Monday
Dec072015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Nov302015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday
Nov262015

ICYMI: Our Social Media Posts This Week – Nov. 22 - 28, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday
Nov172015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Nov092015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday
Nov032015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Oct262015

ICYMI: Our Social Media Posts This Week -- Oct. 25 – 31, 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 10/25/15 asked can you sue the boss for making you answer late-night email? This is another in the line of exempt and non-exempt employee issues – if the employee is non-exempt and due pay for any overtime hours worked, and the late-night emails put her/him into that category, then s/he must be paid for that time. The problem is that many employees just do it and don’t report the hours worked so the employer may not know about it. If, however, the employer is aware of the work, the employer should require the employee to record time for that work and pay for it; if pay is not intended, then the employee must be told to discontinue working late at night. Additional details are in the post.

TAKEAWAY: Employers are responsible to pay employees for all time worked; if working late at night answering emails is authorized by the employer, then pay is due for the time devoted to that duty. Make sure you know what your employees are doing and when they are doing it.

On Monday 10/26/15 the post was about light duty, employment termination, and other Q&A. The first question discussed is if an employee is on light duty, but no light duty is available, can the employment be terminated? As the post notes, if the light duty is due to a disability, then this is a situation of reasonable accommodation under the ADA. Can the person perform the essential functions of the job with or without reasonable accommodation? If so, and that means the person can return to work full time, then no light duty is necessary. If no reasonable accommodation is possible (remember the employer need not create a new position), then both accrued but unused leave and FMLA leave should be considered. If neither is available, but a reasonable length of unpaid leave would pose no hardship to the employer, then that should be looked at as a reasonable accommodation. If leave is not a possibility, and there is no other position to which the employee can be reassigned (even temporarily, as a reasonable accommodation), then discharge can occur. Other questions are in the post and include what to do if an employee is not aware of any reasonable accommodation during the interactive process.

TAKEAWAY: The ADA (and its possible interaction with the FMLA) is usually neither simple nor cut & dry. It is often helpful to discuss the issue with an experienced employment law attorney.

In the post on Tuesday 10/27/15, we reminded you to pay attention to details when disciplining an employee. More information on the specific case are in the post. Details can make or break the ship (so to speak).

TAKEAWAY: One, if not the, most important thing in administering discipline is to ensure adherence to policy (if applicable) and uniformity.

The post on Wednesday 10/28/15 asked are you are using the new FMLA forms (and reminded that if not, you should be). The new forms issued by DOL are effective until 5/31/2018. They appear similar to the old forms but include references to GINA - if you don't know what that stands for, contact us. The post also includes a link to the new forms (in case you don’t have them yet).

TAKEAWAY: Make sure to remain compliant – use the new FMLA forms. If you have questions when completing them, consult an experienced employment law attorney.

The post on Thursday 10/29/15 asked what’s in your employee personnel files? Is there just one file for each employee or do you separate medical information from the rest of the file? If you don’t do the latter, you should.  In fact, you must, legally. The post gives you more details on what should be in the medical portion of the file, along with items that should be separate from the “main” file and what should be in the “main” file.

TAKEAWAY: Know what (legally) may or must be in what part of an employee personnel file. If you are unsure, don’t wait for a finding that you guessed incorrectly – consult with an experienced employment law attorney.

The post on Friday 10/30/15 served as a reminder: when done with the FMLA, don’t forget the ADA. This is the reverse of our post on Monday 10/26. When FMLA leave is up, and the employee cannot yet return to work, discharge is not the automatic next step. Consideration of whether or not there is a qualifying disability under the ADA is the next step. If so, then the interactive accommodation process begins. If not, then discharge might be possible.

TAKEAWAY: In just about every situation, when dealing with either the ADA or FMLA, look at the situation under both laws in case both apply.

Finally, the posts yesterday 10/31/15 (here and here) were not scary but merely conveyed wishes for a Happy Halloween.

TAKEAWAY: Halloween can be fun – but remember that if this is a workday for your business, employees must still adhere to grooming policies unless the employer makes a special exception.

