Monday
May072018

ICYMI: Our Social Media Posts This Week – May 6 - 12, 2018

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

In the post on Sunday 5/6/18 we saw that Arooga's Sports Bar paid $750K to settle a back-pay investigation. What was it about? Allegations that it failed to pay tipped employees minimum wage and more in the post. Over 1000 employees at 6 locations are affected by the settlement.

TAKEAWAY: Know what you are required to pay employees and do it right the first time.

The post on Monday 5/7/18 asked: Work faster! Does that suffice for an age discrimination or hostile work environment claim? That was the question a federal court recently had to address. The case involved a 54-year-old Costco bakery employee who claimed that the manager did the things in the post. Yes, the manager is 57, not 5. Other things that cut against the claim are noted in the post. But what about the hostile work environment theory – for age? The court analyzed the elements necessary to prevail and came to a decision – see the post.    

TAKEAWAY: Know what your employees are saying or doing and stop anything that could lead to legal liability for you.

In the post on Tuesday 5/8/18 we learned about the types of homes and how they affect your mortgage – especially in a planned community (condo or HOA). The main types of homes are single family, manufactured, condominium, cooperative, townhouse, and multi-unit. The type can affect the mortgage you get and the interest rate. The post talks about the various types and how others in the neighborhood can affect your house (and mortgage). This is especially important if you are looking at (or living in) a house with a condominium or homeowners' association. See the post for more details.

TAKEAWAY: Condo or homeowner associations can have unexpected effects on mortgage availability and rates – check into this before you need to know it.

The post on Wednesday 5/9/18 told us to keep complete records of complaints to counter last-minute legal claims. Remember: document, document, document. A federal court rejected a suit because the underlying claim was not part of the original suit. Aldrige sued, alleging retaliation for complaining about his pay. He mentioned Title VII, but not race. Only later in the suit did he bring in race. See the post for how the court handled this.

TAKEAWAY: Let's end where we started: document, document, document.

In the post on Thursday 5/10/18 we learned a court orders wine bar to pay $100,000 in EEOC sexual harassment and retaliation suit. Heady amount! The suit alleged that management and staff harassed Wyatt and Lared based on their actual or perceived sexual orientation – including name calling, comments, and more in the post. They complained but nothing was done. Except, oh yeah, management sometimes joined in. Ugh. What do you think happened when Wyatt threatened legal action? See the post. So suit was filed, the company did not respond, and the court entered judgment against it. The post tells of what the judgment consists.

TAKEAWAY: Management and owners must not only ensure that employees are free from illegal harassment, but not participate in the harassment themselves.

The post on Friday 5/11/18 told us that an employee handbook led to dismissal of a claim. Huh? Yes, a handbook is good for more than being a paperweight. Here, Ommer was a funeral director. His medical condition did not affect his work until he needed time off. The post gives some of the history. Including his termination. And then he sued. The defense was … see the post. And it worked!

TAKEAWAY: Have a handbook or policy manual and enforce it evenly. We can help you.

Finally, in the post yesterday 5/12/18 we read that the EEOC sued Walmart for disability discrimination. For what? Allegedly not reassigning a long-time employee after she became disabled. The reason that is allegedly illegal is in the post.

TAKEAWAY:  Yes employers have an obligation to accommodate disability. That obligation extends to reasonable accommodation.

Monday
Apr302018

ICYMI: Our Social Media Posts This Week – Apr. 29 - May 5, 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 4/29/18 we saw a court ruling highlighting when alcohol is and isn't ADA-protected. James filed suit, alleging disability discrimination based on being a recovering alcoholic. The acts he cites to in support of his allegations are in the post. His suit was not successful for 2 reasons. First, he didn't prove that the alleged acts were related to his alcoholism. The second reason is in the post and is even more key.

TAKEAWAY: Claiming a disability and proving it are not the same – and employers should make employees scale that height.

The post on Monday 4/30/18 warned to watch out for Section 1981, the ancient law that can put your own assets at risk. Most people are aware of Section 1983 in the civil rights context. But are you aware of another federal statue commonly referred to as Section 1981? You should be! Here, Nelly, a Hispanic women from Ecuador, was a housekeeper. She alleged constant offensive harassment based on race ad national origin. Examples are in the post. When she was unable to sue under Title VII (for procedural reasons), she sued under Section 1981. The theory of her case is in the post. And that theory will get her to trial (unless the case settles).

TAKEAWAY: If your personal assets are on the line, and for bigger numbers, know what the law says and what you need to know or do to defend against a suit brought under it.

