ICYMI: Our Social Media Posts This Week – Dec. 31, 2017 - Jan. 6, 2018

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

In the post on Sunday 12/31/17 we saw that the Masterpiece Cakeshop had its day before SCOTUS – what we know as we wait for a decision. Five years ago a customer requested a wedding cake. Now that request is before the US Supreme Court. Ok, back to the history. Charlie and David asked Jack, masterpiece's owner, to create a cake for their same-sex wedding. He said no due to his religious beliefs. They filed a charge with the state HRC. The post details the rulings of the HRC, the state appeals court and the state supreme court on the way to SCOTUS. There, Phillips argued his constitutional rights to free speech and free exercise. Many individuals and groups filed briefs supporting the parties. Stay tuned.

TAKEAWAY: Constitutional freedoms are important, but they can't all be paramount – sometimes one must trump the other and that is what is to be decided here.

The post on Monday 1/1/18 wished you health, wealth and wisdom to see you through the year!

TAKEAWAY: It's a fresh start for all – make it a good one!

In the post on Tuesday 1/2/18 we learned the ex-CEO of BNA filed a wrongful termination suit against the airport authority. In firing him, the employer cited 6 issues (see the post). The suit, however, says the employer did not let him resume his duties when he returned from an approved FMLA leave. The bases upon which the suit was filed are in the post.

TAKEAWAY: Even if there is a legitimate reason for an adverse action, the timing can make it look suspect; be careful.

The post on Wednesday 1/3/18 was about an employee fired 2 days after company doctor suggests he suffered on-the-job hernia advancing claims. The discharge was allegedly for working unsafely. The federal court judge denied the employer's motion to dismiss and found in favor of the employee on various claims under the ADA and more (as in the post). To avoid being that employer, see what the employer did (as in the post) and don't do the same thing. Also keep in mind a lesser-used prong under the ADA (record of disability).  

TAKEAWAY: As with our post from 1/2/18, even if there is a legitimate reason for taking adverse action against an employee, keep in mind the timing of that action so that it doesn’t look suspect.

In the post on Thursday 1/4/18 we saw that $1.16M was awarded in a transgender employment discrimination trial. A jury trial. So what happened? Dr. Rachel Tudor, a male-to-female transgender tenure-track professor, sued the university employer, alleging that it discriminated against her on the bases of gender and gender identity (with specific bases and background facts mentioned in the post). The tenure committee recommended granting tenure; administrators rejected that recommendation. What happened next is in the post. DOJ filed suit on her behalf (wow!) and later she intervened with another claim. DOJ settled out prior to trial. The post explains in more detail what sex stereotyping is.  

TAKEAWAY: Litigation is proving out that discrimination on the basis of gender identity is illegal – but stay tuned since DOJ has now changed its stance under the current Administration.

The post on Friday 1/5/18 told us workplace civility rules get a boost from Labor Board decision. And yes, even you non-union employers care. In mid-December the NLRB overturned a prior decision and how (or whether) it applied (see an example in the post). Now, Boeing was successful relative to a "no-camera" rule banning employees from taking photos or videos on job sites without permission. The question now is whether the rule is mere workplace civility or something else. And that is where the EEOC will come in with possible discrimination.

TAKEAWAY: Yes employer, there is the ability to have civility rules, but make sure not to enforce them in a way that is discriminatory (and invites a second look from the EEOC).

Finally, in the post yesterday 1/6/18 we learned about common mistakes employers make in handling complaints of sexual harassment. So timely. And so important. First, there is the failure to promptly and competently investigate. In other words, don't be an ostrich. Keep that head up, acknowledge the complaint, and investigate it thoroughly (taking action if necessary). Four other common mistakes are in the post with tips on how to avoid (or remedy) them.

TAKEAWAY: Mistakes happen – but try to avoid them if possible by taking complaints of harassment seriously and processing them properly. Get legal help if necessary.


ICYMI: Our Social Media Posts This Week – Dec. 24-30, 2017

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 12/24/17 told us that "delete" will not save you in court: employers have a duty to preserve email evidence. A salesperson filed suit against her former employer; she alleged sexual harassment (details are in the post). After a discovery request to produce all emails between the plaintiff and her former boss, the employer deleted them and said they no longer had them (yeah, bad bad bad). The post tells what happened next and how that one stupid act alone hurt the employer.

TAKEAWAY: Don't ever destroy evidence! And follow the steps in the post after discussing them with your attorney.

