Monday
Jul252016

ICYMI: Our Social Media Posts This Week – July 24-30, 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 7/24/16 we asked If a tree falls in a forest and nobody hears it, can you still retaliate against it? Probably not. In a recent case (binding on PA cases), Kacian complained about a male manager harassing her, including asking for pictures of her in a bikini, telling her to stay off her knees (which she thought of as sexual innuendo), telling her that her regulation shorts were too short, and more in the post. The act for which the employer discharged her, which occurred after she complained about the harassment, had been overlooked for other people (except her boyfriend). The supervisor who discharged her was unaware of the complaint. The trial court found there to be no cause for retaliation if the manager didn’t know of the underlying complaint. On appeal, the court reversed, noting that the underlying complaint was objectively reasonable and circumstantial evidence (including temporal proximity and more noted in the post) could prove a retaliation claim.  

TAKEAWAY: Any time an employee complains about harassment or discrimination, an employer must investigate and ensure that no unwarranted and unsupported adverse action is taken – or it may find itself listed as a defendant in a suit for the underlying action as well as retaliation.

The post on Monday 7/25/16 told us how a federal court ruling drives home the importance of written job descriptions. The case was brought by a truck driver and cancer survivor against a prospective employer. As part of the application process, the applicant disclosed that he’d been out of work due to cancer but was now in remission. The employer did not hire him due to lacking 3 years’ recent driving experience as required by the employer’s insurance underwriter. The applicant then sued under the ADA. Both the trial and appellate courts rule din favor of the employer. Why? Because of the job description, the applicant couldn’t not establish he was a qualified individual with a disability under the ADA. Details about the job description and analysis are in the post.

TAKEAWAY: Job descriptions are important for many reasons, including describing the essential functions of the job that are used to determine eligibility for, and accommodation of, an individual with a disability.

In the post on Tuesday 7/26/16 we were busting employment law myths. First, in an at-will state, employment laws don’t apply. Yeah, right. At-will means only that either party can terminate the employment with no notice and for no reason, as long as it’s not for an illegal reason. Next, employees are entitled to due process pre-termination. Not necessarily; an employer need only do what is required under any contract or applicable law. The other myths that are busted are in the post.

TAKEAWAY: There are a lot of things that have been handed down or are floating around as to what is or is not required in the employment arena – talk to an employment law attorney to be sure you know what is or is not required for your business.

The post on Wednesday 7/27/16 noted that retaliating against whistleblowers can be costly (and how to protect yourself). If your company hasn’t yet been the subject of a retaliation suit, count yourself as lucky – but don’t count yourself out yet. Retaliation claims are on the rise (and often accompany a suit over the underlying job termination). Among others, the EEOC, NLRB and OSHA are concerned with employer retaliation. The post gives some examples of the areas in which they might be interested. So what is a good employer to do to protect itself? Some suggestions (which can vary according to the facts of each situation) include suspending first and then terminating if appropriate and letting time pass. Other suggestions are in the post.

TAKEAWAY: Employers are permitted to discharge employees, but must be careful that there is not only support for the adverse action, but that it is not being taken in retaliation for prior action by the employee.

In the post on Thursday 7/28/16 we asked What? He failed a drug test – so how can he sue under the ADA? Here, John was denied a truck driver job after he failed the medical exam. He took a drug to control narcolepsy; he gave to the company a doctor’s note explaining it would not affect his ability to perform the job. The employer’s doctor told him to get off that drug, take a different one, and see how things were in 6 weeks. He did. But then the same company doctor denied employment due to the underlying narcolepsy. You guessed it, he sued under the ADA. The court found that despite the failed drug test, the employer had not met its obligations because its doctor had not contacted his doctor to see if he could do the job.

TAKEAWAY: Employers should take pains to work with disabled individuals. Period. Or try to get a judge or jury to understand why you didn’t.

The post on Friday 7/29/16 asked Will the new overtime rule mean less or more litigation? First, remember that the new rule is effective 12/1/16 and increases the dollar threshold (to $47,476) for exemption from overtime, thus bringing more workers within its ambit. There is disagreement on whether this will have any effect on FLSA suits. The rule helps in one way: whereas now exemption depends on pay and the duties test, under the new rule one need only look to the amount of wages. If the threshold is not met, the person is exempt regardless of his or her job. So why might litigation actually increase? The post includes some ideas such as employers raising salaries to meet the threshold but not ensuring job duties are performed and employees working off the clock to make sure they get their work done.

TAKEAWAY: Employers must not only correctly classify workers as employees or independent contractors, but for the former must know whether or not they are exempt from overtime pay requirements.

Finally, the post yesterday 7/30/16 talked about FMLA notices and how a missing key piece of info kept an employee’s suit alive. John was a project construction manager at a Federal Reserve branch. His depression caused unscheduled work absences. He was eventually admitted to a hospital; despite doctors recommending a 30-day rehab program, he refused due to concerns about his job. John also turned in a form for short-term leave (which doubled as am FMLA leave request). He was approved for a month of leave but returned to work after a few days. He was assigned to work out of town. He drove to the location in a company car and checked into a hotel at company expense. But he didn’t report to the job. He was put on a PIP and after not meeting a goal, was discharged. He filed suit for FMLA interference, arguing that the company didn’t tell him about his job restoration rights (thereby allaying his fears about his job so he would’ve taken the time off). The employer’s proffered a defense (in the post), but the court let the case move forward because the FMLA notice the employer had sent him did not contain info on his job restoration rights.

TAKEAWAY: Make sure you inform employees of all rights they have under the FMLA (or other applicable laws) so they can make informed choices – and not have a simple basis to sue you.

Monday
Jul182016

ICYMI: Our Social Media Posts This Week – July 17 - 23, 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 7/17/16 we talked about how hiring for culture fit becomes employment discrimination. People tend to hire and promote others like them – but that could be discriminatory. So what’s the new way employers try to get around their biases and predilections? By saying the person wasn’t a good culture fit. It is really another name for the same actions – taking employment action based on personal likes and dislikes. The post mentions just one way some managers apparently decide whether to hire someone: how fun the applicant would be to kill time with while waiting for a flight. More are in the post. One thing a study found is that “sharing a love of teamwork or a passion for pleasing clients” was not evidence of culture fit. Hmmm.

