Thursday
Dec202018

ICYMI: Our Social Media Posts This Week – Dec. 23 - 29, 2018

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

In the post on Sunday 12/23/18 we learned that employer obligations under the FMLA exist even before an employee satisfies eligibility. Yessirree. So what are some of those obligations? First, employers cannot manipulate the size of the worksite or number of hours of work available to avoid threshold eligibility for FMLA leave. And what about inducing an employee to waive FMLA rights? The post talks about that. Another thing the employer may not do: retaliate against an employee who requests to take FMLA leave once eligible. The post contains even more things an employer must or must not do prior to FMLA eligibility.

TAKEAWAY: As with any statute, know your rights and obligations under the FMLA before you do it incorrectly or get sued.

The post on Monday 12/24/18 talked about what the holiday movie 'Elf' can teach us about the ADA. Yes, the fun movie where Will Ferrell is elf Buddy. Early on Buddy learns he is not an elf when he has toy production issues. The assumption on which the post is built is that Buddy's height is a disability to which the ADA applies. So the first question is whether Santa and the elves must lower production standards for Buddy. No – but they may need to provide reasonable accommodation to help Buddy due to his disability. The post gives an example of how that might work. But what about transferring Buddy to another position as a reasonable accommodation? That is the accommodation of last resort under the ADA and only when the 2 prerequisites listed in the post have been met. And then other things have to happen for the transfer to be a valid reasonable accommodation – again, see the post.

TAKEAWAY: Movies are entertaining, but real-life lessons can be learned, especially when it comes to possible different ways to reasonably accommodate a disabled employee.

In the posts on Tuesday 12/25/18, here and here, we wished you and your families a Merry Christmas and more.

TAKEAWAY: Sometimes you just have to step back and enjoy. Period.

The post on Wednesday 12/26/18 asked: Is veganism a religion? One man seems to think so. He alleges that he was fired for disclosing investments in animal testing. The question, so nicely posed by the post, is "if someone firmly, and sincerely, believes animals are our partners and friends and that any and all forms of exploitation are immoral, to an extent that goes beyond a dietary choice and amounts to an article of faith, couldn't that fall under the hearing of a religion?" The timing of this matter is ironic considering what had just happened not long before (see the post).

TAKEAWAY: One man's religion is not always another's – but if a sincerely-held belief, then it qualifies for legal protection. Keep that in mind.

In the post on Thursday 12/27/18 we asked another question: Can a Director resign from the Association's Board for any reason? Do you know what PA law says? The answer is probably "yes". Directors are volunteers, albeit elected or appointed ones, but still volunteers. If they don't want to serve in that capacity any more, they can't be forced to remain. The post gives a bit more detail. .

TAKEAWAY: Board members should be treated with respect and gratitude – they represent the interests of all owners, equally, and must enforce the Governing Documents whether or not they like the contents.                   

The post on Friday 12/28/18 talked of a blind man suing the Playboy website for not being user friendly to all. You read that right. He says he wants to read the articles but can't. Donald sued for violation of the ADA, saying the website is not compatible with his software. More of his arguments are in the post. Playboy did not comment.

TAKEAWAY: The question of whether websites deserve ADA protection is winding its way through the legal system – the best way to act now is to make yours accessible and then it won't matter on which side the courts come down.

Finally, in the post yesterday 12/29/18, and in keeping with a mini-theme, we noted that when the witch in the office asks for the solstice off, don’t laugh, she’s not joking. A small percentage of Americans identify as Wicca or Pagan (but more than identify as Presbyterian!), so don't stick your head on the ground on this one. Employers must accommodate religious beliefs - to the extent possible - regardless of which religion. The post explains what might be a religion under Title VII (and why Wicca might qualify). There are some common religious accommodations an employer might consider, including exceptions to the company's dress code, schedule changes, and more listed in the post.

TAKEAWAY: Unless you can show an undue hardship, which is difficult and rare, be prepared to accommodate employees' religious beliefs (even if you don't agree with those beliefs).

Monday
Dec172018

ICYMI: Our Social Media Posts This Week – Dec. 16 - 22, 2018

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

In the post on Sunday 12/16/18 we asked: Individual liability for owners? Possibly. Read on. Why? So you know whether or not you individually are an employer. You may not be the majority owner, but if you have other authority, you may be classified as that person's employer for FLSA purposes. Got your attention now, huh?!? The FLSA defines an employer as one who "exercises control over the nature and structure of the employment relationship, or economic control over the relationship." Courts have devised tests arising from that definition; see the post for one example. When the factors were applied to the facts of that case, someone who thought he probably had no liability was surprised at the court's analysis – see the post.

TAKEAWAY:  When you take on responsibility, know what else you take on, such as potential statutory liability as an employer under the FLSA. Consult employment law counsel if you are unsure.

The post on Monday 12/17/18 told us that an employee may proceed with claim that employer led her to believe she could take FMLA leave before qualified. We suggested you make sure you know what your managers are promising or a court may force you to fall on that sword. You know the eligibility requirements before someone can take FMLA leave, right? And one is that eligibility must precede the leave, right? Well … Here, Angel was an administrative assistant. She told her employer she needed surgery and scheduled it for just after her one-year work anniversary. The employer put her on medical leave – its reasoning is in the post. Angel then moved up her surgery. The employer's HR Coordinator then made certain representations to Angel – they are in the post. Finally, the employer then denied Angel's FMLA leave request and filled the position. Angel sued. The Court allowed the case to go forward – its reasoning is in the post.

