Monday
Mar302015

ICYMI: Our Social Media Posts This Week -- Mar. 29 – Apr. 4, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Mar232015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Mar162015

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

On Sunday 3/15/15 we posted about a Denver jury that awarded nearly $15 million in a race discrimination case. Yep, million. The allegations in the suit were that a trucking company segregated workers by race, calling people “stupid Africans” and then punishing those who complained. The verdict included $13 million in punitive damages along with back pay and $650,000 for emotional distress. And as if that's not enough of a slap, the employer also has to pay the employees’ legal fees and costs. Those who brought the suit were 10 black employees - many from Mali - and one white whistleblower. The employer has said it plans to appeal.

TAKEAWAY: Train your employees – all of them, not just the managers – not to discriminate or you may pay dearly for their comments and actions.

The post on Monday 3/16/15 gave a good analysis of a defense available to employers. What defense? One that basically lets an employer off the hook if (1) it exercised reasonable care to prevent and promptly correct harassing behavior and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. This is part of my class when I teach employment discrimination law to law students. The case that was attached to the post provides a good analysis of how it works in real life.

TAKEAWAY: If your business has a policy against discrimination or harassment, enforces it, AND an employee does not take advantage of that policy, you may not have liability.

In the post on Tuesday 3/17/15, we talked about the protection LGBT employees (don’t) have in the workplace. While many states now recognize same-sex marriage, they don’t prohibit discharge solely on the basis of sexual orientation.

TAKEAWAY: While making employment decisions on the basis of sexual orientation may not be illegal, it is not necessarily the best thing for business.

The post on Wednesday 3/18/15 highlighted a suit brought by the EEOC against Darden Restaurants, Inc., alleging age discrimination. Olive Garden, Longhorn Steakhouse, Yard House, Bahama Breeze, The Capital Grille, Eddie V’s Prime Seafood chain – all Darden group holdings. The suit alleges that older applicants who were not offered positions were told many things, including that they were “too experienced,” the employer wanted “fresh employees” and even that the employer “wasn’t looking for old white guys.” Darden denies the allegations so we will have to wait and see how this plays out.

TAKEAWAY: Don’t judge a book by its cover; just look at whether or not the person can do the job.

In the post on Thursday 3/19/15 we talked about another EEOC suit, this time against a car dealership involving discrimination against an employee with MS. Here, an offer of partnership lured the employee to the employer; after he was diagnosed with MS, that job evaporated and more.

TAKEAWAY: Discrimination on the basis of disability is illegal – again, judge the employee or applicant solely on the basis of ability to perform the job.

The post on Friday 3/20/15 asked about the ADA and when a diagnosis of alcoholism “wears off”. According to this recent court opinion, the answer is perhaps never, and that can have huge implications for employees and employers.  

TAKEAWAY: Look at the tips in the post: know the nature of alcoholism, get your attorney to weigh in, and write a detailed job description.

Finally, the post yesterday 3/21/15 talked about invoking the FMLA if/when the employee can’t do the job. This statute can be a powerful one if used correctly. The post here talks about a pregnant employee who becomes temporarily disabled and needs accommodation. But if she still cannot perform the essential functions of the job, you can put her on FMLA leave (if it applies). When the FMLA leave is up, if she still cannot perform the essential functions with accommodation, then you can terminate her employment.

TAKEAWAY: Remember that while pregnancy is not a disability, it may lead to one or more conditions that must be accommodated under the ADA; however, if the ADA doesn’t offer protection, use the FMLA and then you might be able to legally terminate the employee’s employment.

Monday
Mar092015

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

On Sunday 3/8/15 the post was about ADA lawsuits on point-of-sale devices and making sure your business is legally compliant. Kiosks offer services and products in so many walks of life – but that also leaves open the businesses to suit for alleged violation of the ADA. For what, you might ask. Allegations of inaccessibility to mobility-impaired persons, those with manual dexterity limitations, hearing-impaired persons, and those with visual impairments. The post offers some hints of where to look for guidance in those areas (in addition to consulting an attorney who is familiar with the ADA).

TAKEAWAY: Don’t assume that just because technology enables your business to provide easier (and perhaps cheaper) services or products to customers, that it is not subject to any laws on accommodation.

