ICYMI: Our Social Media Posts This Week -- Aug. 30 – Sept. 5, 2015

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

The post on Sunday 8/30/15 was about a Linked In reference search not being an FCRA consumer report. In this age, employers search for information about applicants and employees in various ways – including social media. Here, applicants sued Linked In for alleged violation of the Fair Credit Reporting Act relative to its “reference Search” function. More details about the complaint are in the post, but suffice it to say that after analysis, the court decided that Linked In was not acting as a consumer reporting agency and the information provided was not a consumer report, both defined terms under the law.

TAKEAWAY: While this case was against Linked In, others have and will be filed against employers for their use of socmedia. Know what you can and cannot do – consult with an employment law attorney BEFORE you act.

The post on Monday 8/31/15 taught that a Baltimore company will pay $25,000 to settle an EEOC race discrimination suit. The allegations were that the real estate management company underpaid and refused to promote an African-American employee because of race. Yep, the sordid allegations are in the post.

TAKEAWAY: We’ve said it before and will many times again: race can NEVER have anything to do with job performance, so don’t even think about it when making employment decisions. Just don’t do it.

In the post on Tuesday 9/1/15, we talked about how to successfully live under a condo or homeowners’ Association. As more and more people live in planned communities, it becomes ever more important to know what rights and obligations both owners and the Association have under the documents that govern the relationship. The post is just the tip of the iceberg – contact me with questions.

TAKEAWAY: A planned community’s Declaration, Bylaws and Rules/Regulations are legal documents – they must be followed by the Association and owners. Know what they say.

The post on Wednesday 9/2/15 was about a seafood restaurant that’s on the hook for $185,000 for FLSA violations. This case was one of a few that went all the way to a jury trial. Here, it was alleged that the owner threatened and then retaliated against employees who cooperated with the agency investigating FLSA violations. The types of violations are in the post.

TAKEAWAY: If there has been a legal violation, admitting it and then correcting it is the best course – not trying to cover it up or retaliating against others.

The post on Thursday 9/3/15 was a reminder that in this BYOD world, think about the Apple watch & similar devices – know about them and what employees are – or should (not) be – doing with them. Not only must employers think about what employees are doing at their desks, home computers, smart phones or tablets, they must also be concerned with various types of wearable devices and the impact they can have on employers’ data.

TAKEAWAY: Technology keeps making the world both larger and smaller at the same time – make sure to protect your data from all possible methods of encroachment or wrongful/inappropriate use.

The post on Friday 9/4/15 was about linguistics: when you say __, employees hear ___. One example: you say “It’s company policy” and they hear “I don’t agree with that dumb rule either, but I’m forced to enforce it and not criticize it”. More are in the post.

TAKEAWAY: Be careful to say what you mean and mean what you say – don’t leave things open to other interpretations.

Finally, the post yesterday 9/5/15 talked about whether a non-applicant for a position can still sue the employer for sex discrimination? The answer is a big fat MAYBE. If the person was discouraged from even applying due to the employer’s (in)actions and can prove it, then there is the possibility of suit by the person who did not get the position. The post has more details.

TAKEAWAY: As with anything, an employer must be careful about what it does and does not do and how both are perceived by (potential) employees – liability could be lurking just around the corner.


ICYMI: Our Social Media Posts This Week -- Aug. 23 - 29, 2015

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

In the post on Sunday 8/23/15 we learned that the ADA direct threat defense just got a little easier for employers (if they have a reasonable belief, whether or not it’s proven out). When dealing with accommodation under the ADA, many people forget that the employee must be able to perform the essential functions of the job (with or without reasonable accommodation) without being a direct threat to him/herself or others. The post reminds us of the 4 factors that comprise the direct threat defense. In this recent case, the question was whether the employer had to prove the direct threat defense by a preponderance or merely have a reasonable belief as to the risk posed. The court decided on the latter.

TAKEAWAY: While the threat need not actually exist and may not be proven, if the employer reasonably believes that the employee poses a direct threat to him/herself or others, then that is sufficient under the ADA to meet the employer’s burden.

The post on Monday 8/24/15 was about Employment Law 101: Sex Discrimination. Who, what, why. The post answers some of these (and other) questions generally as to Title VII, but it is advisable that you consult with an employment law attorney to make sure you know your rights and obligations under all applicable federal, state and local laws. The post also provides a few examples of how this works in the real world. It also provides a few handy tips.

