Monday
Jun092014

ICYMI: Our Social Media Posts This Week -- June 8 – 14, 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.

First up, the post on Sunday 6/8/14 was about the 5 biggest killers of an employee’s confidence. What are they? 1. Fear of being laughed out of the room. 2. Pressure to do things right. 3.  When it’s all about results. (go to the post to read the other two.)

TAKEAWAY: If you expect your employees to produce for you, give them the means to do so – don’t handcuff them.

On Monday 6/9/14 the post talked about Walgreens ok in firing a 58-year-old assistant store manager for poor customer service. Here, the person was hired when 55 years old. A few years after hire, he was transferred to a different store. An incident occurred, resulting in a customer complaint and a final write-up for the employee for poor customer service. Four months later, after another customer service incident, he was fired. He brought suit under the ADEA. After knocking down all of his arguments, the court found no pretense, but merely adherence to the stated policy, so Walgreens won.

TAKEAWAY: A discharge can be lawful even if the employee has one or more protected characteristics; don’t be afraid to evenly enforce valid policies.

Next, on Tuesday 6/10/14 we talked about a legal setback for UPS’ leave policy. This deals with the application of the ADA and job attendance. The policy, put into place in 2002, was that UPS would "administratively separate from employment” employees after 12 months of leave. One employee at issue began her employment in 1990; she took a medical leave in February 2006, returning February 2007. Thereafter, she injured herself and the medical condition worsened; she asked for time off to deal with both. UPS’ answer? It fired her under the leave policy. Another employee also began working at UPS in 1990; in 2006 she was transferred to a different area which worsened her medical condition. Her doctor requested transfer back to the prior work location; instead, UPS put her on leave and then fired her after 12 months when she couldn’t return to work.  So why was the policy problematic: Because it required employees to be at 100% upon return to work, not allowing for any possible accommodation – which the EEOC claimed was illegal under the ADA. UPS argued that the leave policy merely supported the fact that attendance was an essential function of the job and not attending for 12 months served that end. The court sided with the EEOC.

TAKEAWAY: Can attendance be an essential job function? Yes. But even so, the employer still has a duty to provide reasonable accommodation if required under the ADA.

On Wednesday 6/11/14 the post was about a PA widow who lost her $280K house for $6 in interest. What happened? She paid off the mortgage with the proceeds from her husband’s life insurance policy after he died in 2004, but apparently it did not cover all of the interest. The judge said that she had received proper notice before the home was sold at auction in 2011. She will receive a majority of the sale proceeds, but will still lose her house (unless she prevails on appeal).

TAKEAWAY: If you receive a legal notice, don’t bury your head in the sand – do something about it, including taking the doucment to an attorney to learn what it means.

On Thursday 6/12/14 the post was about whether you should file for bankruptcy if an ex-spouse who charged on a joint credit card isn’t paying. Even if you have a marital/divorce settlement agreement that requires your ex to pay the debt, and even if s/he is in violation of that agreement, the credit card company can still legally look to you for its money. Accordingly, the only ways to ensure that the credit card company cannot come after you are to pay it off in full (or pay enough that the company will release you) or file for bankruptcy protection.

TAKEAWAY:  Be aware of both the upside and downside of marital/divorce settlement agreements and what might be the effects if one or the other spouse doesn’t fulfill his/her obligations.

The post on Friday 6/13/14 talked about the 5 elements of an effective harassment & discrimination training program. Sadly, harassment and discrimination happen and more frequently than anyone probably thinks. Employers should train their employees to try to prevent it from happening. What are some of the steps? Ensuring that the employer can track the policy through any revisions (and explain why the revisions occurred) and when employees were trained on the (revised) policy. The other 3 elements are in the post.

TAKEAWAY:  If an employer is going to put in place a policy, it should know the purpose of the policy and train employees how to properly apply and evenly enforce the policy.

Finally, the post yesterday 6/14/14 was about what documents you can require from your permanent legal immigrant employees. Be smarter than this supermarket chain from TX. What happened? The employer required legal permanent residents to present new employment eligibility documents after hire when their Permanent Resident cards expired; it also requested a specific document during the initial employment verification process although applicants had a choice of what to present. And, to make things worse, the employer did these things based on citizenship status.

TAKEAWAY: Your HR staff must know what documents applicants (and employees) must show and what documents they can show; not knowing the difference could be very costly.

Monday
Jun022014

ICYMI: Our Social Media Posts This Week -- June 1 – 7, 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.

First up, the post on Sunday 6/1/14 talked about the possibility of an employee’s comment resulting in big financial liability for Subway. What’s it about? The employee wrote “Big Mama” on an order, the customer saw it and broke down crying and questioned her appearance. IN a case of vicarious liability (which is alleged here), the act must have taken place within the scope of employment. Here, the employee admits to writing it while wrapping the customer’s order, so that prong is satisfied. Apparently the customer was offered a $5,000 settlement if she signed a confidentiality agreement; she refused. .

TAKEAWAY: Employers are usually responsible for any product or service that goes out under the company name, so they should ensure that processes and procedures are in place to prevent something like this from happening.

On Monday 6/2/14 the post was about age discrimination and a $300K lawsuit settlement. The suit was brought by the EEOC in federal court for back wages on allegations the employer harassed three employees and fired them because of their age. One example of the basis for the allegations: a supervisor of one of the complainants (who was 45 at the time) told her, "You need more make-up because of your wrinkles." Ouch.

