ICYMI: Our Social Media Posts This Week – Sept. 10-16, 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 9/10/17 we learned that summary judgment was denied to employer who circulated letter re disability discrimination charge. No surprise, right? An employee filed a charge with the EEOC, alleging disability discrimination. As part of its investigation, the EEOC requested information on other employees. Before it provided the information to the EEOC, the employer sent a letter to 146 employees identifying the employee who had filed the charge and discussing the EEOC charge. That led to an EEOC charge of retaliation and interference. Details of the background and what led up to the first charge are in the post. Both sides filed motions for summary judgment (to resolve all or part of the case) and the judge denied them both for the reasons stated in the post.

TAKEAWAY: Be really, really careful as to when and to whom you disclose information about pending administrative charges – the wrong decision might lead to even more legal trouble.

The post on Monday 9/11/17 was an alert: Court to reconsider ruling allowing women to be paid less than men in some circumstances. In April 2017, a panel of the 9th Circuit Court of Appeals ruled that, in some circumstances, women can be paid less than men for the same job. Our 5/14/17 post was about the panel's ruling. The EEOC appealed the panel's ruling and a hearing is set in December.

TAKEAWAY: Might it be legal to pay a woman less for doing the same job as a man? Do you really want to take a chance you will be sued if you try it?

In the post on Tuesday 9/12/17 we talked about workplace language rules: the next new frontier? Top 5 things to know. The EEOC filed suit against a company alleging it discriminated against non-Hispanic applicants by requiring that they be able to speak Spanish. Yes, you read that right. The EEOC set forth 5 bases supporting its position. First, any rule must be justified as a business necessity. Second, rules should be limited to ensuring employees can operate (do their jobs) safely and efficiently. The other 3 bases are in the post. And the scariest thing of all? The last paragraph in the post.

TAKEAWAY: Employers are allowed to have rules for the workplace so that everyone knows what is expected of whom – but the rules still have to be legal.

The post on Wednesday 9/13/17 noted the EEOC sued Estee Lauder for sex discrimination (against men). Again, you read that right. The policy at issue provided male employees who are new fathers less parental leave benefits than female new mother employees. The post details the leave benefits for each gender. After his child was born, a male employee requested benefits (see the post) that would have been granted to a female under the policy. His request was denied so he filed a charge with the EEOC. After it investigated and conciliation failed, the EEOC filed suit.

TAKEAWAY: If you have a rule or benefit in place, make sure it is evenly applied to all employees (or that there is a valid, legal basis for any differences).

In the post on Thursday 9/14/17, we said "and then when you're done with that, please go pick up the dog poop." Sadly, yes this is employment-related. A Maryland company allegedly violated federal law when it treated Hispanic workers differently based on race and national origin. What did it do? It put them in lower-paying jobs and more things in the post. The owners also required the Hispanic workers to do things for them personally, like picking up dog excrement at their houses and other things in the post. The owners also required the Hispanic workers to do things for them personally, like picking up dog excrement at their houses and other things in the post. And if that weren't enough, the company allegedly fired workers who complained. Retaliation at its finest.  

TAKEAWAY: First, don't treat employees differently unless it is based on job performance. Also, don't make employees do non-work-related tasks.

The post on Friday 9/15/17 was about paying employees when weather closes the doors – hurricane, snow, whatever. A timely post due to the recent spate of hurricanes, the rest of hurricane season, and the coming winter weather. So the question is whether you have to pay employees when natural disaster strikes. That can be divided into the following sub-questions: when your business closes, are you required to pay hourly, non-exempt employees for that time? What about salaried, exempt employees? What if the business is open but a salaried, exempt employee cannot get there? What if, due to weather, an hourly non-exempt employee cannot leave and so keeps working? And finally, what if an employee shows up but is sent home early due to inclement weather? All good questions - and answered in the post.

TAKEAWAY: Wage and hour issues go beyond whether an employee is exempt or non-exempt, - but that plays into the answer to some of the questions discussed, so know the answers to avoid legal trouble.

Finally, in the post yesterday 9/16/17, we talked about when accommodating one employee's disability triggers another employee's disability. What's the poor employer now in the middle to do? (Hint: "nothing" is not the correct answer.) Now the employer has 2 employees to try to accommodate. Notice the words "to try". The key to accommodation is that the employer must try to find a reasonable accommodation – and it need not be the one requested by the employee. Examples of how other parts of the interactive accommodation process might work are detailed in the post.