Monday
Oct192015

ICYMI: Our Social Media Posts This Week -- Oct. 18 - 24, 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 10/18/15 talked about a woman fighting a medical marijuana firing. Why should you care? Because (limited) legal marijuana use may be coming to PA. Here, the employee was fired after her first day of work because a drug test showed marijuana use (despite informing the employer of her use during an interview). Of course, she has a doctor’s legal permission to use it for medical reasons and did so at home. The employer alleged that the discharge was based on federal law (which does not permit medical marijuana use) and not state law (which did allow it). Additional details are in the post.

TAKEAWAY: Keep abreast of the news and know what your obligations may be if PA legalizes medical marijuana.

On Monday 10/19/15 the post was about Chipotle workers suing for wage violations. Its motto may be “Food With Integrity”, but employees obviously don’t feel that way about their pay from Chipotle. Hundreds of workers in 6 states have filed suit, alleging that they are forced to work off the clock or are misclassified (to avoid being paid overtime). You guessed it – more details about the allegations are in the post.  

TAKEAWAY: Don’t find yourself on the wrong end of a wage suit – classify and pay employees properly from the outset.

In the post on Tuesday 10/20/15, we talked about what to do if you are sued personally. The post lists 3 steps. The first is to contact legal counsel. The other 2 are in the post.

TAKEAWAY: Nobody likes or wants to be sued, especially personally, but it happens – know what to do.

The post on Wednesday 10/21/15 asked if you know what to do when an employee repays a signing bonus? Yeah, I know, it doesn't happen often. Well first, you need to know how much should be repaid and then what steps to follow. They are in the post.

TAKEAWAY: It doesn’t happen often, but you need to know what to do if a signing (or other unearned) bonus is repaid.

The post on Thursday 10/22/15 talked about indiscreet socmedia posts put jobs on the line (in any country). Remember that a post on Facebook or other social media may have an effect on an employer – and bad effects can result in jobs being terminated.

TAKEAWAY: You’ve heard it before, but if you wouldn’t want to see it in the newspaper, don’t put it on socmedia.

The post on Friday 10/23/15 asked if a situation is illegal discrimination and discharge or merely downsizing. Read the post and tell us what you think.

TAKEAWAY: Things can seem like illegal discrimination to an employee but have a valid legal basis for discharge by the employer – make sure you’re in the latter category before suit is filed.

Finally, the post yesterday 10/24/15 told us that Ruby Tuesday is paying $100,000 to settle a sex discrimination suit. That’s a lot of moolah! So what happened? Ruby Tuesday allegedly would not hire 2 males as servers at a Park City, UT location. Not only that, apparently that was embodied in a written memo. Details are in the post.

TAKEAWAY: Need it be said? If you are going to illegally discriminate, at least don’t put it in writing.

Tuesday
Oct132015

ICYMI: Our Social Media Posts This Week -- Oct. 11 - 17, 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 10/11/15 asked if early termination is ok when an employee on FMLA leave resigns. The answer (as with many questions) is maybe and it depends. The FMLA regulations deal with this type of situation and so must be adhered to. If the employee is clear about termination and the same action would be taken relative to someone not on FMLA leave, then the answer is yes.

TAKEAWAY: When it comes to termination (or other adverse action), treat an employee out on FMLA leave the same as any other employee (and consult with an employment law attorney if you’re not sure what you can or cannot do).

On Monday 10/12/15 the post talked about suits alleging Chipotle underpaid employees and made them work off the clock. Its motto is “Food With Integrity” and it supposedly prides itself on ethical fast food, but Chipotle is in hot water for wage issues. The suit alleges Chipotle made employees work off the clock or misclassified them so as not to have to pay overtime. One part of the suit says that “managers-in-training known as ‘apprentices’ are actually glorified burrito rollers with minimal managerial responsibilities …” and so are entitled to overtime. The suits currently include over 643 plaintiffs. Chipotle has denied all allegations (and says it actually goes beyond what the law requires). Another tidbit: past federal investigations of Chipotle stores have turned up pay issues but most have involved minimal dollars and so have gone nowhere.

TAKEAWAY: Make sure you properly classify and pay your employees – if you don’t, it could cost more in the long run, especially if a suit is filed.

