ICYMI: Our Social Media Posts This Week – Aug. 5 - 11, 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 8/5/18 we saw that the US Supreme Court will hear an age discrimination case against the Mt. Lemmon Fire District. This is a narrow question with broad implications. It concerns the ability of the Fire District to fire its two oldest employees. The narrowness is because the whole case turns on a single legal point: can government employers be too small to have to comply with federal anti-discrimination laws. There is a minimum number of employees required as a threshold for private employers, but the statute is silent as to public employers. Argument in favor of and against application of a floor are in the post.

TAKEAWAY:  Of course the safest ways for public employers to proceed is to act as if the private-sector floor applies or not to take adverse action against those in the age-protected category.

The post on Monday 8/6/18 talked about how NOT to address your employees. Here, the 2 plaintiffs, Julianne Taaffe and Kathryn Moon, had worked in the ESL program at Ohio State since 1983, teaching students from 40 countries. In 2009, when a new program director began disparaging them and other veteran ESL staffers while promoting younger and less experienced people, they wondered if they had done something wrong. But they knew they had not. That was confirmed in 2010 when an email from their boss was inadvertently copied to another staff member. The post contains the contents of that email. The post also contains some ways in which the boss referred to older members of his staff. An internal complaint resulted in no action being taken. After the EEOC got involved, things happened. See the post for the next occurrences.

TAKEAWAY: the age discrimination laws apply to state employers too – but with more limitations on damages. All employers should take care not to act adversely against older employees without valid, legal basis.

In the post on Tuesday 8/7/18 we were told that a trial date was set in a veteran's fight against a homeowner's association. The post was actually a video. It is about an association fining the owner for displaying a flag and how that plays out with rules agaisnt it.

TAKEAWAY: Living in a condo or homeowner's association comes with rules, but there is also the Flag Act.

The post on Wednesday 8/8/18 reminded that Yes, you should explain different discipline for the same offense. Employers are always cautioned to have in place rules/policies and to evenly enforce them, right? In the post, that did not happen – or did it? Read the post.

TAKEAWAY: Make sure that if a policy is not evenly applied, you have support for the difference.

In the post on Thursday 8/9/18 we saw that employers often designate leave as FMLA despite objections. Is that ok? The post has the short answer and some of the reasons the employee might not want to use FMLA leave time. The post also talks about why an employer may or may not want to designate leave as FMLA leave.

TAKEAWAY: Know the implications of designating leave as FMLA leave – talk to an employment law attorney.

The post on Friday 8/10/18 was about the Workforce Mobility Act possibly being the wrong solution for non-compete litigation. What does the Act do? It imposes a flat ban on all covenants not to compete for all U.S. employers and employees engaged in “commerce". It is pretty broad. The post mentions how the bill defines a “covenant not to compete" and that it provides for civil fines and a private right of action (including punitive damages) against violating employers, along with carving out confidentiality provisions consistent with the Defend Trade Secrets Act, 18 U.S.C. §1836. The post also mentions many legitimate uses for non-compete agreements, most of which appear not to have been taken into consideration by the Bill's supporters. And in what court do you want to have a suit over a non-compete? You may have no choice under the Act.

TAKEAWAY: While well-meant, the pending legislation may (once again) do more harm than good as its net sweeps too broadly. Stay tuned.

Finally, in the post yesterday 8/11/18 we saw that a federal judge initially accepted allegations that discrimination for “Jewish blood” is illegal racism. So this small Southern Baptist college in Pineville, LA tried to get dismissed a lawsuit alleging that it refused to hire a football coach because he has “Jewish blood". The post includes the court's ruling – it is well worth the read! The plaintiff, Joshua Bonadona, was the top-ranked applicant for the job and a 2013 graduate of that school. The judge considered the definitional distinction between “descent” and “blood” and then quickly tossed it aside as irrelevant. More of the background facts relief on by the judge are in the post.

TAKEAWAY: Don't take adverse action against someone based on a protected characteristic – and if/when you do, don't try to push it under the rug with a small, ineffectual brush.


ICYMI: Our Social Media Posts This Week – Jul. 29 - Aug. 4, 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 7/29/18 we saw that an IHOP dishwasher was allegedly fired for refusing to join a prayer group. Just not good. Matthew alleged that most of the employees and managers prayed together every day and that they often asked him to join. He declined. What was their response? See the post. Matthew complained to managers. What they did next is in the post. Eventually, he was sent home for refusing to join the group. Matthew then escalated his concerns to the franchise owner (whose response is in the post). He then reached out to corporate but, as of the time he filed suit, had not heard back. He alleges that he was harassed about praying, ignored by managers and then terminated.

TAKEAWAY:  Know what is and isn't allowed or required relative to expression of religious beliefs and religious discrimination or harassment.

The post on Monday 7/30/18 told us a Vegas Club is accused of sex for job scheme. Only in Vegas? So what happened? A cocktail server's accusation that a Hyde nightclub (at the Bellagio nonetheless!) manager demanded sex and nude photos in exchange for a job and that a manager told her that other servers had sex with managers to get jobs at the club. And what makes it worse? Just see the post. Ick.

TAKEAWAY: Still true: if you wouldn't want to see it on the front page of the NY Times, don't put it in writing!

