Wednesday
Feb112015

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

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

In light of the upcoming holiday, on Sunday 2/8/15 the post was about whether an employer can prohibit employees from dating one another. Problems with employee romances include loss of productivity, security issues, favoritism, and charges of sexual assault or harassment. So can employers legally prevent employees from dating? Probably. But such a ban leads to its own problems (and tempts some to try to violate it anyway).

TAKEAWAY: Office romances happen, but to protect your business, put in place a policy that deals with it; one good provision is not to permit those in a romance to be in the same chain of command. An employment law attorney can help with others.

The post on Monday 2/9/15 was about a court refusing to punish an employer who wiped its employee’s cell phone. What happened? The employee, who worked in the construction industry, had to use his own phone but he could access the employer’s computer and email. He gave notice and was terminated; shortly after, the employer remotely wiped his phone and returned it to factory settings. He sued under federal law (because he lost personal photos, contacts and other information). The court ruled in favor of the employer, finding the law not to be applicable.

TAKEAWAY: Don’t count on a favorable court ruling – put in place a BYOD policy that includes (among other things) what happens on termination of employment, whether voluntary or not, and gives the employer the absolute right to wipe clean the employee’s phone.  

In the post on Tuesday 2/10/15, we broke from legal topics for mythbusting the scuba diving Advanced Open Water course. What is it? One of the courses after being certified to dive whereby divers learn additional skills and continue to dive.

TAKEAWAY: It’s always good to learn, especially when it's fun. Scuba diving is no exception. Whether just starting out or diving for many years, there is always something new just around that next coral.

The post on Wednesday 2/11/15 was about 7 things employees say that you should not forget at evaluation time. What are some of them? (1) So managers won’t hear “that’s not in my job description”, include “other duties as required” in the job description. (2) IF an employee mentions that someone else doesn’t have enough to do, remind them that they don’t either if they have the time to watch others. (3) Don’t be made into a playground referee when an employee says s/he can’t’ work with another employee any more. Instead, review the situation to ascertain where the problem is. Other tips are in the post.  

TAKEAWAY: Feedback for employees is important year-round, but certain things should be mentioned (or mentioned again) during performance evaluations.

The post on Thursday 2/12/15 provided a quick guide to stop abusive debt collection calls. You know, those calls you get, often robo-dialed, when you are behind in paying a bill. So what can you do? First, send them a letter (keep a copy!) and ask them to stop calling. Under federal law, they must then stop calling; if they don’t, you have a claim against them. You could also hire an attorney; the debt collector then must contact only the attorney going forward. If they continue to contact you directly, that is also a violation of federal law that gives you a claim against them. The third suggestion is in the post.

TAKEAWAY: Creditors have laws they must follow when attempting to collect debts, but sometimes they don’t; you should know what you might be able to do.

In the post on Friday 2/13/15, we talked about sex discrimination in pay. Yep, it still occurs in this day and age. Here, it took a lawsuit by the Department of Justice to get Clark County, Nevada to conform to the law. The suit was filed alleging that the plaintiff was paid less than similarly-situated white and male county employees and that the County retaliated against her when she complained about the pay disparity. The County will be on the hook for $179,000 plus be required to take other actions.

TAKEAWAY: Don’t wade into deep (and illegal) water; pay employees according to their performance, not any other protected characteristic.

Finally, in the post yesterday 2/14/15, we wished everyone a Happy Valentine’s Day but also reminded you to keep love legal. For more, go to our post from 2/8.

TAKEAWAY: Employers may have in place policies regarding romantic relationships and the workplace; even without such policies, the workplace is for work, not dealing with personal relationships.

Monday
Feb022015

ICYMI: Our Social Media Posts This Week -- Feb. 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 2/1/15 the post asked if you are familiar with associational discrimination. What is it? you ask. It is adverse action taken against an employee based on who s/he associates with and not something the employee does. In this case, the employee cared for his father, which occasionally made him late to work. He was classified as an exempt employee and thus not subject to the tardiness policy; despite that, he was written up for being late. Also, his request for flex-time was denied. The last straw for the employer, Hartford Insurance, was when the employee arrived 26 minutes late but during his lunch hour; the employer considered that late and fired him. He sued for associational discrimination under the ADA due to the known disability of his father. The elements of associational discrimination are in the post. What was the employer’s downfall? Evidence that the employee’s work suffered as a result of the tardiness, discipline for subpar performance, and attempts to accommodate.

TAKEAWAY: Evaluate an employee based on his/her performance and nothing else (and, if necessary, engage in the interactive accommodation process to help the employee perform the essential functions of the job).

The post on Monday 2/2/15 was a reminder about the “regarded as” prong under the ADA and forcing an accommodation on someone when it is not requested.

TAKEAWAY: Short and sweet: if an employee doesn’t ask for an accommodation, don’t offer one.

In the post on Tuesday 2/3/15, we asked if you really know what your condo or homeowner association documents say. Those are legal documents that bind owners whether or not they like what the documents say.  Sometimes they are very strict about something that might prove important to you as an owner living in that community.   

TAKEAWAY: Just as with any legal document, make sure you understand your rights and obligations before signing (or, in this case, agreeing to purchase the home).

The post on Wednesday 2/4/15 was about why your business needs a social media policy for your handbook. Hopefully your initial response to the previous sentence is not “what is social media?” What are a few of the reasons listed as to why you should have a policy? Loyalty (to your business), SocMedia impact (on the public and potential customers/clients), and guidance (as to what employees can and cannot do). Others reasons are in the post.

