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

The post on Sunday 4/1/18 was a Happy Easter wish (to those who celebrate it). That's it.

TAKEAWAY: Sometimes you just have to step away and enjoy the season.

The post on Monday 4/2/18 was about a $13M award in a sexual harassment jury trial. That included $11M for punitive damages so it will probably be reduced as a result of statutory caps. The compensatory and emotional distress damage award of $1.7M will probably stand. So what happened to lead to these numbers? The plaintiff was employed for 30 years. Her suit alleged inappropriate conduct by her immediate supervisor beginning years before. That conduct included many comments such as "I would tap that ass if you wasn't so old", "Damn, you look good", and others in the post. Her work was also determined based on her sex as noted in the post. After reviewing what is required to prove a hostile work environment claim, the post applies it to this case.

TAKEAWAY: Train employees, especially managers, what to say and not say to employees and take action if they stray.  

In the post on Tuesday 4/3/18 we learned an employer rejects older applicant: "age will matter". Yes it will – in the lawsuit. Here, an IT staffing company paid $50,000 to settle an EEOC age discrimination suit. So you apply for a job. The potential employer learns your date of birth. The potential employer sends an email about the year of birth and says "age will matter." The potential employer gets sued. Yep, saw that coming. More details are in the post, including the other relief the employer will provide.

TAKEAWAY: Don't make employment-related decisions based on age – or your pocketbook might get a lot lighter.

The post on Wednesday 4/4/18 asked: is condo or homeowners' Association liable for injuries on Association property? The answer is "it depends". On whether the Association breached a duty of care. On whether the Association controlled the property that contained the hazard – with control being defined as in the post. Are there defenses the Association can assert? Of course. They include that there was no dangerous condition and others in the post.   

TAKEAWAY: Associations must be vigilant about property they own or control, but that does not always translate to liability for every injury that occurs on the property.

In the post on Thursday 4/5/18 we learned about 8 helpful hints on what not to say (or do) to a pregnant employee. "Do not get pregnant, you have too many children, and the next person to get pregnant should stay home and consider herself fired!" Don't say that. If only that were not something that an employer actually said to employees. The post contains what else the employer said. Ok, hint #1 done. The next hint is not to assume you as the employer know what's best for the pregnant woman of her unborn child – let her make any decisions that may affect either of them. Hint #3: don't say something stupid, especially if it is being recorded. Hints 4-8 are in the post.

TAKEAWAY: Treat pregnant employees just like all other employees. Let them make decisions about what they can and cannot do.

The post on Friday 4/6/18 told us the EEOC sued an employer over a forced retirement policy. Ouch. An oral surgery practice will pay $47,000 to settle the suit. Apparently it fired Karen just after she turned 65 (and after having worked there 37 years!). Why was she fired? The Company's policy. The post tells us why that's so wrong.

TAKEAWAY: As we said Tuesday, don't make employment-related decisions based on age. Make them based on job performance.

Finally, in the post yesterday 4/7/18 we read about 11 types of workplace discrimination employers should be aware of (and how to avoid them). First, employers must know what constitutes workplace discrimination. (The post goes into that a bit.) tthe types of discrimination to be aware of include age, sex, race, religion, and 7 others listed in the post. So how does an employer avoid workplace discrimination? Have a handbook / policy manual and evenly enforce it. Two other ways are listed in the post.

TAKEAWAY: Know the law, obey the law, act (or don't act) uniformly, and consult an attorney when in doubt or to help keep your nose clean.


ICYMI: Our Social Media Posts This Week – March 25-31, 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 3/25/18 we asked: Is sexual orientation protected by federal anti-discrimination laws? 2nd, 6th and 7th say yes, 11th says no. There is currently no federal law barring discrimination because of sexual orientation. But some courts have held that Title VII's prohibition of discrimination on the basis of sex covers sexual orientation. So does the EEOC (but not the current Justice Department). See more in the post.  

TAKEAWAY: The federal appellate court governing PA has not yet ruled, but the tide seems to be turning in favor of protecting people form discrimination on the basis of sexual orientation.

The post on Monday 3/26/18 noted tattoos at work: more acceptance. Yet still some legal risk. What does that mean? It means that employers still have discretion as to dress and grooming policies. But those policies must be evenly applicable and evenly enforced. Examples of when that did not happen with tattoos are in the post.

TAKEAWAY: Don't treat tattoos any different than other dress or grooming "parts"; apply any policy to all employees.

