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.


Our Social Media Posts This Week Feb. 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 2/2/14 was about FMLA eligibility when an exempt employee took a lot of FMLA leave in the prior year. The answer can come down to whether or not the employer could prove that the employee had not worked the requisite hours (and hence had not met the threshold for FMLA eligibility). 

TAKEAWAY: Employers must keep track of employees’ hours worked, whether or not they are exempt. If there is no record, that could come back to bite the employer in an FMLA leave scenario.

On Monday 2/3/14 the post was about 10 Do’s and Don’ts for social media policies. This is especially important in light of the NLRB’s push for oversight and review of policies and its decisions invalidating many policies as supposedly in violation of the NLRA. [NOTE: If you don't care because your business is not unionized, think again!] The Do’s and Don’ts were about an employer’s confidential information, employees’ comments on legal matters, employees making disparaging remarks about the employer, what if any control employers can have over employees’ social media posts, and conversations about co-workers and supervisors. 

TAKEAWAY: It is important how you phrase your social media policies. Make sure they are legally compliant before you get called to the mat.

Next, on Tuesday 2/4/14 the post was about possible employer liability for employees who text while driving. If this is made part of the job, or becomes part of the job implicitly, whether or not required by the employer, then the employer could indeed be liable for damages.

TAKEAWAY: Employers should prohibit employees from texting (or otherwise using their mobile devices) while behind the wheel, whether in their vehicle or a company vehicle.

Wednesday 2/5/14 brought a post with 10 legal tips to fire an employee.  The tips include the tone for the meeting, the atmosphere, the reason for the discharge, documenting the employee’s work history (and basis for discharge), explaining what will happen next, maintaining confidentiality to the extent possible, discussing responses to reference requests, retrieving company property, conducting an exit interview, and allowing the employee to say goodbye. Handled properly, these tips help make the discharge situation less ugly and less hurtful for both the employer and employee.

TAKEAWAY: Done the right way, a discharge does not need to get ugly; it can remain professional. A plus is that it is then less likely to result in a charges or a suit by the employee.

Thursday 2/6/14 the post was about what it takes for an employer to fulfill its obligation for interactivity in the ADA accommodation process.  The article talked about a case in federal court where the employer had nothing to show that it reasonably participated in the accommodation process. The result? The case will proceed to a jury trial.

TAKEAWAY: Under the ADA, employers have an obligation to participate in the process and offer reasonable accommodation. Don’t let a court decide after the fact that you did not fulfill your obligation.

The post on Friday 2/7/14 provided some sample FMLA policies. Granted, these were for a university, but they can be adapted for other employers’ use.  As always, though, ensure that your policies are legally compliant and appropriate for your business.

TAKEAWAY: Employers should have policies on various leaves, whether covered by statute or other, so that employees know what to expect. Also, employers should evenly enforce the policies once they are in place.

Finally, yesterday, 2/8/14, brought a post about whether or not a shift change can form the basis for an age discrimination claim. In that case, there was no evidence of an adverse action (required to sustain a claim), so the court dismissed the case.

TAKEAWAY: Make sure there is a valid business reason for any change to an employee’s job so that you as the employer can withstand possible court challenge.


     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 – Jan. 26 - Feb. 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 up, the post on Sunday 1/26/14 was about 5 things to keep in mind when formulating your BYOD policy. First, if you don’t know what BYOD is, then you definitely need to read the article! The 5 areas mentioned are scope of the policy, requiring passwords, who owns what, acceptable use, and parting ways. Each is important and together they form the bedrock of the policy (and keep the employer within legal confines as to protecting its information but not going too far relative to the employee’s privacy).

TAKEAWAY: If your company doesn’t have a policy on BYOD, it should. If it does have such a policy, it should be reviewed frequently given the constantly-changing legal front in this area.

