Monday
Apr172017

ICYMI: Our Social Media Posts This Week – April 16-22, 2017

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 4/16/17 we noted the third black Fox News employee joins the race discrimination suit, says Fox knew about abuse from Ailes and others. Monica, the manager for credit collectors, says that former comptroller Judy subjected her to racism and cruelty (including not wanting to be around black people, Monica not looking like the Aryan race, mocking her for being a breast cancer survivor, and more in the post) and pressured her not to report it. Even though Monica did report it, nothing was done (allegedly because Judy knew about the Ailes scandal, but Judy was fired in March – the basis is in the post). The suit Monica joined alleged "top-down racial harassment" including Judy often making racial comments about blacks, Chinese, Indians and Mexicans.

TAKEAWAY: employees should not suffer discrimination or harassment of any kind – they should report it. Likewise, employers should not practice discrimination or harassment of any kind and should immediately investigate any claims of such behaviors.

The post on Monday 4/17/17 noted the Trump administration warns against discrimination against Americans who hire foreigners. Really. The Administration warned those petitioning for work visas for foreigners not to discriminate against US workers, which would be a violation of US immigration law. This fits within the Administration's call to hire more US workers. More details are in the post

TAKEAWAY: If you just hire the most qualified person for the job, and can document why s/he is the most qualified – without getting into any protected characteristic - then there shouldn’t be an issue as to discrimination.

In the post on Tuesday 4/18/17 we were told the first federal appeals court rules anti-gay bias is barred under current law. Yes, discrimination based on sexual orientation was found to be sex discrimination in violation of Title VII. Perhaps this is the start of the next avalanche of rulings in this area – see the post for where other courts stand on this issue. The 7th Circuit's 8-3 majority found that discrimination on the basis of sexual orientation is discrimination based on one's perception of gender stereotypes which SCOTUS has found illegal under Title VII. The decision even referred to the 1967 case of Loving v. Virginia (the subject of a recent movie) which struck down bans on interracial marriage; the 7th Circuit merely changed the Loving facts a bit, noting "… If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex." More details are in the post. Note that the court specifically did not decide if the employer is a religious institution with a religious exemption from Title VII because that question was not before it.

TAKEAWAY: While this case is not binding here in PA, it does not harm to follow its teaching anyway – and, besides, sexual preference really has nothing to do with job performance, which is all an employer should worry about.

The post on Wednesday 4/19/17 said that granting leave may trigger a "regarded-as disabled" claim under the ADA and warned not to forget about that prong. As the article in the post notes, be careful! Here, Dwayne was diagnosed with anxiety; he could not work with elderly patients as that was a trigger. He was approved for intermittent leave under the ADA for anxiety outbreaks and fired after refusing an assignment to work with elderly patients. He sued. The post contains the outcome.

TAKEAWAY:  If you approve ADA leave, you are agreeing the person is disabled. If you later challenge that, you may instead be deemed to have approved the leave because you regarded the person as disabled even if s/he was not, therefore still triggering ADA protection.

In the post on Thursday 4/20/17 the question was: new hire wasn't qualified? Then disability is irrelevant. Remember the requirements for ADA protection: they include being able to perform the essential functions of the job (with or without reasonable accommodation). Here, William was hired and requested accommodation. In the meantime, the employer discovered he did not have the required certification and so terminated his employment. He sued. The federal appeals court's ruling is in the post.

TAKEAWAY: Regardless of the employee or applicant's (dis)ability, if s/he is not qualified, then you don't even reach the accommodation issue.

The post on Friday 4/21/17 told us that Dollar General lost a round in its race discrimination lawsuit. Remember that the EEOC filed suit against Dollar General over alleged discriminatory use of criminal background checks in hiring and firing decisions? Well, a recent court ruling said the EEOC did what it needed to before filing suit in 2013, so the case proceeds. The post details the court's analysis and background facts.

TAKEAWAY: Even if you outsource a step in the hiring or firing process, you are still liable for it being legal – so make sure it is.

Finally, in the post yesterday 4/22/17 we learned that Zale jewelers allegedly violated the ADA and will pay a $30,000 penalty. One of Zale's business names is Piercing Pagoda; apparently Rose managed one of its kiosks. Rose told Piercing Pagoda in 2013 that she needed an accommodation for her long-standing medical condition (discussed in the post). The employer's response is also in the post – but you know from the fact that it is the subject of this blog that it was not positive.

TAKEAWAY: When an eligible employee asks for an accommodation, don't refuse – instead start the reasonable accommodation process.

Wednesday
Apr122017

ICYMI: Our Social Media Posts This Week – April 9-15, 2017

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 4/9/17 we asked: Is it age discrimination if you don't know you're being discriminated against? The US Supreme Court will let us know. When he was age 49, Richard applied on-line for a sales manager job with giant R. J. Reynolds Tobacco Co in 2007; he got no response. He applied again in later years with the same result. He didn't know why. The "why" is that RJR used a contractor to review and screen applications for older applicants (the bases are in the post). He sued after a whistleblower outed RJR in 2010. RJR successfully argued to the federal trial and appellate courts that the ADEA doesn't apply to Richard because he didn't diligently pursue why he'd not received a response to his applications before the whistleblowing and that in cases of indirect bias, the ADEA protects only employees (and not applicants).

TAKEAWAY: Age discrimination still happens, and may happen more frequently as the working population includes more older workers; don't just write them off - they have good experience and it may well be illegal.

