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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


Our Social Media Posts This Week -- Mar. 30 – Apr. 5, 2014

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

First up, the post on Sunday 3/30/14 was about illegal job interview questions – the ones NOT to ask.  The post gave examples of some categories that should not be delved into (including age, race, religion and disability) and examples of questions that could really be the back-door way to ask the illegal questions (such as “when did you graduate from high school?” which could be the back-door to ask about age). If the interviewer asks something that appears to be illegal, then the applicant may politely inquire as to why the question is being asked. If, for example, the question is about the applicant’s height and the position is to operate a machine requiring the operator to be at least a certain height, then the question is relevant to the job and acceptable. Chances are pretty good that if there is no job-related reason for the question, the interviewer will shrug it off after being called on it and just move on.

TAKEAWAY: Both employers and applicants should know what can and cannot be asked in a job interview.

On Monday 3/31/14, the post was about the FMLA and the ADA being the Brad and Angelina of employment law.  What does that mean? Whether you realize it or not, the 2 laws often go hand in hand. When an employee takes FMLA leave for his/her own medical condition, there may be ADA implications too.  The employer should not wait for the (potential future) request, but would be better served by beginning the interactive accommodation process at that point – at least asking if the employee foresees the need for accommodation upon his/her return to work from FMLA leave.

TAKEAWAY: When an employee is being considered under either the FMLA or ADA, employers should automatically be thinking of what, if any, obligation they have under the other statute as well.

Next, on Tuesday 4/1/14 the post affirmed the fact that employees can affirmatively decline FMLA leave and protections.  Why does that matter? Because then the employee does not have protection under the FMLA.  In the highlighted case, the employee was discharged after 3 no-call no-show days following an approved leave.  The employer was able to bring forth evidence that the employee had specifically NOT wanted the leave counted as FMLA leave (such as the initial leave request being presented to a supervisor and not HR, HR having asked more than once if she needed additional leave time, and the employee being told that she should go to HR is there were questions), so she did not have protections when she failed to return after the leave.

TAKEAWAY: Employers should ensure they know what is or is not being requested; there is no need to grant an employee more than s/he is asking for.

On Wednesday 4/2/14, the post was about a federal case where an employer must pay $100,000 in attorneys’ fees--on $7,650 of damages. What? Yes.  A female filed suit against her employer, alleging 6 different claims. She dropped 4 of them and went to trial on the other two. The jury ruled in her favor and awarded just under $8000 in damages and over $100,000 for attorneys’ fees. On appeal, the court found the attorney fee award not unreasonable as it was exactly what the statute intended – a way to discourage employers from acting illegally.

TAKEAWAY: Employers who take illegal action and then don’t settle are likely causing more – and more expensive – harm to themselves in the long run.

On Thursday 4/3/14, we talked about strategies to avoid retaliation claims. What are 3 of the ways mentioned? Develop and maintain an effective no-retaliation policy, train employees, and effectively manage investigations.  Other things were also mentioned in the post, so read it if you haven’t already. And why is this important? Because, as the saying goes, an ounce of prevention is worth a pound of cure. Translation: spending a little time and money now will (hopefully) prevent your business from having to spend a lot of time and money later.

TAKEAWAY: Again, employers should take all possible measures to ensure compliance now rather than having to pay (more) later.

The post on Friday 4/4/14 was about whether firing an employee over a scheduled doctor's appointment violates the FMLA. Again, this is a federal court case. The employee made a doctor’s appointment, her supervisor asked her to cancel it so they could have a meeting, and she refused. Four days later, the supervisor terminated her employment. She ended up filing suit (after exhausting administrative remedies) for FMLA interference and retaliation. On the interference claim, the court found that the employee did not provide reasonable notice, such that the claim failed. On the retaliation claim, the court found that because she had not given proper notice, she had not properly tried to exercise her FMLA rights so there could be no retaliation. In the end, a win for the employer.

TAKEAWAY: Both employers and employees have to play by the rules of the game; if the employee doesn’t, then the law and its protections may not apply.