TAKEAWAY:  Employers must keep in mind that taking adverse action – including not hiring an applicant – for any reason that is not directly job related can result in legal liability for discrimination (most often on the basis of a protected characteristic). Just don’t go there.

The post on Monday 7/18/16 we noted that an Ex-lovers’ spat for harassment will stay in high school, not court. A teacher in NY filed suit for sex discrimination and retaliation, alleging the school district treated him unfairly after his ex-wife – who is also his supervisor – reported he was harassing her during the school day. The judge found nothing of which he complained was an adverse employment action under Title VII. SO, the background. John and Kristy were married co-workers; during the divorce proceedings, she filed administrative complaints and a police report and then got a TRO against him. The basis of her complaints is in the post. The judge found that John “suffered a series of minor indignities, which he found to be personally offensive, but which had no discernible impact on the material terms and conditions of his employment.” More of his allegations and the court’s analysis ae in the post. .  

TAKEAWAY: As always, make sure the facts support the allegations, whether in a complaint, charge or lawsuit.

In the post on Tuesday 7/19/16, we learned the Newark Port Authority automobile processing facility will pay $350,000 to settle an EEOC race discrimination suit. FAPS, Inc. is one of the country’s largest auto re-delivery service firms – the bigger they are, the harder they fall. Here the EEOC charged that FAPS engaged in a pattern or practice of discrimination against African-Americans in recruitment and hiring, refused to hire qualified African-Americans, and falsely told African-American applicants that no positions were available when they were. More details are in the post. FAPS will pay $350,000 plus provide other relief.

TAKEAWAY:  Yep, another example of making sure the facts support your argument – whether it be that a violation occurred or something in defense of such allegation.

The post on Wednesday 7/20/16 was about when tragedy strikes: how employers can assist after mass shootings and disasters. Timely (and sad) indeed. Some of the things touched on in the post include leave and other benefits for affected employees or their family members, FMLA, ADA, what the company should do if an employee died, what else an employer might consider, and more.

TAKEAWAY: Employers can help themselves, their employees and perhaps others in the face of a mass disaster while remaining within legal constraints.

In the post on Thursday 7/21/16 we read about a McDonald’s worker fired for being HIV-positive. Yep, ugh. The allegations in the suit filed by the EEOC include that the employee was fired after admitting to the GM that he had “an interest” in a co-worker and telling the co-worker that he was HIV-positive. Apparently a week prior to termination he’d been questioned by a manager and was told he might lose his job because the employer had previously fired an HIV-positive female employee.

TAKEAWAY: Employers, do not take adverse action against an employee (especially if based on a protected characteristic) unless it is clearly job-related. Just don’t do it.

The post on Friday 7/22/16 was about pre-offer background checks: employer beware. May an employer conduct a background check on an applicant prior to extending an offer of employment (even if it usually does the background checks post-offer)? While legal, it’s probably not a good idea for several reasons, including that it deviates from normal practice (and may form the basis for a later suit) and may reveal information about a protected characteristic that is not job related (and, again, may form the basis for a later suit). Other reasons are in the post.  

TAKEAWAY: Background checks on applicants can be legal if done properly, but the timing is also important.

Finally, the post yesterday 7/23/16 told us 15 tactics to prevent FMLA abuse. So what are these proactive steps employers can take? Training managers. Using the rolling method to track leave. Requiring concurrent leave. Treating people evenly. And 10 more in the post.

TAKEAWAY:  Employers must know how to respond when employees ask for FMLA leave and also how to (hopefully) prevent that leave from being abused. That way, everyone is happy.

Monday
Jul112016

ICYMI: Our Social Media Posts This Week – July 10-16, 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 7/10/16, we talked about Wearables at work: 9 security steps worth taking (and noted the last few are super-important). This post is relevant to everyone. Tip #1: get used to it. BYOD is everywhere and you need to deal with it. Tip #2: consider the ecosystem. No this doesn’t mean the rainforests of Peru. Your office’s cloud or other system. The other tips are in the post; read them now or re-read them if you already read the post.

TAKEAWAY: Technology moves at an alarmingly quick pace – you need to be in the race and controlling what happens to, from and related to your office.

The post on Monday 7/11/16 was Hot hot: termination for conduct caused by side effects of prescription medication not disability discrimination. Lisa worked for Chipotle (yes, now you see the pun!) as a crew member; she had a long medical history. In April 2013 she told her manager she took medication and mentioned the condition, but not any side effects or other ramifications of the medication. The following Month she got new meds and took a few days off. She worked for 4 days and then arrived in what seemed like a drunken state. She was sent home and fired later that day for violating the Drug & Alcohol Policy (details of which are in the post). Lisa claimed disability discrimination along with FMLA interference and retaliation. The latter were dismissed (the reason is in the post). She claimed that firing her for the medication’s side effects was akin to firing her for her disability. The court analyzed the situation, referring to a US Supreme Court decision, and found the termination legal as being from application of a neutral policy. Details of the analysis are in the post.

TAKEAWAY: Facially neutral policies can sometimes be found to be discriminatory, but this one was not – even though it adversely affected a person otherwise protected as a disabled employee.

In the post on Tuesday 7/12/16 talked about telecommuting as an ADA accommodation – whether or not the employer likes it. Remember, the employer does not have to create a new job, but it must consider if presence at the job site is an essential function of the existing job when faced with a request to telecommute as an accommodation.

TAKEAWAY: It is a good idea to consider location and whether or not job-site presence is an essential function of the job – if so, note it on the job description.

The post on Wednesday 7/13/16 was about a trans employee and ACLU suing a healthcare provider for insurance discrimination (based on sex). Joe worked as an operating room nurse and began transitioning to a woman about a year ago. Prior to his first surgery, he realized his insurance policy excluded transgender-related treatment. He filed a charge with the EEOC, alleging discrimination based on sex. The employer denied the allegations (its reasoning is in the post). The ACLU didn’t buy it either and helped him sue.

TAKEAWAY: Trans employees may be protected by local, state or federal law or order; know what is required in your jurisdiction for your business.

In the post on Thursday 7/14/16, we talked about Security: 6 steps to protect your office from rogue or careless employees. While this was directed to law firms, it applies equally in most, if not all, industries – BYOD crosses all lines. So what are the tips? First, have a policy (and make sure employees read and sign it). Second, turn on email archiving. This preserves (saves) all email even if the user deleted it. Third, disable accounts for inactive or former employees. Use the checklist in the post to aid in this step.  The other 3 steps are in the post.

