Monday
Jul282014

ICYMI: Our Social Media Posts This Week -- July 27 – Aug. 2, 2014

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

The post on Sunday 7/27/14 was about whether older employees are welcome in the Mouse House (aka Disney). The 22-year employee and head of the story department filed suit against Disney, alleging age discrimination. His complaint says that he was replaced with his former assistant, a younger female. Also, he says that soon after he was fired, another older employee was also discharged.

TAKEAWAY:  Disney may be there to make kids feel good, but lawsuits certainly don’t make employers feel good. To avoid suits (or have a good defense if one is filed), ensure that there is a legitimate non-discriminatory reason when an employee is discharged.

On Monday 7/28/14 the post was about the NLRB’s continual targeting of employee handbooks. Employees must remember that Section 7 of the NLRA gives both union and non-union employees the right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .” Also, under Section 8 of the Act, it is an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” These apply even to non-union employers such that Handbook policies must be crafted with the Act in mind. Employers keep getting tagged for violations. The post talked about a few examples, including language prohibiting “discourteous or inappropriate attitude or behavior” as being over-broad and possibly construed as to preclude discussion of employment in violation of Section 7.  Other examples are in the post.

TAKEAWAY: ALL employers must ensure that their Handbook policies comply with the NLRA or they might get embroiled in a legal dispute that could prove costly in many ways.

The post on Tuesday 7/29/14 talked about 3 things to know when retaining a lawyer for your business. The post talked about the different types of retainers and why and when you might want the various types of relationship indicated by the different retainers.

TAKEAWAY:  Understand for what and how you are engaging an attorney, along with how any retainer will be applied.

On Wednesday 7/30/14 we posted about what you can do about bad employees. The first thing is to know the law. PA is a strong at-will state, so you should know what that means and what rights or obligations are given to or required of both employers and employees. Make sure everything is documented, then decide what, if any, action to take relative to bad employees.

TAKEAWAY:  Employers need not be stuck with bad employees in perpetuity – they just need to know how to legally discharge those persons. Consulting an employment attorney is always a good idea.

On Thursday 7/31/14 the post served as a reminder that anything can turn into a labor violation (and how Starbucks found out the hard way). This was another case involving a decision of the NLRB in a non-Union workplace (Starbucks). What happened? An employee who was a known union supporter was in a profanity-laced argument with a manager in front of customers (on premises but off-shift). The manager also used profanity, but was not disciplined. In the long and winding saga of the case, in 2010 the NLRB decided the discharge was based on the employee being a known union supporter (and therefore illegal). Starbucks appealed the decision and the appeals court (in 2012) sent the case back to the Board to decide if it made a difference since the conduct had taken place in front of customers (therefore being so outrageous as to remove any protections under the NLRA). On 6/16/14, the Board again said the discharge violated the Act since other employees had been treated more leniently for similar conduct and the manager had not been disciplined at all, such that it seemed likely to have been based (at least in part) on the employee’s union support.

TAKEAWAY: Depending on the whole of the circumstances, what seems like a simple discharge for mass profanity can turn into a big deal – and a finding of a labor law violation. Employers must be careful!

Friday 8/1/14 the post was about keeping your hands (and sexual thoughts) to yourself. Yep, even in today’s workplaces, many individuals never learned a basic lesson from kindergarten: keep your hands to yourself. And then there are those who feel the need to tell others at work what they would like to be doing with their hands (or other body parts). One case involved detailed and overwhelming evidence of disturbing sexual harassment, culminating in a violent sexual assault by a coworker, along with evidence that the manager laughed along with the harassers – needless to say, the court entered judgment in favor of the employees against the employer and the manager individually. In another case, a dental assistant felt compelled to quit after the dentist’s sexual advances culminated in him forcibly grabbing and fondling her breasts. Go to the post for more, including situations where it is not just sexual touching or might even just be words or images.

TAKEAWAY:  Employers must ensure that no sexual harassment occurs in the workplace and, if discovered or even alleged, must investigate and take appropriate action.