In the post on Tuesday 3/27/18 we talked about new rules condo and HOA boards (and owners) need to know about. The rules aren't new – they were effective October 2016 – but they can be important. They recognize both quid pro quo and hostile environment harassment under the Fair Housing Act. Both are defined in the post. They are pretty easily understood. However, the kicker is the other part: third-party liability. As noted in the post, if the third party occupies a certain position relative to the Association, then the Association might be liable for conduct of the third party. The post also gives some pointers on how to deal with all of the rules.

TAKEAWAY: Have a knowledgeable attorney when dealing with condo/HOA issues. Contact me for assistance if needed.

The post on Wednesday 3/28/18 noted employee are also required to engage in the interactive process under the ADA. Yes, the interactive process is a two-way street. Here, Sloan was a production manager for a label manufacturer and printer. He used heavy machinery. The company policy required notification of nonprescription or prescription medication. Sloan began taking medicines while at work – not always according to his prescription. He didn't inform the employer when discovered, he had to undergo a drug test. What happened next is in the post. After termination, he sued for disability discrimination. The court ruled against him for the reasons in the post.  

TAKEAWAY: look both ways – interact – or don't expect protection by the ADA.                                                      

In the post on Thursday 3/29/18 we reaffirmed that dogs rule at work! What we can learn from dogs and take to the workplace. Some of the things we can learn are to respect and treat people regardless of race, religion, color, national origin, veteran status, or sexual orientation; to be selfless and look to please others; and more in the post.

TAKEAWAY: In the workplace, think how a dog would act and emulate it.

The post on Friday 3/30/18 told us female employees at Microsoft filed 238 discrimination and harassment complaints over a 7-year period. Wow. That came to light as part of a suit filed by employees alleging gender discrimination. And Microsoft admitted to one prior complaint being well-founded (one too many in this author's opinion). More background is in the post.

TAKEAWAY: Even big, progressive companies find themselves on the receiving end of discrimination and harassment complaints – every employer should take action to prevent discrimination and harassment.

Finally, in the post yesterday 3/31/18 we break down Adrienne Lawrence's lawsuit against ESPN and the company's possible defenses. A former ESPN employee filed a sex discrimination suit in federal court. It alleges broad actions, including that male executives, producers and on-air talent keep scorecards listing and ranking female colleagues based on sexual attractiveness and more in the post. Many of the allegations are based on witness allegations. The suit was filed against the company and 4 individual defendants (named in the post). Some of the defenses ESPN might assert are also listed in the post.

TAKEAWAY: Plaintiffs always have the burden of proof; but a past pattern will go a long way toward what they need to show.


ICYMI: Our Social Media Posts This Week – March 18-24, 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 3/18/18 we found out that a federal court holds that settlement offer on time-barred debt may be an FDCPA violation. The court governs us in PA, so pay attention. The plaintiff owed over $1200 to a fitness center. The defendant, a debt collector, sent a letter with settlement language (which is in the post). At the time the letter was sent, applicable state law barred collection on the debt. The debtor sued. The debt collector won a dismissal at the trial court level, but she appealed. The Court looked at its prior case, distinguishing it, and noted what the issue was for decision (see the post). The court's holding is in the post and makes sense given its analysis.

TAKEAWAY: Be careful of the language you use – in settlement offers or elsewhere. Those words could indeed be used against you in a court of law, even in a civil matter.

The post on Monday 3/19/18 we read that the FMLA (probably) does not cover the loss of a pet. Here, Joseph was a machinist. He had to put his dog to sleep. He requested use of a vacation day which was approved. The next day he called in again. The employer deemed it unexcused. He also went for medical treatment. What followed is in the post. He ended up being terminated for excessive absence and sued. The court's analysis is in the post and provides a good reminder of what an employer should look at in this situation.

TAKEAWAY: Don't just ignore an employee experiencing grief over the loss of a pet; likewise, don't just give in either. Follow the law.

In the post on Tuesday 3/20/18 we saw that female firefighters faced scalding showers and urine-soaked walls (said a federal lawsuit). Oh yes, they also faced death threats. And the suit was brought by DOJ against the City of Houston. The suit alleged that male firefighters urinated in the women's bathroom and dorm; more allegations of male behavior are in the post. Finally, it alleges that the employer did nothing after the women complained (a no-no).

TAKEAWAY: Make sure your employees know that certain behaviors will not be tolerated – and then do not tolerate them if investigation of a complaint proves they occurred.