The post on Monday 12/25/17 was a celebration of the season – and sent warm wishes from us to you.

TAKEAWAY: Always take time to celebrate what matters to you.

In the post on Tuesday 12/26/17 we asked: Where were sexual harassers' bosses? When all of the things of which people everywhere are being accused were going on, where were there bosses? Yes, the people in Hollywood and Congress and elsewhere. Those hallowed halls (and sets) and more are still workplaces. As noted in the post, there might have been willful ignorance by those bosses. That might eventually subject those same bosses to legal liability – see how the post explains it.

TAKEAWAY: Know what your employees are (not) doing – don’t turn a blind eye.

The post on Wednesday 12/27/17 gave us 5 lessons for employers from NBC's handling of the Matt Lauer termination. Sadly, all of the sexual harassment allegations everywhere and the employer's responses are good fodder for us and we can learn from them. So what can we learn from how NBC dealt with the Matt Lauer situation? First, be up-front and as accurate as possible in any public reports or disclosures. As noted in the post, don't issue contradictory statements – they only raise questions. Second, don't rush to make public disclosures. Yep, those contradictory statement again. Wait and make sure you have all of the correct facts. The other 3 tips are in the post.

TAKEAWAY: Act when allegations of harassment are lodged, but act appropriately and legally.

In the post on Thursday 12/28/17 we noted that reassignment can be a post-FMLA accommodation. First, remember that you may well have a duty to accommodate the employee returning from FMLA leave for his or her own illness. If the leave was extended beyond the statutory time, and the former position isn't available, you could consider reassignment. The post tells us how that played out in one case.

TAKEAWAY: Remember that the duty to accommodate does not mean the employee must get the accommodation that is being requested; rather (with certain caveats), AN accommodation must be provided if possible.

The post on Friday 12/29/17 told us the NLRB rolled back the joint employer test. This is good news for ALL employers (yes, even non-union) and potentially bad news for employees looking for a deep pocket. So now the test for liability as an employer depends on control (see the post for an explanation of how this is determined).

TAKEAWAY: Employers can rejoice (a bit), but not too much as the evidence still matters in determining potential liability.

Finally, in the post yesterday 12/30/17 we learned that FMLA mistakes aren't necessarily willful. This matters because it can affect the time in which the employee has to bring suit. Courts are to determine this on a fact-intensive basis as was done in the case in the post.

TAKEAWAY: Accidents happen and things do go awry in the workplace – even when an employer is trying to do the right thing. It may end up wrong, but not intentionally so.


ICYMI: Our Social Media Posts This Week – Dec. 17 - 23, 2017

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

In the post on Sunday 12/17/17 we noted racism is not necessarily employer's fault even if incident occurs on its premises. Read the post.

TAKEAWAY: There must be an actual nexus between the alleged discrimination and the employer's (in)action. Mere coincidence won't be enough.

The post on Monday 12/18/17 asked: What is a condo (or home in another planned community)? Know your rights and obligations. These types of homes come with legal documents that govern what you can and cannot do in and around (and sometimes on or in) your home, so make sure you read them and understand them before buying. And you pay for certain things, whether or not you want or need them. The post gives some examples of these and other categories.

TAKEAWAY: If you are thinking about purchasing a home that is in a community with a homeowners' association, make sure you understand the Governing Documents. Take them to an attorney.

In the post on Tuesday 12/19/17 we learned that employee told to "go back to Poland" suffered direct race discrimination (and noted this would probably play out the same here). The plaintiff alleged his colleague subjected him to many discriminatory behaviors, including his annual leave being denied unless he gave the colleague a bottle of vodka (and more in the post). The court said none of those was sufficient proof of discrimination under the facts before it, but it did find discrimination in one comment. The employee asked to work a shift with his daughter so he could safely walk her home after. The post contains the colleague's response and set up the company for liability.

TAKEAWAY: In the right circumstances, a single comment can lead to liability for discrimination Train your employees.

The post on Wednesday 12/20/17 told us that failing to address harassment allegations can cost employers (financially and in the court of public opinion). The first example in the post is when a complainant brought a response "Oh, no, not again". Not good. There are other examples in the post.

TAKEAWAY: If you receive an allegation of harassment, don't stick your head in the sand and hope it will go away – or automatically assume it is not well-founded. Investigate. And take action as warranted.

