Monday
Jan302017

ICYMI: Our Social Media Posts This Week – Jan. 29 - Feb. 4, 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 1/29/17 we talked about an employee suit for unauthorized disclosure in an FMLA certification. This suit involves the FMLA, HIPAA and marijuana use – it almost sounds like a soap opera, but it's not. The suit was filed in Michigan where medical marijuana is legal. The employee requested FMLA leave and the employer required a certification. The certification was sent directly to the employer by the physician and noted that the employee used medical marijuana (for something unrelated to the condition for which she requested FMLA leave). The employee asked the physician to correct the certification, but was denied. Based on the certification, the employer offered a severance package and resignation in lieu of discharge for violation of the company's substance abuse policy. More details are in the post. She accepted the severance and sued the physician for violating HIPAA privacy rules. The suit is still pending.

TAKEAWAY: Be careful how you use the information you get (even though you may have obtained it legally).

The post on Monday 1/30/17 asked: should a socmed post should cost someone their job? And your answer was? The answer, as is often the case, is "it depends". On whether it is a labor/union workplace or not. On whether there is a contract or agreement with terms or provisions that govern the situation. On whether there is an applicable policy or handbook provision. On whether the person is a public figure or not. And on and on … Read the post for the details here.

TAKEAWAY: Remember that what you post on social media might as well be the front page of the NY Times; make sure you know the possible legal ramifications of each post before you hit Send.

In the post on Tuesday 1/31/17 we listed 10 things employees definitely shouldn’t have done at an office holiday party (with a hint to keep them in mind for 2017). Always remember that even if the party is held off-site, it may still considered "in the course of employment" and therefore workplace rules and policies might apply. So what are the 10 things an employee should not do? 1. Get (very) drunk – tipsy might be accepted, but not drunk. 2. Ask for a pay raise – this is neither the time nor the place. 3. Invite friends when there is a free bar – this is for employees (and others invited by the company) only. 4. Make sexual advances toward a colleague – remember, workplace rules and policies still apply. Items 5-10 are in the post.

TAKEAWAY: The holiday party is a reward for a good year – don't ruin it and possibly jeopardize employment by acting in an improper (or possibly illegal) manner.

The post on Wednesday 2/1/17 told us the PGA unfairly sacked a golf expert for refusing an 80% pay cut. We also learned that discrimination crosses national borders. Scott, age 61, dined with royalty and attended many of the most prestigious golf events in the world as part of his job with PGA. However, the new CEO asked that he retire or take an 80% salary cut and fired Scott when he refused. Scott then sued for age discrimination (among other things). See the post for the judges' ruling.   

TAKEAWAY: Age may be the reason for an adverse employment action – or it may just be a coincidence that such action is being taken against one in the protected age group. Make sure you know the difference.

In the post on Thursday 2/2/17 we learned that the EEOC sued Centurion Stone for same-sex sexual harassment. The employer-defendant here is one of the oldest stone veneer manufacturers with a national distribution. And yet it still is in the EEOC's cross-hairs for failing to stop or prevent alleged same-sex harassment. The allegations are that it allowed its male supervisors to subject male employees to sexual harassment, including making daily sexually-charged insults and innuendos and engaging in unwelcome physical contact (the details of which are in the post). Management received complaints but did nothing.

TAKEAWAY: If an employee makes a complaint, don't be an ostrich. Investigate it and, if appropriate, take corrective action.

The post on Friday 2/3/17 noted the EEOC settled a religious accommodation case over an exemption for hospital workers from a flu shot requirement. And it "only" cost the employer $300,000 and other relief. So what led up to the settlement? In late 2013 the employer hospital instituted a mandatory flu vaccine policy for employees – unless they received an exemption for medical or religious reasons. If there was no exemption for an employee refusing the vaccine, s/he was fired. The 6 plaintiff-employees requested exemptions on religious grounds but their requests were denied. They were fired when they refused the vaccine. (Note: see other relevant facts in the post.)

TAKEAWAY: Sincerely-held religious beliefs, whether or not share by a church or other formal hierarchy, are valid in the workplace and may require the employer to accommodate those beliefs.

Finally, the post yesterday 2/4/17 talked about the EEOC's suit against Caroline Creek Christian Camp for sex and disability discrimination. Here, the employer demoted a female due to pregnancy and related medical issues and then discharged her and sued her twice after she complained. Wow! And the employer even put the reason for demotion in writing! She filed a charge with the EEOC after discharge and the employer sued her. While that was pending, it sued again after a few months. Read the post for more salient details. The suit by the EEOC alleges those lawsuits were retaliatory.

TAKEAWAY: If you are the subject of an administrative charge or lawsuit, make sure any counter-measures you take are legal and warranted – don't dig a deeper hole in that quicksand.

Friday
Jan202017

ICYMI: Our Social Media Posts This Week – Jan. 22-28, 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 1/22/17 we suggested you get permission to kill employees' phones – and make it part of your BYOD policy. You have a BYOD policy, right? So make sure it grants authority for the employer to remotely wipe the phone if and when appropriate. Get the employees' permission in writing. Read the post.

TAKEAWAY: Protect your data in all means possible – including from (former) employees' personal devices that were (ostensibly?) used for work for the employer.

The post on Monday 1/23/17 gave us 9 FMLA record-keeping requirements employers need to know. So what are they? First is that records must be maintained in a way that is able to be reviewed or copied – whether that is hard or electronic is up to you. Next, those records have to contain basic payroll and related data about the employee's compensation. Third, for FMLA leave of less than a full work day (think intermittent leave), you must maintain records of the hours taken. The rest of the requirements are in the post.