The post on Monday 3/9/15 was about 2 all-beef patties, special sauce, and a lawsuit against McDonald’s. This time, 10 former employees of a McDonald’s in Virginia sued, alleging racial discrimination, sexual harassment, and wrongful termination. Most if not all of the workers had previously filed administrative charges. While the franchise owner denies liability, he may not be the only one on the hook – remember the NLRB’s joint-employer ruling that pulls in (corporate) McDonald’s as a whole too.

TAKEAWAY: It is nice for an employer to have a zero-tolerance policy relative to harassment and discrimination, but even better when the employer actually adheres to that policy.

In the post on Tuesday 3/10/15, we talked about Amazon and the NLRB settling a “disrespectful, loud speech” case.  The case centered on an unfair labor practice claim and might result in Amazon’s warehouses becoming unionized. So what happened? During an all-staff meeting, an employee voiced a safety concern. Later, supervisors told him that he was disrespectful and spoke too loudly during the meeting. He claimed he had to speak loudly to be heard. He was then given a verbal reprimand. He filed a charge with the NLRB. Go to the post for the NLRB’s ruling on Amazon’s rule that set up this case for settlement.

TAKEAWAY: Even the most innocuous of rules or policies in a non-Union workplace might violate the NLRA – have an employment attorney review your handbook or manual to ensure legal compliance.

The post on Wednesday 3/11/15 was about the standards for willful misconduct in PA for unemployment compensation purposes. Why does this matter? Because in PA, if employment ends because the employee committed willful misconduct, then the employee is not eligible for unemployment benefits (and the employer’s account is not charged, thus no potential effect on the employer’s rating or premium). Here, the employee did not follow the employer’s required manner of communication and was found ineligible for UC benefits.

TAKEAWAY: Unemployment eligibility can be tricky; employers are advised to consult with an employment attorney if they believe a former employee should not be eligible for benefits.

In the post on Thursday 3/12/15 we talked about Oakland Children’s Hospital paying $300,000 for firing an employee with breast cancer. That just sounds icky, doesn’t it? Imelda was hired in March 2009; in December 2011, she was diagnosed with breast cancer. The hospital gave her a 2-month leave for a double mastectomy. She needed more time off to recover but was discharged because her requested leave extension went beyond the employer’s 6-month leave policy. In July 2012, during a meeting with managers, they said she looked “fragile” and would most likely not return. However, she had a doctor’s note releasing her to return to work in September 2012. The EEOC filed suit; a consent decree was entered.

TAKEAWAY: I always advise employers to uniformly follow their policies, but I ALSO advise that such policies must be read in light of applicable law – including how the ADA or FMLA affect leave policies.

The post on Friday 3/13/15 was about lies, damn lies and (EEOC) statistics. Last month the EEOC issued its Fiscal Year 2014 Enforcement and Litigation Data report, so we have many statistics to chew on and spit back out. What were some things to notice? The total number of charges of discrimination against employers fell almost 5%. Despite that, the total was still almost 90K federal charges of discrimination filed. More good and bad news from the report can be found in the post.

TAKEAWAY: The EEOC’s enforcement will focus on pregnancy discrimination and pay issues (especially employee and independent contractor issues) in 2015; don’t fall victim to any charges or liability.

Finally, the post yesterday 3/14/15, was about a fear of clowns and a lesson on the ADA.  We first learned a new word: coulrophobia (fear of clowns) – thank you Jon. Next, we were reminded that ADA protection requires not only a protected disability, but an employee who is qualified under the statute. That entails looking at the essential functions of the job and what, if any, reasonable accommodation can be made to enable the employee to perform those functions. Sometimes no accommodation is possible and then the ADA does not offer protection.

TAKEAWAY: Just because a disability is protected under the ADA, that does not end the inquiry; the employer must follow through and see what else is required and may or may not be possible.

Monday
Mar022015

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

On Sunday 3/1/15 the post was about what the Department of Labor will be doing in 2015 (and what you will do in response). The first question is easy: DOL said it will increase (1) audits and prosecutions of minimum wage and overtime violations and (2) scrutiny of independent contractor classifications, and issue a revision to the FLSA white collar overtime exemption rules. So on to the second question, what will you do knowing that. You should ensure that all of your workers are properly classified and properly paid. Further, if the white collar overtime exemption applies to any of your workers, make sure you become familiar with the revised interpretive rules so that you can properly apply them.

TAKEAWAY: If you toe the line on worker classification and pay (including any applicable overtime exemptions), you don’t have to worry about DOL’s increased emphasis on those areas in 2015.