TAKEAWAY: Know how employees are accessing your company’s data – and control it to make sure there is no harm done by that access.

The post on Friday 7/15/16 was a reminder that the EEOC increased fines 150% for employers violating the notice posting requirements. This final rule was published and became effective July 5, 2016. Notices are required relative to Title VII, the ADA, and GINA. The maximum penalty rose from $210 per violation to $525. To see which employers are covered by the posting requirement, go to the post.

TAKEAWAY: If you are a covered employer, make sure you are properly posted to avoid being fined. It can get costly. And that’s even before the lack of notice results in harm to (or alleged by) an employee.

Finally, in the post yesterday 7/16/16 we learned Enterprise Rent-A-Car discriminated against black applicants (or so DOL has alleged). The complaint says that Enterprise favored white applicants during entry-level screening for management trainee positions (and also did not maintain proper records). Mediation failed so the suit was filed. DOL wants back pay or that Enterprise be barred from federal contract participation. 560 applications by blacks were reviewed and it appeared that white applicants were twice as likely to be hired. The company disputes the allegations.

TAKEAWAY: Don’t just talk the talk about diversity in hiring; make sure you walk the walk or you too might be on the wrong end of a lawsuit.

Wednesday
Jul062016

ICYMI: Our Social Media Posts This Week – July 3-9, 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 7/3/16 we followed-up a prior post and noted the US Soccer Federation defends against gender discrimination & equal pay allegations. Now remember that although this is playing out in the media, it is occurring at the EEOC. The Federation asked the EEOC to dismiss the charges, saying the pay disparity is based on factors other than gender, including that there are collective bargaining agreements in place and that US Soccer supplements the female players’ salaries. More details on the defenses are in the post.                                          

TAKEAWAY: There is usually more than one side to a suit and this case is no different. While it plays out, employers should remember that any disparity in pay between men and women should be based on (and provable by) a valid, legal basis other than gender.

The posts on Monday 7/4/16, here and here, wished you a Happy Independence Day and asked that while you enjoy yourself, you remember from where our freedoms came.

TAKEAWAY: Enjoy our holidays, but remember why we have them.

In the post on Tuesday 7/5/16, we noted a suit claiming failure to accommodate a FMLA leave request & failure to advise of FMLA rights. Oops?!? This case came out of Western PA. The suit was filed in early May alleging that in August 2015, Joseph had headaches and he had to miss work. The company president allegedly told him she’d take care of his staff while he was out sick. Then, in direct contrast, the president started to harass him for not doing the things she said she’d do in his absence. After requesting but not being approved for FMLA leave, in September he learned through others that he’d been terminated. More details are in the post.

TAKEAWAY:  There is probably more to this than appears in the quick article; if not then it seems a no-brainer. However, to prevent your company from being the next defendant, make sure to respond properly to all requests for FMLA leave and not take adverse action against anyone to whom the FMLA might apply.

The post on Wednesday 7/6/16 taught that Prime Inc. will pay $3M to settle a sex discrimination suit. Ouch is right. Prime is the 20th largest carrier in the US, so one would think it would know how to comply with applicable law. Apparently not. The EEOC sued, alleging that Prime’s policy that female drivers could only be trained by female trainers acted to deny women driving jobs based on gender. While Prime agreed to settle, it denied the allegations and said that at least some in the trucking industry were behind the policy (which it discontinued). Go to the post for more details.

TAKEAWAY: While the policy was well-meant – to prevent male trainers from sexually harassing female truck operators – it was still based on gender and therefore violated the law. Employers’ good intentions will not necessarily win the day.

In the post on Thursday 7/7/16 we asked should you pay off your mortgage early (and things to consider). The question matters even for those not close to retirement who, with low interest rates, can continue working and have more time to build their retirement funds. Each person should look at his/her financial goals and current interest rate.

TAKEAWAY: The media is replete with advice to pay off one’s mortgage as quickly as possible, but that is not always the best advice for you. Look at your unique situation and determine what’s best for you.

The post on Friday 7/8/16 was about an IT admin facing felony charges for deleting files under the hacking law. Employers take heed! How broad are the hacking laws? IT administrator Michael found out. He deleted files before leaving his job in 2011 and was sued for violating the Computer Fraud and Abuse Act (CFAA). That law was enacted in 1986 to prevent (and enable prosecution of) malicious hacking. He was not charged with unauthorized access since, as IT admin, he had full access. Instead, he was charged with unauthorized damages based on the employer’s allegations that his file deletions were malicious and resulted in over $5K damages. More details (including him fleeing to Brazil and the US seizing some assets) are in the post.

TAKEAWAY: This case might set precedent – dangerous for employees, possibly a boon to employers. We will have to see how it plays out, but in the meantime all should be careful of actions that might possibly be connected to this law.

Finally, the post yesterday 7/9/16 noted that employers and applicants need to know what job interview questions are out of bounds. I think everyone knows that “how old are you” is an inappropriate (and illegal) question. The post mentions other areas that should not be the subject of interview questions – unless they are directly job-related (which most protected characteristics are not). One example in the post is not to ask if the applicant has children or family obligations when the intent is to find out if the applicant is available to work outside of normal business/work hours; instead, just ask what is intended.

TAKEAWAY:  Employers usually have the company’s best interests in mind, but sometimes step into quicksand with some questions – avoid that by writing down questions and sticking to them in the interview.

Monday
Jun272016

ICYMI: Our Social Media Posts This Week – Jun. 26 - Jul. 2, 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 6/26/16 we talked about a restaurant forced to rehire an employee blabbing about food quality. So who’s in charge now? This is another case under the NLRA applied to a non-union employee. So if you still think it doesn’t apply to you, please get your head out of the sand. The background, in summary, is as follows: a union lost an election. One of the supporters then asked a company executive for paid sick leave for all employees (which was construed as protected concerted activity). More employees then got into the act, making posters (see the post for the contents which, I have to admit, sounds creative) and putting them in neighborhoods around Jimmy John’s locations. Management was less than happy; they removed the signs, fired the 6 employees it thought were most responsible and disciplined 3 others. The federal court ruled in favor of the employees’ legal protections, saying, in part, (1) the posters had a connection to the paid sick leave issue, (2) the posters had a kernel of truth based on company policy, (3) and Jimmy John’s sandwiches had previously suffered a norovirus outbreak, thus again connecting them to the paid sick leave issue. Oh, but that’s not all. The post details the court’s dissenting opinion and more bases on which the majority found NLRA violations while essentially shrugging off what were argued to be comments by disloyal employees warranting discharge.