TAKEAWAY: Unless it is necessary to the job, gender should play no part in hiring, pay, discipline, promotion, or firing – just look at job performance.

In the post on Tuesday 8/25/15, we noted that Howard University will pay $35,000 to settle an EEOC disability discrimination lawsuit. The allegations were that Clarence, a diabetic with resulting kidney failure, applied and was interviewed for both protective services officer and supervisor positons. During the interview, in response to a question about shift preference, Clarence chose evening shift due to his dialysis needs. Clarence, who had much police experience, was not hired but at least 40 others were. When voluntary conciliation failed, the EEOC filed suit. This settlement resolves the matter.

TAKEAWAY: A disabled applicant or employee is not the end of the road, but just the beginning – being made of the disability invokes the employer’s obligation to engage in the interactive accommodation process (if an accommodation is being requested).

The post on Wednesday 8/26/15 reminded us why it’s legal to fire someone for being gay in 28 states. Yes, same-sex marriage is now legally recognized, but that is not the end of the battle for LGBTQ people. Most states (including Pennsylvania) still have no legal protection against employment discrimination on the basis of sexual orientation. Most states’ laws also don’t include sexual identity, but the EEOC has now ruled that discrimination on that basis IS sexual discrimination – we will see how that plays out through the courts. More statistics and information relative to employment discrimination against LGBTQ people is in the post.

TAKEAWAY: While it may not be illegal, that doesn’t mean it’s a good thing for your business to discriminate against LGBTQ people. If the person can do the job, let him or her do the job - regardless of sexual orientation.

The post on Thursday 8/27/15 talked about the hidden costs of home ownership - what else might be your lability under your Association’s governing documents. The post contains a list of 10 things to budget for as part of owning a home, but I’d like to focus on #8: homeowner/ condo associations and #10: grounds maintenance/upgrades. If your home is in a planned community, be it condominium or single-family, then you are bound by the Association’s Governing Documents (Declaration, Bylaws, and any Rules/Regulations that have been enacted). Those documents specify whose obligation it is (yours or the Association's) to repair or replace certain things, including doors, roofs, porches, sidewalks, lights, and the like, and to maintain (or not install) landscaping in a certain way. Make sure you know what you might be liable for in the future – and that when the day comes to make good on your obligation, you must do it in a way that comports with the Governing Documents. Likewise, make sure that whatever you plan to do with landscaping is allowable before you do it – it is not good to have to pay to do something and then pay again to undo it after the fact.

TAKEAWAY: Life in a planned community, with a condominium or homeowners’ association, can be great – but it also requires adherence to legal documents that contain obligations on the part of owners and the associations.

The post on Friday 8/28/15 told us about pay discrimination and that the best man for a job may be a woman. Employers must beware pay discrimination on the basis of gender as that can be more expensive than just paying the woman the same as the man from the start. The case in the post is but one example of how this works under the Equal Pay Act. Here, Kathy’s title was administrative services representative II, but she actually performed management duties for 8 years. In March 2011, the employer undertook a pay classification system based on industry pay grade data; Kathy’s job was listed as Grade 5 based on what the employer thought an administrative assistant normally does. Kathy got a raise, but not one that matched the Grade 7 classification of the duties she actually performed. 3 months later, the employer hired a younger male as the new fleet administrator at the recommended starting salary. Kathy had to train him; he took over much of what she’d been doing and she was told to focus on management and construction projects at field offices. In August 2011, a new facilities manager position was created; the employer initiated contact with a younger male to see if he was interested in the position. Kathy was fired in September 2011 due to alleged complaints about her performance (for which she had never been disciplined and for which her evaluation rated her as excellent). The immediate discharge was contrary to the employer’s policy. The male was indeed hired and negotiated a salary higher than the pay grade salary; his duties were basically those that Kathy had performed. No surprise, Kathy sued. The court analyzed what Kathy and the males did and found that she had performed much the same duties as did they. When the employer said the pay grade system was gender neutral, the court said that was true but insufficient as a defense since that did not explain the wage disparity given the work performed (that the employer knew she was performing). In the end, Kathy gets a trial on her claims under both Title VII and the ADEA.