The post on Wednesday 3/21/18 noted Google fired disabled, transgender man for opposing his co-workers' bigotry and white supremacy, lawsuit alleges. Tim was a site reliability engineer. He alleged that Google's internal social media was widely used to belittle and harass women, people of color, LGBTQ employees, and others. He also alleged that when he objected, he was fired. The reason allegedly given to him by HR for his termination is in the post. Some of his other allegations, which are pretty revealing, are in the post.

TAKEAWAY: Treat all employees equally; especially don't take adverse action based on a protected characteristic or opposition to discrimination against another.

In the post on Thursday 3/22/18 we learned the EEOC is prioritizing pay equity cases and noted employers should review compensation systems. The EEOC has 6 priorities for the 2018-21 time frame and pay equity is one of them. Four companies recently found out just what that means. One, Pizza Studios, was found to pay men and women differently and to have retaliated against a female employee who had complained about the pay differential. More details about that case, along with the other 3 companies' stories (which were also in court cases) are in the post. It's not only gender pay equity that concerns the EEOC – other differentiating factors are in the post.

TAKEAWAY: Make sure you pay employees the same for doing the same job and be able to justify any differences.

The post on Friday 3/23/18 told us a former Chobani employee sues company citing disability discrimination. Griselda alleged that Chobani wrongfully terminated her employment and refused to accommodate her disability. What happened before that is in the post.

TAKEAWAY: When faced with a request for accommodation, engage in the interactive accommodation process. Don't just fire the employee.

Finally, in the post yesterday 3/24/18 we noted an ADA accommodation doesn't have to continue indefinitely. There is no bright line, but indefinite is definitely too long. Bobby had a stroke in 2014, underwent lengthy medical leave and rehab, and then returned to work. He had difficulties; after another accommodation request, he was transferred. He was then fired. More of the details between those bare facts are in the post. The court's analysis is also in the post. It is also interesting to note the employer (at the end of the post).

TAKEAWAY: Employers have a duty to accommodate (when there is no hardship and accommodation is possible), but not forever.


ICYMI: Our Social Media Posts This Week – Mar 11 - 17, 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 3/11/18 we noted that's what friends are for: federal court extends retaliation protection to employee's friend. Yes, more corners to look around. Just like the regarded as prong under the ADA, here the person asserting the claim did not do anything, but is assumed to have done something. The post explains the rationale.

TAKEAWAY: Don’t retaliate against anyone, period.

The post on Monday 3/12/18 told us a former server files a lawsuit alleging religious discrimination (and we noted that steak's not so juicy now). Yes, the employer is a steakhouse. The suit alleges the server met "cultural insensitivity and outright Islamophobia". Examples are in the post and are not pretty. Of course, the employer's response to the complaint was also not pretty – see the post.

TAKEAWAY: If an employee makes a complaint, don't laugh it off. Investigate it and take appropriate action.

In the post on Tuesday 3/13/18 we noted that FMLA leave is not available following a pet's death. Well, probably not. It depends how the mourning manifests and whether or not it meets the definition of a serous health condition required for FMLA protection. The post goes through the court's analysis of eligibility and why it was not met in this case.

TAKEAWAY: Don't just jump to approval of a requested FMLA leave – make sure the employee is actually eligible under the circumstances.

The post on Wednesday 3/14/18 brought an alert: liability as a joint employer is back on the table. Are you shaking your head in disbelief? The NLRB, which earlier decided there was no joint liability, now reversed course. It decided that one of the Board members who participated in the decision had a conflict, so the decision was overturned and the law reverts to its prior joint employer liability – at least for now. The post explains what that may mean for you.

TAKEAWAY: Even at non-union workplaces, employees must know what the NLRB is doing and how it affects them.

In the post on Thursday 3/15/18 we saw a suit alleging woman forced to get flu shot or lose job. We asked if it was a real religion (do you know why we asked that?). Barnell was a nursing assistant who requested exemption from a policy requiring flu vaccines because she believed Bible-based scriptures prohibited it. Policy allowed employees to opt out with a writing from their clergy person. The post tells us what happened next and why the suit was filed.

TAKEAWAY: If someone has a sincerely-held religious belief, whether or not it is a "real" religion, employers must honor that belief and accommodate (if there is no hardship).

The post on Friday 3/16/18 was a warning: Texter beware: emojis as evidence. We asked if your Handbook or Policy manual covers this emerging area. Emojis are becoming commonplace in all areas of life, but does that mean they are appropriate for the workplace? We used to say not to put things in an email you didn't want on the front page of the NY Times. Now emojis are being given the same dubious treatment. The post explains how they might come into a court proceeding.

