Saturday
Jul212018

ICYMI: Our Social Media Posts This Week – July 15 - 21, 2018

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

In the post on Sunday 7/15/18 we read that you should not just cut and paste your company's social media policy. Your policies and procedures should be tailored to your company's business objectives and legal needs. The post mentioned 5 reasons to seek legal assistance relative to your social media policies and procedures. They include that The tone of your policies and procedures matters, your corporate structure must be donsidered, and others in the post. If it is not broad enough or too broad, you may have trouble legally enforcing the policy/procedure.

TAKEAWAY:  If your social media policy/procedure it is not broad enough or is too broad, you may have legal trouble enforcing it.

The post on Monday 7/16/18 told us that the flurry of recent ADA cases can be instructive for employers. Recent decisions provide a good framework for handling ADA issues at your workplace, including the foundational issue that underpins every single ADA situation: whether the employee has a disability under the statute. Why do you care? Because only those who meet the statutory definition will be able to claim relief under the ADA and you as an employer are not obligated to provide reasonable accommodations unless they fit into this category. The post talks about the background of the ADA and ADAAA (which broadened the definition of disability). It then talks about a few examples, the first of which is that not being able to work overtime doesn’t mean you’re disabled. That and a few other examples are detailed in the post.

TAKEAWAY: If an employee merely present evidence of a medical diagnosis, a court might reject the claim if there is no corresponding evidence showing how the condition limits or restricts daily life activities. But sometimes the safest way to proceed is to start the interactive process even while determining if the person fits the definition of disabled.

In the post on Tuesday 7/17/18 we saw that past good reviews may sink ADA/FMLA defense. Learn what (not) to do. Seems kind of obvious, but when an employee who has received excellent reviews asks for a disability accommodation, firing her for poor performance is bound to backfire. The post gives us an example of how this plays out.

TAKEAWAY: Make sure to consult an employment law attorney before taking adverse action against someone returning from an approved leave.

The post on Wednesday 7/18/18 asked: are your Association's Governing Documents enforced? (Then we suggested you let us help you, whether you are a homeowner or on the Board.) Blue or grey shingles? Simple question, right? Well, not necessarily - when it comes to a planned community and its rules. In the post, the Association won't issue a resale certificate because it says the owner did not get approval for roof repairs after a storm. Even though a roofing contractor who has the same color shingles did the work, the shingles violate the Bylaws. The choices the owner now has are in the post.

TAKEAWAY: Before you buy a home within a homeowner or condo association, know the rules you will have to live by. Likewise, if you are on the Board, be prepared to enforce those rules.

In the post on Thursday 7/19/18 we saw that a firm will pay $100,000 to settle an Indian-origin employee's discrimination lawsuit. So what happened? Ashok, who worked for a federal contractor, was fired and replaced by someone much younger. Coincidentally, that was after he asked for a transfer to work nearer to where his son lived so that he could help care for his son. More details about the son's needs and transfer request are in the post. The irony of the whole thing is that the alleged discrimination took place in the employer's Virginia office where Ashok worked within the US Department of Justice. The EEOC sued for violation of the ADA and ADEA. What the settlement includes is in the post.

TAKEAWAY: don't make a bad situation worse; when dealing with someone in a protected group, take adverse action only if you are sure it's legal and you can prove that if need be.

The post on Friday 7/20/18 noted that In case anyone’s counting, here’s a list of all the anti-LGBT stuff Trump has done as President (so far). So has President Trump kept his campaign pledge to be an LGBT ally? You be the judge. Not even on the list, but to start, he has not acknowledged Pride Month in either of the years he's been in office. The list. First, he says it’s legal to fire workers for being transgender. Next, he says it’s legal to fire workers for being gay (when the EEOC said to the contrary). And there are 11 more in the post. All roll back time and hard-fought recognition and rights for LGBT persons.  

TAKEAWAY: Separation of the branches may keep this under control, but Justice, under the direction of the President, is trying to turn back the clock. Keep alert.

Finally, in the post yesterday 7/21/18 we learned that dismissal of a racial bias case involving nooses was upheld. Yes you read that right. Nooses may not always result in a finding of a hostile work environment. Here, there were nooses, racist graffiti and more. What the court stated as the issue before it is in the post. The court noted that Title VII is not a code of conduct. Its analysis on the other counts is in the post.

TAKEAWAY: Even if there is illegal discrimination or harassment, an employer can do the right thing(s) and have no liability.

Monday
Jul092018

ICYMI: Our Social Media Posts This Week – July 8 - 14, 2018

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

In the post on Sunday 7/8/18 we learned that FedEx failed to quash a trans worker’s sexual orientation claim.  So what happened? Miko, a transgender man assigned female at birth and now married to a woman, sued FedEx under state law after he was fired in March 2017. FedEx says it fired him because he wouldn’t work extra shifts. One legal (procedural) argument made by FedEx is in the post. The court said that when it comes to sex and sexual orientation bias, “no case law definitively states that these terms are either distinct from one another (and thus, must be specifically claimed), or closely related to one another (and thus, do not require separate claims). That underlies the ruling which is in the post.

