Monday
Jul132015

ICYMI: Our Social Media Posts This Week -- July 12 - 18, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday
Jul082015

ICYMI: Our Social Media Posts This Week -- July 5 - 11, 2015

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

In the post on Sunday 7/5/15 we talked about the failure to pay a bonus to a disabled employee possibly being illegal discrimination. Here, the employer had a bonus scheme that disqualified employees who had received a warning for sickness absence (as opposed to those who received warnings related to conduct, which was discretionary). This operated so as to discriminate against disabled employees.  

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Jun292015

ICYMI: Our Social Media Posts This Week -- Jun. 28 – July 4, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Jun222015

ICYMI: Our Social Media Posts This Week -- Jun. 21 - 27, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Jun082015

ICYMI: Our Social Media Posts This Week -- Jun. 14 - 20, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Jun082015

ICYMI: Our Social Media Posts This Week -- Jun. 7 - 13, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday
Jun032015

ICYMI: Our Social Media Posts This Week -- May 31 – Jun. 6, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday
May262015

ICYMI: Our Social Media Posts This Week -- May 24 - 30, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
May182015

ICYMI: Our Social Media Posts This Week -- May 17 - 23, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
May112015

ICYMI: Our Social Media Posts This Week -- May 10 - 16, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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