Monday
Sep212015

ICYMI: Our Social Media Posts This Week -- Sept. 27 – Oct. 3, 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 9/27/15 told us the Supreme Court will decide when the limitations period begins to run for constructive discharge discrimination claims. Yep, that’s a mouthful! You all know that there is a deadline for the filing of charges of discrimination – here the Court will decide what that deadline is in circumstances when the employee alleges s/he had to quit. In the case before the Court, a postal worker alleged that he had to choose between forced retirement and a demotion & transfer to a different position. He quit and filed charges of race discrimination. The Service asked for dismissal on the grounds that the charge was not timely filed. The question was whether the time started to run from when he was given the choice or when he resigned. There is a split among federal courts on this issue.

TAKEAWAY: This case will have an impact on many situations involving constructive discharges, so keep an eye and ear out as this progresses.

In the post on Monday 9/28/15 we learned that a BigLaw firm got hit with an ADA suit. It happens to everyone. Here, a suit was filed against Pepper Hamilton alleging violation of the ADA (termination in retaliation for seeking reasonable accommodation for a disability).  The facts are in the post and make for interesting reading.

TAKEAWAY: It doesn’t’ matter who the employer is but it still must meet its obligations under the ADA (if the employee is entitled to that law’s protections).

In the post on Tuesday 9/29/15, we talked about when a general contractor is an employer of the sub’s workers (a variation of the employee versus contractor quagmire). The case at issue dealt with liability of one who is not the direct employer under Title VII. The general contractor (GC) hired a subcontractor which in turn hired another sub, UCI, for the project. UCI hired Walter as foreman. UCI had no relationship with the GC. UCI paid Walter’s salary and benefits and set his hours. UCI’s superintendent got instructions from the GC and relayed the instructions to Walter, but that happened only if the GC found the finished product unsatisfactory. However, the GC controlled premises access and required all subcontractors’ employees to attend safety training meetings. SO at one point Walter got into an altercation with another subcontractor’s employee. The GC’s superintendent required that Walter and the other employee be permanently removed from the project. Since UCI had no other work for Walter, that left him unemployed. He eventually filed suit, alleging removal form the site due to race (since an altercation on the site between white workers did not result in adverse action). The trial court said the GC was not Walter’s employer. He appealed. The appellate court then addressed what factors are to be considered in determining if a person or entity is an employer. Those factors, and the court’s application of the case facts to them, are in the post.

TAKEAWAY: Especially now, after the NLRB’s joint employer liability ruling, it is oh so important to know whether you might be considered an employer of those not on your payroll. Talk to an employment law attorney if you’re not sure.

The post on Wednesday 9/30/15 was about DOL and beware turning employees into owners. It’s great to think outside the box, but not always so great when the box contains the laws that an employer must follow. Details are in the post; here some employers tried to make employees into owners to avoid paying overtime, worker’s comp, and certain taxes; DOL, after a years-long investigation, shut down the practice and now the companies have to pay over $700,000 in back pay, taxes and damages. Another case ended with that employer being subject to a $600,000 judgment.

TAKEAWAY: Whether employer or employee, have your attorney review in advance any restructuring that changes the employment relationship.

The post on Thursday 10/1/15 was a sexual harassment case reminder for employers: trying to stop harassment is a protected activity. This stems from an employee telling a sexually-harassing supervisor to stop and a finding that was protected activity. Both the discharged female employees and a male employee who objected to their discharges filed suit; under a cat’s paw theory (if you don’t know what that is, contact me!) the employer was held liable.

TAKEAWAY: Not only should employers not allow sexual harassment or discrimination, they shouldn’t allow retaliation arising from someone trying to stop or report the underlying harassment/discrimination.

The post on Friday 10/2/15 was about a 19-year employee who dues for an FMLA violation. Brad alleged employment for over 19 years and needing extensive medical leave in 2014 for 2 separate instances needing hospitalization, surgery and recovery. Background facts are in the post; the case centers around Brad’s request and need for FMLA leave and whether or not he suffered adverse action as a result. The suit is pending.

TAKEAWAY: If an employee is eligible for FMLA leave, don’t retaliate against him/her for taking that leave; merely make him/her follow the letter of the law and move on.