TAKEAWAY: Don't stick your head in the sand; that will certainly be viewed as a failure to accommodate. Instead, try to work things out alongside the employee requesting accommodation (and your attorney if legal questions arise as to your obligations).


ICYMI: Our Social Media Posts This Week – Sept. 3-9, 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 9/3/17 we saw that Ford Motor Company pays $10M to settle sexual harassment charges at its Chicago plants. Big bucks! The EEOC sued, alleging race discrimination (against African-Americans) and sexual harassment (of women) by co-workers, along with retaliation after they filed complaints. Terms of the settlement are in the post.

TAKEAWAY: Don’t wait for the lawsuit to knock on your door – do the right – and legal – thing from the start. Don’t discriminate against any employee for any reason; look solely at qualifications and job performance.

The post on Monday 9/4/17 was about Labor Day – a reminder to say thank you and celebrate at home or in the workplace.  

TAKEAWAY: Sometimes you should stay on the surface – just remember the reasons we have the freedoms we do in our workplaces and the business world, and say thank you.

In the post on Tuesday 9/5/17 we saw that B&H Photo settles sex and race discrimination suit for $3.2M. That’s a lot of snapshots! Over 1300 employees at the warehouse filed suit, alleging B&H only hired Hispanic men for entry-level jobs and did not pay them properly. See the post for more background details.

TAKEAWAY: You may think you can game the system, but you can’t – and it will be far more costly to you in the long run than just doing it legally from the start.

The post on Wednesday 9/6/17 asked: How should we respond to Charlottesville? This post was an editorial, but raises some interesting, thought-provoking issues and questions. It challenges us all to fight systemic racism with more than words alone. Five steps are suggested. The first is to confront unconscious bias. The post has a link to find out your unconscious biases – what you need to know to start down the road. Another suggested step is to desegregate your life. Make sure to include people of different races and socio-economic strata, shop in local (including minority) businesses, and join diverse groups. The other three suggested steps are in the post.

TAKEAWAY: Yes, our society still sees discrimination in various forms every day – but there are steps you can take in your life and in your workplace to make that discrimination disappear.

In the post on Thursday 9/7/17 we noted that white lies could not prevent a bankruptcy discharge. Then we asked where the line is. So what happened? The person who filed for bankruptcy protection (the debtor) did not list a prior lawsuit or that she had owned a business. The Judge said they were “white lies” that didn’t hurt anyone, so he let her get her discharge (what happens at the end of an individual bankruptcy case and removed the debtor’s legal liability to repay makes most of the listed debts). The post explains the judge’s rationale. I wonder if the outcome would have been the same if the amounts at issue had been larger.

TAKEAWAY: When filing for bankruptcy, the debtor must list all assets and all debts within the referenced timeframes – if not, then creditors (persons or entities to whom the debtor owes money) can take action to ensure their debt survives the bankruptcy.

The post on Friday 9/8/17 showed us everywhere in the US you can still get fired for being gay or trans. Yep, it’s a majority of states. And the current Trump Justice Department filed a brief asserting LGBT Americans have no protection from discrimination on the basis of sex (contrary to the EEOC’s position). But even at the state level, there is little protection for LGBT employees. The post contains a map showing which states have what employment protections. Almost all states adjoining Pennsylvania to the north, east and south prohibit discrimination based on sexual orientation and gender identity. Check out the map to see where PA and other states stand on the issue.

TAKEAWAY: In PA, employees can still be legally fired for being LGBT. But that doesn’t make it right or help build a dedicated workforce.

Finally, in the post yesterday 9/9/17 we saw the EEOC siding with a black chair umpire alleging the USTA discriminated against him. The US Tennis Association is the premier tennis organization in this country – one would think it would be above discrimination, but that’s not what the EEOC thinks. Tony Nimmons is a highly-qualified African-American chair umpire – see the post for more about him. He filed 2 charges with the EEOC in 2015. Some text from the later filing is in the post and identifies other women and minorities who supposedly filed charges of discrimination. The irony is that Nimmons alleges that he was initially hired to bring diversity to the USTA and help it work toward inclusion. Details about some of the things that happened – and that are in one of his filings – are in the post along with the USTA’s responses. The EEOC found probable cause, so conciliation is the next step.  