TAKEAWAY:  Whether or not sexual orientation is included in 'sex' for discrimination purposes is a legal battle being fought at all levels of the judicial system – with the EEOC and Department of Justice on 2 different sides of the argument. Talk to an employment law attorney to make sure your interests are protected.

The post on Monday 7/9/18 was an alert that SCOTUS says #Union "fair share" dues can no longer be collected from non-members. This is the portion of the union dues not allocated to political activities that has traditionally been collected from non-members who, the argument goes, still benefit from the Union's representation in wage and benefit matters. This was a 5-4 decision with the newest Justice, Gorsuch, providing the swing vote. The arguments for and against payment of the fair-share are in the post. Also in the post is the basis upon which the decision came down.

TAKEAWAY: Even long-time legal precedent may be overturned at some point; employers (and others) must stay alert to what they can and cannot legally do at any given time.

In the post on Tuesday 7/10/18 we were reminded that homeowners' and condo Association documents are there for a purpose. Planned communities, whether single-family or condominium, have become more and more popular. With them is the proliferation of documents that bind those who live in the community. The documents are legally valid (in most cases). The post gives an example of how this can play out, whether or not an owner likes the result.

TAKEAWAY: Community Association documents are legal documents; get help from a community association lawyer to ensure your rights are protected.

The post on Wednesday 7/11/18 was another reminder, this time that a religious accommodation need not be the employee's preferred accommodation. Ok, we all know that employers have a duty to accommodate religious beliefs if possible and reasonable. The question is how far that goes and who gets to decide what is reasonable. In the post a federal court gave us some answers to those questions. Jerome worked for an airport employer which required mandatory work on Saturdays. Jerome's religion prevented him working on Saturdays; he requested that the employer assign him to Sundays instead. How it played out is in the post, culminating in him quitting and filing suit. An overview of the court's analysis is also in the post, including the fact that it ruled contrary to EEOC history.

TAKEAWAY: Religious accommodation is now on even footing with other accommodation where the employee's requested accommodation is not necessarily what must be offered by the employer. Consult an employment law attorney to be sure.

In the post on Thursday 7/12/18 we looked at individual liability under COBRA (and how to avoid it). Under federal EEO laws (such as Title VII, ADA, ADEA), there is generally no individual liability for discrimination. That can differ under the FMLA, FLSA and the Pennsylvania Human Relations Act in some circumstances.  A federal court in PA recently ruled on whether there is individual liability under COBRA. The basis for bringing the individuals into the suit as defendants is in the post. What the court based its decision on is also in the post.

TAKEAWAY: Before filing (or defending) a suit, make sure to look at all relevant documents. And prepare the documents in such a way that they do what you want them to from the start.

The post on Friday 7/13/18 told us that New Prime Inc. (a subsidiary of Prime Inc., a trucking firm) is in MeToo hot water for alleged sexual harassment. The EEOC filed suit alleging that Prime failed to take adequate steps to prevent the sexual harassment of a female truck driver, and, additionally, created a hostile working environment.  Prime partnered the female with a former trainer who previously had been involved in the sexual harassment of a female he was training. Oh but that's not all; more of the lurid background is in the post. What is ironic is that as a result of a prior suit, Prime got rid of its same-sex trainer program. See the post about that too.

TAKEAWAY: Not only must an employer be aware of illegal actions taken by its employees, it must make sure they don't occur again – employers cannot just turn a blind eye.

Finally, in the post yesterday 7/14/18 we learned that a typo in the new tax law may hurt employees too. Not just employees, but those who are already victims of (allegedly) illegal behavior and are trying to put it behind them. As you probably know, and as a collateral consequence of the MeToo movement, the new tax law bars employers from deducting their legal fees for sexual harassment settlements that require victims to sign nondisclosure agreements. This is the law now, but there is a typo explained in the post. As written and enacted, the law now applies to the (alleged) victim too. An example of how it might be applied is in the post.

TAKEAWAY: Employees agreeing to settlements should know on what they might be taxed. Employers already know as the law does what it was supposed to relative to them.

Wednesday
Jul042018

ICYMI: Our Social Media Posts This Week – July 1 - 7, 2018

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

In the post on Sunday 7/1/18 we saw that the EEOC filed seven suits for harassment (and noted that was probably not lucky #7).  The suits span state lines. In one suit, a shipbuilder was sue for race and same-sex sexual harassment against a male Asian-American and 3 African-American employees. How? See the post for details (which are not pretty). In another suit, a staffing service was sued for allowing female employees to be subjected to sexual harassment. Again, the post contains the allegations. Another company was sued for allegedly subjecting female employees to unwelcome physical and verbal sexual harassment – the details are in the post. The fifth suit was filed against a trucking company for alleged sexual harassment and threats against a female truck driver. The post tells more details. Suit #5 was filed with allegations that female employees were subjected to ongoing verbal and physical sexual harassment and retaliation in North Hollywood – what happened is true Hollywood – and in the post.  The next suit also alleged sexual harassment of female employees; the last suit alleged a sexually hostile work environment. Details for both are in the post. How the suits will turn out remains to be seen.  