Finally, the post yesterday 10/3/15 talked about when disabilities post a direct threat in the workplace under the ADA. Why do you care? Because the obligation to accommodate is not triggered if there is a direct threat to the health or safety of the employee or others in the workplace. Here, a federal court looked at what can constitute a direct threat. Michael was legally blind; when his original job was eliminated, he was offered a higher-paying warehouse job if he passed a physical. He did, but the doctor said he needed accommodation for his impaired vision. The employer determined it couldn’t reasonably accommodate and so rescinded the job offer. Michael then filed a charge of disability discrimination with the EEOC, which then sued the employer for violation of the ADA. The employer then came out with a direct threat defense based on his impaired vision and the job being in the warehouse. The court’s holding is in the post.

TAKEAWAY: The “direct threat” prong is still underused but that may change I the future, so employers need to be aware of it, how it works, and what they need to show to avoid liability using that defense.

Monday
Sep212015

ICYMI: Our Social Media Posts This Week – Sept. 20 - 26, 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 9/20/15 we noted that religious discrimination can include non-religion (atheism) too. The Wisconsin city in the news recognized this and banned discrimination on account of “nonreligion” too – very forward-thinking! Go to the post for more details on how they did it.

TAKEAWAY: Remember that religion is whatever the person believes, and believing in nothing (atheism) can be such a belief that entitles the holder to legal protection.

The post on Monday 9/21/15 asked if the Baltimore City FD will pay $60K to settle a disability discrimination case. A former firefighter alleged discrimination when, after suffering a seizure and being given prescription medication, he was not allowed to return to work. He filed a charge with the EEOC but it looks like the case will settle prior to suit being filed.

TAKEAWAY: Whether or not a case has merit, it is often better to settle it and avoid the (nuisance of) financial and human resources that will be invested to investigate and respond to any charges, to say nothing of the legal fees for the charge and any ensuing suit. Of course, the easiest out is to ensure no discrimination …

In the post on Tuesday 9/22/15, we talked about what HR needs to know about tracking employee time. No, not just time clocks. Time records. The questions asked and answered in the post are whether managers can alter time sheets (to correct them), whether exempt employees can be required to submit time sheets, and how to prevent employees from falsifying time records. All are important and impact on an employer’s obligations under the FLSA.

TAKEAWAY: Know the answers to these and other pay- and time-related questions; make sure there is no liability under the FLSA. Contact an employment law attorney if you have questions about compliance.

The post on Wednesday 9/23/15 was about don’t ask, don’t tell and the law on invisible disability disclosure. This started (ok, was further brought to light) by the recent plane crash caused by the pilot with a history of depression. Mental illness often goes untreated and even more often is invisible in the workplace. Employers can’t ask questions (except under certain circumstances) and employees are scared to talk about it for fear of repercussion (even though that would probably be illegal). The post gives some examples of how the issue can be addressed, including when the employee is a threat to him/herself or others in the workplace and when the disability is obvious.

TAKEAWAY: Even though mental illness can be a very real disability, unless an employer knows about it or has reason to suspect it, every employee must be treated the same and judged solely on performance.

The post on Thursday 9/24/15 was about an employer’s dawdling that revived an employee’s retaliation claim. Got your attention? In the case here, an employer said, in response to an employee’s retaliation suit, that it had decided to discharge prior to the employee’s filing of an EEOC charge. Great, right? Keep reading. Linzie started his job in 2007. In June 2010, he received a warning; later that month, he filed an EEOC charge alleging race discrimination and retaliation. In September 2010, he filed suit. More of the timeline is in the post, but the employer claims that it decided to terminate “on or about” 10/14/10, 9 days prior to learning that Linzie filed another EEOC charge and 10 days before actually terminating him. He filed another suit (of course) alleging retaliation for the first EEOC charge. The appellate court reversed the trial court and sent the matter to a jury, finding that the timing of the discharge was suspicious, especially when there was no documentation of a critical event and the employer’s “dawdling” after a meeting.

TAKEAWAY:  Don’t wait for a judge or jury to decide if the facts you allege are credible and support your legal position – make sure to have the supporting facts in place before an adverse action is taken.