TAKEAWAY: It’s best if the job title matches the job duties; the next step is to pay the person for the duties performed (and not take into account gender).

Finally, the post yesterday 8/29/15 told us that you should be prepared to justify a termination by citing business reasons unrelated to FMLA leave. This holds true for “regular” situations and those where someone was on FMLA leave.

TAKEAWAY: If there is a legitimate reason to terminate employment, without taking into consideration any FMLA leave, then do it – legally.


ICYMI: Our Social Media Posts this Week -- Aug. 16 - 22, 2015

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

In the post Sunday 8/16/15 we mentioned an NLRB update: Let's Talk About Wages - Or Not? Once again we remind all readers that certain provisions of the National Labor Relations Act apply to ALL employers, not just those which are unionized. Here, employees at a Chipotle restaurant were protesting their wages; the company said they violated a rule against talking about wages. A local union filed a charge with the NLRB and the judge agreed with them (that the employees ahve the absolute right to protected concerted activity). More details on this case and some other cases are in the post.

TAKEAWAY: Employees have a legal right to talk about their wages. Period.

The post on Monday 8/17/15 was about a sudden find of performance issues after deployment is announced being a possible violation of USERRA. This could apply to other laws too. Here, the company used complaints about the employee and performance that coincidentally surfaced after 4 years of positive reviews; the court didn’t buy it and denied the employer’s motion for summary judgment (meaning the case continues toward trial if not earlier settled). So what did the court look at relative to discrimination under USERRA? Proximity between the military activity and the adverse employment action; inconsistencies between the employer’s proffered reason and its other actions; the employer’s express hostility toward the military activity; and disparate treatment of the employee when compared to other employees with similar work records or offenses. More details about the background and the court’s analysis of those factors are in the post. Since the court found that the employer’s proffered legitimate reason AND the illegal basis could both have been the cause of termination, the case goes on.

TAKEAWAY: Be careful of when you take action: it may belie your asserted motives and be used against you.

In the post on Tuesday 8/18/15, we noted that a broad English-only rule can now subject even a non-union employer to liability under the NLRA (in addition to Title VII absent business necessity). This has been a long time coming; The EEOC has been against adoption of English-only rules as constituting race- or national origin discrimination if there if no business necessity. Now such a rule has been found to violate the NLRA relative to employees’ rights to concerted activity (because it could be construed as prohibiting the discussion of terms and conditions of work at any time in their native language).

TAKEAWAY: As with all policies, make sure they are founded in business necessity, are reasonable, and do not violate any law.

The post on Wednesday 8/19/15 gave us 3 real-world examples of pregnancy issues in the workplace. The examples dealt with (1) leave given to female employees to bond with a recently-born child and whether male employees must be treated similarly, (2) whether a newly-hired and pregnant employee is entitled to approval of her request for leave due to pregnancy complications from an employer that doesn’t grant medical leave to employees until after their 90-day probation period; and (3) whether a policy granting up to 10 weeks’ pregnancy-related medical leave for pregnancy and childbirth (as part of a short-term disability plan) and 6 weeks’ unpaid parental/bonding leave to all employees is discriminatory. The answers are in the post.

TAKEAWAY: When dealing with pregnancy and related issues, look to the PDA, FMLA, ADA and Title VII, and be careful when distinguishing pregnancy and maternity leave from other medical leaves.

The post on Thursday 8/20/15 talked about applications for other jobs killing an employee’s stress-related reasonable accommodation claim. Certain actions taken by an employee while on FMLA leave might work against requests for reasonable accommodation under the ADA in the future. How does that work, you ask? Here, the employee was a medical benefits administrator. She took 4 weeks’ FMLA leave. About a year later, she was counseled and disciplined for poor performance; subsequently, she was hospitalized relative to the same medical condition. After her return to work, she requested additional FMLA leave. Her doctor suggested 8 weeks’ leave and then part-time leave. Only the former was approved. On the last day of the leave, the doctor asked for a one-month extension. The employer noted that her FMLA leave expired about a week before that and that if she did not return, she would be deemed to have quit. The employee neither returned nor contacted the employer, but filed an EEOC complaint alleging failure to reasonably accommodate by denial of the part-time leave. More on the background and decisive facts there is in the post.