In the post on Tuesday 5/1/18 we read: "We did not sign up to work at a strip club": former servers allege sexual harassment at 'breastaurant". You've read about Hooters Girls, now read about the Twin Peaks Girls. They had to be physically fit and wear a tight T-shirt (showing cleavage and some midriff below the belly button), short khaki shorts and knee-high mountain boots. Getting the mental picture? Then put those girls in a line-up … and the other things alleged to have happened as noted in the post (make sure to read all the way to the end as the allegations are intersperse throughout the post). As if that wasn't bad enough, the employees had to sign something talking about the essence of their role – see the post – that gave the charges even more credence. And how many suits will have police as witnesses?!?! Two of the charges were filed by women, the third by a gay man. And when the women complained – what management said is in the post.

TAKEAWAY: Know the limits of requirements for uniforms/required clothing and don't push them – or you too might find yourself as a defendant.

The post on Wednesday 5/2/18 alerted us that legislation assigning investigation and mediation of certain complaints re planned communities and condominiums to Bureau of Consumer Protection is on the way to the Governor for signature. Wonder how this will work out?

TAKEAWAY: Keep up with the law. Know what the law requires and of whom.

In the post on Thursday 5/3/18 we saw that the EEOC sues Arby's franchisee over alleged sexual harassment. We also noted that's not the kind of meat the commercials refer to (you know: "Arby's has got the meats.") So what happened? The EEOC filed suit alleging sexual harassment of teenaged female employees, including hiring a team leader trainee with a known history of sexual harassment (whose alleged actions are in the post), deliberate touching (detailed in the post) and more. Despite complaints, management did nothing until the harasser physically injured one of the girls. The franchisee has not yet responded.

TAKEAWAY: if you know about illegal actions taken by an employee, take immediate action to stop it (and don't put the person in a position of being able to repeat the actions in the future).

The post on Friday 5/4/18 referenced DOL opinion letters under the FLSA on pay for time spend travelling away from home and non-exempt employee's 15-minuite rest breaks necessary under the FMLA due to a serious health condition.  The first opinion letter (released 4/12/18) addresses whether an employee is entitled to pay for time spent raveling away from home and tells when it is compensable (see the post). Another opinion letter (released the same day) provides guidance on whether a non-exempt employee who takes 15-minute breaks which are FMLA approved is entitled to compensation for the breaks. The opinion analyzes if and how these breaks differ from other breaks and why they are or are not compensable – see the post.

TAKEAWAY: As important as knowing what to pay employees is knowing for what to pay them – know the law and be in contact with an attorney who can help.

Finally, in the post yesterday 5/5/18 we read that an employee may have to take paid leave and FMLA leave concurrently. We noted this does not require a new law or new interpretation. In the post, the state had enacted paid family leave. But often companies have a policy for some sort of paid family leave. In either scenario, employers should determine whether or not the leaves run concurrently (so as to minimize the employee's time out of work) and what portions are paid and unpaid. The post gives some examples.

TAKEAWAY:  If the leave qualifies under the FMLA, then it should be required to run concurrent with FMLA leave time and is only paid to the extent of any paid time provided by the company (or applicable state law).

Tuesday
Apr242018

ICYMI: Our Social Media Posts This Week – Apr. 22-28, 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 4/22/18 we saw that the battle continues over nuisance geese in a community (and asked how your association would handle the situation). The Association wants to take lethal action against the geese; homeowners object despite the problems caused by the geese (detailed in the post). Other ways to deal with the problem were suggested by advocates and are in the post.

TAKEAWAY: Associations must act in the best interests of owners, but often there is more than one way to solve a problem.

The post on Monday 4/23/18 told us the Atlanta Hawks were sued for racial discrimination by a white ex-employee. We noted that the past becomes the present (more on this later). Margo, employed by the Hawks for over 5 years, alleges that an African-American male appointed as a supervisor of her department acted against whites as noted in the post, including making jokes about white culture and having different expectations depending on the employee's race. Margo's allegations include what happened after she complained – see the post. So what about the past? The Hawks were sued last year by a former security manager who alleged he was fired in retaliation for bringing up an alleged racist system of discrimination. The post contains the basis of that suit (which is still pending). And there is more – see the post.

TAKEAWAY: Remember that race discrimination can happen as against the majority too – make sure all employees are treated the same regardless of race.

In the post on Tuesday 4/24/18 we learned that no, it's not a man's world, which is why the EEOC sued. We all know that it is sometimes difficult to make supervisors or managers understand and abide by all rules. In the meantime, they act in ways that can be costly for the employer. In the post, Patricia worked at the stoves in a kitchen for a food service company. She applied for a promotion. Two others, from the outside, also applied. After not being chosen, Patricia asked why. The response she got is in the post – and will hopefully surprise and disgust you. When she complained, she suffered retaliation. See the post. The EEOC ended up suing on her behalf.