In the post on Thursday 12/21/17 we talked about he said / she said: pronoun use and the evolving landscape of transgender rights in the workplace. In other words, addressing someone using the wrong pronoun can subject your company to liability for sex discrimination or harassment. The post gives examples of some laws and cases Even the EEOC has guidance on this – see the post. Of course, the DOJ has now asserted that Title VII does not protect against discrimination on the basis of gender identity and so is at odds with the EEOC. Until a court decides this finally, employers should look carefully at the areas identified in the post to stay out of hot water.

TAKEAWAY: Make it easy on yourself – refer to your employees how they ask to be referred to. Simple.

The post on Friday 12/22/17 noted a former Penn State employee sued for more than $150,000 for age discrimination. Tracey was hired by PSU in 1985 and was promoted over her 31 years of employment. She was fired in 2017. She alleged it was based on age (not performance). A mere 8 days after papers showed how much she would get at retirement, the retirement program was changed. The post has the details. PSU denies any wrongdoing.

TAKEAWAY: If you are going to take adverse action against an employee, make sure it is for a valid reason and not one that you come up with after the fact.

Finally, in the post yesterday 12/23/17 we noted a move affecting income might be retaliation. Loose lips … You know. Leonard was a statistics professor, black and from Nigeria. He uses a textbook he wrote in his class, thus earning additional income. He filed many complaints over the years about being underpaid. Finally management agreed. But … see what happened next in the post. Aargh. And the court let his newest suit go forward.

TAKEAWAY: It's bad enough to discriminate against an employee. But you can almost bet that if it hits their pocketbook, they will file a charge or sue (thus hitting your pocketbook).


ICYMI: Our Social Media Posts This Week – Dec. 10 - 16, 2017

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

In the post on Sunday 12/10/17 we read about 4 types of employees nearly every company has and what to do about them. We noted that you will recognize all of them. First is the office romance. The employee who brings love to co-workers. Whether or not it is a problem for an employer depends on consensuality, chain of command, and more. See the post with how to deal with this. Other types include the office revolutionary and 2 more in the post (which also talks about how to handle them).

TAKEAWAY: You don't have to like all of your employees, but you do have to treat them legally (and pursuant to your policies).

The post on Monday 12/11/17 noted that prior entitlement to FMLA leave is not a free ticket to miss work for non-FMLA covered reasons. In a case binding on us here, the court affirmed an employer's decision to discharge an employee pursuant to its absenteeism policy despite the employee's prior FMLA leave. Why? See the post. The court looked at her work history, the FMLA leave, and more in the context of her FMLA interference and retaliation and ADA claims and dismissed them all. The reasoning is in the post.  

TAKEAWAY: Even if an employee had an approved FMLA leave, you can still enforce your absenteeism policy for absences not related to the reason for the FMLA leave.

In the post on Tuesday 12/12/17 we saw that the EEOC (finally!) scores victory in sexual orientation discrimination lawsuit. And in a federal court in Pittsburgh to boot! The court awarded more than $55,000 to the EEOC on behalf of the employee. This was one of the first cases the EEOC filed about sexual orientation and one of the first holding sexual orientation discrimination is prohibited sex discrimination. So what is the background? Dale was a telemarketer. From day 1, his supervisor harassed him about his sexual orientation – the many ways he did it are in the post. Dale reported it and the CEO/owner did nothing. Dale quit, field charges … and here we are. The post contains more details on the suit and the damages phase, including where the employer fell short.

TAKEAWAY: Make sure to train employees on anti-harassment and anti-discrimination policies. Then enforce those policies.

The post on Wednesday 12/13/17 was about how to identify serial harassers in the workplace. You know, those people who do it again and again, with impunity. Many accused of that behavior have been or are in the news now. An article mentioned in the post talks about ensuring that the first to report is not victimized again – by creating some type of repository until there is another. The post explains how it might work and change the culture that seems to pervade today's society.

TAKEAWAY: Whatever system you choose in your workplace, encourage reporting of harassment – and then investigate and take action as appropriate. Don't turn a blind eye.

In the post on Thursday 12/14/17 we found out that timing is everything when defending a retaliation claim. Especially with this case that is binding on us here in Central PA. Miriam worked as a ticket agent for a bus company. She was fired. Two weeks after telling the company she needed FMLA leave for breast cancer surgery. The post gives more background details – you will (hopefully) cringe when your read them. The court did and let Miriam's retaliation claim go forward. The rationale is in the post.

TAKEAWAY: If you take adverse action against an employee, make sure there is a valid, legal basis for it – from all angles.