Then, Monday 1/27/14 the post was about things for employers to remember under the “new” ADAAA rules.  Six tips headlined, with specifics under each. The tips are: Update an inflexible leave policy; the law is broadly interpreted to shift the focus away from “disability” and to “reasonable accommodation”; while more employees may be considered “disabled” under the ADAAA, they still must be qualified; the new law did not affect the employer’s right to continue to hire or retain the most qualified person to do the job and to discipline employees for performance issues; remember all the other leave laws that may impact your day-to-day operations; and voluntary wellness programs are still allowed.

TAKEAWAY: with enactment of the ADAAA, more employers move from determining if an employee is disabled to instead determining what and how to accommodate. However, the eligibility threshold still remains for the employee. Handbooks and policy manuals should also be updated to comply with the ADAAA.

Next, on Tuesday 1/28/14 the post was about defending against a discrimination charge or suit. Upon the filing of a charge of discrimination or a lawsuit alleging discrimination, the employer has the opportunity to defend. The article listed some of the bases of defense that might be available to an employer, depending on the type of discrimination that is alleged.  The defenses include: there was a legitimate and nondiscriminatory reason for the (in)action, the accommodation would impose an undue hardship on the employer, a policy is work-related and has a legitimate business purpose; and allowing an employee to work as proposed would pose a direct threat to the employee or others.

TAKEAWAY: Document document document. When changing policies, implementing policies, or (not) taking action against an employee, make sure there is a legitimate nondiscriminatory reason for the (in)action. That way, if and when a charge or suit is filed, the defense will already be in place. Further, it might even forestall the charge or suit in the first place.

Wednesday 1/29/14 brought a post about veganism being entitled to Title VII protection.  Is veganism a religion? Whether or not you believe it is, it has gained some traction as a basis for religious discrimina-tion. The article mentions several cases that were settled prior to trial so there is no court decision, but they prove instructive. One was about a vegan employee’s refusal to distribute hamburger coupons and another on an employee’s refusal to get a flu shot due to her religious beliefs. The issue in those and other cases is not about the religion itself, but if the employee holds and acts upon his/her beliefs, whether or not the religion is widespread or widely accepted.

TAKEAWAY: Employers cannot just brush off statements by employees about why they won’t take a requested action; there might be legal protection for the employee and any adverse action by the employer could land it in hot water.

Thursday 1/30/14’s post took a slightly different tack - it was about 10 household items a smartphone can replace.  Just as remote controls for TVs, stereos and cable/satellite became consolidated, so too it makes sense to know what else the smartphone you have can do for you around the house.  So what are some of the things? A scanner, personal trainer, universal remote control, and baby monitor. For the list, read the article.

TAKEAWAY: You spent a lot of money buying that smartphone and probably spend additional money each month for your data plan. Get the most from them by thinking outside the box for ways to use them other than email and music.

The post on Friday 1/31/14 was about common items missing from many Handbooks or Policy Manuals. A handful of attorneys practicing in the area were asked to list things they often notice missing from handbooks. Those items are a non-solicitation policy; a “termination when unable to work” provision; a social media policy; a focus on employer benefits; a summary of the most important policies; confidentiality provisions; and an accommodation of religion and disability.

TAKEAWAY: Your handbook or policy manual may or may not need all of these items. You and your employment law counsel should periodically review the handbook/manual to make sure it is up to date with your current operations and legally compliant.

Finally, yesterday 2/1/14 brought a post about a recent federal court decision saying the duty of an employer to accommodate extends beyond the essential functions of the job. Why is this important? As every employer should know, an employee is generally eligible for protection under the ADA if s/he can perform the essential functions of the job with or without reasonable accommodation. So it becomes important to define the essential functions. Here, the court went beyond that, saying that the ADA has no limitation of its accommodation requirement to essential job functions, but rather that the obligation extends to employers making their facilities accessible and useable to disabled persons.

TAKEAWAY: While that decision is not binding on employers in PA, you don’t want to be on the wrong side of the test case that extends the rationale to this state. Employers must not only fulfill their duty to accommodate for essential job functions, but look at accommodating other things related (but not essential) to the employee performing 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 – Jan. 19 – 25, 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 1/19/14 was about what NOT to ask job applicants. A grocery store chain found out the hard way when it had to pay to settle a suit filed against it by the EEOC. What happened?  Applicants were asked disability-related questions before being offered jobs. As if that wasn’t enough, when an employee had an epileptic seizure at work, he was fired a few days after the seizure even though he had performed well and had a doctor’s note saying he could return to his normal job.