The post on Monday 3/2/15 told us that an employee ineligible for RMLA leave might actually be eligible for FMLA leave. Huh? In a recent lawsuit, the employer had fewer than 50 employees within 75 miles so the employee was not eligible for FMLA leave. Slam dunk, right? Nope. The employer’s handbook stated, “… employees covered under the [FMLA] are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.” This statement, which did not contain the FMLA’s numerical employee within geographic area requirement, estopped the employer from denying FMLA leave to the employee.

TAKEAWAY: Be careful that you follow the dictates of the law and don’t provide less-strict guidelines to your employees (unless you really intend it).

In the post on Tuesday 3/3/15, we talked about a tale of 2 employment discrimination lawsuits: Revlon and Saks Fifth Avenue. Revlon has been sued (in federal court in New York) by its former chief scientific officer, Alan Myers, for religious discrimination (Jewish) and retaliation (for raising safety concerns to Revlon’s President and CEO, Lorenzo Delpani). Revlon said that Meyers “repeatedly demonstrated critical lapses in judgment and failed to perform at the high standard …” it demands of its employees. Across the country, Saks is a defendant in a suit filed in federal court in Houston by Leyth O. Jamal, a transgender woman. She brought an EEOC charge against Saks in 2012, after which her employment was terminated. The allegations in the suit include that Jamal was required to use the men’s restroom, withstand intentional and repeated use of male pronouns by coworkers, and that she was told by management that she could not wear makeup. Saks insists the allegations are meritless. We will have to see whether discovery brings a settlement in either (or both) of these hi-profile cases or whether they proceed to trial.

TAKEAWAY: Unfortunately, discrimination happens every day in the workplace – but you really don’t want it to be front-page news when it happens to you.

The post on Wednesday 3/4/15 was about whether Sara Lee discriminated against black employees. The charge filed with the EEOC says the company disproportionately assigned black employees to hazardous areas of a baking facility in Texas where they were exposed to asbestos, mold and other toxins. Supposedly the EEOC’s investigation showed that plant managers subjected black employees to racial slurs, intimidation and racial graffiti; further, black employees were less likely than white employees to be promoted. Shades of the Paula Deen lawsuit? While the facility was closed in 2011, the charges (and possible suit), proceed.

TAKEAWAY: Managers must be trained to treat all employees the same, with any differences based on performance or other non-discriminatory characteristic. While they may think nobody will ever know, they are almost always wrong.

In the post on Thursday 3/5/15 we asked if you know what the ministerial exception is? Well, like it sounds, it comes into play at the intersection of religion and employment. A recent federal court decision strengthened the decision so that religious employers have almost total control over who they hire, fire and discipline. For more details go to the post.

TAKEAWAY: While anti-discrimination laws are either state or federal, religious employers are not bound by them; this gives the employer much leeway but gives employees fewer civil rights.

On Friday 3/6/15 the post reminded you to think twice about changing an employee’s duties or hours during FMLA leave. Why? Because it could be deemed a violation of the FMLA (or retaliation for the employee taking FMLA leave).

TAKEAWAY: When making changes that affect an employee on FMLA leave (or about to take FMLA leave), only make changes you would make regardless of the leave and make sure you can support that assertion.

Finally, in the post yesterday 3/7/15, we noted that the EEOC reports fewer disability discrimination claims. Of course, we also questioned whether they are really decreasing in number or just not being reported. This decline was the second year in a row as reported by the EEOC. In the fiscal year ended 9/30/14, the EEOC received 25,369 complaints of disability discrimination. IN the prior year, it received 25,957 complaints in that area. Of the 2013-14 complaints, almost 20% led to favorable outcomes for the charging parties and the EEOC secured over $95M in monetary awards.

TAKEAWAY: While the number of EEOC charges may be declining (in one or more areas), there are still MANY charges filed; make sure your workplace follows the law so you are not one of those charged.

Monday
Feb232015

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

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

On Sunday 2/22/15 the post was about a suit against McDonald’s alleging race and sexual harassment. Remember a recent NLRB ruling about joint employers in franchise settings? Well that is definitely not helping (the corporate) McDonald’s one bit here.

TAKEAWAY: If an employer doesn’t discriminate against its employees, neither it nor its franchisor will have to worry about who is liable.

The post on Monday 2/23/15 reminded us that yes, the government is subject to anti-discrimination laws (but too bad it did not remember that!). What happened? Social Security Administration employees filed charges with the EEOC in 2005; the EEOC found at least 15 times disabled employees were denied promotions. The matter has now settled by SSA’s payment of $6.6M to 570 current and former employees (and other relief).