TAKEAWAY: Remember the rules: (1) Don’t discriminate on any illegal basis. (2) If you do, don’t allow your employees to add wood to the fire that will be used to cook the company.

Next, on Tuesday 6/3/14 we talked about the fact that liability for sexual harassment can be avoided – and gave some tips how. Tops on the list: prompt & remedial action. Read the post for more.

TAKEAWAY: As the post says, employers should be prepared, prompt, careful.

On Wednesday 6/4/14 we talked about a recent decision (in favor of the EEOC no less): physical presence is not necessarily an essential job function. The issues in this ADA case were whether the physical-presence requirement was an essential job function or telecommuting would create an undue hardship. What doomed the employer’s argument that physical presence was an essential job function? The EEOC’s showing that telecommuting options were available to others in the same position and that at the office the vast majority of communications were conference calls.

TAKEAWAY: as in so many other situations, if you as an employer are going to take a legal stance make sure you have the facts to back it up.

On Thursday 6/5/14 the post was about a discharging an employee who can't return to work after FMLA leave.  So can an employer do this? Maybe. But not immediately. First the employer must satisfy its obligation of undergoing the ADA interactive accommodation process.

TAKEAWAY:  When dealing with either the FMLA or ADA, don’t forget about the other as they too often overlap.

The post on Friday 6/6/14 talked about whether federal law applies regardless of probationary status. In this case, the EEOC filed suit on behalf of a Marine veteran on allegations that the employer (whose headquarters are in PA) violated federal law when it refused to give unpaid leave to the veteran with PTSD and fired him as a result of his disability. The company has a policy of providing up to 26 weeks of paid leave to non-probationary employees, but here refused his doctor’s note for 6 weeks’ unpaid medical leave due to his probationary status. The case is still pending.

TAKEAWAY:  Applicable statutes do not mention a specific employment status when proscribing conduct; they just talk about protections given to employees (or, in some cases, applicants). Employers should know the laws and not build into them something that is not there.

Finally, the post yesterday 6/7/14 was about the FMLA, veterans, and an employer’s obligations. As explained in the post, family members of covered veterans with serious injuries or illnesses may take up to 26 weeks’ unpaid leave in any twelve month period to care for the veteran. A veteran is covered if s/he was a member of the armed forces, including National Guard or Reserves, and whose discharge or release was not dishonorable. If an employee wishes to take FMLA leave to care for a family member who is in the military or for a veteran, the injured person must have been discharged within the five-year period before the employee first takes leave to care for him or her. For example, if a veteran was discharged eight years ago and get sick tomorrow, s/he is not a covered veteran. There are also exceptions for veterans discharged prior to March 8, 2013, so read the post.

TAKEAWAY: As in so many areas, veterans deserve – and are entitled to – special treatment. The FMLA extends that treatment not only to the veteran, but to those caring for the veteran. Employers must be aware of this portion of the law as the number of veterans in the workforce continues to increase.

Tuesday
May272014

ICYMI: Our Social Media Posts This Week -- May 25 – 31, 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.

First up, the post on Sunday 5/25/14 talked about a shifting discrimination defense.  You are probably scratching your head and saying ‘What?”  Keep reading (and go to the post). A female employee complained that she was being paid less than male employees; the company denied that she had ever made the complaint. Soon after, she was reprimanded for taking a day off; the company said she had been told not to, which she denied. So what happened to doom the employer? It couldn’t get its story straight. In the administrative charge phase, it claimed the discharge was due to a changing business focus. Legally acceptable, right? Except that her supervisor testified as to another reasons for the discharge and, in other places, the company tried to assert it was based on poor performance.

TAKEAWAY: If you are going to make an assertion, shore up your support for it beforehand. Otherwise, the court will see right through it.

On Monday 5/26/14, we excitedly posted about the NLRB finally finding something allowable in a Handbook. Was it a full moon? I don’t know, but let’s look at the facts.  Here the NLRB was dealing with an at-will employment provision (the actual clause can be found in the post). There, the provision did not unlawfully restrict protected activity, nor did the employer promulgate the provision in response to union activity or apply it in a discriminatory manner. Also, the provision did not prohibit changes to employment status.

TAKEAWAY: Remember that the NLRA applies to ALL workplaces and, as such, every statement in a Handbook must be looked at to ensure that it does not impact rights provided for under the Act.

Next, on Tuesday 5/27/14 we talked about the mayor who fired a lesbian police chief being caught in a homophobic tirade.  The chief had been on the job over 20 years and shortly after receiving seven (count ‘em, 7!) reprimands about job performance, was fired by the mayor (who, coincidentally, had recently taken office).  Many in the town, including a council member, disagree with the firing. That council member caught the mayor saying things nobody should even think. Go to the post for the entire tirade.

TAKEAWAY: If you are going to fire an employee, make sure there is good reason (or at least nothing that smacks of discrimination).

On Wednesday 5/28/14 we talked about equal rights for men. Ordinarily it is females who are the ones alleging that they have been discriminated against, but the various laws apply equally to men and women. In the case at point, the men argued that they had been paid less than women.   

TAKEAWAY: Laws against discrimination and harassment apply equally to both genders; ensure that your business enforces those laws equally too.