Finally, yesterday 8/2/14 the post was about a case where revocation of a job offer after knowledge of age resulted in a lawsuit (settlement). Here the EEOC brought suit against the Bobby Dodd Institute. Why? Two women over age 70 applied for a shared mail clerk position and were given job offers. After the CEO found out their ages, the offers were revoked (a mere 1 day before they were scheduled to start). Then, to make matters worse, the company hired 2 younger people for the position. While denying liability, the company settled for $40,000.

TAKEAWAY: Even if a decision is made for legitimate non-discriminatory business reasons, you should be prepared to prove that basis – especially if the circumstances looks funny.

Monday
Jul212014

ICYMI: Our Social Media Posts This Week -- July 20 - 26, 2014

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

We started the week with the post on Sunday 7/20/14 that dealt with whether or not a fancy title makes someone exempt. The short answer: no. Titles do not always tell what an employee’s  duties are or on what the employee spends the majority of his/her working time, such that further analysis must be done as to whether or not the person is exempt from overtime pay.

TAKEAWAY: Employees like titles, but they really like getting paid properly – it is the employer’s obligation to know if the person is or is not exempt from overtime pay.

On Monday 7/21/14, the post showcased a violation of the Equal Pay Act – and a trucking company that learned the hard way. A company based in MD settled its case with the EEOC for $42,000 (and other relief). What were the allegations? That a female truck driver was paid less than male drivers and that she was fired after complaining in writing. The settlement is for back pay and liquidated damages.

TAKEAWAY: Gender usually has nothing to do with job performance, so all comparable employees doing the same job should be paid the same.

On Tuesday 7/22/14 we posted about 5 things not to do after a sexual harassment complaint. Seems like something that would need no post, right? Wrong! The tips include: do not fire the employee, do not ignore the complaint, and do not wait to handle it in court. The other tips are in the post.

TAKEAWAY:  If a sexual harassment complaint is filed, act. Don’t wait. Contact your employment attorney now.  

The post on Wednesday 7/23/14 was about sexual discrimination and settlements: how NOT to act at work. SunTrust bank (yep, that large employer), is paying $300,000 (and other relief) to settle a sexual harassment suit brought by the EEOC. What were some of the alleged acts by SunTrust’s branch manager? That he repeatedly trapped a female behind the teller counter with his body, told a woman she should wear a bathing suit to work, and regularly staring at women’s breasts. More of the alleged actions are in the post. And if that weren’t bad enough, apparently the employee’s complaints were ignored and after the branch manager quit when the investigation began, SunTrust rehired him!

TAKEAWAY:  While it makes good fodder for law school classes, this type of thing should not happen in the real world. Employers should make sure no harassment occurs in the place of employment and when a complaint comes in, it should be investigated immediately.

On Thursday 7/24/14 the post was off the normal topics and about how scuba diving is a good workout for your body. How, you ask. It provides head-to-toe toning, has crazy calorie burns, helps with better breathing (which can increase lung capacity and decrease the risk of lung disease), slashes stress (under water + endorphins + deep breathing + pretty fish = aaaaahhhh!), and leads to higher self-esteem (yes, you can handle whatever comes at you on the surface as well as under water!).

TAKEAWAY: Help yourself stay refreshed and ready to work by keeping your body and mind fresh – one way is to scuba dive.

Friday 7/25/14 the post was about nose rings, hair color, beards, and head scarves – all things that can get an employer in trouble. What do they all have in common? They appear in dress or grooming standards or policies. An employer can tell its employees how to dress for work (including grooming), right? Well, maybe. Religious beliefs can trump those dress or grooming standards. So too race can come into the picture, usually relative to hairstyles.

TAKEAWAY:  As in most other areas, an employee can dictate how it wants its employees to dress or look, but must be prepared to accommodate religious beliefs or racial differences.

Finally, yesterday 7/26/14 the post touched on 7 laws every employer should know about. Do you? What are a few of them? Title VII, Fair Labor Standards Act (FLSA), Americans with Disabilities Act (ADA), and Family and Medical Leave Act (FMLA). The others are listed in the post. And not only should you know about them, you should have a general understanding of what they require of the employer and what rights they provide to employees (or others).