TAKEAWAY: Do not ask disability-related questions before making a job offer. You can ask if the applicant will be able to perform the essential functions of the job, with or without reasonable accommodation.

Then, Monday 1/20/14 the post was about less pay possibly being a basis for a race discrimination claim.  The article described an African-American woman who sued for race discrimination because she was paid less than a Caucasian co-worker. There were several bases for the claim and the court allowed the case to go forward on one of them. The court found that past decisions from the employer’s management (Board) did not bind the current Board, such that claims based on different decisions from the two Boards could not go forward. However, when it came to an HR director’s subjective decision-making, not based on any policy, the court let the woman’s case go forward.

TAKEAWAY: Employers must be careful to uniformly enforce their own policies or, when there are no policies, make uniform decisions relative to employees. If a decision differs in one case from another, there should be a valid, legal basis for the difference.

Next, on Tuesday 1/21/14 the post was about the ADA and its potentially far-reaching effects in commercial situations too. Who is responsible for ADA issues in a leased commercial space, the landlord or the tenant? The answer is (of course) “it depends”. On what the lease says. On what applicable state law might provide. On what the parties might have done in the past. On what a court might decide if the matter ends up in litigation. Parties often don’t think about this before it becomes an (expensive and possibly business-ending) issue but they should.  Suits are being brought around the country on ADA access and accommodation issues other than in the employment context.

TAKEAWAY: if you are the owner or tenant of a commercial space, make sure your lease specifies who is responsible for ADA compliance. Then there is less of a chance of questions if an issue later arises.

Wednesday 1/22/14 brought a post about new (and legal!) ways for employers to spy on employees. The article lists 10 legal ways an employer can “spy” on its employees: internet usage monitoring, GPS, keylogging, email monitoring, social media, audio recording, videotaping, off-duty conduct, medical records, and company devices.  Go to the post for more detail on each, but know that many employers probably already use one or more of these items now.

TAKEAWAY: Employers should know applicable laws and make sure they have in place one or more appropriate policies telling employees in which activities/actions they have no expectation of privacy, then evenly enforce the policies. If employees don’t like what the employer is telling them, then they should not take the job.

Thursday 1/23/14’s post was about the fact that an employee’s lack of cooperation in an investigation could be a basis for discharge.  An employer can reasonably expect its employees to cooperate in internal investigations so that it can gather facts and make proper determinations; employees who won’t cooperate could be found to be interfering with the investigation and subject to discipline, up to and including discharge (regardless of the outcome of the investigation).

TAKEAWAY: Make sure the policy manual or handbook specifies that employees must cooperate with investigations and are subject to discipline, up to and including termination, if they don’t cooperate.  Then follow the policy. 

The post on Friday 1/24/14 was about 10 employment laws that supervisors need to know about.  The laws that made up the list are all federal laws; they are: Title VII of the Civil Rights Act, FLSA, FMLA, ADA, ADEA, EPA, OSHA, PDA, NLRA, and GINA. The article includes a general description of what each law covers and what supervisors should know or how they should act to remain in compliance. If you think I just spouted off a bunch of alphabet soup, or even just for a refresher, you must absolutely click on the link and read the article!

TAKEAWAY:   It is not just the job of HR – even working with an employer’s attorney – to know what laws may apply to a situation. Supervisors must also have a basic working knowledge as they are the front line dealing with employees and what those super-visors initially (omit to) say or do can irreversibly affect a situation or suit. Employers should make sure HR personnel and front-line supervisors are well-versed in at least these 10 laws, and possibly others, including applicable state laws; periodic seminars for HR person-nel and supervisors are an employer’s time and money well-spent in education, prevention, and risk-management.