On Thursday 5/29/14 the post was about the NLRA and you (and how you can keep out of its ever-broadening crosshairs). As I’ve said time after time, while the NLRA applies to labor environments (translated: those with unions), it also applies in non-union workplaces to areas that are covered by the Act, such as wages and work conditions. So what can you do to (hopefully) steer clear of the Act? One thing is not to prohibit employees from discussing their wages. Go to the post for others. 

TAKEAWAY:  Non-union employers should have policies in place to let employees know what is expected of them, but those policies must pass muster with many laws, including the National Labor Relations Act. Run yours by an employment attorney to ensure compliance.

The post on Friday 5/30/14 was about the validity of certain non-solicitation clauses. What makes this interesting? The fact that it involves 64,000 plaintiffs who have lodged claims against Apple, Google, Intel Corp and Adobe Systems, seeking $3B. Billion with a b. They allege antitrust violations for an understanding among the defendants (mainly in emails!) not to poach each other's employees, thus restricting the plaintiffs’ prospects of wage growth. Two other defendants, the Pixar and Lucasfilm units of Walt Disney and Intuit, agreed to $9M and $11M settlements respectively and were let out of the case.

TAKEAWAY: Employers should be careful about what type of actions they prohibit and, when there is a prohibition, what they say about it.

Finally, the post yesterday 5/31/14 we talked about the multitude of sins in religious discrimination cases (which are on the rise, especially those involving Muslim employees). What could be impacted? Dress and grooming standards, work schedules, holiday parties and more. The post explores the breadth of the EEOC’s enforcement efforts and talks about some of its recent settlements. One involved a company that required employees to spend at least half their workday attending courses that involved Scientology practices, such as screaming at ashtrays and staring at someone for eight hours without moving, and fired the employees if they refused to participate.

TAKEAWAY: As in other areas, religion should not come into the workplace unless it is job-related. If it is brought in, the employer may be called to task in a very expensive way.

Monday
May192014

ICYMI: Our Social Media Posts This Week -- May 18 - 24, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, the post on Sunday 5/18/14 was about how the EEOC failure to show disparate impact doomed a credit check bias case. What happened? The EEOC sued Kaplan Higher Education Corp. for considering applicants’ credit history in hiring for certain jobs – which the EEOC alleged was a violation of Title VII.  Sounds viable, right? Well, it might have been, except that the EEOC didn’t show any racial disparate impact. And why not? Because testimony/evidence from the EEOC’s expert was excluded as not meeting appropriate standards. Right thinking, wrong follow-through by the EEOC.

TAKEAWAY: If you believe you have a basis to sue, you better also have something to support that thought. If not, you may be out of court very quickly (and, depending on the facts, law under which suit is brought, and applicable rules of procedure, also find yourself paying the attorneys’ fees for the party you sued).

On Monday 5/19/14 we talked about 10 interview questions not to answer – those being the flip side of 10 interview questions not to ask. What is an example? “Do you have children?”. Read the post for the others.

TAKEAWAY: Don’t put those being interviewed -- or your company -- in the hot seat by asking question that should not be asked, either because they are illegal or not job-related.

Next, on Tuesday 5/20/14 the post was about who wants to be the boss.  This was a short infographic and showed that in every age cohort, more males than females aspire to be the boss.

TAKEAWAY: Does the fact that someone wants to be a boss make them a good boss? Not necessarily. Choose your managerial-level personnel for the right reasons.

On Wednesday 5/21/14 the post was about lawsuit settlement tips for business owners. You may think you don’t care about this or need to know about it, but you are wrong. It is always better to settle a suit than go to trial – the latter is always a roll of the dice no matter how good your facts are. So, read the post and keep these tips in mind.  

TAKEAWAY: It’s never too early to talk to you employment lawyer and have a plan in place in case suit is filed against your business.  Do it today.

On Thursday 5/22/14 we posted about the settlement of the EEOC’s pregnancy discrimination suit against Weight Watchers. The suit alleged that Weight Watchers refused to hire someone as a group leader because she was pregnant and also that Weight Watchers discriminated against her based on pregnancy-related weight when it disqualified her by using a goal-weight requirement. Weight Watchers learned the hard way that the law against pregnancy discrimination is enforced.

TAKEAWAY: If the basis on which you intend (not) to take action is not job-related, then just don’t do it.

The post on Friday 5/23/14 talked about the latest EEOC bench slap for bringing a weak case. Here’s what the author had to say about the reason for dismissal of the suit: “a hypocritical lawsuit supported by a comical attempt at producing scientific methodology in support a frivolous case of alleged disparate impact discrimination.”  This case provides both workplace humor and education – so read it to be amused and learn something.

TAKEAWAY: As a plaintiff, be careful about bringing suit or this may be your fate; for defendants, take heed on how to possibly get the charge/case dismissed.

Finally, the post yesterday 5/24/14 was about the fact that unclear testimony about the timing of limits on golf and sex can revive an ADA claim. Are you scratching your head? What happened was a deposition where the plaintiff testified that his back problems limited only his ability to play golf and have sex. The employer’s motion for summary judgment was granted by the trial court on the basis that no disability had been proven. On appeal, the ruling was overturned and the matter sent back for trial since it was unclear whether the limitations were before or after the back surgery and this in turn affects application of the facts to the ADA.

