ICYMI: Our Social Media Posts This Week – June 4 - 10, 2017

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

In the post on Sunday 6/4/17 we read See no evil, hear no evil: court finds employer not liable where no knowledge of non-compete. This is a case is not binding on us here in PA, but carries weight so pay attention. Two companies competed for a contract; Acclaim initially got it, but then Infosys got it. One Acclaim employee and 3 of its contractors went to Infosys to work on the contract. All 4 had non-compete agreements in place. Acclaim sued Infosys for tortious interference. Infosys was unaware of the non-compete agreements until it was sued. Further, the 4 individuals had told Infosys there was no non-compete. The trial court said that with no knowledge, the suit had to be dismissed as to Infosys. Acclaim appealed. The appellate court agreed – its reasoning is in the post.

TAKEAWAY: Always ask potential employees if there is any non-compete agreement or other restriction on their employment and make sure to protect information with existing (at some point to be former-) employees with a proper. Legal written agreement.

The post on Monday 6/5/17 noted a dentist's remarks to a pregnant employee propel case forward. Sims was a registered dental assistant. She alleged in her suit that she was demoted and thereafter discharged due to her pregnancy. She also included support – including that the owner made repeated offensive statements to her and other staff about her pregnancy as listed in the post. The court said if a jury believed the comments, they could be direct evidence that pregnancy was a factor in the discharge, so it denied the employer's motion to dismiss. The court also said these comments were not mere 'stray remarks" based on the factors in the post.

TAKEAWAY: Don't make stupid remarks to employees – and certainly not ones that are illegal and can come back to haunt you in the midst of what could be a costly lawsuit.

In the post on Tuesday 6/6/17 contained a 10-step plan to avoid workplace harassment claims. Don't want to end up like Fox News is now? Try these steps. (1) Prepare and disseminate a workplace harassment policy for all types of harassment. (2) Tell employees about the policy at time of hire, post it, and have employees acknowledge reading and understanding of the policy. (3) Include a feasible complaint procedure in the policy. The other seven tips are in the post.

TAKEAWAY: As with all policies, make sure the one on harassment is complete, legal (have an attorney write it or at least review it) and that you enforce it evenly.

The post on Wednesday 6/7/17 talked about 4 key takeaways: the problems with NDAs. You know what an NDA is, right? A non-disclosure agreement. It is often used in an attempt to keep employees (and former employees) from disclosing private or other company information confidential during the term of employment and for some period thereafter. So what problems might you encounter with an NDA? First, if you as the company don't take steps to try to keep the information confidential, a court will not enforce an NDA against an employee who has breached it. Next, if the state has a trade secrets act (which PA does), try to make sure the NDA language agrees with that of the trade secret act. The other 2 takeaways are in the post.

TAKEAWAY: NDAs can be good and give your company protection – but they are still legal documents and you should work with an attorney to make sure they are done right to give you the protection you want.

In the post on Thursday 6/8/17 there was a warning to employers: Beware $750,000 damages for failure to advise disabled employee of life insurance conversion process. So what happened? Dr. Erwood was a neurosurgeon and participated in the basic and supplemental life insurance programs of his health system employer. He became eligible for long-term disability. He and his wife asked the employer about his benefits and whether coverage would remain the same at the time he went on long-term disability. The employer did not mention conversion and the doctor and his wife thought all would remain the same. When the employer eventually sent them an FMLA packet, it lacked information about the conversion – even where to get the form and when it was due. Dr. Erwood died and his spouse submitted the death benefit claim form. The insurer denied the claim on the basis that he was not employed at the time of death and had not converted his policy. The court looked at the case as one against an ERISA fiduciary (the analysis is in the post) and held the employer liable for the full amount of the insurance benefit, $750,000. Ouch.

TAKEAWAY: Make sure you know what information you have to give to employees and when and how to give it. Don't be careless or you could end up with a huge liability.

The post on Friday 6/9/17 told us the NLRB finds "no loitering" policy unlawful. And yes you care about this – because as we've said over and over again, the NLRB has authority over even non-union employers in cases of certain employee rights. Here the Board was looking at a restaurant's policy attempting to control off-duty access to its property. The employees, on their own time, were passing out handbills promoting the union and their position on wages at the restaurant's entrance. They did not try to stop customers from entering or exiting. An assistant manager told them to go to a public sidewalk. They thought if they did not move, they would be disciplined. They also got a text of the policy (as in the post). The Board's ruling is detailed in the post and is a good outline for employers.

TAKEAWAY: Make sure any no-loitering policies have a legitimate business purpose, defines loitering, and does not try to chill employees' protected activities (or has an exception for that type of action). Have an employment law attorney review your policy.

Finally, in the post yesterday 6/10/17, we learned a judge rules in employment and gender discrimination case – discovery is not limitless. This is good news for employers. The suit at issue was filed alleging discharge and discrimination based on gender. Elgin FCU, the employer, notified the plaintiff that it would subpoena her current employer. She did not object. She later told Elgin not to contact her current employer, but the subpoena had already been served. She asked the court to issue an injunction because the information requested was too broad and irrelevant; Elgin's response is in the post. The court limited the information to be produced.

TAKEAWAY: Discovery has a purpose, but it is not to harass the other side or cause them a great expense in responding to irrelevant requests. Be careful.


ICYMI: Our Social Media Posts This Week – May 28 - June 3, 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 5/28/17 we noted Signet (Kay Jewelers) settled an EEOC discrimination case. Not exactly burnishing its image, huh?!? The suit was brought in 2008 on behalf of female sales employees. The settlement came after a court ruling (see the post). What the settlement does not cover is the other pending gender discrimination suit alleging that females were neither promoted nor paid the same as comparative males.

TAKEAWAY: You may have a valid legal basis for the action you took, or didn't take, but you may still find yourself as party to a suit – costing time and money. Settlement (without admission of liability) is often a good option.  