TAKEAWAY: Again we warn you to train your employees on what to say and do and what NOT to say and do, including making representations that might be held to bind the employer in a way it doesn't want to be bound.

In the post on Tuesday 12/18/18 we learned no adverse action, no failure to accommodate claim, or so says this federal court (in contrast to at least one other). That is the issue in deciding if there has been a violation of the ADA. For example, as noted in the post, if an employer refuses to move a wheelchair-bound employee's office a few feet closer to the entrance, is there a violation? It might depend on whether there was an adverse employment action. Federal courts are divided on the answer.  One recently held that adverse action is required in order to find an ADA violation. In that case, the employee broke her arm, limiting her ability to perform some job functions. The post details the timeline that occurred after that, including whether there was any adverse action. That was analyzed on appeal and the court's analysis is in the post.

TAKEAWAY: Know what the law requires relative to your business – or don't even get to that point if you properly handle the reasonable accommodation process.

The post on Wednesday 12/19/18 suggested that you review your Association's existing Governing Documents to know what covenants or Rules/Regulations to enforce going forward. Whether it is basketball hoops as in the post, or anything else, you need to know what is required before you can follow or enforce it.

TAKEAWAY: The Governing Documents are for everyone – get a good community association lawyer to assist you fulfill your fiduciary obligations to the Association.

In the post on Thursday 12/20/18 we saw that FBI training instructors punish women, not men, for mistakes, complaint says. If true, it’s not good but helps explain the gender disparity. Danielle was training to be an FBI agent; she passed her fitness, academic and firearms tests. That left certain training tactics. She had problems and was written up 4 times in one day, then forced out not long before graduation. What about a man who did a similar thing? See the post. Danielle and 11 others accused the FBI of gender discrimination at the training academy; of the 12, seven also claimed race discrimination and 2 disability discrimination. Some of their allegations are detailed in the post. The FBI did not comment on the suit. Danielle wasn't the only one. Terah also passed the first 3 phases and then struggled with tactics. The post reveals her problems. And then there was Paula. A bit about her story is also in the post.

TAKEAWAY: Qualifications are legal, but must be evenly enforced. Make sure you treat all of your applicants and employees the same.

The post on Friday 12/21/18 reminded (or warned?) you to protect your claimed at-will employment relationships. You already (should) know that Pennsylvania is a strong at-will state, meaning either employee or employer can end the relationship at any time, with or without notice and with or without reason/cause, as long as there is no legal violation. Absent a writing to the contrary, at-will employment is presumed. But it is not inviolate. In the post, there was a CBA provision that the employee argued was not enforced. The facts were not uncommon; see the post. And the court must always look at all facts in deciding whether the relationship is at-will or not.

TAKEAWAY: Make sure all writings between your business and the employee do nothing to destroy the at-will relationship – unless that is your intent. Have everything reviewed by an employment lawyer to make sure your intent is fulfilled.

Finally, in the post yesterday 12/22/18 we saw that Simmons Security & Protection Services is to pay $15K to settle a pregnancy discrimination suit filed by the EEOC. What happened? Simmons hired Lakisha as an unarmed security guard. It did not know that she was pregnant. A few weeks later she was asked if she was pregnant. See the post as to what Simmons did after she answered. Which explains why the EEOC sued. The post also tells us what employers should do when they have a pregnant employee.

TAKEAWAY: Treat pregnant employees the same as all other employees unless and until asked for something different.

Monday
Dec102018

ICYMI: Our Social Media Posts This Week – Dec. 9 - 15, 2018

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

In the post on Sunday 12/9/18 we talked about PTO and FMLA Leave – and asked: Can employers force employees to take paid time off? The easy answer used to be "yes". But a recent federal appellate case may change that. Why? Because of the FMLA regulations – 29 CFR 825.207 - as noted in the post. The issue is whether or not the FMLA leave is unpaid. In the subject case. Alice needed surgery and then a 6-week leave. She received a disability benefit. Her employer required her to use vacation and sick leave during the FMLA leave. She sued to regain those benefits. She won! The basis of the court's ruling is in the post.  

TAKEAWAY: Know the law and its implementing regulations – consult employment law counsel to stay on the right side of legal.

The post on Monday 12/10/18 said you cannot wear a skirt - revisiting religious discrimination. Is there a reason to revisit? You bet! Georgia Blue is a restaurant that had a dress code requiring servers to wear blue jean pants. A new hire who couldn't for religious reasons asked for an accommodation – see the post. The request was denied out of hand. The EEOC sued. There are other cases that have been filed on a similar basis – again see the post. At least this one settled.

TAKEAWAY: If there is an easy way to accommodate an employee, do it – don't risk being hauled into court.

In the post on Tuesday 12/11/18 we asked: Can an Association Board member be removed for breaching fiduciary duties? (This should be a no-brainer – but the answer still could be "it depends". On applicable state law. Or the Governing Documents. There is almost always a fiduciary duty as explained in the post. In fulfilling their fiduciary duties, Board members may rest on the "business judgment rule" – again detailed in the post. Another issue is whether the person was merely negligent or more. If the person acts (or fails to act) in such a way that there is a breach of fiduciary duty, then the process set forth in the statute or Governing Documents must be followed.  

TAKEAWAY: Know what position is occupied by a Board member, when s/he violates the trust and obligations of the position, and what to do about it.

