Thursday
Oct062016

ICYMI: Our Social Media Posts This Week – Oct. 2-8, 2016

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

In the post on Sunday 10/2/16 we talked about labor and employment tips for start-up and existing businesses. Let's dive right in: (1) Know the difference between employees and contractors – properly classify. (2) Pay employees properly. (3) Pay interns. The other tips are in the post.

TAKEAWAY: Protect the company you have or will work hard to build – know and comply with the various applicable laws.

The post on Monday 10/3/16 gave us the Top 7 ADA developments you need to know about. So let's get right to them: (1) EEOC issued new enforcement guidance on retaliation. (See our other post on this). (2) Federal enforcement of associational discrimination. If you don't understand this, contact an employment law attorney. (3) Yes you can refuse to hire someone because they are too fat – if they don't meet the requirements for ADA protection. The other tips are in the post.

TAKEAWAY: There are a myriad of ways the ADA can be violated – intentionally or otherwise. Make sure you know the law and have an attorney on call to be proactive.

In the post on Tuesday 10/4/16 we said leave denied? Yeah so is employee's lawsuit. Just because something bad happened does not mean that there was discrimination. Yes, shocking. (hahaha). Here, Martin, a 75-year-old mailman, alleged age discrimination when his supervisor didn’t approve a leave request for a specific day. The complaint was dismissed internally and by the EEOC. He then filed suit and earned a dismissal from the court on the basis that the single day of denied leave did not constitute an adverse action. The appeal was also quickly dismissed. More details are in the post.

TAKEAWAY: Even though an employee's allegations (or suit) might be frivolous or groundless, you must still investigate fully (to earn that dismissal if suit comes).  

The post on Wednesday 10/5/16 told us to avoid becoming friends with your employees. Why? The post gives more detail, but because they stop being an employee and instead are your friend.  It makes decisions that much harder (or impossible) to make. It also all but ensures favoritism of that person and lowering of morale (at best) by other employees. 

TAKEAWAY: Let's just say it again: avoid becoming friends with your employees to help avoid future legal entanglements. 

In the post on Thursday 10/6/16 we noted that a simple list of job duties could have saved company in ADA bias suit. Yes this is another Wal-Mart story from which we can all take heed. Wal-Mart paid $90,000 to settle a suit for disability discrimination (after firing an intellectually-disabled employee). William started working at Wal-Mart in 1994; he needed a written list of daily tasks. Wal-Mart had done that for a long time, but decided to stop at some point. William then could not perform as well; Wal-Mart fired him for not performing. The EEOC sued.

TAKEAWAY: Take your obligations under the ADA seriously, especially when it's a simple thing like providing a written list of duties. It can be costly not to do so.

The post on Friday 10/7/16 noted that US & PA DOL partner on worker misclassification – now it's even more important to get it right. The 2 entities will now share information and conduct joint investigations relative to independent contractor misclassification. Other states have the same arrangement with DOL. This just means more eyes will be on how you classify (and pay) those providing services to or on behalf of your business. Read the post for more info.

TAKEAWAY: Classification of employees has always been important – and the Department of Labor (and possibly IRS) would take action if there was a problem. Now you have more eyes on you.

Finally, the post yesterday 10/8/16 told us that schools will pay $50,000 to settle an equal pay discrimination case. The settlement comes between the EEOC and a school district in Minneapolis (which disagrees with the allegations in the suit). However, since, according to the District, it found the employee worked above the job description, higher way was warranted, not that there was any discrimination. The underlying case alleged that the female employee was paid as a custodial aide and not custodian. More details are in the post.

TAKEAWAY: Whether it is based on discrimination or misclassification, businesses that don't properly pay employees will get zinged. Period.

Thursday
Sep292016

ICYMI: Our Social Media Posts This Week – Sept. 25 - Oct. 1, 2016

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

In the post on Sunday 9/25/16 we reminded you to watch out for witness bias in workplace investigations. Make sure those giving statements or otherwise participating have no axe to grind and don't try to influence adverse decisions against an employee as a result of that axe. Actions like that could land the employer in hot water. See the analysis in the post as to how it works.

TAKEAWAY: Make sure any adverse action rests on legitimate, verified facts, especially if the person against whom the action is being taken is part of a protected demographic.

The post on Monday 9/26/16 talked about Motel 6 being sued by the EEOC for pregnancy discrimination. (I guess the light wasn't left on.)  What happened? Simple (but illegal): the employer allegedly placed the pregnant employee on leave solely due to her pregnancy. More background is in the post.

TAKEAWAY: Don't put someone on leave or otherwise modify their schedule (or take other adverse action) just because you think they need some type of accommodation – wait for him or her to ask.

In the post on Tuesday 9/27/16, we asked: is comp time in lieu of overtime legal? The simple answer is no (at least in the private sector). Overtime work must be paid for. 

TAKEAWAY: Know what hours you must pay employees for working and what alternatives there might be to pay. Consult an employment law attorney if needed.