TAKEAWAY: Like the federal government, your business is subject to anti-discrimination laws and violations could be expensive to remedy.

In the post on Tuesday 2/24/15, we talked about knowing your (parents’) social media end-of-life wishes.  You (or your parents) may have in place Living Wills, Powers of Attorney and Wills (if not, then that should go to the top of the TO DO list!). But what about social media? Think this doesn’t involve you (or your parents)? Wrong! Are your pictures stored in the cloud? Have you posted items, pictures, and the like on social media? Thought so.

TAKEAWAY: Make sure all wishes regarding social media accounts are recorded in legal documents. This is no less important than other estate planning items.

The post on Wednesday 2/25/15 was about Kmart settling an EEOC discrimination suit over a drug urine test. What happened? An employee literally couldn’t provide urine for a pre-hire drug test but Kmart refused to permit him to test any other way. The settlement cost Kmart over $100,000 and a lot of bad PR.

TAKEAWAY: Before you outright refuse a requested accommodation for an applicant or employee, check into possible reasonable alternative accommodations.

In the post on Thursday 2/26/15 we talked about the earnings test for Social Security benefits. For those of you currently receiving SS benefits, or those who will this year, you care about this. The post lists the maximum amount you can earn in 2015 and still collect SS benefits, both before and after “normal retirement age”.

TAKEAWAY: Plan for retirement, including augmenting any SS benefit to which you might be entitled; don’t endanger retirement.

On Friday 2/27/15, the post provided a checklist to keep employee discipline on (a legal) track. What’s on the list? It includes whether or not there is credible evidence to support the disciplinary action to be taken, whether the rule that has been violated is job-related, and whether the employee has been given adequate and appropriate notice of the rule on which the discipline is based. Other items are in the post.

TAKEAWAY: Don’t just work off the cuff when dealing with discipline; take the time to do it right before hand to set the stage for any challenges after the discipline is administered.

Finally, in the post yesterday 2/28/15, we suggested you review the beneficiary designations and provisions of your Will. You don’t have one? Well that is the first step then. If you do, you should periodically review what it says to make sure that the law hasn’t changed (so as to affect what you want) and neither have your wishes.

TAKEAWAY: Wills are legal documents that protect you, but they are not once and done; you should periodically review them to make sure they meet your current situation and wishes.

Monday
Feb162015

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

On Sunday 2/15/15 the post was about 5 employment law pitfalls start-ups should avoid.  One of the biggies, and the first on many lists, is misclassification of employees (as independent contractors instead of employees).  What’s another no-no? Using invalid or ineffective restrictive covenants. Why put something in place if it won‘t do what you want (or won’t be upheld if challenged)?  The others are in the post.

TAKEAWAY: Start-ups often have less financial resources, but skimping in the employment law area can really come back to bite – in a hard and expensive way.  Do it the right way from the start and save yourself headaches and money.

The post on Monday 2/16/15 was about a court reviving a waitress’s race bias claim because the manager said she was “too black”. Shades of the Paula Deen case? While this comment alone may not win the day for the employee, it gets her past dismissal and gives her a chance to prove her case. Not good for the employer.

TAKEAWAY: Even if a manager is thinking something like this, s/he should never say it. Train your employees – all of them – to help you avoid unnecessary lawsuits.

In the post on Tuesday 2/17/15, we talked about why estate planning can’t be “once and done”. The quick and easy reason is that life is ever-changing. They say the only things that are guaranteed are death and taxes; estate planning is looking forward to the former, but the latter, while always there, might change and effect your estate plan. Other changes that might affect your estate plan are in the post.

TAKEAWAY: Make an estate plan, and then review it periodically with an attorney to make sure it legally covers your situation as it may have changed.

The post on Wednesday 2/18/15 was about whether you can require an employee to call HR during FMLA leave. The answer is yes, as long as everyone on all types of leave has to call in.

TAKEAWAY: You can make it more onerous for employees to ensure less abuse of FMLA leave, but you cannot treat FMLA leave differently than other types of leave.