Finally, yesterday 4/5/14, the post was about a sex discrimination settlement for an Erie restaurant. The underlying allegations were that the co-owner frequently made offensive comments of a crude or sexual nature to, or in the presence of, the plaintiff and other female employees and that the co-owner also touched female employees in a sexual manner. Further, they alleged that he continued these behaviors despite being told to stop and that they were unwelcome. The plaintiff even said it was so severe that she was forced to quit. The restaurant refused to settle at the EEOC administrative phase, so the EEOC filed suit. Finally the restaurant employer agreed to settle.

 TAKEAWAY: There is no place in the workplace for sexual discrimination or harassment; if it is found, the employer will pay – handsomely.


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


Our Social Media Posts This Week -- Mar. 23-29, 2014

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

First up, the post on Sunday 3/23/14 was about how NOT to choose a manager. The guidance here applies to any industry or market.  So, what were some of the tips? Don’t assume someone wants to be a manager. Don’t base the decision (on making him/her a manager) solely on length of employment. Don’t overestimate the role of the person’s technical experience to his/her being a manager. More tips are in the post.

TAKEAWAY: There are leaders and there are followers; make sure your leaders will succeed, not just be a title.

On Monday 3/24/14, we listed 3 of the EEOC’s top enforcement priorities for the 2013-15 period: eliminating barriers in recruiting &hiring, (im)migrant worker issues, and pay discrimination by gender.

TAKEAWAY: The EEOC will be concentrating on these (and other) priorities, but employers must beware ANY illegal action in the workplace.

Next, on Tuesday 3/25/14 we listed other top enforcement priorities for the EEOC in 2013-15: not impeding the exercise of individual rights; preventing systemic harassment, and emerging areas (including pregnancy–related limits and coverage of LGBT individuals under sex discrimination laws).

TAKEAWAY: If employers comply with the law, they need not worry about what the EEOC has as its priorities.

Wednesday 3/26/14 we talked about how much is enough to constitute sexual harassment. In this case, the female employee said her male boss reached around her back and placed a hand on her shoulder twice, keeping it there for a few minutes (while he was driving her back to her hotel after dinner with other trainees) and also told her that “she owed him” for hiring her. Almost a year after those incidents, she was fired for poor performance and filed a sexual harassment retaliation claim. The federal court found the shoulder touches insufficient to constitute harassment under the law (as not being severe or pervasive enough even though they were “creepy and inappropriate”). The court also said that she didn’t report it and didn’t even describe it as sexual harassment when she did eventually complain. Finally, she did not show that her complaint was the “but-for” cause of her discharge.

TAKEAWAY: Employers should not condone anything inappropriate between employees at any level, but also should not shy away from discharging an employee if the facts support that action.

On Thursday 3/27/14, we talked about how a good defense to a suit under the FMLA, FLSA or ADA can win the day. The post gave background facts about the employee’s position, her medical condition, and what she did during work that led to the federal court case. So how did she lose? (1) The employer had records that clearly showed she was not eligible for FMLA leave, (2) the individual she sued under the FLSA did not have anything to do with payment of accrued comp time, and (3) the employee could not perform the essential functions of the job (which the employer documented based on a job description that it kept current and followed).

TAKEAWAY: Document, document, document. An employer should always have a legitimate, legal reason for taking any adverse action, and that reason should serve as a defense in case of suit too.

The post on Friday 3/28/14 reiterated that employers must not only stop any harassment in the workplace, but make sure it stays stopped. In a federal case out of New Jersey, the employer was aware of the employee’s disabilities. After harassment of the employee and his complaints, discipline ensued as well as some re-training of other employees. The harassment did not stop though, so the employee quit; this formed the basis of the court’s ruling that the claim for harassment could move toward trial.

TAKEAWAY: An employer cannot just stop harassment or discrimination; it must make sure the actions stay stopped!

Finally, yesterday 3/29/14 was a reminder for employers to do their spring cleaning – of wage & hour cobwebs, that is. An FLSA audit is one way employers can ensure proper classification of employees (as exempt or non-exempt) and contractors, as well as identify any special pay or other issues.

TAKEAWAY: Employers should periodically review how they have classified employees and contractors, and how they are being paid, to ensure legal compliance.