The post on Monday 4/10/17 noted a former trade center employee's seizure problems led to a $155,000 settlement. Unetia Perry was an events coordinator for the Columbus Convention & Trade Center; she asked for and was granted FMLA leave; after surgery, she began to have seizures. She asked for a limited work day, which the employer initially granted; what happened next is in the post. Suffice it to say the employer's math error resulted in an illegal termination. When she later reapplied for her job, she didn't even get an interview. She then filed a charge of discrimination under the ADA and FMLA and retaliation for (in)action based on the former. Trial was set for March 2017; in December 2016 the court was prepared to rule against the employer on the failure to accommodate claim (but in its favor on retaliation). In February 2017 the case settled.

TAKEAWAY: We've said it before and will again (even later in this blog!): don’t' just play ostrich, but know the steps to take under the FMLA and ADA and take those steps.

In the post on Tuesday 4/11/17 we noted that Congress has proposed adding parental bereavement leave to the FMLA (and asked what you think). The proposal would add "death of a child" as a covered event for which eligible persons are entitled to up to 12 weeks of unpaid leave.

TAKEAWAY: Events that significantly impact a person's ability to work are covered under the FMLA and provide much-needed leave; now the question is whether it is time to expand the list to cover the death of one's child.

The post on Wednesday 4/12/17 noted that Texas Roadhouse will pay $12M to settle the age discrimination lawsuit. Because apparently everything is bigger in Texas. Recall that this is the suit brought by the EEOC alleging that Texas Roadhouse failed to hire servers, hosts, and bartenders who were age 40 and older; the jury hung las year and it was set for a new trial next month. Items agreed to in addition to the monetary settlement are in the post.

TAKEAWAY: Don't discriminate – you will probably get caught and it will be costly in so many ways.

In the post on Thursday 4/13/17 we talked about employer recovery of fees and costs in discrimination cases – is there a trend starting? A new law in Ohio permits its Civil Rights Commission to award attorneys' fees and costs to employers found not to have discriminated against an employee. It is not required but permissible. And the employer may not be able to collect anyway. But this evens the playing field (some argue) and may lead to fewer suits brought on iffy bases.

TAKEAWAY: PA employers are not entitled to fee shifting at the PHRC, but it may be the next big thing. Of course, if you don’t discriminate or retaliate, you will have less to worry about from the start.

The post on Friday 4/14/17 told us about a lawsuit alleging Forever 21 discriminated with its English-only policy. The suit was filed by a California state agency on behalf of Spanish-speaking employees. The policy apparently banned languages other than English, even when not job related, when not on paid time, and when speaking to Spanish-speaking customers. The post also mentions the bases for the retaliation allegations (because the discrimination was apparently not enough for the employer). The case moves forward later this year.

TAKEAWAY: Make sure your policies have rational, legal, business-related reasons for being.

Finally, the post yesterday 4/15/17 cautioned: (don't) just say no to ADA and FMLA leave requests. The case at issue is from Utah, but the principals apply equally here in PA.  Wells Fargo was the employer (boy it's taking a beating these days!) The employee, who had epilepsy, asked for leave due to her medical condition. HR told her epilepsy was not a disability and she was ineligible for FMLA leave. She then asked her manager who responded the same but left open the possibility of leave in 3 months. After that, the employee quit. The court ruled against Wells Fargo on the ADA claim, saying its argument was faulty (see the post for the court's reasoning). The court also ruled against Wells Fargo on the FMLA interference claim; again its reasoning is in the post. Other claims asserted by the employee are noted in the post and really paint Wells Fargo in a bad light.

TAKEAWAY: Make sure you know the steps to follow under the ADA and FMLA and then follow them – in the proper order.

Friday
Mar312017

ICYMI: Our Social Media Posts This Week – April 2-8, 2017

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 4/2/17 we talked about dispelling the 10 biggest wage & hour myths – part 1. Get them wrong and you will be in quicksand. First, employees are NOT entitled to mandatory work breaks (absent some type of contract or policy to the contrary). Second, all salaried employees are NOT exempt; that is only one question to be asked in determining if someone must be paid overtime wages or is exempt. The others are in the post.

TAKEAWAY: Wage & hour is not an area to wade into or guess – government enforcement can be swift and costly – get it right at the start.

The post on Monday 4/3/17 told us that prior sexual harassment does not ease the burden of proof in a later claim. Various companies have differing approaches to discipline for harassment – that's ok as long as they apply their policy uniformly. But what happens when the harasser is not responding and does it again? Does that mean the victim automatically has a HWE? A recent case in the federal Third Circuit, which governs in PA, dealt with just this issue. The plaintiff settled a prior case with the US Postal Service. Many years later, she filed a new charge with the EEOC – against the same co-worker, but on more limited bases (detailed in the post). The trial court dismissed the case as not rising to the level of a HWE. On appeal, she argued that she should not have to prove HWE due to the prior harassment. The court's ruling (in the post) makes sense and is good news for employers.

TAKEAWAY: Just because plaintiffs did not get a leg up doesn't mean employers are out of the woods – you must still investigate complaints of harassment and take appropriate action based on the result of the investigation.

In the post on Tuesday 4/4/17 asked: Too much experience to be hired? Some older Americans face age bias. As more and more people have to work past the traditional retirement age, more and more of them find themselves searching for a job – and hitting barriers. And it's worse for older women than older men – a double whammy. At least one case is now pending; the post gives some background on it and the status.

TAKEAWAY: Employers should not take (adverse) action based on age – but rather on measurable job performance or requirements.

The post on Wednesday 4/5/17 told us that a Christian university illegally fired a professor who got pregnant and stayed single. We all know that religious beliefs sometimes result in exemption from certain laws. But not in this case. Here, Coty had been an assistant professor at a private, Christian school. She was unmarried and got pregnant, then (had the audacity to) refuse to marry her boyfriend or leave him. The school's actual message to Coty is in the post. She refused to accept the school's "suggestions", later resulting in her being discharged based on the school's sincerely held religious beliefs. Her suit included allegations that unmarried male professors were not discharged for fathering children out of wedlock. She got judgment on one of the claims since the ministerial exception was held not to apply. Read the post as to the other claims.   

