconditional rehire demand.

TAKEAWAY: There are limits to what the NLRB can get; here, due to the overreaching, the employer asked for and received an award of attorney’s’ fees.

The post on Tuesday 1/6/15 turned thoughts to warm weather and 5 ways scuba diving works your body all over. How, you ask? Head-to-toe toning (because water is heavier than air and provides more resistance while remaining low-impact). Crazy calorie burns – an average of at least 400 calories per dive. Better breathing – by increasing lung capacity, strengthening your respiratory system, lowering blood pressure, quelling depression, anxiety and stress-related disorders, and possibly cutting your risk of lung disease. The others are in the post.

TAKEAWAY: Scuba is not only fun but good for you. Consider adding it to your life (if you are not a certified diver) or diving more (if you are already certified).

In the post on Wednesday 1/7/15 we began to delve into the ADA and talked about knowledge and consistency – the 5 definitions to know about the ADA. You should definitely know what “disability” and “qualified individual with a disability” mean in the context of the ADA. “Disability” means someone who has a physical or mental impairment that substantially limits his/her ability to perform one or more major life activities, someone who has a record of such impairment, or someone who is regarded by the employer as having such an impairment. The term "disability” is very broad now thanks to the changes under the ADA Amendments Act. So what about “qualified individual with a disability”? That means the person has the skills, experience and other job-related requirements for the position. The other 3 definitions under the ADA that you should know are in the post.

TAKEAWAY: Administering the ADA’s provisions can be complex – employers and employees may not always be sure of their rights or obligations and should consult an experienced employment law attorney to help.

Continuing the ADA theme, the post on Thursday 1/8/15 talked about a $75K settlement of an EEOC suit for a rejected applicant with HIV. Yes, an applicant. The health staffing company refused to hire the person (to sit with patients at a VA hospital) because he is HIV positive.

TAKEAWAY: Remember that the ADA applies to employees AND applicants for employment.

On Friday 1/9/15, the post was about an employer that got slapped for not practicing what it preached. Here, a disability aid service fired an employee with a disability. First, the background. The deaf employee was an independent living specialist; he requested reasonable accommodations including TTY equipment, a video phone and the ability to text message. The employer rejected the accommodation requests, did not provide alternative accommodation, and finally fired him. The EEOC noted the hypocrisy of a non-profit whose mission is to help disabled individuals discharging an employee because of a disability. Ugh. Just ugh.

TAKEAWAY: Employers must take seriously their duty to engage in the interactive accommodation process if the employee has ADA protection – failure to fulfill its obligation can land the employer in legal trouble.

Finally, finishing up the ADA theme, in the post yesterday 1/10/15 we talked about the ins & outs of the ADA. We were first reminded that the ADA includes coverage for recruitment, hiring, placement, training, promotion, transfer, benefits, discipline and discharge. The ADA covers a qualified individual with a disability who, with or without accommodation, can perform the essential functions of the job. Assuming the person meets this threshold (which is not that difficult thanks to the ADAAA), the employer must then engage in the interactive accommodation process. Some types of accommodation are listed in the post, but the actual accommodation will vary based on the the situation. If the employer can show that providing an accommodation would be an undue hardship (which will vary with each employer and situation), it is excused from accommodation.

TAKEAWAY: An employer should take seriously its obligations under the ADA and try to accommodate a qualified individual with a disability – but the employer does not have to create a new position in order to accommodate.

Monday
Dec292014

ICYMI: Our Social Media Posts This Week -- Dec. 28, 2014 – Jan. 3, 2015

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

Following recent holiday food excesses, the post on Sunday 12/28/14 was about whether obesity is considered a disability under the ADA. According to the EEOC, obesity can indeed be a disability under the ADA Amendments Act. This means that employers should probably just skip right to the next step, accommodation.

TAKEAWAY: The ADAAA broadened the definition of disability and brought more employees within its ambit; with more people becoming obese in the US, this means employers more often must accommodate someone in order that they can perform the essential functions of their job.

In the post on Monday 12/29/14 we talked about how to have productivity after the write-up. After making sure the write-up includes only facts as applied to any policy and sets out the discipline and any consequences for a failure to improve, make sure three things are properly in place: delivery by the manager, delivery to the employee, and follow-up. First, how the manager delivers the write-up is oh-so important; it helps if the discussion can end on a high note (something the employee does well and should continue). The other tips are in the post.

TAKEAWAY: It is hard enough to discipline employees, so if it’s going to be done, make sure to do it right and make it work for you.

The post on Tuesday 12/30/14 was all about timing: 5 must-have employment law resolutions for 2015. So what are the tips? 1. Revamp the employee handbook. Make sure it is current, both with your practices and applicable law. 2. Know your wage & hour compliance rules. This can help prevent any back wage liability in the future. 3. Fine-tune your harassment policy.  For all types of harassment and including what to do if harassment is experienced or suspected. And once you have the policy in place, follow it. Tips 4 and 5 are in the post.

TAKEAWAY: You should always know what laws apply to your company and your employees, but it is always good to start off a new year on the right foot by shoring up your employment practices and policies.

In the post on Wednesday 12/31/14 we talked about not letting the OWBPA put a rift in your RIF. While the economy is recovering, some employers still need to downsize and that may include employees over age 40. The law provides for certain things that must be in a severance agreement in order that the employee legally waives any potential age claims s/he may have. There are special requirements depending on the number of people over age 40 being laid off. Go to the post for more information and contact us for assistance.