The post on Friday 12/15/17 told us about a car dealership paying $150,000 to settle a discrimination suit. That's a lotta green! The suit alleged that it paid Chinese technicians less than other workers. And more – in the post.

TAKEAWAY: Don't tell an employee anything you wouldn't want to see on the front page of the Washington Post – and don't pay them less for a reason that isn't legally valid.

Finally, in the post yesterday 12/16/17 we see the Department of Labor aggressively pursuing back pay claims. And suggest you not be on the wrong side – contact us. The FLSA is sometimes confusing, but don't get mired down and end up paying more than you had to from the start. The post gives a good (but hopefully extreme) example of a small amount being owed but not paid for overtime, the employee complaining, and nothing being done – until the DOL filed suit.

TAKEAWAY: Make sure to properly pay employees, each and every pay period.


ICYMI: Our Social Media Posts This Week – Dec. 3 - 9, 2017

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

In the post on Sunday 12/3/17 told us that B&H Photo settled a race, sex bias suit for $3.2M. (This follows an earlier post we did on this suit). The underlying suit contained allegations of discrimination against women, blacks and Asians who applied for employment at the NY warehouse. The post explains why discrimination was alleged. Now current and former employees get some money for their troubles.

TAKEAWAY: Stay on the right side of the law – hire and promote based on ability and performance, not gender or race.

The post on Monday 12/4/17 showed us Sexual harassment: Congress paid up to $17M in workplace-related settlements since 1997. That's our tax money! And it has gone to pay "settlements and awards to federal government workers in cases of workplace discrimination or unjust working conditions." Private plaintiffs are not guaranteed collecting on settlements or awards, but apparently we the taxpayers fund those guaranteed payments for federal public employees. Read the post for more sordid details.

TAKEAWAY: Know where your tax dollars are going!

In the post on Tuesday 12/5/17 we saw that employees who steal don't win discrimination cases but might win defamation cases. Employers, take heed. Jason worked in the IT department; he had a medical condition that flared up unexpectedly. He was approved for intermittent FMLA leave after being out on FMLA leave a bit. He ended up taking STD leave, intending to parlay that into LTD and retirement. But those plans went awry when the employer found he'd taken company assets and destroyed others. The post gives the specifics – oh Jason. He was terminated. The company also took another action – see the post. Jason lost his disability discrimination and FMLA interference and retaliation claims. But he was able to move ahead on the other claim – see the post.

TAKEAWAY: The company should never have taken the other action, especially when it could have been achieved through another means.  

The post on Wednesday 12/6/17 gave a tip: Employers, take the easy way out: no FLSA jurisdiction. Huh? The plaintiff filed suit under the FLSA, alleging a pattern and practice of not paying the class minimum wages and overtime. More details are in the post. The court looked to see if the definitions under the FLSA were met (so that the employee had the right to sue. It came down to whether or not the employer had annual gross sales/business of at least $500,000. The company argued it did not. The post details what it provided as well as the plaintiff's counter-argument and the court's ruling.

TAKEAWAY: In any suit, make sure the jurisdictional requirements have been met or move to dismiss on that basis – you just might get an easy out.

In the post on Thursday 12/7/17 we asked you to Choose: totally disabled or disabled needing accommodation. The two are not always mutually exclusive. And that makes sense if you think about it. If an employee claims to be totally disabled, then no accommodation could help that person perform the essential duties. If, however, accommodation might help, then the person is not totally disabled. The post gives an example of how this played out.

TAKEAWAY: Be aware of the multiple positions an employee is taking on an issue, especially if they are in conflict.

The post on Friday 12/8/17 was about 3 lessons on holiday parties from "The Office". Yes, the TV show. So what are the tips (from which you can analogize)? One, don't drink so much that you set your hair on fire. A good one! It means that you should always remember that while it is a party, it is a work party – it can affect your job. The other 2 tips are in the post.

TAKEAWAY: Tis the season – for an "oops" at holiday parties and the ensuing discipline – talk to an employment law attorney about how you should (re)act.

Finally, in the post yesterday 12/9/17 we read 5 tips when picking a condo (or other home in a planned community). The first tip is to see if the unit is FHA approved. Why? Because this can seriously impact your ability to finance the sale price (or to sell the unit at a later date). The second tip is to inquire about storage. Whether condo or detached home, know where you can put all of your stuff – you don't want a big surprise after you move in! The other 3 tips are in the post. These tips all lead back to the Declaration (filed document creating the association), Bylaws and any Rules/Regulations – together referred to as the Governing Documents.