TAKEAWAY: If you are asserting that sincerely held religious beliefs either require a certain course of action or prohibit it, make sure you are on firm legal ground before (not) taking the action.

In the post on Thursday 4/6/17 we learned that pretext evidence supports revival of ADA and FMLA claims of employees RIF'd between surgeries. Here, the employee used crutches as a result of childhood bone cancer; he was discharged between 2 surgeries, allegedly as part of a RIF. He sued and the court found that the RIF reason might have been pretext (thus letting the case move forward). His job had been editing videos and his bosses thought it might be more difficult for him as the editing became more electronic. He did not complain or ask for accommodation. He told the employer of 2 upcoming surgeries; they were approved but he was fired after the first surgery, supposedly as part of a RIF. The post gives more details on the court's analysis.

TAKEAWAY: Employers may have a defense to allegations levelled against them – but the defense should remain the same at the administrative level and then into court. If it changes, then it is probably less than truthful (and shouldn't be put forth).

The post on Friday 4/7/17 said easy come, easy go: appeals court reverses $2.6M award in ADA case. Rite-Aid was on the winning side in this one. It started when Rite-Aid started requiring pharmacists to give immunization injections. Christopher couldn’t due to a medical condition so he asked for an accommodation. Rite-Aid decided that it did not need to – and couldn't – accommodate him and so fired him (the rationale is in the post). Christopher sued for violation of the ADA. At trial, a jury awarded him $2.6M in damages. On appeal, Rite-Aid was successful when the court analyzed the ADA's provisions and applied the facts to them (see the post for the analysis). The post also has some useful tips for employers.

TAKEAWAY: Even though in most cases an employer should just assume the employee is disabled within the ADA's provisions and therefore entitled to the interactive accommodation process, that is not always the case – and indeed a situation may turn on that exact question.

Finally, the post yesterday 4/8/17 told us that KASCO settled a Muslim employee's discrimination suit. For $110,000. Latifa, a buyer, alleged that supervisors starting acting up after she began to wear a hijab, including acting like they were scared of her and other things in the post. After an HR complaint, she experienced retaliation and was eventually fired. The post gives more background. The settlement resolved her claims.

TAKEAWAY: Employers should not take adverse action against employees unless based on job performance – or lack thereof – and especially not based on a protected characteristic that has nothing to do with job performance.

Tuesday
Mar282017

ICYMI: Our Social Media Posts This Week – Mar. 26 - Apr. 1, 2017

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 3/26/17 we issued an alert: court rules age discrimination claims are valid when both candidates are over 40. While this case did not come out of PA, it is still instructive and one to keep in mind. Ordinarily an age discrimination claim requires a claim by someone over age 40 with comparators under age 40 (and the more separation in ages, the better). In this case, the plaintiff, age 58, alleged she was passed over for promotion in favor of a younger (age 50) employee. The employer argued that the employee selected for promotion was better qualified (and, regardless, no suit could lie with them being so close in age and both over age 40). The decision turned on whether the person selected was 'substantially younger" than the plaintiff. The court's analysis is in the post.

TAKEAWAY: Don't wait for a court in PA to hold this way – just don't make any employment decision based on age.

The post on Monday 3/27/17 noted Arby's hit with class action data breach suits – and make sure your cybersecurity has "more meat". Recently, between October 2016 – January 2017, Arby's point-of-sale system was hacked; it contained debit and credit card information for 355,000 customers. Many class-action suits have been filed, one by customers alleging Arby's cybersecurity was lax. Stay tuned to see how these play out.

TAKEAWAY: Data breaches are always a danger when so much is in the cloud – make sure your clouds don't rain your client's sensitive data to hackers.

In the post on Tuesday 3/28/17 we noted that no longer saying good morning or giving a warm welcome could be evidence of retaliation. A groundskeeper at an apartment building sue the employer, alleging disability discrimination and retaliation for filing a complaint with a state agency. The employer asked the court to grant summary judgment, alleging there was no adverse action. On the facts (see the post) the judge granted summary judgment relative to discrimination. However, as to retaliation, things were different; the allegations included that "the general manager of the apartment building 'stopped saying good morning to him'" and others in the post and were enough to get past summary judgment and to the jury.

TAKEAWAY: Remember that the employee does not have to be successful on the underlying discrimination claim to succeed on the retaliation claim – "adverse action" could be very broadly interpreted.

The post on Wednesday 3/29/17 talked about responding to a discrimination charge (and suggested you contact an employment law attorney). If the charge is from the EEOC, then the first "touch" usually will be an email with a link to allow response. But that link may not include the actual charge(s) at first – see the post for how to proceed. Even while waiting to speak to an employment law attorney (which this author recommends), the employer should gather the information and documents (and contact information for people) necessary to respond and offer a defense. Some examples are in the post. The attorney can help draft the response to ensure that it does not dig the employer in any deeper but provides a ladder out.

TAKEAWAY: Don't panic if you receive a charge of discrimination, just gather the necessary information/people and proceed in a way that protects your interests but also shows why the action(s) complained of was/were legal.

The post on Thursday 3/30/17 told us the Judge rules for service in TCPA case regarding calls to number provided for subsequent loan. Yes, the Telephone Consumer Protection Act may apply to you – so make sure you find out if it does. Here, in a case in PA federal court, Crystal applied for federal student loans and authorized various parties to contact her; she provided a phone number. Later, when asking for a repayment deferment, she again authorized contact but gave a different phone number. In 2014, she got more loans and listed a third phone number to the "authorized" list. Navient, the student loan servicer, contacted her using the last number; Crystal requested and was granted an additional deferment. After that, Navient began collection on the first loans (81 calls to the last number in slightly over 3 months). Crystal sued under the TCPA, alleging she did not authorize Navient to contact her on the last number for the first loans. Ruling on summary judgment, the Judge found that the facts (see the post) ran in Navient's favor.

