Monday
Oct272014

ICYMI: Our Social Media Posts This Week -- Oct. 26 – Nov. 1, 2014

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

The week started with the post on Sunday 10/26/14. We talked about when “unknown” and “probably” are not enough under the FMLA. This can be a problem under DOL regulations that require an FMLA certification to be “sufficient” (defined as not being vague, ambiguous or non-responsive). So answers that say “unknown” or “probably” will NOT be sufficient and you should ask for clarification.

TAKEAWAY: It is the duty of the employee to ensure that an FMLA certification is completed fully by the treating physician and returned to the employer; if the employer is not satisfied (or requirements have not been met), it is then up to the employer to ask for clarification.

The post on Monday 10/27/14 talked about a recent court ruling that a tribal hiring preference is not national origin discrimination. On siding with the coal company employer, the court held that tribal affiliation is a “political classification” and not one based on national origin, therefore it is not a violation of Title VII. Of course, the decision could be seen as limited to its facts (centered on a Department of the Interior mineral rights lease and the Navajo Nation), but safety calls for broader awareness.

TAKEAWAY:  Be aware of what will suffice to meet the definition of various protected characteristics under Title VII.

On Tuesday 10/28/14 the post questioned what if someone doesn’t request an accommodation, what about the “Regarded As” prong of the ADA? Here a PA dentist fired a long-time employee after she told him she had cancer. She did not request any accommodation; rather, he sent her a letter that said, “You will not be able to function in my office at the level required while battling for your life. Because of this, I am laying you off without pay ….”  He just assumed she would need an accommodation at work.

TAKEAWAY:  Do not assume anything when dealing with a (possibly) disabled employee. If the person doesn’t request an accommodation (by word or deed), then do not treat them as disabled or needed an accommodation – that could be illegal too.

The post on Wednesday 10/29/14 was about terminating an employee for working a second job while on FMLA leave. The answer, according to the FMLA Regulations, can depend on whether your company has a policy prohibiting outside employment and whether it is evenly and consistently applied to anyone on a leave of absence.

TAKEAWAY:  To ensure that employees do not work elsewhere while on FMLA leave, talk to an employment lawyer to make sure you have in place a valid, legal policy prohibiting moonlighting by employees while on leave.

The post on Thursday 10/30/14 was a reminder: don’t just give a form to an employee; provide an explanation and the consequences of not following through with the instructions. Who recently learned this valuable lesson? FedEx. It gave the employee an FMLA certification form but never told her what the consequences would be if she didn’t complete and return it.

TAKEAWAY:  Just as with any area, make sure employees know what is expected of them relative to FMLA leave and then, and only then, hold them to it.

The post on Friday 10/31/14 talked about the most common employee lawsuits and how to avoid them. Some of the areas most often subject to suit by (former) employees are discrimination, discriminatory discharge, retaliation and harassment. What are some ways to avoid these suits? Know the laws that affect your company and its employees; another tip is in the post.

TAKEAWAY:  You cannot prevent all suits, but you can prevent most and better prepare your company for the ones that are filed. Talk to an employment lawyer to make sure you have in place the systems you need for prevention and defense.

Finally, the post yesterday 11/1/14 reminded us that age discrimination is illegal and so is retaliation against those who oppose it. DSW (formerly known as Designer Shoe Warehouse) paid $900,000 to learn that lesson. The EEOC sued, alleging age discrimination by firing employees over age 40 during a RIF and retaliating against those who opposed the firings. DSW would not settle during the administrative process but it only took 1 week after the suit was filed for it to negotiate this settlement (which includes relief in addition to the monetary payment).

TAKEAWAY:  Do not use age as a factor in making employment decisions. Period. If you did, or someone alleges that you did, contact an employment lawyer pronto.

Monday
Oct202014

ICYMI: Our Social Media Posts This Week -- Oct. 19 - 25, 2014

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

The week started with the post on Sunday 10/19/14. Employee, joint employee or contractor was the question of the day. The answer is important in so many ways, not the least of which is so that people get paid properly (and the benefits to which they are entitled) and those doing the paying (and providing the benefits) stay out of trouble! Read the post for examples of some recent court decisions.

TAKEAWAY: If you are not sure how to classify a position, consult experienced employment counsel.

The post on Monday 10/20/14 talked about accommodating any (regarded as) disability before just firing the person. What does this mean? Well here an employer rescinded a job offer because the person was deaf and the EEOC sued. Background: Stefan applied and interviewed for a dietary aide/assistant cook position and was told at the interview he was hired. A few weeks later, the employer required a second interview with other managers who rejected his application due to his hearing impairment.

TAKEAWAY:  Make sure any adverse action (from not hiring to discipline to termination) is based on (actual or expected) job performance, not how the employer thinks the employee will perform. The former is allowable (as long as there is no other discrimination); the latter is illegal.

On Tuesday 10/21/14 the post was a reminder to keep track (of time/hours) or it could be costly. What started this? The City of Cleveland had for 25 years been rounding time, but always in favor of the City, so that it got free time from employees.  One employee filed suit and the City paid $2.2M to settle. The post contains some tips to ensure this doesn’t happen in your business.

TAKEAWAY:  mistakes about wages can be overlooked and small, but end up being costly if not discovered and corrected.

The post on Wednesday 10/22/14 was about setting rules for paid time off.  Pennsylvania as a state currently does not require paid time off (although certain municipalities might). So what might an employer consider relative to paid time off other than in the context of the ADA or FMLA? Offering PTO instead of vacation and sick leave. Requiring that PTO run concurrently with unpaid protected leave. And another tip that is in the post.