The post on Wednesday 9/28/16 noted the EEOC has issued retaliation guidance, including ADA interference. One of the most important things to know is that this Guidance broadens the conduct that might be deemed retaliatory, as well as the causation concept. The EEOC also issued a Q&A document and small business fact sheet – the links to both are in the post. The Guidance addresses retaliation under various statutes, not just the ADA, and also interference under the ADA. The Guidance also mentions some situations where lower courts have issued conflicting rulings and interpretations and the EEOC's interpretation also differs. They are in the post.

TAKEAWAY: The EEOC may not be the final word, but courts do give its Guidance deference.

In the post on Thursday 9/29/16, we noted that new managers must learn to play by the rules and not be pushovers. Manage abusers firmly and fairly and help others with appropriate empathy, all while getting the job done for the employer. See the post for details.

TAKEAWAY: Uniformity (unless the law requires something else) is key – know the rules and apply them in the workplace.

The post on Friday 9/30/16 was about a former Girl Scouts employee claiming FMLA violation. This is from Pittsburgh, close to home. The suit in federal court is against the employer and the CEO, alleging an FMLA violation and retaliation. Background facts are in the post. This is newly filed so stay tuned.

TAKEAWAY: When it comes to the FMLA, make sure all I's are dotted and T's crossed – adverse action might lead to suit.

Finally, the post yesterday 10/1/16 asked: what is an HOA (and why do you care)? The acronym stands for homeowners' association; it is a planned community arrangement similar to a condominium, but for single-family, detached homes. The post gives some information as to the purpose of an Association and what you might expect if you live in a planned community.

TAKEAWAY: Know your rights and responsibilities and become familiar with the Governing Documents if you (intend to) live in a planned community. Have an attorney well-versed in this type of law go over the documents with you too – they are a contract to which you become a party.

Monday
Sep192016

ICYMI: Our Social Media Posts This Week – Sept. 17 - 24, 2016

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

In the post on Sunday 9/18/16 we noted a professional plaintiff uses FCRA to threaten companies, win $230,000 in settlements. Have you seen someone like this? He applied to 562 – count 'em – jobs in an attempt to catch the employers in FCRA violations. Check out the post for the sordid details.

TAKEAWAY: After reading what he did, go back to your company and make sure they know what to do (and not to do) to comply with the FCRA. Don't become victim to a (professional) plaintiff.

The post on Monday 9/19/16 was about how to avoid mismanagement of employee medical files. What is Rule #1? Keep medical information in a separate, confidential file, not with the general personnel file. This doesn't change with the method of retention, i.e., hard (paper) or electronic. More details, including what and to whom to disclose, are in the post.

TAKEAWAY: Be in compliance; know how to properly handle employee medical information.

In the post on Tuesday 9/20/16 we talked about a lesbian accepting $182,000 from employer in historic workplace discrimination case. Yes this stems out of the first sexual orientation suit filed by the EEOC. Filed documents say the employer has agreed to pay $200K to settle (with no admission of liability), with most going to the employee. The employee alleged she had endured harassment; one comments by her supervisor to her was that he wanted "to turn you back into a woman". Other comments are in the post. She was fired after she complained. Now she's made history.

TAKEAWAY: Don't be part of that kind of history; take no adverse action against an employee based on sexual orientation.

The post on Wednesday 9/21/16 noted a church bookkeeper's ADA claim after full-time position eliminated (and asked if that's legal). In this case under the ADA (brought in federal court in CA), the court said YES. Alice returned from sick leave under the ADA; her position became part-time because during the leave the pastor took over some of her duties (finding he could easily do them along with his other duties). She declined the part-time work, demanding reinstatement due to the ADA leave. She filed suit. The rationale is in the post, but know the judge dismissed her claim, finding the church's decision to be business-related and having no relation to her medical condition or disability.

TAKEAWAY: Valid business reasons can trump a claim of discrimination. Query what would have happened had the suit been brought under the FMLA …

In the post on Thursday 9/22/16, we talked about a judgment in favor of the EEOC is a disability and genetic discrimination case. More boundary-pushing. What happened? A farm violated the ADA and GINA by requiring applicants to complete a health history prior to consideration. After conciliation failed, the EEOC filed suit. The company must pay the applicant $10,000 plus other relief required by the court.

TAKEAWAY: GINA is not your (best) girlfriend; know what she stands for and how she plays with the ADA.

The post on Friday 9/23/16 was about HR tech and the law. Three main areas are covered in the post: big data and data analytics, employee monitoring, and social media. The first normally applies relative to hiring, employee satisfaction and morale, and other internal issues, but can cause the employer to run afoul of one or more laws based on how and for what the information is used. Reasons to be wary about the second and third categories are in the post, but suffice t0 to say you must know them.  

TAKEAWAY: Technology is part of our everyday lives, whether at home or in the workplace; know how to legally deal with all of the occurrences and implications.

Finally, the post yesterday 9/24/16 provided a "stay out of trouble" checklist. We suggested you use it. There are 8 items on this list; the last 2 are probably some of, if not the, most important: ask questions and make sure you have a good employment law attorney on call. The other 7 items on the list are in the post and include having a meeting with the employee and doing a safety audit.