TAKEAWAY: The safest course to take when ending the employment of someone over age 40 is to obtain a waiver of claims; that is done in a writing that must contain certain things or it will not be valid. It is a legal document; treat it as such.

The posts on Thursday 1/1/15, and here, our first of the new year, wished you a happy new year.

TAKEAWAY: May 2015 be your best year yet. We stand ready to assist with your employment law needs.

The post on Friday 1/2/15 talked about the difference between foreman and supervisor in workplace discrimination lawsuits. No they are not necessarily the same. The employer here had a policy that included race discrimination and a detailed reporting process. The African-American employee was under 2 Caucasian foremen who often directed racial comments to him and harassed him in other ways because of his race. Further, nooses were left around the jobsite and other things happened. The employee admits he didn’t tell management but did tell his union steward; he also alleged that the steward said he’d spoken with the superintendent of the jobsite where the employee and foremen worked and the superintendent was going to support the foremen and take no action on the complaint. The steward says he told the employee to make a written complaint. The employee quit and filed an EEOC charge. The general superintendent then became aware of a harassing text message and offered unconditional reinstatement (and plans to fire the 2 foremen). The employee filed suit. The trial court dismissed the suit because the foremen weren’t supervisors and there was no evidence that management know about the harassment prior to the voluntary quit. Based on a Supreme Court decision, the appeals court said that since the foremen didn’t have hire and fire authority, the employee had to show management knowledge of the harassment for the suit to proceed; he couldn’t and it didn’t. 

TAKEAWAY: Not only should employers do their best to prevent harassment and discrimination, but employees must know who is and isn’t authorized to act on behalf of the employer for legal liability purposes.

Finally, in the post yesterday 1/3/15 we recounted the Top 10 consumer debt myths. So what are they? 1. If a creditor charges off a debt, it is no longer owed. Nope. That just means they got it off their books, not that it is unable to be collected by someone else in the future. 2. Filing for bankruptcy lets me eliminate debt on my car and house. Again, nope. The bankruptcy filing rids you of personal liability on those debts, but if you want to keep the items you still have to pay for them (with limited caveats). 3. If I don‘t pay my debts, I will go to jail. Nope again. Debtor’s prisons went the way of the dinosaurs. However, the post details a few situations when jail can be a result. 4. If I don’t pay my credit card, my wages will be garnished. Maybe, but not until after suit is filed and judgment entered, and only then if the state in which you work allows wage garnishment. The other myths are in the post.

TAKEAWAY: Just because you saw it on the internet does not make it true; often there are many myths floating around about consumer finances. Contact a professional to make sure what is or is not true for you.

Monday
Dec222014

ICYMI: Our Social Media Posts This Week -- Dec. 21 - 27, 2014

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 12/21/14 was about action taken as a general prankster or because of a protected characteristic. There is a HUGE legal difference (and hopefully you know the difference!).  Pranks happen, but they can rise to the level of a hostile work environment that violates Title VII, the ADA or the ADEA (to name a few). It’s those latter ones that can put the employer in legal hot (and expensive) water.

TAKEAWAY: Employers should try to keep the workplace free of pranks, but especially ensure they do not become illegal harassment or discrimination.

In the post on Monday 12/22/14, we talked about why you should seek legal guidance when using agreements with arbitration provisions. These are legal provisions that may or may not be enforced, depending on the state and how they are worded. However, if not drafted properly and if not in compliance with applicable law, the provision may not survive.

TAKEAWAY:  As with other legal provisions or documents, if you want an arbitration provision in a contract or agreement, consult an employment attorney to ensure that it is legal and will accomplish what you want it to.

The post on Tuesday 12/23/14 was about what to expect when you’re expecting: fair treatment under the law.  To avoid having to settle a lawsuit by the EEOC as did Triple T Foods (on allegations it fired an employee the day she announced her pregnancy), pay attention to the Pregnancy Discrimination Act in hiring, promotion, discipline, and firing. In Pennsylvania, there are both federal and state laws to comply with. The post gives you a taste of both.

TAKEAWAY:  Pregnancy is a big deal: for the employee whose life will be changed forever and for the employer who will be affected, if only for a short time. Treat the pregnant employee fairly and legally to stay out of hot water.

The post on Wednesday 12/24/14 told us that the old (law) is new again: plaintiffs are increasing using an old PA law to challenge background check decisions. Which law? The Criminal History Record Information Act.  If an applicant is rejected based on criminal records, the employer must make sure the rejection complies with this law. What does the law say? That employers can consider felony and misdemeanor criminal conviction in hiring if they “relate to the applicant’s suitability for employment in the position for which he has applied”. The employer also must provide to the applicant, in writing, notice if the rejection is based on criminal history (whether in who9le or in part). The law is broad, applying to ANY criminal record information, not necessarily just that which is received from third-party screening agents. The post also talks about remedies available to an applicant, including attorney’s fees and costs. Finally, the post includes reference to 2 recent PA cases. In one case, the court held that a decision not to hire based on an omission from or falsification on an employment application is not “because of” criminal history and therefore CHRIA does not apply. In the other case, the court allowed a case to go forward where it said the applicant sufficiently alleged the decision not to hire was made on the mere fact of the arrest (and not due to a finding of being not credible in discussing an arrest as the employer claimed).