TAKEAWAY: The use of social media can be beneficial to your business, but only if properly used and monitored by you, hence the need to have and uniformly enforce a policy.

The post on Thursday 2/5/15 was about the impact of an employee reporting sexual harassment after her own misconduct. The employee alleged that her supervisor sexually harassed her for years and that despite reporting the harassment to the store manager, nothing changed. Years later, she was suspended by the regional manager pending investigation into allegations of fake contracts. Two days after the suspension, she reported the harassment to the regional manager. After the investigation concluded, she was fired based on involvement in the fake contracts. She sued under a hostile work environment theory. The parties gave conflicting factual accounts of the harassment, her requests that it stop, and what she did to report it, such that the court denied the employer’s request to dismiss the harassment suit. However, the court did dismiss her retaliation claim since she did not report the harassment prior to being suspended pending investigation.

TAKEAWAY:  The court’s actions were based on the facts of the case, but teach that if an employer has good records, it might be able to defend itself against some or all allegations in a suit by a (former) employee.

In the post Friday 2/6/15, we asked if the cat’s paw got in your way. If you are asking “What?, keep reading. The cat’s paw theory espoused by the Supreme Court in 2011 says that if a supervisor does something motivated by discriminatory animus that is intended to cause an adverse employment action and is a proximate cause of the ultimate action carried out by someone else who has no evident discriminatory intent), the employer is liable to the employee. That case was brought under USERRA but the theory is continually being used relative to other claims. A few are listed in the post.

TAKEAWAY: Even if the ultimate decision is made by someone with no discriminatory intent, if that decision is influenced by someone who DOES have discriminatory intent, the employer might be liable for harm caused to the employee.

Finally, in the post yesterday 2/7/15, we talked about Saks Fifth Avenue, which extolls its LGBT policy, being sued for transgender discrimination. The employee filed suit in Texas, alleging a hostile work environment. While transitioning from male to female, the employee alleges she was forced to use the men’s restroom, being subjected to continued use of male pronouns by coworkers, and being fired. The EEOC found cause; she filed suit in federal court. However, Saks has asked the court to dismiss the suit, asserting that Title VII does not protect trans identity. This runs contrary to the EEOC’s holding 2 years ago that transgender workers are protected and the recent announcement by Attorney General Holder that federal prosecutors will take the position that Title VII protection includes gender identity discrimination. What makes the case more interesting is that contrary to Saks’ stance in the suit, it touts its high score on a human rights index, which includes gender identity protection.

TAKEAWAY: More and more states and local municipalities are enacting laws to protect workers on the basis of sexual orientation or gender identification; unless either has a true bearing on the job, don’t wait for the law, just look at whether the employee performs the job or not.

Saturday
Jan242015

ICYMI: Our Social Media Posts This Week -- Jan. 25 - 31, 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 1/25/15 was about whether an employer must pay a prorated annual bonus after the employee takes FMLA leave. This is normally an issue at the end of the calendar year but could kick in on whatever other time frame goal-based bonuses are awarded. Here, the statute itself answers the question. If the employee’s FMLA leave caused him or her to miss the goal, and others on non-FMLA leave who miss the bonus do not get pro-rations, then neither does this employee.

TAKEAWAY: Remember, the FMLA does not require special treatment in this situation, but only the same treatment as other employees not on FMLA leave.

In the post on Monday 1/26/15 we confirmed that “Is that how you clean your private parts” is not a question to be asked. Hopefully you already know that, but the employer that just got sued apparently didn’t. And there was more. The Filipino employee alleged that her supervisor referred to her as “Mamasan”, a term usually used for older Asian women who work in brothels. After complaining, she was first assigned other, harder duties, then fired. Is it any wonder she sued?

TAKEAWAY: Remember the Golden Rule: treat others (employees) the way you would want to be treated. It will make the workplace so much better, legally and otherwise.

The post on Tuesday 1/27/15 was another confirmation: “Your religion is stupid” is not a good statement to make to an employee. Hertz was on the receiving end of this suit by black Muslim employees for allegedly demeaning their religion and firing them after imposing arbitrary prayer rules for Muslims. Prior to suit, the EEOC issued a for-cause decision. A senior manager allegedly told one worker of East African heritage, “If you pray continuously, you will make us lose money and no Muslims will be hired.” More quotes allegedly made by Hertz are in the post.

TAKEAWAY: Unless religion has bearing on the job, don’t discriminate against any employee because of his or her (lack of) beliefs. Just let the employee do the job.

In the post on Wednesday 1/28/15 we talked about what you should document prior to issuing discipline. The answer depends in large part on your company’s policy and if there are any employment contracts that apply. Make sure you follow the policy or contract. If you are not sure what you may or may not do, contact your employment law attorney.

TAKEAWAY: As in most workplace situations, if there is a policy or contract that applies, follow it, uniformly, and have valid legal reasons for any variation.

The post on Thursday 1/29/15 was about how to handle a hostile work environment complaint. Hopefully it will never happen to your company as it did to Sears here, but you should be prepared. So what are some of the most obvious things to do? Maintain a clear policy against harassment and discrimination and apply it uniformly. Some other suggestions are in the post.

TAKEAWAY: If someone complains, don’t brush it under the rug – do a proper investigation and make sure to document and support any resulting (lack of) action to be taken.