The posts on Monday 5/29/17, here and here, noted it's Memorial Day – give thanks to all who made it possible. Simple.

TAKEAWAY: Sometimes we step back from the law for a moment and just say thank you where appropriate.

In the post on Tuesday 5/30/17 we advised you to know what to consider before purchasing a condo. We also offered to help you. Location affects unwanted noise, ugly views, privacy problems and more. Know about parking access, where your responsibilities end and those of the Association begin, and other things noted in the post.

TAKEAWAY: Make sure you can live with not only the Unit itself, but what is around it and the Association's Governing Documents. Let us help you know what the legal documents require.

The post on Wednesday 5/31/17 noted Avvo sued for sexual harassment: ex-employee claims she was fired after rebuffing unwanted advances. Selamawit is an African-American woman hired as an account executive in 2014. A mere 7 months later, she was promoted to senior account exec. She alleges a fellow senior account exec sexually harassed her at work events (more details are in the post). She says Avvo took no action after she complained (other than to retaliate and fire her). Avvo denies the allegations (as in the post). After receiving a right to sue notice from the EEOC earlier this year, Selamawit filed suit.

TAKEAWAY: Take all complaints seriously, investigate, and document all findings. Make sure there is a legal basis to support any adverse action taken against employees.

In the post on Thursday 6/1/17 we asked: How healthy is your condo or homeowner association Board? We suggested you conduct a thorough check-up. You are bound by your Association's Governing Documents (Declaration, Bylaws, and Rules/Regulations), you should more about them and the Association itself. Things to look into include how the common property is kept up, what the budget includes, the percentage of delinquent owners, and more things listed in the post.

TAKEAWAY: Living in a condominium or planned community can be great – as long as everyone keeps up their end of the bargain. Have an attorney explain your rights and responsibilities of those of the Association – preferably before you buy.

The post on Friday 6/2/17 told us the EEOC sued Applebee's Bar and Grill for sexual harassment. The complaint alleges that an assistant manager subjected 2 sisters to a sexually hostile work environment. First, Tracy began working as a server in 2013. During most of 2014, a male assistant manager sexually harassed her, including comments about her breast size, comparing salad dressing to semen, and more in the post. In mid-2014, Tracy's sister, Cindy, started to work there as a server. Almost immediately the same assistant manager began sexually harassing Cindy, including comments about female genitalia and more noted in the post. And as if that wasn't enough, he allegedly touched them both inappropriately too. The post tells you at what point management, who was aware of the harassment, stopped it.

TAKEAWAY: Don't stick your head in the sand – if you know about harassment or discrimination, take immediate steps to stop it – and take appropriate disciplinary action against the perpetrator(s).

Finally, in the post yesterday 6/3/17, we learned that a court ruled a diagnosed mental impairment was not proven to be an actual disability. The ADAAA doesn't always mean you skip to accommodation. While the ADAAA broadened the scope of covered individuals, it is not limitless. In this case, the court stopped when the plaintiff could not prove he had an actual disability (with the steps identified in the post. The employer did not dispute 2 of the 3 prongs, but did dispute that the condition substantially limited major life activities. How the court analyzed the case is in the post.

TAKEAWAY: Employers must be careful to fulfill their responsibilities under the ADAAA, but instead of just assuming the employee is a qualified individual eligible for protection under the Act, can make him or her prove that eligibility.


ICYMI: Our Social Media Posts This Week – May 21 - 27, 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 5/21/17 we noted the Trump religious order could affect workplace bias exemptions. One of the many Executive Orders signed by President Trump may have broad reach. On March 4, 2017, the President signed an order directing the Attorney General to provide guidance to all agencies on "interpreting religious liberty protections in Federal law." There are exemptions to the prior orders too (as listed in the post).  The issue of whether a secular, closely-held, for profit corporate entity can apply RFRA (the Religious Freedom Restoration Act) as a shield from anti-discrimination laws is pending in federal court. Trump's order also contained a directive to the IRS; the details are in the post.

TAKEAWAY:  While the Executive Order left in place ones signed by previous presidents barring federal agencies and contractors from discriminating against LGBT employees and applicants (with some exemptions), it opened a possible Pandora's box on other fronts and private employers should remain alert as to any changes.

The post on Monday 5/22/17 told us the dress code in non-union workplaces IS governed by NLRB decisions (and warned you not to ignore them). A recent decision by the National Labor Relations Board held that In-N-Out Burger, a non-union burger chain, had a dress code that violated Section 8 of the National Labor Relations Act. The policy in question banned buttons, pins or stickers on uniforms – for the purpose of creating a "sparkling clean" restaurant image for the public. Some employees wore buttons in support of raising the minimum wage to $15/hour. Supervisors asked them to remove the buttons. They filed an unfair labor charge. The NLRB's analysis is in the post and is instructive.

TAKEAWAY: Unless the policy is necessary to achieve safety or particular business objectives, your dress code should be narrowly tailored and not infringe on employees' protected rights. Have an employment law attorney review it to make sure it's legally valid.

In the post on Tuesday 5/23/17 we learned a job offer was rescinded after the company learned of the applicant's pregnancy and suit was filed and settled. An insurance brokerage firm settled a pregnancy discrimination suit brought by the EEOC for $100,000 and other relief. The complaint alleged that the employer made a written job offer and send an employment agreement. She asked a few questions, including about maternity benefits due to her pregnancy. Almost immediately, the job offer was rescinded (with a comment that hung the employer – see the post).

TAKEAWAY: Treat pregnant employees (or applicants) just like everyone else – pregnancy is not a legal disability.

