ICYMI: Our Social Media Posts This Week – Feb. 17-23, 2019

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 2/17/19 we looked at military leave and health benefits under USERRA (and noted that as more veterans are in the workforce, you need to know this). You should know that USERRA requires an employer to restore an employee to his or her previous position of employment upon returning from military duty. But do you know what happens when the person is away on military leave? For the most part, whatever is offered to those on other types of non-military leave. As for health / medical benefits, there are some things to know. Coverage is talked about in the post, as is how to elect it. Likewise, the post reviews whether the employer can make the employee pay for premiums during military leave. Finally, the post mentions situations where the employee might want to discontinue coverage.

TAKEAWAY: As with other applicable laws, know what USERRA says are the rights and responsibilities of both the employee and employer – before you need to apply it.

The post on Monday 2/18/19 told us that reporting to work impaired, failing drug test, and failing to request accommodation doom employees’ ADA discrimination lawsuits. Yep, seems about right ... Here, a federal appellate court was faced with several ADA-related claims after an employee had reported to work under the influence of drugs. The Court did the standard burden-shifting analysis on the discrimination claim and found that the plaintiff had a disability and was discharged. It then looked at the employer's reason for termination (see the post) and whether the employee rebutted that reason (again in the post). The Court next analyzed the failure to accommodate and retaliation claims; see the post. Ironically, and perhaps because of the analysis, the next day a different federal appellate court came to the same decision on similar facts (that are noted in the post.

TAKEAWAY: Know what is required of each party under the ADA and how it will play out in a court of law. Consult employment counsel if necessary.

In the post on Tuesday 2/19/19 we asked: Can neighbor dictate improvements to your home if you live in a condo or homeowners' association? The answer is my favorite: it depends. On what? The Governing Documents (Declaration, Bylaws, Rules/Regulations). There might be provisions such as those in the post. There might be an architectural of other committee or groups that has some say. There might be applicable law (like in the post).

TAKEAWAY: know what you can and cannot do – check the Governing Documents before you make any change in your home if you are in a planned community.

The post on Wednesday 2/20/19 noted that the Bird Box method won't work for HR (and suggested that if this is you or your company, you contact me for help). Bird Box as in the Netflix movie. Have you seen it? It has generated many mems on social media, including the one in the first paragraph of the post. Sort of an updated version of sticking your head in the sand. And the parallel to the workplace: HR cannot stick its head in the sand to things that are happening (or should happen and are not). Some examples of things that happen that shouldn't where HR needs to step in: people telling dirty jokes at the water cooler and laughing along; receiving, or even forwarding, off-color or racially-insensitive jokes in emails from co-workers; and more things that could be considered harassment as listed in the post. What about someone struggling to do some or all if her job and you can observe a disability or have been told about it? Have you then taken any of the actions in the post that might qualify as failure to engage in the interactive accommodation process?  More head in the sand things: overlooking wage and hour violations, dispensing with corrective action for poor job performance, and more in the post.

TAKEAWAY: Don't let your company, whether HR or anyone else, use the Bird Box method – it could lead to liability for you.

In the post on Thursday 2/21/19 we read about Hilton employees being fired after being accused of racism. We commented that it is nice to see quick and proper action! Employees at the DoubleTree by Hilton in Portland allegedly evicted a black guest who was speaking on a mobile phone in the lobby.  Allegedly a Caucasian security guard asked for the guest's room number. What happened after that is in the post. So the guest accused the hotel as noted in the post. As well he should have.

TAKEAWAY: Train your employees to do their jobs color-blind – and blind when it comes to any other protected characteristic too.

The post on Friday 2/22/19 was another about Hilton Hotels and told us about a dishwasher awarded $21 million after boss made her work on Sundays. Not a good week (in this blog) for Hilton. Marie worked as a dishwasher at the Conrad Miami. She is a member of the Soldiers of Christ Church which is a Catholic missionary group that helps the poor. She told the hotel from the start that she could not work Sundays due to her religious beliefs. They scheduled her on a Sunday at one point, but it played out as in the post. Six years later, she was again scheduled to work on a Sunday. The kitchen manager put up with Marie's shift swaps for a bit, then Marie was fired (the alleged basis is in the post). A jury came back with a $21.5 million award (but the post explains a damages cap), along with $35,000 in back wages and $500,000 emotional and mental distress. Hilton said it will appeal (but hasn't it already lost in the court of public opinion?).  

TAKEAWAY: Make sure the facts support you, and even consult an employment law if necessary, before taking any adverse action – no matter who the employee is; it's the best way to operate.