TAKEAWAY: if an employee acts in a way that is contrary to the law, admit it and make things right – don’t become embroiled in a lawsuit.

The post on Wednesday 4/25/18 asked: Does the ADA apply in the internet era? When the ADA was enacted in 1990, the internet did not exist as we know it today. Courts have come to contrary decision on the question of whether the ADA applies to goods and services provided solely via the internet. Those items are dealt with under Title III of the Act – see the post for more details on what it includes. Why (or how) the current issue arises is also listed in the post. In a 1998 case, the Third Circuit (the federal appellate court governing cases from PA) required a physical location for the ADA to apply. What other federal circuits have done is in the post. The big issue now is whether the ADA applies to websites.

TAKEAWAY: Know what the ADA does apply to and err on the side of caution on those things that are in the uncertain territory.

In the post on Thursday 4/26/18 we looked at service dog versus emotional support animal: Associations must k now the difference. Know that service animals and emotional support animals are NOT the same thing. The post notes the difference. When an Association has a no-pets (or limited pets) policy/covenant and the animal at issue might violate the policy/covenant, the Association must know how the animal is classified to know how it must be treated (and if the ADA comes into play).

TAKEAWAY:  Know what animals must be allowed regardless of any policy/covenant; consult legal counsel if there is a question.

The post on Friday 4/27/18 clarified that working on the side doesn't stop eligibility for unemployment benefits. At least in some situations. Here, Donald lost his job and applied for UC benefits. The question was whether or not he became self-employed (which affects UC eligibility). See the post for a summary of the facts and why the Court ruled as it did.

TAKEAWAY: Don't assume that earning money through self-employment will automatically disqualify a former employee from receiving UC benefits – look at the facts.

Finally, in the post yesterday 4/28/18 we learned that a denied training request wasn't gender discrimination. Here, in another case from the Third Circuit (the federal appellate court which governs cases from PA), we have a holding as to what constitutes an adverse action (that can amount to discrimination). Helen worked as a prison guard; she sued for gender discrimination. A jury found in her favor based on the employer's failure to allow her to attend a training class (but permitting a male colleague to attend). The employer appealed. The Third Circuit's ruling is in the post along with its rationale.  

TAKEAWAY:  Talk to your employment lawyer to ensure the basis for treating one employee differently than one from another class/protected characteristic is not sufficient to constitute discrimination.

Monday
Apr162018

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

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

In the post on Sunday 4/15/18 we asked: Surprise lawsuit? Check EEOC paperwork. It is oh-so important to ensure the same allegations throughout the matter – from administrative filing to judicial (court) filing. In the post, Lisa was hired temporarily, then full-time, but later fired when the employer discovered she did not meet the qualifications for the position. She filed a charge with the EEOC. The basis for her charge is in the post. She later filed suit. The suit was dismissed.

TAKEAWAY: Check paperwork carefully – make sure all legal T's are crossed and I's dotted or assert the defense.

The post on Monday 4/16/18 was about the certainty of publicity of a newly-filed lawsuit. We suggested employers take heed. Yes suits are filed all the time against individuals and corporate entities. And the media write about the suits. But is there ever any follow-up after the initial filing? Rarely. As noted in the post (by my good friend Dan Schwartz), the public gets the juicy allegations and, usually, nothing in response. Employers must be prepared for this day. The post gives a tip as to how to do just that.

TAKEAWAY: It is not easy to try a suit in the public eye, but today that eye is all-seeing and forces an employer to do just that. Be ready. Have a plan in place that has been vetted by legal counsel.

In the post on Tuesday 4/17/18 we read that bible study was banned by a condominium association. And now the owner is putting up a fight. Is this a religious issue or a rules issue? Or both? Planned communities (condominium and single-family units in a homeowners' association) have governing documents - covenants, Bylaws and rules - by which residents must abide. The governing documents can provide for who can use common property owned by the Association. The issue in the post was whether the association could legally do what it did.

TAKEAWAY: Associations should have in place governing documents that do not reference religion or any other protected characteristic – and be prepared to defend against a lawsuit if an action is take that implicates a protected area.

The post on Wednesday 4/18/18 told us that Lowes must pay after yanking ADA accommodation. How to make people not feel at home. So what happened? A supervisor lost the use of his right arm after a spinal injury. He was still promoted and allowed to delegate certain things. Then, 6 years later, Lowes pulled the accommodation. See what happened next in the post.

TAKEAWAY: Before rescinding or changing an accommodation, especially a long-standing one, check with legal counsel as to the possible ramifications and act accordingly.