The post on Wednesday 12/12/18 was of faux pas, fibs and legal fees: a cautionary FMLA tale. A federal court refused to dismiss a claim brought by a former employee of an assisted living center. So what happened? She found out she needed Achilles tendon surgery and shortly after talked to HR about having the surgery after becoming eligible for FMLA leave. HR told her when that would be and she scheduled the surgery for soon after that date. All good, right? Keep reading. So what did the HR person do next? Made the employee punch out and go home until healed from surgery and more noted in the post. Yep. So the employee rescheduled the surgery for an earlier date. But then the employer … see the post. Because of what the HR person told the employee, the court allowed the claim to go forward.

TAKEAWAY: Document everything and make sure everyone involved in the process knows the correct way to proceed (or consults an employment law attorney to be sure). 

In the post on Thursday 12/13/18, we saw that with Me Too - women are sometimes the defendants. Yep. Lynda Resnick is a billionaire. Lynda Resnick is a powerful woman. Lynda Resnick is the 10th riches self-made woman in America. Lynda Resnick is also accused by a former employee of pregnancy discrimination and wrongful termination. And that's not all – see the post for the company's track record. Many facts alleged are in the post. And apparently this employee was not the only one who suffered this or a similar fate. Details of the 2012 lawsuit, also for pregnancy discrimination, are in the post. That case settled. The post gives more details about the other employees' situations too – just not at all favorable of the employer.

TAKEAWAY: Where there's smoke, there is often fire – make sure you and your employees know not to start a fire with any illegal adverse comment or action against employees.

The post on Friday 12/14/18 was a good reminder: Make sure your insurance coverage is what you want and need; don't rely on what someone told you it includes. The federal appellate court whose decisions govern us here in PA just weighed in on a related case. The underlying issue was the doctrine of reasonable expectations in the context of a faulty workmanship insurance claim. Hallstone obtained a general liability policy; the owner clearly asked for the "maximum" "soup to nuts" coverage. But what happened when Hallstone was sued by a customer? See the post. The court was asked to decide whether the reasonable expectation doctrine applied and overrode insurance policy provisions. The post contains the court's rationale for its decision.

TAKEAWAY: Don't just ask for certain coverage – have an attorney review your policy to make sure you get it.

Finally, in the post yesterday 12/15/18 we saw that a racial harassment suit cost Murex $50K. Murex is a large oil and gas company that operates in ND. It has agreed to settle a suit filed by the EEOC alleging that Murex subjected an African-American employee to a hostile work environment based on his race. Derrick was subjected to racial harassment by white co-workers; some of the things they called him are in the post (and are not at all nice or polite). Derrick's supervisor witnesses the harassment, but did nothing. The post contains other allegations – in response to which the company again did nothing. The court signed off on the settlement which includes monetary relief and more as in the post.

TAKEAWAY:  Training, and ensuring compliance with anti-harassment and anti-discrimination policies, are of ultimate importance.

Monday
Dec032018

ICYMI: Our Social Media Posts This Week – Dec. 2 - 8, 2018

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

In the post on Sunday 12/2/18 we saw that Logic Staffing was sued by the EEOC for disability discrimination. Here, Keysi, who is deaf, applied for warehouse positions for which he was qualified. Once the potential employer realized he was deaf, it … see the post. Even though Keysi said he could do the job, the employer said (see the post).

TAKEAWAY:  If no accommodation is requested, you should treat the applicant or employee just like everyone else.

The post on Monday 12/3/18 was an ALERT: Scotus says the ADEA applies to local political subdivisions regardless of their size. In Mt. Lemmon Fire District v. Guido, et. al., the Court was asked to determine whether the numerosity requirement (20 or more employees) applied to all employers or only those engaged in an industry affecting commerce and not States or political subdivisions. The post goes through the background facts and the Court's analysis leading up to its holding. What is really interesting is that Justice Ginsburg delivered this opinion interpreting language (as Justice Alito used to do) and it was unanimous.  

TAKEAWAY: Private employers must meet the 20 or more threshold to have obligations (and potential liability) under the ADEA, whereas States and political subdivisions do not.

In the post on Tuesday 12/4/18 we saw that a scout is suing the Minnesota Twins for age discrimination. Interesting comparison of federal and state law. Howard, who is 60 and lives in Australia, was the Twins' international scouting coordinator; he was good, but he was fired after the 2017 season. See what they said about his performance in the post. He sued for age discrimination. On what did he base his complaint? They hired a 38-year-old as manager, a 33-year-old as chief baseball officer, and more in the post. And the Twins made a (stupid) comment after firing their manager after the 2018 season – see the post. Further, he alleges that 9 other front-office people older than 50 were terminated in favor of younger employees. What's really interesting is the comparison between the ADEA and state law in the post – and why the complaint was filed as it was.

TAKEAWAY: Know the burden each party to a suit must carry – and how you will defend once it shifts to you.

The post on Wednesday 12/5/18 warned you to watch out for homeowner and condominium association rules on holiday lights and decorations. Don't get caught on the wrong foot. Just like many other facets of life in a planned community, there are probably rules about when, what and how owners can decorate their homes for the holidays. The post mentions some things that might happen if there is a rule violation. The post also advises that you read the rules – carefully. Before you decorate.  

TAKEAWAY: Owners get many things as part of living in a planned community; but one tradeoff is having to abide by the Declaration, Bylaws, and Rules.

In the post on Thursday 12/6/18, we read about advice from the NLRB General Counsel on Facebook posts. We also suggested you heed this - because once again it probably applies to ALL workplaces. So what happened? Counsel considered whether an employee at H&M Construction engaged in protected concerted activity by posting comments on Facebook about how employees were treated by H&M's general contractor. How did counsel come down? See the post.  What the employee posted, and why, is explained in the post. The GC mentioned it to H&M, where a supervisor thought it best to lay off the employee. That resulted in a charge being filed with the NLRB. Why the counsel found the post to be protected concerted activity is in the post – and a good tip.

