Monday
Jun222015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Jun082015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Jun082015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday
Jun032015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday
May262015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
May182015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
May112015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
May042015

ICYMI: Our Social Media Posts This Week -- May 3 - 9, 2015

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

On Sunday 5/3/15 we posted about remembering that FMLA leave doesn’t count when firing for attendance reasons. That’s right. You cannot include allowed FMLA leave for evaluation purposes or when counting absences. In this case, Jamie transferred within departments at the employer, the University of Pittsburgh Medical Center. She was eligible for FMLA leave at the time of transfer. She shortly accrued at least 6 tardies and 3 absences (including one for which she submitted a false doctor’s note and another where she tried too late for a shift change, arrived late and left early). The following month, Jamie called off to take her mother to the ER. The next day she called the employer to ask for FMLA leave. Two days later, the employer terminated her based on the absences. Jamie brought suit, alleging FMLA violation. The matter went to trial where the employer showed the jury evidence of the absences and that it made the decision to terminate prior to the date on which she took her mother to the ER (thus not taking into account the FMLA leave request). The jury believed the employer.

TAKEAWAY: If done right, an employer can still discipline or discharge an employee for poor performance even if the employee is on or has requested FMLA leave.

The post on Monday 5/4/15 was about retaliation: you can get mad at an employee, but don’t try to get even! It’s tempting, I know, but just don’t do it. The post talked about a case out of Massachusetts where the employee had a hearing impairment but could normally hear well with hearing aids. He had previously worked for the employer, S&H Construction, Inc. and was rehired in 2003. He did not report grapevine comments about another employee making disparaging remarks about him. However, at some point, S&H’s owners learned some supervisors did not want him on their jobs – it was not related to his hearing impairment but was instead performance-related. In Fall 2005, the employee’s hearing aids stopped working and he could not afford a new one. He stopped going to company meetings but was not disciplined. He served as job supervisor on 2 jobs between January – April 2006 and worked on other jobs. He then took an unpaid leave for knee surgery and returned to work in June 2006, still with no working hearing aid. On one job after his return, the supervisor complained because he had to explain things to the employee several times and felt the employee had a bad attitude. On another job, the employee performed poorly and the customer complained. On yet another job, the employee was a co-supervisor; his fellow supervisor alleged that he was often not on the job, reading in his truck, and painted his truck in the homeowner’s driveway instead of working. The final straw from October 2006 is in the post. His employment was terminated. He filed an admin charge on the basis of his disability. So far, so good. Then S&H filed suit against him in state court to collect monies it had loaned him. Default judgment was entered for S&H. To collect, it took possession of a minivan the employee’s ex-wife was using for his 3 children. The ex rightfully panicked; she called one of S&H’s owners to try and resolve the situation. Again, so far, so good. But then the S&H owner told the employee’s ex that they would return the car to her if she got the employee to drop his admin charge. Oooh, bad employer. The employee then amended his admin charge to add retaliation. The admin agency ruled against the employee on his disability claim, but, no surprise, ruled in his favor on the retaliation charge. The reasoning is in the post. He was awarded $25,000 in emotional distress damages and S&H had to pay a $5,000 civil penalty and reimburse the employee’s attorneys’ fees.

TAKEAWAY: Even if the employee files charges or sues for what you believe to be no legal basis, don’t retaliate – you can win the underlying suit but still lose big on the retaliation claim.

In the post on Tuesday 5/5/15, we talked about an overbroad medical info requirement resulting in payment of $477,000 to 12 employees under a suit brought by the EEOC for disability discrimination. The EEOC sued for violation of the ADA when the employer required all of its truck drivers to notify the employer whenever they had contact with a medical professional, including routine matters. The court ordered the company to change its policy and obtain such medical information only when job-related. Earlier this year, the court ordered the employer to pay over $225,000 in back pay and interest, over $49K in compensatory damages, and over $202,000 in punitive damages.

TAKEAWAY: Medical inquiries have their place and reason, but must be job-related; remember that before asking for information.