In the post on Thursday 4/19/18 we saw that a short ADA accommodation delay is no problem. But be reasonable. Yes the interactive accommodation process is to start upon a request being made or the employer becoming aware of the need for accommodation. But knowing what to offer, or bring to the table, isn't always known immediately. The post gives one example of how an employer might deal with a situation like that and still meet its legal obligations.

TAKEAWAY:  Fulfill the legal obligations under the accommodation process, but do it right – so take the (reasonable) time necessary to figure out what is right in the circumstances.

The post on Friday 4/20/18 told us a federal appellate court says prior salary can't justify the gender wage gap. Pay attention. While this court decision is not binding on us here in PA, it may have kicked open the door to future rulings that do hold sway in PA. The court said that an employee’s prior salary - either alone or in a combination of factors - cannot be used to justify paying women less than men in comparable jobs. The decision (see the post) noted the split among courts (with the Tenth and Eleventh Circuits ruling as did the Ninth here, and the Seventh ruling to the contrary). The rationale for the decision is in the post and is sensible on both common-sense and statutory-interpretation bases.

TAKEAWAY: Don't base an employee's salary on what s/he made at a prior job if that would make the current pay higher than someone of the opposite gender doing the same job.

Finally, in the post yesterday 4/21/18 we saw rulings in favor of Title VII protections for LGBT workers are on the rise. In the oft-changing legal landscape of LGBT workers and their protection under the law, courts are slowly moving to acknowledge equal protection on the basis of Title VII. Recently, 2 federal courts (the Second and Sixth Circuit Courts of Appeal) have ruled that Title VII prohibits discrimination on the basis of sexual orientation and transgender status. The post lists the other federal appellate courts that have ruled similarly on those 2 issues. The EEOC also has a position on the issue (as noted in the post). PA has no governing law or judicial interpretation on this yet, nor does the US Supreme Court, but it is only a matter of time.

TAKEAWAY:  Until a definitive ruling that governs PA workplaces, just don't do it. Treat all employees and applicants the same and judge work performance, not the person doing the work.

Monday
Apr092018

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

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

In the post on Sunday 4/8/18 we read that the FMLA covers remote, mobile employees. Yep. Why? Because, as the post explains, the work site is the location to which the employee reports and from which assignments are made. That means the employee must get required notices and is entitled to all rights under the FMLA. The post gives some tips.

TAKEAWAY: Know who is entitled to protection under which law – before you have to respond to suit.

The post on Monday 4/9/18 told us to dig into harassment case to learn what really happened. Good advice! Let's say an employee alleges sexual harassment by a supervisor? Do you take the employee at his/her word? No, you investigate. And maybe your situation will turn out like the one in the post!

TAKEAWAY: Documentation can be key, but any evidence to counter the allegations of harassment by an employee is helpful to defend an employer.

In the post on Tuesday 4/10/18 we learned that telecommuting becomes a more reasonable ADA accommodation every year. The ADA requires that an employer offer a reasonable accommodation if possible and not a hardship, but it does not specify what accommodation are reasonable or possible. That is left up to the parties in each situation. It may depend on the job description, actual practice, or something else, all as noted in the post.

TAKEAWAY: Interactivity is key to accommodation, but a starting point will be the essential functions listed in the job description and the actual practice.

The post on Wednesday 4/11/18 was about Association home front: wake-up call on playgrounds – exercise or peril? Associations, whether for condominium, townhouse, or single-family houses, need to know their rights and responsibilities relative to common facilities. In the case in the post, the association was found liable for the injury in an amount that far exceeded its insurance coverage. When might the association be found liable for injury? Examples are in the post. Associations need to have protocols and rules in place to deal with common elements and then follow those protocols.

TAKEAWAY: Every common element might lead to responsibility for the Association, so treat it with kid gloves and consult a lawyer knowledgeable in the area as to the legal ramifications.

In the post on Thursday 4/12/18 we saw that the ability to work a 12-hour shift wasn't an ADA essential function (said the court). In keeping with this week's mini-theme, we are reminded that the job description must contain the essential functions the employer actually believes are essential to the job. If not, something similar to what happened in the post might happen to you. Also, as noted in the post, the actual practice is important too.

TAKEAWAY: Have a job description, list the essential functions of the job, and follow the job description.

The post on Friday 4/13/18 asked: would the Stormy Daniels NDA be enforceable under Pennsylvania law? We all know that non-disclosure agreements, also referred to as confidentiality agreements, are disfavored, but they are certainly in vogue right now. Most include provisions in case of breach by the employee – see the post. In Stormy's NDA, she was prohibited from speaking publicly about the behavior that is the subject of the agreement and there was huge penalty if she were to violate the agreement. Some other terms of the NDA are in the post, including an identification of the parties. The post analyzes the NDA under PA law as to whether or not it might be upheld.