TAKEAWAY: You will have employees taking advantage of their leave rights under the FMLA, so know the requirements surrounding maintenance of records of those leaves.

In the post on Tuesday 1/24/17 we noted the strip club's stage lease doesn't stop wage suit. Huh? A stripper signed a contract for space for her performance; the document contained a provision prohibiting her from suing (in favor of arbitration). The court disagreed (its reasoning is in the post).

TAKEAWAY: Make sure your contracts say what you think they say – have them written (or at least reviewed) by an attorney.

The post on Wednesday 1/25/17 was about African Americans claiming discrimination in a class action suit against CNN and TBS (and the parent, Time Warner). One plaintiff was an executive administrative assistant at CNN and the other is employed as a senior manager at TBS. The complaint runs 40 pages and alleges lower salaries based on race, along with less (or no) promotions to higher levels for African Americans. The post also talks about 3 other pending suit against the same defendants, one alleging retaliation and failure to promote based on race and the other 2 detailed in the post.  

TAKEAWAY: None of these suits has yet played out, but from the surface they look bad – and that may be all that's needed for any business to ante up big bucks and settle.

In the post on Thursday 1/26/17 we talked about Targeting FMLA fraud and abuse: 10 ways to reduce subtle abuse. The post starts out with good hints: keep an eye open for absences concentrated in one department or among the same persons as well as those that coincidentally hit weekends or holidays. It then lists some ways to reduce FMLA abuse, including (1) train supervisors, (2) do your FMLA homework, (3) require certification and recertification of the medical condition, and 7 others in the post.

TAKEAWAY: Don't just expect your employees to know what they must do – start with training and put in place a full "program" to be followed relative to the FMLA. Then follow it.

The post on Friday 1/27/17 noted student athletes are not employees under the FLSA. Note, however, that this case (or others in related contexts like the NLRA) may make its way to the US Supreme Court, so keep an eye out. Here the court said that participation in college sports does not make the students employees entitled to compensation. The suit was brought under the FLSA's minimum wage and overtime provisions. The trial court judge dismissed the case (the bases are in the post); the appeals court affirmed. Key holdings on appeal were that determination of employment status under the FLSA is to be flexible and look closely at the actual relationship between the student-athlete and the college (including the long tradition of amateurism in college sports). The post mentions another key point made by the appellate court about the Department of Labor's own Field Operations Handbook. The appeals court also noted, "Simply put, student-athletic 'play' is not 'work,' at least as the term is used in the FLSA."

TAKEAWAY: Colleges can breathe a sigh of relief – but businesses who use students or other interns may not yet be out of the woods when it comes to other services performed.

Finally, the post on Saturday 1/28/17 said that a one-employee furlough is evidence of FMLA retaliation. The employee showed that he was furloughed 2 days after requesting leave and that he was the only one treated that way. The case was sent on to a jury on the issues of why the RIF hit only 1 employee and why there is nothing showing the RIF was planned prior to the FMLA leave request having been made. More details are in the post.

TAKEAWAY: Even if an adverse action is perfectly legal, be careful about the timing and appearance of illegality. Make sure all adverse actions are supported by proper, legal evidence.

Tuesday
Jan172017

ICYMI: Our Social Media Posts This Week – Jan. 15-21, 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 1/15/17 we talked about a man alleging a fall in a non-ADA compliant Winn-Dixie bathroom. He alleges he tried to enter the stall with the store-provided scooter, but the scooter would not fit through the doorway. He then tried to stand up and walk in, but fell and was injured (hence the suit). More details are in the post.

TAKEAWAY: If you are going to provide an accommodation, make sure it really works!

The post on Monday 1/16/17 noted that surveillance isn't always FMLA interference. Yes, you read that right. This is a case out of the Third Circuit, a federal appeals court that governs PA (and other states). The Court said that checking to see if an employee is properly using FMLA leave may not be illegal interference. Charles, a police officer, objected to a policy and the employer retaliated by transferring him. It also investigated his use of approved FMLA leave (how it investigated is in the post). An adverse trial court ruling was appealed, the appeals court said that the FMLA has no provision that the employee has the right to be left alone during the leave. The court also said the FMLA requires a showing of harm or prejudice by the employer's violation.

TAKEAWAY: If you intend to use surveillance, make sure to do it only when needed and in a legal fashion – consult an employment law attorney.

In the post on Tuesday 1/17/17 we noted the EEOC issued enforcement guidance on national origin discrimination (and suggested you know your rights and responsibilities). Employers get the EEOC's take on the law in certain situations as well as tips to avoid future suits based on national origin discrimination. The post explains what would be considered discrimination based on national origin. The Guidance also includes some new things, such as that the EEOC interprets Title VII to prohibit discrimination based on perceived national origin. An example (and more) is in the post.

TAKEAWAY: The EEOC is interpreting statutes prohibiting discrimination in the workplace broadly – ensure that your actions do not fall within the zone of actins considered illegal.

The post on Wednesday 1/18/17 told us about a black workers' suit accusing the job agency of favoring Hispanic applicants. This occurred at the Blommer Chocolate Factory – but is not sweet. The suit was filed against a placement agency and several of its clients, including Blommer. The suit alleges that the agency used many illegal practices to avoid placing African-American workers at certain clients' locations, at the request of those clients. Using code words was but one way they allegedly carried out the discrimination. The post contains specific allegations from some of the class plaintiffs.