TAKEAWAY: The Governing Documents are legal documents that tell you your rights and obligations as an owner– let us review them for you so you know what they say.


ICYMI: Our Social Media Posts This Week – Nov. 26 - Dec. 2, 2017

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

In the post on Sunday 11/26/17 we asked: Want to kill a sex discrimination class action suit? Ford Motor Company case is blueprint. This may not affect too many employers, but it is still instructive for all. The post tells us that the process can be the game-changer – so employers might want to take notice.

TAKEAWAY: If you are engaging in allegedly discriminatory actions, and are the subject of both administrative and judicial actions, resolving one might spell the death knell for the other.

The post on Monday 11/27/17 confirmed: Employee ignored work rules? No unemployment benefits. Yes employers can have rules. Yes they can enforce them. But what is employees break those rules? Can they still recover unemployment benefits? The post answers that question. And explained why.

TAKEAWAY: Know what gives you a valid basis to fight an employee's eligibility for unemployment benefits.

In the post on Tuesday 11/28/17 we reminded you to beware small changes that could be retaliation. If something changes during an FMLA leave, that something might be illegal, even if it's small. The post shows how that plays out – and a court's reaction.

TAKEAWAY: If an employee is taking an approved FMLA leave, don't make changes to the job unless they were in the works before the leave (or can otherwise be legally justified).

The post on Wednesday 11/29/17 was about providing reasonable accommodations under the ADA Regulations. Covered employers (defined in the post) must provide reasonable accommodation to enable a covered employee to perform the essential functions of the job. But what is reasonable? Some examples are in the post. But that comes only as part of the entire process (again, laid out in the post).

TAKEAWAY: Know when you must engage in the interactive accommodation process, when you don't have to, and the reason for each.

In the post on Thursday 11/30/17 we read that not all jokes, propositions are necessarily workplace sexual harassment. Good to know with everything that is going on. First, as the post points out, they have to be "harassment". Then they have to be work-related. There are also other requirements as in the post.

TAKEAWAY: Employers should never condone off-color jokes or sexual propositions, but their mere existence does not necessarily mean that illegal harassment occurred. Check with your employment law attorney.

The post on Friday 12/1/17 was a reminder: personal email is discoverable. A federal judge just served up that reminder in a sex discrimination case. Emails are sent from so many sources – all may be subject to turnover in litigation. The post has a few tips to help in this area.

TAKEAWAY: If you don't want a personal email account to be fair game in litigation, don't use it for work-related emails.

Finally, in the post yesterday 12/2/17 we saw that the feds fined a potato processor $100,000 for employment status discrimination. The allegations were that it discriminated against immigrants during employment authorization verifications. The post tells how certain people were singled out (and why that was allegedly illegal). But it settled, for a lot of taters.

TAKEAWAY: Treat all employees the same unless there is a valid legal reason to treat them differently – and then check with your employment law attorney just to be sure.


ICYMI: Our Social Media Posts This Week – Nov. 19-25, 2017

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

In the post on Sunday 11/19/17 we noted that one who could get to work on time by waking up an hour earlier isn't entitled to an accommodation allowing her to be late. Seems logical, right? Well apparently not as a case like that made it to federal court here in Pennsylvania. The employee had to be at work at 8:30am and needed 60-90 minutes before driving to allow her medically-prescribed eye drops to work. Her saga is in the post. The employer suggested she wake up earlier to arrive on time; she ended up being discharged. And then sued. The Court's ruling and rationale (which are exceedingly logical) are in the post.

TAKEAWAY: Engaging in the interactive accommodation process is required – but not providing the exact accommodation requested. Or even any accommodation if none is needed.

The post on Monday 11/20/17 noted that it's almost time to deck the (workplace) halls. Read the post. Why? To ensure that you don't offend anyone = give anyone basis for suit. The post talks about some situations and what is or isn't required to be done, along with EEOC guidance.

TAKEAWAY: yes, you can celebrate in the workplace, but in an even, legal way, so check with your employment law attorney if you are not sure what (not) to do.