TAKEAWAY: If you insist on having a restrictive covenant, make sure an attorney vets it for (probable) validity and enforceability.

Finally, in the post yesterday 4/14/18, we noted a plant manager's texts could be sexual harassment. Samantha was an inventory control supervisor for Coca-Cola. Her plant manager sent her over 5000 texts – he also did more noted in the post. It all created problems in her marriage and made his wife come to the workplace (why? See the post). The supervisor ended up being transferred but his harassment didn't stop. Yep, he did these things noted in the post. Why does it matter that he continued the actions? Because it showed a pattern or practice that brought in behaviors prior to the look-back deadline date. Other things that the court ruled on are in the post.

TAKEAWAY:  To avoid this type of situation, train your employees and make sure they follow the training – take action if they stray.

Tuesday
Apr032018

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

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

The post on Sunday 4/1/18 was a Happy Easter wish (to those who celebrate it). That's it.

TAKEAWAY: Sometimes you just have to step away and enjoy the season.

The post on Monday 4/2/18 was about a $13M award in a sexual harassment jury trial. That included $11M for punitive damages so it will probably be reduced as a result of statutory caps. The compensatory and emotional distress damage award of $1.7M will probably stand. So what happened to lead to these numbers? The plaintiff was employed for 30 years. Her suit alleged inappropriate conduct by her immediate supervisor beginning years before. That conduct included many comments such as "I would tap that ass if you wasn't so old", "Damn, you look good", and others in the post. Her work was also determined based on her sex as noted in the post. After reviewing what is required to prove a hostile work environment claim, the post applies it to this case.

TAKEAWAY: Train employees, especially managers, what to say and not say to employees and take action if they stray.  

In the post on Tuesday 4/3/18 we learned an employer rejects older applicant: "age will matter". Yes it will – in the lawsuit. Here, an IT staffing company paid $50,000 to settle an EEOC age discrimination suit. So you apply for a job. The potential employer learns your date of birth. The potential employer sends an email about the year of birth and says "age will matter." The potential employer gets sued. Yep, saw that coming. More details are in the post, including the other relief the employer will provide.

TAKEAWAY: Don't make employment-related decisions based on age – or your pocketbook might get a lot lighter.

The post on Wednesday 4/4/18 asked: is condo or homeowners' Association liable for injuries on Association property? The answer is "it depends". On whether the Association breached a duty of care. On whether the Association controlled the property that contained the hazard – with control being defined as in the post. Are there defenses the Association can assert? Of course. They include that there was no dangerous condition and others in the post.   

TAKEAWAY: Associations must be vigilant about property they own or control, but that does not always translate to liability for every injury that occurs on the property.

In the post on Thursday 4/5/18 we learned about 8 helpful hints on what not to say (or do) to a pregnant employee. "Do not get pregnant, you have too many children, and the next person to get pregnant should stay home and consider herself fired!" Don't say that. If only that were not something that an employer actually said to employees. The post contains what else the employer said. Ok, hint #1 done. The next hint is not to assume you as the employer know what's best for the pregnant woman of her unborn child – let her make any decisions that may affect either of them. Hint #3: don't say something stupid, especially if it is being recorded. Hints 4-8 are in the post.

TAKEAWAY: Treat pregnant employees just like all other employees. Let them make decisions about what they can and cannot do.

The post on Friday 4/6/18 told us the EEOC sued an employer over a forced retirement policy. Ouch. An oral surgery practice will pay $47,000 to settle the suit. Apparently it fired Karen just after she turned 65 (and after having worked there 37 years!). Why was she fired? The Company's policy. The post tells us why that's so wrong.

TAKEAWAY: As we said Tuesday, don't make employment-related decisions based on age. Make them based on job performance.

Finally, in the post yesterday 4/7/18 we read about 11 types of workplace discrimination employers should be aware of (and how to avoid them). First, employers must know what constitutes workplace discrimination. (The post goes into that a bit.) tthe types of discrimination to be aware of include age, sex, race, religion, and 7 others listed in the post. So how does an employer avoid workplace discrimination? Have a handbook / policy manual and evenly enforce it. Two other ways are listed in the post.

TAKEAWAY: Know the law, obey the law, act (or don't act) uniformly, and consult an attorney when in doubt or to help keep your nose clean.