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


Our Social Media Posts This Week -- Mar. 16-22, 2014

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

First up, the post on Sunday 3/16/14 was about illegal opposition conduct – what it is, what it looks like, and how expensive it can be. Once again providing legal fodder, Wal-Mart learned the hard way.  Opposition conduct is when someone acts (or does not act) because s/he opposes something else that is against the law). For example, an employer wants an employee to write an incident report a certain way, but the employee refuses because the law requires that it be reported a different way; the refusal is a form of opposition conduct. In the situation mentioned in the past, Walmart took action against employees exhibiting opposition conduct; in the end, the EEOC sued and Walmart ended up settling and paying $87,500.

TAKEAWAY: An employee’s refusal to follow orders is not always insubordination; it might under certain circumstances be protected opposition conduct. Employers must know the difference.

On Monday 3/17/14, we talked about post-Windsor IRS guidance relative to benefits for same-sex spouses, cafeteria plan changes, FSAs and HSAs.  Why do we care (and why should you care)? In the Windsor case the US Supreme Court found part of the federal Defense of Marriage Act (“DOMA”) unconstitutional; since then, the federal government has been recognizing same-sex marriages for federal tax and benefit purposes. Because this is effective no matter in what state the couple resides, it has far-reaching effects:  employer-provided health coverage for same-sex spouses are not taxable under federal law, employees can pay for coverage using pre-tax dollars through a cafeteria plan, and can get reimbursement for same-sex spouse’s expenses under certain reimbursement plans. The IRS then issued guidance to help clarify matters for employers of same-sex couples.

TAKEAWAY: Even in PA, which does not recognize same-sex marriage, federal taxes and benefits DO recognize same-sex marriages and must be handles just like taxation of and benefits to opposite-sex married couples.

Next, on Tuesday 3/18/14 we went off-topic a bit to talk about the best underrated fast-food menu items. Why? Because let’s face it, we all end up eating out once in a while or bringing home food instead of cooking it ourselves. So we posted an article with the 12 best fast-food menu items that you might not know about. Included are sandwiches, sides, and drinks. Personally, I love the Jamocha shakes, but I’m going to have to try that peppermint hot chocolate …

TAKEAWAY: If you have to eat fast-food, try these items to get good taste with the fast.

Wednesday 3/19/14 we asked when 1250 is not 1250 and talked about the difference between hours worked and hours paid for FMLA purposes. Why does this come up? Because to be eligible for FMLA leave, an employee must have at least 1250 “hours of service” during the prior 12-month period. And that’s the rub; “hours of service” does not mean hours for which the employee received pay (which could include sick or holiday time), but hours actually worked. The post pointed to a recent federal court case involving Federal Express and its alleged wrongful denial of FMLA leave to an employee. There, both parties agreed that while his paid hours exceeded 1250, his hours actually worked did not, such that he was not eligible and FedEx’s denial was legal.

TAKEAWAY: Employer’s must carefully track hours actually worked, not just hours paid, so as not to be required to grant leave requests for which the employee is actually not eligible.

Thursday 3/20/14 featured a post about whether an employee was fired for a leave of absence request for which he was not eligible. The federal court hearing the case rejected the employee’s claim. The background is this: a teacher was going through a divorce in 2007 and began drinking – a lot. He started missing work. In the 2008-09 school year, he missed ore days than he showed up; he used all sick and personal leave days plus other days for which he wasn’t paid. He provided little to no excuses for the absences and was disciplined. On Day 1 of the 2009-2010 school year, he said he wasn’t returning and requested FMLA leave; 2 weeks later the employer sent him FLMA papers and advising that he needed to request the leave in writing He did not comply. In early October, after being notified of the employer’s intent to fire him, he quit. Then he sued for several things including FMLA violations (interference with and retaliation for him trying to take FMLA leave). Well, he wasn’t eligible for FMLA leave – he hadn’t actually worked enough hours in the prior 12-month period. Since he was ineligible, he couldn’t have been harmed by the employer’s handling of the FMLA request. Likewise, the Court found that he was fired for the absence without advance notice, not for the attempt to use FMLA leave, so the retaliation claim also failed.

TAKEAWAY: Employers should know the law, have procedures in place for how to proceed, and follow those procedures when the situation dictates.

The post on Friday 3/21/14 was all about age – the legal language to use in settlement agreements to properly waive age claims, that is. The Age Discrimination in Employment Act (ADEA) sets forth language that is required to be in a written document (and how it must be printed); if it is not done according to the law, then the (former) employee has NOT waived age discrimination claims (and can both keep the consideration and bring suit).