On Friday 1/30/15, the post talked about retaliation being the new discrimination under the NLRA. Ok, you are a non-union business; can you tune out now? NO! Why? Because, in case you haven’t been reading this blog, the National Labor Relations Board has been finding more and more situations that apply to every workplace, not just those that are unionized. The post provides 4 tips for employers, including knowing how the NLRB defines protected activity and training management personnel on the NLRA. The other tips are in the post.

TAKEAWAY: You are not out of the labor woods just because your company is not unionized; you must still know the law and how it is or could be applied to your business. A good employment law attorney should be able to help you.

Finally, in the post yesterday 1/31/15, we talked about breaking down a sexual harassment claim. First, don’t just let it go – or you may find it comes back later in the form of a lawsuit. Investigate, properly and promptly, and take action as warranted depending on what the investigation turns up and what your policy requires.

TAKEAWAY: Make sure you, your HR personnel and your managers know how to recognize illegal sexual harassment and are trained in what to do when it is alleged to have or has occurred.

Monday
Jan192015

ICYMI: Our Social Media Posts This Week -- Jan. 18 - 24, 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 1/18/15 was about minimum wage requirements 101 – tips, applicable law, and more. As if it’s not enough to properly classify someone, you need to know if there are any limitations on their pay too. Keep in mind the FLSA, the PA Minimum Wage Act, and what can or cannot be deducted and if there are any exceptions or exemptions.

TAKEAWAY: As with many areas, a mistake in paying employees can be costly – check with your employment law attorney if you have questions.

In the post on Monday 1/19/15 we talked about the dollar value of employment law cases. Why should you care? Because despite your best efforts and having done nothing illegal, you may someday find yourself (or your company) as the subject of a lawsuit. Knowing how much it might be worth will go a long way toward settlement negotiations. So what types of things are taken into consideration when determining the potential value of the suit? Lost pay (if applicable), lost benefits (including insurance and retirement), lost bonuses, and other items listed in the post.

TAKEAWAY: You cannot prevent people from bringing suit against you(r company), so knowing how to calculate the potential value of the suit will help you begin settlement negotiations and, hopefully, arrive at a successful resolution.

The post on Tuesday 1/20/15 was about a Walmart pharmacist fired for a drug policy violation who will get a jury trial. Why do you care? Because the case lends insight into how courts may look at an employer’s defense to an employee’s accommodation request. Here, the employee slipped and fell at work; Walmart allowed her to take longer and more frequent breaks and to sit down some at work. After her doctor released her without restriction, she still took pain meds. About 6 months after that, she submitted requests (including from doctors) requesting a worksite evaluation inside the pharmacy by someone with HIPAA training. Walmart would only allow an evaluator outside the pharmacy window, saying there were privacy concerns. After another employee reported this employee’s work condition, Walmart fired her for violation of its drug policy. She brought suit, including alleging a failure to accommodate. The court found that while she did not complete the company’s required form, she submitted 2 doctor’s notes and spoke with her supervisor about the need to accommodation via worksite evaluation. Further, since Walmart had allowed third parties behind the pharmacy window in the past in certain circumstances and this person would be HIPAA trained, privacy concerns might be misplaced. Whether or not having the evaluator outside the pharmacy window as a reasonable alternative was found to be a jury question. The court also found there to be questions as to whether each party carried its burden and thus the case was ripe for jury consideration.

TAKEAWAY: As we’ve said before, if you have a policy, use it and enforce it evenly. If you don’t have a policy, don’t make up one for trial; the court (and jurors) will see right through it and you.

In the post on Wednesday 1/21/15 we posted about the latest zing against Zillow, this time for age discrimination. Jennifer, a 41-year-old sales employee, had a manager who asked her if she was “too old to close” and to “try to keep up with us.” The suit also includes allegations of wrongful termination (after an injury and requests for relief or accommodation from orders that she stand and make sales calls for several hours, and after contacting HR with no actionable result, she was discharged). Zillow, on the other hand, says that it did not receive the required documents for accommodation and thus deemed Jennifer to have quit. More facts are in the complaint embedded in the post.

TAKEAWAY: It is difficult enough for employers to deal with an employee in one protected class, much less more than one; employers must ensure that any (in)action by them is based on legally-permissible bases and supported by valid evidence, documents or statements.

The post on Thursday 1/22/15 takes us underwater diving with Google Underwater Street View – just like being there. Just look.

TAKEAWAY: Once you become enthralled by this, it’s time to experience it for yourself – get certified to scuba dive.

On Friday 1/23/15, the post was about an award of $300K punitive damages with only $1 nominal compensatory damages under Title VII. Three hundred thousand times the compensatory damages awarded as punitives – wow! So what happened? After trial, the jury awarded only $1 nominal damages and almost $870K punitive damages. Based on US Supreme Court precedent, the court then reduced the punitive award to $300K.

TAKEAWAY:  Even if the employee has little to no actual damages, the employer’s behavior can form the basis of a hefty punitive damages award under certain circumstances – don’t put your company in that position.

Finally, in the post yesterday 1/24/15, we talked about how jokes about pregnancy can give birth to a lawsuit.  What were some of the comments made by the optometrist employer? It’s ”too bad [worker] had to go and get pregnant” and he prefers to hire women with “dead eggs” rather than “viable eggs”. Small wonder a sex discrimination case was brought after he fired a pregnant employee! Even though the employer said she was discharged for falsifying time records (and violating other rules), the court said there was a cloud based on the pregnancy comments (which the employer tried to pass off as jokes). The court therefore sent the case toward jury trial.

TAKEAWAY: Employers need to train employees – and themselves – not to make jokes in the workplace. Even if the joke was truly meant to be humorous, it might backfire in a big, illegal way. Just don’t take the chance.