In the post on Tuesday 7/31/18 we saw that an employee fired for applying to move closer to disabled son settled for $100,000. When the company learned that Ashok was considering a transfer to be closer to his son, who was left disabled from an auto accident more than 25 years ago, it took action – see the post. The EEOC then sued on his behalf for violations of the ADA and ADEA.

TAKEAWAY: Don't act against someone in a protected group without making sure it will not come back to bite you or your purse.

The post on Wednesday 8/1/18 told us that a court refused to remove a verbally abusive Director from office. This decision is from a PA appellate court and so is binding here. This is a community of about 4,500 homes. Kowalski was elected to the Board in June 2016. The rest of the board included seven women and one man. The post lists what he did during the first two months in office and after. The post mentions his rationale. The board admonished Kowalski three times for his conduct. The Association's attorney got involved; what happened after that is in the post. After only 6 months, the board suspended Kowalski and petitioned the court to remove him as a director and bar him from future service on the board under applicable state law. Why the trial court refused to remove him is in the post. The Association appealed. On appeal, the court reviewed the options available to remove a director and analyzed whether any was applicable on the facts there. See the post for that.

TAKEAWAY: What seems simple may not be when the facts re applied to applicable law – contact us about any thorny issues.

In the post on Thursday 8/2/18 we saw it took $38,000 to settle woman's pay suit; case centered on youth-lockup job. The EEOC had sued on behalf of a female employee who was paid "significantly less" than a man who held the same position. The suit alleged that the employer violated the Equal Pay Act and Title VII when it filled a facility investigator position vacated by a male employee with a lower-paid female employee. More of what happened prior to the suit is in the post.

TAKEAWAY: Don't try to pay one gender less than the other for doing the same job – you will be found out and have to pay more than you would have from the start.

The post on Friday 8/3/18 was about 7 ways to screw up the ADA's interactive process. Read on. Yes, it's true that an employer causing a breakdown in the process — or refusing to engage in it altogether — can serve as evidence of discrimination. How else can an employer mess up? By not knowing when its obligations to engage begin. By failing to recognize an accommodation request or ignoring it. And 5 more things listed in the post.

TAKEAWAY: Employers must know what their obligations are under the ADA and when they kick in – to make sure there are no missteps, let us help you.

Finally, in the post yesterday 8/4/18, we reaffirmed that the ADA requires focusing on ability, not diagnosis. Don't make a mountain where there isn't even a mole hill. Makes sense, right, since the purpose of the ADA is to ensure that someone can perform the essential functions of the job, with or without accommodation. So it follows that it is performance, not any medical diagnosis, which matters. Don't assume (you know what they say about that!). Don't step on the "regarded as" landmine like the employer in the post.

TAKEAWAY: We just said it above - know your obligations under the ADA and when they kick in, but don't go where you don’t have to.


ICYMI: Our Social Media Posts This Week – July 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 7/22/18 we learned when a manager shouldn’t say ‘Good job!’ – and other pitfalls to avoid. Supervisors must be trained on what they can and cannot say to employees. Phrases like "“We are really looking for someone younger” and other things listed in the post should not be heard in the workplace. A restaurant learned this lesson the hard way when its managers did the things in the post. When employees do things they often do, what a manager should not say is in the post. And don’t say "Joe is just being Joe" for the reason in the post. More tips are in the post too.

TAKEAWAY:  Supervisors can and should be complimentary when deserved, but there are other things they should be trained not to say – to protect the employer from potential future liability.

The post on Monday 7/23/18 told us Raley's to pay clerk who said late shift before Thanksgiving was religious discrimination. Pay $140,000 (plus revise its policies).  Jennifer Webb, a courtesy clerk, had been scheduled to work a Wednesday night shift the evening before Thanksgiving 2014.Webb is a Jehovah's Witness and had told Raley’s supervisors before her hiring in May 2014 that she could not work shifts after 5 p.m. on Wednesdays and before 4 p.m. on Sundays because she had to attend religious meetings at those times. How Raley's treated her at the beginning, and then how it changed, are in the post. As a good employee, Webb showed up at 2 pm on Thanksgiving, but when she told a supervisor she could not stay past 5 p.m., she was fired. Raley’s disputed Webb’s claims on the bases in the post.

TAKEAWAY: Employers must remember that the law trumps their business needs in most cases.

In the post on Tuesday 7/24/18 we learned that the purchaser bears the risk by not asking for a resale certificate. State law provides that upon request the association must provide a certificate, and only those amounts listed can be collected from the purchaser, but that presupposes a request. In the case in the post, the purchaser did not request a resale certificate, the Declaration (which was filed) provided the consequences of delinquencies, and the appeals court ruled in favor of the association (and its analysis is in the post).

TAKEAWAY: As seller or purchaser, know your rights and obligations relative to a residence in a condo or homeowners' association.