The post on Wednesday 5/24/17 asked: are Facebook vacation photos taken during FMLA leave grounds for termination? The answer is – it depends. Here, Rodney put in a request for FMLA leave for shoulder surgery. At the end of the leave, he was unable to return full-time and requested a modified position. The employer said no. He then asked for more time off; the employer agreed to an additional month of non-FMLA medical leave. During that time, Rodney went on vacation and not only took pictures, but posted them on Facebook. When Rodney returned to work, he was suspended and then fired. The reasons given for the discharge are in the post. The court (of course he filed suit!) said there was enough that a jury could think the given reasons were mere pretext (for the reasons in the post). So the case goes on.

TAKEAWAY: Not only should an employer have a legally-valid basis for an adverse action, it should make sure to consistently state that basis and not change its story mid-stream.

In the post on Thursday 5/25/17 we noted you can't spell "Cat's Paw" without FMLA. You do remember the cat's paw theory, right? It is that an employer can be liable for the discriminatory intent of an employee with no part in the decision-making but who had some influence on the decision-maker. The question now is to what other types of situations does the cat's paw theory apply. Here, the employer fired Marshall after she returned from her second FMLA leave. In-house counsel had reported to the president (and decision-maker) that Marshall made false allegations to counter allegations made against her. Marshall claimed that her supervisor, who reported her alleged poor performance, was biased against her, and wanted that imputed to the president. See the post for more details. The court said that indeed the cat's paw theory applies to FMLA retaliation claims (under the circumstances noted in the post).

TAKEAWAY: Employers MUST control their employees – things they do or say may be imputed to decisions made by the employer that would otherwise have been legal except for the illegal animus of a "motivated" employee.

The post on Friday 5/26/17 asked: is the tide shifting on whether Title II of the AA covers websites? We've had another post on this topic here on 5/9/17. But now we have some decisions from a federal court in PA that some websites are indeed covered. This departs from prior appellate decisions covering PA which hold that Title II applies only to physical buildings. See the post for more background.

TAKEAWAY: Think of your website as an extension of your physical office – and make sure it is equally as accessible to all.

Finally, in the post yesterday 5/27/17 we noted employers can take steps to detect FMLA leave abuse. Some employees will probably always try to game the FMLA system, so it's up to the employer to take steps to stop the abuse. Some things an employer can do include performing an internal FMLA audit, making sure there are valid reasons for FMLA requests (especially if a request for another type of leave for the same time period is rejected), and watching for patterns of absence. More tips are in the post.

TAKEAWAY: Evenly enforcing FMLA leave, by making employees play by the rules, will benefit the employer in many ways – know what the FMLA requires of both the employee and employer.


ICYMI: Our Social Media Posts This Week – May 14 - 20, 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 5/14/17 we saw that a federal court says an employer can pay women less than men based on salary history. Ugh. The court said that an employer can pay a woman less than a man for the same work if he was paid more in his previous job and the employer used prior salaries as a measure in a reasonable business policy. The court justified it by saying the prior salaries were "a factor other than sex" and so there was no Equal Pay Act violation. The appeals court then sent the case back to the lower court to determine the actual business reasons behind the salaries at issue. Note that the employer had provided 4 reasons (detailed in the post) and now has a chance to show they are the actual business reasons.

TAKEAWAY:  While this case does nothing to advance pay equity, it is also not binding in PA. Therefore, all employers should (continue to) pay women the same as men for the same job to avoid discrimination based on sex.

The post on Monday 5/15/17 told us what steps to take when a former employee threatens to sue you. The suit might be based on age, race, gender, national origin, disability, color, religion, pregnancy, or other things. Normally an administrative charge (often with the EEOC) must be filed before the person can go to court. The deadline to file with the EEOC is in the post. A simple outline of the EEOC process is also in the post. Wage claims are a bit more involved and can go straight to court – they also can award the former employee double damages and attorneys' fees if s/he was not paid correctly. Other claims may also go straight to court (as noted in the post).

TAKEAWAY: If you are threatened with suit, or receive anything from an administrative agency or court, talk to your employment law attorney immediately – don't just stick your head in the sand as it won't go away.

In the post on Tuesday 5/16/17 we learned a Baltimore hospital settles allegations of disability discrimination with an $180,000 payment. What happened? Allegedly the hospital fired Jerome due to a disability. Jerome had a kidney transplant and needed to take meds which, in turn, weakened his immune system. He asked for an accommodation when in certain rooms. Look at the post to see how the employer responded.

TAKEAWAY: Employers have obligations to reasonably accommodate after a request is made – acting as this employer did will get you in legal hot water.

The post on Wednesday 5/17/17 confirmed that yes, employees can use company email on their own time – for protected communications IN ANY WORK ENVIRONMENT. Why is the last part important? Because this decision came from the NLRB but applies to both union and non-union workplaces when employees' protected rights are concerned. The post describes the types of things employees can do on company email on their own time – even if the company has a prohibition in place. NOTE: the NLRB has a new Chairman who, coincidentally, dissented from this decision. Things may be changing in the future for employers.

TAKEAWAY: All employers should make sure their email and other electronic media policies do not infringe on employees' Section 7 rights. Have an employment law attorney review the policies to be sure.

In the post on Thursday 5/18/17 we asked: what should you tell employees on leave about their FMLA use? (and answered: everything!). Here, Amanda contacted her employer to request time off for surgery; she was approved for an FMLA leave. Three weeks after her 12-week FMLA leave ended, but before she returned to work, she was discharged. She sued (I bet you saw that coming!). The bases for her suit are in the post. The court did not take kindly to the employer's proffered defenses (also in the post).

TAKEAWAY: Even if you think you may not have to provide information to an employee, do it anyway – it can save you time and legal trouble in the long run.