TAKEAWAY: Protect yourself – deal with emojis in your handbook or policy manual.

Finally, in the post yesterday 3/17/18 we asked: is your condo or homeowner association managing your money wisely (and do you know the owners' and Board's rights and responsibilities). In the association in the post, there were questions. And residents were not getting answers. Every owner and Board member should know what owners' rights are to financial information and what obligations the Board has to provide information (even when not asked).

TAKEAWAY: Each Association's Governing Documents provide some rights and responsibilities; applicable state law provides others. Know what is required, including to whom a fiduciary duty is owed to manage finances. Engage legal counsel if you are not sure of the next step.


ICYMI: Our Social Media Posts This Week – Mar. 4-10, 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 3/4/18 we learned that a comic sued Upright Citizens Brigade for reverse gender discrimination. In round 1, Upright Citizens Brigade, a well-known improve group, booted Aaron based on rape allegations. Now, in round 2, Aaron is suing, alleging reverse gender discrimination. The basis is in the post. Apparently Aaron wasn't even questioned during the investigation. Read more in the post.  

TAKEAWAY: Before taking adverse action against an employee, make sure you have a solid, legal basis for doing so. It might prevent or it might provide you a defense.  

The post on Monday 3/5/18 was mistakenly omitted – we apologize for the day without a post.

TAKEAWAY: We are human – we make mistakes too. Oops!

In the post on Tuesday 3/6/18 noted that another severance agreement bites the dust: EEOC continues campaign against provisions that preclude talking to the government. The business, Coleman Company, allegedly discriminated on the basis of disability. The EEOC investigated, and found retaliation under the ADA and Title VII based on the language of the settlement agreement. Read more about it in the post.

TAKEAWAY: When trying to resolve a possible future situation with an agreement, make sure the provisions of the agreement are valid and will give you the protection you seek. Have an attorney review or write the agreement.

The post on Wednesday 3/7/18 told us the Supreme Court hit pause on state statutes of limitation. What does that mean? While a federal claim is pending, a state statute of limitations is tolled (is frozen). As background, Stephanie filed a suit under Title VII and state law. By the time the suit was dismissed, the time had run on re-filing the state claim. More details on the case background are in the post. On appeal, in interpreting the word "tolled", the Supreme Court said the re-filing was timely.     

TAKEAWAY: In any case, you need to know whether the suit was filed timely or if there is a basis to get it dismissed Know the law – or hire an attorney who does.

In the post on Thursday 3/8/18 we read that a pet pig threatened by association gets to stay. What would happen in your association? And the score is pot-bellied pig 1, HOA 0. The family looked at applicable local law and adopted the pig as a pet. The HOA had different thoughts – a year after the pig moved in. The post has more details.

TAKEAWAY: Condo and homeowner associations have rules that all residents must follow. But sometimes a rule can have an exception. Know the rules. 

The post on Friday 3/9/18 reminded us that stores (and other public places, like most businesses) should know ADA support animal guidelines. The post was a true story. Two shoppers entered a store with their service dogs. The dogs did not wear identifying vests so they were denied entry. The dogs' federal IDs were shown to the manager and the reason given for one not wearing a vest. The other had no vest but wears a special collar. Both are needed by their owners for medical conditions. See how this ended in the post.   

TAKEAWAY: Owners of public places – not just stores, but most businesses – must know the ADA provisions on service animals to stay out of hot water.

Finally, in the post yesterday 3/10/18 we noted that it is "Hands Off, Pants On" - when guests sexually harass hotel employees. We told you not to be the harasser. What did we mean? The post gives some statistics on the number of hotel employees who were sexually harassed and the types of harassment. Some cities have enacted laws to deal with this situation; they are examined in the post. But even without a separate law, Title VII and state laws may make a business liable for harassment of employees by an invited third party.

TAKEAWAY: Protect your employees – have policies in place and make sure employees know about them. Make sure third parties know that harassment of employees will not be tolerated.


ICYMI: Our Social Media Posts This Week – Feb. 25 - Mar. 3, 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 2/25/18 we read that the EEOC approved a strategic plan for 2018-2022. The three key objectives (detailed in the post) are: 1) the strategic application of the EEOC’s law enforcement authorities, 2) preventing employment discrimination and promoting inclusive workplaces through education and outreach, and 3) organizational excellence.

TAKEAWAY: Know how the EEOC's objectives will affect you and your business going forward. Contact legal counsel now to work with you to ensure legal compliance – don't wait for the EEOC to come knocking.