TAKEAWAY: The EEOC takes harassment seriously, and even more so in the #MeToo era. Just don't do it.

The post on Monday 7/2/18 was a good reminder: if discipline differs, note why. Simple but effective. Here, Debra was an at-will employee who got fired after working at the company 15 years. What she (allegedly) did is in the post. She sued, alleging that 4 men were not fired after what they did (also in the post). The employer explained the differences in the employees' actions and why their discipline varied from Debra's. Yep, see the post. The Court, which governs us here, agreed and dismissed the suit.

TAKEAWAY: Given the same set of circumstances, enforcement should be uniform. But if facts differ, the treatment arising from those facts might also differ. Know when variation is legal.

In the post on Tuesday 7/3/18 we learned that a college and its president filed a motion to dismiss "Jewish blood" Title VII claims. The background is that a former coaching prospect filed suit, claiming he was not hired due to having "Jewish blood". He later amended his complaint to add race discrimination. The defendants requested dismissal, saying that Jewish ancestry does not qualify as a race. Other defenses are noted in the post. The applicant's reply to the dismissal request is also noted in the post. The motions have not yet been decided.

TAKEAWAY: If you (intend to) take adverse action against an employee or applicant, make sure it is legal and not abed on any protected characteristic. Check with an employment law attorney if you are not sure.

The posts on Wednesday 7/4/18, here and here, celebrated Independence Day – and asked that you remember we are not (legally) independent until harassment and discrimination are gone.

TAKEAWAY: Independence has many forms – none of it involves treating others differently because of a protected characteristic.

In the post on Thursday 7/5/18 we saw that yes, overtime can be an essential job function. A federal court recently confirmed this. McNeil was hired by the railroad as a critical call dispatcher. They were scheduled for 8.25 hour shifts and subject to mandatory overtime if staffing needs so required. More about the job duties is in the post. In early 2014, McNeil took FMLA leave to care for a parent. She received short-term disability while on leave. She then went on long-term disability. When that was about to end, she provided medical records supporting a request for accommodation including no overtime work. She was terminated and sued. The Court's analysis and reasoning is in the post.

TAKEAWAY: Make sure the job duties and job description are clear on what is and is not an essential duty.

The post on Friday 7/6/18 was a reminder to review your handbook or policy manual for at-will conflicts (and then contact us to help). You should know that PA is a strong at-will state, meaning that the employee can quit or be fired with no notice and no reason, as long as the dischargen is not for an illegal basis. But as the post shows, there could be exceptions. Jesse was an at-will employee who got fired and sued. The court allowed him to continue his suit anyway for the reasons in the post.

TAKEAWAY: Have an employment lawyer review your handbook or policy manual and any contracts to ensure that there are no conflicts – and then make sure all actions are taken in compliance with those documents.

Finally, in the post yesterday 7/7/18 we saw that an employer paid $63K for failing to offer the employee FMLA. A roofing company knew that its employee had a serious health condition, but did not offer FMLA protection. What else did it do (illegally)? See the post. In the end, it paid over $30K for compensatory damages and the same amount for liquidated damages.

TAKEAWAY: It's expensive to stick your head in the sane – don't. Know what the law requires and do it.

Monday
Jun252018

ICYMI: Our Social Media Posts This Week – June 24-30, 2018

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

In the post on Sunday 6/24/18 we learned about "personal" pizza and employee gripes. This is an NLRB decision, but has application in all workplaces considering the breadth of Section 7's protection. So what happened? A pizzeria had a meeting for kitchen staff. The manager expressed frustration with several behaviors (noted in the post) and asked for comments at the end. Ralph replied with a cut on Brian. Ralph was later fired and then filed a charge with the NLRB. Whether or not Ralph engaged in protected activity was the subject of the suit – and is analyzed in the post. Given the backstory (see the post), this was a good win for employers.

TAKEAWAY: Be careful when employees seem to be talking unfavorably about the employer; it may be protected activity under the NLRA. Consult legal counsel before taking adverse action.

The post on Monday 6/25/18 was bout a $28M jury verdict on retaliation – wow! Let's see why. Gessy and Nirva are Haitian-American nurses who worked at a hospital. Nirva alleged she was denied a higher-paying position because she is black. Gessy alleged that when she supported Nirva, she experienced retaliation. Gessy's case was heard first. What happened is in the post.

TAKEAWAY: Even if you have a legitimate reason for adverse action, make sure it does not come off as retaliatory – in which case you will find yourself named as a defendant.

In the post on Tuesday 6/26/18 we saw than an employee was told she should be home in the kitchen, got settlement. Yep, that's real life. Jennifer worked at a construction company for a few months as a truck driver. She had a bad time, including male co-workers sexually harassing her and more (in the post). She reported it all to the owner and site manager, but when the harassment continued, she quit. The EEOC sued. Now the employer is settling. The settlement terms are in the post.

TAKEAWAY: Investigate every complaint and train all employees on what not to do or say.

