ICYMI: Our Social Media Posts This Week – Aug. 13 - 19, 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 8/13/17 we talked about new harassment checklists from the EEOC – get them. And then use them. They include a chart on risk factors for workplace harassment, a checklist for leadership use in assessing workplace culture, and 3 others (listed and linked in the post). They do not replace the advice of legal counsel, but they are a good start.

TAKEAWAY: Materials to help you are available from the agency charged with enforcement – why wouldn't you get them, read them, and use them?!?!

The post on Monday 8/14/17 noted the Atlanta Hawks sued for alleged racism, discrimination. A former employee, Security Operations Manager Samuel Hayes, has sued for alleged discrimination against black celebrities and employment contract termination. It all results from what he says were racially discriminatory security protocols that were not uniformly enforced. He says extra security was put in place at certain venues (see the post for details) and celebrity clients got more or less security privileges based on skin color. Examples are in the post.  Hayes alleges that after he complained about this, he was discharged. The Hawks deny all allegations.

TAKEAWAY: Even if there is no discrimination or differential treatment on the basis of a protected characteristic, a suit alleging same can take valuable human recourses and cost real money – just make sure everything is legally supported and there should be fewer suits.

In the post on Tuesday 8/15/17 was about fear of avoidance: can we terminate employee who has mental illness? We suggested you know the law (and let us help you). And do you know the law (and the answer)? It is: it depends. On whether your locality has an ordinance dealing with this situation (which is unlikely in PA). On whether state law deals with this type of situation (which it probably won't based on the facts). On whether federal law applies – and that's where you get caught. As detailed in the post, the ADA has provisions based on the safety and security of the person and other workers.

TAKEAWAY: Know what you can – or should - and cannot do if an employee poses a safety or security threat to him/herself or to others – contact legal counsel if necessary to ensure all rights are protected and obligations fulfilled.

The post on Wednesday 8/16/17 noted Amy's Country Candles accused of firing woman who claimed sexual harassment by owner's son. Ugh. Just ugh. The suit was filed by the EEOC based on the discharge of a female employee a mere 4 days after she reported sexual harassment by the company owner's son. Allegations include that in May 2015, an assistant store manager got a call from a co-worker, the owner's son, which contained sexual language (see the post for more details). She complained to the owner right after and over the next 3 days. On Day 4 she was fired by text message from the owner. The employer's defense is noted in the post but did not hold up before the EEOC.

TAKEAWAY: Even if an adverse action is legal, it may appear not to be so, thus resulting in the filing of administrative charges or suit against which you will have to defend. Just don't get into that situation in the first place.

In the post on Thursday 8/17/17 asked: What am I doing wrong? Common FMLA mistake: assuming adult child is not a covered family member. Yes the FMLA also covers adult children (those 18 or older) incapable of caring for themselves due to physical or mental disability (as defined by the ADA). The post reviews 2 federal court opinions dealing with this provision. In the first, the court found the child's situation to fit squarely within the FMLA provision, whereas in the second it did not. Read the post to see the differences and nuances.

TAKEAWAY: When confronted by an employee asking for FMLA leave to care for an adult child, don't immediately deny the request – see if it is covered by the law and then fulfill whatever your obligations might be.

The post on Friday 8/18/17 noted the interactive accommodation process requires good faith – from both sides. The post gives a good example of how this might play out. Derrick worked for the City of Austin as a laborer and field supervisor. After a vehicle accident he could not do physical labor. An extended leave followed, after which the City offered him an Admin Assistant position. The post details what the City did to help him succeed in the position. The post also details what Derrick did (not do) to acclimate to the new position. At some point, the termination process started since he could not perform the required duties. After termination, he sued for failure to accommodate. He lost on appeal for the reasons set out in the post.

TAKEAWAY: If accommodation is requested, offer a reasonable one and, if the employee doesn’t give it a good-faith try, go ahead and discharge.

Finally, in the post yesterday 8/19/17 we saw a court vacated summary judgment in an ADEA failure to hire case, finding a triable issue of pretext. Pay attention to this decision from the federal court governing PA. So what happened? 5 seasonal crew members worked for the Delaware River & Bay Authority's ferry, applied for full-time positions, were interviewed, but none was hired. The interviews are ranked and then the hiring decision is made. Deviation from the rankings is allowed for good reason. More on the process is in the post. The plaintiffs sued for age discrimination and retaliation (since they complained about the discrimination). In court, the plaintiffs satisfied their initial burden, so the court looked at the proffered legitimate nondiscriminatory reason that centered on the hiring process to determine if that was mere pretext for some of the positions (with its decision in the post). The court also looked at the other failure to hire claims, found the employer satisfied its burden, but that the employees offered evidence of pretext sufficient to overcome summary judgment. The Court's reasoning is in the post.

TAKEAWAY: If you have a policy or process, apply it evenly. Uneven application or enforcement may come back to bite you, hard.


ICYMI: Our Social Media Posts This Week – Aug. 6 - 12, 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 8/6/17 we talked about the employer's guide to service animals and the ADA – you should know at least the basics. Accommodation under the ADA may include a request to use a service animal – what will you do then, especially if other animals are prohibited on the work premises? What you will do is engage in the interactive accommodation process just as with any other workplace accommodation request. The post lists some things to consider when an animal is involved.