TAKEAWAY: Follow the checklist. And don’t just have an employment law attorney at the ready - actually make the call (or send the email) before you think you need to.

Monday
Sep122016

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

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

In the post on Sunday 9/11/16 we noted employment services provider ADP to pay $1.4M to settle discrimination charges. Big issue, big $$$ to resolve. The charges centered around allegations that Hispanic and black individuals were discriminated against by ADP. The post contains more, but the settlement was without admission of liability.

TAKEAWAY: Stay the legal high road and you will not see your name in neon lights followed by the word "Defendant".

The post on Monday 9/12/16 provided 7 tips for employing diverse workers. They include following the law (Title VII), seeing diverse employees as an asset, making expectations clear from the beginning, and 4 others in the post.

TAKEAWAY: Diversity is not just a legal precept, but something good for your company. Aim for it.

In the post on Tuesday 9/13/16 we noted that size discrimination is a big fat problem. Not only for the employees suffering it, but for the employers who are then subject to suits. Much of the discrimination comes from stereotypes about overweight people. The post gives more details.

TAKEAWAY: Don’t assume anything about any applicant or employee from a picture – talk to the person and watch/see how they perform before taking adverse action.

The post on Wednesday 9/14/16 was an alert: Hot hot: Chipotle to pay $550,000 to employee fired for being pregnant. As if Chipotle needs more problems … Doris worked in a Chipotle location in Washington DC. She told her boss she was pregnant. Her boss, David, made her tell everyone when she went to the bathroom and his approval was required. Non-pregnant employees did not have those requirements. More? Check out the post (hint: it ends with a public firing). This case went all the way to a jury trial, with an award of $550,000 in compensatory and punitive damages as the result. This blog author thinks the jury wanted to teach Chipotle a lesson.

TAKEAWAY: Don't be the employer the jury wants to teach a lesson – follow the law from the start.

In the post on Thursday 9/15/16, we talked about a woman saying a 5K run was used as pretext for her firing. This took place in Pittsburgh. Amanda sued her former employer, an accounting firm, for firing her for participating in a breast cancer charity fun while out on medical leave (for migraine headaches). How did the employer learn of the run? An anonymous source sent the employer a copy of her Facebook post. The post includes language from the discharge letter sent to her by the firm. Amanda disagreed with the firm's doctor's assessment, alleging her doctor told her to get exercise each day and that he approved the 5K run. She further alleged in her suit that the firm's reason is pretext to cover retaliation for not wanting her to take the leave. More actions of the employer alleged to be in violation of law are in the post. The suit was filed under the ADA, FMLA and PHRA against the firm and the doctor to whom the firm sent her for a second opinion.

TAKEAWAY: Make sure there is a valid, legal basis to take adverse action against an employee before taking the action; otherwise it could be an expensive proposition.

The post on Friday 9/16/16 gave us the Top 10 FMLA leave mistakes. We said know them, don't make them. Know when the FMLA applies (to an employer with at least 50 employees within a 75-mile radius and an employee who worked at least 1250 hours in 12 [consecutive or non-consecutive] months prior to the leave). Know the mistakes not to make, including counting time as leave that should not be counted and improperly designating the beginning or end of the leave. The post contains the other mistakes plus examples of each type of mistake.

TAKEAWAY: Make sure the person administering FMLA leave for your company knows how to properly handle it and how it affects, or is affected by, other statutes. Talk to an employment law attorney if needed.

Finally, the post yesterday 9/17/16 was about the EEOC suing Rooms to Go for pregnancy discrimination. The company hired Chantoni on 6/1/15 and assigned her work as a shop apprentice at a NC training facility. She was required to use chemicals in that position. Two days later, she told the trainer she was pregnant. After confirming the pregnancy in a meeting later that day, the regional manager pointed out a warning on a chemical container and fired her. The matter is now in suit filed by the EEOC (after conciliation failed).

TAKEAWAY: Again, don't assume – that the person will be harmed or will not waive his/her potential harm to continue working. To avoid becoming a defendant, just give employees the information and let them make the decision.

Tuesday
Sep062016

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

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

In the post on Sunday 9/4/16 we noted that small businesses face big HR lawsuits. Don't be a defendant. The post included a referenced to a survey finding that 43% of small business owners were involved in a suit or threatened with suit. That's huge! And many thought they were doing what the law(s) required them to do. So what should a good employer do? Review pay stubs to ensure they include the correct pay and deductions. Put in place the appropriate documentation including a handbook. More tips are in the post.

TAKEAWAY: You may think you are complying with legal requirements, but it is a good idea to engage an attorney to help you navigate the maze that employment-related laws have become. That will be cheaper than defending a lawsuit.

The posts on Monday 9/5/16, Labor Day, found here and here, reminded you to give thanks for what you have.

TAKEAWAY: The post also thanked you on behalf of Sara Austin and Austin Law Firm llc.

In the post on Tuesday 9/6/16 we discussed avoiding lawsuits under the ADA. The post was aimed at retailers but its tips are good for all employers. They include making sure physical space (including parking lots, restrooms, and kitchens) is accessible – to employees and customers – and training customer service personnel. Other tips are in the post.