Finally, yesterday 1/25/14 brought a post about whether employers are paying employees more than they must.  “Huh?” you say. If you do not understand which laws require what pay, then you might be paying too much.  For example, the FLSA (if you don’t know what the FLSA is, go back to the link to Friday’s post and read it) does not require that paid time off be counted as hours worked as long as there is no work performed.  Similarly, the FLSA does not prevent an employer from sending someone home before s/he works all scheduled hours that week, even if it is solely to keep that employee from getting overtime wages.  Further, employers can pay an employee at different rates for different work (as long as they keep appropriate records).

TAKEAWAY: Make sure you are paying only what you have to unless you have a written contract or agreement to the contrary or unless you just want to pay the higher wages.

      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: 1/13/2014 - 1/18/2014

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, Monday we had a post about job descriptions and performance reviews being key to ADA cases.  Why? Because they can help establish whether something is or is not an essential function that must be performed by an employee seeing protection under the ADA and whether or not the person is qualified for the position. For example, if the job description does not include the function, then it will be hard for the employer to say it is an essential function of that position. Likewise, if the performance evaluation(s) have been positive, then they tend to show that the person is qualified for the job.

TAKEAWAY: If an employer believes that a position should include one or more tasks/functions, then it should have a job description stating that; further, the person or people in the position should actually perform that task/function. Also, performance evaluations should not be positive if the person is not performing. Otherwise, the employer’s ability to assert defenses in an ADA accommodation matter may be harmed.

Next, on Tuesday we posted about 6 Documents You Should Have to Protect Your Money.  Those documents are (1) beneficiary forms for what you want to happen to your money after you die for things like 401K or other retirement plans, life insurance and college savings accounts; (2) TOD/POD instructions tell a financial institution what to do with the account when you die; (3) Living Will to tell your loved ones and medical professionals your preferences if and when you are in a terminal condition and names your agent to communicate this to the professionals; (4) Power of Attorney to enable someone else to sign their name to things as your agent while you are alive. This is most common for financial matters but is not necessarily limited to that. Also, it is effective whether or not you are disabled; (5) Last Will and Testament to set forth your wishes as to distribution of assets, guardians for children, and who will carry out your wishes; and (6) Trust Documents for any trusts set up outside of your Last Will.

TAKEAWAY: No matter your age, you need to have in place one or more of these documents. If you don’t, you are leaving yourself or your loved ones unprotected and subject to laws over which you have no control.

Thursday brought a post on How NOT To Defend an ADEA Claim.  It discussed a case in which the person sued for race and disability discrimination, retaliation for requesting an accommodation for the disability, and violation of the Equal Pay Act. The race discrimination and pay disparity claims were dismissed; the disability discrimination and retaliation claims were allowed to proceed because there were enough facts (including temporal proximity of disclosure of the disability and then discharge) to let those claims continue (even though there was also evidence of performance problems).

TAKEAWAY: If an employer is going to assert a defense, it should have actual support for the defense, hopefully documented support and not just someone’s testimony. If not, the employer might find itself on the short end of the stick.

Friday the post was about checking availability before approving FMLA leave.  It seems like an obvious thing, but if an employer grants the leave and then determines the person was not eligible, the bell probably cannot be unrung. In the case that was cited, the FMLA leave was approved and then the employer determined it should not have been. The employee sued, saying she would not have taken the time off if she had been told she was not eligible. The court let the case proceed.

TAKEAWAY:   Before any leave is approved, the employer should make sure all prerequisites are met. In the case of FMLA leave, that includes making sure the employee is eligible based on time and hours worked, number of employees, and other threshold requirements.

Finally, yesterday brought a post about protection for white men too.  Employers tend to forget that it is not only those in a protected class – including those who are disabled or of a particular gender, age, race or ethnicity – who are covered by statute, but that some statutes cover ALL employees.

TAKEAWAY: Even though white men are not who an employer will think of when the matter of discrimination or violation of a law comes up, employers must take care to look at the statute, what protection it gives, and to whom. 

     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, please contact us.