TAKEAWAY: Employers should be careful not to violate any law when using criminal history information in hiring (and other employment-related) decisions.

The posts on Thursday 12/25/14, here and here, wished everyone a happy, healthy and Merry Christmas.

TAKEAWAY: Yes, we truly hope you had a wonderful and wondrous holiday!

The post on Friday 12/26/14 was a reminder about military leave and the FMLA. Yep, the FMLA was amended in 2008 to provide special benefits for military personnel/families. It now has Qualifying Exigency Leave and Military Caregiver Leave provisions. The threshold for applicability is the same under both leave types (the employer must have at least 50 employees and the employee must have worked there at least one year (not consecutively), worked at least 1250 hours in the preceding year AND work at a location with at least 50 employees within a 75-mile radius. Details on Qualifying Exigency Leave are both in the post and the statute itself.

TAKEAWAY:  Employers must remember the FMLA is broad and contains provisions for dealing with military employees or their families.

Finally, in the post yesterday 12/27/14 we talked about a well-known restaurant chain’s settlement of a race discrimination suit. The underlying suit accused McCormick & Schmick’s of race discrimination by refusing to hire African-Americans for front-of-house positions at its Baltimore locations and that those working in front-of-house positions were denied equal work assignments due to race. Further, the suit alleged that advertising for positons showed visual preferences for non-African-American workers. McCormick & Schmick’s settled for $1.3M along with injunctive relief.

TAKEAWAY:  Race rarely (if ever) is job-related, so don’t use it as a factor on which to base employment decisions.

Monday
Dec152014

ICYMI: Our Social Media Posts This Week -- Dec. 14 - 20, 2014

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 12/14/14 started the week with signs you have (or are) a horrible boss (some of which can result in legal liability for the employer). So what are some of the signs that could have legal implications? They have a pesky habit of calling you on your day off. Your boss has favorites. They’re passive-aggressive or ignore you. Your boss throws tantrums easily. Others are in the post.

TAKEAWAY: Having or being a bad boss is not itself illegal, but some of the behaviors exhibited by bad bosses can be; know which are legal or illegal.

In the post on Monday 12/15/14, we suggest you make sure you can define what (not) “fitting in” means. This came up in the context of an employer’s rejection of a minority candidate – multiple times – for a job that didn’t even come with a pay raise. Each time a position opened over a 5-year span, it was filled with a Caucasian candidate even though the African-American employee had more training and seniority than each of the 8 candidates selected. When the emplo9yee’s supervisor, who had recommended him for the position, questioned why the employee was not selected, the response was that another candidate was a “better fit” and had a college degree. There had been a similar comment earlier in the process that the employee “did not fit in”. The employee filed administrative charges, alleging race discrimination; after that, he was still not selected, was reassigned, others were told to “keep their distance” from him, he was not considered for future vacancies, all of which led to retaliation charges. He eventually sued. On appeal, the court found that the “fitting in” comments were not stray, but that a jury could conclude the comments were related to race discrimination.

TAKEAWAY:  Treat all employees (and candidates) the same and use objective criteria for selection; also, once a complaint is filed, don’t treat the employee differently than other employees.

On Tuesday 12/16/14 the post was about 8 amazing things you can do only while scuba diving. Off our usual legal topics, but in keeping with the idea that one must have fun to balance out all the hard work.  SO what are some of the things? Speak whale to an actual whale. Immerse yourself in history (diving wrecks). Try that jetpack you’ve always wanted (with a diver propulsion vehicle). Hover like a genie. The others are in the post.

TAKEAWAY:  Scuba diving is an amazing way to meet people, visit new places, and continue learning and honing your skills. It provides a respite from the “regular” world when you are under water.

The post on Wednesday 12/17/14 was about 7 ways a company can legally discriminate against its employees. Yep, legally. So what are some of the things that made the list? If you‘re gay. If you’re transgender. If you’re unattractive or too attractive. The others are in the post.

TAKEAWAY:  There are many areas in which employees lack protection under state or federal law; this does not mean that employers should discriminate on the basis of those things, just that they can do so legally.

The post on Thursday 12/18/14 talked of 1 potato, 2 potato, nope, no 3rd potato if you’re female.  You guessed it: pay discrimination on the basis of sex, a violation of the Equal Pay Act. If employees are doing the same job, they should be paid the same, regardless of their gender. Here, females complained when they found out that was not the case. So what did the employer do? It allegedly retaliated against them after the complaint by firing one and demoting another. This matter is now in conciliation between the EEOC and the City and also the subject of a federal lawsuit.   

TAKEAWAY:  Employers should look at the job, not the person doing it, in establishing pay that is uniform for that job.

The post on Friday 12/19/14 told us how the NLRB raised the stakes, making a grab for broader financial remedies. Again. In a ruling issued 10/24/14, the NLRB said it has broad authority to order expanded remedial measures relative to acts it considers “egregious and pervasive” violations. This employee-friendly Board wants to strike fear in employers. What did the Board require in this case? That the employer reimburse the Board’s General Counsel and the union for their litigation expenses over the several-year period, including reasonable counsel fees, witness fees, transcript and record costs, printing costs, travel expenses, per diems, and more. Further, the employer now has to comply with expanded posting requirements. Finally, and here’s the kicker, the Board ordered that the parties brief the issue of front pay (for wages for the period between the judgment and reinstatement) – something it has not done before and a remedy not requested by the union or General Counsel (nor by any party).

