Saturday
Sep292018

ICYMI: Our Social Media Posts This Week – Sept. 23 - 29, 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 9/23/18 we saw that Uber to pay 56 workers $1.9 million for harassment, discrimination claims. Gotta drive a lot of miles to make that up! They will get about $33,900 each to settle their claims of gender discrimination, harassment and hostile work environment. Also, another $5.1 million will be divided among more than 480 workers, including the 56 who are receiving the other payouts. So what was the basis of the suit that led to the settlement? The suit was filed in October 2017 by three Latina engineers, alleging that they were paid less than their white or Asian male colleagues. What they based their claims on is detailed in the post. The 56 came forward as representatives of a broader class as described in the post. On a related note, Uber's head of HR Liane Hornsey resigned after an internal investigation into how she handled racial discrimination claims within the company.

TAKEAWAY: Make sure to pay comparable employees the same – don't differentiate on protected characteristics that have nothing to do with job performance. It will be more expensive to do it the wrong way.

The post on Monday 9/24/18 told us that suing foreign entities in PA just got easier! One of the first issues that comes up when considering suit is where to bring the suit. The answer depends on many factors and was the subject of a recent PA Superior Court decision (in the context of whether registration to do business in a particular state can constitute valid consent to general personal jurisdiction in that state). Other court around the country have faced this question too, but the Court here ruled contrary to most of those decisions. The Court started with the applicable statute (see the post), then examined US Supreme Court and PA case history (again, see the post), and then moved to this case (a dispute between two LLCs, one from Pennsylvania and one from Connecticut, concerning the Connecticut LLC’s alleged failure to pay for services rendered by the Pennsylvania LLC in connection with a furniture sale in Calgary, Canada). The importance was that none of the events giving rise to the case occurred in Pennsylvania, and the Connecticut LLC’s sole connection to Pennsylvania was seemingly its registration to do business in February 2017, after all but a few of the alleged breaches of contract had already occurred. The post then looks at the case history and the Superior Court's analysis leading to its decision.

TAKEAWAY: It is now easier to bring suit in PA against a corporation entity with few to no connections to PA other than its registration as a PA corporation. (Whether this is good or bad depends on which side of the suit you are on!)

In the post on Tuesday 9/25/18 we saw news from the pet world: woman says Association doesn't allow service dogs. The confusion is probably over the difference between service dogs and emotional support dogs. Both are defined in the post. And it's important because even if your Association prohibits pets, it must (under most circumstances) allow service animals.

TAKEAWAY: Make sure your Association is toeing the line relative to service animals – consult an community lawyer to make sure.

The post on Wednesday 9/26/18 was a warning: EEOC is active and suing - be careful! The EEOC recently filed seven lawsuits against various employers across the country, charging them with harassment, and it also announced a major resolution of a harassment lawsuit. The workers were at country clubs and cleaners, sports bars and airlines, in health care and grocery stores. What were they about? Five alleged sexual harassment, two racial harassment, and one also alleged harassment based on national origin. Five of the 7 also included claims of retaliation for reporting the harassment. The first suit was filed against Fairbanks Ranch Country Club for sexual harassment and retaliation against a class of female employees. The allegations that underlie the suit are in the post. The second suit was filed against Ojos Locos Sports Cantina for sexual harassment by managers and co-workers and for retaliation. Again, the underlying allegations are in the post. The other 5 suits are also detailed in the post. The settlement was with a third-party call center and technology services company for $3.5 million – what the suit was about and the settlement terms are in the post.

TAKEAWAY: Play it straight and legal – the EEOC, and its Chair, is actively seeking out situations to remedy and is not afraid of filing suit.

In the post on Thursday 9/27/18 we read that Wendy's can't yet avoid liability for sexual harassment. And the joint employer issue continues ... The judge said the corporate group potentially could be jointly responsible with the franchisee for a manager’s groping of a minor worker. This case is pending in the Middle District of Pennsylvania and centers on whether the corporate entity exercised sufficient control over the franchise in Pennsylvania and its workers that they could be held liable as a joint employer. The most relevant facts are in the post – and turned the tide on the issue. The employer tried to get out on procedural grounds, but the judge analyzed that too (see the post) and denied the motion.

TAKEAWAY: The issue is not finally decided, so until them be careful of being pulled into a situation as a (possible) joint employer. Consult an employment lawyer if you're not sure how to proceed.

The post on Friday 9/28/18 told us that a federal court ruled "tender back" doctrine inapplicable to Title VII and EPA claims. We noted this is not yet PA law, but will it be soon? Under the common law doctrine, when a party seeks to avoid a contract on the grounds that it was obtained by fraud, duress, or the like, s/he must first "tender back" any benefits received under the contract. The ruling turns that on its head, such that if the claims are successful, the contractual amount paid by the employer will be deducted from any damages ultimately recovered. The facts of the case, along with the court's analysis (both alternatives), are in the post.

TAKEAWAY: PA law still requires that any amount received as part of a settlement agreement or other release be repaid prior to suit being brought, but perhaps the tide is changing?

Finally, in the post yesterday 9/29/18, we saw that all should report to bible study class now — or get fired! The question is if an employee is entitled to an accommodation based upon her religious beliefs, is she entitled to an accommodation based upon her lack of religious beliefs? In this cases, the employee, who did not share the religious belief of her employer, was still required to attend a daily Bible study class or be fired. The post looked at how and why this is a twist on the typical issue of religious accommodation. The particular facts of this case are in the post and stem from a recent suit filed in Oregon.