The post on Friday 5/19/17 noted dueling federal court deadlocks, no rehearing for Bass Pro Shops in "Big Fish" EEOC case. Quick background: the EEOC sued Bass Pro Shops, alleging violations of Title VII on the basis of gender or race or both. The suit was brought as a representative action and under the pattern or practice theory. Whether the EEOC had any evidence or statistics on the number of aggrieved individuals it claimed existed is detailed in the post. The federal trial court allowed the representative claim, seeking individualized compensatory and punitive damages, in the pattern or practice race discrimination case. The federal appellate court affirmed. Bass Pro Shops then asked for rehearing by the full appellate court; its request was denied. So why do you care? Because, in an unusual move, both the 7 judges in favor of denying the rehearing and the 7 judges in dissent issued opinions. The dissent argued (as detailed in the post) that the law does not allow a pattern or practice claim for individualized damages for a class action. The panel (which voted to deny rehearing) disagreed, saying that the EEOC was authorized by statute to sue on behalf of the individuals and to obtain punitive damages (for the reasons in the post).

TAKEAWAY: Thank goodness this case is not binding here in PA! But keep following it as it may wind its way up to SCOTUS and we will have a binding decision. Until then, be prepared to argue this issue both ways if you become involved in a case to which it relates.

Finally, in the post yesterday 5/20/17, we saw 3 reasons "after-acquired evidence" matters in an employment discrimination case. The post was written from the employee perspective, but employers should pay attention too (as it is still on point for them). This has to do with information discovered after a discharge for which the employer would have terminated the employee even absent the alleged discrimination. The post reminds us that a 1995 Supreme Court case said that type of information could be used to limit damages available to the employee who was discriminated against. So how does this apply? First, any such information can be used to limit monetary damages (for example, to the time frame from the illegal, discriminatory action until it discovered the other information for which termination would have been legal, as opposed to a longer time period) and remove the requirement of reinstatement. The other 2 reasons are in the post and provide good pointers for both employees and employers.

TAKEAWAY: From the employee's perspective, make sure there is nothing your former employer can use against you if you sue for discrimination. From the employer's viewpoint, find out everything you can about the former employee's performance and use it to counter allegations of discrimination.


ICYMI: Our Social Media Posts This Week – May 7-13, 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 5/7/17 we saw a PA court looked favorably on disfavored restrictive covenant – are the rules changing? The Superior Court's ruling was not in favor of employees trying to avoid non-solicitation agreements (which is good news for employers). Here, Doug and Ray had employment agreements with non-solicit provisions after employment ended. After the contract period, the employer terminated the contracts but kept Doug and Ray on an at-will basis. A year later they were discharged. The employer then sued, alleging a violation of the non-solicit provision of the at-will employment. They said the non-solicits ended with the employment agreements. The trial court agreed but the appellate court did not. Its reasoning is in the post.

TAKEAWAY:  Employers may now be able to have at-will employees with obligations remaining from a prior employment agreement. Be sure to have an attorney review any restrictive covenants you intent to use and enforce.

The post on Monday 5/8/17 noted that calling your boss a "Nasty Motherf***er" shouldn't get you fired (said a federal court). Yes, there's a catch. Si here's what happened: in late 2011, Hernan got chewed out by his boss. A union campaign was going on at the time. He then posted something to Facebook – see the post for the exact language. He removed the post after it came to management's attention, but he was still fired. Recently a federal court said Hernan had the right to make the post. More details about the court's ruling and rationale (including the use of similar language in the workplace and how the employer reacted to it) are in the post.

TAKEAWAY: Employees have certain statutory rights relative to the terms and conditions of their work, even in a non-union environment; be careful not to run afoul of the NLRA in disciplining employees for taking advantage of their rights.

In the post on Tuesday 5/9/17 we found out that McDonald's website violates the ADA (alleges a federal lawsuit). A legally blind man filed suit in CA because he's been unable to use the website and mobile app.

TAKEAWAY: Make sure your website is accessible to all – and not in violation of the ADA.

The post on Wednesday 5/10/17 noted the expansion of Title VII protections: potential impact of Evans v. Georgia Regional Hospital case. This all has to do with whether or not sexual orientation is protected under Title VII. In March 2017, the Eleventh Circuit said no (but rehearing en banc has been requested). Shortly after, the Second Circuit also said no (but an extension to request rehearing en banc has been granted). Then in early April 2017, the Seventh Circuit said yes – and stood in line with the EEOC's guidance. There is now a Circuit split that will likely need to be resolved by SCOTUS. The post has a bit more background.

TAKEAWAY: There is yet no final ruling on whether Title VII prohibits discrimination on the basis of sexual orientation, but since it has nothing to do with job performance, why chance being on the wrong side of the law? Just don't do it.

In the post on Thursday 5/11/17 we learned Green Chevrolet will pay $65,000 to settle an EEOC discrimination suit. It also must provide other relief too as part of the settlement. The background: Green allegedly forced an employee to transfer to a new position when it learned he was experiencing kidney failure and would need regular dialysis. When the employee said he was healthy and could do his regular job, the employer responded as in the post. Then it fired him. Ugh.

TAKEAWAY: Don't assume that an employee will need or want accommodation – wait until you are put on notice of the need for it before taking any adverse (and possibly illegal) action.

The post on Friday 5/12/17 told us a restaurant owner promised to fire employees who allegedly sang "F-ck That Police" to the cops. And this is from NC, a state not always known (especially lately) for non-discrimination. First, the police protective association issued a Facebook post after employees – and a manager – sang "F-ck the police" while officers were eating at the restaurant. The owner has said he will fire the participating employees. Are they legally protected? See the post.

TAKEAWAY: Know what your employees can and cannot say or do before you take any adverse action against them – it is not always a clear-cut situation.

Finally, in the post yesterday 5/13/17, we learned an employee's safety may be a legitimate reason to end the employment contract. Here, Dennis, a non-Muslim white man, had a one-year contract to work in Bahrain. Before the contract was up, he made comments to his students that they took as anti-Muslim and disturbing. Dennis became fearful for his safety. The school's following actions are in the post. He sued after not being rehired but lost.