In keeping with the holiday theme, in the post on Tuesday 11/21/17 we noted it's also time to think about holiday bonuses … Whether to give them is up to you as the employer, but keep in mind how they can affect pay and overtime compensation. First, for non-exempt employees (probably most of your workforce), bonuses are part of "regular compensation" – used to determine the rate of overtime pay - unless they fall within an exception (you knew there was a catch, right?!?). The post explains the exemption for a true holiday or special occasion gift. The post also explains year-end bonuses that don't fall within the holiday gift exception, but are still exempt. Finally, the post provides a short test as to whether a bonus is exempt or not.

TAKEAWAY: You can make your employee's joyous with year-end or holiday bonuses, but make sure you know what if any effect that has on their compensation and overtime pay.

The post on Wednesday 11/22/17 told us Netflix settles after employee accuses it of tolerating harassment and discrimination. And the concerned employee was a former HR Director! After making a complaint and being fired, he sued. The details are in the post, including male on male sex harassment. Netflix' statement in response to the complaint and settlement is also in the post.

TAKEAWAY: Even short-time employees can file charges or suits – don't underestimate them. Of course, the best thing is not to take (or omit taking) illegal action in the first place – or clear any adverse action with your employment law attorney.

In the posts on Thursday 11/23/17, here and here, we suggested you give thanks for all you have and share your bounty with others.

TAKEAWAY: Sometimes we must take a moment away from work to say thank you – to those who've helped us and to those we can help.

The post on Friday 11/24/17 reminded us that a worker must object to harassment before suing. Yep. With everything that is in the news these days, it is timely to remember that an employer cannot take steps to stop or cure harassment or discrimination of which it is not made aware. The post talks about an employee who, after working at the same store for 40 years, quit. Her reason is in the post, as are the types of harassment she alleged occurred. The court's ruling on her suit is also in the post.

TAKEAWAY: Investigate every claim or charge that is made by an employee – and make sure to train your employees to encourage reporting.

Finally, in the post yesterday 11/25/17 we noted that after Harvey Weinstein, contracts that keep employees quiet are under scrutiny. Employees and their employers are free to contract away certain rights that might otherwise exist – but some legislators want to change that. See the post for the pending legislation. The intent is to help clarify the provisions in agreements that some argue are unclear and might deter reporting of harassment and discrimination. The contrary view is that employees sign such agreements in exchange for large sums of money and to protect their reputations and careers. Maybe both are right …

TAKEAWAY: Employers should make clear that NDAs and confidentiality agreements pertain only to work product, processes, and company information, not to illegal harassment or discrimination.


ICYMI: Our Social Media Posts This Week – Nov. 12-18, 2017

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

In the post on Sunday 11/12/17 we talked about website accessibility - the emerging trend under the ADA. In June of this year, a federal court in Florida ruled against Winn Dixie and in favor of a visually-impaired man under the ADA. Then a mere 2 days later, a federal judge in California allowed a similar suit to go forward. Finally, and more recently, 2 federal judges in NY denied business defendants' motions to dismiss website accessibility suits. The analyses for all are in the post. So how do you know if you should be worried? The starting point is to find out if you are in one of the 12 categories of businesses considered "places of public accommodation" and therefore subject to the accessibility requirements. The post even talks about how it works if there is no physical place of business, but only an on-line presence. A suggested reference is also in the post.

TAKEAWAY: Website accessibility is not the next frontier – it is the current battleground. Check your site now to avoid legal trouble later.

The post on Monday 11/13/17 was about a Court breaking from DOJ on transgender rights. This follows DOJ's announcement that Title VII does NOT prohibit discrimination based on gender identity (contrary to the EEOC's stance). The federal court in Oklahoma issued a ruling in late October in a case brought by a transgender former professor alleging harassment and discrimination on the basis of gender identity after having been denied tenure following her transition. The post tells of the procedural path and why the suit will go forward. The most important part is that the Court rejected the argument that gender identity is not protected under Title VII. The Court also ruled on the claims of hostile environment and the Faragher/Ellerth defense – those too are discussed in the post.

TAKEAWAY: Courts will not always rule on an issue in a particular way just because the government says that is the way they should rule – they will look at the facts and applicable law and make a legal interpretation and ruling.

In the post on Tuesday 11/14/17 we learned that 9 credit unions are hit with ADA suits over websites. The suits were filed in federal court in Virginia by the same plaintiff for alleged violation of the ADA. The basis for suit is in the post. Website accessibility is a big deal now.       

TAKEAWAY: The ADA applies to most businesses and website accessibility is the next (well, current) frontier – make sure yours is legal before you end up on the wrong side of any judicial determinations.