TAKEAWAY: Even in non-union workplaces, employees have their Section 7 right to engage in concerted activities for mutual aid or protection; know how far an employer can go if this becomes an issue. Consult knowledgeable legal counsel.

The post on Friday 12/7/18 was a service animal vs emotional support animal redux, a follow-up to our post on 11/16/18. Do you remember the woman who tried to bring her "emotional support squirrel" onto an airplane in October? This type of thing happens all the time in the workplace, so know the rights and obligations of the parties. The post lists the general definition of service animal under the ADA and how it is limited. The post also notes what the animal must do for the person. A request to bring a service animal to the workplace – usually as an accommodation – should undergo the normal interactive process and not ruled out instantly. Emotional support animals are vastly different – see the post for what they are not, and what they do not do. What is extremely important is the difference under the ADA between service animals and emotional support animals – and that leads into how requests for the latter in the workplace can be dealt with.

TAKEAWAY: Know the difference between service and emotional support animals and how that plays into an accommodation under the ADA.

Finally, in the post yesterday 12/8/18 we learned about the EEOC suit against an employer who retaliated against a race-discrimination suit witness. Ugh. The EEOC alleged that Doug Lytle, the owner of a wedding venue, fired an African-American employee for supporting a co-worker's race discrimination claims. Did we say ugh?!? So what happened? Theo was a witness in another employee's race discrimination suit against a company where Lytle had been a manager. What Lytle did then is in the post. Theo refused to buckle under, so Lytle threatened his job and then took him off the schedule. What the EEOC seeks in the suit is in the post.

TAKEAWAY:  Train your employees on what to say and do and what NOT to say and do – try to prevent potential future liability from loose lips.

Wednesday
Nov282018

ICYMI: Our Social Media Posts This Week – Nov. 25 - Dec. 1, 2018

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

In the post on Sunday 11/25/18 we learned that failure to report harassment may not be fatal to employee’s claim. Employers beware. In a federal appellate ruling that is binding here in PA, Sheri alleged that her supervisor made sexual advances toward her for years. The post contains her reason for not reporting it. Since it was not reported, the company said it could not have known to stop it. Sounds reasonable, right? Well …  see the post as to why that argument failed.

TAKEAWAY:  Investigate and take action each and every time you get a complaint – really.

The post on Monday 11/26/18 asked: What is "de minimis" for pay in light of modern technology? You care because of the requirements of the Fair Labor Standards Act (FLSA) and how easy it is for anyone (including non-exempt employees!) to work from anywhere. The FLSA requires payment, regardless of when the work was performed, as noted in the post. However, there is the de minimis rule and analogous FLSA provision, which is where the question comes in. The post contains the prerequisites in order that it apply and the time spent working not be compensable, along with how that might play out in today's world.

TAKEAWAY: Have a policy on off-the-clock work – including the provisions listed in the post – and strictly enforce it.

In the post on Tuesday 11/27/18 we asked: Can a home be painted any color without HOA or condo association permission? The answer is "it depends". First, on what the Governing Documents say. You know, the Declaration, Bylaws, and any Rules & Regulations. They are the things every owner in the associations lives by – assuming things happen like in the post. If so, then the association can act similarly to the note in the post.

TAKEAWAY: Homeowner and condo associations usually have architectural standards that include paint colors; if they are evenly enforced, then owners must follow the standards or risk being fined (or worse) if in violation.

The post on Wednesday 11/28/18 gave us 15 questions to ask when auditing your employee handbook. And then have it reviewed for legal compliance. Yes, auditing. Reviewing periodically. To make sure it says what you want it to say, fulfills your obligations as an employer, but does not make any additional obligations that you don't want there. So what are the types of things to look for? First, make sure the handbook clearly provides that it is not a contract. Next, if the handbook lists offenses that might result adverse action, make sure to note that the list is not all-inclusive, but merely some examples. Other things to look for are in the post.

TAKEAWAY: Not only should handbooks be the guide all employees must follow and the employer will enforce, it should clearly tell employees what they can expect of the employer, including any applicable legal obligations.

In the post on Thursday 11/29/18, we saw that an ex-assistant coach is suing the team for age discrimination. The former coach is Jim Boylan; the team is the Cleveland Cavaliers. The suit was filed in state court in Ohio by Boylan after his contract was not renewed. While it was the Head Coach who gave him the news, it was supposedly the decision of the General Manager. But it was the words conveyed that gave rise to the suit – see the post. And other things the Head Coach alluded to, which support the allegations in the suit, are also in the post. Even while acknowledging what the Head Coach said, the Cavaliers still intend to defend on the basis in the post

TAKEAWAY: Train your employees in what not to say – it can be oh so important to any liability if adverse action is taken.

The post on Friday 11/30/18 was about what to do when DOL comes knocking at your door. Good tips! Don't play ostrich when DOL comes to conduct a wage and hour audit – know what to say and do to avoid anything that might lead to (more) liability. First, it makes a difference if DOL announces itself with a letter or a literal knock on the door. The difference it makes is in the post. Also in the post is how you must respond if you get a letter. But what should you do if instead you get the knock? First, call your employment lawyer. Do and say what that person says to do and say. Other things to do and say after the knock are in the post, including explanation on why it is appropriate. .

TAKEAWAY: Ignoring DOL, or responding inappropriately or incorrectly, can be as bad as not responding. So when you hear from DOL, contact your employment lawyer and go from there.