TAKEAWAY: If you have not already, heed this advice now: know your obligations as an employer under the NLRA and make sure any adverse action you take against an employee does not run afoul of that law as its interpretation and reach is broadened more and more.

The post on Monday 6/27/16 was about an EEOC consent decree highlight: Employers must prevent ADA claims – or pay the consequences. These are public so the employers cannot escape others pointing fingers at them. In the first case, a paper manufacturing company will pay $187,500 plus have training for plant managers and HR staff on disability discrimination and reasonable accommodation under the ADA. The second case provides that the employer will pay $33,000 plus train managers on non-discrimination and reasonable accommodation. Seeing a trend yet? The third case is in the post but involves a bank.

TAKEAWAY: Make sure your company has a valid, legal, current policies on non-discrimination, EEO, and reasonable accommodation (including leaves) and train employees, especially HR, managers and supervisors) on the policies.

In the post on Tuesday 6/28/16 we learned RockTenn to pay $187,500 to settle EEOC disability discrimination suit. This post actually provided roe detail on the first consent decree mentioned in yesterday’s post. So what happened? Glen began to work for this paper and packaging manufacturer in October 2010 as HR manager. A few months later, he had open heart surgery and was on short-term leave until April 2011. In early March he was cleared early to return for partial days and told the employer he’d do so effective March 21. The employer terminated him March 10th. Yep, confusing. In 2014 the EEOC filed suit for disability discrimination under the ADA and this consent decree now follows.

TAKEAWAY:  Don’t forget that reasonable accommodation under the ADA can take many forms, including a leave of absence.

The post on Wednesday 6/29/16 detailed victory for an Iraq war veteran. The length of the saga is detailed in the first sentence of the post: “He fought for the country, then fought for his state job and now, after eight long years, two gubernatorial administrations, two attorneys general and hundreds of thousands of dollars in legal fees, the battle is over – and he won.” The issue was discrimination in his civilian job because of his military service. The state Supreme Court ruled that suit could be brought under USERRA even as against a state employer – thus affirming there is no sovereign immunity. The background facts are in the post and include deployment to Iraq and Kuwait in 2005, returning in 2007. The suit was filed in 2008. If other states follow this lead, this could be an important casse for veterans.

TAKEAWAY: There are so many veterans in civilian jobs – know the law, especially that it prohibits workplace discrimination or retaliation and gives veterans the right to return to civilian jobs with the same pay, benefits and status had they not bene on active duty.

In the post on Thursday 6/30/16 we talked about a woman suing a movie theater chain in PA for allegedly violating her FMLA rights. Now showing on a big screen near you. (Don’t worry, I won’t be switching careers any time soon.) Kim filed suit in federal court in Harrisburg alleging violations of the FMLA, ADA and PHRA. The allegations include that she started to work for the defendant’s predecessor in 2002 and continued in the same position when the defendant bought the company. She began to take time off to care for a parent in 2014. The company did not tell her about FMLA leave but rather suggested she use vacation time. Upon her return, the company told her she could return at a lower pay rate and gave her one hour to decide on the offer. More in the post.

TAKEAWAY: This case is still pending; the employer has denied the allegations and a mediation conference is scheduled for 8/16/16. Stay tuned. In the meantime, ensure your company follows applicable law relative to leave and return from leave under the FMLA, ADA and PHRA.

The post on Friday 7/1/16 noted 29 former employees sue General Mills claiming age discrimination. Holy Cheerios! The plaintiff employees were all terminated in late 2014 or early 2015 during a restructuring. The suit alleges that employees age 40 and older were more than 3 times as likely to be terminated as younger employees. Statistical evidence cited by the plaintiffs appears to bear out their claims. See the post for the numbers. GM has denied the allegations.

TAKEAWAY: The mere fact that an older employee is terminated and a younger employee is not does not necessarily give rise to a legal claim, but the employee should have valid legal support for the termination in case a charge or suit is filed.

Finally, the post yesterday 7/2/16 talked of a blind man claiming McDonald’s violated the ADA by restricting drive-in customers. Yes, a suit against Ronald’s house. I know you are wondering what happened … Scott is blind. He apparently likes to use McDonald’s drive-up window late at night as a pedestrian. He says when he tried to do that in August 2015, he was laughed at and refused service. He filed suit under the ADA. So who’s laughing now?

TAKEAWAY:  Not only is this bad publicity for the employer, but it is never good business to violate the law (if indeed it did here). To prevent your company’s name from being listed as a plaintiff in a suit, know the law and apply it properly.

Monday
Jun202016

ICYMI: Our Social Media Posts This Week – June 19-25, 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 6/19/16 we asked Sex discrimination is illegal, but what does that really mean? A very good question. The suit brought by the Department of Justice against the State of NC attempts to touch the iceberg by asserting that restricting trans individuals’ access to bathrooms in state buildings violates Title VII’s prohibition against sex discrimination. DOJ (and the EEOC) assert that includes gender identity. The post details a bit of the history of this language, including an anecdote about FDR (a reporter asked him “what about sex?” and he answered “Don’t get me started. I’m all for it.”) As they say, we’ve come a long way baby relative to the meaning of discrimination the basis of sex. The post analogizes trans employees to the employee in the Price Waterhouse v. Hopkins case on the basis that sex includes not only biology, but conformity with expectations about appearance, demeanor, and identity and explains how the EEOC moved from that to sexual orientation also being covered. So, for example, as the post notes, asking about married male employees “Who’s the butch and who is the bitch?” will be deemed by the EEOC to be a statutory violation. Other examples are in the post. Attorney General Loretta Lynch summed it up at the press conference after the suit was filed against NC: “This action is about a great deal more than just bathrooms.” She is so right.

TAKEAWAY: PA law may not explicitly bar discrimination on the basis of sexual orientation or gender identity, but the EEOC does and federal courts are starting to interpret Title VII that way. Just because it isn’t illegal (yet) doesn’t make it the right way for an employer to act – and may put you at risk for violation of federal law.