TAKEAWAY: Maybe this is the next Master Bakers cake shop case, maybe not. But until then, employers are advised to accommodate an employee's (lack of) religious beliefs unless hardship can be proven.

Tuesday
Sep182018

ICYMI: Our Social Media Posts This Week – Sept. 16 - 22, 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 9/16/18 we told you to warn supervisors: Never delete texts and emails related to employee’s complaint. Really. If an employee has filed an EEOC or internal complaint or a state or federal lawsuit, deleting texts or emails related even tangentially to the underlying complaint can be risky for you. How can that play out? Here's an example. Timothy, is white. His wife is black, and they have biracial children. The employer company hired Travis as a driver. See the post for what happened when Travis learned about Timothy’s family.

TAKEAWAY: As the post says, let your employment lawyer sort out whether the information in the documents is relevant and should be preserved. Don't make the decision yourself.

The post on Monday 9/17/18 asked: Who really owns social media accounts? It can be a big deal. Andy was a sportswriter. He announced on Twitter that he was leaving his employer and would become the beat writer for a subscription-based, online sports website. Good, right? Well, then he pinned a tweet on his Twitter feed urging followers to subscribe and continue reading. Uh oh. The first employer claims that it owns Andy's Twitter account and that Andy's refusal to turn over the account constitutes misappropriation of trade secrets. The post lists the various statutes that were at issue in the suit filed by the employer. The question before the court was when does a social media account belong to the employer and when does it belong to the employee. The post reviewed an early case with that same question. The post then talks about how an employer can protect itself (develop a social media policy) and steps to accomplish that.

TAKEAWAY: Don't leave something important to marketing your company up for grabs – talk to an employment lawyer and protect it!

In the post on Tuesday 9/18/18 we read about a man busted for stealing nearly $100K from homeowners association (and suggested you make sure you have appropriate controls in place so this doesn't happen to you). So an attorney was acting as a Board member- which is ok. He stole money, a lot of money, from the Association - which is not ok. The post describes the background and how he accomplished it.

TAKEAWAY: Don't let any one person have all the control. Make sure someone else – preferably unrelated and disinterested - is watching over things too.

The post on Wednesday 9/19/18 was about the EEOC Chair on age discrimination by employers - just don't. You should know that the EEOC has been aggressive on pursuing claims of age discrimination. In the post, the Chair said why the EEOC is doing what it is doing. The post also provides many informative statistics that support the EEOC's position. The post also offers tips to older workers and job seekers – which are also helpful to employers, so pay attention.

TAKEAWAY: Employers need to know their rights and responsibilities when it comes to age – make sure to stay on the legal side.

In the post on Thursday 9/20/18 a woman claimed her service dog was denied entry at Tulsa Drillers game. A man working at the stadium is shown on video saying he is following ADA regulations, goes through a series of questions, and the dog is ultimately not allowed in. Part of the conversation about the dog is in the post. The team issued a statement (in the post) clarifying the difference between a service dog and an emotional support dog and how they are defined by the ADA.

TAKEAWAY: This comes up in so many situations now that you should know the difference between a service dog and an emotional support dog, especially when dogs are not otherwise allowed entry into wherever the owner is trying to take them.

The post on Friday 9/21/18 told us the Grand Hyatt violated the ADA by denying a front-desk agent a chair (alleges the EEOC). The person had a chronic back problem (see the details as affecting the job in the post). The hotel initially granted the request for a chair, but revoked the accommodation two weeks later. Yep, suit was eventually filed and is pending.

TAKEAWAY: The ADA requires an interactive accommodation process – but when a requested accommodation is simple, there may be no reason to deny it. Check with an employment lawyer to see your rights and responsibilities.

Finally, in the post yesterday 9/22/18, we saw that a Title VII same-sex violation allegation was affirmed on appeal. A male employee worked in the meat department of his local grocery store. In his suit, he alleged unlawful hostile environment harassment created by his male coworkers and male supervisor (the ugly behavior at issue is mentioned in the post). Despite his complaints, the employer did nothing. Well, that's not true – through a supervisor, it did; see the post. And other employees piled on even more, including vandalizing his car. The case depended on legal definitions and analysis as explained in the post.

TAKEAWAY: Know what constitutes illegal sexual harassment in the workplace: Hint – it could be same-sex.

Wednesday
Sep122018

ICYMI: Our Social Media Posts This Week – Sept. 9-15, 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 9/9/18 we saw that a jury awards Temple University executive assistant $850K in age discrimination suit. After she was fired, Ruth Briggs sued Temple, claiming age discrimination and hostile work environment during her tenure as an executive assistant to a department chair. The university, however, said she was fired for performance deficiencies. The one thing it didn't count on: what her boss allegedly said to her (it's in the post).

TAKEAWAY: Train your employees not to make comments to colleagues or underlings – it may come back to haunt them and you – and be costly.

The post on Monday 9/10/18 told us that a lawsuit accuses 2 Chicago-area bakeries of systemic racial hiring discrimination. The suit that seeks.class action status alleges black job candidates were passed over in favor of Hispanic workers at two Chicago-area bakeries that hired through staffing agencies to hide the discriminatory practices. The bakeries were sold to two other corporations which are not parties to the suit. The plaintiff, who is black, alleges that the seller conspired with staffing agencies to weed out African-American workers seeking assignments at the bakeries. The post contains more background facts. The suit attached as an exhibit another suit with similar allegations. Stay tuned.