Finally, in the post yesterday 2/23/19 we saw that Ford Motor Company is sued by employee who faced demands for sex, photos of her naked. Yes and then we commented on how sad it is that this type of thing still goes on today. DeAnna, an African-American woman, started as a production supervisor in June 2018. She alleges in her suit that she was on the receiving end of unwanted racial and sexist comments and conduct of a sexual nature. Like what? She alleges that her supervisor, continually asked to see her breasts (the wording is in the post), would call her a name (in the post) and explain it in sexual terms (see the post), and asked DeAnna to send him naked pictures of herself. She tried to ignore him, but then he did this (in the post). The suit alleges that this is not the supervisor's first rodeo with this type of thing. Ford's response is in the post – if true, it took some appropriate action. But DeAnna disputes that Ford is innocent, in that management knew – and approved as explained in the post. And it gets worse. See the post. Ick.  

TAKEAWAY: Control your employees – even those who supervise other employees – it could be your head they are helping to take off or your pocketbook they are helping to empty.


ICYMI: Our Social Media Posts This Week – Feb. 10-16, 2019

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 2/10/19 we read about the 7 best practices for ADA compliance. And what are they? First, write clear employee handbook policies. So not only should you have a handbook, but make it clear and able to be understood by all employees. What goes along with this policy is in the post. Next: don't skimp on training for supervisors and managers. That is just like slitting your throat. The people on the ground who enforce the policy (that you've no so carefully crafted) need to know how to enforce it. An example is in the post. The other tips are also in the post.

TAKEAWAY: You know you have to comply with the ADA – so why not make it easier on yourself and follow tried and true practices (and tips).

The post on Monday 2/11/19 reminded us that firing an employee over a compensation dispute may be costly. (We also noted that what's in the post would probably play out the same way under PA law.) You know about PA's strong at-will stance, right? You know what that means, right? And you know the exceptions, right? It's the last thing that is the subject of the post. Josh was an at-will employee who was fired. He sued, alleging wrongful termination (the basis for that is in the post). The court would not dismiss the suit. Also, another tip to remember when a wage dispute occurs is in the post.

TAKEAWAY: Don't think that just because the employment at-will relationship is over, all dealings with the employee are also concluded – wage issues might crop up, so be ready.

In the post on Tuesday 2/12/19 we learned that removal of voluntary OT could form the basis of a Title VII suit. We suggested that you watch what your #supervisors do – they may set up your business for legal liability! While the case in the post is not binding on us here in PA, its reasoning makes sense, so pay attention. Tamika was hired in 2002 and alleged that her supervisor was sexually harassing her starring the following year. (What he did/said is in the post.) Tamika reported it, but the company did not follow its own policy. And when the alleged harassing supervisor found out, he removed Tamika's ability to volunteer for OT. She reported that. Other employees were also in contact (what they told HR is in the post). The company then investigated and its findings and actions are noted in the post. More happened, Tamika complained again, with the same result. Then Tamika sued. The court's reasoning in finding that the denial of voluntary OT was an adverse action is in the post, including one action that probably sunk the employer's ship.

TAKEAWAY: Make sure your managers and supervisors know what they can and cannot do and say – since you will be held liable if they are on the wrong side of legal.

The post on Wednesday 2/13/19 told us why Association dues can spell “Bad News” for security clearance holders. And why is it, you might ask? Let's walk through it. Say you live in a community association (condo or homeowners) and fail to pay your dues. If there is no basis, that might affect your security clearance (as noted in the post). Other examples of violations that might also affect your security clearance are in the post. One final way a failure to pay your dues might come back to haunt or adversely affect your security clearance is near the end of the post and worth thinking about.

TAKEAWAY: It's not just failing to pay something you are supposed to pay (for services that benefit you), but it can have a much more far-reaching effect, including to your security clearance. Just pay the dues.

In the posts on Thursday 2/14/19, here, and here, we wished you a Happy Valentine's Day! We also suggested you not let the food or feelings interfere with the work to be done. What does that mean? It might be a day of fun, frivolity and food, but the work still needs to get done, professionally.

TAKEAWAY: Valentine's Day can bring to the forefront office romances – know what your policies are and enforce them.

The post on Friday 2/15/19 told us the ADA does not obligate an employer's on-the-spot accommodation of the employee's choosing. Huh? Ok, you know that under the ADA, both parties have an obligation to engage in the interactive accommodation process. But there are limits. Here, Melissa was a sorter and injured her back while unloading heavy packages from a UPS truck (yes, UPS in the news again). She went out on worker's comp leave and then a leave of absence. Upon return, she had doctors' notes as in the post. UPS started the interactive process and requested documentation from her but kept her on leave pending that. What happened after that is in the post. Melissa then sued for failure to accommodate and disability discrimination. Why the trial and appellate courts ruled against Melissa is in the post.