Monday
Mar262018

ICYMI: Our Social Media Posts This Week – March 25-31, 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 3/25/18 we asked: Is sexual orientation protected by federal anti-discrimination laws? 2nd, 6th and 7th say yes, 11th says no. There is currently no federal law barring discrimination because of sexual orientation. But some courts have held that Title VII's prohibition of discrimination on the basis of sex covers sexual orientation. So does the EEOC (but not the current Justice Department). See more in the post.  

TAKEAWAY: The federal appellate court governing PA has not yet ruled, but the tide seems to be turning in favor of protecting people form discrimination on the basis of sexual orientation.

The post on Monday 3/26/18 noted tattoos at work: more acceptance. Yet still some legal risk. What does that mean? It means that employers still have discretion as to dress and grooming policies. But those policies must be evenly applicable and evenly enforced. Examples of when that did not happen with tattoos are in the post.

TAKEAWAY: Don't treat tattoos any different than other dress or grooming "parts"; apply any policy to all employees.

In the post on Tuesday 3/27/18 we talked about new rules condo and HOA boards (and owners) need to know about. The rules aren't new – they were effective October 2016 – but they can be important. They recognize both quid pro quo and hostile environment harassment under the Fair Housing Act. Both are defined in the post. They are pretty easily understood. However, the kicker is the other part: third-party liability. As noted in the post, if the third party occupies a certain position relative to the Association, then the Association might be liable for conduct of the third party. The post also gives some pointers on how to deal with all of the rules.

TAKEAWAY: Have a knowledgeable attorney when dealing with condo/HOA issues. Contact me for assistance if needed.

The post on Wednesday 3/28/18 noted employee are also required to engage in the interactive process under the ADA. Yes, the interactive process is a two-way street. Here, Sloan was a production manager for a label manufacturer and printer. He used heavy machinery. The company policy required notification of nonprescription or prescription medication. Sloan began taking medicines while at work – not always according to his prescription. He didn't inform the employer when discovered, he had to undergo a drug test. What happened next is in the post. After termination, he sued for disability discrimination. The court ruled against him for the reasons in the post.  

TAKEAWAY: look both ways – interact – or don't expect protection by the ADA.                                                      

In the post on Thursday 3/29/18 we reaffirmed that dogs rule at work! What we can learn from dogs and take to the workplace. Some of the things we can learn are to respect and treat people regardless of race, religion, color, national origin, veteran status, or sexual orientation; to be selfless and look to please others; and more in the post.

TAKEAWAY: In the workplace, think how a dog would act and emulate it.

The post on Friday 3/30/18 told us female employees at Microsoft filed 238 discrimination and harassment complaints over a 7-year period. Wow. That came to light as part of a suit filed by employees alleging gender discrimination. And Microsoft admitted to one prior complaint being well-founded (one too many in this author's opinion). More background is in the post.

TAKEAWAY: Even big, progressive companies find themselves on the receiving end of discrimination and harassment complaints – every employer should take action to prevent discrimination and harassment.

Finally, in the post yesterday 3/31/18 we break down Adrienne Lawrence's lawsuit against ESPN and the company's possible defenses. A former ESPN employee filed a sex discrimination suit in federal court. It alleges broad actions, including that male executives, producers and on-air talent keep scorecards listing and ranking female colleagues based on sexual attractiveness and more in the post. Many of the allegations are based on witness allegations. The suit was filed against the company and 4 individual defendants (named in the post). Some of the defenses ESPN might assert are also listed in the post.

TAKEAWAY: Plaintiffs always have the burden of proof; but a past pattern will go a long way toward what they need to show.

Tuesday
Mar202018

ICYMI: Our Social Media Posts This Week – March 18-24, 2018

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

In the post on Sunday 3/18/18 we found out that a federal court holds that settlement offer on time-barred debt may be an FDCPA violation. The court governs us in PA, so pay attention. The plaintiff owed over $1200 to a fitness center. The defendant, a debt collector, sent a letter with settlement language (which is in the post). At the time the letter was sent, applicable state law barred collection on the debt. The debtor sued. The debt collector won a dismissal at the trial court level, but she appealed. The Court looked at its prior case, distinguishing it, and noted what the issue was for decision (see the post). The court's holding is in the post and makes sense given its analysis.

TAKEAWAY: Be careful of the language you use – in settlement offers or elsewhere. Those words could indeed be used against you in a court of law, even in a civil matter.

The post on Monday 3/19/18 we read that the FMLA (probably) does not cover the loss of a pet. Here, Joseph was a machinist. He had to put his dog to sleep. He requested use of a vacation day which was approved. The next day he called in again. The employer deemed it unexcused. He also went for medical treatment. What followed is in the post. He ended up being terminated for excessive absence and sued. The court's analysis is in the post and provides a good reminder of what an employer should look at in this situation.