TAKEAWAY:  Employers should consider how they want to handle PTO before they are legally required to do so. To ensure legality, consult an employment attorney.

On Thursday 10/23/14 the post talked about discrimination and retaliation: not all fun & games when age discrimination is involved. The EEOC filed suit against a company for harassing and eventually firing an employee based on his age and in retaliation for complaining about the harassment. The EEOC alleged that the harassment occurred over a period of three years, including comments by the owner like “You’re just too old and slow,” and calling him “the old man”. And this employee was only 49 when the harassment started! The owner did other stupid things too that caught up with him (and the company).

TAKEAWAY:  Reminder: age usually has nothing to do with job qualification or performance. Therefore, leave it out of the workplace.  

The post on Friday 10/24/14 reminded that yes, it is still safe to fire someone it there is no discrimination. Laws that apply to the workplace are there mainly to ensure equal opportunity, not to curtail business freedom or operations. Companies are still allowed to make decisions that lower employee morale, hurt the business, or are just plain stupid as long as the decisions are not based on any illegal factor and are not contrary to any written employment contract.

TAKEAWAY:  Before making the decision to discharge someone, make sure the reason is legal and will withstand scrutiny; if so, then do it.

Finally, the post yesterday 10/25/14 provided practical tips for dealing with an EEOC charge. For most employers, the first step should be to contact employment counsel, whether in-house or outside counsel. Other steps include preparing and filing a Position Statement, waiting, more waiting, providing requested information (with the assistance of counsel). Still more steps are listed in the post.

TAKEAWAY:  If you receive notice of an EEOC charge, do not bury your head in the sand – it will not just go away. Take the appropriate action.

Monday
Oct132014

ICYMI: Our Social Media Posts This Week -- Oct. 12 - 18, 2014

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

In the post on Sunday 10/12/14 we talked about a win for an employer in the BFOQ category. NOTE: if you don’t know what a BFOQ is or when and why it comes into play, talk to an employment law attorney.) So what was the case about? An 8-year battle between the EEOC and ExxonMobil over whether the mandatory pilot retirement age violates the ADEA. The court ruled for ExxonMobil, saying that it proved its requirement to be a BFOQ reasonably necessary to the normal operation of its particular business. The court also found that the EEOC did not show there is a specific means of individualized testing to account for every risk of su7dden incapacitation, a risk that increases with age as shown by ExxonMobil. The EEOC apparently will not appeal further. Even though the case is not binding here in PA, the bases upon which it was decided are good to know and use.

TAKEAWAY: If you assert something is a BFOQ, be able to defend it in court (or don’t say it in the first place).

The post on Monday 10/13/14 talked about not being “black enough”. Yes, you read that right. An employee who self-identified as bi-racial claimed discrimination on race and color (along with age). The tribunal said that a colleague thought her not “black enough” and that the staff had “colourist thinking” (that access to jobs and opportunities incr4eases the lighter the skin color and the potential for discrimination increases with darker or black skin).

TAKEAWAY:  Discrimination on the basis of color (or race or many other protected characteristics) is illegal. Just stick to job qualifications.

On Tuesday 10/14/14 we reminded you when you look at the FMLA, also look to the ADA (and vice-versa). A hospital learned this the hard way. It’s leave policy followed the FMLA and fired any employee who took more than the 12 weeks of FMLA leave; it also fired employees who were not eligible for FMLA leave and were absent for a certain time. Alas, the hospital forgot that the ADA might require an unpaid leave as an accommodation under the ADA if the employee qualified.

TAKEAWAY:  Don’t look at either the FMLA or ADA in a vacuum; look at both together to ensure compliance.

The post on Wednesday 10/15/14 was about what to do if someone who owes you money files for bankruptcy protection. The first thing NOT to do is run and hide your head in the sand. No, you look carefully at the documents you received and take timely action. The documents should tell you to file a Proof of Claim, what information to include, where to file it, and by what deadline. Follow the instructions.

TAKEAWAY:  Not following the instructions within a bankruptcy case can make you ineligible to receive any distribution through the bankruptcy, so make sure it is done right. Get assistance from a bankruptcy attorney if you are unsure how to proceed.

On Thursday 10/16/14 the post was about EEOC allegations of an ADA violation by firing a worker who declined a wellness plan. What happened? The employer financially penalized and then fired an employee who declined to participate in the company wellness plan. The EEOC sued because the medical exam and disability-related inquiries connected with the wellness plan were not voluntary the way they were set up and that violates the law according to the EEOC.

TAKEAWAY:  You can ask employees to participate in a wellness plan, but you can’t require participation without violating the law.

The post on Friday 10/17/14 was a reminder that if your employee does this, you might be getting sued. These are tell-tale signs of behavior that might tell you that your company might be getting sued. So what are some of the signs? If your employee submits a 4 page, single-spaced typed rebuttal to a verbal warning. If your employee urgently demands a copy of his personnel file and says he needs to take the afternoon off for “personal business”. If your employee attempts to tape-record her performance review. Others are in the post.

TAKEAWAY:  While these are humorous, getting sued is not; employers should do everything they can to avoid suit and, at the same time, prepare to defend in case one is brought.

Finally, the post yesterday 10/18/14 talked about the difference between alcoholism and drunk under the ADA. Employers (and HR personnel) should know the difference. Here, the post recounts an episode where a municipal maintenance employee (who drove a city vehicle) came to work with 21 ounces of whiskey in his truck. He drank the whole bottle over his one-hour lunch break. He later denied drinking but his boss took him to the police station. He blew way over the legal limit. The employer charged him with various violations, one of which would let him be fired even if this were the first offense (which it was not). He sued, alleging failure to accommodate his alcoholism. The court said that he showed no comparator and could not prove pretext; it also said the ADA does not protect being drunk at work.