Monday
Jan122015

ICYMI: Our Social Media Posts This Week -- Jan. 11 - 17, 2015

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

The post on Sunday 1/11/15 was about a settlement by Amazon with the NLRB over a confidential wage policy. The issue was whether or not Amazon’s policy – which basically prohibited sharing of information among employees -- prohibited discussion of wages and working conditions, something that is guaranteed to even non-union employees under the National Labor Relations Act. The NLRB became involved when Amazon disciplined an employee for voicing concern over security in the parking lot, after which the employee filed a charge with the NLRB.

TAKEAWAY: Remember that certain provisions of the NLRA apply to all employees and violations will hurt the employer.

In the post on Monday 1/12/15 we talked about Speaking no Evil – 6 things managers should NOT talk about at work. Managers are usually pretty clear on the things they are supposed to tell those they supervise. They are less clear on what they should NOT talk about.  Some of the latter include race, color or ethnicity; sex or love interests; and religion. Three other things are in the post.

TAKEAWAY: Employers should make sure managers know what NOT to talk about to lessen potential liability for employers.

The post on Tuesday 1/13/15 was about the things to consider if buying a condominium or home in a planned community. The first thing to know is that both types of ownership are governed by a Declaration (of Covenants & Restrictions) (which must be filed in the land records) and Bylaws (which also are often filed). There might also be Rules or Regulations. Whether or not you agree with those documents, or how they might be amended in the future, you will be bound by them. Likewise, you may not agree with how the Association’s Board or Council spends monies generated by assessments or dues, but you will be bound by same (absent legal action). There are other things that also go along with owning a home in a community governed by an Association, so anyone considering this type of ownership should make sure to look (carefully) before they leap.

TAKEAWAY: Under PA law, you must be given certain documents prior to purchasing a home in a community governed by an Association. Make sure to review the documents yourself and, since they are legal documents, have them reviewed by an attorney so you will know both your rights and obligations.

In the post on Wednesday 1/14/15 we talked about how preaching from the boss can prompt a lawsuit, so don’t go there. Literally preaching – about one’s faith. Religion (or faith) has no place in the work environment (unless the employer is religion-centered), but people sometimes forget that and so want to share their beliefs that they go overboard. Unfortunately, this puts the employer at risk of liability for discrimination or harassment.

TAKEAWAY: An easy way to avoid the risk of charges or suit for religious discrimination is for all employees not to discuss their religion or faith in the workplace.

The post on Thursday 1/15/15 was a short VID about the myth of never falling in love with a scuba diver. The video shows amazing people and places and what scuba diving will bring to your relationship with the diver.

TAKEAWAY:  We all need a release from work. Perhaps it’s time for you to learn to dive and get that release?

On Friday 1/16/15, the post was about whether you can fire someone because of their boyfriend? The post talked about some things to take into consideration when thinking about this type of situation. I would suggest taking the recommendations (at the end of the post) in reverse order, with sending a cease & desist letter or contacting police first, especially if you want to preserve your work relationship with the employee.

TAKEAWAY: If you value an employee, look at the entire situation before just moving to discharge.

Finally, in the post yesterday 1/17/15 we talked about a simple primer on the ADA. We spent many posts last week, here, here, and here, talking about the ADA, but it invariably pops up in most workplaces in many ways, some that are unexpected. The post reminds us who is entitled to protection under the ADA, what types of things might be considered reasonable accommodations, and some circumstances under which the employer might not be required to provide an accommodation. These are just the basics.

TAKEAWAY: Every employer should know its rights and obligations under the ADA. Further, if it is not sure what it must do, it should consult with an experienced employment law attorney.

Monday
Jan052015

ICYMI: Our Social Media Posts This Week -- Jan. 4 - 10, 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 1/4/15 was about how actions speak louder than words, like a jury awarding $185 MILLION punitive damages in a pregnancy discrimination suit. Yes, million. The defendant employer, AutoZone, put the employee on a performance improvement plan and then demoted her, both shortly after the employee said she was pregnant. She then filed an administrative charge, got her right-to-sue letter, and filed suit. She was then fired and amended the suit to include other claims as well. So where did AutoZone fall short? Evidence that after finding out she was pregnant, the manager urged her to step down from being Store Manager due to the pregnancy and that she was given more work with shorter deadlines than male counterparts with worse-performing stores. But wait, there’s more. AutoZone also said it discharged her for a policy violation, but couldn’t identify the policy; also, it did not uniformly enforce the alleged policy when it didn’t discipline another employee for doing the same thing as part of the same incident for which this employee was discharged. At trial, the jury was obviously angry and awarded $25 million more in punitives than was requested.

TAKEAWAY: If you are going to assert a policy violation, you must actually have the policy and evenly enforce it.

In the post on Monday 1/5/15 we talked about a federal court ordering the NLRB Regional Director, acting for the Board, to pay more than $55K in attorney’s fees to an employer. And this was despite the NLRB being awarded much of the relief it requested in the suit! So what happened? The new owner of a company was told by Homeland Security that he could treat all employees as new hires and use E-Verify. He fired 4 of the “new hires” and the NLRB alleged the firings were due to their support for the union and therefore illegal. The employer offered to reinstate the 4 employees if they completed E-Verify (a requirement under that state’s law); the NLRB wanted unconditional rehire but the court disagreed. The court then granted the employer’s request for attorneys’ fees related to the unconditional rehire demand.