TAKEAWAY: The ADA accommodation process is interactive, which means that both the employer and employee must participate. If one stops, the other has no duty to proceed (and may have either a claim or a defense).

Finally, in the post yesterday 2/16/19 we read about RIFs, WARN, OWBPA, and disparate impact – an alphabet soup for a future downturn. We suggested that you know what the acronyms mean (and if they might affect you). Things to think about when the economy is good, to protect against an (eventual) downturn, include performance evaluations (the reasoning is in the post), the WARN Act (again, the reasoning is in the post), and 2 more things listed in the post.

TAKEAWAY: Have your plan for a downturn in place before you need it – and run it by an employment lawyer to make sure it's all legal.


ICYMI: Our Social Media Posts This Week – Feb. 3 - 9, 2019

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 2/3/19 we learned about having no hippopotamus for Christmas - employee requests for service animal accommodations. OK, the 'service hippo" is a bit extreme, but you still need to know how to respond if an employee asks to bring a service animal to the workplace, especially a non-traditional animal. The first step is defining "service animal". See the post for that. The next step is determining what is reasonable in each set of circumstances. The post uses one industry as an example – with an outcome that might surprise you.

TAKEAWAY: A reasonable accommodation request under the ADA starts the interactive process – that does not change when the request is for a service animal. Know all parties' rights and responsibilities and involve an employment lawyer to keep you on the right side of legal.

The post on Monday 2/4/19 told us that an employer’s litigation hold is not unlawful, NLRB advice says to ALL employers. But a directive for employees not to discuss a case which involved wage issues WAS unlawful. Beware how you fulfill your legal duty of preservation. So where does this all come from? Remember that the NLRB, which pertains to ALL workplaces when it comes to protected activities, was looking closely at handbooks and policy manuals. As part of that, in late December 2018 it released an Advice memorandum (from October 2018) evaluating an employer's directive that employees preserve all communications relative to a wage and hour class action matter. Exactly what the employer said to its employees is in the post. The employer also did something else noted in the post. One employee filed a charge alleging a violation of his Section 7 rights. The memo says that the first directive from the employer was unlawful; the reasoning is in the post. On the contrary, the litigation hold was not unlawful for the reasons in the post.

TAKEAWAY: Know what might be considered to interfere with protected rights, even in a non-Union workplace. Check with labor & employment counsel if you're not sure.

In the post on Tuesday 2/5/19 we asked: What if any are the requirements to serve on your homeowners or condo Association Board? Can a tenant be a Board member? What about an owner who is delinquent in paying assessments/dues? The answer is "it depends". On what the Association's Governing Documents say. One type of example is in the post.

TAKEAWAY: Know who is eligible to serve on the Board of your Association – contact a community association attorney if you need assistance with determining eligibility or amending Governing Documents.

The post on Wednesday 2/6/19 was a reminder about harassment in the workplace: document details and track complaints. In real estate, it's location location location. In the workplace, it's document document document. Whether hard or electronic, do it. Document EVERYTHING. An example of how this all plays out is in the post. Bridgette was one of the few females working on a service truck in her company (and the industry). The company policy promised confidentiality to the extent possible. Other handbook promises are in the post. Bridgette reported harassment and provided the details requested by management. What happened next is in the post. When Bridgette asked to take it further, the company gave instructions as to how to proceed; Bridgette didn't follow up. After she was discharged, she sued. The post tells how the court ruled and why.

TAKEAWAY: If you have in place a complaint procedure, make sure it is followed (by employees and management) to the letter. If there isn't one, put one in place (and follow it). Help yourself while there is time.

In the post on Thursday 2/7/19 we saw a Court grants judgment for employer where decision-maker was unaware of Plaintiff’s medical history. Often an employer is loath to act against an employee who has medical issues, but if done property, it is perfectly legal. In the post, the plaintiff was a team leader in the IT department. Colleagues knew about some of his medical issues (as outlined in the post). When a third-party found performance issues, the plaintiff was discharged. He sued for disability discrimination. How and why the court ruled are in the post.

TAKEAWAY: Any adverse decisions should always be based on fact, not a protected characteristic or what someone else says/reports.

The post on Friday 2/8/19 noted that independent contractor misclassification can result in big fines. Remember, labels aren't everything. A rose by any other name … Pick your analogy, you can't game the system. The game cost the companies in the post $3.2M.  The companies were all owned by the same person. He had drivers be hired as contractors by one of the companies and then assigned them to drive for the other 2 companies. How it worked is in the post. And why the settlement included reclassifying them as employees is also in the post.  

TAKEAWAY: There are ways to properly and legally establish an independent contractor relationship – discuss it with your employment counsel to make sure it is done right.