TAKEAWAY: Personal safety can indeed be taken into account by an employer – as should the terms and conditions of any contract that is in place.


ICYMI: Our Social Media Posts This Week – Apr. 30 - May 6, 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 4/30/17 we asked: Are customer lists a trade secret? We also noted they probably are under PA law, but you should ask an attorney to be sure. The real answer may be "it depends" – on what is sought to be classified as a trade secret and how the state's trade secrets law applies. The post gave some hints on what may or may not qualify.

TAKEAWAY: Anything that is publicly available will not be classified as a trade secret, but for other things, "it depends", so as an employment law attorney.

The post on Monday 5/1/17 posed a question: Tattoo U: what can employers do about offensive body art? Sometimes tattoos or other body art are included within a dress or grooming policy. But sometimes not. Any such policy should be reasonable and follow the other tips in the post.  

TAKEAWAY: Make sure any policy on body art is legal and reasonable – we can help you.

In the post on Tuesday 5/2/17 we told you how to hire an intern and not end up with an employee (aka, Do it right). These are the lessons of earlier lawsuits under the FLSA asking for minimum wages and overtime pay. The post reviews the 6 factors from the US Department of Labor to be considered an intern (and thus not subject to minimum wage or overtime pay requirements). They include that the internship is similar to training given in an educational environment (although it can include actual operations), the internship experience is for the benefit of the intern, and 4 others in the post. A good idea is to have the intern sign an agreement with the items listed in the post. Also be careful when dealing with international interns as a different set of rules applies.

TAKEAWAY: Summer is almost here – do it the right way with any interns you take on or be prepared to meet the requirements of the FLSA.

The post on Wednesday 5/3/17 noted that ignorance may not be bliss - Court rules against employer on ADA claim. In the federal case, the plaintiff alleged that she suffered from cyclic vomiting syndrome, her absences were a result, and her termination was discrimination based on her disability. More details are in the post. The employer, a medical center, said she did not disclose the condition to her supervisor and thus it had no notice. There was no question as to whether or not there was a qualifying disability. The question was whether or not the employer was on notice of its need to accommodate. The Court found it was (for the reasons in the post).

TAKEAWAY: It doesn't take much for an ADA plaintiff to meet his/her burden of showing an inference of termination (or other adverse action) based on a disability – make sure any such action has a legally-supportable basis.

In the post on Thursday 5/4/17 we pointed to a study finding bullying is driving LGBTQ people out of tech. The study found LGBTQ people were almost twice as likely to be bullied and 64% said that contributed to them leaving the company. The study also offered tips to prevent this turnover - which costs employers money due to having to replace workers – including developing top-down diversity and inclusion strategies and 2 others in the post.

TAKEAWAY: Sex, and sexual orientation, are not relevant to any job – so don't even bring them into the equation. Just don't do it.

The post on Friday 5/5/17 noted that Americans United says "religious beliefs are not a justification for discrimination" and suits are pending in many courts. This issue will probably end up at the US Supreme Court. Currently, a case pending in a federal appeals court deals with a transgender woman fired in August 2013 from a funeral home; the lower court found no discrimination. Details about that case are in the post. The lower court found that sex discrimination was a viable claim (for failing to conform to sex- or gender-based stereotypes) but the employer then amended its defense to include the Constitution's Free Exercise Clause and the Religious Freedom Restoration Act (RFRA) following the Hobby Lobby case. The lower court agreed and then the EEOC appealed.   

TAKEAWAY: Pennsylvania courts have no definitive ruling yet on whether sexual orientation is a prohibited basis of discrimination in the workplace. But just because there is no law doesn’t mean employers should act on it.

Finally, in the post yesterday 5/6/17 we talked about the reasonable accommodation you can't afford to forget. What is it? Reassignment. You don't have to create a new job, but you do have to consider open positions as a reasonable accommodation under the ADA. The post gives the prerequisites for reassignment to be an option, who should identify the position, and when reassignment need not be considered. In the case in the post, the employer did not consider reassignment despite the employee saying he was willing. The employer ended up settling by paying $90,000 in back pay, interest and compensatory damages, plus reinstatement with retroactive seniority and benefits.

TAKEAWAY: Don't be party to an expensive lesson – document any open positions when considering reasonable accommodations and why they would not be successful or present an undue hardship.


ICYMI: Our Social Media Posts This Week – April 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 4/23/17 we noted the government has accused Google of "quite extreme" gender discrimination (and how disappointing that is). DOL is investigating Google for alleged pay discrimination and has apparently found systemic disparities that disfavor women, to the extreme. Google denies the allegations, asserting that it has "rigorous statistical tests in place to ensure that men and women in comparable positions received equal pay." The post gives additional background about the process, but stay tuned.

TAKEAWAY: Discrimination in any facet of employment – including pay – on the basis of gender is just wrong – don’t do it. No matter how big or small your business, you will be found out.

The post on Monday 4/24/17 was an alert: the plaintiff only needs an inference that protected activity is the likely reason for the adverse action, not the but-for reason. This is a case out of the Third Circuit Court of Appeals and therefore binding here in PA. The case was a Title VII retaliation claim where the employee (Dr. Carvalho-Grevious) appealed a grant of summary judgment in favor of the former employer (a university) and 2 employees, a former interim Dean and the Provost. The complaint alleged that by retaliating against her for complaining about race and gender discrimination, the University violated Title VII (and another issue in the post). The question before the appeals court was whether a plaintiff in a Title VII retaliation claim must establish but-for causation as part of the prima-facie case. The court's analysis is in the post. The holding, which affects both employees and employers, is that at the early (prima facie) stage, a plaintiff need only show evidence sufficient to raise an inference that engagement in a protected activity was the likely reason (not the but-for reason) for the adverse action.