TAKEAWAY: Questions of disability (and possible discrimination as a result) are to be looked at at the time of the adverse employment decision.

Monday
May122014

ICYMI: Our Social Media Posts This Week -- May 11 - 17, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, the post on Sunday 5/11/14 was about one comment normally not being sufficient for a hostile work environment. But, and you may hear this a lot, it depends. On whether the comment was directed at the person alleging the hostile work environment; on whether it was part of many comments or actions against that person; on whether the employer took prompt action to investigate and remediate. On other factors.

TAKEAWAY: Employers can’t just sit back and do nothing about one comment; it may or may not lead to charges or a finding of a hostile work environment (and liability for damages).

On Monday 5/12/14 we posted about the NLRB finding 3 workplace rules (on negative comments, negativity or gossip, and positive representation) overbroad and violated the Act. What were the rules? That employees will “not make negative comments about fellow team members [which included coworkers and managers]” and will “not engage in or listen to negativity or gossip.” Also, the policy that employees will “represent [the employer] in the community in a positive and professional manner in every opportunity” was found to violate the Act.

TAKEAWAY: It is increasingly a minefield for employers to ensure their Handbooks or Policy Manuals are legally compliant. An employment law attorney should be consulted.

Next, on Tuesday 5/13/14 we talked about how French bosses are banned from contacting workers outside of work hours.  How you think this would go over in the US? The idea has pros and cons for both employees and the employers, but would certainly alter the work environment as we know it.

TAKEAWAY: If you expect your employees to work outside of normal work hours by using their smart phone or similar device, then also expect to pay them for the work. If you don’t want to pay them, don’t let them do the work.

On Wednesday 5/14/14 the post confirmed that a warning for a medically-related absence + discharge (can) = illegal pretext. This case was out of PA. The employee worked as a table games supervisor at a casino. The employee was given a warning concerning her medically-related absences. Subsequently she was granted FMLA (intermittent) leave. Another time she followed the casino’s policies to deal with a situation that had arisen. After being discharged for allegedly violating the policy, she asserted that reason was really pretext for her taking time off under the approved FMLA leave.  

TAKEAWAY: An employer should have a valid, legal reason to discharge an employee – if not, why fire the person? If you are not sure the reason will hold up, talk to an employment lawyer first.

On Thursday 5/15/14 we posted about whether your employees make too much to qualify for overtime pay under the FLSA. Most people are at least somewhat familiar with the most common test for exemption from overtime pay under the FLSA, but few remember the pay test. Go to the post for a reminder.

TAKEAWAY: There is more than one way to skin the FLSA overtime cat – know what exemptions are available and make sure your payroll or HR personnel do too.

The post on Friday 5/16/14 was about after-the-fact leave approval being required to avoid FMLA liability. What? Sometimes an employee cannot return from a quick leave or other absence as anticipated; the reason for extension might qualify for FMLA leave. But if the employee doesn’t know about the needed extension until it occurs, s/he cannot ask for the extension in advance.

TAKEAWAY: Employers must be flexible with FMLA leave requests or extensions to avoid possible suits and liability for damages if it turns out that the leave/extension should have been granted and was not.

Finally, yesterday 5/17/14 the post was about the fact that a single incident involving touching can be enough to create a hostile work environment. In the subject case, the fact that the employee had been a victim of domestic violence and the supervisor knew about it before trying to kiss her all played into the ruling – that the single act was sufficient in these circumstances to form a hostile work environment.

TAKEAWAY: As the author said, warn managers and supervisors to keep their hands – and lips – off their subordinates or risk liability for your company.

Friday
May092014

ICYMI: Our Social Media Posts This Week -- May 4 - 10, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, the post on Sunday 5/4/14 was about employee records, your business, and the law. Yep, this is an important trio. The federal Fair Labor Standards Act (FLSA) lists what information and records must be kept for each employee and for how long (at least 3 years and for at least 1 year after employment ends).

TAKEAWAY: If you are not familiar with the FLSA, you should review it (and make sure your HR personnel do too). The law provides for penalties for violation by employers.

On Monday 5/5/14 we did NOT discuss Cinco de Mayo and whether it caused any disruption to your workplace (did it? Let us know via our Facebook page, website, LinkedIn, or Twitter). What we DIDtalk about was internships: do it right or pay the price.  It’s no longer an easy thing to hire someone, call them an intern, and then have them provide services for no pay. This is as thorny an issue as misclassifying a worker as an independent contractor when in reality s/he is an employee.  Ok, back to interns. So what are some of the rules? First, it must benefit the intern, not the employer. Next, they cannot be hired instead of a regular employee. Third, try to provide educational credit in conjunction with the school. Also, make sure the relationship is put in writing.

TAKEAWAY: Interns are not just cheap labor – in fact, if not done right, they can be VERY costly for an employer.

Next, on Tuesday 5/6/14 we talked about whether fathers are punished at work too – and whether or not they have legal rights. Are men weak if they want paternity leave? Are they viewed the same as women who take maternity leave? Actually, no. Research shows that men with families are viewed favorably (but are penalized if they try to spend time with those families). Also, those who took family leave were perceived more negatively than those who did not. Read the entire post for more.

TAKEAWAY: Discrimination happens to both sexes, but we hear more about it when it happens to women. Employers must ensure that no employee is discriminated against for taking advantage of legal rights.