TAKEAWAY: If your business serves the public, make sure it is ADA-compliant. Not just through your physical front door, but through your electronic front door (website) as well.

The post on Wednesday 9/7/16 talked about a transgender man, born female, suing Abercrombie & Fitch for female uniform. For $35M. Over Abercrombie's allegedly-discriminatory "look policy". The plaintiff, Maha Shalaby, identifies as male but was born female. He was forced to wear the employer's uniform for females while working at the Manhattan location. Why? A manager said it was "what customers want to see." The other things Shalaby was told are in the post. He didn't and was fired in 2012, thereafter filing a charge with the EEOC. Recall that Abercrombie I went to SCOTUS when it refused to hire a Muslim girl who wore a hijab for religious reasons. Will this be Abercrombie II?

TAKEAWAY: More and more, gender identity is an issue in the workplace. Employers must address it legally – which may or may not be what brings in business.

In the post on Thursday 9/8/16, we noted that was dumb: Facebook post gets man fired for FMLA abuse. So what is this all about? While on FMLA leave to recuperate from shoulder surgery, a man posts a picture of him swimming off St. Martin. Yes he was fired. Yes he filed am FMLA retaliation suit. And, in this case, yes the employer prevailed. How it did that is the lesson here. Rodney's job was to decorate the building for holidays and events, maintain calendars, charts and care plans, and oversee outings, parties and recreation for patients. He requested and was approved for 12 weeks of FMLA leave for shoulder surgery. After that he needed still more time and the employer agreed (as non-FMLA leave). During that extra time Rodney went to Busch Gardens (taking pictures of decorating ideas, posting them, and sending them to co-workers for comment) and St. Martin (the swimming post). The steps the employer took are in the post; they are well-thought-out and covered what needed to be covered.

TAKEAWAY: The court's ruling analyzed the retaliation claim and Employer's defenses – the steps taken by the employer to support the discharge were legal given the facts. Be that employer.

The post on Friday 9/9/16 told us 5 things employers do that get them sued. (We then suggested you let us help you.) Yes employers can get sued when they do everything right (and legally). But they can also get sued when they do things wrong that could be prevented. The post covered 5 of those things, including classifying all employees as exempt and classifying all workers as independent contractors. The other 3 in this list are in the post.

TAKEAWAY: When it comes to employees, and as the post notes, get guidance and make sure you do the right thing. Don't hold out a "sue me" sign.

Finally, the post yesterday 9/10/16 noted the Labor Department finds evidence Microsoft discriminated against female employees. Ass you may (should) know, 3 women are suing Microsoft for gender discrimination – including denial of raises and promotions. As part of that suit, the recent filings included a DOL Notice of Violation. Microsoft's response is in the post. The suit is largely based on Microsoft's performance rating system.

TAKEAWAY: Make sure that pay is based on performance (or some other objective criteria) and not gender. Period.

Monday
Aug292016

ICYMI: Our Social Media Posts This Week – Aug. 28 - Sept. 3, 2016

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

In the post on Sunday 8/28/16 we learned that managers can no longer say they didn't know employees were working overtime. Why? A federal court in OH put liability on the employer to know how many hours its empl9oyees are working – and whether they are entitled to pay for overtime – even if the employee didn't claim overtime pay and if the company has a formal policy prohibiting overtime. Ouch. Here, the bookkeeper often worked more than 40 hours per week. She kept detailed time records but, thinking she was not eligible for overtime, only charged her regularly hourly rate for the hours in excess of 40 per week. When she learned, she sued. The defense: her boss didn't know she was working overtime. The post includes more on the defense and how the court dealt with it.

TAKEAWAY: While this case does not govern here in PA, the analysis makes sense – employers SHOULD know whether or not their employees are working overtime and whether pay is due for those hours.

The post on Monday 8/29/16 was about medical leave as a reasonable accommodation under the ADA: how far must an employer go? The EEOC certainly has something to say about this question given that it just issued guidance in May 2016. There is nothing concrete, but still the opinion that it should be considered, even beyond that under FMLA. Of course, each case stands on its own facts. The post reviews several areas, including whether or not someone is a qualified individual, how to handle requests for indefinite leave, and extensions of prior leaves (and by how long).

TAKEAWAY: Remember that the FMLA and ADA go hand in hand for medical leaves – consider requests under both.

In the post on Tuesday 8/30/16 we learned that an owner can stretch out tax sale redemption payments in a Chapter 13 bankruptcy in PA. A Bankruptcy Judge in Philadelphia recently ruled this way, so it's not binding everywhere else in PA, but it is something to keep in mind. The issue centers on whether the right of redemption after a tax sale is an asset or a claim. The Judge here decided it was closer to a secured claim, thus allowing it to be repaid over the life of a Chapter 13 plan. The post gives a nice summary of the court's analysis.  

TAKEAWAY: This might be important for someone looking to save their house after a tax sale – or, on the other side, for the purchaser at tax sale to know when his/her purchase is absolute.