The post on Wednesday 7/25/18 told us a sexual harassment claim was ordered to trial against Dollar General. The employee complained that her supervisor solicited sex from her and sent her lurid text messages (plus more – yes more - in the post). It was reported to the assistant store manager and lead sales associate. The assistant store manager personally saw one text message the store manager wrote to the employee in which he solicited sex from her. The post details what the assistant store manager did (which was all good) and the district manager's response (which was not). And take note of employer's knowledge of the applicable history as in the post.  The store manager was eventually fired. The employee was also fired after a few months on the job for reasons unrelated to her report of sexual harassment. She filed an EEO complaint which resulted in the EEOC filing suit on her behalf. Why the court ruled against Dollar General on summary judgment is in the post.

TAKEAWAY: If there is a policy, follow it – timely and to the letter, otherwise it will not provide a defense to you if and when needed.

In the post on Thursday 7/26/18 it was noted: Too small for FMLA to apply? Don’t count on it. What does that mean? Either you have a sufficient number of employees for the FMLA to apply or not, right? Well … If there is no joint employer relationship, or other reason that the threshold number of employees is increased, then it won't apply. But if you are like the case in the post … Don't wait to be like the parties in the post.

TAKEAWAY: Employers should know whether or not they are legally deemed the employer for FMLA (and other) purposes. Consult employment law counsel to be sure.

The post on Friday 7/27/18 asked: Whose hide are you saving when you fail to terminate an employee who should be fired? (We also noted that the post would apply under PA law too.) We've all seen it (and perhaps lived it) – an employee should be discharged, but the employer decides to “keep trying”, that is, to find a way to save the employee’s job, even when everyone—including the employee—knows it’s futile. This scenario affects not only the employer and the employee, but others noted in the post. This is especially important in an at-will state (which PA is and which is defined in the post). Employers must look at the totality of the circumstances, not just hurt feelings relative to the termination.

TAKEAWAY: If there is a question as to whether an employee should be terminated, or what legal liability might flow from the termination, the employer should consult employment law counsel – but don't just bury the issue in the sand to grow and raise its ugly head another day.

Finally, in the post yesterday 7/28/18 we read that an ADA lawsuit over lifting restrictions was reinstated. The background: Victor suffered a non-work-related shoulder injury and was granted medical leave in January 2012. Between March and December 2012, he asked to return to work with a lifting restriction that started at 30 pounds but lessened to 50 pounds. The employer rejected that, relying on the written job description that lifting 75 to 100 pounds is an essential job function. Victor sued; at the trial stage, he won on summary judgment (meaning there could be no issues of material fact in dispute that, when applied to the law, entitled Victor to judgment) but the case was reinstated on appeal. Why? For the reasons in the post.

TAKEAWAY: We continually advise employers to have in place accurate job descriptions; part of accuracy is that it actually tracks what the person(s) in the job actually do(es).


ICYMI: Our Social Media Posts This Week – July 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 7/15/18 we read that you should not just cut and paste your company's social media policy. Your policies and procedures should be tailored to your company's business objectives and legal needs. The post mentioned 5 reasons to seek legal assistance relative to your social media policies and procedures. They include that The tone of your policies and procedures matters, your corporate structure must be donsidered, and others in the post. If it is not broad enough or too broad, you may have trouble legally enforcing the policy/procedure.

TAKEAWAY:  If your social media policy/procedure it is not broad enough or is too broad, you may have legal trouble enforcing it.

The post on Monday 7/16/18 told us that the flurry of recent ADA cases can be instructive for employers. Recent decisions provide a good framework for handling ADA issues at your workplace, including the foundational issue that underpins every single ADA situation: whether the employee has a disability under the statute. Why do you care? Because only those who meet the statutory definition will be able to claim relief under the ADA and you as an employer are not obligated to provide reasonable accommodations unless they fit into this category. The post talks about the background of the ADA and ADAAA (which broadened the definition of disability). It then talks about a few examples, the first of which is that not being able to work overtime doesn’t mean you’re disabled. That and a few other examples are detailed in the post.

TAKEAWAY: If an employee merely present evidence of a medical diagnosis, a court might reject the claim if there is no corresponding evidence showing how the condition limits or restricts daily life activities. But sometimes the safest way to proceed is to start the interactive process even while determining if the person fits the definition of disabled.

In the post on Tuesday 7/17/18 we saw that past good reviews may sink ADA/FMLA defense. Learn what (not) to do. Seems kind of obvious, but when an employee who has received excellent reviews asks for a disability accommodation, firing her for poor performance is bound to backfire. The post gives us an example of how this plays out.

TAKEAWAY: Make sure to consult an employment law attorney before taking adverse action against someone returning from an approved leave.

The post on Wednesday 7/18/18 asked: are your Association's Governing Documents enforced? (Then we suggested you let us help you, whether you are a homeowner or on the Board.) Blue or grey shingles? Simple question, right? Well, not necessarily - when it comes to a planned community and its rules. In the post, the Association won't issue a resale certificate because it says the owner did not get approval for roof repairs after a storm. Even though a roofing contractor who has the same color shingles did the work, the shingles violate the Bylaws. The choices the owner now has are in the post.

TAKEAWAY: Before you buy a home within a homeowner or condo association, know the rules you will have to live by. Likewise, if you are on the Board, be prepared to enforce those rules.