TAKEAWAY:  Employers should remember that at least some provisions of the NLRA apply in EVERY workplace; that means a violation could subject the employer to these increased remedies and penalties if it makes a misstep.

Finally, in the post yesterday 12/20/14 we reaffirmed that employers should not destroy records during a pending employee lawsuit. Here, the employer destroyed records (according to its policy) at least 8 months after the employee filed her EEOC charge and at least 3 months after she filed suit.  What was the result of the employer’s conduct? The jury was to be given an instruction that it could draw an adverse inference from the destruction.

TAKEAWAY:  Even when an employer has in place a regular document destruction policy, it must know when to put that policy on hold. Once a complaint is filed internally, which could be long before administrative charges or suit is threatened or filed, the employer should preserve any and all records relevant to the complaint. 

Monday
Dec082014

ICYMI: Our Social Media Posts This Week -- Dec. 7 - 13, 2014

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 week started with the post on Sunday 12/7/14 about documented progressive discipline defeats an FMLA claim. Just confirms that it is about documenting, documenting, documenting. Here, the employer showed that the employee would have been fired whether or not he took a protected leave. How? The employer has a progressive discipline system; it was followed with this employee. However, when he was disciplined, his protected FMLA leave was mistakenly considered. When he received his last discipline for poor performance, he was discharged. He sued, alleging an FMLA violation (interference and retaliation) and state-law claims. The court found that even if the discipline couldn’t have been given for absence due to the FMLA leave, it could have been given for failing to follow the call-in procedure, so there was no retaliation claim. Using the same facts, the court also dismissed the interference claim. 

TAKEAWAY: If you have a policy, use it, evenly and uniformly. If you vary from it, don’t try to support any adverse action with the policy.

In the post on Monday 12/8/14 we talked about Popeyes chickening out on an HIV-positive applicant. The franchise settled an EEOC disability discrimination suit for $25,000. The suit alleged that the applicant, who had several years’ restaurant experience, was not hired due to his HIV status. It came to light because he answered “medical” for the reason he left his last job and the hiring manager grilled him on the medical condition during an interview. The manager then told the applicant that he couldn’t work in the restaurant business due to his HIV status. The applicant then filed an EEOC complaint alleging violation of the ADA by the pre-offer medical inquiry and refusal to hire due to HIV status.

TAKEAWAY: Do not assume that someone cannot perform a job – that assumption could be illegal and end up costing you a lot of time and money.

On Tuesday 12/9/14 the post was about how FMLA confidentiality provisions supersede OSHA record-keeping requirements. And it took OSHA itself to say this! What led up to this? A UPS employee submitted an FMLA leave application including a doctor’s statement. The employer, the US Postal Service, did not list the illness on its OSHA log as work-related. The employee filed a complaint with OSHA. After investigating, OSHA issued a citation to the USPS. The USPS then argued (among other things) that an FMLA regulation required it to keep the information confidential. An ALJ upheld the citation and the USPS appealed.  The Commission agreed with the employer and reversed the ALJ. 

TAKEAWAY:  Don’t blindly follow one law without taking into consideration others that might supersede that one.

The post on Wednesday 12/10/14 was about medical questions and the ADA: when and what can employers ask? We saw in Monday’s post that an employer cannot ask medical question pre-offer so we know that timing is important. If dealing with an applicant who has an obvious disability that may affect the ability to perform essential job functions, the employer can (and should) ask about that. Once a conditional offer has been made, but prior to work starting, the employer can ask disability-related questions and require a medical exam related to the essential job functions if the employee does this for all applicants, not just those who may have disabilities or medical conditions. And the questions and exams cannot violate GINA. If the employer is dealing with an employee, there is even less wiggle room; all inquiries and exams must be job-related and consistent with business necessity. Further, the employer can request information and documents to support an accommodation request.

TAKEAWAY:  Know the law – when an employer can and cannot ask medical and disability-related questions and require a medical exam of both applicants and employees.

On Thursday 12/11/14 the post was about the Top 3 mistakes people make before a bankruptcy filing. So what things should not be done prior to a bankruptcy filing? (1) Paying off loans to family members. The bankruptcy trustee will recover this repayment anyway, even if it takes a lawsuit.  (2) Transferring assets out of your name. If you don’t receive consideration (money or something else) in approximately the same value as the asset, then the bankruptcy trustee will sue the person to whom you transferred the asset. The third tip is in the post.

TAKEAWAY:  If you are considering filing for bankruptcy protection, even far in the future, you should consult an experienced bankruptcy attorney so you know what you can and cannot do between now and the filing – this can save you a lot of grief later.

The post on Friday 12/12/14 told us that the Computer Fraud & Abuse Act (CFAA) was no help to an employer suing an employee who took proprietary information; it also talked about how to limit employee access. The employee emailed himself various files with the employer’s confidential, proprietary or trade-secret information and had a co-worker send him more proprietary information he could not access. The employer claimed that there was a violation of the CFAA. The court determined that once an employee is granted access to an employer’s computer system, there is no CFFA violation regardless of how the employee subsequently uses the information. This is a very narrow interpretation of the CFAA’s language and should serve as a warning to employers.