TAKEAWAY: There are limits to what the NLRB can get; here, due to the overreaching, the employer asked for and received an award of attorney’s’ fees.

The post on Tuesday 1/6/15 turned thoughts to warm weather and 5 ways scuba diving works your body all over. How, you ask? Head-to-toe toning (because water is heavier than air and provides more resistance while remaining low-impact). Crazy calorie burns – an average of at least 400 calories per dive. Better breathing – by increasing lung capacity, strengthening your respiratory system, lowering blood pressure, quelling depression, anxiety and stress-related disorders, and possibly cutting your risk of lung disease. The others are in the post.

TAKEAWAY: Scuba is not only fun but good for you. Consider adding it to your life (if you are not a certified diver) or diving more (if you are already certified).

In the post on Wednesday 1/7/15 we began to delve into the ADA and talked about knowledge and consistency – the 5 definitions to know about the ADA. You should definitely know what “disability” and “qualified individual with a disability” mean in the context of the ADA. “Disability” means someone who has a physical or mental impairment that substantially limits his/her ability to perform one or more major life activities, someone who has a record of such impairment, or someone who is regarded by the employer as having such an impairment. The term "disability” is very broad now thanks to the changes under the ADA Amendments Act. So what about “qualified individual with a disability”? That means the person has the skills, experience and other job-related requirements for the position. The other 3 definitions under the ADA that you should know are in the post.

TAKEAWAY: Administering the ADA’s provisions can be complex – employers and employees may not always be sure of their rights or obligations and should consult an experienced employment law attorney to help.

Continuing the ADA theme, the post on Thursday 1/8/15 talked about a $75K settlement of an EEOC suit for a rejected applicant with HIV. Yes, an applicant. The health staffing company refused to hire the person (to sit with patients at a VA hospital) because he is HIV positive.

TAKEAWAY: Remember that the ADA applies to employees AND applicants for employment.

On Friday 1/9/15, the post was about an employer that got slapped for not practicing what it preached. Here, a disability aid service fired an employee with a disability. First, the background. The deaf employee was an independent living specialist; he requested reasonable accommodations including TTY equipment, a video phone and the ability to text message. The employer rejected the accommodation requests, did not provide alternative accommodation, and finally fired him. The EEOC noted the hypocrisy of a non-profit whose mission is to help disabled individuals discharging an employee because of a disability. Ugh. Just ugh.

TAKEAWAY: Employers must take seriously their duty to engage in the interactive accommodation process if the employee has ADA protection – failure to fulfill its obligation can land the employer in legal trouble.

Finally, finishing up the ADA theme, in the post yesterday 1/10/15 we talked about the ins & outs of the ADA. We were first reminded that the ADA includes coverage for recruitment, hiring, placement, training, promotion, transfer, benefits, discipline and discharge. The ADA covers a qualified individual with a disability who, with or without accommodation, can perform the essential functions of the job. Assuming the person meets this threshold (which is not that difficult thanks to the ADAAA), the employer must then engage in the interactive accommodation process. Some types of accommodation are listed in the post, but the actual accommodation will vary based on the the situation. If the employer can show that providing an accommodation would be an undue hardship (which will vary with each employer and situation), it is excused from accommodation.

TAKEAWAY: An employer should take seriously its obligations under the ADA and try to accommodate a qualified individual with a disability – but the employer does not have to create a new position in order to accommodate.

Monday
Dec292014

ICYMI: Our Social Media Posts This Week -- Dec. 28, 2014 – Jan. 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.

Following recent holiday food excesses, the post on Sunday 12/28/14 was about whether obesity is considered a disability under the ADA. According to the EEOC, obesity can indeed be a disability under the ADA Amendments Act. This means that employers should probably just skip right to the next step, accommodation.

TAKEAWAY: The ADAAA broadened the definition of disability and brought more employees within its ambit; with more people becoming obese in the US, this means employers more often must accommodate someone in order that they can perform the essential functions of their job.

In the post on Monday 12/29/14 we talked about how to have productivity after the write-up. After making sure the write-up includes only facts as applied to any policy and sets out the discipline and any consequences for a failure to improve, make sure three things are properly in place: delivery by the manager, delivery to the employee, and follow-up. First, how the manager delivers the write-up is oh-so important; it helps if the discussion can end on a high note (something the employee does well and should continue). The other tips are in the post.

TAKEAWAY: It is hard enough to discipline employees, so if it’s going to be done, make sure to do it right and make it work for you.

The post on Tuesday 12/30/14 was all about timing: 5 must-have employment law resolutions for 2015. So what are the tips? 1. Revamp the employee handbook. Make sure it is current, both with your practices and applicable law. 2. Know your wage & hour compliance rules. This can help prevent any back wage liability in the future. 3. Fine-tune your harassment policy.  For all types of harassment and including what to do if harassment is experienced or suspected. And once you have the policy in place, follow it. Tips 4 and 5 are in the post.

TAKEAWAY: You should always know what laws apply to your company and your employees, but it is always good to start off a new year on the right foot by shoring up your employment practices and policies.

In the post on Wednesday 12/31/14 we talked about not letting the OWBPA put a rift in your RIF. While the economy is recovering, some employers still need to downsize and that may include employees over age 40. The law provides for certain things that must be in a severance agreement in order that the employee legally waives any potential age claims s/he may have. There are special requirements depending on the number of people over age 40 being laid off. Go to the post for more information and contact us for assistance.

TAKEAWAY: The safest course to take when ending the employment of someone over age 40 is to obtain a waiver of claims; that is done in a writing that must contain certain things or it will not be valid. It is a legal document; treat it as such.