Finally, in the post yesterday 12/1/18 we discussed whether it was really a constructive discharge in light of new case law from the governing federal appellate court (meaning you need to know this). In late September, the Third Circuit Court of Appeals announced a new approach to constructive discharge where the employee alleges coerced resignation in lieu of discipline. It came in the case of Holly Judge, a former tenured school principal. She was arrested for DUI, and though she was released that same night, she was not formally charged. Twenty days later, the Superintendent asked her about it and she admitted it. The timeline after that is in the post. That led to her suit filed under several legal theories, some of which were dismissed and others denied through summary judgment. Judge then appealed to the Third Circuit. The Court acknowledged the rebuttable presumption listed in the post, but then went on to explain how constructive discharge claims are to be reviewed. It then listed five factors – see the post – and applied them to Judge's case.

TAKEAWAY:  If an employer is to properly weigh whether to allow an employee to resign instead of adverse action being taken, then these 5 factors must be reviewed to ascertain where the employer really stands.

Tuesday
Nov202018

ICYMI: Our Social Media Posts This Week – Nov. 18-24, 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 11/18/18 we asked: Can your Handbook or Policy Manual hurt you? Then we suggested you let us review it to ensure protection and legal compliance. Ok, you probably guessed the answer is yes, so let's see why. An employee sued the former employer on 11 counts, including for wrongful termination in violation of an employment agreement. One allegation was that the manual was a contract because of what it contained (noted in the post). Of course the employer argued to the contrary. See the post for how and why the court ruled.

TAKEAWAY:  Make sure your handbooks and manuals say what you mean and mean what you say as they will be construed against you and you want to be legally safe.

The post on Monday 11/19/18 told us that turning a deaf ear to insults = $500,000 mistake. Wow! It's great when employees are trained on what constitutes discrimination (so that they do not act illegally). But what about illegal harassment? Here, Augustine sued for disability harassment because of the behavior of a supervisor. What he did is in the post. The key ws that another supervisor backed up Augustine's claims.

TAKEAWAY: Train train train – and ensure that what one person may think is funny is not deemed harassment by others.

In the post on Tuesday 11/20/18 talked about steps to take to update condominium or homeowner association Governing Documents. We suggested you let us help you. So your condo or homeowners' association Governing Documents (Declaration, Bylaws, Rules & Regulations) are either old or outdated or just don't comport with how the association operates. They need to be revised. The first step is to decide who is going to lead the revision process. Then outline the goals of the revision process. Some examples are in the post. Also, other tips are in the post; some depend on the timing of the revisions relative to turnover.

TAKEAWAY: Make sure the Governing Documents are legally compliant while being realistic and reasonable for the community. Involve association counsel in the revision process early and often.

In the post on Wednesday 11/21/18 we saw that Rosebud is to pay $160K to settle a suit. (Yes we possted about the suit long ago.) The lawsuit against the 9 Italian restaurant "chain" alleged sexual harassment and retaliation. For what? See the post. In one instance, Tina, a female server, was sexually harassed by another server, including unwelcome sexual comments and more as detailed in the post (and it's not pretty). Tina complained but nothing was done. Another employee alleged racial discrimination as in the post. The EEOC filed suit in 2013 and it finally settled in 2017, with the judge entering an order approving it just a few weeks ago. What is included in the settlement in addition to the monetary relief is in the post.

TAKEAWAY: Train your employees – all of them – on what not to do or say. Make sure they abide by the training.

In the posts on Thursday 11/22/18, here and here, we remembered Thanksgiving

TAKEAWAY::Sometimes you just have to take time out for thanks and remembrance.

The post on Friday 11/23/18 asked: can businesses discriminate against transgender workers? The right hand says one thing, the left says another. Yes, DOL told the U.S. Supreme Court that businesses can discriminate against workers based on their gender identity without violating federal law. Of course, the EEOC takes the opposite stance. This all came up in a case before the Court – details are in the post. What is interesting is that the EEOC sued on behalf of the employee and won at the Circuit Court, but only DOJ can represent the federal government before the Supreme Court. And hence the different factions and different arguments as noted in the post.

TAKEAWAY: The Court's decision in this case should decide whether or not sexual orientation and gender identity are entitled to protection from sexual discrimination – stay tuned.

Finally, in the post yesterday 11/24/18 we learned that a waitress who refused sexual advances from boss was awarded $52,000. (We noted this would play out the same here in the US.) Upon hire, Anissa thought Nick, the owner, was a good guy. But then she started to see things he did, like kissing waitresses on the cheeks and neck and groping them and more in the post. She confronted him; his response is in the post. She also asked what might happen if someone refused his advances; again, his response is in the post. When she finally told him to stop, things got worse – see the post. Another employee experienced similar treatment (as detailed in the post), but she needed money so she put up with it until she found another job.

TAKEAWAY:  Treat your employees fairly and humanely – that will probably equate to legal compliance.

Monday
Nov122018

ICYMI: Our Social Media Posts This Week – Nov. 11 - 17, 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 11/11/18 we learned that Winn-Dixie urged a court to reverse a landmark ADA website ruling. We noted that this is not yet the law in PA, but you should think ahead just in case. Where did this start? With a June 2017 ruling which found that the Winn-Dixie's website violated the rights of blind internet users and laid the groundwork for an influx of website accessibility lawsuits. Why Winn-Dixie appealed, what the arguments are on both sides, and the possible impact on you(r business) are all in the post.

TAKEAWAY: Sometimes it's best to be proactive even if not legally required; websites may be one of those times.

The first post on Monday 11/12/18 was a thank-you to veterans (and current members of the armed forces).