TAKEAWAY: Make sure that your company and its agents follow the law – you will be found out and brought to heel if you don't.

In the post on Tuesday 9/11/18 we read that the EEOC said to airline: if you have a policy, follow it! United Airlines found out the hard way what companies should already know. The EEOC sued, alleging that officials refused to take action against a male pilot who had been sexually harassing a female flight attendant for years. More details are in the post. Did the flight attendant complaint? Yes – see the post for just how many times and to whom. So what did United do? Nothing. And that's why it found itself named as a defendant.

TAKEAWAY: You should have policies about harassment and discrimination (if not, put them in place). And apply and enforce those policies uniformly. Period.

The post on Wednesday 9/12/18 showed us that a municipality is moving to clean unit overrun with animal waste, flies. We asked: what would your Association do under these circumstances? Just how bad was the problem? See the post. It took 2 years to get to the point of being able to evict the woman who remained long after Sheriff's Sale. And when it acted … see the post.

TAKEAWAY: Make sure your Association has Governing Document sin place that will help it deal with a situation like this – swiftly.

In the post on Thursday 9/13/18 we saw that even with FMLA, enforce no-show/no-call rule. You read that right. Your company has a policy requiring call-ins for absences. Don't exempt those on FMLA leave from the policy. It might work in your favor. As in the post, Latonia, who worked as a lab technician, had a long record of unscheduled absences and tardiness. She was approved to take intermittent FMLA leave, and when she did, none of those absences were counted against her. All good, right? Well … Then she was told to follow the policy. And didn't. See the post for the result.

TAKEAWAY: Just like the policies we discussed on Tuesday, make sure to enforce attendance and absenteeism policies too.

The post on Friday 9/14/18 brought good news: Pennsylvanians can now file LGBTQ complaints with the PHRC (Pa Human Relations Commission). Why? Because the definition of "sex" as a basis of discrimination was amended. The post talks about what is now included.  

TAKEAWAY: As an employer or employee, know what are your rights and responsibilities relative to the legal bases for adverse decisions.

Finally, in the post yesterday 9/15/18 we learned that 'merely discourteous behavior' is not unlawful a court tells man who says he was 'shunned' at work. Plaintiff Rondell Veal was first suspended with pay in November 2016, then fired three days later. He later sued AHAA, asserting claims of racial discrimination, hostile work environment, and retaliation. As to the general comments he alleged were made, see what the judge said in the post. Timing of what happened was also an issue as noted by the judge in the post.

TAKEAWAY:  Make sure your workplace is professional – or at least remains within legal bounds. Don’t wait until you have to prove in court that it is.

 

Monday
Sep032018

ICYMI: Our Social Media Posts This Week – Sept. 2 - 8, 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 9/2/18 we saw why "Can I sue my employer" is often the wrong question. The first question is really whether there is an agreement or contract that governs the employment relationship. If not, the employment is at-will and the employee has fewer rights – but still some rights. The post mentions a few situations where the employer can just end the relationship. The types of rights an employee has are noted in the post and include those in any contract. Even if the employee has a claim, whether or not s/he can afford an attorney to handle it is often the deciding factor – as noted in the post.

TAKEAWAY: Employees unhappy with the company's decision to terminate the relationship may be looking for any reason to sue – so make sure to have a defense in case they find a reason.

The posts on Monday 9/3/18 (here and here) wished all a Happy Labor Day 2018 and reminded all to remember the reason we celebrate today (noting that retail sales is not it).

TAKEAWAY: Sometimes remembrance is enough.

In the post on Tuesday 9/4/18 we saw that one Association Spends $2,500 on DNA kits to solve dog poop mysteries (and asked: What does your Association do? This is not new, but still news. Another association has decided it will not permit people to violate rules and leave dog poop without picking it up. So it got DNA kits – and went down the road noted in the post. Interesting take on the situation.

TAKEAWAY: Planned communities have rules that everyone must follow – but enforcing them is often the hard part. Thinking outside the box is often a good alternative.

The post on Wednesday 9/5/18 told us the NLRB turns attention to employer email (so you need to pay attention too).We suggested you let us help you. This comes up because on August 1, 2018, the NLRB issued a Notice and Invitation to File Briefs regarding whether it should overturn the 2014 Purple Communications decision that allowed workers to use company email for union organizing purposes. In the case at issue, the court sent the case back to the NLRB for consideration in light of Boeing Co., a decision that revised the NLRB’s evaluation of company policies. The issue here is specified in the post. The holding in Purple Communications is also explained in the post, as is another challenge to it that is pending.

TAKEAWAY: Remember that certain sections of the NLRA apply to EVERY employer, union or not, so you need to know what rights employees have to your company's email system. Make sure your lawyer keeps you updated.

In the post on Thursday 9/6/18 we read about what to do if a female is being sexually harassed at work. We also gave a HINT: stick your head in the sand is NOT the correct response. First, keep in mind why someone sexually abuses a woman at work: power. The post mentions things that are not harassment, such as simple teasing. The post also talks about when harassment becomes illegal and gives some examples, not all of which involve touching. Who to go to is also mentioned in the post, as well as what many involved in the situation may need to do.

TAKEAWAY: If you know that someone (anyone) is being harassed in the workplace, DO SOMETHING. Report what you know to the appropriate person. Make sure the process is followed to ensure that the harassment stops immediately.