In the post on Thursday 7/19/18 we saw that a firm will pay $100,000 to settle an Indian-origin employee's discrimination lawsuit. So what happened? Ashok, who worked for a federal contractor, was fired and replaced by someone much younger. Coincidentally, that was after he asked for a transfer to work nearer to where his son lived so that he could help care for his son. More details about the son's needs and transfer request are in the post. The irony of the whole thing is that the alleged discrimination took place in the employer's Virginia office where Ashok worked within the US Department of Justice. The EEOC sued for violation of the ADA and ADEA. What the settlement includes is in the post.

TAKEAWAY: don't make a bad situation worse; when dealing with someone in a protected group, take adverse action only if you are sure it's legal and you can prove that if need be.

The post on Friday 7/20/18 noted that In case anyone’s counting, here’s a list of all the anti-LGBT stuff Trump has done as President (so far). So has President Trump kept his campaign pledge to be an LGBT ally? You be the judge. Not even on the list, but to start, he has not acknowledged Pride Month in either of the years he's been in office. The list. First, he says it’s legal to fire workers for being transgender. Next, he says it’s legal to fire workers for being gay (when the EEOC said to the contrary). And there are 11 more in the post. All roll back time and hard-fought recognition and rights for LGBT persons.  

TAKEAWAY: Separation of the branches may keep this under control, but Justice, under the direction of the President, is trying to turn back the clock. Keep alert.

Finally, in the post yesterday 7/21/18 we learned that dismissal of a racial bias case involving nooses was upheld. Yes you read that right. Nooses may not always result in a finding of a hostile work environment. Here, there were nooses, racist graffiti and more. What the court stated as the issue before it is in the post. The court noted that Title VII is not a code of conduct. Its analysis on the other counts is in the post.

TAKEAWAY: Even if there is illegal discrimination or harassment, an employer can do the right thing(s) and have no liability.


ICYMI: Our Social Media Posts This Week – July 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 7/8/18 we learned that FedEx failed to quash a trans worker’s sexual orientation claim.  So what happened? Miko, a transgender man assigned female at birth and now married to a woman, sued FedEx under state law after he was fired in March 2017. FedEx says it fired him because he wouldn’t work extra shifts. One legal (procedural) argument made by FedEx is in the post. The court said that when it comes to sex and sexual orientation bias, “no case law definitively states that these terms are either distinct from one another (and thus, must be specifically claimed), or closely related to one another (and thus, do not require separate claims). That underlies the ruling which is in the post.

TAKEAWAY:  Whether or not sexual orientation is included in 'sex' for discrimination purposes is a legal battle being fought at all levels of the judicial system – with the EEOC and Department of Justice on 2 different sides of the argument. Talk to an employment law attorney to make sure your interests are protected.

The post on Monday 7/9/18 was an alert that SCOTUS says #Union "fair share" dues can no longer be collected from non-members. This is the portion of the union dues not allocated to political activities that has traditionally been collected from non-members who, the argument goes, still benefit from the Union's representation in wage and benefit matters. This was a 5-4 decision with the newest Justice, Gorsuch, providing the swing vote. The arguments for and against payment of the fair-share are in the post. Also in the post is the basis upon which the decision came down.

TAKEAWAY: Even long-time legal precedent may be overturned at some point; employers (and others) must stay alert to what they can and cannot legally do at any given time.

In the post on Tuesday 7/10/18 we were reminded that homeowners' and condo Association documents are there for a purpose. Planned communities, whether single-family or condominium, have become more and more popular. With them is the proliferation of documents that bind those who live in the community. The documents are legally valid (in most cases). The post gives an example of how this can play out, whether or not an owner likes the result.

TAKEAWAY: Community Association documents are legal documents; get help from a community association lawyer to ensure your rights are protected.

The post on Wednesday 7/11/18 was another reminder, this time that a religious accommodation need not be the employee's preferred accommodation. Ok, we all know that employers have a duty to accommodate religious beliefs if possible and reasonable. The question is how far that goes and who gets to decide what is reasonable. In the post a federal court gave us some answers to those questions. Jerome worked for an airport employer which required mandatory work on Saturdays. Jerome's religion prevented him working on Saturdays; he requested that the employer assign him to Sundays instead. How it played out is in the post, culminating in him quitting and filing suit. An overview of the court's analysis is also in the post, including the fact that it ruled contrary to EEOC history.

TAKEAWAY: Religious accommodation is now on even footing with other accommodation where the employee's requested accommodation is not necessarily what must be offered by the employer. Consult an employment law attorney to be sure.

In the post on Thursday 7/12/18 we looked at individual liability under COBRA (and how to avoid it). Under federal EEO laws (such as Title VII, ADA, ADEA), there is generally no individual liability for discrimination. That can differ under the FMLA, FLSA and the Pennsylvania Human Relations Act in some circumstances.  A federal court in PA recently ruled on whether there is individual liability under COBRA. The basis for bringing the individuals into the suit as defendants is in the post. What the court based its decision on is also in the post.

TAKEAWAY: Before filing (or defending) a suit, make sure to look at all relevant documents. And prepare the documents in such a way that they do what you want them to from the start.