The next post on Monday 11/12/18 asked: Can employees bring emotional support animals to the workplace? You need to know how to analyze and answer this question. You've probably seen or heard about the "certification" that someone with an emotional support animal offers to show. Is that sufficient for that person to bring the animal to work as an accommodation under the ADA? The post goes through the analysis, including the threshold question of whether or not the animal would provide an effective means to allow the employee to perform the essential functions of the job. The analysis then goes through the rest of the process, as in the post. One of the most important things to consider relative to emotional support animals is in the post.             

TAKEAWAY: Know what type of accommodation is or is not required under the ADA relative to animals – and consult employment counsel if necessary.

In the post on Tuesday 11/13/18 we learned about the law that changes life for airline passengers, flight attendants and airlines that almost nobody knows about. Really. Recently the President signed into law an FAA bill a little before the moment when everyone else in Washington and beyond was watching a key senator's speech about Judge Brett Kavanaugh (with Congressional support as noted in the post). So what isn't in the bill? There are no restrictions on what airlines can charge for baggage or change fees. What is in it? To start, the bill prohibits airlines from "bumping" passengers who've already boarded a plane. It also requires the FAA to set minimum standards for seat width and pitch. And at least 15 other things listed in the post.

TAKEAWAY: It is good to know your rights as an airline passenger – this bill expanded them in some scenarios.

The post on Wednesday 11/14/18 was about why owners hate their homeowners or condominium associations. We suggested you not be one of those associations. In 2016, approximately 69 million Americans lived in a home within a homeowners’ or condominium association, according to the Community Associations Institute, or about 21% of the U.S. population. That's huge! Even among those who actively participate on the association's board, just 57% said they love their association. The post contains more interesting statistics that might help you whether you are someone who lives with an association or are on the board. For example, what are the top three most-hated rules? Lawn appearance and 2 others in the post.

TAKEAWAY: Associations are supposed to make life easier for residents and they do that via the Governing Documents – make sure those documents are not only enforced, but evenly enforced. Let us help you if there is an issue.

In the post on Thursday 11/15/18 we read that an employer's legitimate non-discriminatory reason for termination ended a suit. Here, an executive housekeeper at a hotel had run the department since 1977, including managing 50 people and their payroll. Her employment was terminated shortly after she returned from an approved FMLA leave. No surprise, she filed suit, alleging discrimination and retaliation on the bases of age, taking FMLA leave, and opposing discriminatory practices. The employer's response is in the post. Keep in mind the burden-shifting scheme (also in the post) when there is no direct evidence and you will see why the court ruled as it did (see the post).

TAKEAWAY: Employers should always have a legitimate, non-discriminatory reason for adverse actions; that will serve them well in case of suit.

The post on Friday 11/16/18 was again about emotional support animals in the workplace. We suggest that everyone needed to read this. So you read the post from Mon. 11/12/18. But are you sure of the distinction between support and service animals? It can make a huge difference to your pocketbook (when you are sued for making the wrong decision). Emotional support animals are usually a broader mix of animals than are service animals – the post lists just some types. Service animals are trained to perform a specific function for the owner; contrast that with emotional support animals whose purpose is as in the post. So when deciding whether or not to permit an employee to bring an emotional support animal to work, sue the analysis in the post on Mon. 11/12/18 as well as the considerations in the post.

TAKEAWAY: Even if an emotional support animal is not permitted as an accommodation, you may still be required to provide another accommodation – follow through on the interactive process.

Finally, in the post yesterday 11/17/18 we talked about what is "work" and when is it compensable? Yep, pretty important. You may not have thought about this much, or at all, but the federal Department of Labor's Wage & Hour Division sure has. It has issued 23 opinion letters so far in 2018, six of which were pretty recent. Three dealt with what is compensable time. The first area is travel time; the post looks at whether or not that is compensable and the circumstances. The opinion letter changed a long-standing policy/rule even when there is no regular place of employment – see the post. Next up is whether rest time is compensable. Again, the post analyzes the opinion letter and notes that common sense actually prevailed (for once). Finally, the post looks at compensability of participation in employer-sponsored activities like wellness programs and educational opportunities.

TAKEAWAY:  Know when to compensate your employees – it will be cheaper and easier to do it right from the start than to have to go back over it and pay possible penalties or damages.

Monday
Nov052018

ICYMI: Our Social Media Posts This Week – Nov. 4 - 10, 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 11/04/18 we saw that failure to report harassment is not always a bar to trial. Read on. A frequent defense to a discrimination or harassment case is that the employee did not report the alleged behavior. But what if the employer knew about it despite the failure to report? The post answer that question. At first the court had to determine if the alleged conduct could form a hostile working environment. Its analysis is in the post. Then it let the case move forward on the basis of one thing – in the post.

TAKEAWAY: If your managers know about or witness illegal behavior, they must take action (or refer the matter to the proper person to take action). Failure to do so may subject you to liability.

The post on Monday 11/05/18 noted that NLRB General Counsel urges reversal of Purple Communications. This has to do with email communications and yes, you care! Purple Communications allowed employees to use employer email systems for NLRA Section 7 purposes (union organizing and protected concerted activity) during nonworking time. Board Counsel advised it to abandon Purple Communications and go back to prior precedent – see the post.  Counsel argued for the reversal on several bases, including precedent and others in the post. There is one exception to Counsel's suggestion and that too is in the post.

TAKEAWAY: The open period ran 10/5/18 so the Board may rule soon – and so might the federal court before which the Purple Communications appeal is pending. Talk to your lawyer about what employees can and cannot do with your email system.