On Friday 9/25/15, the post told us about a suit filed by a transgender Barnes & Noble employee who was denied female identity. This author thinks we will see more and more of this type of matter in the workplace as gender identity issues take the forefront and the legal world tries to catch up. So what happened here? Victoria, a transgender woman, claimed that her managers refused to allow her to present as female at work (by not recognizing her as female, prohibiting her from using women’s facilities, female pronouns or even discussing her transition with coworkers) and then fired her when she stopped complying. More details are in the post. It’s ironic that this suit happened when Barnes & Noble has been touting its “perfect score” on the Human Rights Campaign’s Corporate Equality Index for 7 years. Stay tuned to the news to see how this one progresses.

TAKEAWAY: Employers must remember that the EEOC has said that gender identity comes under the gender discrimination heading, such that it must be dealt with in the same manner, i.e., no different treatment unless the job requires it.

Finally, the post yesterday 9/26/15 was about an HR director who alleged race discrimination (and asked if she was right). The allegations were made by the HR director for the University of Oklahoma athletics department on the basis of race, gender and disability. The school denies the allegations. Details of the allegations are in the post, but include unequal employment conditions and a lower salary and benefits due to gender and race.

TAKEAWAY: Have you heard it before? To avoid legal complications, treat all similarly-situated employees the same, regardless of gender, race, or disability (or any other protected or other basis) and make job performance the only differentiating factor.

Monday
Sep142015

ICYMI: Our Social Media Posts This Week – Sept. 13 - 19, 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 9/13/15 we learned the EEOC’s take on harassment – and how not to become a defendant. After a $1.5M verdict against a NC company, it’s time to look at how you can avoid the same thing. 3 female employees alleged that their male supervisor sexually harassed them and then retaliated when they objected to the harassment. The suit also included charges by a male supervisor who opposed the other supervisor’s harassing actions and supported the female employees. The post includes some of the employer’s mistakes, including not giving temporary employees a handbook (which contained the company’s sexual harassment policy!) and having a supervisor who thought he was invincible (hence his statements that “he wasn’t going to get in trouble, that he ran the area, and that anybody who went to Luanne on him would be fired.” More mistakes are in the post.

TAKEAWAY: Train your employees not to harass or discriminate against other employees (whether subordinate or otherwise) and make sure they act the way they are trained.

The post on Monday 9/14/15 noted that the timing of a discharge can create a factual question re associational discrimination. First, remember that it is not only illegal to discriminate against someone due to their own disability/medical condition, but also due to the disability or medical condition of anyone with whom they associate. The latter category is now seeing more lawsuits. Here, Terry was discharged in March 2012 after 22 years. He filed suit for associational discrimination under the ADA and retaliation under the FMLA based on his wife being diagnosed with cancer and its effect on the employer’s partially self-funded health insurance. More facts are in the post, including the employer’s asserted defenses of poor performance (despite a 2011 review noting improvement from 2010 and having nothing negative) and workforce reduction (except that Terry was the only one terminated at that time). The Court said that the timing was fishy, creating a question of fact, so the case was sent on to a jury trial.

TAKEAWAY: Before taking adverse action, make sure there is a legitimate business reason for doing so – otherwise you might find yourself and your company on the wrong side of the law.

In the post on Tuesday 9/15/15, we talked about avoiding job applicants who smoke and whether snuffing out smokers is discriminatory. In all but 18 states, the answer is no. PA is one of the states that has no law prohibiting discrimination against tobacco users. That means employers can refuse to hire applicants who use tobacco. Further, hiring non-smokers helps the company’s overall wellness which can be important for insurance purposes.

TAKEAWAY: Not everything an applicant (or employee) does is legally protected; smoking is but one example where adverse action can be taken legally.

The post on Wednesday 9/16/15 was about an EEOC question: is your corporate wellness program really voluntary? Hmmm. Earlier this year the EEOC issued proposed guidelines regarding wellness programs under the ADA – how employers can use incentives to encourage participation in programs that might include disability-related questions or medical exams. The first thing the EEOC proposed is that any program penalizing employees (through discipline, termination or cancellation of health insurance) will be considered involuntary and illegal under the ADA. If, however, the total allowable incentive is less than 30% of the total cost of coverage for the employee, the program will be considered voluntary. Other EEOC guidelines are in the post.