In the post on Thursday 2/19/15 we noted that the EEOC won its Mark of the Beast religious discrimination suit. Are you wondering what in the world this is about? Simply, the employer wanted to put in place biometric right hand scanning to track time and attendance. The employee, an evangelical Christian, declined, saying that would assign “the Mark of the Beast” on him. The manufacturer said he could scan his left hand; he still declined, saying it would still result in the events listed in the Bible. Did the employer win? Not so quick. The employee offered to continue to write down his hours by hand; the employer refused and the employee retired early.  Did the employer win now? Nope. Why? The employee found out that the employer allowed those missing fingers and who could not use the scanner to enter information on a keypad.

TAKEAWAY: Remember that you have to try to accommodate religious beliefs of employees, especially when there is a viable alternative offered to others that would resolve this situation.

On Friday 2/20/15's post, we talked about return to work issues under the FMLA not just being limited to the FMLA. Huh? When the employee has taken all 12 weeks of allowed time, whether all together or intermittently, the employer’s obligation is done, right? Not necessarily. If the employee is unable to return to work, the employer may be required to grant further leave under the ADA if the circumstances warrant.

TAKEAWAY: As we’ve said before, don’t look at the FMLA in a vacuum; consider it in conjunction with the ADA.

Finally, in the post yesterday 2/21/15, we talked about 2015 federal regulatory agenda rules sure to impact employers. So what are some of the items? Non-retaliation for disclosure of compensation information, overtime requirements, and summary data on employee compensation.  Others are in the post. Why should you care? These items are ones that will receive extra-special heavy-duty attention from the appropriate agency in the 2015 year.

TAKEAWAY: While employers should always want to keeps their noses clean as relates to all legal requirements, they should be especially wary in these areas during this year as agencies will step up enforcement.

Wednesday
Feb112015

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

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

In light of the upcoming holiday, on Sunday 2/8/15 the post was about whether an employer can prohibit employees from dating one another. Problems with employee romances include loss of productivity, security issues, favoritism, and charges of sexual assault or harassment. So can employers legally prevent employees from dating? Probably. But such a ban leads to its own problems (and tempts some to try to violate it anyway).

TAKEAWAY: Office romances happen, but to protect your business, put in place a policy that deals with it; one good provision is not to permit those in a romance to be in the same chain of command. An employment law attorney can help with others.

The post on Monday 2/9/15 was about a court refusing to punish an employer who wiped its employee’s cell phone. What happened? The employee, who worked in the construction industry, had to use his own phone but he could access the employer’s computer and email. He gave notice and was terminated; shortly after, the employer remotely wiped his phone and returned it to factory settings. He sued under federal law (because he lost personal photos, contacts and other information). The court ruled in favor of the employer, finding the law not to be applicable.

TAKEAWAY: Don’t count on a favorable court ruling – put in place a BYOD policy that includes (among other things) what happens on termination of employment, whether voluntary or not, and gives the employer the absolute right to wipe clean the employee’s phone.  

In the post on Tuesday 2/10/15, we broke from legal topics for mythbusting the scuba diving Advanced Open Water course. What is it? One of the courses after being certified to dive whereby divers learn additional skills and continue to dive.

TAKEAWAY: It’s always good to learn, especially when it's fun. Scuba diving is no exception. Whether just starting out or diving for many years, there is always something new just around that next coral.

The post on Wednesday 2/11/15 was about 7 things employees say that you should not forget at evaluation time. What are some of them? (1) So managers won’t hear “that’s not in my job description”, include “other duties as required” in the job description. (2) IF an employee mentions that someone else doesn’t have enough to do, remind them that they don’t either if they have the time to watch others. (3) Don’t be made into a playground referee when an employee says s/he can’t’ work with another employee any more. Instead, review the situation to ascertain where the problem is. Other tips are in the post.  

TAKEAWAY: Feedback for employees is important year-round, but certain things should be mentioned (or mentioned again) during performance evaluations.

The post on Thursday 2/12/15 provided a quick guide to stop abusive debt collection calls. You know, those calls you get, often robo-dialed, when you are behind in paying a bill. So what can you do? First, send them a letter (keep a copy!) and ask them to stop calling. Under federal law, they must then stop calling; if they don’t, you have a claim against them. You could also hire an attorney; the debt collector then must contact only the attorney going forward. If they continue to contact you directly, that is also a violation of federal law that gives you a claim against them. The third suggestion is in the post.

TAKEAWAY: Creditors have laws they must follow when attempting to collect debts, but sometimes they don’t; you should know what you might be able to do.