TAKEAWAY:  Employers must be careful about who can access what information in the computer system and how – and with whom – it can be shared.  This may take a continual monitoring process by the employer in addition to one or more documents signed by the employee prior to being given such access.

Finally, in the post yesterday 12/13/14 we learned about a jury award of $499K in a sexual harassment & retaliation case - sometimes a jury has to tell an owner to stop when HR won’t. The employer is EmCare, a physician services provider. The EEOC brought the suit on behalf of the female former Executive Assistant (who was awarded $250K in punitive damages for sexual harassment by her supervisor, the division CEO), a female credentialer ($82K award) and a male recruiter ($167K award). The last 2 awards were for retaliatory discharge (being fired for reporting and opposing a sexually hostile work environment). The trial included testimony about constant lewd sexual comments by the division CEO and other management employees as well as HR’s failure to respond to complaints about the misconduct.

TAKEAWAY:  Once again we warn employers to take seriously any complaint of harassment or discrimination in the workplace – not doing so could be very costly.

Monday
Dec012014

ICYMI: Our Social Media Posts This Week -- Nov. 30 – Dec. 6, 2014

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 week started with the post on Sunday 11/30/14 about gay people being legally able to marry and get fired in PA. Huh? As the post says, “Gay people can now get legally married in more states than where they are legally protected from job discrimination.” PA is one of the 5 states where gay people can legally marry and also be fired just for being gay – there is no national or state law prohibiting discrimination in employment on the basis of sexual orientation. ENDA, the Employment Non-Discrimination Act, has been floating around in Congress for several years but has died in committee due to a fight over whether or not it should also include protection on the basis of gender identity.

TAKEAWAY: While there is no PA law prohibiting discrimination in the workplace on the basis of sexual orientation, it is still better for an employer to stick to performance-related issues if taking adverse action against employees.

The post on Monday 12/1/14 provided 3 top labor & employment enforcement priorities (per DOL and EEOC). What are they? Misclassification enforcement starts the list. This includes who is the employee and who is the employer, along with employee versus contractor and exempt versus non-exempt. The other 2 priorities are in the post.

TAKEAWAY:  It is more important than ever to properly classify those providing services to you (or on your behalf). Consult an employment law attorney if you are not sure.

On Tuesday 12/2/14 the post was about an employee’s snarky Facebook post causing ADA trouble for the employer. Yep, socmedia rules the day – this time under the ADA. So what happened? An employee learned about a co-worker’s injury when she processed his worker’s comp claim and monitored his treatment as part of her job.  She then posted on her Facebook account on her own time and gave detailed information and mentioned the co-worker by name. The co-worker sued the employer, alleging a violation of the ADA.  The court allowed the suit to go forward.

TAKEAWAY:  Employers must train employees on all aspects of social media – over and over – and its intersection with their job duties and confidentiality. If there is a violation, the employer could be liable.

The post on Wednesday 12/3/14 reminds that assuming someone cannot do the job could be disability discrimination. Matthew had his left arm amputated in late 2010. 3 years later, he applied for a busboy position at a restaurant. He was told to report to work the next day. When he showed up and the owner saw he was an amputee, the owner told Matthew he could not bus tables with only one arm.  Despite Matthew responding that he had been a busser elsewhere, the owner refused to let him work and told him to leave. The EEOC has now sued the employer for violation of the ADA.

TAKEAWAY:  Remember what you learned as a child? Don't assume. That still holds true today.

On Thursday 12/4/14 the post was about how an employment law attorney can help employers make tough decisions. First and foremost, they are trained in and keep up with ever-changing employment laws and court interpretations of those laws. Employers often request legal assistance relative to firing someone; other times include worker classification, layoff, changing employee benefits or pension plans. Another time that is good for employers to seek legal assistance that is not in the post is before responding to an administrative agency charge of discrimination or harassment.

TAKEAWAY:  Employers can often handle matters themselves, but sometimes it is better to consult an expert – an employment law attorney.

The post on Friday 12/5/14 reminds us that sexual harassment and hostile environment can land an employer in hot (and expensive) water. Here, it cost a California electrical services company $82,500 (plus other relief) to settle a sexual harassment lawsuit. The allegations in the suit included a male manager continually subjecting female workers to a hostile work environment, including daily grotesque remarks of a sexual nature and explicit sexual propositions on a continual basis. And, to make matters worse, the allegations are also that the supervisors did not report incidents they witnessed and the company’s management inadequately addressed reported harassment.

TAKEAWAY:  If an employee complains about what s/he perceives as harassment or discrimination, don’t ignore it; investigate and take appropriate action.

Finally, the post yesterday 12/6/14 provided a fact sheet relative to FMLA leave (and serves as a good basic reminder). The post reminds us of the reasons available under the FMLA for leave (including birth of a child, care for a serious health condition, and specific provisions related to service members), definitions of certain terms (including spouse and parent), the length of the leave, and enforcement.

TAKEAWAY:  Employers must be aware of an employee’s rights and the employer’s duties under the FMLA.

Monday
Nov242014

ICYMI: Our Social Media Posts This Week -- Nov. 23 - 29, 2014

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 week started with the post on Sunday 11/23/14 and how required participation in a wellness plan may violate the ADA. As noted, this is a hot-button topic for the EEOC now. In the plan at issue, the suit was filed because employees had to undergo a biometrics exam and health-risk assessment (or lose their health insurance). This was problematic since the exam and questions were not job related.