The post on Friday 9/7/18 served as a reminder that you can’t always get what you want: employers don’t have to provide the requested accommodation if other reasonable alternatives exist. The Third Circuit, the federal appellate court with jurisdiction over PA, issued a recent decision that analyzes the area of reasonable accommodation and talks about the parties' rights and responsibilities. Here, Sessoms was out on an approved leave of absence relating to mental and physical disabilities. Prior to returning to work, she requested a part-time schedule (with eventual plans to return full time) and to be transferred to a different supervisor. The employer agreed to the first request but not the second one. The court's rationale is in the post and serves as a roadmap as part of the interactive accommodation process. The post also reminds employers of some things they need to do.

TAKEAWAY: The ADA grants disabled employees certain rights, but it is not all-encompassing. Make sure to work with an employment lawyer to stay within the legal limits.

Finally, in the post yesterday 9/8/18 we saw that a federal court upholds a $500K verdict for a butcher versus a grocer for sexual and racial harassment. That's a lotta meat! The end result is that a Chicago grocery store must pay more than $500,000 to an African American former butcher who claimed he suffered severe racial and sexual harassment at the hands of his Hispanic coworkers. How did it get to that point? Smith sued, claiming several things as noted in the post. He complained to management, to no avail. And what happened after he filed a complaint with the EEOC? See the post. A jury awarded Smith more than $2.4 million, but a judge reduced the award to more than $500,000. The grocery store appealed, not over whether Smith was “severely and pervasively” harassed, but whether the harassment rose to the level required under Title VII because it was not based on his gender. How the grocery store supported its argument is in the post, as are other arguments it made on appeal, along with the appellate court's analysis.

TAKEAWAY: Discrimination and harassment can be costly to an employer – in terms of the attorneys' fees and costs to defend any suit as well any award or judgment. So don't get to that point.

Monday
Aug272018

ICYMI: Our Social Media Posts This Week – Aug. 26 - Sept. 1, 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 8/26/18 we learned that employee use of company email may now be protected from company view. Things they keep a-changin'. From the employer's point of view, this may not be a good thing; from the employee's viewpoint, it probably is good. So we all know that employees should not use company email for personal matters, but they do. We also know that many companies have policies advising employees that they have no privacy when using the employer's email system. But now a federal court has raised a question about a company’s right to access the private e-mail communications of an employee, even when using the company e-mail system. Why? It was based on the wording of the company's email policy as explained in the post.

TAKEAWAY: Now it is even more important to have a proper email policy – and enforce it. Make sure an employment law attorney vets your policy.

The post on Monday 8/27/18 was about emailing employees on FMLA leave. Yes or no? The simplest, and best, answer is no, don't do it. But sometimes it becomes necessary. The case in the post described one example of employer contact during FMLA leave. The post also looks at why it was ok in that instance.

TAKEAWAY: Treat FMLA leave as inviolate if at all possible; don't contact the employee unless absolutely necessary, and then keep it to the barest minimum.

In the post on Tuesday 8/28/18 we found lessons From Estée Lauder's parental leave settlement with the EEOC. Estée Lauder settled a dispute with the EEOC over the latter's first suit targeting a parental leave policy that gave new mothers more time off than new fathers (male employees got two weeks of parental leave for child bonding time, rather than the six for women). What the settlement included is in the post – let's just say it's big dollars. And, in addition, the company revised its policy; what it now includes, retroactive to 1/1/18, is in the post.

TAKEAWAY: Leave policies are big selling point; don't discriminate against or in favor of one gender and turn your good benefit into a legal liability. Get help from an employment law attorney if you're not sure.

The post on Wednesday 8/29/18 asked: Does your Association need a fine schedule and late fee policy? We suggested you contact us for assistance. The first thing we will tell you is that yes, you do need a fine schedule and late fee policy (otherwise you will be in the dugout next to the association in the post). So what happened here? This Association's Governing Documents required owners to maintain their property in various ways relative to cleanliness and attractiveness. The Governing Documents also allowed the Association to assess daily fines if violations were not corrected. What the Association did next, and resulted in suit, is in the post. The court looked at the situation and ruled as noted in the post.

TAKEAWAY: Make sure your Association has a mechanism to enforce violations; that is some combination of a fine schedule, late fee penalty, and more. Contact a community law attorney for assistance.

In the post on Thursday 8/30/18 we learned that a former Starbucks employee is suing the company for 'discrimination' after telling boss about transition. Because Starbucks just needed to be a grande news item … Maddie Wade filed suit in state court alleging that her manager, Dustin Guthrie, treated her differently after she told him she was going to start hormone therapy and have facial feminization surgery. Guthrie's response and actions are in the post. What's worse is what Wade found on socmedia – see the post. Wade transferred to a different Starbucks location but felt that the discrimination followed her, so she eventually quit on the advice of her doctor (after Starbucks' response to her complaints as noted in the post).

TAKEAWAY: Make sure employees, especially managers, know not to discriminate against others based on sex. And these days, the tide of court rulings includes sexual orientation and gender identity under sex.

The post on Friday 8/31/18 talked about 5 magic words that can prevent an ADA claim. Abracadabra! Anything to help an employer fulfill its obligation to accommodate under the ADA, right?!? The simple words are in the post, and really make complete sense. They also serve as a jumping-off point for the interactive process. The post also contains simple tips on how to document simple accommodation requests that are easily granted by an employer. The post also talks about what might seem like preferential treatment, but may be required under certain circumstances.