In the post on Friday 2/13/15, we talked about sex discrimination in pay. Yep, it still occurs in this day and age. Here, it took a lawsuit by the Department of Justice to get Clark County, Nevada to conform to the law. The suit was filed alleging that the plaintiff was paid less than similarly-situated white and male county employees and that the County retaliated against her when she complained about the pay disparity. The County will be on the hook for $179,000 plus be required to take other actions.

TAKEAWAY: Don’t wade into deep (and illegal) water; pay employees according to their performance, not any other protected characteristic.

Finally, in the post yesterday 2/14/15, we wished everyone a Happy Valentine’s Day but also reminded you to keep love legal. For more, go to our post from 2/8.

TAKEAWAY: Employers may have in place policies regarding romantic relationships and the workplace; even without such policies, the workplace is for work, not dealing with personal relationships.

Monday
Feb022015

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

On Sunday 2/1/15 the post asked if you are familiar with associational discrimination. What is it? you ask. It is adverse action taken against an employee based on who s/he associates with and not something the employee does. In this case, the employee cared for his father, which occasionally made him late to work. He was classified as an exempt employee and thus not subject to the tardiness policy; despite that, he was written up for being late. Also, his request for flex-time was denied. The last straw for the employer, Hartford Insurance, was when the employee arrived 26 minutes late but during his lunch hour; the employer considered that late and fired him. He sued for associational discrimination under the ADA due to the known disability of his father. The elements of associational discrimination are in the post. What was the employer’s downfall? Evidence that the employee’s work suffered as a result of the tardiness, discipline for subpar performance, and attempts to accommodate.

TAKEAWAY: Evaluate an employee based on his/her performance and nothing else (and, if necessary, engage in the interactive accommodation process to help the employee perform the essential functions of the job).

The post on Monday 2/2/15 was a reminder about the “regarded as” prong under the ADA and forcing an accommodation on someone when it is not requested.

TAKEAWAY: Short and sweet: if an employee doesn’t ask for an accommodation, don’t offer one.

In the post on Tuesday 2/3/15, we asked if you really know what your condo or homeowner association documents say. Those are legal documents that bind owners whether or not they like what the documents say.  Sometimes they are very strict about something that might prove important to you as an owner living in that community.   

TAKEAWAY: Just as with any legal document, make sure you understand your rights and obligations before signing (or, in this case, agreeing to purchase the home).

The post on Wednesday 2/4/15 was about why your business needs a social media policy for your handbook. Hopefully your initial response to the previous sentence is not “what is social media?” What are a few of the reasons listed as to why you should have a policy? Loyalty (to your business), SocMedia impact (on the public and potential customers/clients), and guidance (as to what employees can and cannot do). Others reasons are in the post.

TAKEAWAY: The use of social media can be beneficial to your business, but only if properly used and monitored by you, hence the need to have and uniformly enforce a policy.

The post on Thursday 2/5/15 was about the impact of an employee reporting sexual harassment after her own misconduct. The employee alleged that her supervisor sexually harassed her for years and that despite reporting the harassment to the store manager, nothing changed. Years later, she was suspended by the regional manager pending investigation into allegations of fake contracts. Two days after the suspension, she reported the harassment to the regional manager. After the investigation concluded, she was fired based on involvement in the fake contracts. She sued under a hostile work environment theory. The parties gave conflicting factual accounts of the harassment, her requests that it stop, and what she did to report it, such that the court denied the employer’s request to dismiss the harassment suit. However, the court did dismiss her retaliation claim since she did not report the harassment prior to being suspended pending investigation.

TAKEAWAY:  The court’s actions were based on the facts of the case, but teach that if an employer has good records, it might be able to defend itself against some or all allegations in a suit by a (former) employee.

In the post Friday 2/6/15, we asked if the cat’s paw got in your way. If you are asking “What?, keep reading. The cat’s paw theory espoused by the Supreme Court in 2011 says that if a supervisor does something motivated by discriminatory animus that is intended to cause an adverse employment action and is a proximate cause of the ultimate action carried out by someone else who has no evident discriminatory intent), the employer is liable to the employee. That case was brought under USERRA but the theory is continually being used relative to other claims. A few are listed in the post.

TAKEAWAY: Even if the ultimate decision is made by someone with no discriminatory intent, if that decision is influenced by someone who DOES have discriminatory intent, the employer might be liable for harm caused to the employee.