TAKEAWAY: Make sure all employment decisions – including hiring – are legal and not discriminatory. Period.

In the post on Thursday 1/19/17 we noted a mother-to-be had a cleaning job withdrawn over Facebook because of the pregnancy. Ugh. [NOTE: While this occurred in Britain, it would play out the same here in the US.] Holly said after interviewing and making the employer aware of her pregnancy, she was offered a cleaning job at the supermarket, with a 3-month contract leading up to her due date. However, right before she would have started, she got a FB message (the blatant text of which is in the post) withdrawing the job. Yep, clear pregnancy discrimination.  

TAKEAWAY: Pregnancy discrimination is illegal in the US and abroad. Don't take adverse action based on pregnancy or you just might find yourself in hot (bath)water.

The post on Friday 1/20/17 told us about the sneaky way the new overtime rule has already helped workers (even though a federal court put it on hold). You (should) know that the new overtime rule (increasing the threshold for overtime pay for non-exempt employees) was to take effect 12/1/16; however, a federal judge enjoined the rule so it is not yet in effect. So how did a rule that did not go into effect help workers? Good question. In preparation for the rule's effective date, employers gave many workers raises to put them over the threshold and avoid having to pay overtime. (Others took a different tact that is in the post). Some have now pulled back the raises, but this author can't imagine that is good for morale (doesn't that seem to scream that the employer gave the raise only because of the law and not because the worker is worth it?)

TAKEAWAY: It's great to be prepared before a new law or rule or regulation becomes effective, but beware of the potential downside of taking action that may not be necessary if the law/rule/regulation ends up not going into effect.  

Finally, the post on 1/21/17 noted that 60 Minutes covered ADA shakedowns. You know, all those suits being filed to allege a lack of ADA compliance in retail businesses, even if the plaintiff has not entered – or tried to enter – or purchase goods or services from the business. The post notes an example of the number of cases involving the same plaintiff and the same attorney in a short period of time.

TAKEAWAY: Yes people should follow the law (and be held accountable if they don't) – but in many instances harm should be required prior to suit being filed.

Monday
Jan092017

ICYMI: Our Social Media Posts This Week – Jan. 8-14, 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 1/8/17, we talked about dress code and grooming policies: how to express how to dress. Yes, dress code and grooming policies can be legal; yes, you should review them carefully and periodically to make sure they remain legal. Workplace attire and grooming has changed thanks to millennials – but that doesn't mean the employer gives up all control. The post lists a few tips to keep in mind: consider the culture, don't discriminate, define Casual Friday, and more in the post.

TAKEAWAY: Work with an employment law attorney to ensure your dress code and grooming policies are legally compliant – and when they are, uniformly enforce them.

The post on Monday 1/9/17 mentioned the EEOC alleges McDonald's unlawfully fired an HIV-positive employee under the ADA. In case that wasn't enough, the EEOC also says McDonald's has an illegal policy requiring employees to report their prescription drug use. McDonald's has settled for $103,000 (plus other things). See a bit more detail in the post.

TAKEAWAY: Make sure managers know what to do with various scenarios under the ADA – and that they do it uniformly.

In the post on Tuesday 1/10/17 there was a legal alert re impaired access: ADA website accessibility lawsuits on the rise. Remember that public websites should be accessible to the blind and visually impaired too. Suits are becoming more common, especially in the few industries mentioned in the post. 2016 brought suits against Domino's Pizza, Potbelly Sandwich Works, Reebok, Panera Bread, and more. You don't want your name to be on the list!

TAKEAWAY: If your website is determined to be a "place of public accommodation" under the ADA, then it must be accessible to the blind and visually impaired – make the necessary changes soon.

The post on Wednesday 1/11/17 was about Sikh truckers reaching a settlement in religious discrimination case. It was an expensive lesson. The employer wanted Lakhbir Singh to cut some of his hair for a drug test – but that would have violated his Sikh beliefs. No alternative was offered to him or others in the same situation. The employer, J.B. Hunt Transport Services Inc., also acted wrongly about a urine test – see the post. Eventually, the employer agreed to alternative testing to accommodate their religious beliefs.

TAKEAWAY: Often there is not just one way to do something – and there should be another if the first interferes with someone's religious beliefs. Find the other way and stay legally compliant.

In the post on Thursday 1/12/17 we looked at the EEOC's FY 2016 performance report – which is indeed interesting. Some tidbits: the EEOC got more than $482M (yes, million) for victims of discrimination in fiscal year 2016, the vast majority of which came in other than through suits. The EEOC resolved over 97,000 charges, an increase over FY15. It also took in over 585,000 calls and 160,000 pre-charge inquiries. Those are huge numbers and very telling as to how long is the road to alleviate all illegal discrimination. More details are in the post and the report (for which the link is in the post).

TAKEAWAY: Even though no names are listed, don't become a statistic in this or future years; know the law and follow it. Contact an employment law attorney for assistance.

The post on Friday 1/13/17 was about targeting FMLA fraud and abuse: moonlighting. Is it always something that should lead to termination of the employee? (Hint: no). The post suggests some steps to take when you find out, including surveillance if warranted under the circumstances. Just make sure that whatever you do is legal!

TAKEAWAY: Don't just fire someone you catch moonlighting during an Fapproved MLA leave – that might land you in expensive hot water.