Finally, in the post yesterday 2/9/19 we saw that an FMLA claim was not barred by failure to tell proper manager about absence. So what happened? The plaintiff was hired as a supervisor, working under the director. She started treating for eye problems that related to diabetes. Eventually she received a severe diagnosis (see the post). That eventually led to her requesting, and the company approving, intermittent FMLA leave. When she needed to take it one day, she did not follow the required chain of command. She was fired. She sued for an FMLA violation. Why the court denied the employer's motion for summary judgment is in the post.   

TAKEAWAY: As in our Takeaway relative to the post on Wednesday, if there is a policy, make sure it is followed to the "T" by employees and management; if it isn't, it won't provide the support it is meant to.


ICYMI: Our Social Media Posts This Week – Jan. 27 - Feb. 2, 2019

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 1/27/19 we learned of a BIG settlement in failure to accommodate disability case. Six digits to the left of the decimal. A subsidiary of M&T bank will pay $700,000 (and other things) to settle the case with the EEOC. It all stems from the employer's policy of putting employees with disabilities or impairments on involuntary leave until receipt of a doctor's clearance for a full (no limit) return. Many employees with disabilities requested accommodations; how they were affected is in the post. Also, but one specific example is in the post. The court entered a consent decree that includes the $700,000 payment plus the other items listed in the post.

TAKEAWAY: Yes, you can have policies and evenly enforce them. No, you cannot enforce them even in the face of a law that tells you otherwise.

The post on Monday 1/28/19 was about a male Disney worker who claims his female boss harassed him. Yes, it does happen. What kind of harassment? Bullying him about his age, bragging about sleeping with married men in the office, and more in the post. Anthony says that the top execs and managers in his division were female, an anomaly when compared to the division's entire workforce. Specifically, Anthony alleges that his former boss called him a 'stuffy old fart", moved him office to a space without a window, and more (so much more!) noted in the post. To make it worse, he alleges that he was discharged after making a complaint to HR. Disney's statement denied the claims.

TAKEAWAY: Female on male harassment/discrimination is rare, but it does happen. Investigate and treat it just like any other matter – fully, honestly, and completely – and take action as warranted. Consult an employment lawyer if needed.

In the post on Tuesday 1/29/19 we read about a settlement in a retaliation case. Apparently tis the season … to settle. Here, the EEOC settled with a credit union, on behalf of a former bank manager, for $110,000. The suit alleged that it field Connie because she opposed, and assisted another in opposing, a racially offensive video for a training session. What was in the video? It's despicable and in the post. Of course, so is the action of the credit union (as in the post).

TAKEAWAY: Before taking adverse action against an employee, especially one in a protected class, consult an employment lawyer – it will save you heartache and money in the short- and long run.

The post on Wednesday 1/30/19 warned to make sure your Association can deal with this type of holiday decoration situation. Your Bylaws or Rules/Regulations probably already limit how early (before a holiday) decorations can be put up and how long after the holiday they may remain up. Right? (If not, they should; contact Austin Law firm if you need help with this.) What would you do if a situation like in the post happens? What if it conforms to the Bylaws/Rules & Regs? Uh-oh.

TAKEAWAY: Cover your bases to the extent you can, but know that not everything can be dealt with beforehand. That's Association life.

In the post on Thursday 1/31/19 we saw that a former Marriott exec says he was forced to dance for colleagues. Daryl, an African-American former sales executive, was hired in February 2017 and sold timeshares. He had over 20 years' experience and was a good performer. Marriott made promises as to what would happen after training (see the post), but instead of keeping those promises, this happened (see the post). Further, during sales meetings, his director of sales told him to dance when music was played, often the type of music in the post. Oh, that's not all. There is more in the post, including how his boss tried to justify it all. When HR wouldn’t tell him the results of the investigation he demanded, he quit and sued.

TAKEAWAY: Know what your employees are doing and saying – and when there is a complaint, investigate and take appropriate action; don't be an ostrich!

The post on Friday 2/1/19 told us the Mariners were hit with a lawsuit alleging race and gender discrimination. We noted that this might be fun to follow ... Well we already know that professional sports are indeed a world unto themselves. But in that world, discrimination apparently exists. Lorena became employed with the Seattle Mariners baseball organization in November 2017 as Director of High Performance; in that role, she reported to the GM. Her complaint alleges that after she was hired, the GM and other execs reduced her duties and authority, including those things listed in the post. One big thing that fed into the gender discrimination allegation? See the post. The allegations also include derogatory comments toward the Latino community and females, including calling her a "cocky Latina" and saying the thing in the post. After she was discharged (without notice) in October 2018, she sued.