The post on Wednesday 5/6/15 reminded us about 5 types of co-workers nobody wants to work with – and asked how many are in your workplace. Why is this important? Because you need to know how to recognize the types and deal with them, disciplining as necessary but applying your policies uniformly.

TAKEAWAY: Employees may fall into general categories or types, but make sure (legally) that the traits and actions they show are not caused by something that is a legally-protected characteristic or disability.

In the post on Thursday 5/7/15, we learned that severance payments are considered wages for federal income tax purposes. This is based on a US Supreme Court decision issued in 2014. The case came about when a company filed for bankruptcy protection and terminated thousands of employees. It offered various severance packages and reported payments under the packages as wages, withholding the employees’ share of federal taxes and paying its share. Subsequently, the company asserted that the severance payments should not have been taxable and requested a refund of the taxes paid. The IRS denied the request; the matter went through the courts until the Supreme Court decided in in favor of the IRS.

TAKEAWAY: Remember that severance payments are considered wages for federal tax purposes; severance agreement should include a provision that taxes will be deducted from any such payments.

The post on Friday 5/8/15 was about a “Male help wanted” sign and whether it was discriminatory. The business owner said he needed someone strong to lift heavy boxes and do other work. A female asked that the sign be replaced with one that was gender-neutral; she was asked to leave the store. Federal anti-discrimination law doesn’t apply as the store has fewer than the threshold 15 employees. That state’s (LA) anti-discrimination law also did not apply. The female hadn’t applied for a job and been denied employment, so she could not file a charge with the EEOC.

TAKEAWAY: Remember that there are thresholds for applicability of laws. However, just because a business CAN do something does not mean it SHOULD. The court of public opinion might tell it otherwise.

Finally, in the post yesterday 5/9/15, we talked about permissible discrimination in health benefits. Yes you can (in certain circumstances). The post talks about some of the health factors on which eligibility cannot be based (including health status and genetic information) and others which are allowable to use, including part-time versus full-time work status.

TAKEAWAY: Yes you can discriminate against certain employees relative to eligibility for health benefits, but only if done legally.

Monday
Apr272015

ICYMI: Our Social Media Posts This Week -- Apr. 26 – May 2, 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 4/26/15 we posted about whether employees are entitled to their personnel file. The thing to know in answering the question is that every state has its own law on this issue – or may have no law – and it can differ by the type of employment (i.e., private or public sector). In PA, someone can view a personnel file under certain circumstances and at certain times during employment or for a period after employment ends. If you need to know your rights as an employee or employer relative to personnel files, contact me.

TAKEAWAY: Before agreeing to or denying a request for an employee to view his or her personnel file, know what your obligations are under the law.

The post on Monday 4/27/15 told us that deactivated Facebook accounts are discoverable in litigation (or at least potentially so). Here, the employee, who was suing his employer, responded to a request by the employer that he produce his entire FB page from the beginning of his employment by saying he does not presently have a Facebook account.” That was true since he deactivated it 4 days after receiving the employer’s request. However, he then reactivated it 4 months later and provided 4000 pages from the account for the judge to review. The judge was not pleased. The judge ordered all 4000 pages turned over to the employer and, in addition, that the employee allow the employer to log into his Facebook account.

TAKEAWAY: Know the difference between deactivated and deleted FB accounts and how to preserve data in either situation.

On Tuesday 4/28/15, the post asked “I falsified my time records but I’m still suing you. What???” Yep, it happens in this grand world of ours. A federal court recently ruled that an employee can still sue for overtime (under the FLSA) even when the employee knowingly violated company policy by underreporting hours worked. Seems wrong, doesn’t it? Well, it was what is, but shouldn’t be, a common scenario. The manager told the employee the employer would not pay overtime, so the employee worked off the clock and did not report the hours. However, the company had a policy requiring accurate reporting of hours worked. The employee did not report the manager’s instructions, but worked the hours and did not report them. After he quit, he filed suit for overtime pay. The manager’s action in telling the employee not to report the hours worked trumped the employee’s failure to accurately report his time worked.