The post on Monday 2/26/18 told us the EEOC alleges contractor fired 3 brothers because of their blood disorder. The suit alleges that Drew and Anthony West had been working at the refinery when SIS took over a contract at the plant. They were hired by SIS in December 2011. Both have a blood disease that has no effect on job performance but may require expensive meds. SIS told the project manager to fire them because of the possible effect on insurance; he refused. Raymond, another brother, began working there in January 2013. The former project manager left in April 2013, after which SIS instructed his replacement to fire all 3 or be fired himself. He fired all 3 brothers. The post gives details on how it was couched and the relief sought by the EEOC.

TAKEAWAY: Only take adverse action against an employee for job-related matters. Otherwise you might be on the receiving end of a lawsuit.

In the post on Tuesday 2/27/18 we warned you to guard against retaliation any time an employee makes an internal complaint about pay. Derrick, an African-American, went to work for a landscaping form after leaving employment at a competitor. There was an issue with the pay rate at the new employer as in the post. He complained, got undesirable job assignments, and was fired. Had he not represented himself in the suit that was filed, we'd be talking about potential liability now – see the post for the rationale.

TAKEAWAY: Whenever a complaint is lodged, investigate it and do not take adverse action against the person complaining. Just do it right.

The post on Wednesday 2/28/18 noted that graphic sexual harassment charges were filed against IHOP and Applebee's franchises. Sixty – that’s not a typo, 60 – employees in 8 states filed suits for sexual harassment against the restaurant chain that franchises both IHOP and Applebee's locations. One person is the IHOP franchisee of many locations in several states and oversees all operations and employees and was responsible for enforcement of the sexual harassment policy. The charges include sexual assault and sexually hostile work environment. The post gives some of the graphic details, including one case involving a 16-year-old girl. Ugh.

TAKEAWAY: Owners must train managers and make sure it is not the managers who are doing the harassing.

In the post on Thursday 3/1/18 we saw an Edinboro University coach files federal suit over discrimination and unequal pay. Melissa was the head women's volleyball coach; she sued in late January 2018 for gender discrimination, retaliation and unequal pay under Title VII, the Equal Pay Act and Title IX. The post details the pay disparity between Melissa and male coaches with the same experience and record. The post also details the difference between her pay raises and that of male coaches. Melissa's suit also alleges retaliation after she complained of unequal pay and other discrimination.

TAKEAWAY: Let's hope these allegations are not true – how can we teach the next generation not to discriminate and to treat all as equal if we don't set a good example now?

The post on Friday 3/2/18 noted Et tu, FedEx? Confidential information revealed. I think by now we all know not to dispose of document with confidential information by throwing them in the trash. But do you know how to dispose of electronic data? Apparently FedEx did not. The post details what it did – and why you should be wary of all vendors – and what type of data was involved. Scary. What's even scarier is that a similar thing happened with the military last year – see the post.   

TAKEAWAY: Know how to retain, store and dispose of confidential information about employees and clients. Don't even think about what happens if you don't.

Finally, in the post yesterday 3/3/18 we read that updating Governing Documents in a condo or homeowner association can be difficult if many owners are disinterested. We suggested you contact us for help with your association (whether you are an owner or a Board member). Most Declarations require a 2/3 majority of units to vote affirmatively for an amendment – that is usually difficult, if not impossible, to attain due to the disinterest of owners. Some associations have provisions in their Governing Documents that allow for a declining quorum so that business can be transacted at some point. The post gives an example. What do your Governing Documents provide? Do they need to be amended?

TAKEAWAY: Residents of planned communities (condo and homeowner associations) are bound by the Governing Documents – those documents should reflect the will of the residents.


ICYMI: Our Social Media Posts This Week – Feb. 18 - 24, 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 2/18/18 we learned that Old Navy fires 3 employees after alleged racial profiling. And it was on video! James, an African-American, walked into a store wearing a blue Old Navy coat. What happened on his way out is amazing (and sad that it happened – see the post). And it took store security footage to resolve it – until suit is filed. Ugh.

TAKEAWAY: Treat all employees and customers/clients the same way – don't presume or presuppose anything without absolute proof.

The post on Monday 2/19/18 told us a male supervisor harassed female workers, demanded sex and exposed himself (charges the EEOC). The employer is a staffing company, so one would think it ought to know better. But the EEOC sued, alleging a male account manager made sexual comments and demanded sexual favors repeatedly. Not just once. Repeatedly. His actions included asking a female employee for oral sex in exchange for paid time off. The employee complained to another supervisor and was told to "screw him" and take the extra pay. Wow! More details on the harassment are in the post; it's not pretty.