The post on Wednesday 6/27/18 was about an Association that shut down a family's attempt to protect its home from flooding. The owners started building a concrete wall around their home so floodwaters wouldn't harm their home. Then their homeowners' association told them to stop. More background details are in the post,including the back-and-forth it put them through.

TAKEAWAY: Restrictions, covenants, and rules are there for all owners to follow and the association to enforce, but they must be applied evenly and reasonably.

In the post on Thursday 6/28/18 we saw that the EEOC argues that sexual orientation discrimination by a heterosexual can constitute a protected activity. Bonnie filed suit, and is now on appeal, arguing that her complaint about discrimination based on sexual orientation was protected activity. The EEOC even filed a brief supporting her. What's different is that Bonnie is heterosexual. She says she was fired because of that – and how it impacted her Facebook posts (as noted in the post. The issue was whether or not she alleged any protected activity under Title VII. The basis of the EEOC's brief is in the post. The case is still pending.

TAKEAWAY: Sexual orientation harassment and discrimination are areas of the law that are evolving and expanding. Make sure you know that might be found illegal before you take that adverse action.

The post on Friday 6/29/18 told us the NLRB gives employers more freedom with employee handbooks. This is good news. And yes you care, even if you are not a union workplace. Remember that Section 7 applies to ALL employers, so ALL handbooks are potentially subject to scrutiny for violations of that law. The NLRB's general counsel recently issued a memo dealing with civility standards, and more listed in the post. The memo split handbook provisions into 3 categories: ruled that are generally lawful and 2 others (see the post). This was all done in light of the recent Boeing decision (discussed in the post). The memo gives examples of what is usually allowed and what is not (including a ban on disclosing salaries and employment contract contents.

TAKEAWAY: Employers should periodically review their handbook to ensure legal compliance – but with a potentially seismic shift like this, now is a good time for that review regardless of how long it has bene since the last review. Let an employment law attorney help.

Finally, in the post yesterday 6/30/18 we saw an employee denied a job because the manager wanted a Korean can continue with the suit. Jerberee was employed as a finance clerk. She wanted to transfer to the IT department and told the employer why (as in the post). The IT manager agreed, but then retracted the transfer for the reasons in the post. Jerberee reported what the manager said and, coincidentally?, was fired a week later for poor performance. She sued. The issue was whether a failure to transfer was an adverse action. The court's action on appeal is in the post along with its reasoning.

TAKEAWAY: The law can be interpreted broadly, so ensure that employees, especially managers, are properly trained.

Tuesday
Jun192018

ICYMI: Our Social Media Posts This Week – June 17 - 23, 2018

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

In the post on Sunday 6/17/18 we were told that the EEOC sued Walmart for alleged discrimination against 2 deaf employees. So listen up. The suit was filed very recently in federal court in DC based on the treatment visited on 2 deaf employees who use sign language to communicate. They were not new employees but had been working there several years. The post mentions the ways in which Walmart did not accommodate them. The post also mentions Walmart's position.

TAKEAWAY: Know what you have to do to accommodate an employee – and then do it. Don't wait for the EEOC to come knocking.

The post on Monday 6/18/18 was a learning experience: an employer may have to defend comments about pregnant workers.  A federal court will let a matter go to a jury to decide if Alena was fired for violating a company policy or because she was pregnant. Alena alleges that she was terminated because others in her work group were already pregnant. Evidence noted in the post seems to bear out her allegation. Of course, the company came forth with a different legitimate reason for the discharge. The trial court let eh employer out on summary judgment, but the appeals court reversed on the analysis noted in the post.

TAKEAWAY: Don't treat pregnant employees differently than anyone else, and don't change your story time and again as to the reason for any adverse action.

In the post on Tuesday 6/19/18 we read about HOA to resident: Take down your Golden Nights flag or pay up. We all know those who are true sports fans – and show it via apparel or sometimes a flag. Well that's what Montoya did, but then his HOA told him to remove the flag. The HOA's reason is noted in the post. However, there is a question as to even enforcement of the rule cited by the HOA – see the post.

TAKEAWAY: Community associations, both condo and homeowner, have Governing Documents –the Declaration, Bylaws, and often Rules or Regulations - that all owners and residents must follow. The Association is charged with enforcing the Governing Documents, but when it does not evenly enforce them it can find itself on the losing end of protecting that provision.

The post on Wednesday 6/20/18 told us that policy and legitimate business reasons may carry the day. What does that mean, you ask? Read on. Everson asked for time off for medical reasons which was granted. Later, he notified the employer he'd need more time off for medical reasons. That too was granted. Then, a mere 2 days later, he was fired for a supposed policy violation (the post details what it was). Everson sued, alleging retaliation for requesting FMLA leave. The employer moved for summary judgment. The court ruled in its favor for the reasons set forth in the post.  

TAKEAWAY: An employer which has policies must make them known to employees and evenly enforce them.

In the post on Thursday 6/21/18 we learned that an ex-brewery employee sued for racial discrimination. The suit was filed against Anheuser-Busch's brewery in Williamsburg, Virginia, on the basis that it paid white employees more than others. The plaintiff is a black woman.  More details on the duties, salaries at issue, and timing of events are in the post. Allegations as to what the employer knew, and on what it took no action, are in the post.  