TAKEAWAY: At-will employees can indeed be fired for no reason and with no notice – but make sure they don’t fall into a protected group that might lead to charges of discrimination. Consult an employment lawyer to be sure.

Finally, in the post yesterday 2/2/19, we affirmed that leaving work early due to fear of rush hour traffic is not a reasonable accommodation. Ok, stop laughing. When Heather was pregnant, she had a panic attack while driving home in rush hour. Her supervisor changed her work hours until after she gave birth. And what else did the employer do to help her for the entire next year? See the post. Then a new supervisor came into the picture and changed her schedule. She asked for an accommodation so she would not have to drive in rush hour. The employer denied it on the basis listed in the post. Heather quit – and sued. The case went up to the federal appeals court before the decision in the post came out.

TAKEAWAY: It's great to do more for an employee than the law requires, but beware taking it away as that may then come back to bite you – hard.


ICYMI: Our Social Media Posts This Week – Jan. 20 - 26, 2019

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 1/20/19 we learned 13 ways to improve written warnings and manage employees better. Yep. Written warnings – those things you use to record when something needs to change, how it should change, and when the employee was advised of it. Written warnings should be a guidepost for the employee and a record for the employer. So how to make them better for both? First, be specific about the offending conduct. The rationale and use of the details are in the post.  Next, provide the real reason for the warning (and not what sounds better). As noted in the post, do this to protect the company in case of any future litigation. Third, connect the employee's conduct to a rule or policy. Again, this helps with uniform enforcement and provides a defense in case of potential future litigation. Ten more tips are in the post – read and use them.

TAKEAWAY: Written warnings are not just busy work – they can make or break defense of a lawsuit, so help yourself before there is a suit by improving the warnings.

The post on Monday 1/21/19 told us about a settlement in a racial discrimination suit against a former car wash owner. The post follows and updates our earlier post. If you recall, the managers were accused of discriminating against Hispanic employees and making them work at the managers' homes for no extra pay. The settlement involves payment of $300,000 plus the other things in the post. And will former employees share in the largesse? See the post. To recap, some of the allegations were that employees had to drink unfiltered water, use a unisex bathroom that had a camera, and more in the post. The former owner entered into a settlement prior to this one (perhaps because he wants his pending medical cannabis dispensary license to be approved?).

TAKEAWAY: Don't treat one group of employees worse than any other group – it will come out and you will be worse off than had you just played the game legally. Consult employment law counsel if you are not sure how to proceed.

In the post on Tuesday 1/22/19 we suggested that you know who is responsible to repair what damage to a unit within a homeowner or condo association - and what happens if insurance is involved. The first step is always to check the Governing Documents (Declaration, Bylaws, Rules and Regulations). Knowing what applicable state law says is also helpful. And then look at the insurance policy to see what is covered. How that might play out is walked through in the post. And, if necessary, consult an attorney if more than one insurance policy is involved to ensure both pay what they should be paying. The post gives some examples.

TAKEAWAY: Damage is both emotionally and financially draining – make it easier all around by knowing where responsibility lies for what items.

The post on Wednesday 1/23/19 told us that UPS is to shell out $4.9 million to settle a religious discrimination lawsuit. What was the suit about, you ask? Allegedly UPS excluded employees from certain religious groups, including Muslims and Sikhs, from promotion opportunities and based it on an appearance policy. The post details more religious groups who were allegedly excluded. The post also mentions the appearance policy that was supposedly violated by the subject employees – but of course UPS forgot that religious beliefs can trump a company's rule. How it did that, and what it did instead, are in the post. The suit was filed in mid-2015 and recently settled.

TAKEAWAY: In case you didn't get it the first time we said it, we will say it again: treat all employees the same – unless there is a valid legal reason for different treatment. And then double-check with employment law counsel to keep you on the right foot.

In the post on Thursday 1/24/19 we saw that the NLRB General Counsel upholds workplace civility rules. And yes, this applies to non-union workplaces too, so you care.  Unsure what "workplace civility" means? The NLRB was applying it to rules enforcing a positive workplace even though it got knocked down by several court decisions. But now things have changed – and the General Counsel issued a memo on the change. The post has more detail on the background and the rule at issue. Before the change, the rule would have been found in violation of the NLRA; now, not so. Good news for employers. See the post for an outline of the type of wording that now passes muster.

TAKEAWAY: To ensure your policies do not run afoul of the National Labor Relations Act, even in a non-union workplace, consult with labor and employment law counsel.