Finally, the post yesterday 1/14/17 noted an express accommodation request is not required under the ADA. Hopefully that is only a reminder to you, not something new. In the case in the post, a medical tech who was unable to complete CPR training after surgery gets a trial on her ADA claim – despite having never specifically requested an accommodation. She had gotten approved FMLA leave for surgery and a doctor's return-to-work form with limitations noted on it. The employer required CPR certification; she informed the employer her doctor was requiring more PT before being able to complete the CPR certification. She was discharged for not being able to do CPR. The trial court found that an essential function and granted summary judgment for the employer. On appeal, the decision was reversed (and the case will go to trial on the issue of whether she made a request for accommodation sufficient to trigger's the employer duty to begin the interactive accommodation process.

TAKEAWAY: As noted in the post, once you find out about an employee's disability and any parts of the job s/he finds difficult due to that disability, begin the accommodation process. Don't stick your head in the sand waiting for the employee to act or you might find it's quicksand.

Monday
Jan022017

ICYMI: Our Social Media Posts This Week – Jan. 1 - 7, 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 posts on Sunday 1/1/17, here and here, we wished you and your family and friends a wonderful and successful 2017!

TAKEAWAY: It's a clean slate – yours to write on for the new year. Take advantage!

The post on Monday 1/2/17 was about the EEO policy statement from the HHS Secretary. Well said, Madam Secretary. The statement reaffirms HHS's commitment to diversity and preventing discrimination, harassment and retaliation. The statement is in the post.

TAKEAWAY: At least part of the federal government is taking seriously the diversity of the workforce and protection of the right to that diversity. Why shouldn't you in the private sector do the same?

In the post on Tuesday 1/3/17 we asked: Want to ease FMLA headaches? Doctors prescribe 3 remedies. All of them stem from you asking the doctor if there are questions about FMLA certifications or other administrative issues. So what have some doctors said regarding that? They don't want to be in the middle, so lay the groundwork (see the post). Talk to them on the phone, early in the process, after HIPAA prerequisites (in the post) are met. And finally, take the doctor's determination as to leave duration as a guideline, not a hard line in the sand. Things to ask or obtain are in the post.

TAKEAWAY: Working with the doctor helps make the FMLA (re)certification process go smoother and easier, both boons for the employer and employee.

The post on Wednesday 1/4/17 asked: In what ways can a company use (or not use) photos of its employees? The first thing is to distinguish between using the photo for security and identification purposes (for which most employees have no problem) and public or commercial purposes. So what should an employer do? The simplest thing is to ask employees if they are ok with being included in a public/commercial photo (and, as the post suggests, get authorization in writing). The post also details some ways that taking or having photos of employees may be risky for an employer, so be careful.

TAKEAWAY: Photos of employees can be put to many purposes – make sure those photos you take and use are legal and authorized (and don't subject you to unnecessary risk of liability).

In the post on Thursday 1/5/17 we talked about the law of managing and maintaining personnel records. Oh so important. Question #1 is always "How long do I have to keep those records?" The real answer is that it depends on the record, what the applicable law says, and what the record might be used for (i.e., what defense or support it could provide for you aside from the purpose for which it was created). The EEOC recommends keeping records for at least 1 year. The FLSA and other federal laws require certain records (listed in the post) to be kept for at least 3 years. Also make sure documents are maintained in the appropriate file (see the post) with access granted only to those with a (statutory) need to know.

TAKEAWAY: Have a policy on records retention and maintenance, including what types of documents will be in each file and who will have access. Then follow the policy.

The post on Friday 1/6/17 was about missing workers hidden in plain sight. Yes this is another in the series about classifying a worker as an employee or independent contractor – the wrong choice can be costly for an employer. The post details what that employer, a limo company, requires the workers (who are drivers) to do if they want to work there – including forming their own LLC as an umbrella for the independent contractor relationship. A judge recently pierced that veil. The decision is on appeal as is a decision awarding a driver unemployment compensation after he was laid off. But nothing has changed as far as how that employer conducts business with the drivers.

TAKEAWAY:  Remember that PA is one of the states cracking down on worker misclassification – ensure that your workers are properly classified before it becomes an issue and an expense.

Finally, the post yesterday 1/7/17 asked: What am I doing wrong? Common FMLA mistakes. One of the most common errors made by employers is not recognizing the employee's notice of the need for FMLA leave. Maybe the employee didn't come out and ask, but the employer found out through another channel – that still triggers the employer's obligations. As with an ADA request, the employee need not say "I need to take FMLA leave" to be the trigger. The post talks about a recent case in which the question of whether the employee provided adequate notice of the need for continuing FMLA leave was to be decided by the jury. The post also talks about another case where the court decided the employee did not provide sufficient notice of the need for FMLA leave (including the employee's refusal to provide additional information when asked by his supervisor).

TAKEAWAY: The employer has obligations once protections under the FMLA are invoked, but there must still be a trigger to start those obligations. Don't ignore the trigger, but don't make up one either.

Tuesday
Dec272016

ICYMI: Our Social Media Posts This Week – Dec. 25 - 31, 2016

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 posts on Sunday 12/25/16, here and here, we wished you and your family and friends a happy holiday!

TAKEAWAY: Sometimes you just have to take a time out and enjoy.

The post on Monday 12/26/16 noted the NLRB challenges confidentiality clauses – something significant to ALL employers. Wait, don't tune out just because this deals with the National Labor Relations Act – this decision affects EVERYONE. Here, Bridgewater Associates had confidentiality provisions in its standards employment agreement. Some of the actual provisions are in the post. One defined confidential info as including any non-public information relating to its business or any current or former officer, director, employee or shareholder. In June 2016, a complaint was served alleging violation of Section 7 (which, among other things, gives employees the rights to mutual aid or protection). The NLRB withdrew the complaint in October 2016 without trial or ruling (so it probably settled). However, the complaint was still filed.