In the post on Tuesday 10/13/15, we found an employer breathing easier now after a disability case settled. (Of course, it should never have gotten to that point in the first place ...). Why will Baker Concrete Construction pay $58,000 (plus other relief) to settle a suit brought by the EEOC? Well, the EEOC alleged that the company discharged Maria in 2013 because of her asthma, a disability, by refusing to provide her a reasonable accommodation of working at home for a bit after a bad reaction to chemical dust in the workplace. She was told that, “she … would just become ill again if they gave her permission to work at home for a period because the building was old and she would continue to have breathing problems upon her return.” More of what she was told is in the post. Of course, the company never said why providing the requested accommodation would be an undue hardship; likewise, it did not offer any other reasonable accommodation. Settlement was the smart thing to do.

TAKEAWAY: Just because an employer doesn’t want to accommodate a disabled employee, the legal obligation to do so does NOT disappear.

The post on Wednesday 10/14/15 noted that talking to yourself may now be considered concerted activity (with legal protection following on the heels …). Yes, this is the world of the NLRB, but as you should know it still applies to ALL employers when related to protected concerted activity. Here, a teacher at a private, non-profit religious school yelled to herself “THIS PLACE SUCKS” after another employee asked her to provide proper documentation for expense reimbursement. The school said (in a summary judgment motion) that Section 7 did not apply as activity requires at least 2 employees to be concerted and here she yelled to herself other than in preparation or initiation of group activity. The NLRB outright denied the school’s motion and didn’t even require a response from the Regional Office! So now the matter moved along on the merits (including whether there was concerted activity). NOTE: the Board also denied the school’s argument that it was outside of the Board’s jurisdiction as a religious educational institution (and again required no response from the Regional Office).

TAKEAWAY: Given the current Board’s extreme willingness to stretch the statute, employers must be extra careful these days not to take adverse action on account of anything that could remotely resemble protected concerted activity.

The post on Thursday 10/15/15 was off our normal topics but refreshing: it provided 10 reasons to be a scuba diver. Scuba diving is a passion to some but a joy to all who enjoy it. So what are some of the reasons to become a diver? Explore parts of the world many don’t get to see (remember that 71% of the earth’s surface is water …). It lets you escape everyday technology and Zen out. You get to experience weightlessness. More are in the post. If you are interested in becoming certified to scuba dive or just want to try it once in the pool first, contact me or go to www.scubacentralpa.com .

TAKEAWAY: We all need to get away at times – scuba diving is one surefire way to disengage and refresh.

The post on Friday 10/16/15 reminded us to handle a return from maternity leave with kid gloves. While it talked about a case in Canada, the same things apply here in the US. Lee was hired as a dental hygienist but soon was promoted to office manager. During 7 years of employment, she took 2 maternity leaves, the last ending in July 2011. She had previously worked four days a week from 9a-5p, but was now being moved back to a hygienist position with a different schedule (starting at 8am 3x/week). On her second day back, the schedule again changed, this time to a 10a-6p shift on 3 of the 4 days. Besides her unhappiness with the demotion (and lower pay), the new schedule conflicted with her daycare arrangements. More details are in the post. She was soon discharged and sued. The court said she was entitled to return to the same or a substantially similar position as before her leave and that the schedule change would have been ok if the employer had shown it was a bond fide occupational requirement. More of the court’s reasoning is in the post.

TAKEAWAY: An employer may not like how the FMLA’s provisions play out, but it must still comply – or suffer the consequences.

Finally, the post yesterday 10/17/15 taught us that if there is but a small amount on the table, know when to fold. Yep, a nuisance settlement. Called that because the suit (or charge) is a nuisance to the employer both in terms of the manpower necessary to respond to various documents and attendance at any required hearings, depositions or trial. It is often better to settle a case (usually by paying something, commonly less than the employer would spend if the suit/charge progressed, and admitting no liability) than to let it move ahead. In the case in the post, Domino’s did not take this advice and lost big time.

TAKEAWAY: Even if you know you’ve done nothing wrong, settling a case/matter may still be in your best interests – consult with your employment law attorney to make this happen.