TAKEAWAY: Collections are tricky. Make sure you know your rights under the TCPA when collecting from a consumer.

The post on Friday 3/31/17 said that racist remarks doom summary judgment, send case to trial (or settlement). Here, an African-American employee filed race discrimination and HWE claims. The employer moved for summary judgment (a ruling in its favor). Because of the large number of "offensive' intimidating remarks" – including the "N word" in jokes and stories and others in the post – and allegations of denial of pay raises and promotion by those who made the remarks and retaliation after filing the administrative charge, summary judgment was NOT granted.

TAKEAWAY: The employer can deny allegations all it wants, but they may still be enough to get a case to trial – so make sure you have valid legal support before you or your managerial-level employees take adverse action.

Finally, the post yesterday 4/1/17 asked: Your employee is leaving – how do you safeguard your IP? and was not an April Fool's joke. Data security is the #1 thing on just about every business's plate these days. Data may be protected by common law, statutory law, or contracts law, but even if you win a suit, you may still lost the data and its value to you in the time the suit takes to become final (remember that old saying about the horse being out of the barn?). So don't want for the barn doors to open, plan ahead. Make sure you have proper data security policies, including for BYOD. Think about how to properly train (future) employees and including in any contract or policy the employee's authorization for you to wipe the device upon employment termination and other tips in the post.

TAKEAWAY: Don't be an ostrich on this – data security can make or break your business so do it right the first time!

Monday
Mar202017

ICYMI: Our Social Media Posts This Week – Mar. 19-25, 2017

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 3/19/17 was about workplace discrimination and gun rights: the confluence of 2 hot button issues in PA. We suggested you stay tuned. Proposed legislation was introduced to our state legislature to amend the PHRA to bar workplace discrimination based on 'lawful ownership, use, possession, transportation and storage of a firearm" by adding a protected classification for "exercise of self-defense rights". Read the post for more details. Keep eyes and ears open on this.

TAKEAWAY: Currently employees can dictate whether or not guns are allowed on premises and other actions related to or arising out of gun possession in the workplace– that may not always be the case if this legislation passes.

The post on Monday 3/20/17 (the first day of Spring!) reminded us that paid leave can be an adverse action – watch out! Huh? Not being able to work and move ahead in a career can be harmful. In this case from PA, Kevin left his FBI job to work for former AG Kathleen Kane. She soon accused him of spying on her for the FBI. Then other accusations followed (see the post for details). He went out on approved FMLA leave and then, when he requested additional leave, that too was approved. However, when he wanted to return to work, he was put on paid leave. He eventually sued. The post contains the outcome of the suit (hint: it has a twist …).

TAKEAWAY: Paid administrative leave can indeed be considered an adverse employment action so use it carefully. (Also see the tip at the end of the post re FMLA leave.)

In the post on Tuesday 3/21/17 we found out that despite the new Administration, the EEOC maintains its position that Title VII prohibits gender identity discrimination. Aimee, a transgender woman, told her funeral home employer of her gender identity and intent to transition. She was terminated (despite adhering to the dress code). She filed an EEOC charge and it finally sued on her behalf (the several bases are in the post). The trial court denied the funeral home's motion to dismiss, finding a cause for sex-stereotyping (but not gender identify discrimination). It later granted summary judgment to the employer based in part on RFRA. The EEOC appealed the case to the federal Circuit Court, asserting that Title VII includes general identity discrimination and RFRA is not a defense.

TAKEAWAY: The issue is pending (and winding its way to the Supreme Court) but as of now, the official Administration position is that gender identity discrimination violates Title VII – so on that basis alone don't do it.

The post on Wednesday 3/22/17 told us that SCOTUS punts, saving transgender rights for another day. The bathroom case, as it is often referred to. The federal appellate court had ruled in favor of the student and the case was appealed to (and accepted by) the Supreme Court. However, since the ruling was at least in part based on guidance from the DOJ and DOE that has since been withdrawn under the new Administration, the Supreme Court sent the case back for another look in light of the withdrawn guidance (more procedural details are in the post).

TAKEAWAY: While this is a Title IX case, it will give a probable hint at interpretation of whether gender identity or sexual orientation discrimination is permitted under Title VII; until the matter is finally decided, just don't discriminate against LGBTQ individuals.

The post on Thursday 3/23/17 was about sex teasing, lurid questions and dirty jokes: women fast-food workers targeted. Statistics are clear that a large percentage of women in the fast-food industry are the target of these types of behavior. And that it leads to extreme stress and other issues. Did women know this was illegal discrimination? See the post.

TAKEAWAY: Don't treat someone differently based on a protected characteristic – unless their job performance mandates it, and then have a valid reason for your action.

The post on Friday 3/24/17 talked of a $21,500 settlement in a disability discrimination case – remember the 'regarded as" prong. A medical services provider allegedly fired an employee based on her medical condition. Avid worked there as an outreach-enrollment coordinator. She had undergone a post-offer, pre-employment physical. Despite the doctor advising a medical hold, she began to work. Later she was fired based on the doctor's recommendation. Was there proof of a disability that prevented her from performing the essential functions of her job, with or without accommodation? Nope. See the post for more details.

TAKEAWAY: Don't take adverse action against someone based on what you think is a medical condition that will affect the ability to perform the job's essential functions; wait until (alerted or) asked about an accommodation.