TAKEAWAY: Employers are now on notice that the NLRB will look carefully at confidentiality provisions in legal documents – of all employers, not just those that are unionized -  along with how restrictive they are or could be and whether or not there is any violation of the Act. Be careful.

In the post on Tuesday 12/27/16 we talked about a United Airlines worker's misuse of FMLA leave grounding the claim. So what happened? UA fired an employee for misusing medical leave during a vacation and then lying about it. The employee was approved for intermittent FMLA leave for an anxiety disorder. When UA provided its reason as a defense, he had nothing to show the defense was a pretense for retaliation. The post contains more details on the background, including applicability of the honest belief rule.

TAKEAWAY: Make sure the reasons for FMLA leave are valid and that the employee does not misuse the leave – work with an employment law attorney if there are questions.

The post on Wednesday 12/28/16 noted that job descriptions are key to ADA compliance. Greg accepted an offer for a position that had a job description – except it didn't list travel as an essential duty (or even necessary). He started the job and did travel. During one trip he was injured. He then began to telecommute but never asked for an accommodation He couldn't travel after surgery and asked that someone else stand in at meetings. More details are in the post. Eventually he was discharged. He sued, saying he was disabled and needed accommodation. His complaint was dismissed on several bases (see the post) including reference to the job description.  

TAKEAWAY: Not only should you have job descriptions, they should be accurate and include the essential functions of the job.

In the post on Thursday 12/29/16 we learned to apply this (or a similar) fair and firm 5-step progressive discipline policy (and suggested you vet any policy with an employment law attorney). Do you have to have a disciplinary policy? No. Should you? Yes. It allows your managers to have guidelines to follow and employees to know what happens when they don't do what is required. So what steps are suggested? First, a verbal warning. However, make sure to note in the file when the warning was given, by whom, and what it was about, along with consequences if no improvement is seen. The second step is a written warning. This is similar to the verbal (meaning it contains the action to be improved upon and he consequences if that does not happen), and the employee signs and dates it (not as to agreement with it, but that it was received). Steps 3-5 are in the post.

TAKEAWAY: As with all policies, first make sure they are legally compliant, then enforce them in a uniform manner.

The post on Friday 12/30/16 suggested that before you fire, know 3 limits on at-will employment. Most employees in PA are hired on an at-will basis, meaning they can be fired at any time, with no notice, and they can likewise quit at any time, with no notice. However, there are limits to when an at-will employee can be discharged. First, if the job termination has an illegal discriminatory purpose. Second, if the discharge is against public policy. The third reason is in the post.

TAKEAWAY:  While you don't have to talk to an employment law attorney before you fire an employee, it is a good idea to ensure that there are no adverse legal ramifications (or that you can deal with any that exist).

Finally, the post yesterday 12/31/16 asked: Can an employer require an employee to submit an FMLA certification from a specialist for FMLA leave? You have probably dealt with situations in which the primary doctor's certification for a requested FMLA leave is insufficient. So can they require more? Erica coincidentally took a leave after discipline or coaching about her performance. Once she turned in a doctor's note that said she was under the care of a psychiatrist and therapist. The employer then required her to get a certification from the treating psychiatrist, including fitness-for-duty at the end of the leave. Erica got the note and went on approved leave. Prior to return, Erica submitted a return to work note; the employer asked for additional details and didn't allow her to return until that was received. She submitted the second note, then resigned. (More complete details are in the post.) Then sued, alleging the second initial certification and delayed return to work violated the FMLA. The court rejected her claims for several reasons (in the post), including that the primary care doctor referred to the psychiatrist as the basis for FMLA leave and the 2 criteria for return to work (in the statute).  

TAKEAWAY: Employers should get the information they need in order to approve a requested FMLA leave, but also in order that the employee return from that leave.

Monday
Dec192016

ICYMI: Our Social Media Posts This Week – Dec. 18 - 24, 2016

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

In the post on Sunday 12/18/16 we noted that same-sex harassment is not actionable when not based on gender. We know that both opposite sex and same-sex harassment can be illegal, but either way it must be based on gender. That point was made recently in a same-sex case in a federal court binding on PA. Betz was a nurse alleging constant sexually offensive working conditions, including "licking, groping, making lewd gestures, or pretending to grope each other's breasts and genitals …." More is in the post. Betz complained and was terminated in retaliation. She lost because gender was not the basis of the harassment.

TAKEAWAY: Harassment should not be tolerated, especially if it rises to the level of illegality as based on gender.

The post on Monday 12/19/16 noted that age discrimination is starting to hit workers in their 40s. Know the law. "The law" being what is meant to protect "older workers" and "older" meaning age 40 or older. Not senior citizens. AARP even filed suit for age discrimination – details are in the post. This is the tip of a massive iceberg that will affect companies of all types and sizes.

TAKEAWAY: We've said it before and will say it again: don't take adverse action against anyone, especially one in a protected class such as age, without a valid legal basis.

In the post on Tuesday 12/20/16 noted that a healthcare entity settled a disability discrimination suit (and asked: Shouldn't it have known?).  Sharp Healthcare has agreed to pay $90,000 to settle the suit filed by the EEOC. What was it about? Sandra applied for a surgical scrub technician position; she was offered the job contingent on passing a medical exam. Later Sharp rescinded the offer based on what it perceived to be a disability related to a minor ankle ailment that wouldn't have affected her performance. She later got the same job at another medical facility. The monetary settlement is in addition to other things Sharp agreed to that are in the post.