TAKEAWAY: Remember that the ADA's requirement of accommodation may trump a no-animals-in-the-workplace policy if necessary to an accommodation – don't rule it out.

The post on Monday 8/7/17 told us Home Depot fires 70 year old Army vet for confronting shoplifters (and asked if it was from an evenly applied policy or something else). Jim was trained not to confront shoplifters and agrees he violated company policy, but says his military training just kicked in. What he did next is in the post. The employer responded according to what it says is its policy and fired him.

TAKEAWAY: Just because an employee can take action does not mean s/he should take action, especially if there is a policy prohibiting that action. Discharge might legally result.

In the post on Tuesday 8/8/17 we learned that cutting out an accommodation ay be retaliation. Be careful. Here, the EEOC sued for retaliation against an employee who complained about discrimination because an existing religious accommodation was withdrawn. Kelvin was Muslim; he was required to wear a beard. He asked for and was granted an accommodation form the employer's normal grooming policy for his position. Then, after he made a complaint about his supervisor (ugh – see it in the post), he was required to shave. The employer also did more things after that as noted in the post. Kelvin eventually quit.

TAKEAWAY: Investigate every allegation of harassment and discrimination - and do not retaliate against the person making the complaint.

The post on Wednesday 8/9/17 was an alert: federal court confirms one call is all for TCPA violation. Know the (new) law! The case just came out a few weeks ago and is binding in PA. The first issue was whether or not one unsolicited call to a cell phone was a violation of the Telephone Consumer Protection Act. The facts, which will cover even more egregious cases, are in the post. The Court said that yes, this is covered. The second issue was whether or not there was a concrete injury in order that the case could go forward. This is procedural, but important. The Court's decision is in the post.

TAKEAWAY: If the law says not to do something, just don't do it – it is time-consuming and expensive to wait for a court to tell you that you violated the law and must pay.

In the post on Thursday 8/10/17 we read that a Pennsylvania state agency was accused of age bias (and settled the suit). Joseph, older than 40, had 30 years' legal experience, including 17 with the PHRC, when he applied for a positon with the Office of Public Records. During the second interview, the executive director voiced stupid – an allegedly illegal – concern; see the post. A younger, less experienced applicant was selected. The EEOC sued on Joseph's behalf. The case has now settled for $60,000.

TAKEAWAY:  Age rarely if ever will have anything to do with job performance, so don't take adverse action based on age – or you too will find out how costly that can be.

The post on Friday 8/11/17 was a hint: check the filing deadline on an employee's EEOC complaint. What? When an employee files a charge with the EEOC and then receives a right-to-sue notice, s/he has 90 days to bring suit or is barred. Missing the deadline can be fatal to a suit as the post shows.

TAKEAWAY: The employer also should receive a copy of the Notice so make sure to tickle the filing deadline – it may be all the defense you need in an untimely-filed suit.

Finally, in the post yesterday 8/12/17 we asked if employees and contractors do the same work – be prepared to justify classifications. If you have both employees and contractors doing the same thing, and the employees get overtime pay while the contractor does not, you may be in legal trouble. Why? Because they may not legally be contractors. As the facts in the post show, your classification does not always carry the day and you may end up wing money to the "contractor".

TAKEAWAY: As we've said many times, properly classify your workers and pay them properly (and legally) to avoid wage and hour suits.


ICYMI: Our Social Media Posts This Week – July 30 - Aug. 5, 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 7/30/17 it noted the judge allowed a $250,000 verdict to stand in the EEOC's case against Costco. So what happened? The EEOC filed suit on behalf of an employee for sexual harassment by a Costco customer. At trial, the jury awarded $250,000 in damages but no punitives (for the reasons in the post). Costco asked for judgment under the federal rules of procedure; the EEOC asked for back pay and injunctive relief. Both motions were denied and the verdict was upheld – the judge's reasoning is interesting and set forth in the post.

TAKEAWAY: Be careful of the reason you assert for your (in)action – especially if there is evidence that directly contradicts your reason. Make sure your case is legally defensible.

The post on Monday 7/31/17 noted applicant sues Shell, alleging age discrimination, retaliation. Reminder re the breadth of Title VII. This is the second suit filed against Shell in recent history. The first was filed by Crockett Oaks III for allegedly firing him after he objected to hiring preferences based on age and gender (after Oaks and a committee selected Michael Oliveri, a 53-year-old, for a position, executives said no; what they also said is in the post). That case settled. This second suit was brought by Oliveri, the person who had been offered and accepted the position before the offer was revoked. More of the sordid details are in the post.  

TAKEAWAY: Don't hire based on a protected characteristic – unless it is a job necessity. And certainly don't put your discriminatory reasons in writing!

In the post on Tuesday 8/1/17 was a reminder: EEOC initiative targets age discrimination. In this, the 50th anniversary year of the ADEA, there is more emphasis than ever on battling discrimination based on age. The EEOC has filed many suits alleging age discrimination – including the one in the post. It has also settled some cases – one is detailed in the post.

TAKEAWAY: DO NOTmake employment decisions based on age. DO NOTmake age-related comments either. Period.