TAKEAWAY: Even if an employer has the best of intentions, discrimination within its ranks may still exist and may be illegal – be careful this isn’t your business.


ICYMI: Our Social Media Posts This Week – Aug. 27 - Sept 2, 2017

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

In the post on Sunday 8/27/17 we saw a former hospital employee files discrimination charges (alleging that the employer did not act properly in response to her allegation of a racial spear and did not give her the same opportunity to advance as others. More details are in the post. The matter is pending with the EEOC and the employer (of course) disputes the allegations.

TAKEAWAY: Make sure that action you take cannot be construed as adverse and that if it can, there is a valid legal basis for the action.

The post on Monday 8/28/17 told us that the NRC's rules trump the ADA in employee's suit. The Third Circuit, the federal appeals court whose decisions are binding on us here in PA, found no ADA violation when a security officer at a nuclear power plant was fired – the basis for the discharge is in the post.  

TAKEAWAY: It's worth remembering that when laws conflict, one has to give, and it's important to know which one that will be.

In the post on Tuesday 8/29/17 we asked: if you file for bankruptcy, will you lose everything? (The answer is in the post). The support for the answer is both federal and state law.  

TAKEAWAY: To discuss the effect of a personal bankruptcy filing, or if you have had a customer who owes you money file for bankruptcy, contact us for assistance.

The post on Wednesday 8/30/17 was about labor law lessons from our favorite films – Dirty Dancing (apropos on its 30th anniversary). You remember the premise, right? The relationship between Baby Housman, a guest, and Johnny Castle, a staff dance instructor, in the summer of 1963 at a resort in the Catskills. More background details are in the post. So with a film that is now 30 years old, what can we talk about? Whether the resort management violated the NLRA by keeping Johnny from engaging in protected concerted activity by threatening to withdraw a benefit (the summer bonus) in exchange for his silence? (See his possible argument and management's possible response in the post). Whether the resort could show that it would have terminated Johnny regardless of him engaging in protected concerted activity (for the basis of this argument, see the post). And whether the answers will change with the new Trump-era NLRB …  

TAKEAWAY: Even the most unassuming of circumstances can create possible NLRA violations – be careful in your workplace.

In the post on Thursday 8/31/17 we saw that a bookkeeper "retired" by her employer after reaching 66 wins age discrimination case. And that the result would probably be the same in the US. The family business had to pay the employee even though it was an at-will situation. She alleged that she was expected to retire by age 65 and then it was changed to 66, but that she did not want to retire. There was more back-and-forth (see the post); the company argued that if terminated on the basis of its contractual understanding she would retire at age 65, not age itself. See more of the company's argument in the post. The ruling in favor of the woman found no justification for the discrimination.

TAKEAWAY: Don't rely on what you think is a verbal contract; get it in writing. And don’t take illegal adverse action against any employee, but especially not someone in a protected class.

The post on Friday 9/1/17 noted I got the power – EEOC investigatory power trumps dismissal of discrimination case in federal court. You read that right. The question was whether the EEOC could keep investigating a claim after issuance of a right to sue letter. Or after suit was filed and summary judgment awarded in favor of the employer? The Seventh Circuit (a federal appeals court) said yes. The background was the filing of a charge of race discrimination in 2011. The company refused to provide info to the EEOC. A settlement was eventually reached but the EEOC issued a right to sue letter and the employees filed suit. The EEOC again subpoenaed information during pendency of the suit and the company again refused. EEOC issued a subpoena. Summary judgment was granted for the employer and the suit dismissed with prejudice. But that didn't end things. The EEOC brought an enforcement action for refusal to comply with the subpoena.  The arguments are in the post. In the end, noting the circuit split, the court said that neither dismissal nor issuance of the right to sue letter barred further investigation of a properly-filed charge. More support for the court's ruling is in the post.

TAKEAWAY: Don't think just because you win a case the EEOC is off your back – a court may still require you to respond to a subpoena it issued.

Finally, in the post yesterday 9/2/17 we learned that a white judge wins $90000 discrimination settlement. Because there was no reason. The judge accused the Chief Judge of discharging her to be able to appoint more African-American judges. The Chief had no reason for not reappointing. More strange background facts – including the gender and race of the Chief - are in the post. And instead of retention, 2 African-Americans with less experience were appointed to judicial positions. The settlement was felt to be fair based on the facts.