TAKEAWAY: The initial burden on employees asserting retaliation claims under Title VII is now lower/easier to meet; both sides should keep this in mind when evaluating the merits of a charge/suit for retaliation.

In the post on Tuesday 4/25/17 we told you about 6 times Uncle Sam can seize your tax refund. Maybe you already know about one of these first-hand … So what are the 6 bases? First and foremost is if you owe federal taxes from a prior year. Next is if you owe state taxes from a prior year. The third reason is for past-due child and parent support debts. The other 3 reasons are in the post. Of course, there are limits for some or all of the reasons as to how much of the refund can be seized. The post gives you links for some ways you might want to proceed.

TAKEAWAY: If your tax refund has been seized, or is about to be, there might be something you can do to stop it – contact an attorney knowledgeable in this area (like Austin Law Firm).

The post on Wednesday 4/26/17 noted that an employee must give an accommodation a chance. Yep, makes sense. As part of the process, when the employer offers a reasonable accommodation, the employee must give it a try (under most circumstances). If s/he just quits, there will not be eligibility for UC benefits (and maybe other repercussions too). In the post, the employer offered a reasonable accommodation, but the employee quit before even trying. Since he could not prove a necessitous and compelling reason, the appeals court found him ineligible for UC benefits.

TAKEAWAY:  An employer has a duty to offer a reasonable accommodation to an eligible employee; only if the accommodation really is not reasonable (and the employee can show shy) can the employee not give it a chance.

In the post on Thursday 4/27/17 we noted that a comprehensive employee handbook may be the best tool to beat unemployment claims (and we offered to help you). In PA, eligibility for UC benefits in a discharge situation turns on whether the employee committed what is deemed to be willful misconduct; the burden of showing that is on the employer. One way to do that is through violation of a policy as in the post; there are specific things the employer must show though, so often it is best to involve an attorney.

TAKEAWAY: To fight UC benefits on the basis of a policy violation, the employer must show there is a policy, the employee knew about it, the employee violated it, and the employer evenly enforced the policy.

The post on Friday 4/28/17 was another new case holding: the "heart of the matter" test is out and now an independent claim is the standard for a complaint for legal and declaratory relief. This case is again out of the Third Circuit and therefore binding on PA cases. The issue before the court was in suits seeking both legal and declaratory relief, what standard applies to jurisdiction. Resolving a split among lower courts in PA, the Third Circuit analyzed the issue (see the post) and ruled that the new standard in a complaint seeking both legal and declaratory relief is the independent claim test.

TAKEAWAY: The new standard to analyze whether a court has jurisdiction when both legal and declaratory relief is pled is whether the legal claims are independent (in which case the court hears them) or dependent on the declaratory claims (in which case the court may decline jurisdiction of all claims).

Finally, in the post yesterday 4/29/17 we asked: What does your condominium or homeowners' association insurance cover – and what is it supposed to cover? If you live in a community governed by an Association, these are questions to which you need the answers. The first thing to know is that the Association's insurance does NOT cover your unit/home or your possessions in it, so get your own insurance for that (and get it pronto if it's not already in place). If you live in a condominium, make sure to get insurance specific to that. Some things to look for in your own policy include covering any portion of the Association's deductible that you might be responsible for, covering things not covered under the Association's policy, and other items identified in the post.

TAKEAWAY: Your home, whether in a condominium or a fsingle-family detached house, is probably your biggest investment, so protect it by having the right insurance coverage in place.


ICYMI: Our Social Media Posts This Week – April 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 4/16/17 we noted the third black Fox News employee joins the race discrimination suit, says Fox knew about abuse from Ailes and others. Monica, the manager for credit collectors, says that former comptroller Judy subjected her to racism and cruelty (including not wanting to be around black people, Monica not looking like the Aryan race, mocking her for being a breast cancer survivor, and more in the post) and pressured her not to report it. Even though Monica did report it, nothing was done (allegedly because Judy knew about the Ailes scandal, but Judy was fired in March – the basis is in the post). The suit Monica joined alleged "top-down racial harassment" including Judy often making racial comments about blacks, Chinese, Indians and Mexicans.

TAKEAWAY: employees should not suffer discrimination or harassment of any kind – they should report it. Likewise, employers should not practice discrimination or harassment of any kind and should immediately investigate any claims of such behaviors.

The post on Monday 4/17/17 noted the Trump administration warns against discrimination against Americans who hire foreigners. Really. The Administration warned those petitioning for work visas for foreigners not to discriminate against US workers, which would be a violation of US immigration law. This fits within the Administration's call to hire more US workers. More details are in the post

TAKEAWAY: If you just hire the most qualified person for the job, and can document why s/he is the most qualified – without getting into any protected characteristic - then there shouldn’t be an issue as to discrimination.

In the post on Tuesday 4/18/17 we were told the first federal appeals court rules anti-gay bias is barred under current law. Yes, discrimination based on sexual orientation was found to be sex discrimination in violation of Title VII. Perhaps this is the start of the next avalanche of rulings in this area – see the post for where other courts stand on this issue. The 7th Circuit's 8-3 majority found that discrimination on the basis of sexual orientation is discrimination based on one's perception of gender stereotypes which SCOTUS has found illegal under Title VII. The decision even referred to the 1967 case of Loving v. Virginia (the subject of a recent movie) which struck down bans on interracial marriage; the 7th Circuit merely changed the Loving facts a bit, noting "… If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex." More details are in the post. Note that the court specifically did not decide if the employer is a religious institution with a religious exemption from Title VII because that question was not before it.

TAKEAWAY: While this case is not binding here in PA, it does not harm to follow its teaching anyway – and, besides, sexual preference really has nothing to do with job performance, which is all an employer should worry about.

