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.

Monday
Apr132015

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

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

On Sunday 4/12/15 we posted about a former Kutztown University professor settling a sex discrimination suit. After termination, the former professor sued, alleging it was because he was male. The parties settled the case, with no admission of guilt or liability and payment to him of $40,000. So what led up to the discharge? He received a negative evaluation in 2011. That was his fourth year at Kutztown and the department’s chair had changed the evaluation process to include evals from 3-5 department members; he received 3 votes from female colleagues against his continued employment and 2 votes from male colleagues in favor of continued employment. The tenure committee still voted to continue his employment but he was still discharged. The suit was filed in 2013.

TAKEAWAY: Suits may or may not have merit, but when an employer considers the time and monetary resources it will take to defend, sometimes the best way to proceed is to settle with no admission. A good employment law attorney can advise on this and other facets of the case.

The post on Monday 4/13/15 was about the legal edge of employee computer use. If you are unfamiliar with the civil side of the Computer Fraud and Abuse Act, get your coffee and keep reading. So how does this work? The law says, in part, that “any person who suffers damage or loss … may maintain a civil action against the violator to obtain compensatory damages or injunctive relief or other equitable relief.” There is individual liability under the statute if the person “intentionally accesses a protected computer without authorization and as a result of such conduct causes damage and loss.”

TAKEAWAY: The key to a potential suit and recovery can be authorization; employers should be vigilant in this area and aware that court decisions have varied as to breadth of the definition of “authorization”.

In the post on Tuesday 4/14/15, we clarified that when the bell rings, act! Here, the outer bounds of the ADA were tested in a workplace threat case. What happened? A warehouse worker began suffering from severe depression along with homicidal thoughts. He sent a note to his supervisor while at work: “I’m scared and angry. I don’t know why but I wanna kill someone/’anyone. Please have security accompany you if you want to talk to me. Make sure, please. I’m unstable. I’m sorry. Taj.“ During the next three weeks, he kept trying to tell the employer of his depression diagnosis and need for medical care; he even asked about his insurance coverage. After those 3 weeks, the employer terminated him for posing a direct threat. Not surprisingly, he sued, alleging that the real reason for the discharge was his disability. The employer said the threat required the discharge. While the judge recognized the employer’s dilemma, he also took note of the 3-week delay before the employer acted. That was fatal to the employer’s request that the case be dismissed.

TAKEAWAY:  When an employee rings the bell, respond. Immediately. Delay can be harmful in so many ways.

The post on Wednesday 4/15/15 told us that resisting change in a work assignment can lead to a valid termination. The employee worked at the company for about 10 months; during that time, he had performance issues. In October, his supervisor told him about changes to his work assignment that would not change his pay, hours, location, or supervisor. He refused the new assignment so the company fired him. He sued, alleging race (African-American) and age (69) discrimination. The trial court found that the changed assignment was not adverse since it did not affect hours, pay, work location, or general duties and so dismissed the case. He appealed, now alleging the adverse decision was the termination and not the changed work assignment. On appeal the court again dismissed his suit; it said that his performance mistakes gave the employer a legitimate reason to change his work assignment and his refusal to accept the new assignment then gave the employer a legitimate reason for termination. Score 1 for employers!

TAKEAWAY:  If an employer has a legitimate, non-discriminatory reason for discharge (or other adverse action), and the employee cannot show to the contrary, any suit should be dismissed in favor of the employer.

In the post on Thursday 4/16/15, we learned about the pros and cons of solely using electronic employment applications. Pros include easier processing (due to electronic sorting and searchability); consistency among applications (both in information requested and format); and ease of tracking and analyzing data. Other pros are in the post. Cons include the inadvertent exclusion of qualified applicants without internet access; possible (unfair) rejection of an application based on software parameters; and increased number of applications due to ease of electronic application. Other cons are also in the post.

TAKEAWAY: Employers must decide whether the pros outweigh the cons or the other way around and whether it might be best to accept both electronic and paper applications.

The post on Friday 4/17/15 talked about an employer’s creation of a policy for employee social media posts being a good idea. Your company has policies for other employee actions, why not social media? Whether it is the employer’s social media or the employee’s personal social media, the employer can still be damaged as a result of the employee’s action. The employer should immediately take action, which involves an investigation and possibly discipline up to and including termination. The employer may also have to take to social media itself.

TAKEAWAY: Employers certainly have the right to protect themselves and their brand, but must be careful about adverse action against employees speaking out on social media in certain conditions’ employers should discuss any planned action with an employment law attorney prior to the action being taken.