TAKEAWAY:  Know when you have to try to accommodate an employee and when you can just fire (or otherwise discipline) that person.

Monday
Oct062014

ICYMI: Our Social Media Posts This Week -- Oct. 5 - 11, 2014

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

In the post on Sunday 10/5/14, we talked about what to do if a key customer files for bankruptcy protection. If the customer filed under Chapter 11, do you continue doing business with the customer or not? NOTE: If it filed under Chapter 7, it has (or will shortly) cease business operations so this is not really an issue. To start, you must decide how important that customer is to your business. Since it filed under Chapter 11, it can continue operating, including paying for all ordinary course goods and services after the bankruptcy filing. If the order is for something not in the ordinary course, you might want to get Court approval first. Also, if the customer owed you money for goods or services provided prior to the bankruptcy filing, you will want to file a claim and try to get paid (at least something) on account of that debt; you may want to get legal assistance to ensure that it is properly and timely filed. Be aware that the decision on whether to continue the relationship after the bankruptcy filing may not be in your hands; if there is a contractual relationship, you may be required to continue to fulfill your obligations, at least until a certain point in the future.

TAKEAWAY:  A customer’s bankruptcy filing is not necessarily a death knell for you – consult a bankruptcy attorney to find out the questions to ask and your possible answers.

The post on Monday 10/6/14 talked about a suit alleging discharge for requesting time off during pregnancy.  The suit was brought by a meat company worker.  She alleges that she was began employment in early 2011 and told her supervisor of her high-risk pregnancy just over 2 years later in 2013. At that time, she handed in a doctor’s note and requested FMLA leave. She alleges that harassment by her supervisor and another supervisor started soon after and that she was discharged about a month later in retaliation for the FMLA leave request.

TAKEAWAY:  If an employee is legally entitled to FMLA leave, do not stand in the way or retaliate – you will not come out a winner in the court of law or public opinion.

On Tuesday 10/7/14, the post was about 5 common employee pay mistakes (and how to fix them). Yes, we are talking about the Fair Labor Standards Act here and how it permeates the employment relationship. So what are some common mistakes and their fixes? (1) Misclassifying workers. This is huge. Make sure you know if your workers are employees or contractors and, if the former, whether or not they are exempt from overtime compensation. (2) Forgoing a wage and hour audit. It is better to do it yourself (with the possible assistance of legal counsel) than to have it done for you by a worker as part of his/her lawsuit. This will also help you with #1 above. (3) Miscalculating hours actually worked. This can affect pay, paid time off, and other things. Consider pre- and post-shift work, work during breaks, and automatic timesheets (just to name a few). Other fix to these items and the other 2 common mistakes are in the post.

TAKEAWAY:  Mistakes happen, but you can try to minimize them by properly paying your workers from the beginning.

The post on Wednesday 10/8/14 talked about what the numbers on your credit card really mean. Yes, they actually mean something. They help route the transaction through the proper card network and then to the appropriate financial institution for authorization. Ordinarily, the first 2 numbers are for the card provider (AmEx cards start with 34 or 37, Visa with 4, MasterCard with 5, Discover with 6, gas cards with 7, and airline cards with 1). The remaining numbers are explained in the post.

TAKEAWAY:  You don’t need to memorize your credit card number(s), but it’s good to know what the string of numbers is for and what information it is providing about you.

On Thursday 10/9/14, the post gave 6.5M reasons to properly classify your workers. Remember #1 on the common pay mistakes list in our post from this past Tuesday? Well, one company didn’t and now may have to pay up to $6.5 million for improper classification (contractors instead of employees). Some of the things that the Dept. of Labor and IRS will look at in classification are listed in the post (including control, training, exclusivity, and chance for profit and loss).

TAKEAWAY:  Don’t pay for someone to tell you that you’ve done something wrong; properly classify your workers (as employees or contractors) from the start.

The post on Friday 10/10/14 was what the Beatles can teach us about employment law. It’s a humorous twist, which we all need at times, but oh so true when you think about it. The post starts by talking about employees who tell others “I Want to Hold Your Hand”. Then HR gets to deal with whether or not it is welcome, violates policy, etc. Then what about when an employee says “Help! I need somebody!” Yep, HR should start thinking “We Can Work It Out” and looking at possible obligations and actions under both the FMLA and ADA. What if employees are thinking “Will you still need me? Will you still feed me? When I’m 64”. HR is then on “The Long and Winding Road” of possible age discrimination. Is that all? Of course not. In keeping with the themes of previous posts this week, we also can learn about proper pay. What if the employee works “Eight Days A Week”? (OK, that’s a stretch …). Other lessons are in the post.

TAKEAWAY:  The post says it best. If a mistake is made, remember that money “Can’t Buy Me Love”, but it can usually buy a reasonable settlement.

Finally, the post yesterday 10/11/14 provided 3 strategies for defending low-value debt collection lawsuits (a follow-up to our recent post about whether or not you should attempt debt collection lawsuits by yourself, without the assistance of an attorney). Low-value is still some value, which may be more than you have or you probably would have paid the debt in the first place. So what can you do? You can try to settle with the creditor for some amount less than what is owed. You can hire an attorney to fight the suit. The chance of success varies but it is possible; know, though, that you may well end up paying the lawyer as much or more than the amount of the debt just to make the suit go away (so you may want to go back to the settlement option). A third option is to file for bankruptcy protection.  While you do not need an attorney to file bankruptcy, this is not a simple solution and should be seriously considered only after discussing all of your options and circumstances with a bankruptcy attorney.