TAKEAWAY: As with all legal documents, make sure they meet all legal requirements so that you and your business get the protection you think you are getting. This is but one reason to consult an employment lawyer.

Finally, yesterday 3/22/14 talked about a breastfeeding mother who was found to have an FLSA retaliation claim (at least at the early stages of the suit). What happened? After refusing to use a bathroom to which she was directed, and continually asking for a suitable place to express milk; she was given a location that was unsanitary, not sufficiently private, or both. She ended up using a dirty locker room because it locked and the employer promised to clean it up (which never happened). Co-workers began harassing her while she was pumping milk – read the article for what they did – but the employer took no action against the co-workers. Then the employer retaliated by moving the employee to another shift and, even after she presented a medical note, kept her on the new shift and denied her overtime.  The employee filed suit because the Patient Protection and Affordable Care Act (yes, fondly referred to as Obamacare) amended the FLSA by adding a provision known as the “Reasonable Break Time for Nursing Mothers.” That statutory amendment requires employers to provide non-exempt employees a reasonable break to pump milk for a nursing child for one year after birth and a place, not a bathroom, shielded from view and free from intrusion to express milk. NOTE: the federal court that denied the employer’s motion to dismiss found that the employee also might have stated a sec discrimination claim since the action was based on factors “that male employees need not – indeed, could not – suffer.”

TAKEAWAY: Know how applicable law has changed, what it requires of you as the employer and make sure your employees don’t act to the contrary.


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


Our Social Media Posts This Week -- Mar. 9-15, 2014

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

First up, the post on Sunday 3/9/14 was about another instance of the NLRB invalidating a “no gossip at the water cooler” policy in a non-Union workplace. Actually, the policy said, “Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action.” It went on to define “gossip” as including, in part, “talking about a person’s personal life when they are not present,” “talking about a person’s professional life without his/her supervisor present,” and “negative, or untrue, or disparaging comments or criticisms of another person or persons.” The policy was relied on in part to terminate someone’s employment. The NLRB found that the policy was too broad, as it could be construed so as to prohibit employees from discussing with co-workers discipline and other terms and conditions of employment. NOTE: because the policy was found unlawful, the discharge was invalidated under the NLRA, the employee was awarded back pay with interest, and the company had to post a notice prepared by the NLRB informing its employees about the labor law violation.

TAKEAWAY: All businesses are subject to the mandates of the NLRA. Make sure your company's policies comply with the NLRA before the Board or a Court tells you otherwise.

On Monday 3/10/14, we talked about what (not) to include in personnel files. To start, there should absolutely be what we all think of as a "standard" file for each employee. Then open a second file too; put in that second file subjective information including, but not limited to, notes from the interview process, notes on the application or resume, and the like; reference checks or letters of reference; documents pertaining to criminal or other investigation of the employee; credit reports; immigration and naturalization information (I-9 Forms); documents/records relative to a medical condition, including drug test results; wage garnishments; photos of the employee, including driver’s license and passport; and EEO forms. Why is this second file a good idea? Because the information in it has nothing to do with job performance and separating it (and granting access only to those with a need to know) helps provide the employer with a potential defense against claims of discrimination based on information in that second file.

TAKEAWAY: Have separate personnel files for items relevant to job performance and those items not so relevant (but still important for an employer to have). Make decisions based only on job performance and pursuant to applicable law.

Next, Tuesday 3/11/14 brought a post about dyslexia being a disability under the ADA (and Dollar General learning that the expensive way). There, an employee asked for help during a mandatory test; the request was denied. The employee refused to continue taking the test without assistance, which resulted in his demotion (including fewer hours and lower pay). The EEOC sued on his behalf. What was the verdict? $40 for back pay and $47,460 for compensatory damages. Ouch – that’s a lot of dollars!

TAKEAWAY: Make sure those tasked with handling your company’s accommodation obligation under the ADA know what/who is covered and the contact information for your company’s employment attorney; leaving your employees floundering might put your business on the hook.

Wednesday 3/12/14 brought a snapshot about how much vacation employees get. We learned the average number of paid vacation days for employees with one year of service and for all employees in general based on a recent survey.