The post on Monday 6/20/16 mentioned that Lowe’s is to pay $6.8M to settle a disability discrimination suit (definitely not DIY)! The underlying suit was filed on a nationwide basis by the EEOC alleging that Lowe’s fired disabled employees and by failed to provide reasonable accommodations to them when their medical leaves of absence exceeded Lowe’s maximum leave policy limits. The allegations also included termination of employees regarded as disabled or with a record of disability and those associated with disabled persons. More details are in the post.  

TAKEAWAY: One would think these big national companies would be on the cutting edge of rights and protection for disabled persons – one might be wrong. In your corner of the nation, ensure that you treat disabled workers as the law requires.

In the post on Tuesday 6/21/16 we noted US Lawns was not liable as a joint employer under Title VII. The rulings are starting to trickle in on this topic. A federal suit was brought against US Lawns as franchisor and a franchisee as joint employers; the allegations included gender discrimination, harassment and retaliation in violation of Title VII. The suit included alleged remarks by a corporate manager such as the plaintiff “should be working on the detail crew because she is a woman.” More titillating details are in the post. So how did the issue of joint employer arise? The plaintiff said she got correspondence from the employer (the franchisee) on US Lawns’ letterhead (saying it was from the employer and the date from which she had been employed by US Lawns), had to wear a US Lawns uniform and drive a truck with the US Lawns logo. US Lawns argued it was not a joint employer because the control requirement was lacking (and that even if it was found, the franchisee-employer had insufficient employees to meet the Title VII threshold). The judge did not buy the plaintiff’s joint employer argument.

TAKEAWAY:  Suing under a joint employer theory gives employees another (and possibly a deeper) pocket for recovery, but suit alone does not make the entities joint employers. The prerequisites to find that relationship must still be met. Consult an employment law attorney to ensure your business can’t get caught up in being a joint employer.

The post on Wednesday 6/22/16 reminded us that PA wiretap laws still forbid use of smartphone apps to record conversations. The app store was open for business and the PA Supreme Court walked in, ruling on the use of smartphone apps in the context of illegal wiretapping. Current state law prohibits recording conversations without the consent of all participants; the lack of consent subjects the recorder to a felony charge. A 2014 case from the PA Supreme Court (listed in the post) found that one-sided recording of private conversations was not illegal if done by phone (at least in the criminal context). The Court recently reconsidered the telephone exception in light of smartphone technology and capability and found smartphone recording apps to be akin to concealed tape recorders and thus an illegal violation of the Wiretap Act. Details of the recent case are also in the post.

TAKEAWAY: It’s the law in PA – before recording a telephone conversation with a smartphone, get consent from all participants.

In the post on Thursday 6/23/16 we noted that if a disability accommodation is easy to grant – like an early lunch – just grant it. Yes, an employer could argue every single point when faced with a request for reasonable accommodation, starting with whether or not the person is disabled under applicable law. However, if it won’t set precedent in that case or other cases, and the accommodation requested is a simple one, it might be best for the employer to just grant the request. That way, the employer won’t have a long, ongoing interactive accommodation process (and possibility of future suit) on its hands, but will have a happy employee.

TAKEAWAY: Nike's slogan is (or used to be) “just do it”’; that can apply in the disability accommodation process too if it won’t set a bad precedent and will relieve the employer of potential future lawsuit liability.

The post on Friday 6/24/16 said FMLA leave is like a hot potato – handle with care of you might get burned. This harkens back to the recent federal court decision on individual liability for FMLA interference and retaliation (see this post and our prior post). What might have gotten lost in the shuffle – and the subject of this post – is reinstatement of the suit against the employer and how the end of FMLA leave should or should not be handled. IN general, the HR Director apparently made it difficult for the employee to return to work after FMLA leave, which in turn resulted in discharge for job abandonment (and subsequent suit). Details about this case, which is not unusual, are in the post, including the analysis of why the HR Director was also held to be individually liable as an employer.

TAKEAWAY: The several takeaways include employers playing nice with their disabled or ill employees, answering employees’ questions, and others in the post. Do you really want your HR person’s nastiness or failure to cooperate on display publicly in the context of a lawsuit?

Finally, the post yesterday 6/25/16 confirmed Never forever: an indefinite extension of light-duty is not required under the ADA. An ADA accommodation request might involve light duty; then the question becomes whether or not that light duty assignment becomes indefinite as an accommodation or has a finite time. IN the subject case, the employer’s policy was clear that there were no permanent light duty positions and limited light duty to 270 days within a 2-year period. After exhausting the light-duty time and a medical determination questioning whether the employee could ever return to full-duty status, the employer discharged her. She then sued for disability discrimination (and retaliation) under the ADA. Here the parties agreed she was disabled and required accommodation to perform the essential functions of her job; the question was whether the employer failed to provide a reasonable accommodation (indefinite light duty work or reassignment). Under the facts of the case (as in the post), the court ruled in favor of the employer, saying indefinite light-duty was not a reasonable accommodation.

TAKEAWAY: Remember that employers have a duty to provide A reasonable accommodation, not necessarily THE one requested by the employee. And any accommodation, whether requested or offered, must be reasonable.  

Monday
Jun132016

ICYMI: Our Social Media Posts This Week – June 12-18, 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 6/12/16 we noted the NLRB said you can’t stop employees from taping meetings. NOTE: this applies to all employers subject to PA law. In a recent decision the NLRB ruled that blanket policies prohibiting the use of devices to record conversations and company meetings is illegal, thus finding the subject policy (“… recording conversations, phone calls, images or company meetings without the approval of top management or consent of all participants would result in discipline up to and including discharge”). The NLRB, as it has been want to do, found the policy might interfere with Section 7 rights to protected concerted activity. How, you ask. Even one person might record something to further a course of group action and the exercise of the protected rights cannot depend on permission of the employer or all parties’ consent. This can be adapted to specific situations and in order to comply with applicable law (see the post for one such example).

TAKEAWAY: As we’ve seen, ALL EMPLOYERS MUST BE CAREFUL NOT TO ABRIDGE EMPLOYEES’ SECTION 7 RIGHTS; doing it without meaning to is no legal defense. Have policies reviewed by an employment law attorney to ensure they pass legal muster. And make sure you also comply with PA law relative to recordings.