TAKEAWAY: Make sure to pay people doing the same job the same wages unless there is a legally justifiable reason for any difference. And don't take public action to undermine any stated reason for a wage differential.

The post on Friday 6/22/18 was about a suit claiming Facebook tools are used by employers to screen out older job seekers. Ugh. A class action suit now includes more companies and says the filters are on the bases of gender, geography, race and age. Pretty wide net. The suit says that Facebook's algorithms perpetuate disparate treatment. Some of the defendants are Amazon and T-Mobile – others are listed in the post. See the post for what Facebook says about its targeted on-line advertising.

TAKEAWAY: Just because an employer is using a new medium to advertise job openings does not mean it can discriminate – on the contrary, it must still follow applicable laws.

Finally, in the post yesterday 6/23/18 we saw that volunteering information bars a GINA claim. You remember what GINA is, right? (If not, the post gives a bit of background.) A federal court was faced with deciding if there was a violation of that law. Here, after a medical diagnosis, Williams requested medical leave. He mentioned part of the diagnosis upon repeated questioning. After he was terminated, Williams filed suit. The employer moved for summary judgment. Check out the post to find out why the court granted the employer's motion. NOTE: the case is on appeal now.

TAKEAWAY: Know what is and is not allowed to be asked or discussed under GINA. But take the defense given to you if an employee volunteers information.

Monday
Jun112018

ICYMI: Our Social Media Posts This Week – June 10 - 16, 2018

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

In the post on Sunday 6/10/18 we read about a suit alleging AT&T's absence policies discriminate against pregnant women. Remember the Pregnancy Discrimination Act? Yeah. Cynthia and Katia were both fired for things related to pregnancy. Why? Because of how AT&T's policy works – see the post. And the interaction between several federal laws identified in the post.

TAKEAWAY: Even enforcement of policies is good, but it must also be legally compliant. Consult an employment law attorney to stay within legal bounds.

The post on Monday 6/11/18 told us about 4 pitfalls to avoid when responding to a charge of discrimination. Suits happen after the administrative phase has been concluded, but the latter is important. Employers should not just wing it when responding to the EEOC (or PHRC) – they should take certain steps, including not providing too much information, not providing too little information, and 2 others listed in the post. The employer's response may indeed be used against it in any later trial, so paying attention to the tips in the post can be helpful.

TAKEAWAY: Know how to respond to an administrative charge of discrimination Consult legal counsel to start your defense now before it's too late.

In the post on Tuesday 6/12/18 noted a former employee sues city for employment discrimination. Not quite the typical office furniture … Stanley filed suit last July. And the former City administrator resigned suddenly. Are the 2 related? Not according to the Mayor. The background facts are in the post and include a City Council member trying to get dirt on someone. The dirt had to do with a certain type of "office furniture" detailed in the post, a smoke bomb, and more (see the post). After reporting what he found, Stanley was written up. Then he found out … see the post.

TAKEAWAY: Don't make a possibly bad situation worse by taking adverse action without valid, legal support.

The post on Wednesday 6/13/18 was about enforcing HOA and condo association rules by imposing fines (and asked if you know what is allowed under PA law). We all know that the Governing Documents (Declaration, Bylaws, and Rules/Regulations, must be evenly enforced. If there is a violation, it must be addressed. As noted in the post, one mechanism to address violations is a system of fines. As noted in the post, applicable state law must be followed (as long as the provisions of the Governing Documents).

TAKEAWAY: The Association should always consult with its legal counsel to ensure that actions comport with the Governing Documents and the law.

In the post on Thursday 6/14/18 we asked: do asthma sufferers have viable FMLA claims if terminated? Maybe. In this case, Dighello was a router and dispatcher. She had to work long shifts with no breaks. After 4 years, she took ill and missed 2 days of work. The post details the next things that happened, through to her discharge. Suit was filed. The court analyzed what might constitute protected FMLA leave in the context of an interference claim. The court also dealt with the retaliation claim. Both are discussed in the post.

TAKEAWAY: Make sure you think about all related facts and timing when being asked to provide an FMLA accommodation. And talk to an employment law attorney before taking adverse action.

The post on Friday 6/15/18 was about age discrimination in hiring & recruitment: EEOC on ADEA. Don't let the #MeToo movement overshadow your concern for age discrimination. The post lists 2 examples (which should sound familiar to readers of this blog). More are in the news every day. Don't make yourself a defendant.

TAKEAWAY: Make sure age has nothing to do with any adverse action you take against an employee or applicant.

Finally, in the post yesterday 6/16/18 we saw that a former JPMorgan employee filed suit for racial discrimination. As the post notes, "an attempted 'Harlem shuffle' has backfired."  JPMorgan deals with people of means – and people of limited means. JPMorgan tried to transfer Francis from an affluent branch to a low-producing Harlem branch. How it broached it is in the post. Francis got upset. He was not calmed by what his supervisor said next (in the post). The suit also has more support for his claim (as in the post). Francis sued.