TAKEAWAY: Vacation is not required, but is a good selling point for a company and retention point for employees. Paid vacation can be standardized in your company’s Handbook and then varied by giving certain employees an employment agreement with different terms.

On Thursday 3/13/14, we talked about why your business should or should not have a Handbook. The author of the article suggests several reasons why he thinks one is not needed. On the other hand, I suggest that a Handbook, with general policies that form guidelines, is necessary to set ground rules for the benefit of the company and employees. To augment those general policies, the company should train its managers and HR personnel in enforcement of the policies.

TAKEAWAY: Talk to your employment attorney about why your company should or should not have a Handbook, and, if the decision is affirmative, put it in place and enforce it.

On Friday 3/14/14 we engaged in potty talk: whether excess trips to the potty can be counted as FMLA leave. The answer is “maybe”. First it must be established that there is a condition requiring or resulting in the potty breaks that qualifies for FMLA protection, and then determine what is medically required to enable the employee to perform his/her job (i.e., how much extra time off is needed for potty breaks outside of normal lunch and break periods). Since there is nothing in the FMLA to the contrary, an employer can count that extra time as FMLA leave.

TAKEAWAY: Employers must reasonably accommodate under the FMLA (and not retaliate against an employee making an FMLA claim). However, the employer is entitled to medical documentation and, if it receives no (or insufficient) information, can treat the excess breaks as an unprotected performance issue.

Finally, yesterday 3/15/14 brought a post about living in the future, not the past, by considering bankruptcy for yourself or your business (or both). Neither the author nor I suggest that bankruptcy is right for every person or business, but merely that it should be a consideration along with other options. Depending on the circumstances, it can be the right thing.

TAKEAWAY: Consult a bankruptcy attorney to discuss alternatives, including bankruptcy, to see which is right for you or your business and the best timing for whatever course of action you decide to take.


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


Our Social Media Posts This Week -- Mar. 2-8, 2014

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

First up, the post on Sunday 3/2/14 was about why not to wait for a "good time" to fire an employee. Employers should think about all the things that can happen between the decision to fire an employee and the delayed date when the employer actually acts on that decision.  The post gives 4 examples of things that could happen and throw a screw in the works, thus making it harder for the employer to fire that person or, worse yet, maybe even giving the employee grounds for suit.

TAKEAWAY: While it may seem compassionate to time a discharge, it is a business decision that must be made and carried out in the best interests of the employer.

Monday 3/3/14 brought a post reminding employers that their position statement to the EEOC (or similar state agency) can and will be used against them both in that process and later court action.  The post mentioned a case where the employer started out giving one explanation for the discharge, and then switched to another.  The trial court found in favor of the employer, but the appeals court reversed on the retaliation claim.  Why? Because the employer's story had changed.

TAKEAWAY: Employer's must get their story straight and stick to it, from the beginning.

Next, on Tuesday 3/4/14 the post was about consistency in the enforcement of policies.  Inconsistent enforcement, or a complete failure to enforce, leaves the employer open to possible suit.  Simple steps (such as in the post) can avoid this position.

TAKEAWAY: If a policy exists, it should be enforced, evenly. Period.

Wednesday 3/5/14 was a post about familiarity with the overlap between the ADA and FMLA.  In the spotlighted case, the court ruled for the employer under the ADA because the employee did not timely return to work after an FMLA leave.  Further, the employer's documentation backed up its defenses.

TAKEAWAY: Employers should document leave start and end dates, along with other information relative to the leave, and not be afraid to discharge an employee who does not timely return from the leave.

Thursday 3/6/14’s post was about whether or not taxes can be discharged through bankruptcy.  The answer is not simple, as it can depend on the type of tax, how old it is, whether or not a tax return was required to be filed and if it was filed (with or without extension), and the chapter under which the bankruptcy is filed. The article gives a brief overview of tax discharge under Chapter 7.

TAKEAWAY: If taxes are at issue, then a bankruptcy filing can help a business or individual (through payment over time or discharge).

The post on Friday 3/7/14 featured an article about why every small business needs to have a handbook. Why, you ask? Handbooks usually set forth background about the business along with the expectations of employees (and, often, benefits they get), while not forming a contract of employment. A handbook lets everyone know the rules of the game.