The post on Monday 6/13/16 told us the failure to respond to a request for reasonable accommodation cost AT&T $250K – so don’t be like AT&T! The EEOC filed suit against AT&T on behalf of Miguel Melendez. He began working for a predecessor company in 2001 as a switch technician. In 2009, Miguel became visually impaired; in 2009 he was medically cleared to return to work and requested a reasonable accommodation (adaptive technology software). He never got a response to his request but 1-1/2 years later was removed from his position and not permitted to return to work. He filed a charge with the EEOC in 2010. See the post for more details about the suit and its resolution.

TAKEAWAY: When an employee requests reasonable accommodation, respond; don’t stick your head in the sand like AT&T (unless you also have a purse like AT&T).

In the post on Tuesday 6/14/16 we talked about protecting trade secrets from theft by ex-employees. Atlantic Marine Construction Company sued its former VP of Construction and his new employer alleging trade-secret theft after he was fired (using software to access the information). Atlantic says he installed the software on his work computer without authorization, then logged in post-discharge to steal information (the number of times of access and information taken are in the post). The suit is brought under the Computer Fraud and Abuse Act and state law.

TAKEAWAY:  Might this have been avoided by wiping clean the ex-employee’s computer immediately at or after discharge? We don’t know for sure, but the post contains that and other tips on how to minimize this type of risk.

The post on Wednesday 6/15/16 listed 13 reasons why non-union workplaces can’t ignore the NLRB (and suggested you let us help your business comply). Yes, all businesses must sit up and take notice! The NLRB has greatly broadened the definition and application of “concerted protected activity”, thus giving it jurisdiction (and authority to remedy any deemed violations). So in what areas might the Board enter your business life? Socmedia policies, off-duty access restrictions, and many more listed in the post.

TAKEAWAY: Again, even if you are not a union workplace, make sure your business has the appropriate policies in place and that they meet the current legal mandates of the NLRB.

In the post on Thursday 6/16/16 we noted that layoffs for the inability to speak English may be discriminatory. Does it seem strange to you that a plastics manufacturer hired Hispanic and Asian employees, despite their inability to speak English, then fired them for that reason? Well, a federal court agrees. The details are in the post, but suffice it to say the company laid off a large percentage of its Hispanic and Asian employees and replaced them with a majority of Caucasians to increase English-speaking employees. The EEOC sued on the basis of race or national origin discrimination. The employer moved for summary judgment, asserting (apparently with a figurative straight face) that the layoffs had no discriminatory motive but rather were based on English language skills which, it said, was a deciding factor in whom to lay off. The laid-off employees argued that the language preference could not be a non-discriminatory reason. The court ruled against both sides, but did note a strong correlation between non-English-speakers and national origin, a protected class. So now the case goes to a jury to decide if the language preference was legitimate or an excuse to discriminate.

TAKEAWAY: Make sure any adverse decision, even one as seemingly innocuous as language skills, is legal and supported by business necessity.

The post on Friday 6/17/16 confirmed that Yes, you can be fired for being pretty. (It then asked if this should be legal.) So you are cute and work for someone whose spouse is worried about a possible affair – and then the boss fires you. Do you have any legal recourse? Many courts say no. Dilek Edwards just found that out in NY. She taught yoga and worked as a massage therapist for a chiropractor. Her boss’s wife co-owns the practice and is COO. After about a year of employment, the boss told Dilek that his wife might become jealous because she was “too cute”. Four months later, the wife told her – via text! - she was “unwelcome”; the rest of the test is in the post. The next day brought an email from the wife firing Dilek. Later she filed sued, alleging gender discrimination under state law (which in NY is broader than in PA). Despite the broad statutory language, the court said she was not in a protected class (attractive) as it applied only to transgender or gender identity cases. Something similar happened in Iowa several years ago.

TAKEAWAY: While courts have expanded the reach of gender discrimination, it can still depend on the statutory language and drafters’ intent as interpreted by the courts. Make sure you know the language and interpretation before taking adverse action that may be illegal.

Finally, the post yesterday 6/18/16 noted a retirement community is to pay $132K to settle a suit for failure to accommodate a pregnant nurse. This case comes to us out of Philadelphia, apparently not always the City of Brotherly Love. This suit by the EEOC tells us that Amy worked as an RN/charge nurse and campus supervisor for 8 years before she requested a lifting accommodation for a medical disability. Apparently the employer refused to accommodate despite having accommodated non-pregnant employees with similar restrictions. Instead of accommodating Amy, the employer put her on indefinite leave due to her pregnancy and disability and told her to re-apply after birth and no restrictions existed. She did, but (as if there wasn’t already enough fodder!) the employer refused to rehire her and made an illegal medical inquiry. So the EEOC sued. Under the settlement, she gets $132,500 and the employer has other things it must (or must not) do.

TAKEAWAY: Pregnancy itself is not a disability, but can result from or in other conditions that are a disability to be accommodated – don’t brush it aside or you will find yourself rowing upstream without a paddle.

Monday
Jun062016

ICYMI: Our Social Media Posts This Week – June 5-11, 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 6/5/16 we talked about the Philadelphia School District denying ADA violation, must schedule settlement conference. A former teacher alleged the District discriminated against him due to a medical condition, then retaliated when he complained. The post talks about allegations that his condition became worse due to requirements that he move metal file cabinets and heavy bookshelves when the temperature exceeded 90 degrees and being assigned to a third-floor classroom (with no elevator). The parties dispute whether he had a qualifying disability but are now under order by the federal judge to schedule a settlement conference. Stay tuned.

TAKEAWAY: While the ADAAA broadened the definition of disability, it is not a sure thing that an employee’s disability qualifies for protection; both parties should satisfy themselves that this first step is taken before going any further in a case.

The post on Monday 6/6/16 was about workplace discrimination: don’t call a transgender employee “It”. Gender identity is the newest category of discrimination moving through the legal system, from administrative to judicial stages. It’s playing out in NY and may be coming to you soon. Victor sued Whole Foods in federal court alleging harassment and discrimination because he is transgender. He was born female but transitioned to male prior to his employment. The claims include that his co-workers referred to him as “she” or even “it”. More claims are in the post. Obviously at this stage there is neither judgment nor settlement on the suit.

TAKEAWAY: The EEOC has said that sex discrimination includes discrimination on the basis of gender identity – don’t be the defendant in a lawsuit to see if courts agree.