The post on Friday 7/13/18 told us that New Prime Inc. (a subsidiary of Prime Inc., a trucking firm) is in MeToo hot water for alleged sexual harassment. The EEOC filed suit alleging that Prime failed to take adequate steps to prevent the sexual harassment of a female truck driver, and, additionally, created a hostile working environment.  Prime partnered the female with a former trainer who previously had been involved in the sexual harassment of a female he was training. Oh but that's not all; more of the lurid background is in the post. What is ironic is that as a result of a prior suit, Prime got rid of its same-sex trainer program. See the post about that too.

TAKEAWAY: Not only must an employer be aware of illegal actions taken by its employees, it must make sure they don't occur again – employers cannot just turn a blind eye.

Finally, in the post yesterday 7/14/18 we learned that a typo in the new tax law may hurt employees too. Not just employees, but those who are already victims of (allegedly) illegal behavior and are trying to put it behind them. As you probably know, and as a collateral consequence of the MeToo movement, the new tax law bars employers from deducting their legal fees for sexual harassment settlements that require victims to sign nondisclosure agreements. This is the law now, but there is a typo explained in the post. As written and enacted, the law now applies to the (alleged) victim too. An example of how it might be applied is in the post.

TAKEAWAY: Employees agreeing to settlements should know on what they might be taxed. Employers already know as the law does what it was supposed to relative to them.


ICYMI: Our Social Media Posts This Week – July 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.

In the post on Sunday 7/1/18 we saw that the EEOC filed seven suits for harassment (and noted that was probably not lucky #7).  The suits span state lines. In one suit, a shipbuilder was sue for race and same-sex sexual harassment against a male Asian-American and 3 African-American employees. How? See the post for details (which are not pretty). In another suit, a staffing service was sued for allowing female employees to be subjected to sexual harassment. Again, the post contains the allegations. Another company was sued for allegedly subjecting female employees to unwelcome physical and verbal sexual harassment – the details are in the post. The fifth suit was filed against a trucking company for alleged sexual harassment and threats against a female truck driver. The post tells more details. Suit #5 was filed with allegations that female employees were subjected to ongoing verbal and physical sexual harassment and retaliation in North Hollywood – what happened is true Hollywood – and in the post.  The next suit also alleged sexual harassment of female employees; the last suit alleged a sexually hostile work environment. Details for both are in the post. How the suits will turn out remains to be seen.  

TAKEAWAY: The EEOC takes harassment seriously, and even more so in the #MeToo era. Just don't do it.

The post on Monday 7/2/18 was a good reminder: if discipline differs, note why. Simple but effective. Here, Debra was an at-will employee who got fired after working at the company 15 years. What she (allegedly) did is in the post. She sued, alleging that 4 men were not fired after what they did (also in the post). The employer explained the differences in the employees' actions and why their discipline varied from Debra's. Yep, see the post. The Court, which governs us here, agreed and dismissed the suit.

TAKEAWAY: Given the same set of circumstances, enforcement should be uniform. But if facts differ, the treatment arising from those facts might also differ. Know when variation is legal.

In the post on Tuesday 7/3/18 we learned that a college and its president filed a motion to dismiss "Jewish blood" Title VII claims. The background is that a former coaching prospect filed suit, claiming he was not hired due to having "Jewish blood". He later amended his complaint to add race discrimination. The defendants requested dismissal, saying that Jewish ancestry does not qualify as a race. Other defenses are noted in the post. The applicant's reply to the dismissal request is also noted in the post. The motions have not yet been decided.

TAKEAWAY: If you (intend to) take adverse action against an employee or applicant, make sure it is legal and not abed on any protected characteristic. Check with an employment law attorney if you are not sure.

The posts on Wednesday 7/4/18, here and here, celebrated Independence Day – and asked that you remember we are not (legally) independent until harassment and discrimination are gone.

TAKEAWAY: Independence has many forms – none of it involves treating others differently because of a protected characteristic.

In the post on Thursday 7/5/18 we saw that yes, overtime can be an essential job function. A federal court recently confirmed this. McNeil was hired by the railroad as a critical call dispatcher. They were scheduled for 8.25 hour shifts and subject to mandatory overtime if staffing needs so required. More about the job duties is in the post. In early 2014, McNeil took FMLA leave to care for a parent. She received short-term disability while on leave. She then went on long-term disability. When that was about to end, she provided medical records supporting a request for accommodation including no overtime work. She was terminated and sued. The Court's analysis and reasoning is in the post.

TAKEAWAY: Make sure the job duties and job description are clear on what is and is not an essential duty.

The post on Friday 7/6/18 was a reminder to review your handbook or policy manual for at-will conflicts (and then contact us to help). You should know that PA is a strong at-will state, meaning that the employee can quit or be fired with no notice and no reason, as long as the dischargen is not for an illegal basis. But as the post shows, there could be exceptions. Jesse was an at-will employee who got fired and sued. The court allowed him to continue his suit anyway for the reasons in the post.

TAKEAWAY: Have an employment lawyer review your handbook or policy manual and any contracts to ensure that there are no conflicts – and then make sure all actions are taken in compliance with those documents.

Finally, in the post yesterday 7/7/18 we saw that an employer paid $63K for failing to offer the employee FMLA. A roofing company knew that its employee had a serious health condition, but did not offer FMLA protection. What else did it do (illegally)? See the post. In the end, it paid over $30K for compensatory damages and the same amount for liquidated damages.