TAKEAWAY: Employees should be careful – and employers should be on the lookout – for actions that might be helpful in one scenario but harmful to a request or claim in another.

The post on Friday 8/21/15 told us about a jury awarding a woman more than $13 million in a work discrimination case. Sandra was called “Big Girl”, suffered obscene gestures when her voice came over the radio, and was told she was “losing her mind” and “throwing fits” when she complained of harassment. Sandra alleged she suffered harassment and gender discrimination from male colleagues while she was a shipping supervisor making less than her male predecessor (despite arguably more experience than he had). (More details in the post.) Well who’s laughing now?!?! A federal jury in Pittsburgh recently found the company liable for discrimination, hostile work environment and retaliation, awarding her more than $13 million in damages and pay (of which about $12.5 million was punitive damages). Some jurors interviewed said they wanted to send the company a message – I think they did just that.

TAKEAWAY: If an employee complains, investigate and take appropriate action; if you ignore the complaint or make light of it, it could end up that your wallet is lighter.

Finally, the post yesterday 8/22/15 was about beaners, wetback and more and a driller settling a discrimination claim for $14.5 million. This was a week of large dollars changing hands in discrimination matters. Latino drillers on an oil rig were called “beaners” and “tacos” which led to fights and guns and ended in a settlement between the employer and EEOC. Allegations of nation-wide discrimination and harassment on the basis of race and national origin (including opening a portable toilet where a Hispanic worker was sitting and throwing cleaning fluid on him - UGH) were resolved via the settlement. See the post for more of what the workers experienced

TAKEAWAY: Do not condone harassment or discrimination of any type in the workplace and if it happens, take immediate action to stop it and take appropriate corrective action. Failure to do so can lead to liability for the employer.


ICYMI: Our Social Media Posts This Week -- Aug. 9 - 15, 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 8/9/15 the post questioned whether the ADA means that you have to let alcoholics drive trucks? It’s not a simple question and decision includes whether the driver has a “current clinical diagnosis of alcoholism” and whether there is a blanket policy or individual determinations are being made by the employer. One court said that in the former situation (current alcoholic diagnosis), the ADA does not apply. Another said that a blanket policy (never permitting those self-reporting alcohol abuse to return to driving) violated the ADA since there was no individualized determination. More details are in the post.

TAKEAWAY: While alcoholism itself is not something that entitles one to ADA protection, the facts of the situation may still bring it within the ambit of the ADA. Know what rights and obligations the employer and employee each have in a specific situation.

The post on Monday 8/10/15 asked what’s the law on paying for travel time? This normally only comes up when dealing with non-exempt employees. Ordinarily, the employee is paid for time travelling to and from his work location unless s/he usually works at a fixed location and is given a one-time assignment elsewhere. Note that travel from job site to job site counts as compensable hours worked; also, travel as part of the employee’s job during normal work hours is compensable. Likewise, overnight travel is compensable during work hours on both regular work days and non-work days. The post gives an example of how this works.

TAKEAWAY: Just because an employee is not on the employer’s premises does not mean that what s/he is doing is not compensable. Know the law on when travel is compensable (before you get caught for not properly paying the employee).

The post on Tuesday 8/11/15 provided 9 pearls of wisdom from Dr. Seuss. Yes, really. So what are they? (1) ‘I meant what I said, and I said what I meant.” Does this really need further clarification? (2) “A person’s a person no matter how small.” Treat everyone the same, no matter their position. (3) “You’ll miss the best things if you keep your eyes shut.” As an employer, know what your employees are (or are not) doing and take action as required (whether it be commending or disciplining them). (4) “When a fox is in the bottle where the tweetle beetles battle with their paddles in a puddle on a noodle-eating poodle, THIS is what they call ….”  Don’t talk or write like this; be clear and specific so that both you and the employees know what is expected. Other tidbits are in the post.

TAKEAWAY: Yes there are things that we can learn from comics and humorous writings, even those intended for children. Just apply them correctly to see how they fit.

The post on Wednesday 8/12/15 was about a gender discrimination suit that settled for $400,000. That amount is to be split among 5 women who settled their 3-year old lawsuit. The women filed charges with the EEOC, claiming they were denied jobs on drilling rigs despite being as qualified as men; the EEOC ended up filing suit on their behalf. The suit includes allegations that employees said that having a woman on the rig would be distracting and that a rig manager said “he would not hire [her] because she was ‘too pretty’ and then they ‘couldn’t get anything done out here’”. The company denied liability but agreed to the settlement. More details about the individual women, their specific factual allegations and their split of the settlement are in the post.