In the post on Tuesday 11/06/18 we read about an owner fighting to keep sign in front yard – and asked: how would your Association handle this? Yes, let us help with any problems. The owners painted a "sign" for a political race in their front yard – not just any sign, but one over 24 feet long. The HOA was not happy – and acted as in the post.

TAKEAWAY: Residents of planned communities – those with homeowner or condominium associations – must follow the Governing Documents whether or not they approve.

The post on Wednesday 11/07/18 told us that a "Regarded as" claim does not require an employer's subjective belief (but only the plaintiff-employee's belief - which can be shown through facts). The ADAAA finds someone eligible for protection in the "regarded as" category when the employer believes s/he is disabled. In this case, plaintiff complained of an injury and asked for less physically demanding work. After initial approval, there was a series of twists – see the post. And then what did this employer do that met the plaintiff-employee's burden of possible pretext? See the post.

TAKEAWAY: Not only should employees be trained on what (not) to say and do, the employer too must know how to ace so as not to detract from its possible defense. Use employment law counsel if needed.

In the post on Thursday 11/8/18 we learned that the EEOC sued for improper medical inquiry under the ADA. We suggest you Know what you can and cannot say or ask. Deborah was hired as an office manager in mid-2016. All employees had to give the company a copy of all medical prescriptions. For much of 2017, Deborah took prescribed meds at night but did not provide a copy of the prescription to the employer. Then she was required to undergo a random drug test. The post details what Deborah did and what the company did. The EEOC filed suit for the reason in the post.

TAKEAWAY: Make sure there is a valid reason for all medically-related action or requests. Steer clear of liability under the ADA and GINA.

The post on Friday 11/9/18 suggested that you develop a Handbook specific to your business - don’t just cut and paste a form you found. Among other things, handbooks help set expectations, provide guidance on how to handle conflicts, and, when drafted and implemented correctly, can protect your business from legal liability. But a Handbook that you found on the Internet, or "borrowed" from another business, may be bad for you – and might even set you up for legal liability. Make sure your Handbook includes certain sections, such as Sexual Harassment Policy, Procedures, and Training and others listed in the post. And make sure the entire Handbook is legally valid.

TAKEAWAY: Make sure your Handbook fits your needs and is legally compliant - let employment law counsel help you prepare or revise your Handbook.

Finally, in the post yesterday 11/10/18 we asked: Sexual horseplay or sexual discrimination? The half-million dollar question. Because a federal court recently upheld a verdict against a small Chicago retailer after it concluded that a male employee was the victim of sex discrimination. The employer admitted that the behavior complained of occurred, but its defense is in the post – and interesting.  What behavior, you ask? Much of it is listed in the post and is not nice. And what, if any, role management had – also in the post. See the post for what happened after he complained. He quit and sued. The company's defense was unique but based on the statute itself – see the post.

TAKEAWAY: Know what's going on in your workplace and make sure managers stay within legal bounds.

Monday
Oct292018

ICYMI: Our Social Media Posts This Week – Oct. 28 - Nov. 3, 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 10/28/18 we learned about the new FCRA rule/form for background checks for employment. It came down from the CFPB, the agency that administers and oversees the FCRA. The new form was effective 9/21/18 so make sure you have it. The post rmeinds employers of the timing of steps relative to a background check for employment purposes. The post also has a link to the new form. Use it.

TAKEAWAY:  If you are going to be in business, you need to do it legally – so ensure you follow procedures and use required forms and notices.

The post on Monday 10/29/18 asked if during bankruptcy: Can the Association’s lien for unpaid assessments be stripped off? I suggested you contact me for help when a bankruptcy occurs. The case in the post came out of New Jersey so under the same facts, a Pennsylvania court might not decide it the same way, but often NJ and PA courts see eye to eye. So what happened? The Association was owed $9,000 for filed liens and another $4,700 at the time the owner filed for bankruptcy protection. Monthly dues were $250. The unit had no equity over the first mortgage. The post explains what the court decided and why.

TAKEAWAY: Make sure you protect your Association's interests and act as soon as it is worth it to ensure that more money is not thrown away on the unit in arrears. Get help from an attorney familiar with both community law and bankruptcy law.

In the post on Tuesday 10/30/18 we read about a $3M jury award for gender discrimination. We suggested you make sure you have the facts to back up your defense! This case occurred in federal court in Pittsburgh, so pay attention. A female scientist who worked at PPG for 23 years and then was fired sued, alleging gender discrimination. The facts upon which she made her allegation are in the post, including comments made by her supervisor. PPG disagreed; its asserted defense is in the post.

TAKEAWAY: Whichever side of a case you are on, make sure you have the facts to back up your assertions – it could get quite expensive otherwise.

The post on Wednesday 10/31/18 was a holiday reminder for a Happy Halloween and a reminder: Don't let holiday antics or costumes interfere with your business or policies. There are ways that employees can have fun but still follow policies for attire and behavior.

TAKEAWAY: You have policies in place and expect employees to abide by them – holidays are no exception. Enforce evenly.

The post on Thursday 11/1/18 was about yet another reason to properly classify employees and independent contractors - tax implications to you and them! You already know that proper classification is imperative, but the 2017 Tax Act provides even more impetus. There is a new Internal Revenue Code section providing a 20% tax deduction for certain independent contractors – see the post for details. That might prove to be so beneficial that someone wants to move from being an employee to take contractor status – but the IRS will require proof as noted in the post. The old test used by the IRS for contractor status was replaced in 2018 with a much shorter, 3- factor test; see the post. If someone is classified as a contractor but determined to be an employee, it can be quite expensive for the employer due to taxes and other items that must be (re)paid.  