In the post on Tuesday 6/7/16 we talked about an $800,000 discrimination lawsuit: former electrician sues city. Yes, ouch! Heather sued, saying she was discriminated against because she is a lesbian and then retaliated against (fired) for filing complaints about the discrimination. More details are in the post, including that after her first complaint she was forced to undergo a psychological exam prior to continuing to work and her boss had called her clothing a “Canadian Tuxedo”.

TAKEAWAY: Stray comments, even if intended to be humorous, and actions might miss their target and subject an employer to liability – stop them all before they start.

The post on Wednesday 6/8/16 was about probationary periods at work: complying with employment laws. The post hits 6 key points, including that probationary periods have no special statutory status and that employers must investigate grievances from probationary employees. The others are in the post.

TAKEAWAY: Remember that laws can apply beginning at the application stage and thus include probationary employees; likewise, an employer’s policies might cover probationary employees too. Make sure to follow and evenly apply all policies.

In the post on Thursday 6/9/16 we noted that (ICYMI), Governor Wolf expanded non-discrimination protection for PA state workers, contractors. Recently the Governor signed executive orders broadening protection for employees and contractors from discrimination based on sexual orientation and gender expression or identity. There is currently no similar statute affording all employees in PA the same protections, but this is a first step.

TAKEAWAY: The train has left the station; protection from discrimination and harassment based on gender identity is reality for PA state employees and contractors and, one day, may be more than a wish for all PA employees.

The post on Friday 6/10/16 told us that Neenah Paper paid $33,000 to settle a disability discrimination suit. Neenah is a manufacturer of premium paper; it recently settled a disability discrimination suit. The suit alleged that it refused to allow Kristoffer to return to his job on the production floor for 7 months because of his disability – despite doctor’s clearance – and that it required him to take medication at work under observation. More details are in the post. The suit settled, but this author’s guess is that other employees were not treated the same way as was Kristoffer.

TAKEAWAY: Employers can certainly make sure employees are not a danger to themselves or others before letting them (return to) work, but that must be accomplished in a legal, even-handed, evenly-applied manner.

Finally, the post yesterday 6/11/16 noted that unreported working lunches may still be work time. Yep. Be careful. While the case here came out of a federal court in Illinois, the principles might carry over to other states. There, Michael sued the IL Dept. of Corrections for FMLA violation for firing him due to absences he says should have been protected leave. The DOC moved for summary judgment on the grounds that Michael had not worked enough hours for FMLA eligibility, but the court denied the motion. See the post. While the DOC argued based on time records, Michael said he’d never taken the ½ hour lunch break and ate on duty. DOC then argued it was unaware and never sanctioned that, so the hours shouldn’t count (and had he applied for OT, it would have been approved). In denying summary judgment due to a material dispute, the court in part said that the burden was on DOC not only to know about the work, but to take steps to prevent unauthorized work. The case will move ahead.

TAKEAWAY: So what can an employer do to minimize its risk for this type of situation? Have a clear policy and enforce it, minimize the chances for off-the-clock work, and don’t automatically deduct time for unpaid meals or other breaks (make the employee affirmatively record the break time).

Tuesday
May312016

ICYMI: Our Social Media Posts This Week – May 29 - June 4, 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 5/29/16 we noted that a GYN practice must face a pregnancy bias trial. Durcy was a medical records clerk for an OB/GYN practice. She alleged that she was treated differently because of pregnancy or childbirth – and she did it via direct evidence (as contrasted with the usual indirect-proof McDonnell-Douglas method). Durcy showed that she was fired 3 weeks after giving birth, but the employer’s policy was to allow for 6 weeks of post-delivery leave. The employer attempted to defend by saying her position was eliminated as part of a downsizing. The judge didn’t buy it: he said a prior downsizing was due to doctors leaving but there was no such action this time. Durcy also had other direct evidence which is in the post. The employer probably did itself in here and now must face trial (or settle).

TAKEAWAY: Employers must keep in mind that despite the prevalence of indirect proof in discrimination claims, it is still possible for a plaintiff to prove his/her claims directly – as happened here - if the employer gives the evidence.

The posts on Monday 5/30/16, here and here, were Memorial Day tributes to those who fought to achieve and preserve our freedoms.

TAKEAWAY: There are fights even now over what laws do and don’t allow us to do – but those battlefields are far different than the ones on which veterans fought (and continue to fight) for our freedoms. Please thank them all.

In the post on Tuesday 5/31/16 we read that Washington Crossing Inn did not fire the former banquet manager for age discrimination. On appeal, a federal court ruled that the former employee did not carry her burden of proving the employer violated the ADEA or PHRA. By way of background, Lisa was hired in May 2009 by the current employer who had purchased the Inn; she was to be in her same position, banquet manager. Apparently there were differences with new management, including Lisa not liking them telling her not to bring her dog to work. (More details are in the post. Later that year she was discharged, her position eliminated, and a “banquet coordinator” positon (with lower pay and no benefits) created. The new position was offered to one person who turned down the offer. A 22 year-old former subordinate of Lisa’s temporarily performed the responsibilities. In Spring 2010, the employer hired a banquet coordinator, paying benefits but a lesser salary than it had paid Lisa. Lisa filed a charge of age discrimination. The EEOC issued a right to sue notice, after which Lisa filed suit. The District Court granted summary judgment to the employer (based on its argument that the discharge was due to Lisa constantly locking horns with management) and Lisa appealed. The appeals court agreed that Lisa presented no evidence of age discrimination – just because the employee temporarily performing the duties was much younger than Lisa, the burden was not satisfied. See the post for more about the ruling.

TAKEAWAY: A large age discrepancy can evidence of age discrimination – but it also might not. Employers need to assure that there is a legitimate, nondiscriminatory reason for any adverse action before taking that step.

The post on Wednesday 6/1/16 was about a man claiming wrongful termination after surgery. Roger began his employment with Cam Superline in May 2002 and worked in the service parts department for over 12 years. He told the owner he needed 3 weeks off for hernia surgery. He further alleges that the employer did not classify his time off as FMLA leave such that when he called his supervisor to return after the surgery, she told him not to return. Roger filed suit in the Middle District of PA earlier this year. Stay tuned as the suit progresses.

TAKEAWAY: Employers can take adverse action against employees as long as there are no negative legal implications – such as failing to fulfill obligations under an applicable law.