TAKEAWAY: Know how to fulfill your accommodation obligations and use these words as a starting point. Consult an employment lawyer to keep you on the straight and narrow.

Finally, in the post yesterday 9/1/18 we saw that UPS Freight lost a disability discrimination suit under the ADA. The case concerned a company policy that resulted in drivers who must temporarily move into non-driving roles for medical reasons being paid less than drivers making the same move for non-medical reasons. More background facts (which really didn't help UPS) are in the post. The EEOC filed suit. UPS's defense is listed in the post, but obviously was not successful. The court's rationale is also in the post.

TAKEAWAY: Don't treat employees with a protected characteristic – which can include a medical condition that is a disability – differently than others. It will be far more costly in the long run.

Tuesday
Aug212018

ICYMI: Our Social Media Posts This Week – Aug. 19 - 25, 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 8/19/18 we saw that Facebook to tweak its ad tool to end discrimination probe. This stemmed from a finding that Facebook’s ad tools allowed advertisers to exclude black, Hispanic, and other “ethnic affinities” from their Facebook campaigns. See the post for more details on what happened and how it is being stopped.

TAKEAWAY:  Discrimination in any form is almost always illegal – don't be a part of it.

The post on Monday 8/20/18 was about how to transfer employees without liability. Why would an employer want, or need, to transfer an employee? Some reasons are in the post. While there are good reasons to transfer someone, there are also possible ramifications and steps to take. First, the transfer might be viewed as discriminatory or retaliatory. Examples of that are in the post. Other ramifications and steps to take are in the post.

TAKEAWAY: Transferring an employee to a different position can be a good option to have, but it must be used judiciously and legally.  

In the post on Tuesday 8/21/18 we saw that a jury awards Maui couple $1.7M in suit against their condo association. The underlying suit was about disability discrimination. Greg alleged that the board improperly tried to foreclose and illegally fined him and his wife $200 a day for more than two years. What they fined him for is in the post, as is more background information.

TAKEAWAY: Even in the planned community arena, Boards must ensure that there is no discrimination or retaliation against residents – or be prepared to shell out big time.

The post on Wednesday 8/22/18 asked: Delinquent owner pays assessments, but not late or other fees. Now what? The owner and Association were in litigation about four years of unpaid assessments, along with interest, late fees, attorneys’ fees and costs, the latter of which were authorized by the Association’s governing documents.  They agreed to a payoff relative to the regular assessments and that a trial would decide what other amounts were owed as a result of the owner’s failure to regularly and timely pay assessments. Good so far. Rulings by the trial court and appellate court are in the post; both have a similar basis.

TAKEAWAY: Make sure your Association has Governing Documents and that they are enforced.

In the post on Thursday 8/23/18 we read about the top 10 FMLA mistakes employers regularly make. And suggested you learn from them. The first, and most common, is failing to meet employer obligations including not posting the latest FMLA poster at every worksite and not having an FMLA policy. Others are in the post. Most are simply avoidable.

TAKEAWAY: Know what your obligations are and meet them; if you need assistance consult an employment law attorney like Austin Law Firm.

The post on Friday 8/24/18 told us about fired Haitian workers at hotel getting $2.5 million in discrimination suit. So imagine yourself in a beach chair, on white sand, with palm trees swaying; yes, this could be paradise in Miami. While off the sand, in the kitchen of a ritzy hotel, 17 Haitian dishwashers were banned from speaking Creole, while Hispanic colleagues were free to chat in Spanish. And when they were asked to do work other employees were not and complained about it … the post tells what happened next. So then they complained to HR. And … read the post for the employer's response While the employer asserts it had a legitimate reason for its actions, it settled the suit with the EEOC.

TAKEAWAY: If you are going to take adverse action against one or more employees, and s/he/they are in a protected class, make sure the action is legal before taking it – it could save you much hassle and money.

Finally, in the post yesterday 8/25/18, we asked: Is working full-time an essential function of a full-time job? No, this isn't a trick question. And the answer is "it depends". Here, Heidi, an HR generalist, went out on maternity leave. She was later released to return to work on a part-time basis, to which the employer initially agreed. The post includes what happened next that resulted in the filing of suit. How the appellate court ruled, and its bases, are also in the post.

TAKEAWAY:  Document FMLA leave (start and end dates) and make sure there is a valid, legal basis for any adverse action.

Friday
Aug102018

ICYMI: Our Social Media Posts This Week – Aug. 12-18, 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 8/12/18 we learned that a Boeing employee wins a racial harassment and discrimination lawsuit against the company (which has 5 lawsuits on the way). Is throwing a rope tied into a hangman's noose at a black man considered harassment? Roderick Marshall thought so – and sued Boeing. The post contains more of the background facts. There were more actions too (as noted in the post); while Boeing did not deny them, see the post for its defense. The jury came back big for Marshall. (I'm sure the 5 other plaintiffs whose trials begin this fall hope for a similar outcome.)

TAKEAWAY:  When made aware of a complaint by an employee, an employer should take action and not stick its figurative head in the sand – lest it be on the wrong end of a hefty jury award.

The post on Monday 8/13/18 asked: another employer pays up: did it lay the golden goose? A Golden Corral franchisee will pay $85K to settle a suit brought by the EEOC alleging that it discriminated against an employee when it subjected him to a hostile work environment based on both his disability and his sex. Sean, who has high-functioning autism, which limits his ability to communicate and interact with others, was a dishwasher. The treatment heaped on him by the male assistant manager is detailed in the post – and is not pretty. He made internal complaints but nothing was done. So what did he do? See the post.