TAKEAWAY: Train your employees on how to act, what factors to use for decisions/actions, and what not to say. It might help you in case of suit.

Monday
Jun042018

ICYMI: Our Social Media Posts This Week – June 3 - 9, 2018

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

In the post on Sunday 6/3/18 we saw that the ability to work a rotating shift can be an ADA essential function. All beware. Why do you care? Because as a worker you may need to know what you can request of your employer and as an employer, you may want to know what you can require of your employee. IN the case here, the former assistant manager got PTSD and depression. He asked for a change from a rotating to a fixed schedule (and other things in the post related to the cause of the PTSD). The employer initially said yes, then backtracked. He quit and sued. The post contains a summary of the court's analysis and why the decision came out as it did.

TAKEAWAY: The essential functions of a job must be known when dealing with an accommodation under the ADA; having a job description with the essential functions specified is a good thing.

The post on Monday 6/4/18 looked at how no-fault attendance policies can put companies and workers at risk. This type of policy does not distinguish between excused and unexcused absences. It treats them all the same. Good, right? Not if points are assessed for legally-protected absences under the FMLA or ADA. Former AT&T employees recently filed suit for unlawful discrimination against pregnant women. Harken back a few years to a suit against Verizon detailed in the post. Keep those lines open for how this one plays out.

TAKEAWAY: Uniformity in enforcement of policies is great – except when it runs afoul of the law. Know when not to enforce – and get legal help.

In the post on Tuesday 6/5/18 we learned about a new law that targets homeowner and condo association disputes (and suggested owners and Board members should know about the law). It's been a long time coming, but PA now has another avenue to resolve some disputes: the Bureau of Consumer Protection. The post gives some background on the law and some of its provisions. It will take effect some time in July so there is time to learn how it affects you or your association.

TAKEAWAY: Know what the avenue of redress is for a dispute. If you are not sure, consult legal counsel.  

The post on Wednesday 6/6/18 told us a woman accused of stealing $636 from Chipotle won millions. Jeanette Ortiz is a former manager at Chipotle. She was an excellent worker. The post has the background. A video that supposedly existed was never shown. She was fired in 2015 after being accused of stealing $636. She sued. Some of the arguments made by Chipotle are in the post. A jury recently awarded her almost $8M. Then the case settled rather than go up on possible appeal.

TAKEAWAY: Be careful before accusing an employee of wrongful conduct or taking adverse action because of it – it may come back to bite you, hard.

In the post on Thursday 6/7/18 we read that Fox News settled a slew of discrimination suits for about $10M. That’s news! Eighteen current and former employees sued for race, gender and pregnancy discrimination. Some details are in the post. One of the plaintiffs was a news anchor. How he characterized the basis for his claim is in the post.  

TAKEAWAY: Nobody is above the law, even when the defendant is an agency that usually reports the news instead of making it.

The post on Friday 6/8/18 told us a staffing company was sued for complying with clients' race and sex preferences.  Not smart.  The EEOC brought suit against the company for its refusal to hire highly-qualified black applicants or other racial-tinged actions in the post. The allegations include sex and age discrimination as in the post. Plus retaliation!

TAKEAWAY: Just because you're told to violate the law (by a boss, customer or other), don’t think twice about it – just don’t do it!

Finally, in the post yesterday 6/9/18 we asked: Does profanity at work create a hostile work environment? The answer is maybe. It may depend on the type of profanity. Yes, the type. A federal court was faced with that analysis. The post describes the 2 types and gives examples. One type can lead to legal liability, the other probably not. But, as the post warns, the entire situation must be reviewed. Even the timing – whether the profanity existed before or after the complaining person / victim was employed – might make a difference. See the post on that.

TAKEAWAY: This is not a case of we know it when we hear it, but rather when certain language is used in a certain context, is it illegal and liability will attach.

Monday
May282018

ICYMI: Our Social Media Posts This Week – May 27 - June 2, 2018

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

In the post on Sunday 5/27/18 we saw that an harassment victim cannot choose the punishment. Douglas worked for a phone company with an anti-discrimination and anti-harassment policies. There was a system to report (alleged) violations. Douglas sued the system as a result of what he perceived to be a violation – see the post for what happened. What happened to the employee against whom the complaint was lodged was not what Douglas requested (as detailed in the post), so he sued.

TAKEAWAY: The employer often retains discretion to do what it thinks is necessary in the circumstances to remedy discrimination or harassment.

The posts on Monday 5/28/18, here and here, are a tribute to Memorial Day. It's necessary to take time and remember those without whom we'd not be where we are.

TAKEAWAY: Remembering the past and being thankful can help us move forward.

In the post on Tuesday 5/29/18 we noted that employers should take care when responding to a resume mentioning a union. Remember that some parts of the NLRA apply to both union and non-union workplaces. So make sure not to take adverse action against someone with a union past or leanings – as in the post.

TAKEAWAY:  If you are about to take adverse action against an employee or applicant but it might be based on a protected characteristic, consult legal counsel before taking the action.