TAKEAWAY:  If faced with a lawsuit, know what your options are (consulting with an attorney may well be worth that small fee) and which option might be best for you under your circumstances.

Monday
Sep222014

ICYMI: Our Social Media Posts This Week -- Sept. 28 – Oct. 4, 2014

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

In the post on Sunday 9/28/14, we laughed at funny interviews and meeting some dumb job applicants. Reader’s Digest provided some humor to start the week. There are 27 real-life vignettes listed; they serve as good lessons for what NOT to do in a job application or interview situation. They also provide much-needed humor.

TAKEAWAY: The job application and interview arena can be fraught with danger for employers who do not now the law; it can also provide some levity without legal consequences.

The post on Monday 9/29/14 was a reminder that inability to speak a language should not lead to discrimination.  Infosys, a large Indian IT company, was sued by former employees who claim that the company discriminated against them because of their inability to speak Hindi. One of the plaintiffs said she was harassed because she couldn’t speak Hindi, another that she was denied employment (despite being perfectly qualified) for an applicant who is Bangladeshi and that she was out of conversations in the workplace because they were in Hindi. Infosys has denied all claims.

TAKEAWAY: Remember that discrimination takes many forms; it is not just skin color or gender. Make sure to treat all applicants and employees equally (unless applicable law requires different treatment).

On Tuesday 9/30/14, the post was about the dangers of prepackaged Wills and Trusts. First and foremost, your situation differs from that of every other person and so your estate planning documents will not be the same as the documents for other people. Also, these are legal documents, so you want them to be legally correct and comply with the laws of PA. The prepackaged documents also do not allow for updating if your situation changes.

TAKEAWAY: You might think you are saving money and time by using prepackaged (or form) Wills and Trusts, but in the end you are not: you may well get one or more documents that do not do what you want, do not protect who or what you want, and are not even legally compliant with PA law.

The post on Wednesday 10/1/14 talked about the 4 things to expect during an EEOC site visit. Well, a former employee files a charge of discrimination with the EEOC. You file your position statement denying any violation. There is silence. Then you find out the EEOC wants to come visit your workplace. SO what might happen? First, the EEOC will want to tour the facility. Next, the investigator will question witnesses. Third, the investigator will meet with (and question) HR personnel. The last step is in the post.

TAKEAWAY: If you receive a notice that the EEOC will be on-site, PREPARE. The premises, potential witnesses and HR personnel who are involved. And documentation.

On Thursday 10/2/14, the post was about conflict between culture and the law and which you choose. Kia Motors Manufacturing has been sued twice alleging that its choice discriminated against women, Americans, and African-Americans (as well as retaliated in some instances).  In the first suit, Andrea Gogel was a former senior manager of team relations; she says she was told that Kia wanted to hire “young, pretty women”, not to speak in meetings (although male subordinates could), and to understand and adhere to Korean culture and beliefs despite their incompatibility (and sometimes direct contradiction of) American law. The other suit was brought by Robert Tyler, a former HR head and Gogel’s supervisor. He alleged that he was told to control the number of African-Americans hired and to report the percentage of white versus black employees at the plant at least quarterly. He was also told that Kia did not want to hire candidates over a certain age and to follow policies that discriminated on the basis of gender.  In September 2010, both Gogel and Tyler tendered a report of their concerns to their supervisors. When nothing was done, both filed charges with the EEOC. Gogel had to sign something agreeing not to discuss the charges with anyone else but was then discharged in December 2010.

TAKEAWAY: When employers choose to do business in the US, they impliedly agree to follow US law. If there is a conflict between foreign culture and US law, the culture loses out (unless it is something that rises to the level of a protected class or characteristic; then there is a real tug of war between that and the law).

The post on Friday 10/3/14 contained 5 everyday things that are more deadly than sharks. The very short video is fun to watch. So what are the things? 1. Vending machines. 2. Beds. 3. Toasters. The other 2 are in the video in the post.

TAKEAWAY: Despite media attention, there are only 5 deaths from sharks every year. There is no reason to stay out of the oceans as long as you behave properly toward the sharks and everything and everyone else under the surface.

Finally, the post yesterday 10/4/14 warned about the middle ground of FMLA and tardiness. What do you do if an employee has a chronic medical condition that affects the ability to come to work on time? You should look at the time missed as potentially qualifying for FMLA leave (and take the appropriate steps). Keep track of the time used. Pay for the time if there is concurrent paid time off that you can force the employee to use. Don’t just do nothing and don’t just discharge the employee.

TAKEAWAY: Before just pulling the plug, make sure there is no basis upon which the employee could claim you as the employer failed to fulfill your legal obligation.

Monday
Sep222014

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

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

In the post on Sunday 9/21/14, we talked about a criminal background discrimination dragnet catching a government employer. Yep, a federal court certified a class action by approximately 250,000 African-American job applicants for race discrimination against the US Census Bureau. The allegations include unlawful exclusion based on arrest records that never resulted in convictions and rejections for minor crimes or convictions so old they should not have been considered, all of which disparately impacted minority applicants. The case will now move forward.

TAKEAWAY:  Do not use arrest records, period. Moreover, make decisions on a case-by-case basis, taking into account the position at issue and its requirements/duties.