The posts on Thursday 1/1/15, and here, our first of the new year, wished you a happy new year.

TAKEAWAY: May 2015 be your best year yet. We stand ready to assist with your employment law needs.

The post on Friday 1/2/15 talked about the difference between foreman and supervisor in workplace discrimination lawsuits. No they are not necessarily the same. The employer here had a policy that included race discrimination and a detailed reporting process. The African-American employee was under 2 Caucasian foremen who often directed racial comments to him and harassed him in other ways because of his race. Further, nooses were left around the jobsite and other things happened. The employee admits he didn’t tell management but did tell his union steward; he also alleged that the steward said he’d spoken with the superintendent of the jobsite where the employee and foremen worked and the superintendent was going to support the foremen and take no action on the complaint. The steward says he told the employee to make a written complaint. The employee quit and filed an EEOC charge. The general superintendent then became aware of a harassing text message and offered unconditional reinstatement (and plans to fire the 2 foremen). The employee filed suit. The trial court dismissed the suit because the foremen weren’t supervisors and there was no evidence that management know about the harassment prior to the voluntary quit. Based on a Supreme Court decision, the appeals court said that since the foremen didn’t have hire and fire authority, the employee had to show management knowledge of the harassment for the suit to proceed; he couldn’t and it didn’t. 

TAKEAWAY: Not only should employers do their best to prevent harassment and discrimination, but employees must know who is and isn’t authorized to act on behalf of the employer for legal liability purposes.

Finally, in the post yesterday 1/3/15 we recounted the Top 10 consumer debt myths. So what are they? 1. If a creditor charges off a debt, it is no longer owed. Nope. That just means they got it off their books, not that it is unable to be collected by someone else in the future. 2. Filing for bankruptcy lets me eliminate debt on my car and house. Again, nope. The bankruptcy filing rids you of personal liability on those debts, but if you want to keep the items you still have to pay for them (with limited caveats). 3. If I don‘t pay my debts, I will go to jail. Nope again. Debtor’s prisons went the way of the dinosaurs. However, the post details a few situations when jail can be a result. 4. If I don’t pay my credit card, my wages will be garnished. Maybe, but not until after suit is filed and judgment entered, and only then if the state in which you work allows wage garnishment. The other myths are in the post.

TAKEAWAY: Just because you saw it on the internet does not make it true; often there are many myths floating around about consumer finances. Contact a professional to make sure what is or is not true for you.

Monday
Dec222014

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

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

The post on Sunday 12/21/14 was about action taken as a general prankster or because of a protected characteristic. There is a HUGE legal difference (and hopefully you know the difference!).  Pranks happen, but they can rise to the level of a hostile work environment that violates Title VII, the ADA or the ADEA (to name a few). It’s those latter ones that can put the employer in legal hot (and expensive) water.

TAKEAWAY: Employers should try to keep the workplace free of pranks, but especially ensure they do not become illegal harassment or discrimination.

In the post on Monday 12/22/14, we talked about why you should seek legal guidance when using agreements with arbitration provisions. These are legal provisions that may or may not be enforced, depending on the state and how they are worded. However, if not drafted properly and if not in compliance with applicable law, the provision may not survive.

TAKEAWAY:  As with other legal provisions or documents, if you want an arbitration provision in a contract or agreement, consult an employment attorney to ensure that it is legal and will accomplish what you want it to.

The post on Tuesday 12/23/14 was about what to expect when you’re expecting: fair treatment under the law.  To avoid having to settle a lawsuit by the EEOC as did Triple T Foods (on allegations it fired an employee the day she announced her pregnancy), pay attention to the Pregnancy Discrimination Act in hiring, promotion, discipline, and firing. In Pennsylvania, there are both federal and state laws to comply with. The post gives you a taste of both.

TAKEAWAY:  Pregnancy is a big deal: for the employee whose life will be changed forever and for the employer who will be affected, if only for a short time. Treat the pregnant employee fairly and legally to stay out of hot water.

The post on Wednesday 12/24/14 told us that the old (law) is new again: plaintiffs are increasing using an old PA law to challenge background check decisions. Which law? The Criminal History Record Information Act.  If an applicant is rejected based on criminal records, the employer must make sure the rejection complies with this law. What does the law say? That employers can consider felony and misdemeanor criminal conviction in hiring if they “relate to the applicant’s suitability for employment in the position for which he has applied”. The employer also must provide to the applicant, in writing, notice if the rejection is based on criminal history (whether in who9le or in part). The law is broad, applying to ANY criminal record information, not necessarily just that which is received from third-party screening agents. The post also talks about remedies available to an applicant, including attorney’s fees and costs. Finally, the post includes reference to 2 recent PA cases. In one case, the court held that a decision not to hire based on an omission from or falsification on an employment application is not “because of” criminal history and therefore CHRIA does not apply. In the other case, the court allowed a case to go forward where it said the applicant sufficiently alleged the decision not to hire was made on the mere fact of the arrest (and not due to a finding of being not credible in discussing an arrest as the employer claimed).

TAKEAWAY: Employers should be careful not to violate any law when using criminal history information in hiring (and other employment-related) decisions.

The posts on Thursday 12/25/14, here and here, wished everyone a happy, healthy and Merry Christmas.

TAKEAWAY: Yes, we truly hope you had a wonderful and wondrous holiday!