Finally, the post yesterday 3/25/17 asked: Does the NFL combine violate the ADA?   I bet you never thought about it in those terms, right? Now you will never think about it in any other way. So the combine is when the best college football players eligible for the NFL draft try out: actual workouts, medical testing, interviews, and psych testing. Any problems can affect if and when the player is selected, thus hitting the pocketbook. So is this in reality an ADA violation since it is a pre-offer IME and adverse action based on a potential disability? Perhaps. But the post has the NFL's (defensive) reason for the purpose of the medical testing

TAKEAWAY: Was the ADA intended to apply to pro football? It doesn't matter if a court of final decision decides that it does, so be careful in other areas you think might not be touched by the ADA.

Monday
Mar132017

ICYMI: Our Social Media Posts This Week – March 12-18, 2017

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 3/12/17 we noted that a gentlemen's club agreed to extend a settlement agreement in an EEOC race discrimination suit. Ok, so the adult-entertainment employer had an agreement in place with the EEOC to resolve allegations of race discrimination and retaliation. Bad, right? Wait, then it allegedly violated the terms of the settlement agreement and the EEOC filed for contempt. I know you want to know what it did to "earn" the suit in the first place. It (allegedly) subjected African-American entertainers to arbitrary fees and fines, forced them to work less lucrative shifts, and excluded them from company advertisements. Other allegations are in the post (and are not pretty). As part of the settlement of the underlying suit, the company had to pay $50K to the affected employees plus other injunctive and other relief; it made the payment, but that's it. To resolve the contempt request, the earlier settlement agreement was amended (as noted in the post).

TAKEAWAY: Ok, you messed up, did something that is illegal and entered a settlement agreement to resolve it. Don't make things worse by violating the settlement agreement – that is just asking for a heap of trouble (and financial stress and bad publicity …).

The post on Monday 3/13/17 talked about accommodation and the ADA: who is qualified and what is reasonable? Whether or not attendance is a job requirement and unpaid leave an accommodation under the ADA are valid questions. There is no question that unpaid leave IS a reasonable accommodation if the person intends to return after treatment/recovery. Also, modification of a no-fault attendance policy may be required as an accommodation – see the post for details. The post also gives an example of when attendance on the job is an essential function and inability to attend makes the person unqualified.

TAKEAWAY: Once things move from the FMLA into the ADA arena, or even if they start there, make sure the employee is eligible for protection and then approach the accommodation itself with an open mind.

In the post on Tuesday 3/14/17 we noted the EEOC urges the court to toss the AARP wellness program lawsuit. Remember that the EEOC issued final rules this past May permitting employers to assess penalties against workers refusing to participate in wellness programs (and provide medical and genetic information)? Well, AARP sued, alleging the rules violate GINA and the ADA and increase the risk of age discrimination. December brought a ruling refusing to put the rules on hold but allowing the suit to go forward. Some interesting tidbits: the EEOC's position in this suit is opposite that it had taken earlier and it has alleged that AARP has no standing to bring the suit.

TAKEAWAY: We don't know how much weight deference to the Agency will carry, nor the effect of any ACA repeal, but the outcome (if it gets one) will have a far-reaching impact.

The post on Wednesday 3/15/17 told us that yes Virginia, age discrimination is alive and well. And it's worse for women than men. Ugh. These things have been asserted in many ways for many years, but now there's statistical proof: a study by the San Francisco Federal Reserve from a nationwide field test. The post gives background information including the age groups used and how the test was run. The "double standard of aging" is mentioned in the post too.

TAKEAWAY: Don't take age into account when making employment decisions. Period.

The post on Thursday 3/16/17 provided 11 tips to avoid employment lawsuits. Are there just 11 ways to avoid suits? Of course not, but the 11 in the post are good ones. So what are they? The first is to hire a good HR person – and make sure that person knows his or her stuff! Next is if you can't hire an HR person, have someone on call to respond to these issues, whether HR consultant or attorney or someone else. Third, you as the owner (or manager) should be at least passingly familiar with applicable laws, including what is or is not considered discrimination and harassment and what the company can or cannot do in response to an employee committing such acts. The other 8 tips are in the post (you didn't really think I'd review all 11 here did you?).

TAKEAWAY: Being the defendant in a lawsuit is no laughing matter - and can be quite costly in terms of human time, financial resources, and effect on your reputation. So take steps to avoid that situation.

The post on Friday 3/17/17 noted that a lawsuit claims age discrimination at Fiat Chrysler – again. Yes again. For the second time in two months. The allegations this time are that Fiat mistreats older employees during evals which results in lower pay and fewer promotions than younger employees. To buttress the argument, the suit claims that employees' pictures are used during evals, such that upper-level managers who rarely if at all work with the employee being evaluated has the photo at eval time and this leads to lower evals for older employees, even if the intermediate supervisors have given high marks. Read more of the background and supporting data in the post. Fiat Chrysler of course denies the allegations.

TAKEAWAY: Use only valid data when evaluating employees, not extrinsic things that are irrelevant and might subject you to a suit like this.

Finally, the post yesterday 3/18/17 told us about one time you don't have to give FMLA notice. You already know that you have to tell an employee about his or her rights under the FMLA if it might apply (and especially if s/he asks about those rights). But does it make a difference if the employee has already been off on FMLA approved leave? Yes (at least in the case in the post. There, Georjane was a Delta Airlines flight attendant. She violated a rule and was terminated; after treatment she was reinstated under a last-chance agreement. She then violated the call-in policy (by not notifying Delta soon enough that she was too tired after caring for her mother) and, due to the last-chance agreement, was again terminated. She brought suit under the FMLA because Delta didn't tell her about her FMLA rights. Delta's defense was successful: since she had already taken FMLA leave, she knew how to ask for it and take it and didn't need notice each and every time. The post also mentions the other reasons the termination was upheld – and that harkens back to our 3/9/17 post on the same subject).