The post on Wednesday 5/30/18 asked: Newly elected to your HOA or condo board? First step: understand your Governing Documents (and contact us). More and more people each year move to planned communities, those governed by a condominium or homeowners' association. The association ensures that the documents by which all owners are bound are evenly enforced. Members of the board of the association are charged with that duty (among others). To carry it out, members must know about the association's Governing Documents. Definitions are in the post along with a snippet about each. State law also comes into play. As also noted in the post, what is also important is knowing what you don't know.

TAKEAWAY: The Governing Documents are legal and binding; often the help of legal counsel is needed to interpret or enforce their provisions.

In the post on Thursday 5/31/18 we saw that a federal court says a manager's alleged fear of "voodoo curses" constituted race discrimination. And that the line between race and national origin discrimination continues to blur. Here, the court let a case brought under Section 1981 to go forward. The bases of suit included race and national origin claims under Section 1981 and Title VII and were based on allegations that a supervisor wanted to terminate employees originally from Africa. Why? See the post. The court examined the differences (or not) between race claims under Section 1981 and Title VII. The rationale is in the post.

TAKEAWAY: Before taking adverse action against an employee or applicant based on what is or might be a protected characteristic, consult legal counsel to help you stay out of hot (and expensive) water.

The post on Friday 6/1/18 noted a lawsuit accuses AT&T Mobility of pregnancy discrimination. Why do you care? Because of the basis on which they were discharged as noted in the post. If your company has a similar policy, read the post.

TAKEAWAY: yes, pregnant employees are to be treated like all others, but there are limitations under the PDA and FMLA. Know them.

Finally, in the post yesterday 6/2/18 we asked: can employee voluntarily work while on FMLA leave? A federal court recently wrestled with this question and the answer has import to both employees and employers. As noted in the post, there was a request for and approval of FMLA leave. It is what happened next that ultimately resulted in the suit. And the analysis by the court as in the post.

TAKEAWAY: FMLA leave has limitations on contact between the employer and employee, but there are exceptions and both parties should know what they are.

Monday
May142018

ICYMI: Our Social Media Posts This Week – May 20 - 26, 2018

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

In the post on Sunday 5/20/18 we learned about a lawsuit because firefighters told a probie to have sex with a stripper to prove his manhood. In a federal lawsuit that was filed recently, Michael alleges that firefighters stomped on his gear, smeared peanut butter on his car and more listed in the post. He complained. The response he got time after time is in the post. Also, a lieutenant told him "not to take it too hard". He was fired in late December 2016, allegedly as a result of a failed evaluation, a mere week before he was due to complete his probation.

TAKEAWAY: Make sure employees, especially management, know the type of behavior that is not permitted and take steps to stop it if it happens.

The post on Monday 5/21/18 told us about 5.1 million reasons to keep religion out of the workplace. Have you ever heard of Onionhead? If not, read the post. In the suit referenced here, Onoinhead's creator is the aunt of the defendants' CEO. The suit was filed because the corporate defendants allegedly required employees to take part in group prayer and other activities listed in the post. They fired any employee who would not participate. The suit said Onionhead was a religion and came under the auspices of Title VII. See the post for the jury verdict.

TAKEAWAY: Religion has no place in most work environments – so don't bring it with you. Just don't.

In the post on Tuesday 5/22/18 we read about an HOA attorney who threatened a lawsuit over shutters (and asked how your Association handles violations). Owners installed black shutters 4 years ago. Now they received a letter from the HOA telling them to remove the shutters. The post gives more background. Other owners in the same development found out the threat of litigation was no bluff – and are fighting back.

TAKEAWAY: All planned communities, whether governed by a condo or homeowners' association, have legal documents that must be followed – but they must also be evenly enforced.

The post on Wednesday 5/23/18 told us a Kia dealership paid $100K to settle sexual orientation and disability discrimination claims. The EEOC filed suit on behalf of a gay, former car salesman with Crohn's disease. The bases of the suit alleging unwelcome and offensive contact are in the post. The parties settled.

TAKEAWAY: The federal appellate court governing PA has not yet ruled on whether Title VII specifically governs sexual orientation discrimination, but others have. The safest course if not to act aversely based on sexual orientation.

In the post on Thursday 5/24/18 we learned that a Mormon author sued over gender and religious discrimination. Marianne is a Mormon author and former college writing instructor who sued for discrimination based on gender and religious affiliation. She said that when she asked for assistance relative to a problem student, the administration acted as in the post. Her suit includes wrongful termination, intention infliction of emotional distress, retaliation, discrimination, and failure to provide due process. The facts and processes underlying the suit are detailed in the post.

TAKEAWAY: If you are taking adverse action against an employee, make sure there is a valid, legal basis for same in case you end up having to use it to defend yourself in court.

The post on Friday 5/25/18 told us about a suit alleging that a female employee was subjected to sex discrimination and retaliatory discharge. And that the suit was settled for about $243K. The suit brought by the EEOC alleges that the company's GM subjected a female employee to discrimination and sexual harassment and fired her when she complained. But it didn't stop there; no, it took the actions described in the post.