TAKEAWAY: A handbook is a guideline that allows the employer to treat all employees the same. Have one, use it, and enforce it.

Finally, yesterday 3/8/14 brought a post about whether an employer can ask a specific medical question without violating the ADA. The answer? It depends. On whether the employer already knows the person has a medical condition that affects the ability to perform the essential functions of the job. Or whether certain behavior by the employee puts the employer on notice that the person may have a medical condition that affects the ability to perform the essential functions of the job.

TAKEAWAY: There are certain circumstances under which an employer can ask specific medical questions that not only do not violate the ADA, but fulfill the employer’s obligation under the ADA. Know which is which.


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


Our Social Media Posts This Week – Feb. 23 - Mar. 1, 2014

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

First, the post on Sunday 2/23/14 was about whether the inability to perform the essential functions of a job can affect disability discrimination and FMLA claims. The short answer: YES. In the spotlighted case, the employer had a job description, signed by the employee, that detailed essential functions. The court said, as have other courts, that transferring essential functions to other employees or hiring other employees to assist are not the types of reasonable accommodation required under the law.

TAKEAWAY: Not only should employers have job descriptions for their employees’ positions, but the descriptions should be accurate and list essential functions. Further, if/when the job changes, so should the job description.

Monday 2/24/14 brought a post with notification of the rule redefining ‘spouse” for FMLA purposes expected to be issued by DOL in March 2014. No surprise, the expected change will align the definition with the Supreme Court’s Windsor decision on DOMA and same-sex marriages.

TAKEAWAY: Employers should make sure they are aware of changes to or interpretations of the laws that affect them or their employees. The Windsor decision is making widespread change.

Next, on Tuesday 2/25/14 the post was about how NOT to defend against an ADEA case. There, the defendant was the US Census Bureau. At one point, the plaintiff failed to meet performance specifications and was counseled. Thereafter, her medical condition necessitated a short leave and, upon her return and notifying the Bureau of her condition, she was put on reporting restrictions (relative to her condition), her desk was moved, and job duties were reassigned. Four days later, she was discharged, allegedly for poor performance. The Bureau attempted to defend by saying the decision to discharge was made prior to the leave, but the Court did not buy that (noting it appeared the severity of alleged poor performance was inflated and the timing was suspicious with no other evidence put forward by the Bureau).

TAKEAWAY: If an employer asserts something as a defense, it should have evidence to support the defense. If it doesn’t, then not only will the matter proceed toward trial (increasing the employer’s litigation costs and possibly subjecting it to an adverse and costly verdict), but the employer will lose credibility with the Judge.

Wednesday 2/26/14 was a post about the Top 5 reasons your company needs an (updated) Handbook or Policy Manual. The authors start out by saying, “Employee handbooks are crucial to protect a business from needless lawsuits and assist with smooth business operations.” They then list their Top 5 reasons why. They are simple and to the point.

TAKEAWAY: If your company has employees, you should have a Handbook so that you can tell employees what you expect of them (and, in some cases, what their rights are). The Handbook should be revised as your business changes.  Also, the Handbook should be reviewed periodically by an employment lawyer to ensure that it is in compliance with all applicable laws (or interpretations of the laws).

Thursday 2/27/14’s post was a bit off our traditional track – it was about 50 ways to make good use of Siri on your iPhone. The post links to a video of some commands. Even if only one command is useful for you, then playing the video is time well spent. But I bet you will end up using many of them!

TAKEAWAY: You spent money to buy an iPhone. You spend more money each month for data and text plans for the iPhone. Learn more ways to make the iPhone work for you.

The post on Friday 2/28/14 (the last day of the month already!) told, yet again, how expensive it can be for an employer to discriminate against its employees. Here, Ruby Tuesday has to pay $575,000 (along with providing other relief) to settle a class action age discrimination suit. What were the allegations? That Ruby Tuesday engaged in a pattern or practice of age discrimination against job applicants who were 40 years of age or older at six of the chain's restaurants (5 in PA) and that it failed to preserve employment records, including employment applications, as required by the ADEA and EEOC regulations. Part of the settlement obligates Ruby Tuesday to make special reports to the EEOC for a period in excess of three years.