TAKEAWAY: Ignorance is no excuse when it comes to (potential) violations of employment laws. Know which obligations and rights are covered by each law and whether it applies to your business. Also, keep your employment attorney on speed dial to ensure legal compliance.

Monday
Jul142014

ICYMI: Our Social Media Posts This Week -- July 13 - 19, 2014

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

To start the week, the post on Sunday 7/13/14 was a reminder that the ADA requires AN accommodation, not necessarily the employee-requested one. It is good to get input from the employee on what s/he might want as an accommodation, but that is not the end of the process.

TAKEAWAY: The employer remains in charge, even in determining what accommodation it will provide (or that to provide one would be an undue hardship under the law).

On Monday 7/14/14, the post was about the fact that an unlawful policy does not always make for an unlawful termination.  In a (seemingly rare) win for employers at the NLRB, it was held that just because a policy was overbroad (and therefore unlawful), the termination based on that policy was not unlawful. On the facts here, the employee was terminated not for protected activity (discussing wages), but for sharing confidential customer information. Since that was NOT protected activity, termination based on that was legal.

TAKEAWAY: as I’ve stressed over and over, all employers, unionized or not, must be aware of the potential implications of all policies and whether or not they comply with the NLRA. It is best to run all Handbooks by an employment attorney to ensure compliance.

On Tuesday 7/15/14 we talked about “Not enough of a male chauvinist pig”. Yep. This came up in a same-sex harassment situation when a male fitness instructor sued the employer because he “didn’t fit the stereotype of being ‘sexually loose, promiscuous and predatory’ like his harassing male supervisor.”  The employer argued, unsuccessfully, that the case should be dismissed because the employee did not allege he was harassed for being effeminate. Here, the employee was found to have stated a sufficient claim of same-sex harassment and the case would proceed.

TAKEAWAY: Same-sex harassment is becoming more common; it can encompass non-conformity with many sexual stereotypes, even not being enough of a male chauvinist pig.

On Wednesday 7/16/14 the post was about an NLRB decision finding a non-solicitation policy to be unlawful. There, the employer was a food service distributor that sells food, paper products, and cleaning supplies, among other items, to institutions throughout the western US.  The alleged violations included that the employer had several overly-broad policies. The Board agreed the employer had an overly-broad non-solicitation policy. The policy at issue was short and sweet: “Solicitation discussions of a non-commercial nature, by Associates, are limited to the non-working hours of the solicitor as well as the person being solicited and in non-work areas. (Working hours do not include meal breaks or designated break periods.)” So what was the problem? The policy prohibits even union solicitation in work areas during non-working hours.

TAKEAWAY:  ALL EMPLOYERS MUSDT VIEW ALL POLICIES IN LIGHT OF THE DICTATES OF THE NATIONAL LABOR RELATIONS ACT. Period.

On Thursday 7/17/14 the post was about 5 ways to deal with pregnant employees without getting sued. It is NOT recommended that employers merely bury their heads in the sand, but rather that they address the issues. So what are some of the suggested actions relative to pregnancy? (1) Know which laws apply to your company. (2) Have a written policy. (3) Disregard your policy [yes, you read that correctly]. Go to the post for more on this item and the other two.

TAKEAWAY: Liability avoidance is high on every employer’s list, as it should be; having in place the steps to ensure legal compliance relative to pregnant employees is imperative.

Friday 7/18/14's post covered 3 employment law trends HR managers need to know about. So what are they? 3) The NLRB and the EEOC are keeping watch. And, if you haven’t already figured it out from all of our posts, they are being more and more aggressive. 2) Workers want their time off. Be it the ADA, FMLA, or other applicable laws, employees have rights. For the #1 trend, go to the post.

TAKEAWAY:  Employers cannot operate their businesses in a vacuum: they must be conscious of and in compliance with applicable laws and employee rights. Ignorance will not be a defense to a lawsuit.