The post on Wednesday 8/31/16 was about a white teacher suing the school board after being denied a job that included teaching Spanish. The teacher sued the Miami-Dade County School Board when she was not hired for a position that required teaching an hour of Spanish each day. That requirement is part of the duties for teachers in the extended foreign language track. Her attorney admits that she could not speak Spanish but said the Board could have had someone else teach Spanish for the one hour each day. She also alleges retaliation (interesting theory in the post).

TAKEAWAY: When an employment-related decision is affected by a protected characteristic, be careful of any legal implications of any action (not) taken.

In the post on Thursday 9/1/16 we noted 3 statements best left unsaid. Seems vague, but when you read the post you will see it's actually very clear. One, "personal issues shouldn’t affect your performance." The others are in the post.

TAKEAWAY: Train your managers in what they should not say to employees – it will make for a better workplace and possibly protect you from suit.  

The post on Friday 9/2/16 was about a court rejecting a lesbian's employment discrimination suit. We wonder who will settle this issue (Congress or the Supreme Court). Kimberly Hively sued her former employer (after having gone through the EEOC process) for violation of Title VII based on denial of a full-time position and a promotion due to her sexual orientation. Both the trial and appellate courts said that Title VII does not include protection based on sexual orientation (contrary to the EEOC's guidance on same). The analysis is in the post. The court here was bound by precedent, but contrary results have come down in other venues.

TAKEAWAY: Will Congress act on the Equality Act, will the Supreme Court rule, or will courts continue to issue their interpretations of whether or not Title VII covers sexual orientation?

Finally, the post 9/3/16 asked EEOC: how conciliatory should you be? Conciliation is one of the options available in the EEOC process (the other being mediation). If the employer does not want to mediate, it submits the required documents (including those noted in the post), the EEOC reviews the case and determines the charge to be for cause, and then tries to conciliate. If conciliation fails (or the employer decides not to participate), the EEOC may sue or the employee may sue (or the case may just die on its own). The post gives more details on the conciliation process.  

TAKEAWAY: Remember that working with an enforcement agency can often be a good thing, but there are both good and bad things that may come from EEOC conciliation. Talk to an employment law attorney about your best option in each case.

Monday
Aug222016

ICYMI: Our Social Media Posts This Week – Aug. 21 - 27, 2016

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

The post on Sunday 8/21/16 was about how marijuana legalization affects drug test policies. This applies in PA now too so pay attention! Pre-hiring testing could turn up a positive test for something related to a medical condition that may not require an accommodation, but if the applicant mentions it s/he might not get the job or might be known as a pot user. It’s a double-edged sword for the employee: s/he can’t be prosecuted for using the marijuana but has no protections relative to employment. (See what the post says about alcohol use.)

TAKEAWAY: The question of whether or not drug testing policies must, or will, change with legalized medical marijuana use is important and should be discussed with an employment law attorney as to the legal implications of any answers.

The post on Monday 8/22/16 asked Does an FMLA leave request double as a request for reasonable accommodation? And should you care? In reverse, YES you should care. And yes it might in the right circumstances. In the case in the post, Fred was a mixing technician. He required and was approved for intermittent FMLA leave. At some point the employer questioned it – after he was arrested for a DUI on a day he called in sick. He was fired and then sued. One of the allegations he made was that the employer violated the ADA by not treating his leave request as one for a reasonable accommodation. The trial court rejected that argument. BUT … a situation may present itself where the opposite holds true. Don’t be the case to find out.

TAKEAWAY: If an employee requests leave, no magic words are required – look at the reason, how it affects the employee’s ability to perform the essential functions of his/her job, and whether or not leave is required under either the FMLA or ADA (as a reasonable accommodation).

In the post on Tuesday 8/23/16 we asked Just how well do you understand salaried, hourly and wages? Again, do you care? Again the answer is a resounding YES. You must properly classify employees so that they are paid appropriately (and legally). “Salaried” does not necessarily equate to being exempt from overtime pay and hourly does not always equate to being non-exempt. Employers must look at the law and regulations to see if overtime is due to an employee given the facts of that person’s job situation.

TAKEAWAY: Proper employee classification for overtime pay is important, especially since the threshold changes in a few months.

The post on Wednesday 8/24/16 talked about a waitress told to wear a skirt for customers winning a sex discrimination case. That case was not in the US, but the law would be the same here. So what happened? At hire, a teenage waitress was told the dress code was black pants or skirt and black shirt.  A month later, a manager asked her to wear a skirt, her hair down, and makeup to be “easy on the eye” for customers. More details are in the post. She complained and was fired. She sued. She won.

TAKEAWAY: Sex discrimination takes many forms, all of which are illegal. Just don’t go there.

In the post on Thursday 8/25/16 we asked another question: Applicant tracking: EEOC can sue for that? You bet. And it is. It all boils down to record-keeping. As an employer you have a legal duty to retain certain records. In this case, the employer didn’t have them (information on the sex, race and ethnicity of applicants) and so the EEOC sued. And won.

TAKEAWAY: Record-keeping applies to just about everything related to the hiring process, including criteria, interviews, drug tests, pre-employment testing, and criminal and credit checks. It’s not just location anymore.