TAKEAWAY:  Managers and supervisors must be properly trained so they are not telling employees one thing when a policy (or applicable law) says something else. This can come back to bite the employer.

The post on Wednesday 4/29/15 reminded us that a search of a company vehicle is not an employee interview triggering Weingarten rights. In a unionized workplace, employees are entitled to have a union representative present during investigatory interviews. In February 2015 the NLRB issued an Advice Memorandum on the question of whether an employer’s search of a company car during a pending investigation triggered Weingarten rights. There, the employer found marijuana under chairs where the employee had been sitting; the employer summoned the employee who asked for a union representative. The rep arrived and an initial interview was held. During the ensuing lunch hour, the employer searched the company car used by the employee.  The post mentions what was found. The employer summoned the employee for a second interview and again the union rep was there. Eventually a written reminder of policy was handed out. The union grieved it; the employee then filed a charge alleging violation of her Weingarten rights via search of the company car (as a continuation of the initial interview that finally concluded after the interview after lunch). The Advice Memo is clear that the vehicle search was not an investigatory interview or a continuation of one; the post contains the reasoning.

TAKEAWAY: In a unionized workplace, not everything entitles employees to have representation present; know what does or does not.

In the post on Thursday 4/30/15, we learned that limo drivers were taken for a ride of their own. What happened? Drivers had to sign various documents, most of which they could not understand, to get paychecks. And those checks include deductions for things like vehicle repairs, uniforms, drug tests, fuel, and more (see the post). The deductions cause earnings to fall below minimum wage. The government investigated and the employer ended up paying over $230,000 to 479 employees on account of the back wages for which inappropriate deductions were taken.

TAKEAWAY: Make sure you have proper authorization (from the employee and under applicable law) to make deductions from a paycheck.

The post on Friday 5/1/15 was about a club you don’t want to join: background check lawsuit defendants. Who are some of the members of this club? Whole Foods, Check E. Cheese, Michael’s Stores, Dollar General, Panera, Publix, and K-Mart. They have all been sued for alleged violations of the Fair Credit Reporting Act (“FCRA”) related to background checks conducted by those companies on potential future or current employees. Some settled, Publix for $6.8M and Dollar General for $4M for example. What are some reasons an employer might want to conduct a background check? The employee is handling cash or is or on another person’s or company’s property. Background checks come within the ambit of “consumer reports” under the FCRA. The law requires that the employer first issue a clear and conspicuous disclosure, in writing, to the (potential) employee that a consumer report may be obtained. Then the (potential) employee must give a written authorization for the employer to obtain the consumer report. After that, the employer has to certify to the reporting agency that the report will be used for a permissible purpose and it has complied with the FCRA and applicable EEO laws. And that’s not all.  If, after obtaining the report, the employer intends to take adverse action – including a denial of employment or other decision that adversely affects an employee – there are required steps to take. See the post for some of them. An employer can be liable for damages for FCRA violations; negligent violations can result in liability for actual damages and reasonable attorneys’ fees/costs, while willful violations can result in actual damages or statutory damages between $100 - 1000 plus punitive damages and attorneys’ fees/costs. The post concludes with 10 steps to take to avoid becoming a member of this club; read the post and contact me if you need help in this area.

TAKEAWAY: Obtaining a background check on a (prospective) employee is neither simple nor a game; do it right or be prepared to fork over dough for a legal violation.

Finally, in the post yesterday 5/2/15, we talked about whether you can smack your harasser under Title VII. A federal judge in Philadelphia was faced with this question: does an employee who complains of sexual harassment and is later fired automatically lose the right to sue for retaliation because she smacked the harasser to beat back his attempt to grope her? The Judge said the answer depends on the context in which the smack occurred. If it was a stand-alone act, then that might result in forfeiture of anti-retaliation protection. If, however, it was because the harassment continued despite the employee’s complaints and employer’s alleged failure to take action, then there could indeed be liability for retaliation.