TAKEAWAY: You do need to make sure an employee is aware of his or her rights under the FMLA and ensure that the process is followed, but once the employee is aware, you may not need to tell the employee again.

Monday
Mar062017

ICYMI: Our Social Media Posts This Week – Mar. 5-11, 2017

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 3/5/17 we talked about anxiety, absenteeism and the ADA – what to do. While an employer must reasonably accommodate a qualified employee, there might be times when no accommodation is possible. Therefore, the employee is unable to perform the essential tasks, even with accommodation, such that the employer may discharge the employee. A recent federal case showed how this works. Williams was a customer service rep for AT&T who had depression and anxiety attacks that caused her to miss work a lot. She was terminated for job abandonment and violation of the attendance policy. She sued under the ADA. On appeal, the court first noted that regular attendance was an essential job function and, given her record (detailed in the post), she could not perform that function and needed accommodation. The next step was whether AT&T failed to offer a reasonable accommodation. The court said that the little information Williams had provided did not meet her burden (and worked against her as in the post). The court ended up finding neither discrimination nor retaliation.

TAKEAWAY: Whether mental or physical disability, make sure the essential functions of the job are clearly spelled out in writing, then make sure the employee can perform those functions with or without reasonable accommodation. If not, then you can terminate. TO make sure you don’t fall into a legal quagmire, consult your employment law lawyer.

The post on Monday 3/6/17 was about how to be sure you received all documents for your home in a planned community (condo or HOA). As more and more people live in planned communities (whether condominium or detached homes), it is important to be sure that you know the rules and regulations (and statutes) that govern that community BEFORE moving there. By law in PA, the builder must give specified documents to the potential buyer; likewise, any other seller must give the documents listed in PA law to the potential buyer. The post gives some examples there.

TAKEAWAY: As either seller or buyer, know what PA law requires you to give or receive to avoid the potential sale becoming unraveled.

In the post on Tuesday 3/7/17 the suit's $155M question: is a law firm partner an employee? This has implications beyond law firms too so keep reading. The law firm is subject to a pending class action alleging gender bias (that it discriminated against female partners). The firm is alleging that she is not an employee and therefore Title VII and the EPA do not apply. She countered that there is a difference between partners and management – and most of the former are not part of the latter, hence they are employees. More details are in the post.

TAKEAWAY: Remember the Clackamas Gastroenterology Assoc. case mentioned in the post and the factors listed there when trying to determine if someone is an employee or owner. Be careful (or you might be sued).

The post on Wednesday 3/8/17 was about how to deal with homeowners who fail to pay assessments (and a suggestion that you let us help you). Why do you as a homeowner care? Because the more people in your community who don't pay their dues, the more you end up paying to cover that shortfall – the expenses don't decrease, just the income. The post gives more details on some suggested processes to have in place to avoid this. It also mentions what might happen if the person files for bankruptcy protection.

TAKEAWAY: Make sure there are processes in place for when people don't pay their dues – and that the Association works with an attorney who can step in if and when the owners who owes money files for bankruptcy protection.

The post on Thursday 3/9/17 told us that employers can enforce call-out policies, even for FMLA leaves. What does that mean? Even if an employee is out on approved FMLA leave, s/he must still follow the employer's call-off policy unless there is an unusual circumstance that prevents it (and then s/he must do what the policy requires as soon as possible). The employee's failure to follow the call-off policy enables the employer to discipline the employee per its policies, up to and including termination (if the policy permits). The post gives a recent example. Kellogg had a call-off policy; failure to comply results in points being assessed. At 8 points, the employee is put on probation and at 9 points, discharged. The policy excuses FMLA-related absence, but still requires employees on those leaves to call in, Alexander had complied with the policy in the past but did not this time; he got points. When he was again absent and failed to follow the call-off policy, he got more points and was discharged for exceeding the limit. He sued for FMLA interference and retaliation. The trial court granted summary judgment for Kellogg and he appealed. On appeal, the court again ruled in favor of Kellogg – the reasons are in the post.

TAKEAWAY: From the employee's perspective, make sure you follow all call-off policies, even when on FMLA leave, or your job could be in danger. From the employers' perspective, make sure employees, even those on FMLA leave, follow all call-off policies or take the steps outlined under the disciplinary policy.

The post on Friday 3/10/17 was an update: the judge declared a mistrial in the Texas Roadhouse discrimination case. Hopefully you have bene following this: the EEOC sued Texas Roadhouse for age discrimination. Now, a jury failed to reach the required unanimous decision, so the judge declared a mistrial. That means the case will be re-tried beginning May 15th if the parties don't settle before then. The background of the suit is in the post including the EEOC's allegations and Texas Roadhouse's responses/defenses.

TAKEAWAY: One big reason this case is important to everyone is that it did not result from a complaint by a (former) employee, so this might set precedent.

Finally, the post yesterday 3/11/17 was about a discrimination lawsuit against a DA – even lawyers are subject to the law. The District Attorney says he fired 2 female employees because a third told him they were plotting to get their supervisor fired (and for other reasons in the post). They say the firings were illegal discrimination based on sex, hostile work environment (HWE) and retaliation. The case (as noted in the post) provides a good reminder of the burden-shifting scheme in a discrimination case and how it played out here. The county approved a settlement with the plaintiffs and extricated itself from the case.

TAKEAWAY: Make sure any supposedly legitimate reason given for an adverse action is not really pretext – and that it will hold up in court if necessary.

Monday
Feb202017

ICYMI: Our Social Media Posts This Week – Feb. 19-25, 2017

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 2/19/17 we said that good records help win discrimination cases. The post details an example where good records helped boost the employer's defense against a race and age discrimination complaint.