TAKEAWAY: Wellness plans can be a boon to employers and employees as long as they are legally compliant; make sure yours is before rolling it out publicly.

The post on Monday 11/24/14 was about improper pickle placement or union busting. A Burger King franchisor was held to have committed several varieties of “union-busting”. It took several actions, including sending a worker home one day because she allegedly did not “put pickles on her sandwiches in perfect  squares as she was supposed to do.“ Ordinarily it is ok to discipline employees for not doing things the way they are supposed to, but here it happened coincidentally the day after she was written up for allegedly violating the no-solicitation policy (by asking a co-worker to fill out a wage questionnaire).

TAKEAWAY:  Employers must keep in mind that even in non-unionized workplaces, employees are permitted to discuss certain things like wages and attempts to stop that can be illegal.

On Tuesday 11/25/14 the post talked about the continuing trend toward individual liability for supervisors under various statutes. The subject case was brought under the FMLA. The employee suffered from severe arthritis in her hips but her performance was always “more than satisfactory” and she had good evaluations. Her supervisor changed in 2011; in December 2011, she told him she needed hip surgery. In August 2012, she told the supervisor that the surgery was set for October. Two days later she was fired, allegedly for a written reprimand from 2006 and a July 2012 incident for which there was no written reprimand. She sued the company and supervisor individually under the FMLA. The judge analogized the FMLA to the FLSA and said the test for individual liability is whether the person (1) had supervisory authority over the employee and (2) was responsible for the alleged violation.

TAKEAWAY:  Just because you are an individual, don’t think you have no liability for illegal actions taken by you on behalf of the employer; you just might.

The post on Wednesday 11/26/14 asked why the N-word is always a part of allegations of race discrimination. This word should never see the light of day, but keeps popping up in the workplace (and, subsequently, lawsuits). The court in one case said that using the N-word once is not the basis of a claim for race discrimination. Another case is the Huddle House case we posted about last week. The third case took place in an OH management company where the manager allegedly “frequently called black employees names such as “n----r”, “ho”, and “black bitch” while allowing white employees more breaks than black employees and disciplining black employees for tardiness while not taking similar action against white employees.

TAKEAWAY:  Employers must take care that employees are treated the same regardless of their race; if the law is violated, the employer will be brought to task.

On Thursday 11/27/14 we took time out to wish everyone a bountiful Happy Thanksgiving.

TAKEAWAY:  Stop every so often and give thanks.  

The post on Friday 11/28/14 was about a $15K settlement in a national origin case about failure to pay overtime. The lawsuit alleged that 6 Chicken Express franchise locations in Oklahoma failed to pay Hispanic cooks overtime wages because of their Latin-American national origin. The settlement involved payment by the employer of $15,000 along with other actions including anti-discrimination training of all management employees.

TAKEAWAY:  Not only should an employer not violate overtime pay requirements, it should not do so based on a protected characteristic – that only makes things worse.

Finally, the post yesterday 11/29/14 recounted racial slurs and nooses (but not the N-word) resulting in another EEOC suit. This time the employer is in NJ. What are the EEOC’s allegations? That the company’s management used “racial language”  like “calling African-American employees ‘ass monkeys,’, making comments about blacks swinging through the trees, and describing African-Americans as lazy and dependent on the government.” As if that wasn’t enough, it was at the same time a stuffed monkey was in the workplace and, at times, had a cord or rope tied around its neck or appeared to be hanging.

TAKEAWAY:   Make sure your employees – management on down – do not take any action that could be construed as discriminatory or harassing – properly train and discipline those who are violating the training and applicable law.

Monday
Nov172014

ICYMI: Our Social Media Posts This Week -- Nov. 16 - 22, 2014

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 week started with the post on Sunday 11/16/14 that contained 8 employment practice tips for your small business. What are some of the tips? Relative to hiring, use employment agreements, indluing non-disclosure provisions, and be specific. Have a handbook or policy manual. Know the law. Other tips are in the post.

TAKEAWAY: The last tip says it all: consult an expert (employment attorney) to help keep you on the straight and narrow (legal) road.  

The post on Monday 11/17/14 was about simple math: not using a free coach + firing the employee = $75K failure to accommodate settlement. That was the amount Kaiser Permanente agreed to pay to settle a suit on behalf of a former food service worker who was denied a free job coach (which would have allowed him to properly train and learn the duties of his job). Yes, the employer refused to accommodate the employee's request to take advantage of free training.

TAKEAWAY: Employers must engage in the interactive process when an employee requests accommodation; if the employee suggests something, especially if it is at no cost to the employer, let the employee try it.

On Tuesday 11/18/14 the post was a reminder: don't tell an employee with medical clearance that s/he should be at home. Not only is this foolish (as there is then one less person doing the employer's work), but it is also in violation of the ADA. This could implicate either the "record of" or "regarded as" prong. In the case here, the employee was a title examiner; after diagnosis with end-stage renal disease, she was released to work on a part-time basis (to permit her to attend dialysis). The employer required her to work full-time. She then had surgery so she could undergo dialysis at home; then, after about a one-week adjustment period, she began full-time hours. Shortly after that, she was laid off due to an alleged lack of work. She questioned the reason and was told that she "needed to be at home taking care of herself."