TAKEAWAY: If gender has nothing to do with job performance, then don’t take it into consideration in hiring, discipline or firing. Period.

The post on Thursday 8/13/15 reaffirmed that “Me Too” race discrimination is insufficient to carry a hostile environment case. Here, 24 African-American (current and former) employees sued Austal, for race discrimination at its shipyard in AL. The allegations included vulgar racial graffiti in the bathroom, nooses, displays of the Confederate flag, and racial slurs.  More details about the allegations (which seem unbelievable but these things still happen in this day and age) are in the post. The trial court dismissed the case as to 13 plaintiffs, saying their work environment was not objectively hostile. On appeal, the court looked at those and jury verdicts against 2 other employees; a key question across the board was how frequent and severe was each employee’s exposure to racial misconduct. The court reaffirmed that each employee must prove that the work environment was both objectively and subjectively hostile as to him/her since they worked in different departments for different supervisors at different times and that proof does not include other employees’ experiences of harassment of which the complaining employee was unaware (i.e., saying “me too” doesn’t always work in court). The post contains more details about the court’s analysis and who has to prove what in court and applies the alleged facts to the law.

TAKEAWAY: Employees must have sufficient evidence that they subjectively and objectively experienced a hostile work environment to have a viable claim; just because one employee experienced something illegal does not mean another employee has a claim too.

The post on Friday 8/14/15 reminded us that employers don’t always know what’s best for their employees. An example is in the post. Timothy was a laborer installing conveyor belts. He had a heart attack but was later released to return to work with no restrictions. The employer only let him return for 2 days, thinking Timothy’s job was harmful to his health, and then terminated his employment. The EEOC ended up bringing suit under the ADA; the company denied the allegations. The suit was resolved by the company paying $50,000.

TAKEAWAY: Don’t make decisions for employees using facts you assume but don’t really have in hand, even if you mean well. It can cost you real money in the end.

Finally, the post yesterday 8/15/15 was about a court ruling that a lawyer driving to work wasn’t working. Huh? If the facts are changed just a bit, the outcome could be drastically different. So what happened? Christopher, a law firm partner, was in an auto accident; the other driver sued for $1M. Christopher’s insurance coverage was $100,000, so he tried to ensure that the law firm’s insurance applied and would cover the balance. The question was whether he was using the vehicle for firm business or personal business at the time of the accident. Christopher made several arguments, including that since he also works from a home office, he was travelling between work locations, not commuting, and that he normally thought about work-related issues during his drive to work. The court did not buy any of his arguments. The post has more details on the court’s reasoning (which is interesting).

TAKEAWAY: While this was a law firm employer, the facts could apply to any employer and a determination of whether the employee was providing services in the nature of work, meaning the employer’s vehicle insurance comes into play. Keep this in mind when drafting policies for your employees.


ICYMI: Our Social Media Posts This Week -- Aug. 2 - 8, 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 8/2/15 the post listed 6 legal requirements employers should watch in 2015. So what are they? (1) More accommodation for pregnant employees. (2) Breast-feeding in the workplace. (3) Minimum wage exceptions. The other 3 are in the post.

TAKEAWAY: There are so many things that an employer must be aware of and watch out for that one’s head can spin, but certain areas garner more attention than others from those charged with enforcement. It only makes sense for employers to look more carefully at those areas too.

The post on Monday 8/3/15 was about a lawsuit accusing Tata of favoring South Asians and discriminating against American workers. Hmmm. The suit was filed in federal court in CA by a non-South Asian employee claiming that 95% of the 14,000 Tata employees are South Asian or mostly Indian, such that the workforce is grossly disproportionate. The suit says that Tata discriminates by hiring from those holding H-1B visas (which are primarily for those from India), mostly hiring South Asians when hiring domestically, and disfavoring the few non-South Asians employees in placement, promotion and termination. The suit seeks class action certification. Tata plans to “vigorously defend” the allegations.

TAKEAWAY: Numbers don’t lie; when your workforce is disproportionate and you either don’t care or don’t do anything about it, you may be in legal hot water.