TAKEAWAY: As we noted in yesterday's post, an employer cannot just do nothing when it gets a complaint – it must take appropriate action (or end up paying a lot in damages to the employee).

In the post on Tuesday 8/14/18 we saw that state common-law claims may be preempted by the FLSA. In this federal suit, the plaintiff alleged FLSA, Pennsylvania Minimum Wage Act, and Pennsylvania Wage Payment and Collection Law claims, then attempted to add on state common law counts for breach of contract and unjust enrichment. The underlying basis for the claims is in the post. The additional state claims were based on the same thing. The rationale the court used in finding the additional state claims were preempted by the FLSA is in the post.

TAKEAWAY: Plaintiffs often look to various laws for recovery since some may have a broader range of remedies available than others; this case is an example of how that might not happen.

The post on Wednesday 8/15/18 asked: Can the association board read its attorney's email to members at an open meeting? The answer is "it depends". On whether or not the email relates to litigation or not. And possibly a few other circumstances. The post also notes another basis upon which making the email public would be a problem, but that would already be covered if it was part of litigation.

TAKEAWAY: Even though transparency is a good idea, every single piece of information or data that the Board has is not appropriate for the general membership – an attorney versed in community law should be consulted to ensure no harm results to the association from improper release of something.

In the post on Thursday 8/16/18 we asked: When is a Facebook post NOT an illegal concerted activity? We talked about Boeing in our post this past Sunday. This time, however, the Boeing we discuss is the NLRB's new standard for assessing employer policies. Wait, don't turn out after mention of the NLRB – keep reading as this applies to everyone, unionized or not. The issue was whether the NLRA was violated when the employer discharged a pro-union employee who Facebooked a form that was “improperly taken” from a team leader’s desk.  Background details are in the post. Under the recent Boeing standard, if the rule at issue (here, a socmedia policy) is not even reasonably interpreted as restricting NLRA rights, the rule is lawful. The Board analyzed the facts using that standard and explained its decision as in the post.

TAKEAWAY: Make sure you know how Section 7 of the NLRA applies to ALL employers and that you consult employment counsel when it comes to application of that statute to an adverse action to be taken against an employee.

The post on Friday 8/17/18 told us that Estee Lauder settled an EEOC new-father leave bias case. Well, we all want equality in the workplace, right? This case is all about getting it. And the company will pay $1.1M to settle the EEOC's allegations that it discriminated against male employees by giving new fathers less paid leave to bond with a newborn or with a newly adopted or foster child than it provided new mothers. More details of what happened are in the post. This Equal Pay Act case includes payment of money and other items as listed in the post.

TAKEAWAY: Don't just talk about equal pay and treatment – make it happen in your workplace. It will save you a lot of time and money doing it right from the start.

Finally, in the post yesterday 8/18/18 we noted that an employee won $850K in an age discrimination suit. Ruth Briggs, 63, alleged in the suit that the day before her 57th birthday, her supervisor told her that “in China, they put women out to pasture at your age.” What happened after that over a 2-year period is in the post. Eventually Ruth resigned. What Temple University, the defendant asserted as its defense is also in the post. Needless to say, the jury did not buy it and came back for Ruth big time.

TAKEAWAY:  Yep, a stray comment followed by action can doom an employer’s defense. Train your employees on what not to do or say.

Wednesday
Aug082018

ICYMI: Our Social Media Posts This Week – Aug. 5 - 11, 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 8/5/18 we saw that the US Supreme Court will hear an age discrimination case against the Mt. Lemmon Fire District. This is a narrow question with broad implications. It concerns the ability of the Fire District to fire its two oldest employees. The narrowness is because the whole case turns on a single legal point: can government employers be too small to have to comply with federal anti-discrimination laws. There is a minimum number of employees required as a threshold for private employers, but the statute is silent as to public employers. Argument in favor of and against application of a floor are in the post.

TAKEAWAY:  Of course the safest ways for public employers to proceed is to act as if the private-sector floor applies or not to take adverse action against those in the age-protected category.

The post on Monday 8/6/18 talked about how NOT to address your employees. Here, the 2 plaintiffs, Julianne Taaffe and Kathryn Moon, had worked in the ESL program at Ohio State since 1983, teaching students from 40 countries. In 2009, when a new program director began disparaging them and other veteran ESL staffers while promoting younger and less experienced people, they wondered if they had done something wrong. But they knew they had not. That was confirmed in 2010 when an email from their boss was inadvertently copied to another staff member. The post contains the contents of that email. The post also contains some ways in which the boss referred to older members of his staff. An internal complaint resulted in no action being taken. After the EEOC got involved, things happened. See the post for the next occurrences.

TAKEAWAY: the age discrimination laws apply to state employers too – but with more limitations on damages. All employers should take care not to act adversely against older employees without valid, legal basis.

In the post on Tuesday 8/7/18 we were told that a trial date was set in a veteran's fight against a homeowner's association. The post was actually a video. It is about an association fining the owner for displaying a flag and how that plays out with rules agaisnt it.

TAKEAWAY: Living in a condo or homeowner's association comes with rules, but there is also the Flag Act.

The post on Wednesday 8/8/18 reminded that Yes, you should explain different discipline for the same offense. Employers are always cautioned to have in place rules/policies and to evenly enforce them, right? In the post, that did not happen – or did it? Read the post.

TAKEAWAY: Make sure that if a policy is not evenly applied, you have support for the difference.