Finally, yesterday 7/19/14 we posted about no harm, no foul equaling no liability under the FMLA. The court said that technical violations of the FMLA will not result in liability for the employer unless the employee can show that the non-compliance affected the decisions regarding leave. Here, the employer did not timely provide FMLA notices; the court said that was not a violation, but could be if the employee could show that s/he would have scheduled FMLA leave differently. A win for employers? Sort of.

TAKEAWAY: While employers (at least in the geographic area governed by that court decision) can rest a bit easier, they should not just do nothing; employers should still aim for full compliance so as to avoid matters going to court.

Monday
Jul072014

ICYMI: Our Social Media Posts This Week -- July 6 - 12, 2014

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

First up, the post on Sunday 7/6/14 was about sex and sleepovers and betrayal adding up to an $11.6M discrimination verdict. Against whom? None other than Microsoft! Short story: senior sales exec was hounded for 2 years by his boss (also his ex-girlfriend) who had help from the Marketing Director, a Regional Sales Director, the National Sales Director, and the VP of US OEM Windows, Office & Servicer sales. No, this is not a soap opera but real life and the TX jury made Microsoft pay. The steamy details are in the article.

TAKEAWAY: Employers must make sure there is no discrimination, harassment or retaliation in the workplace and that those involved in any of those acts be taken to task (before a jury does the same to the employer).

On Monday 7/7/14 we talked about the fact that following a document destruction policy can result in sanctions – and making sure you understand why. It is acceptable – and usually recommended – that companies have in place a document destruction policy – including electronic communications. But when litigation occurs, or is even threatened, the policy must be put on hold and other actions taken to preserve what might be relevant. In the spotlighted case, the employer didn’t do what it should have and the court slapped its wrist – monetarily.

TAKEAWAY: Follow your policies, even on document destruction, until it becomes important to deviate. Consult an employment law attorney to be sure which is which.

Next, on Tuesday 7/8/14 we posted about how an employer should handle stupid discrimination complaints. Complaints are made because the employee feels she has been wronged somehow – do not let that molehill grown into a mountain before action is taken (talking to the complaining employee to get to the root of the issue and understand from where it comes, find out what the employee expects the employer to do about it, thank the employee for speaking with the employer and let him/her know any resolution (if possible), and document everything for the file(s).  

TAKEAWAY: There is rarely a stupid complaint about anything – employers should investigate each and every employee complaint and take action where warranted.

On Wednesday 7/9/14 the post was about 5 on-site investigations with 5 unhappy endings (and how you can learn from them). This post covered 5 situations that occur in the FMLA arena: asking for too much information; moving a full-time employee to part-time; not notifying the employee of his/her FMLA rights (and penalizing him/her for something that would have been covered); not telling the employee of certification rules; and remembering that the FMLA applies to those acting “in loco parentis” as well as actual parents.

TAKEAWAY:  Employers must know the law – be it FMLA or other – or be reminded of what they did wrong when hit with an administrative charge or lawsuit and, possibly, large monetary settlement or verdict.

On Thursday 7/10/14 we talked about how history + pretext can = trial. Huh? In short, and as the author says, a history of workplace racial imbalance might undermine your legitimate non-discriminatory reason for a promotion (or other) decision.

TAKEAWAY:  Hiring, promotion and termination decisions should be based on legitimate non-discriminatory reasons – make sure they are the REAL reasons before a court tells you otherwise.

The post on Friday 7/11/14 talked about 5 important questions for your business after the recent Hobby Lobby decision. Yes Virginia, religion CAN affect business more than you think. Given that the Supreme Court just gave closely-held corporations the right to act like persons in some cases, it is important for corporate entities to think about these 5 questions. 1) Should you declare your religion in the hiring process? 2) Should you declare your religion to existing employees and customers/clients? 3) Might your group insurance rates increase if you decide to deprive your female employees of comprehensive reproductive health care? 4 and 5 are in the post.

TAKEAWAY:  Supreme Court decisions can touch you every day in ways you might not even think of. Make sure you have an employment attorney who knows these things and helps you work in your business’ best interests.