In the post on Tuesday 8/4/15, we asked when is an employee legally working? The question is simple, but the answer not so much. The answer is important though as it can affect employers and employees under many laws, both state and federal. After a bit of history, the post talks about a federal case in which casino security guards had to remain on premises, monitor two-way radios, and respond to emergencies during their meal breaks. The court focused on whether the meal time benefitted primarily the employer or employees. For the court’s decision, go to the post.

TAKEAWAY: Just as proper classification as an employee or contractor is important, so too is whether what the person is doing is compensable or not.

The post on Wednesday 8/5/15 was about the importance of documenting performance. I know you’ve heard me say it before, but I will again: in real estate it’s location location location, and similarly in the employment arena, it’s document document document. Whether using paper and pen(cil) or doing it electronically, make sure to document things about the person’s performance. If you take an adverse action and there is nothing to support it, your back will be against the wall. In the case in the post, Addiel, a hotel chef, was not the best of employees BUT his employer did not document anything in his personnel file. And as if that wasn’t enough, Addiel also alleges that the hotel’s GM of HR told him he was “no longer capable to work at the line because you are old”. Suit was brought for age discrimination; the hotel argued that his termination was based on poor performance but when there was no substantiation, the court ruled against it. (It didn’t help that the hotel didn’t follow its own disciplinary policy either.)

TAKEAWAY: To withstand allegations of illegal discrimination, make sure adverse employment actions are based on performance and that the personnel file contains support for the action.

The post on Thursday 8/6/15 asked who doesn’t like non-competes? The answer seems to be that nobody dislikes them or, conversely, everyone (or at least every employer) wants them. For all employees, not just managerial employees usually associated with non-compete agreements. Make sure you know what the law requires in order that a non-compete be held valid and enforceable (otherwise is no point in having one).

TAKEAWAY: Non-competes are legal agreements and, as such, you should have them prepared by an attorney to cover the specific facts of each position; otherwise you are jeopardizing the enforceability of the agreement.

The post on Friday 8/7/15 told us about a former Harvard professor suing for sex discrimination in tenure denial. The suit, brought under Title IX, alleges that she was denied tenure, retaliated against, paid less, and given less work space because of her advocacy work involving victims of sexual assault. More details about the allegations are in the post. The professor alleges that when questioned by her, Harvard admitted that her political activities contributed to the negative tenure review (and resulting dismissal). However, Harvard’s legal counsel now says that there is no merit to the allegations.

TAKEAWAY: Some employers must be concerned not only with Title VII (and the anti-retaliation provisions of other statutes), but also Title IX.

Finally, the post yesterday 8/8/15 was about when volunteers become employees under anti-discrimination laws. The post links to an article written by my colleague and Connecticut attorney Dan Schwartz; he talks about this in the context of CT law, but it can be applied generally to PA relationships too. The question is, “when that person is carrying out important functions related to the mission of the agency and acting under the direct supervision of the leadership of the agency, can claims of discrimination be brought ….” The CT court faced with the question decided that what matters in determining whether the person was an employee is whether and how s/he was remunerated. The post gives more details on what could constitute remuneration for these purposes.

TAKEAWAY: As in other areas of the law, just because you decide someone is in a position other than employee does not make it legally so; to be sure, discuss the situation with a lawyer well-versed in employment law (or literally pay for the consequences).


ICYMI: Our Social Media Posts This Week -- July 26 – Aug. 1, 2015

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

In the post on Sunday 7/26/15 we listed 10 questions employers should never ask in a job interview. Some of the questions explicitly ask about legally-protected characteristics, others merely hint at them, so just don’t (ask them, that is). So what are the questions? What is your religious affiliation? Are you pregnant? What is your political affiliation? The others are in the post.

TAKEAWAY: The way for an employer to make sure an employee is qualified is to review the essential functions of the job and ask the employee is s/he can perform them, with or without reasonable accommodation. Then let the employee answer (and any necessary dialog continue). Easy peasy.