On Wednesday 5/7/14 we posted about Virginia Waffle Houses and their ADA violations. The issue is accessibility for patrons in wheelchairs. The case was filed against 45 locations; the plaintiff noted he had visited 4, but asserted the others would be the same as they are allegedly based on the same design. The court upheld the claim as to the 4 that he had visited but required more information as to the other 41.

TAKEAWAY: Businesses thathave customers coming to them must remember the public accommodation requirements of the ADA and not just the employee-accommodation portions.

On Thursday 5/8/14 the post was about the types of things that sent an FMLA case to the jury: questions on leave entitlement, usual & customary notice, and more. What was the key here? The employer told the employee he had 120 hours of FMLA leave remaining when he really only had 11. Why was that key? It left open a question for the jury as to the amount of the employee’s FMLA entitlement. Also at issue (and open for jury decision) were whether the employee had notice of an employer policy regarding doctor’s notes.

TAKEAWAY: Employers should carefully calculate available FMLA leave before giving a number to employees, otherwise it could come back to bite them – HARD.

The post on Friday 5/9/14 was about the fact that you don't need absolute proof to discharge an employee. That’s right. There is no burden for an employer to prove beyond a reasonable doubt the reason for discharge. The discharge only has to be reasonable based upon the facts known to the employer.

TAKEAWAY: Courts will not second-guess an employer’s business decisions (unless they are illegal) as long as those decisions have a reasonable basis in fact and belief when made.

Finally, yesterday 5/10/14 we posted about a federal court ruling that Baltimore County's retirement plan violates the ADEA by requiring older employees to pay a greater percentage of their salaries into the plan based on their age at the time of enrollment. The link takes you to the actual court decision. The court did not agree that the “time value of money” is a reasonable justification for the disparate contribution rates where the County (1) amended the plan to permit employees to retire based solely on years of service without modifying contribution rates, and (2) treated older employees at the time of enrollment less favorably than younger employees “because of” their age. Further, the Court also disagreed with the assertion that that ADEA's “safe harbor provision” shields the County from liability since, even assuming service-based pension benefits qualified as “early retirement benefit,” that provision does not address employee contribution rates nor does it permit employers to impose contri-bution rates that increase with age at time of enrollment. After those rulings, the case was remanded to the trial court for a damages assessment.

 TAKEAWAY: Employers engaging in back-door age discrimination will be caught. Don’t try a workaround; just obey the law.

 

     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.

Monday
Apr282014

Our Social Media Posts This Week -- Apr. 27 – May 3, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, Sunday 4/27/14 was a post about a scary creature, insider threats to security from unapproved BYOD. I hope by now you know what BYOD stands for (if not, contact me immediately!). It is true that BYOD can help the bottom line by the company not having to provide smartphones and the like to employees to work out of the office, but it can also bring to the company a host of problems – different operating systems, different uses, different security, and encryptions levels just to name a few.  While there is not just one answer or solution to protect an employer, having employees sign Acceptable Use Agreements and agreeing to installation of software to enable the employer to remotely wipe the device are just 2 things to consider.

TAKEAWAY: Make sure your company and its data are protected BEFORE allowing employees' personal devices to be used for work purposes. (As an aside, also be prepared to pay the employee for the time spent working on the device outside of normal working hours.)

Monday 4/28/14 brought a post about a car dealer settling a same-sex male harassment suit. More than 50 men will share in the $2.1M settlement of allegations of egregious sexual harassment including “shocking sexual comments, frequent solicitations for oral sex and regular touching, grabbing and biting of male workers on their buttocks and genitals.” There was also an allegation of retaliation against those who complained about the sexual harassment and the hostile work environment it created. While the case was pending but prior to settlement, the judge found that one employee had even received death threats.  

TAKEAWAY: Employers must remember that although it is less common, sexual harassment can occur among the same sex. The same care must be taken to investigate and eradicate same-sex harassment as harassment when the parties are of different sexes.

Next, on Tuesday 4/29/14 we learned of a court ruling that the unsuccessful party in a discrimination suit did not have to pay the other side’s legal fees.  The issue was whether the plaintiff brought a frivolous race discrimination suit against his former employer.  The trial court granted summary judgment for the employer which was not overturned on appeal. However, what was overturned was the plaintiff’s liability for the employer’s legal fees.

TAKEAWAY: Issues like this are very fact-specific, but the employer should not count on having its legal fees reimbursed.

On Wednesday 4/30/14, we had a post on new legal ground, a federal ruling that gays and lesbians are protected from sex discrimination under Title VII.  How? Because, “discrimination that stems from nonconformity to ‘gender stereotypes association with men’ is prohibited by Title VII, which prohibits workplace discrimination due to sex.”  So the case now moves to trial (with the possibility of a finding based on religious discrimination too).

TAKEAWAY: Employers should not allow any type of discrimination in the workplace, regardless of the basis. Period.

On Thursday 5/1/14, we talked about another court ruling, this time on national origin discrimination. This ruling ended up being good for supervisors but bad for employers. The case was out of Hawaii, but can still prove instructive here in PA.  What happened? Gerald worked as a car salesman; he said that the general sales manager ("GM") and other employees called him derogatory names based on his French national origin and that the GM referred to him in derogatory terms when talking to coworkers. Further, Gerald alleged that he was discharged only days after complaining about the harassment. Once suit was filed, the judge first looked at whether Gerald could sue the GM directly or only the employer (based on the definition of “employer” under Hawaiian law).  As have some federal courts, the court there said that supervisors cannot be personally liable as employers for harassment or retaliation claims. That was a win for supervisors. The bad news for employers was that the court said they are strictly liable to employees harassed by supervisors. Despite SCOTUS’s ruling in Vance v. Ball State last year, this court did not rule on who was a supervisor under applicable law.