TAKEAWAY: It's expensive to stick your head in the sane – don't. Know what the law requires and do it.


ICYMI: Our Social Media Posts This Week – June 24-30, 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 6/24/18 we learned about "personal" pizza and employee gripes. This is an NLRB decision, but has application in all workplaces considering the breadth of Section 7's protection. So what happened? A pizzeria had a meeting for kitchen staff. The manager expressed frustration with several behaviors (noted in the post) and asked for comments at the end. Ralph replied with a cut on Brian. Ralph was later fired and then filed a charge with the NLRB. Whether or not Ralph engaged in protected activity was the subject of the suit – and is analyzed in the post. Given the backstory (see the post), this was a good win for employers.

TAKEAWAY: Be careful when employees seem to be talking unfavorably about the employer; it may be protected activity under the NLRA. Consult legal counsel before taking adverse action.

The post on Monday 6/25/18 was bout a $28M jury verdict on retaliation – wow! Let's see why. Gessy and Nirva are Haitian-American nurses who worked at a hospital. Nirva alleged she was denied a higher-paying position because she is black. Gessy alleged that when she supported Nirva, she experienced retaliation. Gessy's case was heard first. What happened is in the post.

TAKEAWAY: Even if you have a legitimate reason for adverse action, make sure it does not come off as retaliatory – in which case you will find yourself named as a defendant.

In the post on Tuesday 6/26/18 we saw than an employee was told she should be home in the kitchen, got settlement. Yep, that's real life. Jennifer worked at a construction company for a few months as a truck driver. She had a bad time, including male co-workers sexually harassing her and more (in the post). She reported it all to the owner and site manager, but when the harassment continued, she quit. The EEOC sued. Now the employer is settling. The settlement terms are in the post.

TAKEAWAY: Investigate every complaint and train all employees on what not to do or say.

The post on Wednesday 6/27/18 was about an Association that shut down a family's attempt to protect its home from flooding. The owners started building a concrete wall around their home so floodwaters wouldn't harm their home. Then their homeowners' association told them to stop. More background details are in the post,including the back-and-forth it put them through.

TAKEAWAY: Restrictions, covenants, and rules are there for all owners to follow and the association to enforce, but they must be applied evenly and reasonably.

In the post on Thursday 6/28/18 we saw that the EEOC argues that sexual orientation discrimination by a heterosexual can constitute a protected activity. Bonnie filed suit, and is now on appeal, arguing that her complaint about discrimination based on sexual orientation was protected activity. The EEOC even filed a brief supporting her. What's different is that Bonnie is heterosexual. She says she was fired because of that – and how it impacted her Facebook posts (as noted in the post. The issue was whether or not she alleged any protected activity under Title VII. The basis of the EEOC's brief is in the post. The case is still pending.

TAKEAWAY: Sexual orientation harassment and discrimination are areas of the law that are evolving and expanding. Make sure you know that might be found illegal before you take that adverse action.

The post on Friday 6/29/18 told us the NLRB gives employers more freedom with employee handbooks. This is good news. And yes you care, even if you are not a union workplace. Remember that Section 7 applies to ALL employers, so ALL handbooks are potentially subject to scrutiny for violations of that law. The NLRB's general counsel recently issued a memo dealing with civility standards, and more listed in the post. The memo split handbook provisions into 3 categories: ruled that are generally lawful and 2 others (see the post). This was all done in light of the recent Boeing decision (discussed in the post). The memo gives examples of what is usually allowed and what is not (including a ban on disclosing salaries and employment contract contents.

TAKEAWAY: Employers should periodically review their handbook to ensure legal compliance – but with a potentially seismic shift like this, now is a good time for that review regardless of how long it has bene since the last review. Let an employment law attorney help.

Finally, in the post yesterday 6/30/18 we saw an employee denied a job because the manager wanted a Korean can continue with the suit. Jerberee was employed as a finance clerk. She wanted to transfer to the IT department and told the employer why (as in the post). The IT manager agreed, but then retracted the transfer for the reasons in the post. Jerberee reported what the manager said and, coincidentally?, was fired a week later for poor performance. She sued. The issue was whether a failure to transfer was an adverse action. The court's action on appeal is in the post along with its reasoning.

TAKEAWAY: The law can be interpreted broadly, so ensure that employees, especially managers, are properly trained.


ICYMI: Our Social Media Posts This Week – June 17 - 23, 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 6/17/18 we were told that the EEOC sued Walmart for alleged discrimination against 2 deaf employees. So listen up. The suit was filed very recently in federal court in DC based on the treatment visited on 2 deaf employees who use sign language to communicate. They were not new employees but had been working there several years. The post mentions the ways in which Walmart did not accommodate them. The post also mentions Walmart's position.

TAKEAWAY: Know what you have to do to accommodate an employee – and then do it. Don't wait for the EEOC to come knocking.

The post on Monday 6/18/18 was a learning experience: an employer may have to defend comments about pregnant workers.  A federal court will let a matter go to a jury to decide if Alena was fired for violating a company policy or because she was pregnant. Alena alleges that she was terminated because others in her work group were already pregnant. Evidence noted in the post seems to bear out her allegation. Of course, the company came forth with a different legitimate reason for the discharge. The trial court let eh employer out on summary judgment, but the appeals court reversed on the analysis noted in the post.