The post on Wednesday 4/19/17 said that granting leave may trigger a "regarded-as disabled" claim under the ADA and warned not to forget about that prong. As the article in the post notes, be careful! Here, Dwayne was diagnosed with anxiety; he could not work with elderly patients as that was a trigger. He was approved for intermittent leave under the ADA for anxiety outbreaks and fired after refusing an assignment to work with elderly patients. He sued. The post contains the outcome.

TAKEAWAY:  If you approve ADA leave, you are agreeing the person is disabled. If you later challenge that, you may instead be deemed to have approved the leave because you regarded the person as disabled even if s/he was not, therefore still triggering ADA protection.

In the post on Thursday 4/20/17 the question was: new hire wasn't qualified? Then disability is irrelevant. Remember the requirements for ADA protection: they include being able to perform the essential functions of the job (with or without reasonable accommodation). Here, William was hired and requested accommodation. In the meantime, the employer discovered he did not have the required certification and so terminated his employment. He sued. The federal appeals court's ruling is in the post.

TAKEAWAY: Regardless of the employee or applicant's (dis)ability, if s/he is not qualified, then you don't even reach the accommodation issue.

The post on Friday 4/21/17 told us that Dollar General lost a round in its race discrimination lawsuit. Remember that the EEOC filed suit against Dollar General over alleged discriminatory use of criminal background checks in hiring and firing decisions? Well, a recent court ruling said the EEOC did what it needed to before filing suit in 2013, so the case proceeds. The post details the court's analysis and background facts.

TAKEAWAY: Even if you outsource a step in the hiring or firing process, you are still liable for it being legal – so make sure it is.

Finally, in the post yesterday 4/22/17 we learned that Zale jewelers allegedly violated the ADA and will pay a $30,000 penalty. One of Zale's business names is Piercing Pagoda; apparently Rose managed one of its kiosks. Rose told Piercing Pagoda in 2013 that she needed an accommodation for her long-standing medical condition (discussed in the post). The employer's response is also in the post – but you know from the fact that it is the subject of this blog that it was not positive.

TAKEAWAY: When an eligible employee asks for an accommodation, don't refuse – instead start the reasonable accommodation process.


ICYMI: Our Social Media Posts This Week – April 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 4/9/17 we asked: Is it age discrimination if you don't know you're being discriminated against? The US Supreme Court will let us know. When he was age 49, Richard applied on-line for a sales manager job with giant R. J. Reynolds Tobacco Co in 2007; he got no response. He applied again in later years with the same result. He didn't know why. The "why" is that RJR used a contractor to review and screen applications for older applicants (the bases are in the post). He sued after a whistleblower outed RJR in 2010. RJR successfully argued to the federal trial and appellate courts that the ADEA doesn't apply to Richard because he didn't diligently pursue why he'd not received a response to his applications before the whistleblowing and that in cases of indirect bias, the ADEA protects only employees (and not applicants).

TAKEAWAY: Age discrimination still happens, and may happen more frequently as the working population includes more older workers; don't just write them off - they have good experience and it may well be illegal.

The post on Monday 4/10/17 noted a former trade center employee's seizure problems led to a $155,000 settlement. Unetia Perry was an events coordinator for the Columbus Convention & Trade Center; she asked for and was granted FMLA leave; after surgery, she began to have seizures. She asked for a limited work day, which the employer initially granted; what happened next is in the post. Suffice it to say the employer's math error resulted in an illegal termination. When she later reapplied for her job, she didn't even get an interview. She then filed a charge of discrimination under the ADA and FMLA and retaliation for (in)action based on the former. Trial was set for March 2017; in December 2016 the court was prepared to rule against the employer on the failure to accommodate claim (but in its favor on retaliation). In February 2017 the case settled.

TAKEAWAY: We've said it before and will again (even later in this blog!): don’t' just play ostrich, but know the steps to take under the FMLA and ADA and take those steps.

In the post on Tuesday 4/11/17 we noted that Congress has proposed adding parental bereavement leave to the FMLA (and asked what you think). The proposal would add "death of a child" as a covered event for which eligible persons are entitled to up to 12 weeks of unpaid leave.

TAKEAWAY: Events that significantly impact a person's ability to work are covered under the FMLA and provide much-needed leave; now the question is whether it is time to expand the list to cover the death of one's child.

The post on Wednesday 4/12/17 noted that Texas Roadhouse will pay $12M to settle the age discrimination lawsuit. Because apparently everything is bigger in Texas. Recall that this is the suit brought by the EEOC alleging that Texas Roadhouse failed to hire servers, hosts, and bartenders who were age 40 and older; the jury hung las year and it was set for a new trial next month. Items agreed to in addition to the monetary settlement are in the post.

TAKEAWAY: Don't discriminate – you will probably get caught and it will be costly in so many ways.

In the post on Thursday 4/13/17 we talked about employer recovery of fees and costs in discrimination cases – is there a trend starting? A new law in Ohio permits its Civil Rights Commission to award attorneys' fees and costs to employers found not to have discriminated against an employee. It is not required but permissible. And the employer may not be able to collect anyway. But this evens the playing field (some argue) and may lead to fewer suits brought on iffy bases.

TAKEAWAY: PA employers are not entitled to fee shifting at the PHRC, but it may be the next big thing. Of course, if you don’t discriminate or retaliate, you will have less to worry about from the start.

The post on Friday 4/14/17 told us about a lawsuit alleging Forever 21 discriminated with its English-only policy. The suit was filed by a California state agency on behalf of Spanish-speaking employees. The policy apparently banned languages other than English, even when not job related, when not on paid time, and when speaking to Spanish-speaking customers. The post also mentions the bases for the retaliation allegations (because the discrimination was apparently not enough for the employer). The case moves forward later this year.