TAKEAWAY: If an employee is medically cleared to return to work, let the employee come back. Don't second-guess the medical release.

On Wednesday 11/19/14 the post was about a woman who was fired the day after complaining about a co-worker touching her buttocks. If this doesn't sound like retaliation to you, do not pass GO ... According to the complaint filed by the EEOC against Daimler Trucks North America, a male co-worker asked Holt if he could borrow her wrench, which was in her back pants pocket. While she was bent over a truck on the assembly line, he reached into her pocket, taking the wrnech while also rubbing her buttocks. She complained and the next day was fired. We will have to wait and see how this plays out (but I'm betting on a settlement).

TAKEAWAY: Employers must take complaints of harassment seriously. Even if it turns out that the complaint was unwarranted, be careful of taking adverse action against the person who lodged the complaint or you, the employer, may well be sitting in the (EEOC's) bulls-eye.

The post on Thursday 11/20/14 was about an employer suing the EEOC for information on a discrimination claim. Sound backwards? Yep. Here, Texas Roadhouse requested public records that might shed light on the origin of the EEOC's age-discrimination case against the restaurant chain. The EEOC had sued Texas Roadhouse 3 years ago, alleging it discriminated against those over 40 for front-of-house positions. Texas Roadhouse asked for records related to "the genesis of the (EEOC) investigation," the amount of taxpayer money spent on the effort and statements by the EEOC representatives to the media about the case.

TAKEAWAY: While the EEOC can bring suit, an employer might well be entitled to information in the EEOC's possession that is relevant to the case.

Next, the post of Friday 11/21/14 instructed on beyond essential functions - the role of reassignment in accommodation. If a disabled employee cannot perform the essential functions of the job, even with accommodation, should you consider reassignment? First, remember that an employer does not have to create a new job as part of the accommodation process. However, if there are open positions, and barring violation of an existing, valid seniority system (under a collective bargaining agreement), the employer must consider transferring the employee to one of the open positions if s/he can perform the essential functions of that job, with or without accommodation. The reassignment does not need to be a promotion but, preferably, will be a lateral move. If the employer has a policy of hiring the most qualified candidate for a position, and the disabled employee is not the most qualified, then you are at a roadblock becasue federal courts in PA are split on whether the employer must reassign the employee as an accommodation or if it can hire the most qualified employee regardless.

TAKEAWAY: A qualified disabled employee does not need to request reassignment as a reasonable accommodation, but an employer must look to same as part of its obligation under the ADA's interactive process.

Finally, in the post yesterday 11/22/14, we talked about there being no place in the work environment for race discrimination. What happened? Another suit by the EEOC, this time against Huddle House in NC. The allegations are that, among other things, members of Huddle House's management team regularly referred to two black employees as "ghetto", "hood", "hood rat", "Huddle ho's" and used the "N-word" when they visited the restaurant.

TAKEAWAY: There is no place for this type of behavior.  Period.

Monday
Nov102014

ICYMI: Our Social Media Posts This Week -- Nov. 9 - 15, 2014

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 week started with the post on Sunday 11/9/14. We learned that you really can't ask employees about prescribed medications and over-the-counter drugs or test for legal prescription medications.  How? By the EEOC filing suit under the ADA against a company that allegedly illegally fired an employee for using prescription back pain meds (although he passed fitness-for-duty exams and had a doctor’s release).

TAKEAWAY: Under the ADA and GINA, if you are asking about medications, make sure it is job-related and based on business necessity or prepare for suit.

The post on Monday 11/10/14 was about an employer success in protecting its SocMedia rights. Here, BET prevailed in a dispute with former worker over the employer’s Facebook fan page. The employee created the page by herself; BET then hired her to manage the page, including posting BET’s trademark and logos and giving her exclusive content to post. They later entered into a written agreement about the page; after that, during discussions about making her employment full-time, the employee restricted BET’s page access and BET had FB migrate the fans to another official page and shut down that page. The employee sued. Who won? Check out the post.

TAKEAWAY:  SocMedia is important to so many aspects of a business; make sure you legally keep the upper hand.

On Tuesday 11/11/14 the post was about disabled or just a cantankerous jerk; one can be fired easily. A police officer was cited several times over many years for behavior including being “tyrannical, unapproachable, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” For that and other things, he was discharged. He sued under the ADA, claiming ADHD was a protected disability. In the end, since his ability to work or interact with others was an essential function, he lost the case.

TAKEAWAY:  Does the court in your jurisdiction say ADHD is a disability under the ADA or is the employee just being a jerk?

On Wednesday 11/12/14 the post talked about the wrong way to engage in the ADA interactive process. The facts in the subject case seem totally in favor of the employee: “Upon attempting to return from a medical leave of absence, an employee requests the following accommodations: an ergonomic chair, adjusted lighting in her office, and a part-time schedule for the next eight days. Instead of providing the accommodations, or even discussing their availability, the employer refuses to permit the employee to return to work, instead telling her not to return until it was with no restrictions or accommodations. The company later fires the employee (seven days after she filed an Equal Employment Opportunity Commission charge challenging the failure-to-accommodate), telling her that she failed to engage in the interactive process.” The EEOC sued on her behalf. Does anyone reading this post know of a reason the suit should not succeed?

TAKEAWAY:  Interaction in the accommodation process is not voluntary once the employer knows of the need.