The post on Monday 9/22/14 was a reminder: think about the ADA after FMLA leave ends. Dialysis Clinic, Inc. did not and was sued by the EEOC. What did it do? It fired (and refused to re-hire) a 14-year nurse who needed additional medical leave to finish her cancer treatment. She had been on approved leave for 4 months and was cleared by her doctor to return without restriction in less than 2 months. DCI fired her for exceeding the limits of its leave policy. She then reapplied and was rejected, shortly after which DCI hired a newly-licensed nurse.

TAKEAWAY:  Even when an employee has completed their FMLA-approved (or other medical) leave, they may still be entitled to additional leave under the ADA. Take that into consideration before taking adverse action.

On Tuesday 9/23/14, the post was about 5 things scuba diving can teach you about life. Really? Yes! What are they? 1. Be present. 2. Breathe. 3. Look beneath the surface. The other 2 things are in the post.

TAKEAWAY:  Scuba diving is fun and relaxing, but also provides lessons for life (as listed in the post).

The post on Wednesday 9/24/14 talked about the NLRB finding improper discipline of an employee who obscenely grabbed his crotch in front of a female co-worker. The Union challenged the suspension of 2 employees and discharge of 2 others for mid-strike conduct. The NLRB determined the actions against all 4 violated the Act. The CBA had expired 11/15/12 and a few weeks after the union voted to strike. During the strike, unit employees picketed. The Union offered to return to work uncon-ditionally on 12/11/12; most strikers returned 2 days later. The employer suspended 4 employees and thereafter discharged 2 on 12/17/12. As relevant here, Williamson, a suspended employee, hit a non-unit employee’s car mirror as she left the premises; when she looked at Williamson, he (allegedly) grabbed his crotch and (admittedly) yelled “scab” at her. The NLRB said that while the gesture was “totally uncalled for, and very unpleasant”, it was not a form of actionable sexual harassment under Title VII, did not carry an implied threat of violence or future mistreatment toward a non-unit employee, and likely did not discourage that employee from reporting to work during the strike[1].

TAKEAWAY:  What might seem like a solid basis for discharge may not be – check with employment and labor counsel for an opinion before you take action.

On Thursday 9/25/14, the post was about why you shouldn’t represent yourself in a debt collection lawsuit (as plaintiff or defendant). The post talked about 3 reasons. (1) The court will assume you know the court rules. Among other things, not following a rule can lead to the suit being dismissed (not good for a plaintiff) or judgment being entered (not good for a defendant). (2) The time commit-ment can be extensive. You have to learn and follow the rules, review and understand documents (and what they do or do not mean), travel to court to file documents, prepare for trial, and attend hearings and trial. There might also be discovery which is another matter unto itself. (3) Litigation is stressful. Again, you have to learn, know and follow the rules, including deadlines. You have to file the appropriate documents with relevant, substantive content. And you have to do all this while the rest of your life and the people in it go on …

TAKEAWAY:  There is a reason people went to law school and practice law – they are trained to and have the experience to help others with legal matters including debt collection.

The post on Friday 9/26/14 contained a good analysis of anticipatory discharge: what it is and what to do about it. I won’t spoil the fun – go to the post.

TAKEAWAY:  Both employees and employers should be aware of this legal creature and its possible ramifications in the workplace to know what (not) to do.

Finally, the post yesterday 9/27/14 warned about failure to train claim or litigation. Yes, something else for employers to worry about. A federal court recently said that the failure to train an employee can be a type of discrimination that enables the person to bring suit. Here, Charles Reed, an African-American, began working at Proctor & gamble in 1996. He had 2 promotions in the next 7 years but never qualified for a third. He talked to HR about his job and his beliefs that his supervisor was not helping him to achieve a promotion and Caucasian employees were solicited while he had to ask. When his position was eliminated, he thought it was in retaliation for his earlier complaint and his support of a co-worker’s discrimination complaint. Oh yeah, there was also the noose incident: his team leader took a phone cord and walked out of Reed’s vision; a co-worker said something like “Are you fixing to hang somebody?”, after which the team leader threw something in the trash. Reed thought this meant the team leader had made a noose form the cord. Reed sued based on the elimination of his position, failure to promote, and failure to train (along with hostile work environment for the noose incident). While the case was dismissed on appeal for procedural reasons, the court said that “failure to equally train” is actionable.

TAKEAWAY:  If you think one employee might be deserving of a promotion, don’t just single out that person; give all employees who might be eligible for the promotion the same opportunities and training.

 


[1] The latter two relate to the ability of an employer NOT to reinstate a former economic striker to his/her former or a  substantially equivalent position unless the employer in good faith believes the person engaged in strike misconduct that “may reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights…”

Monday
Sep152014

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

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

In the post on Sunday 9/14/14, we talked about alienage discrimination being alive under Section 1981.  The defendant in this first-of-a-kind suit is Northwestern Mutual. It is accused of illegally rejecting qualified non-US citizen job candidates without permanent resident visas. The plaintiff is a 25-year-old honors college graduate who is authorized to work in the US through DACA and provided documentation of same after being interviewed and upon request by Northwestern Mutual.

TAKEAWAY:  Employers cannot pick and choose which verification documents they will accept. Be careful about this.

The post on Monday 9/15/14 was about what to do when an employee calls you a “f****** crook” while complaining about work and wages. Imagine you call an employee and 2 managers to your office to discuss the employee’s attitude. He complains that he and coworkers are underpaid, don’t get proper breaks, and the bathrooms are too far away. You tell him he can always work elsewhere. He jumps up and tells you that ““you’re a “f****** crook,” a “f****** mother f******,”an “a******” that nobody likes and that if you fire him, you’ll “regret it.” You tell him he’s fired. What happens next? The NLRB tell you to rehire him and pay him back wages. Sounds like a sci-fi movie, right? Nope. Because the employee was discussing terms and conditions of employment (wages, breaks and bathrooms) his tirade was legally protected activity (with insufficient evidence to show his conduct was “objectively menacing, physically aggressive or belligerent”.