TAKEAWAY: Don't treat pregnant employees differently than anyone else, and don't change your story time and again as to the reason for any adverse action.

In the post on Tuesday 6/19/18 we read about HOA to resident: Take down your Golden Nights flag or pay up. We all know those who are true sports fans – and show it via apparel or sometimes a flag. Well that's what Montoya did, but then his HOA told him to remove the flag. The HOA's reason is noted in the post. However, there is a question as to even enforcement of the rule cited by the HOA – see the post.

TAKEAWAY: Community associations, both condo and homeowner, have Governing Documents –the Declaration, Bylaws, and often Rules or Regulations - that all owners and residents must follow. The Association is charged with enforcing the Governing Documents, but when it does not evenly enforce them it can find itself on the losing end of protecting that provision.

The post on Wednesday 6/20/18 told us that policy and legitimate business reasons may carry the day. What does that mean, you ask? Read on. Everson asked for time off for medical reasons which was granted. Later, he notified the employer he'd need more time off for medical reasons. That too was granted. Then, a mere 2 days later, he was fired for a supposed policy violation (the post details what it was). Everson sued, alleging retaliation for requesting FMLA leave. The employer moved for summary judgment. The court ruled in its favor for the reasons set forth in the post.  

TAKEAWAY: An employer which has policies must make them known to employees and evenly enforce them.

In the post on Thursday 6/21/18 we learned that an ex-brewery employee sued for racial discrimination. The suit was filed against Anheuser-Busch's brewery in Williamsburg, Virginia, on the basis that it paid white employees more than others. The plaintiff is a black woman.  More details on the duties, salaries at issue, and timing of events are in the post. Allegations as to what the employer knew, and on what it took no action, are in the post.  

TAKEAWAY: Make sure to pay people doing the same job the same wages unless there is a legally justifiable reason for any difference. And don't take public action to undermine any stated reason for a wage differential.

The post on Friday 6/22/18 was about a suit claiming Facebook tools are used by employers to screen out older job seekers. Ugh. A class action suit now includes more companies and says the filters are on the bases of gender, geography, race and age. Pretty wide net. The suit says that Facebook's algorithms perpetuate disparate treatment. Some of the defendants are Amazon and T-Mobile – others are listed in the post. See the post for what Facebook says about its targeted on-line advertising.

TAKEAWAY: Just because an employer is using a new medium to advertise job openings does not mean it can discriminate – on the contrary, it must still follow applicable laws.

Finally, in the post yesterday 6/23/18 we saw that volunteering information bars a GINA claim. You remember what GINA is, right? (If not, the post gives a bit of background.) A federal court was faced with deciding if there was a violation of that law. Here, after a medical diagnosis, Williams requested medical leave. He mentioned part of the diagnosis upon repeated questioning. After he was terminated, Williams filed suit. The employer moved for summary judgment. Check out the post to find out why the court granted the employer's motion. NOTE: the case is on appeal now.

TAKEAWAY: Know what is and is not allowed to be asked or discussed under GINA. But take the defense given to you if an employee volunteers information.


ICYMI: Our Social Media Posts This Week – June 10 - 16, 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 6/10/18 we read about a suit alleging AT&T's absence policies discriminate against pregnant women. Remember the Pregnancy Discrimination Act? Yeah. Cynthia and Katia were both fired for things related to pregnancy. Why? Because of how AT&T's policy works – see the post. And the interaction between several federal laws identified in the post.

TAKEAWAY: Even enforcement of policies is good, but it must also be legally compliant. Consult an employment law attorney to stay within legal bounds.

The post on Monday 6/11/18 told us about 4 pitfalls to avoid when responding to a charge of discrimination. Suits happen after the administrative phase has been concluded, but the latter is important. Employers should not just wing it when responding to the EEOC (or PHRC) – they should take certain steps, including not providing too much information, not providing too little information, and 2 others listed in the post. The employer's response may indeed be used against it in any later trial, so paying attention to the tips in the post can be helpful.

TAKEAWAY: Know how to respond to an administrative charge of discrimination Consult legal counsel to start your defense now before it's too late.

In the post on Tuesday 6/12/18 noted a former employee sues city for employment discrimination. Not quite the typical office furniture … Stanley filed suit last July. And the former City administrator resigned suddenly. Are the 2 related? Not according to the Mayor. The background facts are in the post and include a City Council member trying to get dirt on someone. The dirt had to do with a certain type of "office furniture" detailed in the post, a smoke bomb, and more (see the post). After reporting what he found, Stanley was written up. Then he found out … see the post.

TAKEAWAY: Don't make a possibly bad situation worse by taking adverse action without valid, legal support.

The post on Wednesday 6/13/18 was about enforcing HOA and condo association rules by imposing fines (and asked if you know what is allowed under PA law). We all know that the Governing Documents (Declaration, Bylaws, and Rules/Regulations, must be evenly enforced. If there is a violation, it must be addressed. As noted in the post, one mechanism to address violations is a system of fines. As noted in the post, applicable state law must be followed (as long as the provisions of the Governing Documents).

TAKEAWAY: The Association should always consult with its legal counsel to ensure that actions comport with the Governing Documents and the law.