TAKEAWAY:  It is important to know for what a supervisor might be legally liable and, to the contrary, what only an employer can be liable for.  Supervisors must be properly trained in what can be considered harassment and what the company’s policy provides for if it (allegedly) occurs by a co-worker or the supervisor him/herself.

The post on Friday 5/2/14 talked about religious accommodation and the need to accommodate – or the employer can land in hot water. Read the post for the background facts.

TAKEAWAY: Remember that in this age of diversity, accommodation becomes all the more important in the workplace.

Finally, yesterday 5/3/14, we posted about a war story where the employer found itself in trouble for refusing to accommodate the employee’s disability under the ADA.  The end result is the employer settling for $50,000. How did that come about? An employee with breast cancer needed surgery; she submitted the appropriate medical certification. A month after her leave started, the company told her it had denied her leave and she was being discharged for absences.  She filed a charge with the EEOC alleging an ADA violation. The EEOC ended up suing on her behalf. Then, instead of going to trial, the settlement came about.

TAKEAWAY:  This could have been avoided by the employer engaging in the interactive accommodation process as required under the ADA (and not undermining itself). Also, the employer should have viewed the situation under the FMLA too (as that usually goes hand in hand with the ADA).

 

     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.

Monday
Apr212014

Our Social Media Posts This Week -- Apr. 20 - 26, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, Sunday 4/20/14 was both Easter and Passover. We shared holiday greetings to all.

TAKEAWAY: Yes, even we take time for the holidays. You should too.

On Monday 4/21/14, we posted one reason not to go to Jared: allegations of pay disparity by gender. The class-action lawsuit was filed against Sterling Jewelers, owner of the Jared chain, alleging that Sterling systematically discriminates against female employees in pay and denies them promotions and, at times, fails to respond appropriately to complaints of “persistent sexual harassment”. Yep, it’s not all sparkles for Sterling. One of the plaintiffs is a store manager who was paid less than her husband, also a store manager. This suit will go to arbitration based on a provision in the employment agreements. NOTE: the EEOC had filed a prior class-action suit against Sterling in 2008 on behalf of 44,000 female employees, claiming denial of promotional opportunities and unequal pay. A judge just dismissed that suit, saying the EEOC had not investigated enough to justify a class suit.

TAKEAWAY: If there is a difference in treatment (job assignment, promotion, pay) between male and female employees, there better be a legal explanation for that difference. If not, the employer will be brought to heel and to suit.

Next, on Tuesday 4/22/14 we learned that all is not coming up roses this spring, at least for the Merry Maids franchise sued by the EEOC for pregnancy discrimination. Allegedly the employee suffered from pregnancy-related health issues but her ability to perform her job was not impacted. The EEOC was unable to settle the claim and so brought suit.

TAKEAWAY: When pregnancy is involved, an employer cannot treat the person differently than any other employee, especially if job performance is not affected.

On Wednesday 4/23/14, the psot was about bosses looking for the “dream team” and landing the employer in hot water.  For what? Age discrimination. Sometimes a supervisor will want younger team members, and this can come at the expense of older workers. The example cited was a 50-year-old male employee who met sales goals but, nonetheless, was placed on a performance improvement plan and given new goals. He did not meet those new goals and was discharged. His replacement, a younger female, also did not meet the new goals, but was not put on a PIP nor discharged. The male employee sued for age discrimination. One of the things cited by the employee as evidence was his supervisor’s comment that “he didn’t like working with employees who were ‘long in the tooth’ and found it easier to manage younger employees.”  Ouch for the employer since the case will now go to a jury.

TAKEAWAY: Employers must train supervisors and make sure that they are doing what they are supposed to (or, conversely, not doing what they should not be). If anything looks it might be discriminatory, stop it, investigate, and (attempt to) remedy it. Don’t wait for the suit.

On Thursday 4/24/14, the post was about how and where prohibited employment practices arise in real life. The post was authored by the EEOC and includes some examples of where employers can get tripped up: job advertisements, recruitment, application & hiring, background checks, job assignments & promotions, pay & benefits, discipline & discharge, and many more (go to the post to see the rest). What seems like an innocuous question or practice might, in reality, be discriminatory and violate one or more laws. It is a big ocean and there are lots of relevant and applicable employment laws – federal and state - swimming around in that ocean.

TAKEAWAY:  There are examples every day of employers putting their foot in their mouth, even unintentionally; don’t be one of them. Talk to an employment law attorney and make sure you and your maangers know what to ask or do and what not to.