TAKEAWAY: Don't just ignore an employee experiencing grief over the loss of a pet; likewise, don't just give in either. Follow the law.

In the post on Tuesday 3/20/18 we saw that female firefighters faced scalding showers and urine-soaked walls (said a federal lawsuit). Oh yes, they also faced death threats. And the suit was brought by DOJ against the City of Houston. The suit alleged that male firefighters urinated in the women's bathroom and dorm; more allegations of male behavior are in the post. Finally, it alleges that the employer did nothing after the women complained (a no-no).

TAKEAWAY: Make sure your employees know that certain behaviors will not be tolerated – and then do not tolerate them if investigation of a complaint proves they occurred.

The post on Wednesday 3/21/18 noted Google fired disabled, transgender man for opposing his co-workers' bigotry and white supremacy, lawsuit alleges. Tim was a site reliability engineer. He alleged that Google's internal social media was widely used to belittle and harass women, people of color, LGBTQ employees, and others. He also alleged that when he objected, he was fired. The reason allegedly given to him by HR for his termination is in the post. Some of his other allegations, which are pretty revealing, are in the post.

TAKEAWAY: Treat all employees equally; especially don't take adverse action based on a protected characteristic or opposition to discrimination against another.

In the post on Thursday 3/22/18 we learned the EEOC is prioritizing pay equity cases and noted employers should review compensation systems. The EEOC has 6 priorities for the 2018-21 time frame and pay equity is one of them. Four companies recently found out just what that means. One, Pizza Studios, was found to pay men and women differently and to have retaliated against a female employee who had complained about the pay differential. More details about that case, along with the other 3 companies' stories (which were also in court cases) are in the post. It's not only gender pay equity that concerns the EEOC – other differentiating factors are in the post.

TAKEAWAY: Make sure you pay employees the same for doing the same job and be able to justify any differences.

The post on Friday 3/23/18 told us a former Chobani employee sues company citing disability discrimination. Griselda alleged that Chobani wrongfully terminated her employment and refused to accommodate her disability. What happened before that is in the post.

TAKEAWAY: When faced with a request for accommodation, engage in the interactive accommodation process. Don't just fire the employee.

Finally, in the post yesterday 3/24/18 we noted an ADA accommodation doesn't have to continue indefinitely. There is no bright line, but indefinite is definitely too long. Bobby had a stroke in 2014, underwent lengthy medical leave and rehab, and then returned to work. He had difficulties; after another accommodation request, he was transferred. He was then fired. More of the details between those bare facts are in the post. The court's analysis is also in the post. It is also interesting to note the employer (at the end of the post).

TAKEAWAY: Employers have a duty to accommodate (when there is no hardship and accommodation is possible), but not forever.

Tuesday
Mar132018

ICYMI: Our Social Media Posts This Week – Mar 11 - 17, 2018

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

In the post on Sunday 3/11/18 we noted that's what friends are for: federal court extends retaliation protection to employee's friend. Yes, more corners to look around. Just like the regarded as prong under the ADA, here the person asserting the claim did not do anything, but is assumed to have done something. The post explains the rationale.

TAKEAWAY: Don’t retaliate against anyone, period.

The post on Monday 3/12/18 told us a former server files a lawsuit alleging religious discrimination (and we noted that steak's not so juicy now). Yes, the employer is a steakhouse. The suit alleges the server met "cultural insensitivity and outright Islamophobia". Examples are in the post and are not pretty. Of course, the employer's response to the complaint was also not pretty – see the post.

TAKEAWAY: If an employee makes a complaint, don't laugh it off. Investigate it and take appropriate action.

In the post on Tuesday 3/13/18 we noted that FMLA leave is not available following a pet's death. Well, probably not. It depends how the mourning manifests and whether or not it meets the definition of a serous health condition required for FMLA protection. The post goes through the court's analysis of eligibility and why it was not met in this case.

TAKEAWAY: Don't just jump to approval of a requested FMLA leave – make sure the employee is actually eligible under the circumstances.

The post on Wednesday 3/14/18 brought an alert: liability as a joint employer is back on the table. Are you shaking your head in disbelief? The NLRB, which earlier decided there was no joint liability, now reversed course. It decided that one of the Board members who participated in the decision had a conflict, so the decision was overturned and the law reverts to its prior joint employer liability – at least for now. The post explains what that may mean for you.

TAKEAWAY: Even at non-union workplaces, employees must know what the NLRB is doing and how it affects them.

In the post on Thursday 3/15/18 we saw a suit alleging woman forced to get flu shot or lose job. We asked if it was a real religion (do you know why we asked that?). Barnell was a nursing assistant who requested exemption from a policy requiring flu vaccines because she believed Bible-based scriptures prohibited it. Policy allowed employees to opt out with a writing from their clergy person. The post tells us what happened next and why the suit was filed.