TAKEAWAY: Before taking adverse action against an employee or applicant, make sure there is a valid legal basis for the action.

The post on Wednesday 12/21/16 told us that Airbnb Terms of Service blocked a discrimination case in court. Huh? A proposed class action suit in federal court was blocked by Airbnb's Terms of Service – instead the matter goes to private individual arbitrations. The suit alleged systemic discrimination as a result of its system software, specifically impacting African-Americans consumers using the service. How it did that is in the post.

TAKEAWAY: Whether in the employment or public accommodation context, make sure you know the rules of the game in case you get called on an out.

In the post on Thursday 12/22/16 we warned that a long-term shift of essential functions may remove them from the list. Be careful! Under the ADA, employers need not create new jobs or remove essential functions from existing positions in order to accommodate employees/applicants. In this case, the person was a grocery clerk for over 38 years. He was unable to lift more than 35 pounds. Gradually, other employees did that lifting for him. A new manager asked that HR evaluate his ability to safely perform. HR opined he could not perform the essential functions of the job on appeal, the case was sent back to trial on the issue of whether or not lifting more than 35 pounds was an essential function.

TAKEAWAY: If essential functions are removed from a position, even as an accommodation, the employer may later be unable to take action against the employee/applicant based on an inability to perform those tasks. Think before you act!

The post on Friday 12/23/16 told us a new PA law allows the use of payroll debit cards (if certain conditions are met). This can be good news for employers following the Superior Court's recent ruling that employees cannot require payment of wages on a payroll debit card. The law was just signed by the Governor on November 4th and is effective in early May 2017. The law contains requirements in order that the use of payroll debit cards be legal – some are in the post.   

TAKEAWAY: Employers can now use payroll debit cards as long as the employee has opted in and other conditions are met.

Finally, the post yesterday 12/24/16 noted that the EEOC enforcement plan for 2017-2021 focuses on the new economy and anti-Muslim bias. It is not really that limited, including Muslims, Sikhs, and those of Arab, Middle Eastern and South Asian descent. It also includes discrimination affecting temporary workers, staffing agencies, independent contractor relationships and the on-demand economy. Some of the priorities are listed in the post.

TAKEAWAY: The EEOC becomes ever more watchful over the workplace and the protection of employees – know the law and follow it.

Monday
Dec122016

ICYMI: Our Social Media Posts This Week – Dec. 11-17, 2016

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

In the post on Sunday 12/11/16 we noted that a Kentucky city settled allegations of discriminating against pregnant police officers. There were also allegations of disability discrimination (see the post). Two officers were pregnant but the city employer would not provide light duty work. That might have been ok had the city not previously assigned others to light duty work on a temporary basis when they could not do their regular jobs (for various reasons). Big oops.

TAKEAWAY: Know the law before taking adverse action against an employee who might be in a protected class. If you are not sure, consult with an employment law attorney.

The post on Monday 12/12/16 was about terminating employees: a practical checklist. (And we suggested you use it.) There will probably come a time when every employer will need to end the employment of one of its workers. The checklist in the post will help. Some of the things included are determining the type of relationship, whether cause is required for termination, and whether there is the risk of any litigation. The others are in the post.

TAKEAWAY: Employees have nothing to lose by filing a complaint of discrimination, but the employer has everything to lose. Do it right.

In the post on Tuesday 12/13/16 we asked: Can a fired employee sue for discrimination based on obesity? The answer was "it depends". If the person is merely overweight, probably not. However, the EEOC manual talks of "severe obesity" being an impairment and some courts have ruled it a disability under the ADA.

TAKEAWAY: The ADA protects disabilities and defines that term very broadly. Before you take adverse action against an employee who may be protected under law, consult with an employment law attorney.

The post on Wednesday 12/14/16 noted that an ex-employee called "fat and old" sued for age and national origin discrimination. Maria, age 56, had worked at Grow Financial for 15 years and ended up suing. Maria says that her manager, age 35, made discriminatory remarks including "If you want to stay fat and old, go ahead". More remarks are in the post. Maria asked her to stop, but nothing changed. The manager even allegedly slapped Maria in the face once but nothing was done after Maria reported it. Want ore? Before Maria received a termination notice, colleagues called and told her about it and a rumor that was going around (see the post) that further harmed her reputation. Maria's replacement was a male in his 20s.

TAKEAWAY: Train managers not to make discriminatory remarks – or even remarks not intended to be discriminatory but that could be taken that way.

In the post on Thursday 12/15/16 we talked about how employers are using enhanced FMLA fitness for duty. Did you even know that the FMLA provides for an enhanced fitness-for-duty certification? Yep. The employer must tell the employee about it prior to the return to work from approved FMLA leave. Further, the notice must contain specific things as listed in the post. This may be the next big litigation area so know the law.

TAKEAWAY: It is important to ensure that an employee can perform the essential duties of the position upon return from an FMLA leave, so feel free to use the enhanced certification as long as you follow the letter of the law.

The post on Friday 12/16/16 talked about 3 costly mistakes that could be lurking in your documentation. You may not have documentation, but when you do, you want it to be correct (and not land you in hot water). So what are examples of things that might do that? Using characterizations instead of specific examples (saying "sexual harassment" instead of giving an example of rubbing someone's leg under the table). The other 2 are in the post.

TAKEAWAY: Don't give the employee the opportunity to file suit for conduct not based in fact, but do make sure you give enough facts to show the conduct is indeed based on fact and legally supported.