In the post on Thursday 8/9/18 we saw that employers often designate leave as FMLA despite objections. Is that ok? The post has the short answer and some of the reasons the employee might not want to use FMLA leave time. The post also talks about why an employer may or may not want to designate leave as FMLA leave.

TAKEAWAY: Know the implications of designating leave as FMLA leave – talk to an employment law attorney.

The post on Friday 8/10/18 was about the Workforce Mobility Act possibly being the wrong solution for non-compete litigation. What does the Act do? It imposes a flat ban on all covenants not to compete for all U.S. employers and employees engaged in “commerce". It is pretty broad. The post mentions how the bill defines a “covenant not to compete" and that it provides for civil fines and a private right of action (including punitive damages) against violating employers, along with carving out confidentiality provisions consistent with the Defend Trade Secrets Act, 18 U.S.C. §1836. The post also mentions many legitimate uses for non-compete agreements, most of which appear not to have been taken into consideration by the Bill's supporters. And in what court do you want to have a suit over a non-compete? You may have no choice under the Act.

TAKEAWAY: While well-meant, the pending legislation may (once again) do more harm than good as its net sweeps too broadly. Stay tuned.

Finally, in the post yesterday 8/11/18 we saw that a federal judge initially accepted allegations that discrimination for “Jewish blood” is illegal racism. So this small Southern Baptist college in Pineville, LA tried to get dismissed a lawsuit alleging that it refused to hire a football coach because he has “Jewish blood". The post includes the court's ruling – it is well worth the read! The plaintiff, Joshua Bonadona, was the top-ranked applicant for the job and a 2013 graduate of that school. The judge considered the definitional distinction between “descent” and “blood” and then quickly tossed it aside as irrelevant. More of the background facts relief on by the judge are in the post.

TAKEAWAY: Don't take adverse action against someone based on a protected characteristic – and if/when you do, don't try to push it under the rug with a small, ineffectual brush.

Wednesday
Aug012018

ICYMI: Our Social Media Posts This Week – Jul. 29 - Aug. 4, 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 7/29/18 we saw that an IHOP dishwasher was allegedly fired for refusing to join a prayer group. Just not good. Matthew alleged that most of the employees and managers prayed together every day and that they often asked him to join. He declined. What was their response? See the post. Matthew complained to managers. What they did next is in the post. Eventually, he was sent home for refusing to join the group. Matthew then escalated his concerns to the franchise owner (whose response is in the post). He then reached out to corporate but, as of the time he filed suit, had not heard back. He alleges that he was harassed about praying, ignored by managers and then terminated.

TAKEAWAY:  Know what is and isn't allowed or required relative to expression of religious beliefs and religious discrimination or harassment.

The post on Monday 7/30/18 told us a Vegas Club is accused of sex for job scheme. Only in Vegas? So what happened? A cocktail server's accusation that a Hyde nightclub (at the Bellagio nonetheless!) manager demanded sex and nude photos in exchange for a job and that a manager told her that other servers had sex with managers to get jobs at the club. And what makes it worse? Just see the post. Ick.

TAKEAWAY: Still true: if you wouldn't want to see it on the front page of the NY Times, don't put it in writing!

In the post on Tuesday 7/31/18 we saw that an employee fired for applying to move closer to disabled son settled for $100,000. When the company learned that Ashok was considering a transfer to be closer to his son, who was left disabled from an auto accident more than 25 years ago, it took action – see the post. The EEOC then sued on his behalf for violations of the ADA and ADEA.

TAKEAWAY: Don't act against someone in a protected group without making sure it will not come back to bite you or your purse.

The post on Wednesday 8/1/18 told us that a court refused to remove a verbally abusive Director from office. This decision is from a PA appellate court and so is binding here. This is a community of about 4,500 homes. Kowalski was elected to the Board in June 2016. The rest of the board included seven women and one man. The post lists what he did during the first two months in office and after. The post mentions his rationale. The board admonished Kowalski three times for his conduct. The Association's attorney got involved; what happened after that is in the post. After only 6 months, the board suspended Kowalski and petitioned the court to remove him as a director and bar him from future service on the board under applicable state law. Why the trial court refused to remove him is in the post. The Association appealed. On appeal, the court reviewed the options available to remove a director and analyzed whether any was applicable on the facts there. See the post for that.

TAKEAWAY: What seems simple may not be when the facts re applied to applicable law – contact us about any thorny issues.

In the post on Thursday 8/2/18 we saw it took $38,000 to settle woman's pay suit; case centered on youth-lockup job. The EEOC had sued on behalf of a female employee who was paid "significantly less" than a man who held the same position. The suit alleged that the employer violated the Equal Pay Act and Title VII when it filled a facility investigator position vacated by a male employee with a lower-paid female employee. More of what happened prior to the suit is in the post.

TAKEAWAY: Don't try to pay one gender less than the other for doing the same job – you will be found out and have to pay more than you would have from the start.

The post on Friday 8/3/18 was about 7 ways to screw up the ADA's interactive process. Read on. Yes, it's true that an employer causing a breakdown in the process — or refusing to engage in it altogether — can serve as evidence of discrimination. How else can an employer mess up? By not knowing when its obligations to engage begin. By failing to recognize an accommodation request or ignoring it. And 5 more things listed in the post.

TAKEAWAY: Employers must know what their obligations are under the ADA and when they kick in – to make sure there are no missteps, let us help you.