The post on Wednesday 8/2/17 said Sticks & Stones: when texts and emails will hurt you. You have heard a million times that you should document, document document. Well that's true, but what you document is as important as actually doing it. Documenting something illegal can backfire. The case highlighted in the post is a perfect example. Jennifer Martin was a recent hire for a staffing company. After getting pregnant, she asked about delivery planning since the FMLA did not apply. She sued for pregnancy discrimination after employment ended. The parties' allegations contradict each other as to how and why her employment ended (see the post), but one email from the employer (in the post) prevented summary judgment in its favor, so now the matter moves toward trial.  

TAKEAWAY: Train your managers. Make sure you and they don't hit "send" before reading the content of the email or text and ensuring it, and the action it contemplates, is legal.

The post on Thursday 8/3/17 was about the color of your shoes and at-will employment. You know that the at-will employment doctrine is alive and strong in PA. What you (should) also know is that it does not provide a complete defense in the face of illegal (in)action. So think carefully when terminating an at-will employee. Make sure the reason - and there always is one on the employer's side or why else would you be ending the relationship? – is legally valid. The example in the post is tongue in cheek, but makes the point – taken to the extreme, at-will employment can still result in suit being filed against you.

TAKEAWAY: While at-will means no reason is required for discharge, the employer should make sure that the basis for discharge is legally valid and supported by good facts.

The post on Friday 8/4/17 said that stinks – EEOC sues for employee denied relief from workplace smells. In mid-July the EEOC filed suit alleging violation of the ADA based on the employer's refusal to allow an employee with a sensitivity to workplace smells to telecommute. She has asked 3 times to work from home to avoid smells in the workplace and how they affected her medical condition. The employer's response is in the post.

TAKEAWAY: Yes fragrance sensitivity is real; don't just laugh it off. It may be the result of a medical condition that is a disability under the ADA and requires engaging in the interactive accommodation process.

Finally, in the post yesterday 8/5/17 we turned on the tv for Phoebe Buffay and the ‘Friends’ guide to sexual harassment. OK, stop playing the theme song in your head and read on. In the post, we look at the episode where Rachel is involved with Paulo who got a massage from Phoebe. What Paolo does during the massage is in the post. Of course, Phoebe debates whether to tell Rachel about what happened. Here's how this relates to rthe law: if Phoebe was so upset that she wanted to sue her employer for sexual harassment, would she have a claim? As noted in the post, courts have found employers liable for the conduct of third parties like vendors or customers. But the lessons of Friends don't stop there: the post asks what if Phoebe had been having attendance problems and was fired shortly after the Paolo incident due to those attendance issues? Would she then have a claim for retaliation too? (This happened – see the post.) You need to be careful in the real world – it's not all just sitting around, drinking coffee and whipped cream.

TAKEAWAY: Be concerned about harassment and discrimination from more than your employees – the actions of others who come into contact with your employees could also subject you to liability.


ICYMI: Our Social Media Posts This Week – July 23 - 29, 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 7/23/17 we learned that a jury mostly clears Sears in a discrimination suit. A loss-prevention specialist was stabbed in the line of duty and was fired weeks after returning to work. The question was whether the discharge was lawful (on the bases in the post).

TAKEAWAY: Don't be that company – make sure any discharge has a legal basis and won't smack of retaliation.

The post on Monday 7/24/17 noted that a hiring dispute brings a second lawsuit against Shell. So what happened? Earlier this year, Crocket Oaks III sued Shell for (allegedly) firing him after he objected to hiring preferences based on age and gender (the exact details are in the post). That case settled. However, the applicant at the center of the underlying hiring controversy in the first suit then brought a suit against Shell based for not being hired. Again, more of the background details are in the post. One email quoted in the post really does not look good for Shell.

TAKEAWAY: When adverse action is taken, even against a job applicant, make sure the action is legally viable and there is nothing out there to undermine the asserted basis of the action.

In the post on Tuesday 7/25/17 we listed 4 parental leave questions employers must answer before changing a policy. First, what to call it. Is it maternity leave? Paternity leave? Parental leave? Second, how to pay for and administer the leave. It is a stand-alone policy? Is it a short-term disability? A combination of the two? Something else? These questions and the other 2 in the post must be answered to ensure the policy is legal.

TAKEAWAY: It's good to have policies to ensure that everyone knows the rules to play by and to evenly enforce – but you need to make sure the policies are legal.

The post on Wednesday 7/26/17 told us the company "loses" the lawsuit and the former employee "wins" $1. Yes you read that right. A civil rights suit led to a $1 jury verdict in favor of the employee. The suit alleged race discrimination, harassment and retaliation. But apparently the jury only thought 1 claim, race discrimination, was worthy of a verdict. The jury held the company liable, but found not much harm and so awarded only $1 damages. The bases for the verdict are in the post, including co-workers using racially pejorative terms toward the plaintiff. So why is this case even in the blog? Because a verdict of even $1 can, under the right circumstances, lead to liability by the employer for the plaintiff's attorneys' fees and costs.  

TAKEAWAY: The best scenario is to have no suits brought against you. The next best is to win the suit. Next is to win the suit and have a minimal damages award with no liability for the other party's attorneys' fees and costs.

In the post on Thursday 7/27/17 we learned the ADA says you get to decide what job functions are essential. Why is that important? Because the ADA requires accommodation only to enable a qualified employee to perform essential job functions with or without accommodation. In the post, the threshold issue was whether or not the employee was qualified under the ADA. And in making that determination, what the employee says isn't really relevant.