Finally, the post yesterday 12/17/16 noted that silence may not be golden when it comes to the ADA's interactive process. You know the employee doesn't have to say any magic words to invoke the protection of the ADA, right? You also know that disability is defined very broadly, right? So make sure you as an employer fulfill your obligation to interact with the employee to find a reasonable accommodation if necessary. The post gives some ideas and an example of an employer who didn't do that.

TAKEAWAY: If you as the employer are on notice that the person has medical limitations, that may trigger your obligations under the ADA's interactive accommodation process. Don't just bury your head in the sand or take adverse action.

Tuesday
Dec062016

ICYMI: Our Social Media Posts This Week – Dec. 4-10, 2016

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

In the post on Sunday 12/04/16 we noted a poor performing employee cannot shift the ADA interactive process obligation. The employee had an accident; the employer offered a transfer to an administrative (from a manual labor) position. He accepted but was unsure if he could do the job. The employer gave him training and let him shadow someone. What did the employee do? He didn't do the additional training, missed work with no notice, and arrived late and left early. But he was not discharged. No, the employer tried to find other placements for him. When it could not, he was discharged for poor performance. He sued for failure to accommodate. (More details are in the post.) The court said the employee had a duty to at least try in good faith in the administrative position, which he did not do. That halted the employer's accommodation obligation and allowed discharge.

TAKEAWAY: While the accommodation process is a must, it is still a two-way street and both the employee and employer must participate in good faith.

The post on Monday 12/05/16 said a supervisor's remark could be used as direct evidence of discriminatory bias. Ouch. The background is that a female healthcare worker was passed over for promotion despite having more experience. The reason given for the failure to promote included a reference to her having bene out on maternity leave. That one comment was all the court needed to let the case go forward. The post gives more details.

TAKEAWAY: Train your employees in what to say – and not to say – to employees. Their words can land you in hot water from which it is difficult to escape unscathed.

In the post on Tuesday 12/06/16 we noted that sometimes quantity CAN be the deciding factor. To what, you ask? Poor performance. We all know (or should) that the FMLA does not require a reduction in performance standards for an employee on intermittent leave (or a reduced work schedule). But the employer might have to adjust productivity requirements based on the leave to see if quotas have been met. As the post notes, this is a quantity adjustment that takes out of the equation the FMLA leave (thus being fairer to the employee). If the employee still can't meet standards, adverse actin may be warranted.

TAKEAWAY: It is true that an employer cannot take adverse actin because the employee was out on approved FMLA leave. However, if a quota is adjusted for the time out on leave and the employee de not meet the adjusted quota, then adverse action may well be legal.

The post on Wednesday 12/07/16 was about planes, trains and automobiles: paying for travel time. The issue is whether or not the employer must pay for travel time by non-exempt employees. Pennsylvania employers should look to the FLSA for the answer, but the post gives some hints. For example, it notes that travel to and from work is generally not compensable (the post does note an exception). A big question always seems to arise relative to travel for business. Actual travel is normally time worked for which the employee must be paid. However, meals (with an exception noted in the post) and commuting between the residence and travel depot is normally not compensable. These rules apply both during the regular workweek and weekends (or other usual days off).

TAKEAWAY: Know for what travel time your employees must be paid to avoid a possible later suit.

In the post on Thursday 12/8/16 we talked about settlement of a same-sex harassment suit. The headline of the article does not bode well: female sales consultant was subjected to unwelcome sexual comments and groping by female co-worker. According to the complaint, despite a member of management witnessing much of the offensive conduct and the employee complaining, nothing was done to stop the conduct. The employer will pay $50,000 and other equitable relief to settle the case.

TAKEAWAY: Remember that sexual harassment is illegal, period. Stop it as soon as you are made aware of it.

The post on Friday 12/9/16 notes a lawsuit accusing Facebook of violating the 1964 Civil Rights Act. I wondered why it took so long for someone to file such a suit. The suit, which was filed as a class action, is based on a feature that allows advertisers to target users by race and ethnicity (by using the "Narrow Audience" feature to exclude certain demographics). The post contains a bit more background.  

TAKEAWAY: Be it employment or any other place of public accommodation, Title VII does not allow for discrimination on the basis of race or ethnicity. Just don't do it.

Finally, the post yesterday 12/10/16 was about a gender-specific bathroom ban for a transgender police officer landing the school employer in hot water. It seems like a gender-neutral bathroom would resolve all issues relative to bathroom use, right? Nope. So what happened? Bradley began employment in 1992 as Brandily, a female. He eventually became a police officer and served for 17 years. In 2011, he began dressing like a man, identifying as a man, and using the men's bathroom at work. Complaints from male coworkers soon followed. He told his bosses he was transgender and transitioning (with more details in the post). He was banned from the men's bathroom and told to use the gender-neutral bathroom (plus other things listed in the post – ugh). The school district then distributed a memo about his situation; he eventually filed an administrative agency complaint for gender-identity discrimination and harassment. The school district then reversed the male bathroom ban. However, when his records were not updated, he sued under federal and state law. Both Bradley and the school district filed for partial summary judgment (the school district's initial defense is in the post). The judge made several rulings: Title VII applies to gender identity (stereotypes about sex), there was direct evidence of discriminatory intent, and the bathroom ban was an adverse action for which the school district had no legitimate nondiscriminatory reason. The judge also denied summary judgment on the harassment and retaliation claims.

TAKEAWAY: Make sure that if you take an action seemingly in accord with the law, it really is legal – and not based on an underlying intent to discriminate.