The post on Friday 12/26/14 was a reminder about military leave and the FMLA. Yep, the FMLA was amended in 2008 to provide special benefits for military personnel/families. It now has Qualifying Exigency Leave and Military Caregiver Leave provisions. The threshold for applicability is the same under both leave types (the employer must have at least 50 employees and the employee must have worked there at least one year (not consecutively), worked at least 1250 hours in the preceding year AND work at a location with at least 50 employees within a 75-mile radius. Details on Qualifying Exigency Leave are both in the post and the statute itself.

TAKEAWAY:  Employers must remember the FMLA is broad and contains provisions for dealing with military employees or their families.

Finally, in the post yesterday 12/27/14 we talked about a well-known restaurant chain’s settlement of a race discrimination suit. The underlying suit accused McCormick & Schmick’s of race discrimination by refusing to hire African-Americans for front-of-house positions at its Baltimore locations and that those working in front-of-house positions were denied equal work assignments due to race. Further, the suit alleged that advertising for positons showed visual preferences for non-African-American workers. McCormick & Schmick’s settled for $1.3M along with injunctive relief.

TAKEAWAY:  Race rarely (if ever) is job-related, so don’t use it as a factor on which to base employment decisions.

Monday
Dec152014

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

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

The post on Sunday 12/14/14 started the week with signs you have (or are) a horrible boss (some of which can result in legal liability for the employer). So what are some of the signs that could have legal implications? They have a pesky habit of calling you on your day off. Your boss has favorites. They’re passive-aggressive or ignore you. Your boss throws tantrums easily. Others are in the post.

TAKEAWAY: Having or being a bad boss is not itself illegal, but some of the behaviors exhibited by bad bosses can be; know which are legal or illegal.

In the post on Monday 12/15/14, we suggest you make sure you can define what (not) “fitting in” means. This came up in the context of an employer’s rejection of a minority candidate – multiple times – for a job that didn’t even come with a pay raise. Each time a position opened over a 5-year span, it was filled with a Caucasian candidate even though the African-American employee had more training and seniority than each of the 8 candidates selected. When the emplo9yee’s supervisor, who had recommended him for the position, questioned why the employee was not selected, the response was that another candidate was a “better fit” and had a college degree. There had been a similar comment earlier in the process that the employee “did not fit in”. The employee filed administrative charges, alleging race discrimination; after that, he was still not selected, was reassigned, others were told to “keep their distance” from him, he was not considered for future vacancies, all of which led to retaliation charges. He eventually sued. On appeal, the court found that the “fitting in” comments were not stray, but that a jury could conclude the comments were related to race discrimination.

TAKEAWAY:  Treat all employees (and candidates) the same and use objective criteria for selection; also, once a complaint is filed, don’t treat the employee differently than other employees.

On Tuesday 12/16/14 the post was about 8 amazing things you can do only while scuba diving. Off our usual legal topics, but in keeping with the idea that one must have fun to balance out all the hard work.  SO what are some of the things? Speak whale to an actual whale. Immerse yourself in history (diving wrecks). Try that jetpack you’ve always wanted (with a diver propulsion vehicle). Hover like a genie. The others are in the post.

TAKEAWAY:  Scuba diving is an amazing way to meet people, visit new places, and continue learning and honing your skills. It provides a respite from the “regular” world when you are under water.

The post on Wednesday 12/17/14 was about 7 ways a company can legally discriminate against its employees. Yep, legally. So what are some of the things that made the list? If you‘re gay. If you’re transgender. If you’re unattractive or too attractive. The others are in the post.

TAKEAWAY:  There are many areas in which employees lack protection under state or federal law; this does not mean that employers should discriminate on the basis of those things, just that they can do so legally.

The post on Thursday 12/18/14 talked of 1 potato, 2 potato, nope, no 3rd potato if you’re female.  You guessed it: pay discrimination on the basis of sex, a violation of the Equal Pay Act. If employees are doing the same job, they should be paid the same, regardless of their gender. Here, females complained when they found out that was not the case. So what did the employer do? It allegedly retaliated against them after the complaint by firing one and demoting another. This matter is now in conciliation between the EEOC and the City and also the subject of a federal lawsuit.   

TAKEAWAY:  Employers should look at the job, not the person doing it, in establishing pay that is uniform for that job.

The post on Friday 12/19/14 told us how the NLRB raised the stakes, making a grab for broader financial remedies. Again. In a ruling issued 10/24/14, the NLRB said it has broad authority to order expanded remedial measures relative to acts it considers “egregious and pervasive” violations. This employee-friendly Board wants to strike fear in employers. What did the Board require in this case? That the employer reimburse the Board’s General Counsel and the union for their litigation expenses over the several-year period, including reasonable counsel fees, witness fees, transcript and record costs, printing costs, travel expenses, per diems, and more. Further, the employer now has to comply with expanded posting requirements. Finally, and here’s the kicker, the Board ordered that the parties brief the issue of front pay (for wages for the period between the judgment and reinstatement) – something it has not done before and a remedy not requested by the union or General Counsel (nor by any party).

TAKEAWAY:  Employers should remember that at least some provisions of the NLRA apply in EVERY workplace; that means a violation could subject the employer to these increased remedies and penalties if it makes a misstep.

Finally, in the post yesterday 12/20/14 we reaffirmed that employers should not destroy records during a pending employee lawsuit. Here, the employer destroyed records (according to its policy) at least 8 months after the employee filed her EEOC charge and at least 3 months after she filed suit.  What was the result of the employer’s conduct? The jury was to be given an instruction that it could draw an adverse inference from the destruction.