TAKEAWAY: While the ADAAA made it easier for employees to show they are protected under the statute, it did not eliminate the requirement that the employee be qualified – so employers should look carefully at that issue before moving to the next step.

In keeping with the disability theme, the post on Friday 7/28/17 noted that you make disability assumptions at your own risk: $900,000 verdict for employee upheld. That's a costly assumption! Here, John was employed by the Department of Natural Resources in Iowa. He injured his back in 2011 and went on a leave of absence. He returned to light-duty in January 2012. He slowly resumed his normal duties but always required some help with moving heavy things. In September 2012, he had a physical that ended up with some restrictions which led to questions about whether the employer could accommodate. The post details what happened next – but note that John was never contacted. When he was terminated, he sued and a jury awarded over $900,000 in damages. That was upheld on appeal.

TAKEAWAY: While it is the employer's duty to accommodate (when legally required), it must remember to include the employee in the interactive process and not make assumptions for or about the employee.

Finally, in the post 7/29/17 we learned about the $100,000 mistake the company made with a pregnant job candidate. Ouch! After advertising an upper-level positon and interviewing 6 candidates, you offer the position to one. She accepts and asks about maternity benefits since she is pregnant. Minutes later you send an email rescinding the job offer (using the language in the post). You get sued. And then you agree to pay $100,000 to settle.

TAKEAWAY: Don't make this your company's story. Treat pregnant applicants (and employees) just like everyone else.


ICYMI: Our Social Media Posts This Week – July 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 7/16/17 we learned that umpire Angel Hernandez sued MLB for racial discrimination, citing Joe Torre's animosity. Yes, he's taking on the establishment, Major League Baseball, alleging that he was repeatedly passed over for advancement based on a pattern of race discrimination. How Joe Torre fits into it is in the post.

TAKEAWAY: It doesn't matter who the employer is – discrimination should not happen and will be called to the mat (or plate, as the case may be).

The post on Monday 7/17/17 was about best practices for employers under the EEOC's new strategic enforcement plan. The biggest piece is the "gig economy", where employees are temporary, part-time, leased, employed through staffing agencies, and more. The Strategic Enforcement Plan focuses on the independent contractor relationships to ensure no discrimination. The Plan also has other areas of focus: see the post.

TAKEAWAY: Employers should never run afoul of the law by their actions, but should be especially concerned in the areas targeted by the EEOC for enforcement in the next few years.

In the post on Tuesday 7/18/17 we talked about 'The pregnancy pause': latest 'job' category to explain CV gaps. But will it decrease pregnancy discrimination? Most of the time an applicant will explain the gap period if it was spent on something that adds to the job. But what about maternity leave? That's sort of a "don't ask, don't tell" area to avoid discrimination. To avoid that, a creative agency is trying to get a new category on LinkedIn: "The Pregnancy Pause". The post has more details on the category and how it is supposed to work.

TAKEAWAY: Don't discriminate against an applicant or employee based on pregnancy. Just don't do it.

The post on Wednesday 7/19/17 said that a law firm was ordered to pay $3.1M to an Association (and noted it's a good thing Austin Law Firm knows how to handle these things for you!). So what happened? A NV law firm apparently enabled a contractor to cheat a homeowners' association out of $8M. So now the law firm has been ordered by the court to pay $3.1M to the Association (of which $700,000 is interest). All because a young attorney wasn't supervised and allowed ballot stuffing in an election, the FBI told the law firm it was investigating the attorney for election irregularities (but the firm didn't tell the Association (its client), and the firm represented both sides in a suspicious Association election. The post gives even more sordid details. The irony is that the law firm was brought in to oversee elections because the Association's Board thought there were irregularities.

TAKEAWAY: Make sure you have a law firm you can trust and that it knows what it is doing in the matter(s) in which it represents you.

In the post on Thursday 7/20/17 we learned a couple was stunned to learn the $458,000 they paid for a gulf-front condo may be for nothing. (We also suggested you let us help you with your real estate issues.) You've heard the saying that if it seems too good to be true, it probably is? Well this couple should have heeded that adage. They bought a condo at foreclosure sale because they thought it was a good deal. Then they found out a bank has a superior mortgage (and might soon foreclosure). The worst part relates to the former owner – that's in the post.

TAKEAWAY: Before buying real estate at a foreclosure (Sheriff's) sale, let us help ensure you will get what you think you will be getting – so you don't get stung like this couple.

The post on Friday 7/21/17 had an ADA tip: include GINA safe harbor language re medical information for an accommodation request. You remember GINA, right? Well in those certain circumstances where employers can request medical information (including evaluating an ADA accommodation request), GINA comes to the forefront. And intent has nothing to do with any violation! To be safe, use safe harbor language – a sample is in the post.

TAKEAWAY: Do your due diligence in responding to an employee's request for accommodation under the ADA – but don't violate any other law while complying with that one.

Finally, the post yesterday 7/22/17 told us it's ok to set a high anti-harassment standard – and to enforce it. What does this mean? Well, you (should) know your minimum requirements according to applicable law. But if you as an employer set a higher bar, it is ok – and you can and should enforce it. The employee in the post tried to argue that since the conduct for which he was being terminated was not illegal, the employer could not take adverse action on account of it. The court did not buy into his argument.