The post on Friday 1/25/19 told us that a woman claims in a lawsuit that former boss forced her to adopt Scientology. Was this legal? Julie worked as a receptionist at a physical and occupational therapy business. She filed suit alleging that Jeff, her boss, forced her to adopt Scientology or forego a raise and promotion. Examples of what happened are in the post. She did not adopt Scientology. What she says happened next is in the post. So far there is no response to the suit by her former boss.

TAKEAWAY: Managers can believe in whatever religion they want, but they cannot force their beliefs on others if it violates the others' religious freedom and beliefs. Train your employees.

Finally, in the post yesterday 1/26/19, we learned that Jackson Energy agreed to payout for injured Meridian dispatcher in EEOC disability discrimination case. Apparently both the first and the second times are the charm. The energy company agreed to its second settlement with the EEOC in 2018. So what was this one about? Jackson fired Penny in November 2015. At that time she was recovering from surgery and needed PT. More of the background is in the post. To return to work, Peggy asked for what she thought was a reasonable accommodation, but the company refused. What did it say was the undue hardship? See the post.  

TAKEAWAY: Wow, let's say it yet again – treat all employees the same, and take seriously any request for accommodation, especially when it's an easy one to grant/approve. Talk to your employment law counsel before s/he becomes your trial counsel.


ICYMI: Our Social Media Posts This Week – Jan. 13-19, 2019

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 1/13/19 we continued the post-holiday theme with ... Moving up the naughty list: following your policy can provide a complete defense. Do you have a (progressive) discipline policy? Do you follow it uniformly? These are important questions. In the case in the post, Todd, over 40 with OCD and bipolar, worked at a hospital with a progressive discipline policy. He quickly moved through the steps; after a certain violation (listed in the post), he was discharged. Todd sued under the ADEA and ADA. The hospital moved for summary judgment. The federal appellate court's rationale is in the post.

TAKEAWAY: Have a discipline policy and use it uniformly.

The post on Monday 1/14/19 was about qualification standards vs essential functions: one can lead to suit for alleged violations. Know the law. Yes this all goes back to those pesky (not really) job descriptions. You must know the difference between an essential function of the job (which should be in the job description) and a qualification standard used for an ADA accommodation. The post explains the difference according to the EEOC. For examples of each, including a court decision, also see the post.

TAKEAWAY: Make sure your job descriptions and accommodation efforts are both based in reality – consult employment law counsel before you are in court.

In the post on Tuesday 1/15/19 we thought: His, hers, other. SCOTUS will hopefully revisit this and provide a final decision. This plays out every day all around the country: someone who was born one gender and transitioned or is in the process of transitioning but identifies as the new gender, uses the restroom of the new gender. Someone else gets upset. Suit is brought. The background in the case at issue is in the post. The Third Circuit Court of Appeals, which governs PA. upheld the policy enacted by the schools (which is detailed in the post). Now the case is at the Supreme Court. Soon we may all know if Title VII (and Title IX) protect transgender persons. The question is whether the word "sex" in the statutes is expansive enough to include gender identity, something that was not at all thought about at the time the statutes were enacted. More background is in the post.

TAKEAWAY: Not knowing how SCOTUS will rule, the best way to act relative to transgender employees is just to treat them like every other employee.

The post on Wednesday 1/16/19 asked: can an Association dictate the type of replacement window? When you live in a house that lies within a planned community, with a homeowners' or condominium association, the answer is "it depends". The first thing to do is review your Governing Documents – the Declaration, Bylaws and Rules/Regulations. See the post. Those documents might answer your question. If not, consult a community association lawyer (like Austin Law Firm).

TAKEAWAY: Before you buy into a planned community, know what you will or will not be able to do as concerns your future home – you will be held to it after purchase (and can hold other owners to the same things).

In the post on Thursday 1/17/19 we saw that an employer must reinstate former employee who shared staffing concerns with media. Note that this might well go beyond the health care industry, so be careful even in your non-union workplace. Yes, this is a decision from the NLRB. Yes, you are a non-union workplace. But yes, you need to pay attention because some portions of the Act apply to ALL businesses, union or non-union. See the post for statutory reference. So what happened? Karen-Jo was a hospital activities coordinator. She contacted a newspaper as to coworker concerns about the hospital's staffing. When it was printed, she was fired. She filed a charge with the NLRB. After a 2-day trial, the ALJ issued a decision. His rationale is in the post and can easily be extended beyond the health-care industry

TAKEAWAY: We will say it again: even non-union businesses need to heed the protections given to employees in some portions of the NLRA – contact employment law counsel if you think something in your business might be implicated.

The post on Friday 1/18/19 was about how to fire someone fairly: Document your decision. In real estate, it is location location location. To employment law attorneys, document document document. As noted in the post, documentary support can win a case for you. Here, Detra, a teacher, took FMLA leave for several conditions. The first time, she completed an FMLA form and it was approved. The rest of the background is in the post. When an issue relative to the approved FMLA leave arose, Detra complained and … see the post. Then, after what happened as in the post, Detra was discharged. She sued. How and why the court ruled are in the post.