The post on Thursday 11/13/14 was about the latest suit against FedEx, this time for discrimination against deaf employees.  Apparently FedEx is unaware of the myriad of federal laws that it is required to follow, including not discriminating against individuals without legal basis.

TAKEAWAY: If one or more employees are being treated differently, make sure there is a valid legal basis (and that the different treatment doesn’t or won’t lead to suit).  

For some humor, the post on Friday 11/14/14 mentioned some of the strangest issues ever brought to HR (and the one thing they wanted to put in their company’s handbook). These came from a survey of HR professionals. Here’s the first issue: “A maintenance man at a property management company was found in possession of some narcotic prescriptions that were not in his name. He grabbed them from his supervisor and said they had been given to him for his fish. He would NEVER take prescriptions that weren't prescribed for him… really… REALLY they were for the fish…” And a handbook addition: “Keep the drama for your mama! And she doesn't work here!” For more, go to the post.

TAKEAWAY:  Those in the HR field probably see and hear humorous and strange things every day – but they have to make sense of them within the scheme of employment laws. At least they can call on an employment attorney to assist.

Finally, in the post yesterday 11/15/14, we read "Men are breadwinners, women should stay at home". A judge refused to dismiss female sales representatives’ $100 million class-action lawsuit against Merck in which the women allege a 'boys club' atmosphere.  At this stage, the judge ruled that the case could survive an initial motion to dismiss by Merck. The claims include females, especially those who were pregnant, being paid less than males and complaints leading being ignored.

TAKEAWAY: If employees are doing the same job, and all else being equal, pay and treat them the same. Just do it.

Tuesday
Nov042014

ICYMI: Our Social Media Posts This Week -- Nov. 2 - 8, 2014

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 week started with the post on Sunday 11/2/14. We talked about the FMLA and in-laws. As in, can someone take FMLA leave to care for an in-law? The simple answer? Maybe.  The law itself does not require leave to care for an in-law. However, an employer may allow that type of leave if it chooses (and then must do so for every employee).

TAKEAWAY: Know what is and is not required under laws that impact the workplace.

The post on Monday 11/3/14 asked how you advertise open positions. It also pointed out one employer who did it the wrong way (and got sued). This Maryland employer allegedly used only word-of-mouth to recruit in an attempt to avoid recruitment and hiring of black job applicants because of their race and female applicants because of their sex. As if that wasn’t enough, the suit alleged that 2 Hispanic female employees were subjected to requests for a sexual relationship, sexual comments, offensive comments based on an association with persons of another race, derogatory comments about Hispanic persons, and unwelcome displays of graphic sexual images. More? Yep. It is also alleged that the employer retaliated against the employees (by discharging them) for opposing the harassment and discrimination.

TAKEAWAY:  Mistakes happen, even egregious ones. But don’t compound things (even if a mistake) by blatantly violating the law. You will get caught (as did this employer).

On Tuesday 11/4/14 the post served as a reminder that being fired due to pregnancy is illegal; having to train your replacement is just rude. After learning Lynsey was pregnant, it hired a non-pregnant person to replace her and then fired Lynsey.  To make matters worse, Lynsey’s last duty was to train her replacement. Then because the knife wasn’t’ in deep enough, the company hired yet another non-pregnant employee. The EEOC filed suit on Lynsey’s behalf.  

TAKEAWAY:  If you take adverse action against a pregnant employee, it better not be because of the pregnancy.

The post on Wednesday 11/5/14 brought us an employment law quiz where you got to be the judge for 5 scenarios. I won’t repeat them here, so just go to the post. The answers are there too.  

TAKEAWAY:  Everyone should know the various rights and obligations of the parties under employment-related laws.

The post on Thursday 11/6/14 told us that employers can’t discriminate on the basis of what they don’t know. Some background: the employee received 4 disciplines during her 13-month employment history before she refused to pray the Rosary with a resident. She told a coworker that it was against her religious beliefs but didn’t explain to anyone what those beliefs were. The resident complained and the end result was discharge of the employee. She was told the discharge was for not praying the Rosary with the resident. After suit, a federal court said that the employer had no obligation to rescind the discharge when it did not know of the employee’s beliefs at the time it decided to discharge her.  

TAKEAWAY:   If management has any knowledge of an employee’s sincerely-held religious beliefs, action taken based on those beliefs may violate the law and land the employer in hot water.

The post on Friday 11/7/14 reminded us of that “regarded as” prong under the ADA (and the legal liability that can follow). Here the employer made a conditional offer of employment. The applicant then mentioned a prior back injury as part of his post-offer medical exam. The employer’s own doctor cleared him in October 2011 so he gave notice to his current employer and made plans to move across several states for the new job. Then things changed; the employer began asking for more medical information and tests and, 2 months later, withdrew the offer. The EEOC brought suit on his behalf on the basis that the employer regarded him as having a disability.

TAKEAWAY:  If someone does not ask for accommodation (directly or indirectly), do not assume they need it. Period.

Finally, the post yesterday 11/8/14 asked when hair length became a job necessity for a beer delivery driver. In short, a beer distributor was sued by the EEOC for not accommodating religious beliefs and refusing to hire someone because of his religion. The applicant is a Rastafarian and, due to that, has not cut his hair since at least 2009. When he refused to cut his hair for the position, he was not hired.

TAKEAWAY:  If you cannot accommodate religious beliefs, at least have a valid job-related reason.