Finally, in the post yesterday 8/4/18, we reaffirmed that the ADA requires focusing on ability, not diagnosis. Don't make a mountain where there isn't even a mole hill. Makes sense, right, since the purpose of the ADA is to ensure that someone can perform the essential functions of the job, with or without accommodation. So it follows that it is performance, not any medical diagnosis, which matters. Don't assume (you know what they say about that!). Don't step on the "regarded as" landmine like the employer in the post.

TAKEAWAY: We just said it above - know your obligations under the ADA and when they kick in, but don't go where you don’t have to.

Monday
Jul232018

ICYMI: Our Social Media Posts This Week – July 22 - 28, 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 7/22/18 we learned when a manager shouldn’t say ‘Good job!’ – and other pitfalls to avoid. Supervisors must be trained on what they can and cannot say to employees. Phrases like "“We are really looking for someone younger” and other things listed in the post should not be heard in the workplace. A restaurant learned this lesson the hard way when its managers did the things in the post. When employees do things they often do, what a manager should not say is in the post. And don’t say "Joe is just being Joe" for the reason in the post. More tips are in the post too.

TAKEAWAY:  Supervisors can and should be complimentary when deserved, but there are other things they should be trained not to say – to protect the employer from potential future liability.

The post on Monday 7/23/18 told us Raley's to pay clerk who said late shift before Thanksgiving was religious discrimination. Pay $140,000 (plus revise its policies).  Jennifer Webb, a courtesy clerk, had been scheduled to work a Wednesday night shift the evening before Thanksgiving 2014.Webb is a Jehovah's Witness and had told Raley’s supervisors before her hiring in May 2014 that she could not work shifts after 5 p.m. on Wednesdays and before 4 p.m. on Sundays because she had to attend religious meetings at those times. How Raley's treated her at the beginning, and then how it changed, are in the post. As a good employee, Webb showed up at 2 pm on Thanksgiving, but when she told a supervisor she could not stay past 5 p.m., she was fired. Raley’s disputed Webb’s claims on the bases in the post.

TAKEAWAY: Employers must remember that the law trumps their business needs in most cases.

In the post on Tuesday 7/24/18 we learned that the purchaser bears the risk by not asking for a resale certificate. State law provides that upon request the association must provide a certificate, and only those amounts listed can be collected from the purchaser, but that presupposes a request. In the case in the post, the purchaser did not request a resale certificate, the Declaration (which was filed) provided the consequences of delinquencies, and the appeals court ruled in favor of the association (and its analysis is in the post).

TAKEAWAY: As seller or purchaser, know your rights and obligations relative to a residence in a condo or homeowners' association.

The post on Wednesday 7/25/18 told us a sexual harassment claim was ordered to trial against Dollar General. The employee complained that her supervisor solicited sex from her and sent her lurid text messages (plus more – yes more - in the post). It was reported to the assistant store manager and lead sales associate. The assistant store manager personally saw one text message the store manager wrote to the employee in which he solicited sex from her. The post details what the assistant store manager did (which was all good) and the district manager's response (which was not). And take note of employer's knowledge of the applicable history as in the post.  The store manager was eventually fired. The employee was also fired after a few months on the job for reasons unrelated to her report of sexual harassment. She filed an EEO complaint which resulted in the EEOC filing suit on her behalf. Why the court ruled against Dollar General on summary judgment is in the post.

TAKEAWAY: If there is a policy, follow it – timely and to the letter, otherwise it will not provide a defense to you if and when needed.

In the post on Thursday 7/26/18 it was noted: Too small for FMLA to apply? Don’t count on it. What does that mean? Either you have a sufficient number of employees for the FMLA to apply or not, right? Well … If there is no joint employer relationship, or other reason that the threshold number of employees is increased, then it won't apply. But if you are like the case in the post … Don't wait to be like the parties in the post.

TAKEAWAY: Employers should know whether or not they are legally deemed the employer for FMLA (and other) purposes. Consult employment law counsel to be sure.

The post on Friday 7/27/18 asked: Whose hide are you saving when you fail to terminate an employee who should be fired? (We also noted that the post would apply under PA law too.) We've all seen it (and perhaps lived it) – an employee should be discharged, but the employer decides to “keep trying”, that is, to find a way to save the employee’s job, even when everyone—including the employee—knows it’s futile. This scenario affects not only the employer and the employee, but others noted in the post. This is especially important in an at-will state (which PA is and which is defined in the post). Employers must look at the totality of the circumstances, not just hurt feelings relative to the termination.

TAKEAWAY: If there is a question as to whether an employee should be terminated, or what legal liability might flow from the termination, the employer should consult employment law counsel – but don't just bury the issue in the sand to grow and raise its ugly head another day.

Finally, in the post yesterday 7/28/18 we read that an ADA lawsuit over lifting restrictions was reinstated. The background: Victor suffered a non-work-related shoulder injury and was granted medical leave in January 2012. Between March and December 2012, he asked to return to work with a lifting restriction that started at 30 pounds but lessened to 50 pounds. The employer rejected that, relying on the written job description that lifting 75 to 100 pounds is an essential job function. Victor sued; at the trial stage, he won on summary judgment (meaning there could be no issues of material fact in dispute that, when applied to the law, entitled Victor to judgment) but the case was reinstated on appeal. Why? For the reasons in the post.

TAKEAWAY: We continually advise employers to have in place accurate job descriptions; part of accuracy is that it actually tracks what the person(s) in the job actually do(es).