TAKEAWAY: Make sure to properly classify all workers – don't just go along with their wishes in light of the new tax provision. It will sting you as badly, or worse, than it will sting them, so stay on this side of legal.

The post on Friday 11/2/18 told us about 6 new opinion letters from DOL on the FMLA and FLSA - be aware! They came from the Wage and Hour Division and follow earlier ones issued in April 2018. Two of the letters have to do with the FMLA; one deals with whether employees who request time off to donate an organ are eligible for FMLA leave even if in good health prior to the donation. The second FMLA opinion letter is described in the post. There were also 4 letters dealing with the FLSA. One was about the application of the commissioned sales employee overtime exemption; the 3 others are described in the post.

TAKEAWAY: You need to know not only the law, but any exceptions to it and interpretations by any agency overseeing enforcement of the law. Consult a lawyer for assistance when needed.

Finally, in the post yesterday 11/3/18 we learned that DOL ruled that time spent on wellness activities is not compensable. Employers can breathe a sigh of relief! You know all of those things that you've asked employees to do to keep insurance premiums down? Well, the question was whether or not you had to pay for the time they spent on all of those activities (since they did benefit you). DOL's Wage and Hour Division recently issued an opinion letter on that question (and others noted in our post 11/2/18). DOL's opinion letter was specific as to why the time spent on those wellness activities is not compensable – see the post – and examples of the types of wellness activities it covers.

TAKEAWAY: when employees act in the interest of their employer, they are due compensation – but wellness activities may be an exception if they meet DOL's guidelines. Consult legal counsel to make sure you know whether or not to pay for that time.

Tuesday
Oct232018

ICYMI: Our Social Media Posts This Week – Oct. 21-27, 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 10/21/18 we saw that an Hawaii cable company's 'inflexible' leave policy violated the ADA, EEOC says. The complaint alleges that Spectrum denied leave as an accommodation to some of its customer service representatives at its headquarters. The post talks about the interplay between the FMLA and ADA. Whether or not Spectrum fulfilled its obligations in the interactive accommodation process is also in the post.

TAKEAWAY:  Make sure any leave policy is legally compliant. Just do it.

The post on Monday 10/22/18 told us that a legal marijuana patient wins 'very significant case' against employer who rescinded job offer. We also noted that PA employers should take heed! Federal law still makes marijuana use illegal. But some states, including PA, have legalized at lease medicinal marijuana. The question is whether employers are within their rights to take adverse action against a medical marijuana user. That was the issue in the post when an applicant advised of her legal medicinal use, tested positive, and had adverse action taken. And the ruling, as in the post, may be a harbinger of things to come. Stay tuned.

TAKEAWAY: Know what you are required to do and what you are allowed to do when it comes to an employee's legal medical marijuana use.

In the post on Tuesday 10/23/18 we talked about how Associations can protect against short-term rentals (think Airbnb and others) and the implications/issues. Those issues are usually whether the rental violates Association restrictions by operating as a business and the other one noted in the post. The Association's Governing Documents can ban this type of rental. The reason it's important to do that are in the post. One big reason to ban that type of rental is they are permitted, it could cause the Association’s amenities, such as pools and club houses, to change from ones reserved exclusively for Association member use into ones considered a “public accommodation” under the ADA. The post explains why this is problematic (and expensive).

TAKEAWAY: Protect your Association – make sure the Governing Documents legally ban or limit short-term rentals. Have a community law attorney check for compliance.

The post on Wednesday 10/24/18 was about subtle harassment, code words and implicit bias: proving everyday discrimination in court. Usually there is no smoking gun in a discrimination case, so the subtleties matter. And proving them in court is difficult, but as the post explains, it can happen.

TAKEAWAY: The best way to help your company defend against discrimination suits is to minimize implicit bias by training employees, especially managers.

In the post on Thursday 10/25/18 we saw that a Bath & Body Works manager humiliated employee who requested accommodation. So wrong on many fronts. The employee had vision problems related to a medical condition and asked for a larger monitor the cash register. The employer's response is in the post (and includes what was done to humiliate her in front of co-workers). The employee followed policy, and the result was … in the post.

TAKEAWAY: Don't be an ostrich – honestly and fairly engage in the interactive accommodation process. It will help employee morale and keep you on the right side of legal.

The post on Friday 10/26/18 told us that an applicant who rejected a job offer was entitled to trial on a gender discrimination claim. So what happened? The plaintiff owned and managed a spa for eight years before selling it in 2015. In 2016, she applied to be spa manager at a luxury resort. She was offered a positon and salary negotiators ensured. The post lists some of those steps. The post also talks about who was hired and the eventual pay. The plaintiff sued, resting much of her case on a comment made by the manager (which is noted in the post) and the implications she thought arose from his conduct (also as noted in the post). How and why the court ruled in her favor at this stage is detailed in the post.

TAKEAWAY: Pay based on the position, not the gender of the applicant or employee. And make sure you can support the decision as to what to pay any employee. Otherwise you could be behind the applicant who can refuse an offer and still sue.

Finally, in the post yesterday 10/27/18 we suggested that you don't get confused by "ADA leave". We know that the ADA and FMLA should often be looked at together relative to employees who meet the thresholds. But unlike FMLA leave, there is no such thing as ADA leave. But the ADA may still require accommodation. See the post for an example of how that happened.

TAKEAWAY: Know how and when leave under the FMLA and ADA might be required – consult legal counsel to ensure compliance.