TAKEAWAY:  We said it above and will say it again: If you plan to take adverse action against an employee, make sure there is a valid, legal basis for it in case you have to defend yourself in court.

Finally, in the post yesterday 5/26/18 we saw that Witmer Public Safety Group was accused of wrongful termination. Kristen sued in federal court, alleging that she was fired 11 days after submitting an FMLA leave request. What did the employer do after she submitted the paperwork? See the post.

TAKEAWAY:  Don't interfere with an employee's valid use of FMLA leave.

QUEARY: Did she have any compensable damages? Is the mere fact of the violation without more, sufficient to succeed on a claim and be awarded damages?

Monday
May142018

ICYMI: Our Social Media Posts This Week – May 13 - 19, 2018

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

In the post on Sunday 5/13/18 we saw that a company who failed to hire a worker became a defendant in a lawsuit. Farrell applied for a truck (yard) driver position in mid 2016. He was allegedly offered the position if he got a DOT medical certification and other things listed in the post. He already had the cert but got another one and passed the required driving test. Good, right? Not. The employer had concern about a pre-existing injury and required a fit-for-duty exam. What happened next is in the post. And it ended with the EEOC suing on his behalf.

TAKEAWAY: Don't assume someone cannot or will not be able to perform the job duties; not only will it make an a__ out of you, it will make you a defendant.

The post on Monday 5/14/18 asked: Can you dock wages for broken tablets or other equipment or devices? The answer is "maybe". Which is similar to "it depends". The answer varies as to whether the employee is exempt or non-exempt. And if the latter, whether the deduction will drop the wages below the minimum or affect overtime. If the person is properly classified as exempt, the answer is simple and in the post. When the employee is non-exempt, the other question are to be answered as in the post.

TAKEAWAY: Answer the threshold questions and look at applicable state law too when deciding whether to make deductions from an employee's paycheck.

In the post on Tuesday 5/15/18 we learned that no, you cannot get rid of your tax debt for pennies on the dollar. Or maybe you can. You've probably heard the ads on TV or radio: "Can't pay your taxes? … Got $10,000 or more in tax debt? We can help." There are legitimate companies that can help you deal with tax debt – outside of a bankruptcy filing – and there are many many more who are not so legitimate. As the post notes, you may not even need their help. The IRS has several options available to those with tax debt and the post lists some. If all else fails, you can always file for bankruptcy protection.

TAKEAWAY: Know your options relative to outstanding tax debt – and contact a professional who has only your interests in mind.

The post on Wednesday 5/16/18 asked: What options does an Association have to make an owner stop leaving trash cans on the curb for days? There are many good things about living in a planned community (with a homeowners' or condominium association), but there are also rules and other legal documents to follow. When even one owner does not abide by the Governing Documents (the Declaration, Bylaws and Rules), it affects everyone else. The post gives a few options of the types of enforcement mechanisms. State law may also come into play. See the post. If you have neighbors who violate the Governing Documents for your planned community and the Association does nothing, or if the Association Board has tried unsuccessfully to remedy a violation, contact us for help.

TAKEAWAY: All owners in a planned community have the same set of covenants and rules to live by; it is the job of the Association to uniformly enforce them. Legal assistance may be required at times.

In the post on Thursday 5/17/18 we learned that a restaurant settled a suit after allegedly discriminating against "old white guys". Just ugh. Part of the Darden family (which, among others, owns Olive Garden and Longhorn Steakhouse), agreed to settle a suit brought by the EEOC for almost $3M. The suit accused Seasons 52 of disproportionately rejecting applicants who were over 40. The suit included 254 plaintiffs and more may be allowed to join. The alleged discriminatory comments included managers saying that "Seasons 52 girls are younger and fresh" and more in the post. One of the worse statements was told to the EEOC – see the post!

TAKEAWAY: Age is (almost?) never a valid basis upon which to distinguish employees and applicants – so don't rely on it.

The post on Friday 5/18/18 was about Maternity Leave 101: what every working mom (and employer) should know. The post talks about 7 things one should know. The first is that the employee may qualify for unpaid leave under the FMLA, but certain thresholds must be met, such as a minimum number of employees, fitting within an allowed reasons, and having worked the requisite number of hours. See the post for more details. The FMLA provides certain job protections too, so refer to the post. There is also the possibility of short term or temporary disability insurance coverage if a relevant policy is in effect. Also, the employer must treat the pregnant employee just like every other employee or be found in violation of the Pregnancy Discrimination Act. See the post for more on this.

TAKEAWAY:  Employees and employers should know what obligations and rights each has relative to pregnant employees. Discuss with legal counsel to be sure.

Finally, in the post yesterday 5/19/18 we learned that Aviation Port Services was sued by the EEOC for religious discrimination and retaliation. (We noted that is NOT the friendly skies.)  So what happened? Six Muslim female employees wore long skirts for their jobs as passenger service agents. Late in 2016 the dress code changed – see the post. They requested a religious accommodation but were denied. All were fired in January 2017.

TAKEAWAY:  Employers have the right to enact dress codes for employees, but they are also required to vary from that dress code in case of reasonable religious accommodation. Be careful whence ye garb.