TAKEAWAY: An employee against whom adverse action is taken may be considering filing an administrative charge or suing, or may actually do it; you need to be prepared to support your decision as being legal.

Finally, in the post yesterday 1/19/19, we saw an employer was to pay $80K to settle an EEOC sexual harassment case. We also noted that sadly, quid pro quo harassment lives on. Here we saw that Nick, a former manager at a Subway location, sent text messages to two 17-year-old female job applicants. What the messages said is in the post. The EEOC ended up filing suit. The post also lists the terms of the settlement.

TAKEAWAY: Know what is legal and train your employees – don't wait until you are adefendant in a suit.


ICYMI: Our Social Media Posts This Week – Jan. 6 - 12, 2019

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 1/6/19 we noted a corporate mole is bound by preliminary injunction (and suggested you k Know who is accessing and using your trade secrets). Employees leave jobs all the time, right? And when they leave, they leave behind someone on the inside to talk about the employee's new job and new employer, right? Nope! But that/s what happened in the post. And to make matters worse, the former employees all had non-compete agreements, but the mole didn't. So how or why was he stopped? That's in the post.

TAKEAWAY: we'll say it again: know who is accessing and using your confidential data and trade secrets and protect them.

The post on Monday 1/7/19 talked about $1.75M reasons to settle allegations of discriminatory leave policies. Wow! That is how much a large company in the health care industry. The EEOC alleged that the company's leave policies did not properly accommodate disabled or pregnant employees. What else? See the post. Not only is the company paying that large settlement, it must take the other actions listed in the post.

TAKEAWAY: don't just have policies, have policies that are legal and enforceable. Consult an employment law attorney to give guidance.

In the post on Tuesday 1/8/19, we read that an owner wants Board decision followed even if budget may not allow for it - right or wrong? Has your Association ever faced this dilemma? Here, an owner wants the Board to stick to its original maintenance schedule despite the funds not being there. The post talks about whether the Board can reverse its prior decision. The post also talks about some situations where the Board could NOT reverse its prior decision.

TAKEAWAY: Boards have a fiduciary duty to fulfill the Association's maintenance obligations, but within reason and financial ability – know what the Board can or cannot, and must or must not, do. Call on a community association lawyer to help.

The post on Wednesday 1/9/19 told us that the EEOC dropped a suit against company for alleged disability discrimination. I said I’m not buying it because if there was insufficient evidence of a violation, the EEOC wouldn't have filed. Or, conversely, if the employer thought it was right, then why wouldn’t it want legal fees reimbursed? Here, Justin had worked there 10 years. He was then diagnosed with depression. With that as a basis, the EEOC sued the printing and packaging company as noted in the post. The company asked that the suit be dismissed; its reasoning is also in the post. The EEOC's attorney wouldn't discuss details of the case and reason the company didn't seek fees and costs is in the post. Hmmm ...

TAKEAWAY: Make sure you have a valid basis for any adverse decision before you make the decision.

In the post on Thursday 1/10/19 we saw that Mrs. Field's Cookies settled a discrimination case. We reminded you not to forget about this law when differentiating among employees. So what happened? The company allegedly discriminated against non-US citizens who were authorized to work in the US – how and when it was done is in the post. But the company did not ask the same thing of US citizens, and therein lay the rub (and violation of the statute noted in the post).  

TAKEAWAY: Whatever the law that applies, make sure to look at it, or what it requires, in the same way for all employees.

The post on Friday 1/11/19 reaffirmed that an employer owes employees more than a paycheck. Or so says the Pennsylvania Supreme Court. In its recent ruling, the Court upset the previous apple cart. So what happened? UPMC was hacked – the thieves stole employee names, SSNs, and more in the post. Ugh. The employees sued, alleging that UPMC did not encrypt their data or establish adequate firewalls, along with other claims noted in the post. The basis for the duty allegedly owed to the employees, which, when violated, led to the alleged failures, is also in the post. The Court agreed with the employees, imposing a duty of reasonable care on UPMC as the employer. How it got to that point, including assumptions it made, is in the post and notable. Note that this decision is contrary to a recent one from the federal Third Circuit, which includes Pennsylvania.

TAKEAWAY: Don't wait to find out if you have a duty to protect your employees' confidential information; just do it. Put the best safeguards in place.