TAKEAWAY: Cases can settle for many reasons that have nothing to do with the actual facts – although one reason can be the party's assessment of the chance of success of its argument. (Of course, not taking any action that could be perceived as illegal would ensure no suit is filed to begin with …)


ICYMI: Our Social Media Posts This Week – Aug. 20 - 26, 2017

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

In the post on Sunday 8/20/17 we saw a former supervisor sued Chobani, claiming age discrimination. Hah, it's not so smooth now. Jerry was a former sleeving and maintenance supervisor. His suit claims he was not given training that younger employees were given, did not let him take off weekends even though younger employees were allowed to, and took other actions (in the post) that were not the same with younger employees. The suit also says Chobani did not follow its own policy. Stay tuned for more.

TAKEAWAY: You can certainly discipline and discharge employees if warranted – just make sure the adverse action is legal and that you evenly enforce your policies.

The post on Monday 8/21/17 noted the "Mark of the Beast" case settled for $600,000: are you paying attention (or just paying)? Remember the background? The employer wanted employees to use infrared hand scanners for time clocks; one employee objected on the basis of his honestly-held religious beliefs – that the scanner was the Mark of the Beast (the post explains how). He asked for an accommodation and the employer refused. He retired and sued (after learning of comparators being treated differently).

TAKEAWAY: Remember your obligation to at least try to accommodate religious beliefs honestly held by employees. It can be more costly not to do so (as this employer discovered).

In the post on Tuesday 8/22/17 we were reminded there is no need to over-indulge a chronic complainer. But safest is to check with your employment lawyer. Yes, every workplace has that one person who complains about everything. You should see if there is any substance to the complaints, but you don't have to act if there is not. The post gives an example of how this played out.

TAKEAWAY: Investigate all complaints and act on those that have merit; otherwise, continue to treat the complaining employee just like everyone else.  

The post on Wednesday 8/23/17 told us DOL will begin issuing wage and hour opinion letters again. Employers themselves can ask for guidance from the Department – or have their employment law attorney do it for them. The post explains how an opinion letter can be useful both to the company asking the question and to others.

TAKEAWAY: Don't be afraid to ask for guidance – that's often better than stepping on a mine and having to pay for the damage later.

In the post on Thursday 8/24/17 we were told how to fire a workplace friend. It's never easy but sometimes necessary. The post lists 5 steps to take. First, make sure you've done everything you should, including following the disciplinary policy to the letter. The other steps are in the post.

TAKEAWAY: Working with friends can sometimes be difficult, and even more so when you have to end the employment relationship; keep it professional and follow the policy.

The post on Friday 8/25/17 said being untruthful about the reason for termination can hurt you. In Pennsylvania, where most employees are at-will, no reason is required for the employer to end the relationship. However, often one is given. When that happens, make sure it is true (and legal!). In the case in the post, the employee sued for age discrimination after being fired. The facts would ordinarily not have been in his favor; however, since the employer gave differing reasons for the termination, the judge let the case go to a jury. Ugh.

TAKEAWAY: Truth is always the best way to proceed – it keeps you from having to keep track of other things and, hopefully, keeps you doing what is legal.

Finally, in the post yesterday 8/26/17 we noted the court vacated summary judgment in an ADEA failure to hire case, finding a triable issue of pretext. So what does that long sentence mean? When an employer has a ranking system and does not follow it, and older employees (as defined by the ADEA) are harmed, the employer will have to answer for its actions in court (and not be dismissed from the suit). This ruling is binding on courts in PA, so make sure you read the post and act accordingly.

TAKEAWAY: If you have a policy or rule or some other guideline you put out there for all to follow, then you better follow it yourself or you might be liable for any violation or deviation in a court of law.


ICYMI: Our Social Media Posts This Week – Aug. 13 - 19, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – Aug. 6 - 12, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – July 30 - Aug. 5, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – July 23 - 29, 2017

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

In the post on Sunday 7/23/17 we learned that a jury mostly clears Sears in a discrimination suit. A loss-prevention specialist was stabbed in the line of duty and was fired weeks after returning to work. The question was whether the discharge was lawful (on the bases in the post).

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – July 16 - 22, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – July 9 - 15, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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