The post on Wednesday 11/15/17 told us that a discrimination lawsuit was filed against a county based on association. Robert Straub worked in the Business Resource Center – he took a 30-day leave under the FMLA to care for his wife. A mere 4 days after he returned from leave, he was discharged. Comments made by the administration (or relatives of administration members) are in the post – and should make you say "yuck". The suit was for violation of the FMLA as well as retaliation for association with Robert's wife, a disabled person.

TAKEAWAY: Remember this category under the ADA – association with a disable person. Don't take action based on that.

In the post on Thursday 11/16/17 we had answers on outside employment, firing works on leave, and the FLSA. The first question is whether a company can prohibit its employees from getting outside work. The answer is maybe – if there is a conflict of interest or it violates a legal policy of the employer. The other 2 questions are in the post with the answers.

TAKEAWAY: Know the law – including legal policies, FMLA leave and how it affects business decisions, and FLSA requirements for overtime pay. Contact an employment law attorney for help.

The post on Friday 11/17/17 was about 3 more former Tesla workers alleging racial discrimination and harassment. Yep, a collective ugh. The newest suit was filed by African-American men. They say that coworkers and even supervisors routinely called them the N-word. And more as noted in the post. Complaints did not make the behaviors stop. When the first suit was filed, Tesla investigated – but see the post for what happened. The suit is pending.

TAKEAWAY: Train your employees – management level and other – on what they can and cannot say and do – and then enforce it, with discipline, even discharge, if necessary.

Finally, in the post yesterday 11/18/17 we asked: is customer info a trade secret? Well, not so fast … In this case, a pharmaceutical-return company tried to enjoin former employees from operating a competitor business. It got a TRO and asked for a preliminary injunction which the competitor company opposed. The court's analysis of the terms of the restrictive covenants at issue is in the post and is instructive on how to draw up such a provision and make it stick, starting with how the company seeking the injunction protects its information.

TAKEAWAY: Restrictive covenants serve a purpose; if you are unsure if yours will be upheld when they come into play, check with an employment law attorney.


ICYMI: Our Social Media Posts This Week – Nov. 5-11, 2017

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

In the post on Sunday 11/5/17 we noted that no boss should comment on language skills, hearing - unless s/he wants to put the employer at risk. The risk is of the employee claiming the existence of a hostile working environment. The post gives an example about how this might play out. Don't let it play out like this for your company.

TAKEAWAY: Treat employees respectfully – even – and especially – when they are different. Unless it has to do with performance, don't comment on differences in speech or hearing abilities.

The post on Monday 11/6/17 noted EEOC sues Professional Endodontics for age discrimination (and suggested you review your policies). The employer was a dental surgery practice; it is now a defendant in a federal lawsuit brought by the EEOC. The post tells us the allegations relative to Karen, a 37-year employee.

TAKEAWAY: Policies or decisions made solely based on age are most likely illegal – talk to an employment law attorney.

In the post on Tuesday 11/7/17 we noted you should feel free to terminate if you find wrongdoing while employee is out on FMLA leave. (But consult an attorney to be sure.) Remember that the key is not to terminate because the employee was out on FMLA leave; but termination for other (valid, legal) reasons is ok. The post gives an example. Tracey worked for a company and also had her own business; as part of that, she signed an agreement with the employer. The terms of the agreement are in the post. While Tracy was out on FMLA leave, a colleague told the employer she had violated the agreement. She was fired and sued. The post provides the outcome of the suit and the rationale.

TAKEAWAY: Remember the key: termination for a valid reason other than taking FMLA leave is acceptable.

The post on Wednesday 11/8/17 noted for dreadlocked servicewoman, the fight for acceptance is both a military and civilian battle. And she has been fighting this battle for over 4 years. It centers on grooming regulations prohibiting soldiers from wearing natural hairstyles. The post gives the detailed history, including the definition of "natural hairstyle", and what the Army finally did this past February relative to some of the hairstyles. So the military battle is partly won, but the civilian battle remains – see the post as to why.

TAKEAWAY: Dress and grooming policies often include prohibitions on certain hairstyles – make sure they don't infringe on an employee's religious beliefs.

In the post on Thursday 11/9/17 we learned that former Tesla factory workers are suing over claims of racially motivated abuse. This is the 2nd suit against Tesla by African-American workers at the Fremont factory. Tesla said there were no internal complaints filed. The allegations in the suit as noted in the post differ and provide some details about what happened. As an aside, tesla also faces an inquiry before the NLRB on whether or not it sought to suppress unionization.