TAKEAWAY:  Even non-union employers must know and follow the dictates of the NLRA. Yes it can seem odd at times, like here, but a failure to know and follow the law will land the employer in hot (and expensive) water.

On Tuesday 9/16/14, the post talked about whether PA law allows (former) employees to view their personnel file. The answer is “it depends”. On what the person wants to see. On the person’s employment status (current or former employee) and if the latter, how long ago the employment ended.

TAKEAWAY:  Employers cannot just refuse an employee’s request to view a personnel file. They must look at the circumstances and might want to consult an employment attorney if unsure of their obligation.

On Wednesday 9/17/14 the post confirmed that a report of sexual harassment is protected conduct but doesn’t always result in retaliation. Walt Disney was glad for the result. In this case, a former employee sued, claiming he was fired in September 2011 for reporting that his co-worker was sexually harassing another employee. He also said that he was fired for allegedly lying during the HR investigation and did not disclose pertinent facts. The judge agreed that his report of the sexual harassment was protected conduct, but did not agree that there was retaliation: he said no link between the harassment report and the firing. Score one for the Mouse House!

TAKEAWAY:  While retaliation is often easier to prove than the underlying action, there must still be a tie-in between the two.

Thursday 9/18/14 the post was about the sweet smell of chocolate (at least for a retaliation case settlement). An employee who worked at the company for 3 months filed suit against Edward Marc Chocolatier in January. She alleges that she was told to hire “the all American girl”, especially those who were young, “blonde, blue-eyed and college educated, preferably a Duquesne University student.” She complained and refused to follow the policy and was then fired. The employer alleged in its response that the employee “made a racially insensitive comment … about an African-American applicant’s hair” and, among other things, that she made misrepresentations on her employment application. The case was dismissed by agreement of the parties (with no details given).

TAKEAWAY:  Retaliation against an employee who complains of discrimination can get an employer in hot water even if the underlying discrimination itself is hard to prove.

The post on Friday 9/19/14 reminded us that the “regarded as” prong under the ADA is indeed alive. Here, the EEOC sued a nursing home for firing an employee because of her disability. She had been hired as a cook and dietary aide. She has a physical impairment that limits her use of the left side of her body. Shortly after hire, her supervisor asked what was wrong with her left arm. She said she could perform her job duties. A few weeks later, her supervisor told her she did not believe the employee could perform her duties without the use of both arms; soon after, the employee was fired. The suit was filed after the voluntary conciliation process failed. Now, the EEOC wants back pay, compensatory damages and punitive damages (plus injunctive relief).

TAKEAWAY:  If an employee tells you s/he can do the job, let her/him do it. If there are performance issues, then document them as you would any other employee. Don’t treat the employee as disabled unless and until s/he asks for accommodation.

Finally, the post yesterday 9/20/14 was about a rare case of reverse discrimination. Some quick background facts: the male plaintiff was the only Caucasian employee among a majority of Hispanic co-workers and supervisors. Among other things, he claimed discrimination because of his race and a hostile work environment as a result of signs often being posted inly in Spanish and his coworkers calling him “gringo” and “maricon” (with management even chiming in that he was “not bad for a white boy”. To top it off, he was fired the day after filing a worker’s comp claim. The court found that the employee met his burden of showing that Petco was the unusual employer that discriminated against the majority.

TAKEAWAY:  Employers should not discriminate against ANY employee. Period. It will not go well.

Monday
Sep082014

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

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

The post on Sunday 9/7/14 reminded us that even with no return to work date, the FMLA still governs.  A federal court recently ruled that an employee did not forfeit her right to an FMLA leave when she did not provide an anticipated return date. In early 2011, the employee advised the employer, a residential nursing care facility, that she needed time off to take care of her daughter. The leave was approved but the employee did not ever provide a return date. The daughter’s doctor told the employer care would be required through at least July 2011 so the employer assumed the employee would not return within her approved FMLA leave and hired a replacement. At the end of the FMLA leave, the employee did return but was told there was no job. She sued. The court found in favor of the employee on many bases (which are detailed in the post), including that since the daughter’s condition was changeable, the leave was deemed “unforeseeable” and she did not have to provide an anticipated return date.

TAKEAWAY: The FMLA and its interpretive regulations have many intricate parts that can trip up an employer – it is best to check with an employment law attorney and make sure to do it right BEFORE a court tells you otherwise.

The post on Monday 9/8/14 was about the intersection of obligations under the FMLA and ADA.  Why should you care? Well, Princeton Healthcare paid $1.35M to settle a discrimination suit with the EEOC. In the suit, the EEOC alleged that the employer’s fixed leave policy did not consider leave as a reasonable accommodation in violation of the ADA, but merely tracked the FMLA instead. In addition to the whopping monetary settlement, the employer is prohibited from having a blanket policy that limits the amount of leave time an employee covered by the ADA may take and must engage in an interactive process with covered employees (including employees with a disability related to pregnancy) when deciding how much leave is needed. Also the employer cannot require employees returning from disability leave to present a fitness for duty certification stating that they are able to return to work without any restrictions and will not subject employees to progressive discipline for ADA-related absences, and will provide training on the ADA to its workforce

TAKEAWAY: If there is an issue under either the FMLA or ADA, an employer should automatically also consider its potential obligations under the other statute. Do this before the molehill becomes a legal mountain.