TAKEAWAY: Workplace polices are dictated in part by applicable law, but as long as they do not conflict, you can enact and enforce policies stricter than the law.


ICYMI: Our Social Media Posts This Week – July 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 7/9/17 we saw that the Feds say KPMG discriminated against Asians. Yep. There was an investigation that took about 1-1/2 years, with the result being that the company (allegedly) discriminated against 60 Asian applicants. This violated an Executive Order, hence the suit. More background info is in the post.

TAKEAWAY: Whether you are a federal contractor or a private employer, don't take adverse action based on a protected characteristic (including race, color and national origin).

The post on Monday 7/10/17 noted workers sue over workplace discrimination, English-only policy. Who were the offenders? Two nation-wide debt collection companies who allegedly discriminated against Spanish-speaking employees. For what? Speaking in Spanish (1) to Spanish-speaking cardholders on whose accounts they were trying to collect and (2) among themselves. Neither really makes sense, especially when you see more background in the post. One of the companies is even based in PA (not something this author wants to scream from the rooftops).

TAKEAWAY: Language implicates national origin, a protected characteristic, so be careful when restricting the language(s) your employees may speak in the workplace.

In the post on Tuesday 7/11/17 we learned that JP Morgan Chase NA is accused of discriminating against fathers. The post tells us the different amounts of leave given to caregivers and non-caregivers after birth – and that birth mothers are initially listed as the primary caregivers. The father in the post is now the plaintiff in a suit filed against JPMorgan on the basis of discrimination on the basis of sex and gender stereotypes.

TAKEAWAY: Ensure that your policies are gender-neutral. Period.

The post on Wednesday 7/12/17 told us a transgender worker sues McDonald's alleging horrific discrimination and harassment. A manager once commented to La-Ray Reed, a transgender woman, "You think I don’t know what you are because of how you dress and look?” Even after she asked them to stop, that manager and other managers and co-workers did and said other things as listed in the post – too sad this still occurs in today's society! To top it off, she was fired after reporting discrimination. Ugh.

TAKEAWAY: Discrimination on the basis of sexual orientation may be legal in PA, but the EEOC has said it is illegal. Do you really want to take the chance that you might be found liable?

In the post on Thursday 7/13/17 we learned that a gentlemen's club faces a gender discrimination suit by the EEOC. What happened? The EEOC says that a club in Florida did not hire a man for an advertised bartender position (despite his experience) and then hired 2 or more females for the position. The other allegations in the suit are also in the post.

TAKEAWAY: I am unaware of gender being a qualification for almost any job, so don't insert it into the mix (unless you want the word "defendant" after your name in a lawsuit).

The post on Friday 7/14/17 noted that Pennsylvania is split on sexual orientation discrimination (and suggested that you play it safe - don't discriminate on that basis). Yes Virginia, 2 federal courts in Pennsylvania ruled 2 different ways on the question of whether sexual orientation is a protected class under Title VII. As noted in the post, just last month the Eastern District said no. Late last year the Western District said yes. Both cases dealt with gale male employees alleging workplace discrimination due to sexual orientation. The Eastern District relied on an old Third Circuit case, but see the post for what may be prescient from that decision.

TAKEAWAY: The US Supreme Court will have to settle the issue on a nationwide basis, but has not yet done so; in the meantime, just because you may be able to legally discriminate against a PA employee on the basis of sexual orientation does not mean you should do so.

Finally, in the post yesterday 7/15/17 we read about 4 unintentionally sexist phrases (and suggested you don't use them. At all). We all say things that sound innocuous to us but may come across differently to others. Some just don't belong in the workplace, including "She is the office mom" (which demeans women and underscores the other contributions the woman makes). The other 3 are in the post.

TAKEAWAY: Think before you speak – about whether what you are about to say could be taken by your listener(s) in a way other than how you intend it, and then perhaps change your language.


ICYMI: Our Social Media Posts This Week – July 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 7/2/17 we asked: Are WiFi allergies an impairment covered by the ADA? Perhaps, according to a federal court in the Midwest. George was a front desk clerk. He was discharged for sleeping on the job and other bases. He sued, alleging failure to accommodate and discrimination under the ADA. George's reasoning as to how he was disabled is in the post. In the suit, the court said the employee did not show he was disabled within the ADA, having not alleged a substantial limitation of a major life activity. The court also discussed whether or not electromagnetic hypersensitivity is a physical or psychological disorder (which makes a difference for ADA coverage) – its discussion is in the post.  

TAKEAWAY: As always, when you take adverse action against an employee, make sure it has a legal basis.

The post on Monday 7/3/17 told us an appeals court ruled against the EEOC in the Auto Zone discrimination case. Remember this was the case brought by the EEOC alleging discrimination against Kevin, a black sales manager who was transferred from a store with a largely Hispanic clientele, but without change in pay or responsibilities. The suit was brought under a part of the law not often used - but listed in the post. The EEOC lost at the trial court and appealed, losing again on appeal.

TAKEAWAY: Sometimes an action that appears adverse or based on a protected characteristic may not be so – and lack of proof will doom any suit brought on that basis.

In the post on Tuesday 7/4/17 we wished you a Happy Independence Day – and suggested you take a moment to breathe, think and enjoy.

TAKEAWAY: Legalities and employment law are important to a business, but so are recognizing important milestones for our country and the employees.