TAKEAWAY: If someone has a sincerely-held religious belief, whether or not it is a "real" religion, employers must honor that belief and accommodate (if there is no hardship).

The post on Friday 3/16/18 was a warning: Texter beware: emojis as evidence. We asked if your Handbook or Policy manual covers this emerging area. Emojis are becoming commonplace in all areas of life, but does that mean they are appropriate for the workplace? We used to say not to put things in an email you didn't want on the front page of the NY Times. Now emojis are being given the same dubious treatment. The post explains how they might come into a court proceeding.

TAKEAWAY: Protect yourself – deal with emojis in your handbook or policy manual.

Finally, in the post yesterday 3/17/18 we asked: is your condo or homeowner association managing your money wisely (and do you know the owners' and Board's rights and responsibilities). In the association in the post, there were questions. And residents were not getting answers. Every owner and Board member should know what owners' rights are to financial information and what obligations the Board has to provide information (even when not asked).

TAKEAWAY: Each Association's Governing Documents provide some rights and responsibilities; applicable state law provides others. Know what is required, including to whom a fiduciary duty is owed to manage finances. Engage legal counsel if you are not sure of the next step.

Wednesday
Mar072018

ICYMI: Our Social Media Posts This Week – Mar. 4-10, 2018

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

 In the post on Sunday 3/4/18 we learned that a comic sued Upright Citizens Brigade for reverse gender discrimination. In round 1, Upright Citizens Brigade, a well-known improve group, booted Aaron based on rape allegations. Now, in round 2, Aaron is suing, alleging reverse gender discrimination. The basis is in the post. Apparently Aaron wasn't even questioned during the investigation. Read more in the post.  

TAKEAWAY: Before taking adverse action against an employee, make sure you have a solid, legal basis for doing so. It might prevent or it might provide you a defense.  

The post on Monday 3/5/18 was mistakenly omitted – we apologize for the day without a post.

TAKEAWAY: We are human – we make mistakes too. Oops!

In the post on Tuesday 3/6/18 noted that another severance agreement bites the dust: EEOC continues campaign against provisions that preclude talking to the government. The business, Coleman Company, allegedly discriminated on the basis of disability. The EEOC investigated, and found retaliation under the ADA and Title VII based on the language of the settlement agreement. Read more about it in the post.

TAKEAWAY: When trying to resolve a possible future situation with an agreement, make sure the provisions of the agreement are valid and will give you the protection you seek. Have an attorney review or write the agreement.

The post on Wednesday 3/7/18 told us the Supreme Court hit pause on state statutes of limitation. What does that mean? While a federal claim is pending, a state statute of limitations is tolled (is frozen). As background, Stephanie filed a suit under Title VII and state law. By the time the suit was dismissed, the time had run on re-filing the state claim. More details on the case background are in the post. On appeal, in interpreting the word "tolled", the Supreme Court said the re-filing was timely.     

TAKEAWAY: In any case, you need to know whether the suit was filed timely or if there is a basis to get it dismissed Know the law – or hire an attorney who does.

In the post on Thursday 3/8/18 we read that a pet pig threatened by association gets to stay. What would happen in your association? And the score is pot-bellied pig 1, HOA 0. The family looked at applicable local law and adopted the pig as a pet. The HOA had different thoughts – a year after the pig moved in. The post has more details.

TAKEAWAY: Condo and homeowner associations have rules that all residents must follow. But sometimes a rule can have an exception. Know the rules. 

The post on Friday 3/9/18 reminded us that stores (and other public places, like most businesses) should know ADA support animal guidelines. The post was a true story. Two shoppers entered a store with their service dogs. The dogs did not wear identifying vests so they were denied entry. The dogs' federal IDs were shown to the manager and the reason given for one not wearing a vest. The other had no vest but wears a special collar. Both are needed by their owners for medical conditions. See how this ended in the post.   

TAKEAWAY: Owners of public places – not just stores, but most businesses – must know the ADA provisions on service animals to stay out of hot water.

Finally, in the post yesterday 3/10/18 we noted that it is "Hands Off, Pants On" - when guests sexually harass hotel employees. We told you not to be the harasser. What did we mean? The post gives some statistics on the number of hotel employees who were sexually harassed and the types of harassment. Some cities have enacted laws to deal with this situation; they are examined in the post. But even without a separate law, Title VII and state laws may make a business liable for harassment of employees by an invited third party.

TAKEAWAY: Protect your employees – have policies in place and make sure employees know about them. Make sure third parties know that harassment of employees will not be tolerated.

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