TAKEAWAY:  Even when an employer has in place a regular document destruction policy, it must know when to put that policy on hold. Once a complaint is filed internally, which could be long before administrative charges or suit is threatened or filed, the employer should preserve any and all records relevant to the complaint. 

Monday
Dec082014

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

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

The week started with the post on Sunday 12/7/14 about documented progressive discipline defeats an FMLA claim. Just confirms that it is about documenting, documenting, documenting. Here, the employer showed that the employee would have been fired whether or not he took a protected leave. How? The employer has a progressive discipline system; it was followed with this employee. However, when he was disciplined, his protected FMLA leave was mistakenly considered. When he received his last discipline for poor performance, he was discharged. He sued, alleging an FMLA violation (interference and retaliation) and state-law claims. The court found that even if the discipline couldn’t have been given for absence due to the FMLA leave, it could have been given for failing to follow the call-in procedure, so there was no retaliation claim. Using the same facts, the court also dismissed the interference claim. 

TAKEAWAY: If you have a policy, use it, evenly and uniformly. If you vary from it, don’t try to support any adverse action with the policy.

In the post on Monday 12/8/14 we talked about Popeyes chickening out on an HIV-positive applicant. The franchise settled an EEOC disability discrimination suit for $25,000. The suit alleged that the applicant, who had several years’ restaurant experience, was not hired due to his HIV status. It came to light because he answered “medical” for the reason he left his last job and the hiring manager grilled him on the medical condition during an interview. The manager then told the applicant that he couldn’t work in the restaurant business due to his HIV status. The applicant then filed an EEOC complaint alleging violation of the ADA by the pre-offer medical inquiry and refusal to hire due to HIV status.

TAKEAWAY: Do not assume that someone cannot perform a job – that assumption could be illegal and end up costing you a lot of time and money.

On Tuesday 12/9/14 the post was about how FMLA confidentiality provisions supersede OSHA record-keeping requirements. And it took OSHA itself to say this! What led up to this? A UPS employee submitted an FMLA leave application including a doctor’s statement. The employer, the US Postal Service, did not list the illness on its OSHA log as work-related. The employee filed a complaint with OSHA. After investigating, OSHA issued a citation to the USPS. The USPS then argued (among other things) that an FMLA regulation required it to keep the information confidential. An ALJ upheld the citation and the USPS appealed.  The Commission agreed with the employer and reversed the ALJ. 

TAKEAWAY:  Don’t blindly follow one law without taking into consideration others that might supersede that one.

The post on Wednesday 12/10/14 was about medical questions and the ADA: when and what can employers ask? We saw in Monday’s post that an employer cannot ask medical question pre-offer so we know that timing is important. If dealing with an applicant who has an obvious disability that may affect the ability to perform essential job functions, the employer can (and should) ask about that. Once a conditional offer has been made, but prior to work starting, the employer can ask disability-related questions and require a medical exam related to the essential job functions if the employee does this for all applicants, not just those who may have disabilities or medical conditions. And the questions and exams cannot violate GINA. If the employer is dealing with an employee, there is even less wiggle room; all inquiries and exams must be job-related and consistent with business necessity. Further, the employer can request information and documents to support an accommodation request.

TAKEAWAY:  Know the law – when an employer can and cannot ask medical and disability-related questions and require a medical exam of both applicants and employees.

On Thursday 12/11/14 the post was about the Top 3 mistakes people make before a bankruptcy filing. So what things should not be done prior to a bankruptcy filing? (1) Paying off loans to family members. The bankruptcy trustee will recover this repayment anyway, even if it takes a lawsuit.  (2) Transferring assets out of your name. If you don’t receive consideration (money or something else) in approximately the same value as the asset, then the bankruptcy trustee will sue the person to whom you transferred the asset. The third tip is in the post.

TAKEAWAY:  If you are considering filing for bankruptcy protection, even far in the future, you should consult an experienced bankruptcy attorney so you know what you can and cannot do between now and the filing – this can save you a lot of grief later.

The post on Friday 12/12/14 told us that the Computer Fraud & Abuse Act (CFAA) was no help to an employer suing an employee who took proprietary information; it also talked about how to limit employee access. The employee emailed himself various files with the employer’s confidential, proprietary or trade-secret information and had a co-worker send him more proprietary information he could not access. The employer claimed that there was a violation of the CFAA. The court determined that once an employee is granted access to an employer’s computer system, there is no CFFA violation regardless of how the employee subsequently uses the information. This is a very narrow interpretation of the CFAA’s language and should serve as a warning to employers.

TAKEAWAY:  Employers must be careful about who can access what information in the computer system and how – and with whom – it can be shared.  This may take a continual monitoring process by the employer in addition to one or more documents signed by the employee prior to being given such access.

Finally, in the post yesterday 12/13/14 we learned about a jury award of $499K in a sexual harassment & retaliation case - sometimes a jury has to tell an owner to stop when HR won’t. The employer is EmCare, a physician services provider. The EEOC brought the suit on behalf of the female former Executive Assistant (who was awarded $250K in punitive damages for sexual harassment by her supervisor, the division CEO), a female credentialer ($82K award) and a male recruiter ($167K award). The last 2 awards were for retaliatory discharge (being fired for reporting and opposing a sexually hostile work environment). The trial included testimony about constant lewd sexual comments by the division CEO and other management employees as well as HR’s failure to respond to complaints about the misconduct.

TAKEAWAY:  Once again we warn employers to take seriously any complaint of harassment or discrimination in the workplace – not doing so could be very costly.