The post on Thursday 6/2/16 talked about a car salesman suing his former employer over age discrimination allegations. Richard worked as a car salesman for about 10 years; he was age 69 at the time of discharge. His suit says that prior to discharge, he and a similarly-situated salesman both signed agreements to sell an average of 10 cars per month. However, after a work injury, Richard was off for 2-1/2 months. He says the discharge was based on his age. This case too is pending in court.

TAKEAWAY: It bears saying over and over – any adverse action (to be) taken by an employer should be based on a legitimate, non-discriminatory reason that has factual support.

The post on Friday 6/3/16 said that yes, managers and supervisors can be sued individually for FMLA violations. A federal court recently ruled that in some situations, employees can be individually liable for FMLA violation claims. In the subject suit, the employee sues for FMLA interference and retaliation, and associational discrimination under the ADA. The trial court dismissed the claims but the appellate court reversed. The factors it looked at are in the post, including whether the manager/supervisor had the power to hire and fire employees.

TAKEAWAY: Courts are broadening the definition of “employer” in finding liability for violation of various laws – everyone should know who might come within an expansive definition and act accordingly.

Finally, the post yesterday 6/4/16 noted that service-animal fraud throws the ADA to the dogs. A nation of animal lovers, the US is apparently subject to a craze of claims of needing various animals as an accommodation of a medical or health condition. It’s often easy to forget that the ADA permits service animals in private places, even those which prohibit pets. This applies to businesses too. What is happening is that non-disabled persons, aware of the low hurdles to bring in animals, are taking advantage of the situation. See the post for details and examples.

TAKEAWAY: The ADA permits service animals, but not all situations are covered by the questions allowed to be asked – pet-owners who do not have service animals are stepping through the wide crack and states cannot act to fill the crack. Business owners need to be aware of this part of the ADA so they don’t run afoul.

Monday
May302016

ICYMI: Our Social Media Posts This Week – May 22-28, 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 5/22/16 we talked about women accusing US Soccer Federation of gender discrimination – NOT the example to set for our youth! The gist of the federal EEOC charge is that the women allege the Federation paid them ¼ of what it paid to men. And that is despite the fact that the women’s national soccer team revenues outpaced that of the men’s team for the 2016 fiscal year.  The Federation’s statement included that it is “open to negotiation”. It is now up to the EEOC to investigate the charge. More details are in the post.

TAKEAWAY: Athletes at all levels may play the sport for fun or pay, but when for pay the laws of gender equality apply.  

The post on Monday 5/23/16 warned: Watch out employees: comply with policies or lose FMLA rights. The end of story is a federal court ruling that an employer legally discharged an employee who did not follow the leave policy while on intermittent FMLA leave. The story itself is that the employee of Kellogg USA had used FMLA leave on about 90 – count ‘em, 90 – occasions before requesting and getting approved for continuing, intermittent FMLA leave. Company policy required certain notifications (see the post). A written warning was issued the first time the employee did not follow the policy. After that, the employee took 3 additional intermittent leaves without following the policy. Each resulted in the assessment of points and the point total led to termination. Details are in the post.

TAKEAWAY: Courts can and do recognize that employers are entitled to enforce valid, legal policies – and that an employee is subject to discharge if s/he does not comply with the policy.

In the post on Tuesday 5/24/16 we talked about a card dealer having suing a casino for discrimination. Close to home, the former dealer at Valley Forge Casino Resort alleged discrimination and discharge based on his medical disability after having been employed there 3 years. He said he had rheumatoid arthritis and that after taking intermittent FMLA leave, management treated him differently (see the post for details), suspended him and eventually discharged him in June 2015.

TAKEAWAY: Employers can deal with their employees how they see fit as long as there are no legal implications – discrimination and retaliation being included.

The post on Wednesday 5/25/16 taught that Mavis Tire will pay $2.1M to settle EEOC class sex discrimination lawsuit. That’s a lot of rubber meeting the road! The suit, brought by the EEOC, alleged that Mavis consistently refused to hire women for field positions, including managers, assistant managers, mechanics and tire technicians (and that Mavis also did not make, keep and preserve employment records). Conciliation failed. The parties then entered into a settlement which includes Mavis paying $2.1M to 46 women (along with other actions and monitoring).

TAKEAWAY:  An employer who violated the law once might be forgiven (if it makes the applicant or employee whole); but an employer who consistently and systemically discriminates on the basis of gender will end up in costly, public legal trouble.

The post on Thursday 5/26/16 was about discrimination arising from disability: 5 examples. Keep in mind that while the post dealt with foreign law, the same concepts apply in the US under the ADA. Further, each example can depend on the facts of the individual case and may not apply to every situation. So what examples did the post include: dismissing an employee for disability-related absence. Failure to consider suitable alternative employment. And 3 more in the post.

TAKEAWAY: If an employee has a disability that qualifies him or her for ADA protection, then the burden shifts to the employer to begin the interactive accommodation process. Failure to so act leaves the employer open to legal liability.

The post on Friday 5/27/16 noted that HR audits can be an effective management tool (and that Austin Law Firm can help you with such an audit). HR audits vary according to the needs of the client entity. Some oft-included parts of an audit are itemized in the post, including policy and document updates and employee classification analysis.

TAKEAWAY: An HR audit now can save an employer much legal headache later by ensuring legal compliance.

Finally, the post yesterday 5/28/16 reminded us that napping is not notice of the need for FMLA leave. Sally, employed as a nurse, occasionally took off from work for migraines. HR asked if any accommodation was necessary. Sally said no but requested FMLA intermittent leave. The employer told Sally to let a manager or co-worker know if she was taking intermittent leave. At one point during a shift, to ease her migraine-related sensitivity to bright lights, she went to a dimmer room across the hall to monitor a patient. Later that shift, after taking migraine meds, Sally became flushed and dizzy. She went to the same dimmed room, sat down, closed her eyes, and (unintentionally) fell asleep. Sally was woken up by a co-worker. Sally called in sick the next few days and did not check emails or use her home phone. The employer was trying to contact her during that period to arrange a meeting. Sally was discharged for sleeping on duty. Sally brought sued, alleging that the employer knew of her condition, that the condition acted up that night and caused her to fall asleep, thus the discharge was unlawful. The employer countered that the discharge was for abandoning the patient and sleeping on the job (both without notifying anyone). Read the court’s ruling in the post.

TAKEAWAY: Once again, a policy, if evenly enforced, can win the day for an employer. Make sure to have appropriate policies and evenly enforce them.

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