TAKEAWAY: Make sure your policies have rational, legal, business-related reasons for being.

Finally, the post yesterday 4/15/17 cautioned: (don't) just say no to ADA and FMLA leave requests. The case at issue is from Utah, but the principals apply equally here in PA.  Wells Fargo was the employer (boy it's taking a beating these days!) The employee, who had epilepsy, asked for leave due to her medical condition. HR told her epilepsy was not a disability and she was ineligible for FMLA leave. She then asked her manager who responded the same but left open the possibility of leave in 3 months. After that, the employee quit. The court ruled against Wells Fargo on the ADA claim, saying its argument was faulty (see the post for the court's reasoning). The court also ruled against Wells Fargo on the FMLA interference claim; again its reasoning is in the post. Other claims asserted by the employee are noted in the post and really paint Wells Fargo in a bad light.

TAKEAWAY: Make sure you know the steps to follow under the ADA and FMLA and then follow them – in the proper order.


ICYMI: Our Social Media Posts This Week – April 2-8, 2017

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

In the post on Sunday 4/2/17 we talked about dispelling the 10 biggest wage & hour myths – part 1. Get them wrong and you will be in quicksand. First, employees are NOT entitled to mandatory work breaks (absent some type of contract or policy to the contrary). Second, all salaried employees are NOT exempt; that is only one question to be asked in determining if someone must be paid overtime wages or is exempt. The others are in the post.

TAKEAWAY: Wage & hour is not an area to wade into or guess – government enforcement can be swift and costly – get it right at the start.

The post on Monday 4/3/17 told us that prior sexual harassment does not ease the burden of proof in a later claim. Various companies have differing approaches to discipline for harassment – that's ok as long as they apply their policy uniformly. But what happens when the harasser is not responding and does it again? Does that mean the victim automatically has a HWE? A recent case in the federal Third Circuit, which governs in PA, dealt with just this issue. The plaintiff settled a prior case with the US Postal Service. Many years later, she filed a new charge with the EEOC – against the same co-worker, but on more limited bases (detailed in the post). The trial court dismissed the case as not rising to the level of a HWE. On appeal, she argued that she should not have to prove HWE due to the prior harassment. The court's ruling (in the post) makes sense and is good news for employers.

TAKEAWAY: Just because plaintiffs did not get a leg up doesn't mean employers are out of the woods – you must still investigate complaints of harassment and take appropriate action based on the result of the investigation.

In the post on Tuesday 4/4/17 asked: Too much experience to be hired? Some older Americans face age bias. As more and more people have to work past the traditional retirement age, more and more of them find themselves searching for a job – and hitting barriers. And it's worse for older women than older men – a double whammy. At least one case is now pending; the post gives some background on it and the status.

TAKEAWAY: Employers should not take (adverse) action based on age – but rather on measurable job performance or requirements.

The post on Wednesday 4/5/17 told us that a Christian university illegally fired a professor who got pregnant and stayed single. We all know that religious beliefs sometimes result in exemption from certain laws. But not in this case. Here, Coty had been an assistant professor at a private, Christian school. She was unmarried and got pregnant, then (had the audacity to) refuse to marry her boyfriend or leave him. The school's actual message to Coty is in the post. She refused to accept the school's "suggestions", later resulting in her being discharged based on the school's sincerely held religious beliefs. Her suit included allegations that unmarried male professors were not discharged for fathering children out of wedlock. She got judgment on one of the claims since the ministerial exception was held not to apply. Read the post as to the other claims.   

TAKEAWAY: If you are asserting that sincerely held religious beliefs either require a certain course of action or prohibit it, make sure you are on firm legal ground before (not) taking the action.

In the post on Thursday 4/6/17 we learned that pretext evidence supports revival of ADA and FMLA claims of employees RIF'd between surgeries. Here, the employee used crutches as a result of childhood bone cancer; he was discharged between 2 surgeries, allegedly as part of a RIF. He sued and the court found that the RIF reason might have been pretext (thus letting the case move forward). His job had been editing videos and his bosses thought it might be more difficult for him as the editing became more electronic. He did not complain or ask for accommodation. He told the employer of 2 upcoming surgeries; they were approved but he was fired after the first surgery, supposedly as part of a RIF. The post gives more details on the court's analysis.

TAKEAWAY: Employers may have a defense to allegations levelled against them – but the defense should remain the same at the administrative level and then into court. If it changes, then it is probably less than truthful (and shouldn't be put forth).

The post on Friday 4/7/17 said easy come, easy go: appeals court reverses $2.6M award in ADA case. Rite-Aid was on the winning side in this one. It started when Rite-Aid started requiring pharmacists to give immunization injections. Christopher couldn’t due to a medical condition so he asked for an accommodation. Rite-Aid decided that it did not need to – and couldn't – accommodate him and so fired him (the rationale is in the post). Christopher sued for violation of the ADA. At trial, a jury awarded him $2.6M in damages. On appeal, Rite-Aid was successful when the court analyzed the ADA's provisions and applied the facts to them (see the post for the analysis). The post also has some useful tips for employers.

TAKEAWAY: Even though in most cases an employer should just assume the employee is disabled within the ADA's provisions and therefore entitled to the interactive accommodation process, that is not always the case – and indeed a situation may turn on that exact question.

Finally, the post yesterday 4/8/17 told us that KASCO settled a Muslim employee's discrimination suit. For $110,000. Latifa, a buyer, alleged that supervisors starting acting up after she began to wear a hijab, including acting like they were scared of her and other things in the post. After an HR complaint, she experienced retaliation and was eventually fired. The post gives more background. The settlement resolved her claims.

TAKEAWAY: Employers should not take adverse action against employees unless based on job performance – or lack thereof – and especially not based on a protected characteristic that has nothing to do with job performance.

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