The post on Monday 7/27/15 was about a university being sued for allegedly firing a professor for transitioning from male to female. And what makes it interesting is that the plaintiff is not the professor, but the Department of justice; the suit is for sex discrimination and retaliation. The professor was a man when hired in 2004; before the start of the 2007-08 school year, she informed the school that she would be transitioning. In 2009, when she applied for tenure, she was denied – despite recommendations from her department chair and other tenured faculty in her department. After the 2010-11 year, she was terminated for not having become tenured. On-line petitions with over 4300 signatures went up after the discharge. The post has more details. The university basically issued a non-statement in response to the allegations. The case remains pending.

TAKEAWAY: If your head has not been under a rock, you know that gender identity is the next recognized wave of sex discrimination – and therefore prohibited under Title VII.  Use performance for adverse employment decisions, not protected characteristics.

In the post on Tuesday 7/28/15, we talked about maternity leave varying by company size (and state). Remember that the FMLA does not apply to all employees or to all employers, but only to those who meet the requisite thresholds (as specified in the law itself). However, some states may have laws on maternity leave (PA does not) and individual employers may have policies providing maternity leave (paid or unpaid).

TAKEAWAY: Pregnant employees, and especially those who intend to get pregnant, should check into their legal right to maternity leave if it impacts their household financial stability or future work plans. Likewise, employers must remember not to treat pregnant employees differently simple because of the pregnancy.

The post on Wednesday 7/29/15 was about a man filing suit after being discharged for refusing to wear women’s clothing. I do not make up these things. Tristan is a transgender man who was hired by First Tower Loan LLC as a manager trainee. He alleges that a mere week into his job, he was called to the Vice-President’s office to discuss his work clothing; that resulted from Tristan’s supervisor alerting management to him being a transgender man (are your alarm bells going off yet?!?). The only reason the supervisor knew was she questioned “female” being listed as Tristan's gender on his license. Go to the post to see what happened when the VP found out and the ensuing discussions. The suit follows the US Dept. of Justice’s clarification in December 2014 that discrimination on the basis of gender identity is indeed sex discrimination that is prohibited under Title VII. Tower is denying that transgender employees are protected by the DOJ clarification. The case is not over …

TAKEAWAY: Not only do we have the DOJ clarification, we now have the EEOC’s recent guidance, both saying that discrimination on the basis of gender identity is prohibited sex discrimination under Title VII. Just don’t do it.

The post on Thursday 7/30/15 included 5 things not to do when facing workplace harassment or discrimination. These tips are from the angle of the employee, but give insight into what an employer also should think about (not) doing). The first DON’T is to fail to report the action as soon as it happens. Next is DON'T interfere with the investigation. The other tips are in the post.

TAKEAWAY: Nobody wants harassment or discrimination in the workplace, but employers can only remedy what they know about – employees must make sure to follow these tips.

The post on Friday 7/31/15 was about Planet Fitness settling a race and gender discrimination suit for $25K. Not much money, but it still represents a win for anti-discrimination. Rachel, an African-American female, was employed for almost a year. She filed a charge with the EEOC alleging she was not promoted and later discharged based on race and gender. The EEOC determined there was probable cause (and added age and marital status to the mix). More details are in the post, but one tidbit form Planet Fitness is that male worker who was promoted “was more mature, married and has real bills.”  Yuck.

TAKEAWAY: We've said it before and will say it again: make sure employment decisions – hiring, discipline, promotion, and discharge – are based on performance and not any protected characteristic. Period.

Finally, the post yesterday 8/1/15 highlighted a suit for FMLA violation for having to show mastectomy scars before returning to work. Yep, these things happen in the real world! Here Andrea alleges that her employer, Broward Health in Florida, refused to waive a policy requiring employees off for FMLA leave for surgery to all an in-house medical clinic to examine the wound before returning to work. Andrea thought the policy was “demeaning and humiliating” and asked that it be waived; the employer said it was to ensure no open wounds, sutures or staples. A nurse suggested that Andrea obtain a note from her treating physician that there were no open wounds, sutures or staples; she did so and turned it in, but the employer still refused to waive the exam. Andrea then offered to allow her doctor to speak to the employer, but still no exam waiver. She refused to undergo the exam and was discharged. The suit is still pending as you read this.

TAKEAWAY: While it is advisable for employers to uniformly enforce policies, they may need to exercise some variance or discretion when a law comes into play.