The post on Wednesday 7/5/17 told us the EEOC sued Applebee's for gender discrimination. The EEOC acted on behalf of a transgender hostess, Danielle, who was harassed by employees who made crude and disparaging remarks to her (including gawking, laughing and pointing to her genitalia  and more in the post) during her short (how short? Read the post) employment. Allegations are that the GM witnessed many of the incidents but did nothing – except what's in the post. But it got worse. Suit followed a failure to conciliate.

TAKEAWAY: Don't discriminate on the basis of gender – it has nothing to do with job performance.

In the post on Thursday 7/6//17 we talked about FMLA abuse: serving jail time, moonlighting, vacationing and more. One example in the post is am employee with a bad back who could not sit or stand for long periods. While she was on FMLA leave, she posted pictures of herself drinking and dancing at a bar. The employer fired her on the basis that if she could dance, she could work. Except that the suit she filed was not dismissed because the employer did not get a medical opinion or diagnosis. More examples - of what to do and not do - are in the post.

TAKEAWAY: Even if the reason for FMLA leave seems outrageous, it may be legal. Investigate before taking adverse action that may come back to bite you.

The post on Friday 7/7/17 asked: Was employee fired for Facebook photos or as retaliation for FMLA leave? Here, the employee took FMLA leave for shoulder surgery. Before his return to work, the treating physician said he'd need another 45 days of recovery. The employee said he'd return for light duty, but provided no medical release as required. Instead, he got 30 days of non-FMLA medical leave. So what did he do during those 30 days? Took several vacations (and posted pictures on Facebook of course). When he returned to work (with a medical release), he was suspended and then terminated. He sued for FMLA interference and retaliation. The trial court dismissed – the reasons are in the post. On appeal, the court let the retaliation claim go forward (on the basis in the post).

TAKEAWAY: Timing of adverse actions can be oh so important – make sure the time and basis are both right.

Finally, in the post yesterday 7/8/17 we noted racial nicknames and inconsistent rules enforcement support a discrimination claim (and that these are easy to avoid). Here, a black employee was called offensive nicknames (including Joe Dirt, Coolio, and others listed in the post) by supervisors and co-workers and was fired for smoking in barred areas (allegedly pursuant to the employer's progressive discipline system which worked on demerits). He sued for race discrimination, including uneven enforcement of policy. For that reason and others (in the post), the case proceeds to trial.

TAKEAWAY: If you base an adverse action on a rule violation, make sure the rule is evenly enforced or you may find yourself on the wrong side of a suit.


ICYMI: Our Social Media Posts This Week – June 25 - July 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 6/25/17 we asked: DOL guidance on joint employer-independent contractor withdrawn - now what? What happened is that DOL quietly withdrew its former position on who is the employer in a franchise setting, giving some employees one less deep pocket to look to in some situations. See the post for a more in-depth overview. The question now is whether the NLRB will back away from its "indirect control" or joint employer theory.

TAKEAWAY: If you don't violate any law in your treatment of anyone performing services for you in any capacity, you don't need to worry about whether or not you are considered a joint employer.

The post on Monday 6/26/17 included 3 things "The Office" taught me about employment law – part 2. This follows our earlier post with Part 1. Here, we talk about workplace violence and the fact that it must be taken seriously. The post is peppered with scenes from the TV series to illustrate the lesson.

TAKEAWAY: Workplace violence happens – be ready with a policy that is evenly enforced and on which managers are trained.

The post on Tuesday 6/27/17 asserted that the Trump Administration forgets about LGBTQ people in its EEO statement (and asked if omissions are becoming a habit). The Department of Commerce removed sexual orientation and gender identity from its EEO statement. At least as of now the EEOC will still enforce discrimination on those bases, the removal does not bode well for federal employees under the current Administration.

TAKEAWAY: Not only is there no reason to discriminate on the basis of sexual orientation or gender identity, but it could cause you to lose customers or be subject to suit.

The post on Wednesday 6/28/17 told us that transgender employees may have rights under the ADA in PA. A transgender female employee sued Cabela's under Title VII and the ADA. The case is interesting because the law specifically excludes gender identity disorder from its coverage. That, then, would possibly be a violation of equal protection. So how did the Court get around this quicksand? It narrowly interpreted the exception to avoid the constitutional implications. See the post for more details.

TAKEAWAY: Rights granted to LGBTQ employees are expanding as interpretations broaden – be careful that you know your obligations under the ADA and other laws.

In the post on Thursday 6/29/17 we asked: Want to get sued? Read this self-help primer (and suggested you then call us). The first item on the list of things to do to ensure you get sued is to run your business the way you want. Don't worry about the law, employees, or anyone else. Insult your employees – when they move too slowly, tell them they "are getting a little long in the tooth" and other comments in the post. Next, don't hire an HR person. That person might do what your attorney suggests (and more in the post). More tips are in the post, ending with just doing anything to make money, regardless of what gets in your way.

TAKEAWAY: Once you get through the post, and realize you actually don't want to get sued, call me for an employment audit to ensure all practices and policies are legal and evenly enforced.