The post on Friday 4/25/14 was about whether an employee was fired for a safety violation or his use of intermittent leave.  The court sent the matter to trial under both the FMLA and ADA.  The 18-year employee, Smothers, was injured in 1994; he had three surgeries and other medical procedures but the pain did not go away. He was granted intermittent leave under the FMLA for absences due to his medical condition. Coworkers and managers started to complain about Smothers’ leave; it affected them more since he worked the graveyard shift and there were fewer employees on that shift already. His supervisor pressured him to switch shifts and he refused; HR told the supervisor to stop the pressure, which he did, but the complaints about Smothers’ leave didn’t stop. Further, in 2005 or 2006, Smothers was given a poor evaluation and was denied a promotion due to the absences. A few years later, Smothers argued with another employee about a safety issue. The other employee reported it and supervisors talked to Smothers. This was his first safety violation. During the investigation, nobody talked to Smothers about what happened. He was discharged and sued. The court ruled there was enough evidence (of unequal enforcement of rules, the use of FMLA-protected absences in evaluation and promotion decisions, and the shift-change pressure) to let a jury decide if the discharge was due to the safety violation or if that was pretext for the FMLA violation. The court also found Smothers was disabled under the ADA and a jury could decide whether or not there was disability discrimination.

TAKEAWAY: Managers or others charged with evaluating employees must be trained on when they can and cannot take absences into account; also, an employer who has rules/polices in place must uniformly enforce them or have a very good reason why they did not. It is easier (and cheaper) to do the right (legal) thing than to litigate.

Finally, yesterday 4/26/14, we posted about whether the Lehigh University professor who filed a discrimination complaint and lost her job experienced retaliation or not.  The professor was employed under a contract which was not renewed after she filed a complaint with the EEOC alleging sex discrimination, including the University’s alleged failure to enforce rules in a gender-neutral way and imposing rules on her not imposed on male colleagues. Only time (and a judge or jury) will tell if the failure to renew the contract was performance-based or retaliation for the filing of the EEOC charge.

TAKEAWAY: If a rule or policy exists, then it should be enforced evenly across the board unless there is a valid, legal reason to the contrary; employers should consult an employment law attorney on whether the reason is indeed legal. Nobody needs bad publicity or, even worse, a judgment finding the business violated the law.

 

     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.

Monday
Apr142014

Our Social Media Posts This Week -- Apr. 13 - 19, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the prior week.  You can check out the full posts by clicking on the links.

First up, the post on Sunday 4/13/14 was a quick note about another ruling by the NLRB that could affect you, this time finding that a company’s warnings to employees using company email to communicate with co-workers about new background check requirements, but allowing such email to be used for non-work-related activities, were a violation of the NLRA.

TAKEAWAY: Again and again the NLRB is reminding us that THE NLRB MATTERS, whether or not the business is unionized, and it will take action if there is a violation. Make sure your policies and actions comply.

On Monday 4/14/14, the post was about the ADA and web accessibility. Who was involved: the US Dept. of Justice and H&R Block. What was it about? A settlement of a suit alleging that H&R Block needs to make its websites and mobile apps accessible (to blind people) under the ADA. The suit was brought under Title III of the Act (which deals with public accommodations), an area where court decisions have split on applicability to the on-line presence of places of public accommodation.

TAKEAWAY: Businesses should be concerned with Title I of the ADA (accommodating employees), but also making sure any on-line presence is accessible under Title III if the business is a public accommodation.

Next, on Tuesday 4/15/14 we followed Sunday 4/13/14’s post about the recent NLRB ruling that affects everyone and noted that the Board also said that the company’s rule requiring employees to avoid actions “that could reasonably be expected to … discredit the [employer] “ and disciplining employees pursuant to that rule was ok.

TAKEAWAY: yes Virginia, you need to be aware of the NLRA and how it might apply to your company’s policies and rules - even if you are not unionized.

On Wednesday 4/16/14, we talked about a recent federal court ruling that a temporary impairment can be a disability under the ADAAA. The quick background is that the employee worked for a government contractor; his job required travel to the client’s location. The employer’s policy permitted employees to work remotely if the client approved. After injury, he asked the employer about STD and working remotely during recovery. The employer agreed to discuss accommodations to allow for a return to work but suggested STD. The employee followed up with emails to his employer and the client on how he might return to work, including working remotely. The employer never replied, nor did it engage in the interactive accommodation process. Rather, it discharged him. He then filed suit under the ADA alleging wrongful discharge (due to disability) and failure to accommodate. The trial court dismissed both claims and he appealed only dismissal of the wrongful discharge claim. The appeals court looked to Regulations and ADAAA cases to see if the employee was disabled -  even with a temporary impairment – and found that he could be.

TAKEAWAY: the ADAAA broadened the definition of disability; employers must be aware of what is or is not covered. The safest course is for an employer to assume the employee will be found disabled udner the Act and to engage in the interactive accommodation process.

On Thursday 4/17/14, the post was about when it is ok to deviate from a progressive discipline policy. The short answer is “it depends”. On the policy language. On the reason for deviation. On the records and treatment of the subject employee and others against whom the same policy was or was not enforced. 

TAKEAWAY:  If an employer has a policy, it should enforce the policy; any deviation should be carefully thought out and, if possible, discussed with an employment attorney to ensure awareness of possible legal ramifications.

The post on Friday 4/18/14 was about whether beauty is only gender deep. Ah yes, another company settles with the EEOC. Here the company sold makeup, beauty products, jewelry and other personal care items to retailers. The EEOC alleged that the company refused to hire males in managerial positions (and in retaliation for a complaint, set up for failure the “token” male so positioned). The company has to pay over $350,000 plus agreed to other tracking and reporting requirements.