TAKEAWAY: Train your managers on what not to do – or you could find yourself named as a defendant in a costly suit.

In the post on Tuesday 2/20/18 we saw another EEOC suit, this time because a water company fired foreman because he complained about racial slurs. At least the employer has agreed to settle this one. So what happened? The EEOC alleged that a white superintendent and white foreman repeatedly made derogatory and offensive comments to and about African-American workers. The post details the comments. One of the victims, a foreman himself, complained. Did that help? No. In addition to firing him, the company's other action are in the post. Ugh.

TAKEAWAY: Know what to do if an employee complains – and don't act like the employer here acted. Consult an employment law attorney to be sure.

The post on Wednesday 2/21/18 noted a KFC franchise to pay $30,000 to settle an EEOC disability discrimination suit. Obviously the EEOC has been busy. The suit was filed because the employer fired a restaurant manager after finding out she was taking medication for bipolar disorder. Actions taken by the owner (which do not reflect well on him) are in the post.   

TAKEAWAY: Employers must know what they can and cannot do under the ADA – train your employees and have an attorney on call just in case.

In the post on Thursday 2/22/18 was about why a board or owners should hire an attorney who specializes in condominium & HOA law. Can your association afford to lose $22,000 because an attorney did not do what needed to be done, when it needed to be done? The post tells of one such situation. It hurts every owner (in their purse!) when one or more owners do not pay dues/assessments or otherwise violate the Governing Documents.

TAKEAWAY: If you think your Association is not doing what it needs to, or if your Association needs help in enforcing the Governing Documents, contact us. We have much experience in this area and also work closely with the local chapter of CAI (the Community Associations Institute).

The post on Friday 2/23/18 was a reminder to know who can say what under the ADA's confidentiality provisions. David, a combat vet went to work as a firefighter. All went well until August 2011. It was an awful morning (see the post) but David said he was ok. Then the afternoon included a graphic training session – David said he was still ok, but later met with his boss. He also did something else – see the post. The boss suggested that David be evaluated for fitness for duty. Before the results came in, the boss talked to co-workers about David's situation. That led to David suing under the ADA. David lost. The court's reasoning is in the post.

TAKEAWAY: It is imperative that employers know who can say what in the ADA context – and how to deal with medical records. Training is imperative.

Finally, in the post yesterday 2/24/18 we saw that a judge approved a $22.5M settlement in the Nucor steel mill discrimination case. Maybe you haven't heard of it, but the case started in 2003. There was no admission of liability, but it is finally settled. It arose out of black employees alleging that white co-workers discriminated against and harassed them by the actions noted in the post (yes this is real life and not a fictional novel). Under the settlement, each claimant (it was a class action) is expected to get at least $100,000.

TAKEAWAY: We've said it before (even in a our post this past Monday): you must train your managers as to what NOT to do. Their illegal action will result in your pain and payment.


ICYMI: Our Social Media Posts This Week – Feb. 11-17, 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 2/11/18 we asked: can homeowners prevent neighbors from installing security cameras? Questions like this become ever more important as the number of people living in planned communities (single-family, detached homes or attached townhouses or condominium buildings) continues to increase. Do you want your neighbors "spying" on you? Do you want to 'spy" on your neighbors? The easy answer is probably yes (possibly after approval by the association). But then there are constitutional (privacy) issues that crop up. The post talks about some of these concerns.

TAKEAWAY: If you want to install a security camera pointed at a neighbor's house, or if a neighbor has installed one pointed at your house, contact an attorney to ensure all is legal.

The post on Monday 2/12/18 told us an employer paid $85K to settle a transplant recipient's ADA leave claims. So what happened? The employer, an inpatient and outpatient healthcare services provider (so you'd think it would be a bit more up on this!), granted leave for the employee's liver transplant surgery. Then the employee asked for additional time off. See the post for the employer's actions.

TAKEAWAY: Reasonable accommodation under the ADA may require leave in excess of 12 weeks under the FMLA. Remember to look at them in tandem.

In the post on Tuesday 2/13/18 we saw that a failure to promote and low pay increase were not due to an EEOC charge. At least according to the federal court. The Plaintiff was hired as a legal secretary in 1995 and was shortly promoted to managing editor. About 15 years later, her job responsibilities and pay had both increased. She asked that for certain changes (see the post). Her request was denied but she got good evals and raises. A few years later she got a new supervisor; she also asked again and was again denied. She then claimed the supervisor has discriminating and retaliated against her (the bases are in the post). She lost. The court's reasoning is in the post.