ICYMI: Our Social Media Posts This Week -- July 19 - 25, 2015

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

In the post on Sunday 7/19/15 we talked about employee or contractor: proper classification.  Yes we’ve posted about this before but employers just don’t’ seem to get it. This time we linked to a fact sheet in an attempt to give you guidelines; then call us to discuss the situation. If a person is classified as a contractor but is in reality an employee, the employer can be liable for a lot, so don’t make the mistake.

TAKEAWAY: It is possible to have an independent contractor relationship with someone, but certain requirements must be satisfied. Make sure to do it the legal way from the start.

The post on Monday 7/20/15 was about what you should do when an employee doesn’t return FMLA forms. First, remember that the FMLA allows – but does not require – employers to obtain medical certification of an employee’s need for leave. Most do get the information. But what if the forms don’t come back? The employer has to allow at least 15 calendar days for them to be completed and returned – and may need to allow more.

TAKEAWAY: Employers should have a policy about FMLA leave forms and apply it evenly – but also know when to make exceptions.

In the post on Tuesday 7/21/15, we talked about a military veteran suing for age discrimination in being discharged. Now the first thing that makes this different than the usual suit is that the plaintiff mitigated his damages by finding other employment. So why did this 75-year-old marine veteran with about 30 years’ experience operating large motor vehicles sue? He applied on-line, went for an in-person interview, and was hired. When he reported to work (with other new employees), he was pulled aside, told he was too old, and discharged. Yep, he sued.

TAKEAWAY: As we keep saying over and over, don’t let age (or race or any other protected characteristic) determine eligibility to perform a job; let performance be the determining factor.

The post on Wednesday 7/22/15 was about the requirements of cause for discrimination under the Equal Pay Act. This law slips under the radar at times, but is still out there when a person of one gender feels s/he is doing the same job but being paid less than a comparable person of the other gender. See the post for the requirements.

TAKEAWAY: Unfortunately it still happens; women are too often paid less than men for doing the same job. Regardless of who is being paid less, the Equal Pay Act can remedy the situation.

The post on Thursday 7/23/15 told us about a sweet-smelling development: aggrieved individuals aren’t needed to bring a Title VII pattern & practice case. This was a decision from a federal court in Illinois but may have far-reaching ramifications. The EEOC sued Rosebud Restaurants (and 13 related entities) for an alleged practice of refusing to hire African-American because of their race (including statements by the owner/controlling person of a preference not to hire black job applicants). The EEOC sued. Rosebud moved to dismiss, saying that THE EEOC needed to point to at least one specific an aggrieved individual to maintain the suit and since that didn’t happen, the suit should be dismissed. Based on the statutory language, the Court said that no specific individual must be named (and further that the EEOC may bring such actions in its own name and pursue widespread discrimination). The court also distinguished a retaliation case from this pattern & practice case. So now the case moves forward…

TAKEAWAY: Owners and managers should be careful about what they say and who they (fail to) hire; using a protected characteristic and not performance as an adverse factor could be very costly.

The post on Friday 7/24/15 was about another suit brought by the EEOC, this time related to a principal discharged on the alleged bases of age and gender discrimination. The employer owns and operated government-funded private schools; it hired Boro as a principal/supervisor. When the employer learned Boro had retired from a prior job, it started to ask questions about his fitness for this job and making age-related comments. It finally fired Boro a few days after hiring him. The suit also alleges that one of the owners made comments to the effect that females were more desirable as employees “because they were passive”. To read more, go to the post.

TAKEAWAY: Have you heard this before? Hire, discipline and fire based on the ability to perform the job and nothing else.

Finally, the post yesterday 7/25/15 highlighted a suit by the subject of racially-charged words and action for race discrimination and retaliation. Here, Kaiser was a phlebotomist who filed suit against a non-profit organization for race discrimination and retaliation. The allegations include that when travelling for business, Kaiser was subjected to racially charged words and remarks including “frequent use of the n-word, comments about President Obama, interracial dating, and stereotypes about blacks and food”.  Once his supervisor told Kaiser not to be offended by the use of the n-word or if people stared at him. Go to the post for more details. Shortly after asking another employee how long he had to endure all of that before reporting it higher up the chain, the other employee reported that Kaiser threatened him. The next day, he was discharged for the alleged threat. He sued.

TAKEAWAY: If an employer is going to have a basis for adverse action, make valid, hopefully with support; don’t make up something because others will see right through it.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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