The post on Friday 8/26/16 was about a judge awarding $1,470,000 in an EEOC sexual harassment and retaliation action. Yes, you read it right, almost $1.5 million! Z Foods, a large dried fruit processor, has to pay $1.470 million in a suit accusing it of allowing male supervisors to sexually harass a class of female employees and firing any employee (male or female) who complained about it. The court found the harassment included conditioning hiring and promotions on sexual favors, continuous sexual advances, and more (in the post). The EEOC sued in 2013 after investigating and settled that claim in 2015 for $330,000. It didn’t stop, so in this case the award was the maximum allowed by law (less the prior settlement as an offset), including a finding of emotional distress by the claimants.

TAKEAWAY: It’s bad enough to violate the law and get caught once, but to do it twice takes a special employer …

Finally, the post yesterday 8/27/16 noted the EEOC fights sexual orientation discrimination using the Civil Rights Act. Yes, Title VII. This is the new frontier we’ve mentioned before. The EEOC has ruled that sex discrimination includes that on the basis of sexual orientation; now it’s putting its money where its mouth is and has filed suit. Here a gay male was harassed by his manager about his relationship with another man. The employer never disciplined the manager so the employee resigned. The EEOC alleged that had the employee been a woman having a relationship with a man, the harassment wouldn’t not have occurred.

TAKEAWAY: The case is pending, but it asks PA courts to interpret the law the way President Obama has for federal contractors and the EEOC has in its guidelines and rulings.

Tuesday
Aug162016

ICYMI: Our Social Media Posts This Week – Aug. 14 - 20, 2016

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

In the post on Sunday 8/14/16 we noted you don’t even have to be disabled for ADA protection – remember “record of” and ‘regarded as” prongs! The employer, a blood bank, placed an employee on a deferred donor list when it found he had an active blood infection. After learning of that, the supervisor fired him. The EEOC sued for ADA violation for a perceived disability or record of disability. (And to make it worse, subsequent tests showed the employee did NOT have the infection.) The employer settled the suit with the EEOC for $60,000 and other relief (noted in the post). 

TAKEAWAY: The most common use of the ADA is indeed for an actual disability, but keep in mind the other prongs too to keep you and your business out of legal trouble.

The post on Monday 8/15/16 was about a manager being fired after giving out best butt award. Yes these things really happen! A female server at a bar-restaurant chain was given a “best-butt” award by her manager at a company party in front of 50 co-workers. She was then asked to turn around so they could take pictures of her behind. The manager was subsequently “awarded” a discharge and the owner ordered company-wide sexual harassment training. See the post for more details.

TAKEAWAY: An employer can’t unring a bell, but quick action to show the action was not condoned goes a long way toward preventing suit by the employee subject to the untoward (and possibly illegal) action.

In the post on Tuesday 8/16/16 we noted sick leave? Ok to ask for doctor’s note. Employees are not entitled to complete privacy for medical issues. Here, Danny, a machinist, told a supervisor he needed time off for medical testing. He was out a week. He did email his boss with an update (see the post). When he returned, he was asked for a doctor’s note, but Danny never provided it.  He was discharged for absence without approval per policy. Yep, he sued, alleging discharge for disability. He lost when the court agreed the employer could require medical documentation.

TAKEAWAY: Don’t let employees dictate to you – rather, ensure that your policy requires documentation for any medical-related absence.  

The post on Wednesday 8/17/16 was about 5 best practices to terminate an employee. Let’s jump right to it. (1) Minimize the employee’s embarrassment. This goes a long way to fending off possible suits later. It also allows the employer to remain in control of the situation (see the post for why this is important). (2) Don’t spend time debating the decision with the employee. Instead, explain the next steps. (3) Don’t apologize for the decision. The decision should have valid basis, so there is no reason to apologize. The other 2 best practices are in the post.

TAKEAWAY: It is never easy or fun to discharge an employee, but done right it can be seamless and leave no basis for later suit.

In the post on Thursday 8/18/16 we talked about laws you can use – common condominium questions. More and more people are living in planned communities – those with condo or homeowner associations. The laws in PA governing both are very similar. The Q&A in the post gives some basic information that you might find helpful – for yourself or family or friends thinking about or already residing in a planned community.

TAKEAWAY: It is important to understand the legal rights and obligations of both owners and the Association before buying a house in a planned community. Let us help you.

The post on Friday 8/19/16 asked Words matter at work: is “fitting in” code for bias? Remember not to go in the back door to a place you wouldn’t enter through the front door. “Fitting in” is an example. Adele, an African-American, learned that 2 Caucasian men doing the same job were paid more than she was paid. She complained and her boss put in for a pay raise for her. However, her new supervisor cancelled the request and started other actions (see the post for the pettiness). Adele complained and applied for other positions. The new supervisor nixed it each time, saying she would not “fit in”. Who got the jobs? Caucasian men. Adele sued. The case is still pending, having survived summary judgment.

TAKEAWAY: Make sure workplace decisions, especially those that are adverse, have a sound legal basis. If not, don’t make that decision.