TAKEAWAY: Make sure to train managers on what not to say or do – and how to deal with co-workers who harass or discriminate.

The post on Friday 11/10/17 was about avoiding employment lawsuits over the holiday season. Yes, you need to start to think about it now. The post mentions some things, including religious discrimination (don't do it!) and accommodation (do it!) and the holiday party – voluntary, mandatory, liability for injury, and more.

TAKEAWAY: Don't stop celebrating the season – just do it legally and so it doesn't infringe anyone's rights or beliefs.

Finally, in the post yesterday 11/11/17 we noted a bus driver fired for refusing "Mark of the Devil" in background check can sue employer. The employee didn't want to be fingerprinted for her background check on religious grounds. The employer fired her, thinking fingerprinting was required under applicable law. She then sued. The post tells of her bases for suit and what the employer could or should have done.

TAKEAWAY: It can be difficult when one law requires an employer to do (or not do) something, but another law requires it to do something else – consult an employment law attorney to help determine which law takes precedence.


ICYMI: Our Social Media Posts This Week – Oct. 29 - Nov. 4, 2017

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

In the post on Sunday 10/29/17 we asked: did Trump's staff break the law by using private email? Or are they just hypocrites? First, the referenced staff members were his son-in-law (and adviser) Jared Kushner, daughter (and adviser) Ivanka Trump, former chief strategist Steve Bannon, former Chief of Staff Reince Priebus, and advisers Stephen Miller and Gary Cohn. The post includes opinions from 7 legal experts in response to the question and what law(s) might be applicable, especially if there are national security implications. The opinions in the post make interesting reading.

TAKEAWAY: Don't claim someone else did something illegal and then turn around and do it yourself – even if it turns out not to be illegal, you will be a hypocrite. This holds true in the workplace and in politics.

The post on Monday 10/30/17 showed that the Plaza Hotel faces multiple sex harassment charges (and noted it's not 5-star behavior if true). Six employees have filed suit against the prestigious NY hotel (part of the Fairmont chain) alleging illegal behavior by senior management and male colleagues and that the owners did nothing when they complained. The post talks about the behaviors of which they complain.  

TAKEAWAY: If an employee makes a complaint, investigate it – and take action if warranted.

In the post on Tuesday 10/31/17 (and here) we wished you a Happy Halloween and reminded you to follow workplace rules (especially dress codes).

TAKEAWAY: Holidays let employees express themselves, but not to the detriment (or in violation) of company policies.

The post on Wednesday 11/1/17 told us that Blac Chyna sued the Kardashians over slut shaming. Yes it's relevant to the workplace. The suit claims that the Kardashians intentionally defamed and interfered with contractual relations. Not new in their world. But what is new is that it was in the context of slut-shaming which, as the post explains, could be cognizable under Title VII if in the workplace. Ouch.

TAKEAWAY: Title VII and its prohibitions against discrimination have far-reaching effect and implication – make sure to discuss them with your attorney to be sure you are not at risk.

In the post on Thursday 11/2/17 we learned that courts rule Onionhead is a religion but Church of the Flying Spaghetti Monster is not. No this isn't a joke, but something to take seriously because religious discrimination applies to a sincerely-held religious belief (even if not of an organized religion). The post goes over the Onionhead suit brought by the EEOC in 2014 and the suit by an individual (in prison) over the Church of the Flying Spaghetti Monster.

TAKEAWAY: Religion can be amusing, but not when it results in charges or suit for discrimination – know your legal obligations.

The post on Friday 11/3/17 confirmed that yes, fathers are entitled to FMLA leave too. Even if the spouse also takes FMLA leave. But the post does tell us the one caveat.

TAKEAWAY: Keep in mind that FMLA coverage is broader than new mothers - know your legal obligations as an employer.

Finally, in the post yesterday 11/4/17 we learned that 21% of the nation lives in a community association. That means a condominium or single-family home community that is governed by an Association – which enforces the Governing Documents consisting of a Declaration, Bylaws and usually Rules or Regulations. All owners are members of the Association and have both the right to enforce the Governing Documents and also the obligation to adhere to them. The statistics in the post, both as to number and value, are staggering – and they will only increase.  

TAKEAWAY: If you live in a planned community, make sure you know your legal rights and obligations. If you are on the Board of a planned community, make sure you know what you can and cannot do in that role. Consult an attorney knowledgeable in this area of the law.