Finally, in the post yesterday 4/18/15, we talked about a former Bloomberg correspondent filing a pregnancy-bias suit and how to deal with pregnancy in the workplace. What happened? The employee, Megan, claimed she was pulled off stories after she informed the company about her pregnancy. When she wanted to work on a story about medical marijuana, she was told it would look “weird” and a male was assigned to do the story. Another time, when Megan wanted to work on election coverage, she was told “Don’t bother with midterms. You are not going to want to leave your baby.” Finally, she alleges that after telling the company about her pregnancy, another female junior producer with less experience and who was unmarried and without children, received more on-air assignments than Megan. Other allegations are also in the post. When she questioned why she was being fired, she was told Bloomberg eliminated her position and moved its political coverage to NY; she believed that explanation was pretext because 2 male correspondents in DC were not discharged. Megan filed suit in February. Stay tuned to the story …

TAKEAWAY: Again, if employers intend to take adverse action against an employee, especially one who might be in a protected class, the employer should have a legitimate, non-discriminatory reason for the action.

Monday
Apr062015

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

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

On Sunday 4/5/15 we posted about more charges against McDonald’s and franchisees under the NLRB’s joint employer theory. In case you have lost count, the prior 13 complaints with 78 charges are now supplemented by these 6 new complaints with 23 additional charges against McDonald’s USA for alleged illegal actions by its franchisees. Those actions include discriminatory discipline, reductions in hours, and discharges. The NLRB’s joint employer theory is founded on allegations of McDonald’s amount of control over franchisees’ operations other than related to the McDonald’s brand.

TAKEAWAY: The joint employer theory could have wide-reaching effect in the franchise world – and possibly could be extended to other things in the employment law arena.

The post on Monday 4/6/15 told us about an EEOC memo saying Title VII protects workers from discrimination based on sexual orientation and gender identity. The memo came out February 3rd. A portion of the memo states, “Individuals who believe they have been discriminated against becaseu of their sexual orientation should be counseled that they have a right to file a charge with the EEOC, and their charges should be accepted under Title VII and investigated as claims of sex discrimination ….” The memo also reaffirms protection for transgender workers under Title VII and notes that those charges will also be accepted and investigated as claims of sex discrimination.

TAKEAWAY: Employers must do business legally in this brave new world; one thing that has not changed is that employers should judge employees by performance and not other protected factors (such as sexual orientation and gender identity) that have nothing to do with the job.

In the post on Tuesday 4/7/15, we warned you to beware the generosity of volunteers that could result in a perceived employer-employee relationship. What does that mean? A federal court was faced with the question of whether the work of unpaid volunteers closely resembled that of paid employees (which makes a difference in entitlement to Title VII protection). Here, the court went beyond the normal right-to-control test and the fact that the volunteers were not paid, saying those were only factors to be looked at in the overall assessment. Here, the court ruled in favor of the employer (finding only a volunteer relationship).  

TAKEAWAY:  This is another proper classification issue - employee or volunteer - and has legal ramifications, so make sure you do it right.

The post on Wednesday 4/8/15 told us that often a (threatened) discharge will result in allegations of discrimination, harassment or more. Here, an elected official in FL threatened to push to fire the City Attorney; she, in turn, accused him of gender and race discrimination and creating a hostile work environment. The allegations are now under investigation.

TAKEAWAY:  Regardless of the timing, employers must make sure to promptly investigate all claims if discrimination and harassment.

In the post on Thursday 4/9/15, we learned about the EEOC claim that WalMart discriminated against a lesbian employee – and that $100,000 in medical bills is at stake. The employee worked in a Boston-area store; she sought health-care coverage for her sick wife beginning in 2008 but WalMart didn’t provide it until 2014 (when it expanded its policy to include same-sex couples). In 2012 the employee’s wife was diagnosed with cancer. The parties are attempting to settle matters as ordered by the EEOC.  

TAKEAWAY: For a business in a state that recognizes same-sex marriage (as does PA), treating an LGBT employee differently can be deemed illegal discrimination.

The post on Friday 4/10/15 talked about an Atlanta ex-fire chief who sued (on religious and freedom of speech bases) after being discharged for writing a book slamming homosexuality. In his 2013 book, he called homosexuality “vulgar” and “the opposite of purity”. He is seeking a return to work along with back pay (but no other monetary damages or legal fees). He also filed a charge with the EEOC. In defense of the city, the Mayor said the discharge was due to questions about the chief’s judgment and managerial abilities raised (and possible policy violation) based on the book. Stay tuned …

TAKEAWAY: Employers must be careful to separate personal beliefs from job performance, especially when one does not implicate the other; commingling the two may result in the employer being in legal hot water.

Finally, in the post yesterday 4/11/15, we again talked about employees versus independent contractors and the consequences of misclassification. What areas can be implicated by an erroneous classification? Taxes. Health care. See the post for more.

TAKEAWAY: It is always a good idea for an employer to refer any questions about proper worker classification to an employment law attorney.

Monday
Mar302015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Mar232015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Mar162015

ICYMI: Our Social Media Posts This Week -- Mar. 15 - 21, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Mar092015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Mar022015

ICYMI: Our Social Media Posts This Week -- Mar. 1 - 7, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Feb232015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Feb162015

ICYMI: Our Social Media Posts This Week -- Feb. 15 - 21, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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