TAKEAWAY: It is never recommended that employees take physical action against each other, but there are certain circumstances where it will not only be warranted, but provide a legal cause of action to the employee.

Monday
Apr202015

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

On Sunday 4/19/15 we posted about the suit against Harvard and MIT for lack of closed captions. Yes you read that correctly. The suit alleges discrimination against deaf or hearing-impaired students as a result of a failure to provide closed captioning in online lectures, courses, podcasts, and other educational materials. The suit seeks class-action status and says that despite request, the schools provided no or only limited closed captioning.

TAKEAWAY: If something you do or put out there is for public consumption and covered by Title VII, make sure it is accessible.

The post on Monday 4/20/15 was about making sure your FMLA policy covers all of the basics. Sounds like an obvious thing, right? Not so for one employer, the Kalamazoo County Road Commission. The court reiterated that the law requires the person to have been employed by a covered employer for 12 months, to have worked 1250 hours during that 12-month period before the requested leave begins, and to work at a location where the covered employer employs at least 50 employees within a 75-mile radius. The employee in this suit met the first and second criteria, but the Commission did not meet the third. Despite that, it sent him a letter saying he was eligible for FMLA leave. More details are in the post. The matter will now go to a jury to decide whether or not the employee relied on that letter in seeking medical treatment.

TAKEAWAY: Know what each law requires and whether or not it covers you or your employees.

In the post on Tuesday 4/21/15, we noted that Walmart is to pay $150,000 to settle an EEOC age and disability discrimination suit. The suit alleged discrimination on the basis of age against the manager of the Keller, TX store and refusal to provide him with a reasonable accommodation for his disability. What did Walmart supposedly do? Frequent taunts from his direct supervisor including “old man” and “old food guy” and ultimately discharging him. Refusing to engage in the interactive process after he requested reassignment to a store co-manager or assistant manager position due to his medical condition and eventually rejecting the request. The suit was filed in March 2014 after conciliation failed.

TAKEAWAY:  It’s bad enough when one employee harasses or discriminated against another, but it’s especially egregious when a supervisor commits the action. Make sure your managers/supervisors are properly trained (and disciplined when necessary).

The post on Wednesday 4/22/15 reminded us to think ahead about summer interns and their pay. Who to hire. And whether they qualify as interns for pay purposes based on recent court decisions.

TAKEAWAY: Summer internships seem to sprout with the flowers, but the former require much more forethought by employers wishing to stay out of legal hot water.

In the post on Thursday 4/23/15, we learned that a bonus scheme linked to attendance was discriminatory. This is probably a scenario you’ve heard or read about time and again: an employee too disability-related time off and received a poor evaluation or no bonus as a result of absences related to the disability. The case was from a foreign jurisdiction, but the premise still applies under US federal law(s).

TAKEAWAY: Don’t take into account any disability-related absences when evaluating performance or giving bonuses.

The post on Friday 4/24/15 was about hiring and firing – the legal way. What does that mean? That you should be familiar with relevant laws and know what you can or cannot do as part of the application, interview, hiring, discipline, and discharge processes. The post mentions a few laws; some or all may apply to your business. It is always good to have an employment law attorney only a phone call away in case an issue arises (which it will do occasionally) or to guide you proactively (and defensively).

TAKEAWAY: Do things the right way from the get-go and it will help you avoid or minimize liability or, at least, provide you a good defense in case of charge or suit.

Finally, in the post yesterday 4/25/15, we talked about how businesses can avoid the legal risks of using social media. Yes, you want to use social media to attract clients or customers to your business. But you also want to protect your business and your brand from harmful socmedia interactions. The post mentioned some areas where having a social media policy is helpful; they include general employment and confidentiality and privacy. Any policy should be specific enough to cover what is necessary but broad enough to provide discretion; it should also be legally compliant, which, given recent judicial and administrative actions, may result in frequent revision.

TAKEAWAY: Even if your company doesn’t partake of social media, your employees might, so you need a policy that deals with its use. Have an employment law attorney prepare that policy for you and review it frequently in case of needed revision.