TAKEAWAY: It’s great to encourage employees to act in ways that will improve their health (and the company’s bottom line for insurance costs), but it must be done legally, meaning voluntarily.

The post on Thursday 9/17/15 was about religious dress and grooming in the workplace – still a big (legal) deal. Can your company require certain dress or grooming from its employees, especially for image, branding and morale? Absolutely. BUT you cannot interfere with an employee’s sincerely-held religious beliefs, so you may need to make exceptions as long as there are no safety or other legal concerns. The post talks a bit about an employer’s responsibilities to accommodate religious beliefs and when accommodation might not be required. An employment law attorney should be able to help you with this type of issue.

TAKEAWAY: Whether your company is small or large, you need to know the law relative to dress and grooming when it comes to employees’ religious beliefs.

On Friday 9/18/15, the post reminded you not to just dismiss a doctor’s clearance or you may be on the short end of a pregnancy discrimination suit. This employer found out the hard way and is paying $17,500. The EEOC filed suit, alleging the employer fired Maria a mere 9 days after she told them she was pregnant. Even though she had a doctor’s clearance to continue working – without restrictions – the employer, saying it was for her safety and company liability, discharged her. The settlement includes the monetary payment and other items as in the post.

TAKEAWAY: As we’ve said many times before, and probably will many times in the future, don’t take adverse action on the assumption that someone cannot perform his or her job – just maintain the status quo until you see it happening or have a doctor’s note with restrictions.

Finally, in the post yesterday 9/19/15, we talked about a university paying $3M for alleged ethnic discrimination and retaliation. The initial suit was filed over 10 years ago and just now got to this point (after a state appellate court ruling). The suit claimed that the school increased the Japanese-American employee’s workload after he complained about discrimination.

TAKEAWAY: If an employee complains (about discrimination or anything else), don’t take adverse action or otherwise retaliate against him or her; rather, investigate and take appropriate (legal) action as warranted under the circumstances.

Monday
Sep072015

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

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

In the post on Sunday 9/6/15 we saw that it just keeps coming: the NLRB’s assault on employee handbooks – potentially illegal workplace rules and policies. ALL employers, not just those with unionized workforces, must pay attention. Why? Because certain rights under the National Labor Relations Act are guaranteed to ALL employees and the current Board is applying the relevant provisions very broadly. If a rule or policy is found to chill employees in the exercise of their statutory rights, or if they would possibly construe the rule as doing so, or the rule was adopted in response to union activity or has been applied to restrict the exercise of statutory rights, then the rule/policy is illegal. The post talks about some areas where the NLRB has been extremely active in knocking down rules, including at-will employment contract disclaimers and confidential information rules and policies. More are in the post.

TAKEAWAY: Keep in mind that while your handbook or manual may not be a contract of employment, it is still a document with legal implications. Make sure yours passes legal muster in all respects, including the NLRA, by having it reviewed by an employment law attorney.

The post on Monday 9/7/15 (Labor Day) noted that FMLA leave requires more than 1 doctor’s visit (and cautioned that you should know the nuances of the law). In this recent federal case, Kendrick Johnson was scheduled to work May 1-15, 2011. Early on, he told his supervisor he wasn’t feeling well (giving details); when Johnson was unable to get through to an employee relations supervisor, he left a message that he was going to see a doctor. The doctor diagnosed Johnson, prescribed medication, and told him to go to his regular doctor. He also gave Johnson a note that he could return to work May 16th. Johnson then gave the note to a supervisor. The next day, employee relations told him he needed a different doctor’s note; Johnson brought in one from a paramedic but that was also deemed insufficient. After a short suspension, Johnson was terminated. (NOTE: more complete facts are in the post.) The employer never gave him notice of his FMLA rights and obligations. Johnson sued for FMLA interference and retaliation. What doomed Johnson’s case was the lack of evidence of follow-up treatment within the statutory 30 days such that he couldn’t meet the “continuing care” requirement. Also, the doctor he saw was not his regular doctor and so that visit didn’t come under the “regiment of continuing treatment” requirement. Since he wasn’t entitled to FMLA leave, there could be no procedural deficiencies, interference or retaliation.

TAKEAWAY: Know what the FMLA requires of both employees and employers, including whether one doctor’s visit satisfies the statutory requirements to trigger a leave.