TAKEAWAY: Just don’t do it – discriminate, that is. If and when you get caught – and you will – it will be much more costly. Here, not only does Ruby Tuesday have to pay out of its pocket, but its reputation gets dinged so it loses in the court of public opinion too.

Finally, yesterday 3/1/14 brought another post about whether job descriptions are important under the ADA (are you beginning to sense that perhaps they are?!?!).  A federal court let the case proceed to trial on whether or not there was liability under the ADA. The Court reviewed the list of 7 factors to identify essential functions that is in the ADA Regulations; job descriptions are on the list. In that case, inclusion of “Other duties assigned” in a job description left a question as to whether or not something was an essential function, so the matter was sent on toward trial.

TAKEAWAY: If you didn’t get it before, get it now: job descriptions are important. Have them, use them, and keep them updated, especially as to the essential functions of the job.


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


Our Social Media Posts This Week Feb. 16-22, 2014

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

First up, the post on Sunday 2/16/14 was about the employee versus contractor question. This comes up over and over so employers should pay attention. Here, the article went through the list used by the IRS to decide whether someone is an employee or contractor. Many courts use the same test. You should too (at least in part).

TAKEAWAY: Employers should go through the test and job description at issue with their employment law attorney to ensure compliance with whatever classification is decided upon.

On Monday 2/17/14 the post was about why we no longer need HR departments. The article is that author’s opinion. He says that people (the “humans” in “HR”) should not be managed similarly to other resources. He also says that HR cannot both support employees and help manage them on behalf of the employer. The author also opined that HR tasks were mainly bureaucratic and administrative (or possibly legal-related), but did not really contribute otherwise. With that all said, the author then suggested ways to keep the function and fulfill the purpose: changing the name and using a people analytics’ team and a people support team. He then talked a bit about what each team’s job would be and how they better serve both the employees and the company.

TAKEAWAY:  HR is often a middle-man between employees and the employer. To avoid that conflict, consider splitting the functions.

Next, on Tuesday 2/18/14 the post was about the fact that social media CAN form the basis for discharge.  This decision came out of the NLRB – yes, the NLRB – and was based on the fact that while some of the posts at issue contained activity protected under the NLRA, others did not and could indeed serve as an independent basis for discharge.

TAKEAWAY: While being careful that adverse decisions do not run afoul of the dictates of the NLRA - which, remember, go beyond unionized workplaces -- employers still have the right to discharge employees in the right circumstances.

Wednesday 2/19/14 brought a post about how an employer can do everything wrong – as to race discrimination and retaliation. There, the employer was a casino and the employee (Harris) got a $600,000 judgment. The brief facts: Harris, an African-American, interviewed for a position, it remained vacant for 6 months, and she assumed the job duties in the interim. Then a younger, less-experienced Caucasian woman was hired for the position and Harris had to train her. The employer then fired the Caucasian employee and hired another younger, less-experienced Caucasian female in her place; again Harris had to train her. The second hire was also fired. Harris then filed a charge of discrimination with the EEOC and, a month later, was fired (resulting in the retaliation charge).

TAKEAWAY: When it looks strange, it probably IS strange. Employers should not give anyone a reason to look.

Thursday 2/20/14 the post was about mishandling of an accommodation request. What did the employer assert and how did the federal court rule? The employer tried to argue that the employee could not perform the essential functions of the job (with or without reasonable accommodation) and that it had a legitimate nondiscriminatory reason for her discharge. The court found against the employer on both counts. On the essential functions argument, there were several variations of what those functions might be, such that there was no true definition (and thus the employer couldn’t win that argument). As to the other argument, the court found that the employer did not engage in the interactive accommodation process, so it got its wrist slapped again. The case was sent on for trial.

TAKEAWAY: Employers must make sure that they properly and fully respond to anything sounding of a request for accommodation – or be prepared to explain to a judge or jury why it didn’t.

The post on Friday 2/21/13 dealt with 10 ways HR departments might be violating the law. The article listed the 10 things – without asserting that any action is intentional – and suggested ways to avoid them. Read the article and maybe you will pick up a tip too.

TAKEAWAY: Employers and their HR personnel must ensure legal compliance – or they will be taken to task (and possibly purse) by employees.