Finally, the post yesterday 7/12/14 was about how not to get caught in an EEOC discrimination nightmare.  What is one of the areas in which an employer must be especially careful (given the EEOC’s renewed push)? Religious discrimination. It can touch many facets of an employee’s job. But remember that any accommodation must still be reasonable – and that can differ as do the circumstances. Reasonableness also comes into play in accommodating for a disability (so does undue hardship). The post also touches on age discrimination and a short overview of the EEOC process.

TAKEAWAY: The easiest course for an employer to follow is one that bases decisions on legitimate business needs and looks at how it can accommodate reasonable requests from employees. Those who don’t take this path find (EEOC) thorns strewn along the way.

Sunday
Jul062014

ICYMI: Our Social Media Posts This Week -- June 29 – July 5, 2014

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

First up, the post on Sunday 6/29/14 was about the fourth disability discrimination suit filed against Auto Zone.  Yes count ‘em, 4! This suit accused Auto Zone of having an attendance policy that did not take into account disability-related absences.  The post also notes that earlier in 2014 a federal appeals court upheld a $415,000 verdict against Auto Zone in another disability discrimination and retaliation suit. Some employers never learn.

TAKEAWAY: The law is there for a reason – employers must abide by it or be dogged by agencies charged with enforcement of those laws.

On Monday 6/30/14 the post was a reminder about ethnic discrimination. The suit there was against Hispanics United. What happened in this case where both sides are Hispanic? A Cuban employee asked for and was denied a promotion and that she and her husband were paid less than other employees because they are not Puerto Rican; suit resulted.

TAKEAWAY: Employers must keep in mind that it is discrimination can take many forms and often there is a thin line separating what is legal from what is not.

Next, on Tuesday 7/1/14 we posted about the fact that an inability to sit for prolonged periods can be a disability under the ADA. In this case it had an easy fix – get the employee an ergonomic chair – but the employer never did that.  

TAKEAWAY: Remember that the definition of disability is broad so the easiest and best thing for employer to do is jump straight to the accommodation process.

On Wednesday 7/2/14 the post was an employee versus contractor redux. Why do government agencies care if people are properly classified? Because erroneously classifying someone as a contractor can affect their benefits and protections, including family and medical leave, overtime, minimum wage and unemployment insurance; further, it generates substantial losses to the federal Treasury and the Social Security and Medicare funds, as well as state unemployment insurance and workers compensation funds. Classification can also affect the employer’s liability for the person’s action and the employee’s protection from employment discrimination. The post lists common factors used in making the classification determination. It is also a good idea to talk to an employment attorney since this has legal ramifications.

TAKEAWAY: It is SO important that those working for you be classified properly – it can be very expensive for you as the employer if they are misclassified so just get it right from the start.

On Thursday 7/3/14 we posted about whether a CNN employee was fired for flamboyant attire or another reason. Coincidentally (?) the employee’s discharge came right on the heels of his supervisor finding out he was gay. The employee claims in his suit that his supervisor told him “he should not wear his black or yellow mariachi suits in the newsroom, ‘because it was too flamboyant for a male in our department.’” The supervisor also allegedly said that the employee’s attire “might make him a better fit in the ‘entertainment or makeup department.’” The lawsuit asserts that the “flamboyant” comment was rooted in a gay stereotype and seeks $60 million.

TAKEAWAY:  If your workplace has a dress code, make sure it is based on job necessity. If there is no dress code, don’t let managers make one up based on stereotypes or personal biases.

The post on Friday 7/4/14 was short but sweet: enjoy the Independence Day holiday!

Finally, the post yesterday 7/5/14 was about whether travel time is compensable. The federal Fair Labor Standards Act comes into play here and provides for when travel time is or is not covered. Some situations discussed in the post are travel from home to work (including who owns the vehicle in which the employee is travelling), travel time when in a carpool, out-of-town travel, and overseas travel. For all of these and other common scenarios, read the post.

TAKEAWAY: Employers should not assume that all travel by employees is either compensable or not compensable – there may be some of both. Rather than short-changing the employee (and possibly being subject to fine/penalty), you should know the rules of this road.