Finally, in the post yesterday 2/7/15, we talked about Saks Fifth Avenue, which extolls its LGBT policy, being sued for transgender discrimination. The employee filed suit in Texas, alleging a hostile work environment. While transitioning from male to female, the employee alleges she was forced to use the men’s restroom, being subjected to continued use of male pronouns by coworkers, and being fired. The EEOC found cause; she filed suit in federal court. However, Saks has asked the court to dismiss the suit, asserting that Title VII does not protect trans identity. This runs contrary to the EEOC’s holding 2 years ago that transgender workers are protected and the recent announcement by Attorney General Holder that federal prosecutors will take the position that Title VII protection includes gender identity discrimination. What makes the case more interesting is that contrary to Saks’ stance in the suit, it touts its high score on a human rights index, which includes gender identity protection.

TAKEAWAY: More and more states and local municipalities are enacting laws to protect workers on the basis of sexual orientation or gender identification; unless either has a true bearing on the job, don’t wait for the law, just look at whether the employee performs the job or not.

Saturday
Jan242015

ICYMI: Our Social Media Posts This Week -- Jan. 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 1/25/15 was about whether an employer must pay a prorated annual bonus after the employee takes FMLA leave. This is normally an issue at the end of the calendar year but could kick in on whatever other time frame goal-based bonuses are awarded. Here, the statute itself answers the question. If the employee’s FMLA leave caused him or her to miss the goal, and others on non-FMLA leave who miss the bonus do not get pro-rations, then neither does this employee.

TAKEAWAY: Remember, the FMLA does not require special treatment in this situation, but only the same treatment as other employees not on FMLA leave.

In the post on Monday 1/26/15 we confirmed that “Is that how you clean your private parts” is not a question to be asked. Hopefully you already know that, but the employer that just got sued apparently didn’t. And there was more. The Filipino employee alleged that her supervisor referred to her as “Mamasan”, a term usually used for older Asian women who work in brothels. After complaining, she was first assigned other, harder duties, then fired. Is it any wonder she sued?

TAKEAWAY: Remember the Golden Rule: treat others (employees) the way you would want to be treated. It will make the workplace so much better, legally and otherwise.

The post on Tuesday 1/27/15 was another confirmation: “Your religion is stupid” is not a good statement to make to an employee. Hertz was on the receiving end of this suit by black Muslim employees for allegedly demeaning their religion and firing them after imposing arbitrary prayer rules for Muslims. Prior to suit, the EEOC issued a for-cause decision. A senior manager allegedly told one worker of East African heritage, “If you pray continuously, you will make us lose money and no Muslims will be hired.” More quotes allegedly made by Hertz are in the post.

TAKEAWAY: Unless religion has bearing on the job, don’t discriminate against any employee because of his or her (lack of) beliefs. Just let the employee do the job.

In the post on Wednesday 1/28/15 we talked about what you should document prior to issuing discipline. The answer depends in large part on your company’s policy and if there are any employment contracts that apply. Make sure you follow the policy or contract. If you are not sure what you may or may not do, contact your employment law attorney.

TAKEAWAY: As in most workplace situations, if there is a policy or contract that applies, follow it, uniformly, and have valid legal reasons for any variation.

The post on Thursday 1/29/15 was about how to handle a hostile work environment complaint. Hopefully it will never happen to your company as it did to Sears here, but you should be prepared. So what are some of the most obvious things to do? Maintain a clear policy against harassment and discrimination and apply it uniformly. Some other suggestions are in the post.

TAKEAWAY: If someone complains, don’t brush it under the rug – do a proper investigation and make sure to document and support any resulting (lack of) action to be taken.

On Friday 1/30/15, the post talked about retaliation being the new discrimination under the NLRA. Ok, you are a non-union business; can you tune out now? NO! Why? Because, in case you haven’t been reading this blog, the National Labor Relations Board has been finding more and more situations that apply to every workplace, not just those that are unionized. The post provides 4 tips for employers, including knowing how the NLRB defines protected activity and training management personnel on the NLRA. The other tips are in the post.

TAKEAWAY: You are not out of the labor woods just because your company is not unionized; you must still know the law and how it is or could be applied to your business. A good employment law attorney should be able to help you.

Finally, in the post yesterday 1/31/15, we talked about breaking down a sexual harassment claim. First, don’t just let it go – or you may find it comes back later in the form of a lawsuit. Investigate, properly and promptly, and take action as warranted depending on what the investigation turns up and what your policy requires.

TAKEAWAY: Make sure you, your HR personnel and your managers know how to recognize illegal sexual harassment and are trained in what to do when it is alleged to have or has occurred.