TAKEAWAY: Documentation – of uniformity and discipline – can be key to any claim or suit.

The post on Wednesday 2/14/18 was a Valentine's Day wish – and a reminder about the holiday in the workplace.

TAKEAWAY: Holidays do not trump workplace polices – make sure to evenly enforce them.

In the post on Thursday 2/15/18 we asked: what can an association do about an owner's disruptive tenant (and what would happen in your Association)? Yep, planned community life. So what happens if a tenant (assuming rentals are allowed) isn't following the Governing Documents? The post gives the answer under IL law, but it should be the same under PA law (barring anything to the contrary in the individual association's Governing Documents).

TAKEAWAY: Know what rights and obligations owners and the association have in a planned community – contact an attorney with experience in these matters (you can find one at www.cai-padelval.org ).

The post on Friday 2/16/18 noted that the EEO poster violation penalty has increased to $545. Do it right. Hopefully you already know this, but every employer covered by Title VII, the ADA, or GINA must post certain notices in a common area where workers normally congregate. For the information to be covered, and other tips, see the post.

TAKEAWAY: Don't needlessly subject yourself to a penalty – post the notice as required.

Finally, in the post yesterday 2/17/18 we noted that the interplay of the FMLA and ADA precludes automatic termination after FMLA leave. You know the FMLA guarantees an eligible employee up to 12 weeks of unpaid, job-protected leave. But do you know what happens if the person asks for additional time when the FMLA leave expires? (You do if you read our post from earlier this week!). See the post for the answer

TAKEAWAY: We (almost) started and ended the week talking about the ADA and FMLA. It is important: know how they interact and get legal help if necessary.


ICYMI: Our Social Media Posts This Week – Feb. 4 - 10, 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 2/4/18 we saw that a former IT worker sued Penn State for discrimination and retaliation. Antoinette alleges that after repeated complaints, including to the University President, about discrimination, the retaliation escalated and the school did nothing. Details are in the post. She retired 9 years before the time she had planned to. Her claim also includes FMLA violation (as noted in the post). Penn State has not issued any response or comment yet.

TAKEAWAY: May sure pay and treatment of employees is the same regardless of gender and medical condition – and investigate any complaints. Failure in any of those areas may lead to suit and an expensive public flogging (regardless of the outcome).

The post on Monday 2/5/18 was about condo & homeowner association boards trying to address pot smoking before it is legalized. What is your Association doing? We know that PA has legalized medical marijuana, and the legal use of recreational marijuana may not be too far behind. But it is still illegal under federal law. Has your Association dealt with the issue at all? Perhaps by allowing it for card-carriers within their own walls? What about cigarette smokers? Differentiating between common areas and private areas? The post gives some ideas about the types of things associations might want to consider.

TAKEAWAY: Make sure to enact legal rules and regulations and then enforce the legally – contact a lawyer well-versed in this type of law to help you.

In the post on Tuesday 2/6/18 noted the lawsuit against Kellogg over religion and weekend work is back on the table. What's this about? Working on Saturdays. Richard and Guadalupe are Seventh-Day Adventists who did not work every other Saturday (as required) due to their religion. They were eventually fired. The lower court granted Kellogg's motion for summary judgment – the reasoning is in the post. That decision was appealed and a federal appeals court just reversed (for the reason noted in the post). Irony: the co-founder of Kellogg was a Seventh-Day Adventist at the time the company was founded.

TAKEAWAY: Remember that an employer has a duty to reasonably accommodate religious beliefs, whether it wants to or not.

The post on Wednesday 2/7/18 told us a former Fox TV executive sues for gender discrimination and sexual harassment. The tidal wave continues. Denise claims she was fired after complaining about sexist comments in the workplace, including an executive coach retained by FOX telling her to "lift her skirt". Ugh. The suit was filed in CA state court. More details/background are in the post. FOX has not issued any comment yet.

TAKEAWAY: Not every claim of harassment or discrimination is valid, but employers still have a duty to investigate and, if founded, take action to stop the illegal behaviors and try to remedy the situation.

In the post on Thursday 2/8/18 we saw that an ex-campus cop's discrimination suit over razor bumps proceeds against UPenn. Joseph alleges that he was discriminated against for avoiding shaving due to a skin condition common among black men. The actions he says were taken against him are in the post, including paid leave. The trial court judge let some of Joseph's claims go forward (including retaliation and disparate treatment) but dismissed others (including disparate impact). The post contains some of the Judge's reasoning.