Tuesday 9/9/14’s post was about having in place a Will and other documents to protect your loved ones. If you don’t, your wishes (while you are alive or after you die) may not be respected but instead the state’s laws may govern.  

TAKEAWAY: While you can, make sure you have the right legal documents in place to tell doctors and your loved ones what you want to happen if you fall terminally ill or when you die.

On Wednesday 9/10/14 the post provided a 6-step plan to deal with problem employees.  Don’t laugh – every employer has or will have a problem employee.  The question is what to do about that person. The first few steps in this post are to ask yourself if you’ve given the employee a fair chance, seek support/guidance from HR, and prepare a performance improvement plan to give to the employee at a meeting. The other 3 steps are in the post.

TAKEAWAY: Problem employees will not just go away – you must take action to remedy the situation before it harms your business (more than it already has).

Thursday 9/11/14 the post was about a subject most people don’t like to acknowledge: the fact that bankruptcy can solve long-term debt struggles.  Did you know that eliminating bad debt from a credit report can often offset the impact of a bankruptcy filing and actually improve the credit score? There are also other ways a bankruptcy filing may be a benefit – to both the person who is in debt (the debtor) and those to whom the debts are owed (the creditors).

TAKEAWAY: Don’t cringe when you hear the word “bankruptcy”; it can be a good thing in certain situations. Talk to an experienced bankruptcy attorney to see if it is the right action for you personally or if someone who owes you money has filed for bankruptcy protection.

Friday 9/12/14’s post was on a difficult subject: Employers must dot their I’s and cross their T’s. when using consumer reporting information  The federal Fair Credit Reporting Act is filed with land mines. An employer should be careful when using consumer reporting information to make employment decisions on applicants and employees without properly disclosing that it will obtain consumer reporting information and without providing copies of the reports before taking adverse action against the applicants and employees. Home Depot is now the subject of a lawsuit in Georgia that alleges it violated this law. The post also has several tips if you do use consumer reports in the hiring or employment process.

TAKEAWAY: Employers must make sure they know what their obligations are if they use consumer reporting information in connection with employment decisions – failure to fulfill all legal obligations will land the employer in hot and costly water.

Finally, the post yesterday 9/13/14 was about monitoring employees’ social media activity and whether harassment claims are legally protected concerted activity (which can result in certain obligations for the employer)  Yes, the NLRA applies to your company, even if it is not unionized. You’ve heard this from me before. Here, an employee posted on Facebook that her direct supervisor had intentionally overpaid employees, adding that he “needs to keep his creapy [sic] hands to himself … just an all-around d-bag‼” The posts were reported to HR and the employee lied several times about the post before admitting it. She also sent text messages about the investigation to other employees. She was fired for lying and disruptive behavior. She sued for sex discrimination and retaliation, alleging, in part, the discharge was because of her Facebook posts. The court found the Facebook post did not rise to the level of concerted activity here and so found the discharge legal.

TAKEAWAY: All employers, unionized or not, must know what rights employees have under the National Labor Relations Act. Those rights cannot be infringed upon or the employers may be subject to lawsuit. An employment law attorney can assess a situation and give you legal advice as to the potential of NLRA application to a given situation.

Monday
Sep012014

ICYMI: Our Social Media Posts This Week -- Aug. 31 – Sept. 6, 2014

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

The post on Sunday 8/31/14 mentioned how a 5-foot stuffed gorilla was insufficient to fine an employer in a race discrimination case by an African-American employee. After trial, the decision was in favor of the employer (the state), but the judge still fined the employer $1000/day for the 21 days the gorilla was there. On appeal, the court said that the case was about denial of promotions and training because of race and not the gorilla having been placed at the employee’s cubicle (which would have been relevant had hostile environment been part of the case).  

TAKEAWAY:  Most obvious things will put the employer in hot water, but sometimes it can be saved by a procedural issue. Don’t hope for procedure – do it the right way from the start.

          The post on Monday 9/1/14 was about how a stressed-out commute led to a lawsuit (and how far the duty of accommodation really goes). The employee went out on disability leave due to depression; when she returned, she said that traffic causes her too much stress and asked that her work schedule be changed so she didn’t have to travel in rush hour. The employer accommodated at first; later, it changed her responsibilities without telling her. That is what she claims is discrimination on the basis of disability.

TAKEAWAY: If a granted accommodation needs to be changed, or if the job itself will change, let the employee know; don’t just do it and let the employee find out or bad inferences might be drawn by the employee and a court.

On Tuesday 9/2/14 the post talked about estate planning documents every (young) professional should have. So you have a job/career and a family (whether parents, siblings, spouse, significant other, and/or child(ren). You have begun building equity in assets. Protect the equity for the people.  The post mentioned documents you should have in place, including a durable power of attorney and a health care power of attorney (or living will). Go back to the post for the others.

TAKEAWAY:  Now, while you can, designate in writing what will happen with your assets and who will take care of your dependents; if there is no legally-sufficient writing in place, the state will decide for you.

The post on Wednesday 9/3/14 asked if you ever thank your employees. Both research and common sense say that appreciation is important to employees. And that generally they feel they don’t get enough. Employers should give appreciation four times more often than constructive comments. An example of a four-step process to accomplish that is in the post.

TAKEAWAY: While it is nice to reward employees who are doing a good job with money or other tangibles, they also – and perhaps even more so - value being appreciated and told of that appreciation.