Finally, the post yesterday 8/20/16 noted the ADA allows an employer to reduce an employee to part-time after return from medical leave. So what happens when an employee is out on medical leave and the employer finds out that the duties can be accomplished by a part-time positon rather than the full-time hours the employee had been working? A federal court recently said that is a legitimate business reason under the ADA for changing the work status. There, the employee had sued for violation of the ADA since she was not reinstated to her former position.

TAKEAWAY: Changing a position for a valid business reason while the employee is out on leave under the ADA may pass muster, but it probably won’t when examined under the FMLA. Consult legal counsel before taking any action like that.

Wednesday
Aug102016

ICYMI: Our Social Media Posts This Week – Aug. 7-13, 2016

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

In the post on Sunday 8/7/16 we talked about civility training – rock or hard place: comply with EEO laws or violate the NLRA. What? The 2 seem a bit at odds, with compliance with one resulting in possibility liability under the other. Promoting civility might be interpreted by the NLRB as impeding the ability of workers to discuss the terms and conditions of their employment – and thus be a violation of the NLRA. That doesn’t’ mean employers should give up on civility. Rather they need to draft policies with the NLRA (and the Board’s ever-broadening interpretations) in mind. Some examples of acceptable policies are in the post.

TAKEAWAY: All workplaces – even non-unionized – must keep in mind the broad brush with which the NLRB now paints – and how that may bring color within the lines of existing handbook provisions or policies. Make adjustments before liability attaches.

The post on Monday 8/8/16 was about a suit alleging sexual harassment at a dessert manufacturer – all was not sugar and spice there! Randy filed suit against his former employer and former manager individually. He was hired as a production shift manager in November 2013. A year later, he got a new plant manager, Taylor. Taylor made inappropriate comments, including telling an employee that a camouflage hat would be sexy for her to wear (and other things in the post). Randy complained to local management and HR, and even to Taylor too. Taylor’s response was basically that’s me, too bad, so sad, take it or leave. After another manager quit due to Taylor’s harassment and Taylor directed performance contrary to law or company requirements, Randy talked to Taylor. Taylor then put Randy on a PIP and eventually fired him. I bet you’re not surprised that Randy sued! The company and Taylor are defending on several bases (see the post) including alleging Randy’s work was deficient.

TAKEAWAY: Train managerial personnel – and if they say or do something wrong (or illegal), don’t try to cover it up. Rather, make it right and ensure it never happens again. The cover-up (adverse action) often leads to more liability than the initial behavior would have.

In the post on Tuesday 8/9/16 we talked about the new OT: Beware assumptions about hours. This is oh-so important with DOL cracking down on misclassification (and the need to pay for overtime if appropriate). This refers to the new OT regulations going into effect December 1st. Maybe you’re thinking about converting exempt employees to hourly to avoid paying overtime for all of those hours worked over 40 per week? Read on. A survey showed that employers sometimes don’t know what hours the exempt employees are really working – and that some might actually want to work fewer hours.

TAKEAWAY:  Before the deadline, work through classification and working hours with employees – based any decision on your company’s needs and, if possible, their wishes. You may find out the new threshold doesn’t change anything after all.

The post on Wednesday 8/10/16 was a reminder to train your managers: don’t tell an employee on FMLA leave to “get it together”. When it happened here, it cost the company $500,000. No typo there. Amanda requested – and was approved for – intermittent FMLA leave. After Amanda was out a few days, her supervisor contacted her, said she’d spoken with HR, and was concerned about the time off. The manager then told Amanda to ‘get it together” and take a continuous leave. Amanda then did that. After she returned, the employer took some actions she deemed adverse (see the post) and was finally fired. Amanda sued. A jury awarded $30,000 lost wages, $445,000 compensatory damages, and $25,000 emotional distress. Huge!

TAKEAWAY:  Train managers on what they can and cannot say and do relative to the FMLA and ADA (since they often overlap). Help protect your company.

In the post on Thursday 8/11/16 we noted that the FMLA does not require a warm welcome back to work. Nor must the employer forget about pre-leave work performance deficiencies or talk about them in a courteous manner. In this case, Debra took approved FMLA leave to end Sept. 2014. During the leave, her mother died so her leave was extended. Upon her return, Debra met with the person who took on her job responsibilities while she was out and the admin support person; neither warmly welcomed her or offered condolences on her mother’s passing. They did, however, give her a list of tasks she’d not completed pre-leave that she’d said she would. Debra got upset, stood up, and quit. To emphasize the quit, she took other actions in the post. The next day, Debra tried to retract her resignation; the employer said no. Debra sued for FMLA retaliation and constructive discharge. The post contains the court’s ruling on the employer’s motion for summary judgment.

TAKEAWAY: You don’t have to like your job or the people who you work with; similarly, they don’t have to like you. You just have to do your job properly and work together.

The post on Friday 8/12/16 was about a woman claiming the manager posted photos, derogatory comments during the job interview. Now that’s just wrong! The suit alleges the hiring manager took pictures and posted them on Facebook with less than favorable comments during a job interview. Among other things, the posts refer to her as a slut and imply that she is mentally retarded. Worse yet, comments to the post were racially tainted. Of course, it all started when she shoed for the interview and an employee told the hiring manager there’s “some ‘lil slut out here to see you”. Details are in the post, but they are not pretty. As of July 14th, the manager was still employed by the company.