In the post on Thursday 6/14/18 we asked: do asthma sufferers have viable FMLA claims if terminated? Maybe. In this case, Dighello was a router and dispatcher. She had to work long shifts with no breaks. After 4 years, she took ill and missed 2 days of work. The post details the next things that happened, through to her discharge. Suit was filed. The court analyzed what might constitute protected FMLA leave in the context of an interference claim. The court also dealt with the retaliation claim. Both are discussed in the post.

TAKEAWAY: Make sure you think about all related facts and timing when being asked to provide an FMLA accommodation. And talk to an employment law attorney before taking adverse action.

The post on Friday 6/15/18 was about age discrimination in hiring & recruitment: EEOC on ADEA. Don't let the #MeToo movement overshadow your concern for age discrimination. The post lists 2 examples (which should sound familiar to readers of this blog). More are in the news every day. Don't make yourself a defendant.

TAKEAWAY: Make sure age has nothing to do with any adverse action you take against an employee or applicant.

Finally, in the post yesterday 6/16/18 we saw that a former JPMorgan employee filed suit for racial discrimination. As the post notes, "an attempted 'Harlem shuffle' has backfired."  JPMorgan deals with people of means – and people of limited means. JPMorgan tried to transfer Francis from an affluent branch to a low-producing Harlem branch. How it broached it is in the post. Francis got upset. He was not calmed by what his supervisor said next (in the post). The suit also has more support for his claim (as in the post). Francis sued.

TAKEAWAY: Train your employees on how to act, what factors to use for decisions/actions, and what not to say. It might help you in case of suit.


ICYMI: Our Social Media Posts This Week – June 3 - 9, 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 6/3/18 we saw that the ability to work a rotating shift can be an ADA essential function. All beware. Why do you care? Because as a worker you may need to know what you can request of your employer and as an employer, you may want to know what you can require of your employee. IN the case here, the former assistant manager got PTSD and depression. He asked for a change from a rotating to a fixed schedule (and other things in the post related to the cause of the PTSD). The employer initially said yes, then backtracked. He quit and sued. The post contains a summary of the court's analysis and why the decision came out as it did.

TAKEAWAY: The essential functions of a job must be known when dealing with an accommodation under the ADA; having a job description with the essential functions specified is a good thing.

The post on Monday 6/4/18 looked at how no-fault attendance policies can put companies and workers at risk. This type of policy does not distinguish between excused and unexcused absences. It treats them all the same. Good, right? Not if points are assessed for legally-protected absences under the FMLA or ADA. Former AT&T employees recently filed suit for unlawful discrimination against pregnant women. Harken back a few years to a suit against Verizon detailed in the post. Keep those lines open for how this one plays out.

TAKEAWAY: Uniformity in enforcement of policies is great – except when it runs afoul of the law. Know when not to enforce – and get legal help.

In the post on Tuesday 6/5/18 we learned about a new law that targets homeowner and condo association disputes (and suggested owners and Board members should know about the law). It's been a long time coming, but PA now has another avenue to resolve some disputes: the Bureau of Consumer Protection. The post gives some background on the law and some of its provisions. It will take effect some time in July so there is time to learn how it affects you or your association.

TAKEAWAY: Know what the avenue of redress is for a dispute. If you are not sure, consult legal counsel.  

The post on Wednesday 6/6/18 told us a woman accused of stealing $636 from Chipotle won millions. Jeanette Ortiz is a former manager at Chipotle. She was an excellent worker. The post has the background. A video that supposedly existed was never shown. She was fired in 2015 after being accused of stealing $636. She sued. Some of the arguments made by Chipotle are in the post. A jury recently awarded her almost $8M. Then the case settled rather than go up on possible appeal.

TAKEAWAY: Be careful before accusing an employee of wrongful conduct or taking adverse action because of it – it may come back to bite you, hard.

In the post on Thursday 6/7/18 we read that Fox News settled a slew of discrimination suits for about $10M. That’s news! Eighteen current and former employees sued for race, gender and pregnancy discrimination. Some details are in the post. One of the plaintiffs was a news anchor. How he characterized the basis for his claim is in the post.  

TAKEAWAY: Nobody is above the law, even when the defendant is an agency that usually reports the news instead of making it.

The post on Friday 6/8/18 told us a staffing company was sued for complying with clients' race and sex preferences.  Not smart.  The EEOC brought suit against the company for its refusal to hire highly-qualified black applicants or other racial-tinged actions in the post. The allegations include sex and age discrimination as in the post. Plus retaliation!

TAKEAWAY: Just because you're told to violate the law (by a boss, customer or other), don’t think twice about it – just don’t do it!

Finally, in the post yesterday 6/9/18 we asked: Does profanity at work create a hostile work environment? The answer is maybe. It may depend on the type of profanity. Yes, the type. A federal court was faced with that analysis. The post describes the 2 types and gives examples. One type can lead to legal liability, the other probably not. But, as the post warns, the entire situation must be reviewed. Even the timing – whether the profanity existed before or after the complaining person / victim was employed – might make a difference. See the post on that.

TAKEAWAY: This is not a case of we know it when we hear it, but rather when certain language is used in a certain context, is it illegal and liability will attach.

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