On Thursday 9/4/14 the post confirmed that with the ADA, it’s gotta pass the smell test too. What does that mean? In the profiled case, the employee had been discharged for a positive drug test (which is excepted from the ADA). Regardless, the court denied the employer’s motion to dismiss the case. Why? Smell. The employee alleged he was picked on and held to a different standard, including increasing scrutiny after complaining about racial remarks (which remarks led to depression which led to drug use). The employee asked that the discipline for the drug test be waived or that he be given counseling (especially since Caucasian ono-disabled employees were not treated similarly). Go to the post for more of the facts leading the court to conclude that the employer’s proffered reason did not smell right.

TAKEAWAY: Even if you have a legitimate reason for an adverse action, make sure it and its context look and smell right or you might find yourself in hot water anyway.

Friday 9/5/14’s post was about whether English can be discriminatory. The EEOC says yes. It is suing a company for firing a group of Hispanic and Asian employees over their inability to speak English at work, claiming that the English-language requirement in a U.S. business constitutes “discrimination.” The EEOC claims that national origin discrimination includes the “linguistic characteristics of a national origin group.” How does the EEOC support its claims? “When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin — and thus violates federal law.”

TAKEAWAY:  If proficiency in a particular language is a legitimate business requirement, a policy requiring that employees speak that language might pass muster. But before you require it of all employees, check with an employment law attorney to make sure the policy will not be overreaching.

Finally, the post yesterday 9/6/14 was off-topic. It reminded us that in Central PA, people can and do scuba dive year-round. Still, the warmer months are preferable to many to learn to scuba dive.

TAKEAWAY: You are never too old to learn to scuba dive – make the time and start on a journey that will last you a lifetime.

Monday
Aug252014

ICYMI: Our Social Media Posts This Week -- Aug. 24 - 30, 2014

Below is a review of our 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 8/24/14 confirmed that being hit by a flying hot dog is not an inherent risk of watching baseball (at least in Missouri). A baseball fan was hit in the eye with a hot dog thrown by the team mascot and suffered a detached retina. Jurors found no liability based on that being an inherent risk of baseball. On appeal, the court said there was no inherent risk of being hit with a flying hot dog and sent the case back to the trial court.

TAKEAWAY:  While you might think attendance at a baseball game results in assumption of all risks, that is apparently not true as to things that may be related to but not a part of the game.

          The post on Monday 8/25/14 talked about the cost for a noose and saying the “N” word, “monkey” and “boy”. About $250,000 after the EEOC’s suit against a trucking company and a favorable jury verdict. Who used those words? The company’s general manager (who was the employees’ boss), dispatcher, several mechanics and other truck drivers (all of whom are Caucasian). The employees complained but nothing changed.

TAKEAWAY: Even if someone says they are joking, employers cannot allow any type of derogation, slur or discrimination in the workplace.

On Tuesday 8/26/14 the post was about a current hot spot for EEOC enforcement, pregnancy discrimination, and how it cost an employer $15,000. For 2 days’ work. The employee worked at a retail store for 2 days and was discharged after telling her manager she was pregnant.

TAKEAWAY:  Taking adverse action against an employee because of pregnancy is illegal – just don’t do it. NOTE: taking action against a pregnant employee based on another reason is ok.

The post on Wednesday 8/27/14 reminded us not to address an employee’s FMLA request as was done by this employer. Why? It hits the pocketbook HARD. In this case, a former employee of a supermarket chain got a jury award of about $536,000 when he was discharged after taking time off for back surgery. When the employee requested time off for surgery for something he claimed was work-related, the company denied it was job-related and so denied the workers’ comp request (telling him to switch to a request to use his own insurance). The employee filed the comp claim anyway and took an unpaid FMLA leave for surgery. When his doctor released him to light-duty work, the employer refused the accommodation. He was discharged shortly after (he refused the severance package and decided to sue). What was the sword to the employer’s throat? During trial, the company's owner admitted that had the employee not gone out on leave for back surgery, he never would have been discharged!

TAKEAWAY: Don’t just refuse an FMLA leave request out of hand – and when you do refuse a request, don’t retaliate against the employee for having made the request.

On Thursday 8/28/14 the post confirmed that name-calling can get quite expensive for an employer. There, the employer, a car dealer, agreed to pay $100,000 to settle a national origin and religious discrimination suit. What happened? The employer’s managers allegedly addressed Arab Muslim employees using offensive slurs like “terrorist” and “Hezbollah” and made mocking and insulting references to the Qur’an and how Muslims pray.

TAKEAWAY: Employers must make sure to respect all religions, even those different from their own; if they don’t, they will pay.

Friday 8/29/14’s post reminded that even though Ramadan is over for this year, employees may still need religious accommodation at other times of the year. While the employer should attempt to grant accommodation requests based upon religious issues, it need not if there will be undue hardship. Employers should consult with an employment attorney as to what may or might be considered an undue hardship for their business.

TAKEAWAY: Remember that as with other areas, accommodation for religion is an interactive process and there is not necessarily just one right answer.

Finally, the post yesterday 8/30/14 was a reminder that a request for FMLA leave can be a hidden request for ADA accommodation. Many employers deny an FMLA leave request (for an employee’s own serious health condition) but then do not look at it under the ADA – this can lead to a lawsuit. Who found this out? Sears (to the tune of $6.2M for 235 plaintiffs), SuperValu ($3.2M for 110 plaintiffs) and Verizon ($20M). Yes, those are millions.

TAKEAWAY: When an FMLA leave request for an individual’s serious health condition is denied, automatically consider it under the ADA – don’t wait for the employee to make a request for ADA consideration.