TAKEAWAY: gender discrimination is not only the province of females; males are protected too. Employers must be conscious of ANY discrimination due to gender.

Finally, yesterday 4/19/14, we posted about whether a non-Union employer having no evidence could still result in a violation of the NLRA. Hint: the answer is YES. At issue was a non-Union company’s confidentiality policy (which prohibited general discussion of “financial information” and “personnel information”.  Huh? The NLRB said that employees could reasonably construe the policy as saying they would be terminated if they talked about wages with anyone outside of the company. The company argued that there was no evidence that it had enforced the rule in that way or that employees even interpreted the rule that way. The court said none of that mattered because the policy was too broad.

 TAKEAWAY: Even for a non-Union employer, policies must be specific enough so as to avoid possible violation of the NLRA but still tell employees what their rights and obligations are.

 

     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.

Sunday
Apr132014

Our Social Media Posts This Week -- Apr. 6 - 12, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, the post on Sunday 4/6/14 was about whether grooming standards are subject to accommodation. The School District of Philadelphia found out the answer is yes – when it was sued by the Justice Department for religious discrimination.  The grooming standard at issue prevented school police officers and security officers from having beards longer than one-quarter inch. The plaintiff had a beard longer than that for the 27 years he worked there and there was no evidence it interfered with his job performance.  The School District refused to allow the beard based on his religious beliefs.

TAKEAWAY: Many companies have grooming or dress standards, but like other areas of employment, they too are subject to accommodation for religious beliefs. Don’t say "no" out of hand (or you may find yourself being sued and handing over money to an employee).

On Monday 4/7/14, we talked about the push & pull of Title VII accommodation - motherhood (puppies and apple pie).  The simple facts were that the employee returned from maternity leave, was denied immediate access to a lactation room despite increasing discomfort, was told she had two weeks to catch up or she would be disciplined, and was told, when she became visibly upset, that she needed to go “be with her babies.”  Seems like a slam-dunk for the employee, right? Nope. The court said it was her own fault because she failed to submit paperwork for access to a lactation room, that a nurse offered her the use of a wellness room, that her supervisor’s expectations were reasonable given her department’s priorities, and that she unreasonably failed to give the employer a chance to remedy the problem she was experiencing because she quit the very day she returned. Expectations reasonable? Yes, because the supervisor expected all of his employees to keep their work current and timely completion was a high priority. The employer’s policies treated all nursing mothers and loss mitigation specialists alike.

TAKEAWAY: Employers need not be afraid to take adverse action against a seemingly-protected employee if s/he has not complied with something s/he should have.

Next, on Tuesday 4/8/14 we talked abut the proper way to request FMLA leave so as not to waive that right. The #1 rule: talk to an employment law attorney to know your rights. Whether employer or employee, know what is or is not required under the FMLA. And know that not following the law can be deemed a waiver of the right to take FMLA leave (and therefore the protections that accompany FLMLA leave).

TAKEAWAY: While no specific language is required to request FMLA leave, employers and employees should also know what language IS required; if it is not used, then the employee has no protection under the FMLA.

On Wednesday 4/9/14, the post was about what a potential employer has to tell or give applicants about background checks.  Are you familiar with the federal Fair Credit Reporting Act? If you use background checks, or if you ask applicants for permission to obtain one (whether or not you actually do), then you need to know the law. There has to be a specific, separate authorization form and it cannot release liability based on the background check. If the law is not followed, there could be invalidation of the authorization, statutory damages in the amount of $1000 for each applicant, costs and attorneys’ fees, and, potentially, punitive damages.

TAKEAWAY: If you (think you might) use background checks, then you better know how to do it properly; if not, it can get ugly in so many ways.

On Thursday 4/10/14, we talked about what happens to credit union debt when someone files for bankruptcy protection.  A debt owed to a credit union is not like other unsecured (or secured debt); it plays by its own rules at times. For one thing, if someone who files for bankruptcy tries to get out of repaying a loan to a credit union, it can take any money in accounts at the credit union and refuse future services to the person. Why? Because most credit unions have agreements signed by all members that if the member causes a loss to the credit union, then it is entitled to (do) certain things.

TAKEAWAY: If bankruptcy is in the future, talk to an attorney about the ramifications relative to credit union debt.

The post on Friday 4/11/14 told you about 6 do's and don'ts for handling gossip in the workplace.  These are all good common-sense but legal ways to deal with the mole hill before it becomes a mountain. One don’t: Tell employees to “shut and go back to work". One do: Explain to employees that if they have issues or questions about policies in the workplace, then they need to discuss them with the appropriate person. The other do’s and don’ts are in the post.

TAKEAWAY: Gossip has no place at work; employers must handle it the proper (and legal) way so that employees can just get back to work.

Finally, yesterday 4/12/14, we talked about whether your Handbook is legally compliant. Does it include a policy similar to this:  “Any communication transmitted, stored or displayed electronically must comply with the policies outlined in {Company's} Handbook. Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Company's Handbook, may be subject to discipline, up to and including termination of employment.” If so, you need to talk to an employment lawyer now! As you know, the NLRB has really been cracking down lately, and it found that the above policy was too broad and violated the NLRA.

 TAKEAWAY: It is more important than ever to have your Handbook reviewed for legal compliance; the NLRA applies regardless of your company's (non)Union status.

 

     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.