Finally, in the post yesterday 1/12/19 we discussed employers' gifts to (former) employees' attorneys at the holidays (or any time of year) (and suggested you pay attention). Yep, you read it right – employers often give gifts to the attorneys representing their former employees. The post unwrapped the gifts, including performance evaluation puffery, protective instincts, and more. The first noted area is a gift because it almost always backfires in some way; when it is as part of a suit, it is just plain ugly. The post gives a common example of how it plays out. Likewise, common examples of the other "gifts" are also in the post so that you can see how easy it is to help out your former employees when you don’t intend that.

TAKEAWAY: Make sure employees are treated fairly and honestly; don't make the job harder for your attorney by giving ammo to the former employees who become plaintiffs in suits.


ICYMI: Our Social Media Posts This Week – Dec. 30, 2018 - Jan. 5, 2019

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 12/30/18 we advised you to beware the contractual boilerplate - you may end up where you don't want to be! Here, Kathleen worked for AT&T for over 30 years. She was going through chemo at age 60 when she was discharged. She sued for age and disability discrimination based on the terms of the discharge (which are in the post) and how that played out (also in the post).AT&T offered to settle and provided a draft release; Kathleen didn't sign it, but included allegations about it in her suit. AT&T moved to strike since the release wasn't signed. Kathleen's contrary argument is in the post. How did the Court hold? See the post. AT&T also asked the Court to dismiss the case for lack of jurisdiction. The Court's reasoning in denying that motion is interesting and in the post.  

TAKEAWAY: make sure all legal documents are legally compliant from the start – in case you are hauled into court even where you don't think you will be.

The post on Monday 12/31/18 was about a year-end bonus or incentive payment (and asked): Can an employer withhold the money from the employee who took FMLA leave? The answer this time is actually not "it depends", but is definitive (and in the post). How that answer plays out is also in the post. Know the law that applies to you (and your employees.

TAKEAWAY: Make sure you know how FMLA is treated for monetary issues – consult employment counsel if needed.

In the posts on Tuesday 1/1/19, here and here, we wished for you a Happy New Year and that the only hot water you see in 2019 is salty and near swaying palm trees!

TAKEAWAY: it's a new year - and another opportunity to stay on the right side of legal in your business.

The post on Wednesday 1/2/19 was another warning: be careful about how your association handles owners' personal information. Privacy is a big deal! Unlike in the post, Pennsylvania law does not mandate any specific information to be collected by an association (other than that to meet the requirements of Sections 3407 and 5407 of the relevant Acts). However, the tips in the post, such as being careful of who can see what information comes into the Association and how they access it, are useful and prudent.

TAKEAWAY: Being a good fiduciary includes keeping confidential what should be; know how to do it for your Association.

In the post on Thursday 1/3/19 we asked: when is an otherwise harassing comment not harassment? We also noted that this scenario would probably play out the same here in the US. So what happened? Mr. Evans worked as a sales rep for almost a year. He was called into a meeting for a PIP prior to being discharged. The PIP was never instituted because he complained about how others addressed him (see the post). He also complained of race and disability discrimination (for which the bases are noted in the post). The employer said that his discharge was a result of poor performance. The court agreed with the employer for the reasons in the post, including the office culture (specifics in the post) and whether Mr. Evans himself participated in it.

TAKEAWAY: Train your employees on what not to say or do and ensure that all facts are at hand when an adverse decision is made – consult legal counsel if you are unsure.

The post on Friday 1/4/19 noted that Amazon's Alexa on the witness stand is going to be a killer for privacy. The digital world inches closer to what fantasy or sci-fi used to be … Yes, Alexa (or her counterparts, all referred to as Alexa for these purposes) can be helpful. Yes, Alexa can be fun. And yes, Alexa might be used against you. Alexa records information, lots of it, to be useful and fun. That is information that you might think is private and might want kept private. But what if that information was helpful in a court case? The post gives but one example of how that question is playing out right now. The post also mentions how that might be expanded and distinguishes Alexa from email and their purposes.

TAKEAWAY: Just as with the rest of the Internet of Things, be careful how you give out personal information and to whom – indeed it might be used against you.

Finally, in the post yesterday 1/5/19 we learned that CBS has grounds to deny Moonves his (up to) $120M severance. We noted that it doesn’t matter who you are, the truth will come out. Unless you've had your head in the ground, you know that CBS fired its former CEO Les Moonves as a result of allegations of sexual misconduct and misleading investigators. The post notes portions of the report prepared by the Board, including that after 4 interviews, they didn't believe Moonves and he mislead them (to say it nicely). Initially 6 women alleged sexual misconduct by Moonves, but the post notes there is another (and what he did in that instance).

TAKEAWAY: Employees, no matter how high up the food chain, should not violate the law. But if they do, you need to know how to (re)act and what, if any, monetary implications follow.


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).


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.