TAKEAWAY: We've said it before, and we'll say it again (snd again even later in this blog): document document document. Not just documents, though, but good ones.

The post on Monday 2/20/17 was timely: employees learned harsh lesson about right to work laws after skipping work to attend immigration rally. "A Day Without Immigrants" rallies were held around the country recently to raise awareness (and in some cases to protect). For 18 employees, however, their awareness of the state's right to work status was heightened. The post gives more details, but they learned that the company was within its legal rights to terminate their employment.  

TAKEAWAY: Pennsylvania is also a right to work (or at-will employment) state, meaning that employers can fire employees without reason and without notice (as long as there is not an illegal basis for the termination). This should be kept in mind as an employment relationship progresses.

In the post on Tuesday 2/21/17, we learned a clothing retailer must stand trial for firing a bra-less boss. Yes we live in a strange world! A court said that a female regional manager fired after complaining that subordinates spread rumors that she let a top male exec see her breasts can proceed with a retaliation claim. Rochelly did not dispute that when she met with the CEO, she did not wear a bra. What she denied, however, was that she showed him her breasts. The employer issued a written disciplinary warning to a female employee who gossiped about the matter. The alleged basis upon which she was fired, and the judge's reasoning in allowing the case to proceed, are in the post. Keep your eyes open as this case moves forward.

TAKEAWAY: Keep in mind that a retaliation suit does not necessarily require the underlying claim to be found valid in order to proceed.

The post on Wednesday 2/22/17 noted that Fidelity responds to age discrimination allegations. We say it's never clear-cut. Here, Thomas alleged in his suit that Fidelity Brokerage Services fired him without explanation and replaced him with a younger worker. Thomas had about 30 years' experience in the industry and had been working for Fidelity about 5 years. There is a dispute over how Fidelity requires consultants to handle work on accounts – see the post for the options.

TAKEAWAY: If you are taking adverse action against an employee age 40 or older -- especially if that person is being replaced by someone younger than 40 -- make sure there is a valid legal basis for the adverse action or you may find yourself in legal quicksand.

The post on Thursday 2/23/17 says to document every ADA accommodation (it may save your neck one day). It is great that you grant accommodation to disabled employees, but make sure to document what was done (or not done) and why. You might need those notes later if someone claims the disabled employee was treated in a preferential manner. An example of this is in the post and shows how documentation can support the employer (and end a suit quickly in its favor).

TAKEAWAY: Document, document, document – what was requested, by whom, when, the response, and the basis for the response.

The post on Friday 2/24/17 asked: Think your temp is just your temp? Think again – s/he may be your employee! Joint employers are the "thing" now, an extension of an NLRB ruling and the way protections for employees are broadening. It all depends on how much, and what, control you exert over the person placed at your workplace by the temp agency. If you are found to be a joint employer, then you are responsible for all obligations of an employer under all applicable laws. So too is the temp agency. Some of the factors to be used in determining if there is sufficient control to hold one to be a joint employer are in the post. Likewise, there are arguments both in favor of giving a temp worker a copy of your handbook (as in the post) and against it too (because arguably it doesn't apply to one not an employee). For more, see our post from Saturday 2/18/17 on this subject.

TAKEAWAY: Be careful how you treat temporary workers – they may legally be treated as employees whether or not you want them to be.

Finally, the post yesterday 2/25/17 was about turning an FMLA request into one under the ADA – just like magic! A recent decision by the Third Circuit Court of Appeals, which governs PA, is both good and bad for employers. The good is that an employer's honest belief that an employee misused FMLA leave can defeat a retaliation claim, even if the belief turns out to be incorrect. The bad is in the post

TAKEAWAY: As we've said in several prior posts, don't look at the FMLA in a vacuum. Take into consideration other applicable laws, including the ADA, too.

Monday
Feb132017

ICYMI: Our Social Media Posts This Week – Feb. 12-18, 2017

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 2/12/17 we heard about Costco being hit with a $250,000 verdict in customer harassment suit. Huh? A female former employee was sexually harassed by a male customer for over a year and now Costco has to pay. She alleged Costco didn't do enough to stop the harassment -- he even told store employees about his contacts with her -- and the jury agreed. More details and background are in the post and make interesting reading.

TAKEAWAY: Employers have a duty to ensure that employees are not the victims of harassment – be it from co-workers or customers. Make sure to fulfill that responsibility or you will find yourself on the wrong end of a suit.

The post on Monday 2/13/17 was a reminder to properly communicate wage agreements to avoid misunderstanding, lawsuits. We noted that in writing is best. This is not a trifling matter (for the attempt at humor, see the post), but can have an effect on overtime calculation. Having a written agreement as to how it will be calculated can obviate any later problems.

TAKEAWAY: It is always best to get the terms and conditions of employment in writing, and that holds true for overtime pay calculations.

In the posts on Valentine's Day, Tuesday 2/14/17, here and here, we sent heartfelt wishes for a wonderful and legal day.

TAKEAWAY: Sometimes a break from the substantive is warranted to just refresh.

The post on Wednesday 2/15/17 talked about 3 very real forms of discrimination employees face at work. The first is what is sometimes called "part-timer discrimination". It refers to different treatment visited on those working part-time hours. The discrimination may also take the form of retaliation. The second type is family responsibility discrimination. This often hits working mothers but could include denial of family leave requests by either parent, failure to hire due to pregnancy, and adverse treatment of those who care for elderly parents. The third type of discrimination is in the post.

TAKEAWAY: Unfortunately discrimination still exists in the workplace – employers should take all steps possible to eradicate it (which boosts employee morale and protects the employer from costly charges and suits).