TAKEAWAY: After enacting a facially-neutral policy, ensure that its enforcement does not adversely treat one class over another or that its impact is not heavier against one class than another.  

The post on Friday 2/9/18 reminded us that uncivil is not the same as unlawful. Let's look at an example. Arriama complained in a suit about how co-workers referred to her dress and her supervisor's behavior (noted in the post). The court reaffirmed that Title VII is not a civility code and that actual facts are required to prove hostile work environment. The post analyzes it here for the result.

TAKEAWAY: Employees don't have to like their co-workers or managers (or vice-versa). But they do all have to work together to get the job done. Performance, not amity, should be the basis of legal filings.

Finally, in the post yesterday 2/10/18 we read that an employee's lack of records won't get a pay lawsuit tossed (and advised to make sure your records are accurate). In a suit for overtime pay, the burden is on the employer to show the employee was NOT entitled to pay for overtime work. In this case, Faustino was paid the same rate for all hours worked. He sued, claiming he'd not been paid overtime for hours worked over 40 in a week. The employer moved to dismiss the suit. The post tells the court's reasoning and ruling.

TAKEAWAY: employees often keep track of their hours worked; regardless, the employer should carefully track the hours to ensure proper pay. Consult an employment law attorney if an issue arises.


ICYMI: Our Social Media Posts This Week – Jan. 28 - Feb. 3, 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 1/28/18 we talked about DOL's guidance on whether interns are employees. Know the correct answer. See the post for details.

TAKEAWAY: It used to be so easy – bring on a young adult as an intern to give him or her a learning experience. Not so now as there are many factors going into whether the person is an employee or an intern. Know which.

The post on Monday 1/29/18 reminded us that 40 years later, women who formed Willmar 8 keep up the fight for equality. Amazing! 40 years ago, these women picketed their bank employer for equal pay and equal opportunities for advancement. They did that because a male loan officer candidate was hired without prior notice of the availability of the position. The post includes the bank's response at the time. The women kept fighting as in the post, including being out on strike for 2 years. Now they still fight for equality.

TAKEAWAY: Pay employees based on job performance, not gender. Period.

In the post on Tuesday 1/30/18 we noted you should do research before buying a home or condo governed by a homeowners' association. (Let me help you.) Yep, more than 63 million people live in planned communities. Planned communities can be great as they provide services to the owners, but they also have contractual covenants and rules that all owners must live by. Check the post for background and some things to look at.

TAKEAWAY: Make sure the Association does what it is supposed to and you as a resident are willing to abide by all of the covenants and other governing documents.

The post on Wednesday 1/31/18 noted that restaurants and patrons (and other public places) need to know the law about service animals. True service dogs are there to assist their owners deal with a disability and are therefore covered under the ADA. As noted in the post, there are ADA regulations about service animals and any place of public accommodation should be familiar with them.

TAKEAWAY: Do not treat someone with a service animal differently than anyone else – afford him or her the same treatment.

In the post on Thursday 2/1/18 we learned that experts find people are unaware of radon, the 2nd leading cause of lung cancer. To put it in perspective, about 7 out of 10 homes in York County tests high for radon (prior to any mitigation). Two homes next to each other might have drastically different levels of radon so don't just assume that because your neighbor's home is or is not high in radon, yours will be the same. The post gives some background and data to know about radon.

TAKEAWAY: Radon is colorless, tasteless and odorless – have your house tested and if the level is high, get a mitigation system installed.

The post on Friday 2/2/18 told us that Volvo will pay $70,000 to settle an EEOC disability discrimination matter. So what happened? Volvo made a conditional job offer to an applicant who was a recovering drug addict in a supervised medication-assisted treatment program. He told Volvo about the medically-prescribed drug as part of the physical exam. Volvo fired him on the first day due to the use of the medically-assisted drug. The post talks about what Volvo should have done and why. Instead, it's paying $70,000 plus other relief.

TAKEAWAY: Hire and fire based on the ability to do a job, not a medical reason (that is illegal).

Finally, in the post yesterday 2/3/18 we read that a lesbian firefighter prevails in court after having brain matter flung at her. Her colleagues spat on her and more as listed in the post. They even threw brain matter at her! A jury found in her favor in 2016 and the case went up on appeal. The federal appeals court just upheld the verdict for the reasons in the post.  

TAKEAWAY: Make sure to treat all employees the same regardless of gender or sexual orientation – otherwise you might find yourself on the wrong end of a lawsuit.