The post on Friday 6/30/17 told us a Restaurant & Pizzeria to pay $50,000 to settle a national origin discrimination suit. Yes that's a lotta dough (you knew that had to be said, right?!?). A small chain of pizza joints in NY settled a suit with the EEOC by agreeing to pay $50,000 (and other relief in the post). Allegations were that the chain discriminated against Hispanic employees by subjecting them to name calling, slurs, creating and maintaining a hostile work environment due to national origin, and requiring that only English be spoken (with a business reason for that rule). More details are in the post.

TAKEAWAY: National origin will rarely if ever make a difference in job performance – so don’t take adverse action against an employee based on that characteristic.  

Finally, in the post yesterday 7/1/17, we noted that a purged disciplinary record can be considered in future litigation. And you thought it was done and gone, right? It depends on the terms under which the record was purged. In the post, the necessary language was not there.

TAKEAWAY: Make sure that any settlement or agreement contains all terms and conditions – that will help avoid any surprises in the future.


ICYMI: Our Social Media Posts This Week – June 18-24, 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 6/18/17 we talked about 3 Things ‘The Office" Taught Me About Employment Law (Part 1). Yes, television can be educational (but don't tell your kids!). So what does it teach us? Timing and good documentation are everything. The series includes a part where there is an office relationship and one of the employees is discharged – she sues and proof of when their relationship started becomes key. The post gives background, but comes around to the lesson: know who did what and when, and document it.

TAKEAWAY: Keep records now in case you ever need them later – and record could mean a formal memo, an email, a photograph, or something else that records what happened, when, and who was involved.

In the post on Monday 6/19/17 we learned that non-union employees have no right to co-worker's presence during investigatory interview. While this is a ruling from the NLRB, it applies in the non-union world, so pay attention. Union employees have the right to have a co-worker present during an investigatory interview that might result in discipline. The question before the NLRB was whether non-union employees have the same right. The Board has flip-flopped on the answer in the past, with the latest decision (in 2004) answering in the negative (the reasoning is in the post). This unanimous ruling came about as a result of a petition from a former NLRB attorney.

TAKEAWAY: While the right of unionized employees to have co-worker present in an investigatory interview that might lead to discipline is intact, the same right is not extended to non-union employees; however beware as other protections under the NLRA do extend to non-union employees.

In the post on Tuesday 6/20/17 we noted that Rosebud is to pay $1.9M to settle an EEOC case of race discrimination. So what or who is Rosebud? The operator of 13 Italian restaurants in the Chicago area. [NOTE: just look at the list of the restaurants in the post; if you've been to Chicago, you've probably eaten in one of them.] The EEOC alleged that Rosebud did not hire African-Americans due to their race (and more illegal practices mentioned in the post). Conciliation failed but the matter has not settled with payments going to African-Americans who were denied jobs (and other items).

TAKEAWAY: The settlement included monetary and other remedial relief – if you don't want this to rain down on your business, don't make decision based on race.

The post on Wednesday 6/21/17 provided your entertainment for the day: strange (but true) sexual harassment cases. The first one was sex on the ceiling. A female employee was at an out-of-town business convention. Her employer booked her lodging. She met a local male friend; after dinner, they went back to her room for a tryst. She was injured – the post tells how. The employer was held liable for her workers comp claim because she was at a place her employer sent her for work. Wow. The next case was titled "do it a few more times before it is harassment". The plaintiff female employee worked part of the time in a construction trailer. One comment directed to her by a male employee was that "a large-breasted women, whom he called 'Double D', would attend a particular event. More of that comment, and others, is in the post. The court said that because the comments happened on only (its choice of language) 4 occasions, the conduct was not offensive or pervasive enough to rise to a level of HWE. What? Three more cases are in the post and provide entertaining reading.

TAKEAWAY: Life can indeed be stranger than fiction, but don't be a case told round the world – rather, follow the law and stay out of the news.

In the post on Thursday 6/22/17 we noted that bankruptcy may be your first and best option. Read the post and contact me to discuss. Filing for bankruptcy should not always be the last option you consider, but the decision is fact-dependent. For example, you can probably legally get rid of debt for less than a settlement might cost. It might also help your credit score (I know, seems counter-intuitive, right, but it's true.). The post contains a few more reasons to consider it first.

TAKEAWAY: Bankruptcy is prevalent in our society and has a bad name. However, there is no scarlet "B" and it might be the best thing for your situation – discuss it with me (or another knowledgeable bankruptcy practitioner).

The post on Friday 6/23/17 stayed in the NLRB world and noted the NLRB is still in business – watch your handbooks and policy manuals. Yes, this applies to both union and non-union workplaces, so all of you read on. All employees have right to unionize, bargain collectively and engage in other protected concerted activity under Section 7 of the NLRA. If employees could reasonably construe a policy or rule to limit or prohibit the protected activity, the Board will strike it down as illegal. That happened recently to 17 policies from one single employer. Some of the stricken policies were a responsive action policy, a conflict of interest policy, and an outside employment and business activities policy. Other examples are in the post.

TAKEAWAY: Have an employment attorney review your handbook or policy manual to make sure it passes NLRB muster – you don't want to find out the hard way that something is to be found illegal.