The post on Thursday 2/16/17 was about a man suing Lowes for FMLA violations and wrongful termination. John started working at Lowes in March 2012. He said he always suffered from sleep apnea and that, as a result, he sometimes overslept and was up to 5 minutes late for work. John says that Lowes had medical documentation of his condition and need to use FMLA leave to cover the tardies. In Fall 2015, a manager asked John about the tardies; he described his medical condition but the manager told him to arrive on time. Then other potentially discriminatory things happened or were discovered; they are in the post. In May 2016, he was discharged. He filed suit for violations of the ADA, FMLA, state law, and wrongful termination.

TAKEAWAY: Train managers on how to deal with the employer's obligations under the ADA and FMLA – failure to act properly subjects the employer to possible suit.

The post on Friday 2/17/17 told us of an autistic man suing Chick-Fil-A on claims of discrimination. Even the headline doesn't sound good. Suit was filed on claims of a refusal to hire based on the disability. James alleges that the manager told his job coach that the employer "was not interested in hiring people with disabilities" and more in the post. Chick-Fil-A didn't even know if James was qualified to do the job, with or without reasonable accommodation. Ugh.

TAKEAWAY: If an applicant or employee has a qualifying disability, don't take adverse action at the outset – ask if the person can perform the job's essential function with or without accommodation and, if necessary, start the interactive accommodation process.

Finally, the post yesterday 2/18/17 highlighted an article in which Sara Austin was quoted relative to contingent workers. If you're not sure what that term means, or the potential legal ramifications, see the post.

TAKEAWAY: Know the law as an employee or employer. Sara Austin and Austin Law Firm can help you.

Sunday
Feb052017

ICYMI: Our Social Media Posts This Week – Feb. 5-11, 2017

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.

The post on Sunday 2/5/17 was about the employer, not the staffing firm, being on the hook for a possible ADA violation. Yes you read that right. So what happened? Two job applicants, Katelynn and Tia, sought employment through a staffing agency. They were interviewed and given badges for their job with the employer. When they asked for information, a supervisor allegedly did not respond due to their hearing impairments. Their badges were then taken back and the job rescinded. More details are in the post. The EEOC sued. The employer defended on the basis that it had no duty to provide an ASL interpreter as the staffing agency, not it, was the employer. The court ruled against the employer on summary judgment, saying it was the real prospective employer (and thus had a responsibility under the ADA to accommodate). The post also has more details on record evidence supporting the judge's ruling.

TAKEAWAY: Just as the ADAAA broadened the rights of disabled employees, so too who is an employer is broad – it is probably safest to deem yourself the employer for accommodation purposes and proceed accordingly (or be prepared to defend yourself in a costly suit).

The post on Monday 2/6/17 was about a former employee with Asperger's claiming discrimination by the County. Robert first filed a charge with the EEOC, and, after receiving his right to sue notice, filed suit against Camden County. He alleged violation of both the ADA and FMLA by the County not providing proper accommodation and then retaliating against him. The post goes into more details, including allegations that the County knew of Robert's mental impairment from the time of hire. The County denies all allegations. Stay tuned!

TAKEAWAY: If there is even a whiff that an employee might need accommodation under applicable law, go down that path early – don't wait until suit is filed.

In the post on Tuesday 2/7/17 we talked about a Sikh doctor filing a religious discrimination suit against a potential employer. Yes, potential employer! Here, the suit was filed in federal court alleging that Dr. Singh is an observant Indian American Sikh who maintains a turban and beard for religious reasons. It also alleges that he was denied employment when those 2 things were questioned. (Check out the post on the employer's stance before and after it found out about his looks and religious beliefs.)

TAKEAWAY: Outside of places of worship or related educational institutions, religion probably has no place in the workplace – don't let it be the basis of any (adverse) decisions.

The post on Wednesday 2/8/17 was about Charters Community Health being accused of retaliation over FMLA leave. Ugh. Nancy alleges in her state-court filing in Pittsburgh that the employer forced her to accept a demotion or to resign as a result of taking FMLA leave. The actual details are in the post. She has requested a jury trial.

TAKEAWAY: Even if there is a valid, legal basis for adverse action, the timing or coincidences can make it appear illegal; look at all of that prior to the action.

In the post on Thursday 2/9/17 we noted a manufacturer is not insulated from charges it underpaid a Latina supervisor. Rather, the employer will pay $60,000 to settle an EEOC suit brought for discrimination against an Hispanic supervisor. The suit alleges that she was paid less than male counterparts (and other grounds noted in the post).   

TAKEAWAY: Watch the EEOC's priorities – including national origin discrimination and overbroad English-only policies - and stay out of the cross-hairs.

The post on Friday 2/10/17 was about the Union & Ameridrives International being accused of violating a man's FMLA rights. This suit alleges violation of the (LMRA and) FMLA. Steven sued in federal court alleging that his discharge, after taking advantage of his rights under the FMLA, was pretext. The post has more specifics on the underlying actions and the basis on which each defendant was made part of the suit.

TAKEAWAY: Make sure any adverse action is legally supported and, in the labor context, the Union fulfills its duties to member employees.

Finally, the post yesterday 2/11/17 was about the top 10 things to know about bankruptcy. Every business should know these basics due to the prevalence of bankruptcy filings and their wide-ranging impact. Some of the things to know about are the types of bankruptcy, the automatic stay, what a proof of claim is, the purpose of the creditor's meeting, the priority of any payments to creditors, the effect of a discharge (if the debtor is an individual), what are executory contracts and how they are treated in bankruptcy, and preferences and how they can impact you. More detail about each of those is in the post.

TAKEAWAY: It is almost never a good day when you get a notice that a person or company who owes you money has filed for bankruptcy protection; contact us to help protect your interests, including ensuring you get any payment to which you are legally entitled.

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