Monday
Jun232014

ICYMI: Our Social Media Posts This Week -- June 22 – 28, 2014

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

First up, the post on Sunday 6/22/14 was about the alleged discord and discrimination on the Grey’s Anatomy set. A former crew member filed suit, alleging his discharge was based on gender discrimination and harassment – when he spoke out about the director’s alleged actions and behavior toward women, he was fired. The defendants in the lawsuit are ABC Studios and Disney-ABC International Television. Stay tuned ...

TAKEAWAY: Reminder to employers: not only can you not act against an employee based on a discriminatory motive, you cannot retaliate against them for complaining about a possibly illegal practice.

On Monday 6/23/14 the post was about a potential FHA rule squeezing home buyers and sellers (even more). So what’s happening? FHA is considering restricting financing in HOA-governed communities that impose transfer fees.  Not the fee for providing a resale certificate, but the transfer fee – often this is put toward capital reserves. This change came about because HUD’s office of general counsel has warned FHA that it cannot insure mortgages for properties that have restrictions on conveyance, which includes transfer fees on sale of units in HOA-governed communities). Since many mortgages are FHA-insured, this could have a far-reaching effect on resale of homes in many communities.

TAKEAWAY: HOAs should consider whether the benefits of transfer fees outweigh the current inability of potential buyers of homes in the community to obtain FHA-insured mortgages (and perhaps think of other ways to increase their capital reserves).

Next, on Tuesday 6/24/14 we posted about the considerations before co-signing on a mortgage (legal and otherwise). What are two things to keep in mind? The loan -- and (non)payments -- will show up on your credit report; and you are 100% liable for the amount of the mortgage (meaning the lender can collect it all form you and leave you to try to collect some or all from the borrower(s).  Go to the post for more.

TAKEAWAY: Signing any legal document – and a mortgage IS a legal document – should not be done lightly. Make sure you know your rights and obligations BEFORE signing.

On Wednesday 6/25/14 the post was about the fact that fines for ADA violations just got more expensive. Of course, everyone reading this is 100% compliant with every law out there, so this won’t matter … But just in case you are in the minority, be aware of this. The new fines are $75,000 for the first offense and $150,000 for subsequent violations. Those amounts are in addition to any settlement payment that may be sought or agreed upon.

TAKEAWAY: Lest employers think all they are responsible for is paying the employee what is needed to make him/her whole, think again; there are still penalties due to the government too for violations.

On Thursday 6/26/14 we talked about whether you have to hold a job after FMLA leave if the business takes a turn for the worse. Remember that the FMLA is federal law, so it doesn’t’ matter where the employer is located if it is subject to that law. The FMLA includes a reinstatement provision, but that does not trump real business needs. If the business has experienced problems that necessitate changes in the employee’s job – from cutting hours to cutting pay to eliminating the position -- then document the problems and how that relates to the position change.

TAKEAWAY:  Absent discrimination, an employer can base job changes on legitimate business needs.

The post on Friday 6/27/14 reminded of an employer’s responsibility to protect employees from harassment – even by customers. This is referred to as third-party harassment. What were some of the things that happened to the employee? The harasser called her a “black b****,” regularly bragged about his sexual exploits, passed gas on her phone, and even used the “n” word in front of her. The court said that there could be liability if the company knew or should have known about the harassment and if it did not act “swiftly and decisively enough once it knew of the inappropriate conduct”. 

TAKEAWAY:  Employers tend to look inward in an attempt to prevent and restrain harassment and discrimination. They must remember to look outward, at customers and others, too in an attempt to fulfill their responsibilities to employees.

Finally, the post yesterday 6/28/14 was about whether an employer can require a fitness-for-duty exam after FMLA and ADA leave. The quick answer is yes, but certain requirements must be met. In the case discussed in the post, the employee was out on FMLA leave and, when that was exhausted, leave under the ADA. The employer brought her back to work, placed her on paid administrative leave, and requested that she get a medical exam. Since the employer reinstated her prior to asking for the exam, and because the employer was paying for the exam, it was job-related, and it was consistent with business necessity, there was no violation by the employer.