Tuesday
Nov292016

ICYMI: Our Social Media Posts This Week – Nov. 27 - Dec. 3, 2016

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 11/27/16 we suggested you minimize employee lawsuits: 7 best practices for small business – and really any business. Don't let your worst nightmare (arriving at work only to be greeted by someone handing you lawsuit papers) come true. The steps listed in the post, along with others, can help you avoid that scenario. Those steps include being familiar with applicable federal, state and local laws; having a corporate structure that protects your (the owner's) personal assets, perhaps most importantly consulting with an experienced employment law attorney BEFORE problems arise, and others in the post.  

TAKEAWAY: Protect yourself and your business from charges and lawsuits by (former) employees – take the appropriate steps before your nightmare becomes reality.

The post on Monday 11/28/16 noted a retaliation claim proceeds when evidence allegedly manufactured. Ugh. Yes, a lower-level employee duped the company into thinking there was consensual sexual banter, Andrea, an EMT, alleged that a co-worker, Tyrell, made unwelcome sexual advances toward her, with the final being a naked picture of him texted to her while at work. The company refused her offer to view the texts. Tyrell then allegedly manufactured evidence against Andrea, including those things in the post. Andrea was discharged and filed a retaliation complaint. On appeal, the court said that the company could be held liable for wrongs committed outside the scope of employment when negligent in giving effect to the retaliatory intent of employees. Yes, the cat's paw theory.

TAKEAWAY: Thoroughly investigate all allegations of harassment and discrimination – don't let the company be used as a paw(n).

In the post on Tuesday 11/29/16 we asked: What qualifies as a request for accommodation under the ADA? Is it only when an employee says "I need an accommodation for my disability?" Of course not. The employee need only ask for help in some way; often this arises in connection with surgery or a doctor's restriction. The post gives us the example of Eugene, a maintenance supervisor at a coal mine, He went to the ER after a potential work injury and got a doctor's excuse for a few days. He had already scheduled a week off and the following week for surgery. However, 2 days into his scheduled week off, he met with the HR manager, about the work injury. The post tells what happened during that meeting, (but I think it is clear the employer was on notice of the need for accommodation). About 2 months later, Eugene met with the GM and an HR person; he was suspended. The employer's alleged basis for suspension is contrary to what Eugene said. Eugene then told them about his upcoming surgery. After meeting with his doctor, but before the doctor wrote a note that Eugene was disabled, the employer decided to discharge Eugene. (See what the post says about how this supposedly occurred). Eugene then advised the company of his doctor's note and was discharged a few days later in writing. Eugene sued for retaliation. The case is now in the court system.

TAKEAWAY: Make sure any request for help is viewed under the ADA's accommodation lens. Keep good records of any such requests and what you as the employer do in response. And make sure there is valid legal support for any adverse action.

The post on Wednesday 11/30/16 noted workers filed 15 EEOC complaints against McDonald's claiming sexual harassment. I doubt Ronald is happy! Fifteen females filed charges against McDonald's as franchisor but also against the franchisees. They allege groping, lewd comments and propositions from store managers and supervisors including cash for sexual favors. They also allege that their internal complaints were ignored. The post mentions in detail the allegations by one employee – and it's not pretty.

TAKEAWAY: Make sure to train your managerial-level employees and insist they follow your anti-harassment and anti-discrimination policies. Investigate complaints – don't put your head in the sane. And discipline if necessary (including discharge).

In the post on Thursday 12/1/16 we read about a $100,000 disability discrimination settlement. That's big money to be paid by Harrison Poultry from GA. The underlying complaint with the EEOC alleged that the male manager asked for a 7-day extension to his prior (approved) vacation to meet doctor's orders restricting him from work. So how did the employer respond? It immediately fired him, even before his vacation was done. More details are in the post.

TAKEAWAY: Remember that an employee request for disability accommodation need not use any magic words, need not mention the ADA, and need not use the work "accommodation" to trigger the employer's obligation to begin the interactive accommodation process (or be caught in the crosshairs as was this employer).

The post on Friday 12/2/16 advised BYOD – but be smart! The post starts with a bit of history: portable electronic devices were initially work-related productivity tools. Then they got smart. They could do more and took up much less space. Employees only wanted to carry one device to do it all, personally and for work. Technology keeps advancing at an alarming pace, but have your policies kept up? Things to look at (and possibly revise even if already included) are the remote wipe, overtime pay, payment for the device or data cost, and litigation holds. The post contains more details on each item.

TAKEAWAY: Employers need to be smarter than the devices their employees use – that includes having and enforcing policies about the possession and use of the devices.

Finally, the post yesterday 12/3/16 noted the EEOC sued Plastipak for sex harassment and retaliation. You're probably saying "so what?" The what is that this came out of the Baltimore office, just down the road and often where local cases are assigned for investigation and determination, and has a cornucopia of joint employment along with harassment and retaliation. The EEOC's suit alleges that Plastipak and a temp agency jointly employed Carrie. After Carrie rejected sexual advances from a Plastipak employee, the employee complained (mostly falsely) to supervisors about Carrie's supposed rule violations. Carrie complained to her immediate supervisor about the sexual harassment and, in return, was terminated by Plastipak. What Plastipak told the temp agency is in the post.

TAKEAWAY: Be careful about joint employment now that the door has been opened. Also, whether you are the employer or joint employer, take all complaints seriously, investigate them, issue discipline, and don't take adverse action against the person complaining (unless s/he knowingly made a false complaint to harm another).

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