Finally, yesterday, 2/22/14, brought a post about whether or not someone is a covered employer for discrimination purposes. The post linked to the EEOC website and its various definitions and helpful tips. Employers (and HR personnel) should be familiar with whether or not the employer is covered under various laws – the answer may vary.

TAKEAWAY:  not all employment-related laws have the same threshold for employers – know whether or not your business must comply and with which statutes.


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


Our Social Media Posts This Week Feb. 9-15, 2014

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

First up, the post on Sunday 2/9/14 included employment law tips for every business owner.  The tips should be obvious but bear repeating: don't make employment-related decisions based on sex, marital status, or parental status; have in place formal, evenly-enforced policies; and be friendly with employees but remain professional. There are many (other) ways employers can be legally compliant and still have a good business; periodic consultations with an employment lawyer are a good idea.

TAKEAWAY: All employment decisions, not just adverse ones, should have a valid, legal basis.

On Monday 2/10/14 the post included a tip to win a retaliation suit.  I won't give it away (click on the link for the article), but it involves splitting job duties to ensure transparency and less chance of retaliation, and, therefore, a greater chance of winning a suit.

TAKEAWAY: Employers should always take steps to improve the workplace and at the same time reduce risk of legal suit.  By splitting job duties, it is easier to defend against a charge of retaliation.

Next, on Tuesday 2/11/14 the post was about whether or not employees need to use any particular word(s) to request FMLA leave. The short answer is NO.  As long as what they tell the employer does -or should - put it on notice that the FMLA might be implicated, then the employer is on notice and has obligations to follow up.

TAKEAWAY: Make sure your HR personnel, as well as managers and supervisors, are properly trained to recognize when the FMLA might be implicated and what steps to take.

Wednesday 2/12/14 brought a post about the intersection of religious discrimination and accommodation. As so often happens, every case stands on its own facts, but these are instructive. The plaintiff here was a Nigerian native who moved to the US in 2008.  When his father died, he requested 5 weeks of unpaid leave to go back to Nigeria for the burial, describing the rituals that would happen and the timing of same. The employer denied the request.  He then submitted another request, this time for one week of paid leave and 3 weeks of unpaid leave, again with details on the rituals and timing.  The employer again denied the request.  He went anyway and, upon his return, was fired. He then filed suit, alleging religious discrimination.  The court noted that protected religious beliefs are not necessarily those from a familiar religion and that no special words must be used by the employee in requesting religious leave to put the employer on notice. The court also found nothing from the employer to support its assertion of an undue hardship.  So the employer ended up on the short end of the accommodation/ discrimination gun barrel.

TAKEAWAY: Employers must recognize sincere beliefs held by employees, whether or not of a familiar religion, and reasonably discuss any requests to accommodate based on those beliefs.  Also, employers must actually have proof if they assert undue hardship.

Thursday 2/13/14 the post was about the cost of age discrimination. A 65-year old pharmacist was discharged and replaced by someone 27 years of age. After a 2-week trial, CVS was found liable by a federal jury. Judgment was entered against it for $400,000 back pay and an equal amount as liquidated damages due to the willfulness of the action.

TAKEAWAY: The facts of each case stand alone, but every adverse employment action should be rooted in a reasonable business decision.

The post on Friday 2/14/13 dealt with advice for employee terminations.  It is never easy to discharge a good employee, but even the discharge of a less-than-stellar employee should result from forethought and have a good legal and business basis.  The article provides some advice on discharges that all employers can take to heart.

TAKEAWAY: Sometimes the best thing for a company is to discharge an employee. It should be well thought out and done with dignity for both the employee and the company.

Finally, yesterday, 2/15/14, brought a post about what is considered workplace retaliation.  Well, certainly job loss, pay cuts, demotions and reassignments, but also more.  As pointed out in the article, retaliation could also include exclusion and ostracizing, giving the cold shoulder, and verbal abuses that may in one situation be allowable conduct or behavior or in another illegal retaliation. 

TAKEAWAY: Employers need to be aware of what could possibly be deemed retaliation and work to prevent it before it happens.  (Periodic training and education of employees is always a good idea.)  If that fails, employers must try to remedy any retaliation that has occurred and make whole any employees harmed.


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