TAKEAWAY: Leave under the FMLA and ADA do not mean the employer cannot ensure employees are ready and able to return to work – they just have to do it in a way that complies with the legal requirements.

Monday
Jun162014

ICYMI: Our Social Media Posts This Week -- June 15 – 21, 2014

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

First up, the post on Sunday 6/15/14 was about new VAWA guidance asserting limited LGBT rights in the workplace. Know this: the Justice Department’s guidance specifies LGBT protections under the reauthorized Violence Against Women Act has explicit non-discrimination rules for employment. It covers sexual orientation and gender identity.

TAKEAWAY: Employers may think they are familiar with all laws affecting the workplace and their employees, but they should now add VAWA to that list.

On Monday 6/16/14 our post reminded everyone that USERRA still applies to the workplace and when it is forgotten, a lot can be at stake. Penske learned the hard way, settling the suit for $85,000 in lost wages for its failure to reemploy a service member.

TAKEAWAY: In the face of increasing harassment and discrimination suits, employers must still know and follow the requirements of USERRA as relates to the members of the armed forces.

Next, on Tuesday 6/17/14 we posted about saying goodbye to precedent and hello to forced speech.  Huh? This was another move by the NLRB in response to the issue of whether companies must allow the use of their email system for employees to engage in protected activities (especially when they are contrary to the employer’s interests). In 2007 the NLRB said the answer was “no”. So in a case arising out of CA, where the ALJ applied that 2007 rule, the NLRB General Counsel has appealed and is asking the Board to overrule its precedent and adopt a new rule requiring employers to treat non-business protected activity (including unionizing) the same as business activity (like talking about ongoing work for a customer).  The deadline for briefs from the public was 6/6/14, so stay tuned for further happenings in this issue.

TAKEAWAY: Stay tuned and be ready to open your system if and when such a change of precedent comes down, but don’t hold your breath. Remember the (failed) poster rule? 

On Wednesday 6/18/14 the post was about how engaging in the good-faith interactive process can be a true win for the employer. What was the big thing? The employer consistently offered to accommodate the employee’s alleged disability even though she failed to provide authentic doctor's notes after multiple requests by the employer. The court said that it was the employee who made the process break down, not the employer, so it was not liable for a failure to accommodate. (It also helped that the alleged sexually offensive comments were sporadic, few in number, and not blatant.) 

TAKEAWAY: If possible, an employer should try to accommodate an employee, even if the legal necessity to do so is in doubt.

On Thursday 6/19/14 we talked about the fact that states can be the subject of sexual discrimination suits too. In this case, the State of Hawaii allegedly subjected an employee to sexual harassment (lewd and unwelcome comments and intimidation by a co-worker) and retaliation (employment termination for complaining about the harassment).

TAKEAWAY:  Remember that states are employers too; they are not exempt from laws preventing discrimination and harassment.

The post on Friday 6/20/14 was about the fact that men can be the victims of discrimination (and even win suits). Ordinarily one thinks that plaintiffs will be female, but that is not always so. In this case, a group of men just won a lot of money on their sex discrimination and equal pay claim (making for an unhappy employer I’m sure!). While the case was in Britain, the same things apply here in the US.

TAKEAWAY:  Laws against discrimination and harassment protect both sexes.

Finally, the post yesterday 6/21/14 was about how a DIY estate plan – or having no estate plan – can have unintended consequences. In this case from FL, the person used a pre-printed legal form for a Will. Problems cropped up (including distributions to beneficiaries she did not name) when things not dealt with by the form became problematic; further, as the court noted, the amount saved by the person in using the pre-printed form was far outweighed by the costs of litigation in working through all of the issues resulting from the use of the form.

TAKEAWAY: Don’t take legal matters into your own hands. Contact an attorney who knows the type of law that is at issue. Do it for yourself and your family.

Monday
Jun092014

ICYMI: Our Social Media Posts This Week -- June 8 – 14, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Jun022014

ICYMI: Our Social Media Posts This Week -- June 1 – 7, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday
May272014

ICYMI: Our Social Media Posts This Week -- May 25 – 31, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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