Finally, in the post yesterday 6/24/17, we were upbeat with 7 things you can do every day to help our oceans. These are not just for divers, but for everyone. The simple ways you can help include cutting down on plastics during mealtimes (buy reusable containers, bring silverware from home, and don't use straws that are not reusable). Also, change your coffee habits (paying attention now, aren't you?). How? Don't use disposable coffee cups (from the office or coffee shop) or Styrofoam – bring a reusable cup/mug. Also, don't use individual K-cups or similar products. They are indeed convenient, but they are not biodegradable or recyclable. Instead, get and use a reusable K-Cup (or reusable coffee filters if you don't use a Keurig). The other 5 items are in the post and are pretty easy too.

TAKEAWAY: Be a world steward – today and every day. Do your part to protect the oceans – they give us pleasure and are an important part of the food and water cycle. Just do it.


ICYMI: Our Social Media Posts This Week – June 11-17, 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 6/11/17 we learned that a staffing agency was sued for age bias. Yep. Allegedly (in a suit filed by the EEOC) it did not refer an applicant to a customer due to age. When the agency learned his birthdate, it emailed him with what will certainly be the centerpiece at trial – see the post for the meat!

TAKEAWAY: Make work-related decisions based on job performance and nothing else – this will help ensure that you do not find your name before the word "defendant' on a lawsuit.

The post on Monday 6/12/17 was about a former bank officer who filed a sex and age discrimination lawsuit. Why? Because the bank employer hired a younger, less qualified male. Sheryl, age 49, also alleged retaliation when she was fired after having filed complaints with the EEOC and FDIC. Some of the facts supporting her allegations are in the post, including ranking higher on the software program used by the employer to screen and categorize candidates. She even pointed out a white lie error on the male's CV.

TAKEAWAY: Don't take adverse action against an employee if it's not job-related. And if an employee files a charge or complaint of discrimination or harassment against your company, don't retaliate – instead, investigate and make sure there is no truth to the complaint.

In the post on Tuesday 6/13/17 were listed 5 tips to avoid this summer's legal hazards. So what are they? First, plan ahead for vacation requests – including making sure they comply with your policy. Next, remind staff about any applicable dress code. Evenly enforce it. Make sure not to interfere with any clothing worn for religious reasons. Reasons 3-5 are in the post.

TAKEAWAY: Each season has its own unique "dangers" and you must be aware of them all so you know how to deal with them – which might call for the assistance of legal counsel.

The post on Wednesday 6/14/17 talked about a lesbian suing over alleged anti-gay job discrimination at a bank. Penelope Hudson worked at the bank for 15 years until her discharge. Her suit alleged harassment, disparate treatment, and hostile work environment due to being a gay woman. Her complaint includes some alleged incidents, including being told her appearance was "too butch". More are in the post. The employer allegedly even tied in her FMLA request to being gay. See the post on that one too.

TAKEAWAY: The most interesting thing is probably that the suit was filed in a state that, similar to PA, has no state law protecting people form discrimination on the basis of sexual orientation or transgender status, but the suit was based on alleged violations of a city ordinance and Title VII. This is one to watch!

In the post on Thursday 6/15/17 we asked: so you received a demand letter, now what? (And said let us help you). The good news is that a demand letter is (usually) a prelude to a lawsuit, it is not a suit. It gives you a chance to resolve the matter before suit – and before you end up spending a lot of time and money on what could (to you at least) be a small matter. So what do you do? Think before you respond. Decide what your objective is and how that plays into the purpose of the demand letter. Also think about geography – in the sense of where any lawsuit might be brought and how easy or difficult that would make it for you to defend, including state versus federal court, your state (or locality) or another, and the rules of procedure and state laws that might apply to or govern your case. The other things to consider are in the post.

TAKEAWAY: It's never pleasant to be sued – but it happens. It is possible to avoid suit at times, but the best thing you can do after receiving a demand letter is to prepare for suit. This should include bringing your attorney into the loop to make sure your legal interests are protected in any action you decide to take (or not take).

The post on Friday 6/16/17 noted that the refusal to hire a medical marijuana user violated state law – and that PA will be facing this dilemma shortly. The case in the post was decided under Rhode Island law, but is instructive as PA winds its way down the road of legalized medical marijuana. In the case, the plaintiff applied for an internship and disclosed her legal medical marijuana status (because she could not pass the employer's required pre-employment drug test). The employer's policy is in the post. She was not hired and sued. Aptly, the court's ruling started with a Beatles quote on getting high and ended in favor of the plaintiff, finding an implied private right of action and the ability to bring suit under a disability claim even though there is no legal protection for illegal drug use and marijuana is illegal under federal law. The ruling had a thorough analysis including how both state and federal law could be accommodated – see the post.

TAKEAWAY: PA has in place a medical marijuana law and is in process of handing out licenses for growers and distributors; once that happens, it will be available to those with licenses to obtain it. Those people might be your current or future employees, so now is the time to put in place (legal) policies relative to medical marijuana in your workplace.

Finally, in the post yesterday 6/17/17 we learned that evidence of similarly-situated employees of the same race doom a discrimination suit. Here, the plaintiff alleged he was scrutinized more than others due to race or color. However, some of the employer's evidence, including that a Caucasian employee was terminated for safety violations a month prior to plaintiff's discharge and more things in the post. Also, those not disciplined included employees of the same race and color as the plaintiff. The court found no evidence of discrimination.

TAKEAWAY: You can't always avoid suit, but you can defend one once it is filed. Make sure that all adverse actions have a legal basis, then bring out that support to defend the suit.

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