In the post on Tuesday 9/8/15, we talked about a blatant employer violation leading to a $20,000 settlement in a pregnancy discrimination case. The employer was an assisted-living facility. It hired the employee to work as a kitchen assistant; on the first day, the employee told her supervisor that she was pregnant. A mere 3 hours later, she was terminated (and replaced by someone who was not pregnant). She was told she could reapply after giving birth. It should come as no surprise that the EEOC filed suit (after being unable to reach a settlement through conciliation).

TAKEAWAY: Don’t assume that pregnant employees cannot do the job for which they were hired. In fact, don’t take any action relative to pregnant employees unless you would take the same action relative to an employee who was not pregnant.

The post on Wednesday 9/9/15 told us that a reference search through social media doesn’t create an FCRA claim. This is good news as more and more employers use every available means to find out information on applicants and employees. In this case, what was challenged was the employer’s LinkedIn search as an alleged violation of the Fair Credit Rights Act. One name plaintiff (in the class action) alleged that she had applied for a position through LinkedIn, was hired after a telephone interview, and a week later had the offer rescinded based on the employer’s referenced review through LinkedIn. The cited search function lets paid subscribers obtain (1) the name and list of the search target’s current and former employers and (2) a list of other LinkedIn members in the same professional network of the search initiator who may have worked at the same company in the same time period as the search target. LinkedIn then generates results; what is included is in the post. The court dismissed the claim, ruling that the FCRA applies only to “consumer reporting agencies” that provide “consumer reports” and that the search here did not meet the definitions.

TAKEAWAY: Not all socmedia searches that are legally challenged will end up with a result as favorable as this one – employers must be careful that they are legally compliant in all aspects of hiring. Working with an employment law attorney is a good way to accomplish that.

The post on Thursday 9/10/15 asked if you are using a particular term and answered that if you are, just open your wallet. Yep, another “digital native” warning. Employers used to say “new grad”, meaning younger persons (which could also be legally problematic), but now have moved to “digital native”. The post lists some large companies whose ads included that term and noted that the term is merely a back-door to age discrimination. Why? Because while older persons may know technology, they didn’t grow up with it and supposedly always have a hint of the pre-tech age in them. It is interesting that (according to the post) the EEOC filed 111 charges in 2014 for job advertisements discriminating against older applicants.

TAKEAWAY:  While it is best not to use this term when advertising for applicants, the term alone probably won’t result in legal liability. However, if there are other relevant facts, then liability may lie at the feet of the employer.

On Friday 9/11/15, the post noted that an informal complaint to a supervisor about pay bars retaliation under the FLSA. This case follows a Supreme Court case ruling that oral complaints satisfy the law if they are sufficiently clear and detailed for the employer to understand. What the Court did not decide was whether verbal complaints without any administrative procedure still raise whistleblower (and anti-retaliation) protection. Here, in a federal case, the court extended that protection to information verbal complaints made to a supervisor. The facts are in the post. The court said that the FLSA does not require the employee to undertake the administrative process to receive anti-retaliation protection.  QUERY: would this case come out the same if the supervisor wasn’t the owner?

TAKEAWAY: When an employee complains, whether in writing or verbally, note the complaint, investigate and take appropriate action. Do not retaliate against the complaining employee for making the complaint.

Finally, in the post yesterday 9/12/15, we talked about 3 strategies to get the lowest possible debt settlement. What does that mean? Paying less than you owe on a debt. So what types of things might give you leverage? Delinquent taxes and child support might help settle credit card debt. This is because in most states, even if the credit card company gets a judgment against you, it will stand behind the IRS and person to whom you owe child support if it (the credit card company) tries to garnish wages – if you work in a state where that is allowed such as Maryland. Two other times you might have debt negotiation leverage are in the post. You might also consider consulting an experienced debtor-creditor rights attorney who is used to handling this type of matter.

TAKEAWAY: Negotiating and settling a debt can be a better alternative to filing for bankruptcy if it resolves the situation; knowing when you might have leverage in the negotiation process is important to that end.

Monday
Aug312015

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.

Tuesday
Aug252015

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.

Monday
Aug172015

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.

Monday
Aug102015

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.

Wednesday
Aug052015

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).

Wednesday
Jul292015

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.