TAKEAWAY: Managers should be trained so as to keep the employer out of hot water. Even if trained, their actions must be watched as they are imputed to the employer and can result in legal liability if they are illegal.

Finally, the post yesterday 8/13/16 talked about 4 myths encountered by first-time homebuyers. Yes, not everything you read on the internet is true. So what are the myths? (1) Renting is always a bad idea – you’re throwing away money. Not necessarily. Each person’s situation must stand on its own. Don’t overgeneralize. (2) Condos are maintenance-free. Well, sort of. The owner doesn’t have to do a lot of the maintenance or actually find people to do it, but that is part of the periodic dues or assessments paid by owners. The other myths are in the post.

TAKEAWAY: Don’t believe everything you see or hear – especially when it can have serious implications for you financially.

Monday
Aug012016

ICYMI: Our Social Media Posts This Week – Jul. 31 - Aug. 6, 2016

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

In the post on Sunday 7/31/16 we talked about what a prior Fox News discrimination suit shows about Roger Ailes and proving retaliation. In 2008 he sent out a memo reminiscing about times without “petty whining.” Another employee brought suit against Fox back then. She’s complained to Ailes that she wasn’t getting opportunities due to age and gender; he said he’d hire a manager to implement company HR policy. Later she got some things she wanted, but not all and so complained again about discrimination. The next day, the memo came out. Its contents are in the post. The prior case went out on summary judgment in favor of Fox, but is instructive in the current Gretchen Carlson case. The post details the differences.

TAKEAWAY: Prior bad acts can sometimes be used to support discrimination claims – so make sure your company has no prior bad acts.

The post on Monday 8/1/16 was about a farm paying $205,000 to settle an EEOC race and national origin discrimination suit. The suit was filed in August 2014 alleging the employer subjected American and African-American workers to different terms and conditions of employment base don national origin or race. The differences included segregation in buses, work crews, and more detailed in the post. It also alleged the company terminated qualified American or African-American employees in favor of foreign-born workers. The settlement involves 119 workers.

TAKEAWAY: Companies must learn that discrimination is not allowed and they will be made to pay – here it was a six-figure payment plus more.

In the post on Tuesday 8/2/16 we learned a casino settled an age discrimination suit. Spending a lot of chips. $250,000 to be exact. Why were the employees fired? Because they weren’t “young or pretty enough.” The plaintiff women were slot machine attendants at a casino that had just been sold. The new owners/management changed the women’s jobs and fired them. Want more? Apparently managers took pictures of employees and used them to screen out older, less attractive employees.  

TAKEAWAY: Make sure adverse action is legal – and when it’s not, know that the footprints left will be followed.

The post on Wednesday 8/3/16 talked about exactly how NOT to handle FMLA leave. The case in the post shows what NOT to do. Debra was assistant director of the 911 system. She always had good evals and no discipline. When she found out her parents, who lived in another state, needed assistance, she told the employer. A few days later, she was fired, allegedly for poor performance (since she was in the middle of a project at work). Is it any wonder she sued for FMLA interference?!? The employer’s arguments (in the post) were knocked down one by one. Now it calculates damages.

TAKEAWAY: Before you take adverse action against an employee who is requesting or on FMLA leave, make sure what you propose is legal – otherwise you too will pay handsomely.

In the post on Thursday 8/4/16 we learned how the employer’s good notes made it clear why the employee quit. In real estate it’s location location location; in the workplace it’s often document document document. That’s what the employer here did and it won the day! Jan resigned a few days after her supervisor and friend left the company after negotiating a severance package. The friend told Jan about his plans and why he was leaving. Jan then went to HR and complained of mistreatment, requesting a severance package. HR refused. Jan then quit anyway, on principle. But then she sued for constructive discharge, alleging an increased workload and hostile work environment were the reasons. The judge analyzed her claims along with the employer’s written documents and dismissed the case.

TAKEAWAY: Despite the length of time it took to get to trial, the employer maintained documents on meetings and the resignation; that evidence saved the day.

The post on Friday 8/5/16 was about the EEOC settling the first sexual orientation discrimination suit. For $202,500, not peanuts. The suit alleged that a lesbian employee was harassed based on sexual orientation and was fired after complaining about it. The settlement pays $182,200 to the employee and the remainder to an organization working for equality in the workplace. More details are in the post.

TAKEAWAY: Whether or not Title VII encompasses sexual orientation under sex discrimination is the Wild West right now – different circuits are deciding different ways, setting this up for a SCOTUS showdown.

Finally, the post yesterday 8/6/16 told us Norfolk Southern will pay almost $500,000 to settle allegations of race discrimination. Of course another settlement means another case had to be filed to start with … More than 2000 African-Americans will share in the back pay and interest (and 7 non-selected applicants will get jobs).

TAKEAWAY: Race should never be a basis for an employment-related decision. Period.

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