Tuesday
Oct062015

ICYMI: Our Social Media Posts This Week -- Oct. 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 10/4/15 asked if whether a new mother who acts as a surrogate gets PDA accommodation? How did this arise? A woman sued Marriott after being denied lactation breaks (because she was a surrogate) after giving birth. She sued for violation of the Pregnancy Discrimination Act. More details, which help explain a bit more, are in the post.

TAKEAWAY: It may or may not be new ground, but a surrogate still gets pregnant and gives birth, so the safest thing for employers is to treat them as any pregnant employee or new mother would be treated.

In the post on Monday 10/5/15 we learned that a staffing company which assigned temps on the basis of sex will pay $800,000 to settle lawsuits. The EEOC filed suit, alleging violation of the ADA and Title VII, based on the employer’s assignment of female employees to a known hostile work environment. The other 4 bases of the suit are in the post and they are ugly. Conciliation failed so the EEOC filed suit. This settlement comes 4 years into the litigation.

TAKEAWAY: Sex will almost never be a basis to discriminate among employees (or applicants); national origin will not be a basis. Don’t act on those bases unless you too want to pay out a lot of your hard-earned money.

In the post on Tuesday 10/6/15, we talked about more women joining a lawsuit alleging sexual harassment at Ford plants. A pending class action suit alleges sexual harassment and discrimination at 2 Ford Motor Company plants in Chicago – 29 more women just joined the suit. Here’s the reason why just one joined the suit: “I’ve experienced management, supervisors asking me to take pictures of my boobs and send it to them, telling them that they are horny, they want to have sex with me.” More details are in the post. Ford’s statement did not deny the allegations; rather, it said that after investigation, it took appropriate steps in response including discipline if warranted.

TAKEAWAY: If there is a complaint, investigate it and act if warranted.  If the allegations continue, and by more people, investigate again and take appropriate action. Do not bury your head in the sand.

The post on Wednesday 10/7/15 was about construction contractors refusing to hire an applicant because of dyslexia – and paying $120,000 to settle a suit. So what happened? The applicant had 15 years’ experience as a carpenter, various training certifications and a clean safety record; he also had dyslexia. The potential employers refused to hire him after they learned about the dyslexia, saying he’d be a safety risk. More details are in the post.

TAKEAWAY: Without a request for accommodation, assume the applicant (or employee) can do the job and move ahead as you normally would.

The post on Thursday 10/8/15 noted that FMLA is not a magic word – but employers DO need to know how its obligations work.  You hopefully know that an employee (or applicant) does not have to specifically mention the FMLA to invoke its protections – anything that can be deemed to put the employer on notice will suffice.

TAKEAWAY: I can’t say it better than in the post, “If the employer fails to treat the request as one for FMLA leave, the employer assumes all of the risk … If, however, the employer treats the request as one for FMLA leave, the employee assumes all of the risk ….” Make the right choice.

The post on Friday 10/9/15 reminded that if contesting unemployment, be sure you have been fair and uniform. Why? A discharge for what is deemed willful misconduct will bar the employee’s receipt of unemployment benefits. Here, Donald’s wife was sick so he started work early to be able to care for her later. His shift changed; he refused to do a delivery as it would interfere with him caring for his wife. He was fired and found eligible for UC benefits. Why? Because another driver who had refused the same assignment (due to a pregnant wife) had not been fired.

TAKEAWAY: If you claim someone committed willful misconduct, make sure that his/her (in)action was treated the same way as other people (not) doing the same thing.

Finally, the post yesterday 10/10/15 was about an ex-employee suing Red Robin for racial discrimination and wrongful termination – NOT a tasty situation to be in. The employee was fired after questioning the hiring practices, specifically relative to people of color. At the time she sued, she had been working there 11 years in various locations and was managing this latest location. The allegations include her intended hiring of an African-American being overruled by an assistant manager saying “we don’t hire n******* in this store”. More juicy details are in the post. Red Robin has not commented on the suit other than by saying it prohibits discrimination in hiring and in the workplace.

TAKEAWAY: Retaliation is also illegal. ‘Nuf said.