ICYMI: Our Social Media Posts This Week – Mar. 26 - Apr. 1, 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 3/26/17 we issued an alert: court rules age discrimination claims are valid when both candidates are over 40. While this case did not come out of PA, it is still instructive and one to keep in mind. Ordinarily an age discrimination claim requires a claim by someone over age 40 with comparators under age 40 (and the more separation in ages, the better). In this case, the plaintiff, age 58, alleged she was passed over for promotion in favor of a younger (age 50) employee. The employer argued that the employee selected for promotion was better qualified (and, regardless, no suit could lie with them being so close in age and both over age 40). The decision turned on whether the person selected was 'substantially younger" than the plaintiff. The court's analysis is in the post.

TAKEAWAY: Don't wait for a court in PA to hold this way – just don't make any employment decision based on age.

The post on Monday 3/27/17 noted Arby's hit with class action data breach suits – and make sure your cybersecurity has "more meat". Recently, between October 2016 – January 2017, Arby's point-of-sale system was hacked; it contained debit and credit card information for 355,000 customers. Many class-action suits have been filed, one by customers alleging Arby's cybersecurity was lax. Stay tuned to see how these play out.

TAKEAWAY: Data breaches are always a danger when so much is in the cloud – make sure your clouds don't rain your client's sensitive data to hackers.

In the post on Tuesday 3/28/17 we noted that no longer saying good morning or giving a warm welcome could be evidence of retaliation. A groundskeeper at an apartment building sue the employer, alleging disability discrimination and retaliation for filing a complaint with a state agency. The employer asked the court to grant summary judgment, alleging there was no adverse action. On the facts (see the post) the judge granted summary judgment relative to discrimination. However, as to retaliation, things were different; the allegations included that "the general manager of the apartment building 'stopped saying good morning to him'" and others in the post and were enough to get past summary judgment and to the jury.

TAKEAWAY: Remember that the employee does not have to be successful on the underlying discrimination claim to succeed on the retaliation claim – "adverse action" could be very broadly interpreted.

The post on Wednesday 3/29/17 talked about responding to a discrimination charge (and suggested you contact an employment law attorney). If the charge is from the EEOC, then the first "touch" usually will be an email with a link to allow response. But that link may not include the actual charge(s) at first – see the post for how to proceed. Even while waiting to speak to an employment law attorney (which this author recommends), the employer should gather the information and documents (and contact information for people) necessary to respond and offer a defense. Some examples are in the post. The attorney can help draft the response to ensure that it does not dig the employer in any deeper but provides a ladder out.

TAKEAWAY: Don't panic if you receive a charge of discrimination, just gather the necessary information/people and proceed in a way that protects your interests but also shows why the action(s) complained of was/were legal.

The post on Thursday 3/30/17 told us the Judge rules for service in TCPA case regarding calls to number provided for subsequent loan. Yes, the Telephone Consumer Protection Act may apply to you – so make sure you find out if it does. Here, in a case in PA federal court, Crystal applied for federal student loans and authorized various parties to contact her; she provided a phone number. Later, when asking for a repayment deferment, she again authorized contact but gave a different phone number. In 2014, she got more loans and listed a third phone number to the "authorized" list. Navient, the student loan servicer, contacted her using the last number; Crystal requested and was granted an additional deferment. After that, Navient began collection on the first loans (81 calls to the last number in slightly over 3 months). Crystal sued under the TCPA, alleging she did not authorize Navient to contact her on the last number for the first loans. Ruling on summary judgment, the Judge found that the facts (see the post) ran in Navient's favor.

TAKEAWAY: Collections are tricky. Make sure you know your rights under the TCPA when collecting from a consumer.

The post on Friday 3/31/17 said that racist remarks doom summary judgment, send case to trial (or settlement). Here, an African-American employee filed race discrimination and HWE claims. The employer moved for summary judgment (a ruling in its favor). Because of the large number of "offensive' intimidating remarks" – including the "N word" in jokes and stories and others in the post – and allegations of denial of pay raises and promotion by those who made the remarks and retaliation after filing the administrative charge, summary judgment was NOT granted.

TAKEAWAY: The employer can deny allegations all it wants, but they may still be enough to get a case to trial – so make sure you have valid legal support before you or your managerial-level employees take adverse action.

Finally, the post yesterday 4/1/17 asked: Your employee is leaving – how do you safeguard your IP? and was not an April Fool's joke. Data security is the #1 thing on just about every business's plate these days. Data may be protected by common law, statutory law, or contracts law, but even if you win a suit, you may still lost the data and its value to you in the time the suit takes to become final (remember that old saying about the horse being out of the barn?). So don't want for the barn doors to open, plan ahead. Make sure you have proper data security policies, including for BYOD. Think about how to properly train (future) employees and including in any contract or policy the employee's authorization for you to wipe the device upon employment termination and other tips in the post.

TAKEAWAY: Don't be an ostrich on this – data security can make or break your business so do it right the first time!


ICYMI: Our Social Media Posts This Week – Mar. 19-25, 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 3/19/17 was about workplace discrimination and gun rights: the confluence of 2 hot button issues in PA. We suggested you stay tuned. Proposed legislation was introduced to our state legislature to amend the PHRA to bar workplace discrimination based on 'lawful ownership, use, possession, transportation and storage of a firearm" by adding a protected classification for "exercise of self-defense rights". Read the post for more details. Keep eyes and ears open on this.

TAKEAWAY: Currently employees can dictate whether or not guns are allowed on premises and other actions related to or arising out of gun possession in the workplace– that may not always be the case if this legislation passes.

The post on Monday 3/20/17 (the first day of Spring!) reminded us that paid leave can be an adverse action – watch out! Huh? Not being able to work and move ahead in a career can be harmful. In this case from PA, Kevin left his FBI job to work for former AG Kathleen Kane. She soon accused him of spying on her for the FBI. Then other accusations followed (see the post for details). He went out on approved FMLA leave and then, when he requested additional leave, that too was approved. However, when he wanted to return to work, he was put on paid leave. He eventually sued. The post contains the outcome of the suit (hint: it has a twist …).

TAKEAWAY: Paid administrative leave can indeed be considered an adverse employment action so use it carefully. (Also see the tip at the end of the post re FMLA leave.)

In the post on Tuesday 3/21/17 we found out that despite the new Administration, the EEOC maintains its position that Title VII prohibits gender identity discrimination. Aimee, a transgender woman, told her funeral home employer of her gender identity and intent to transition. She was terminated (despite adhering to the dress code). She filed an EEOC charge and it finally sued on her behalf (the several bases are in the post). The trial court denied the funeral home's motion to dismiss, finding a cause for sex-stereotyping (but not gender identify discrimination). It later granted summary judgment to the employer based in part on RFRA. The EEOC appealed the case to the federal Circuit Court, asserting that Title VII includes general identity discrimination and RFRA is not a defense.

TAKEAWAY: The issue is pending (and winding its way to the Supreme Court) but as of now, the official Administration position is that gender identity discrimination violates Title VII – so on that basis alone don't do it.

The post on Wednesday 3/22/17 told us that SCOTUS punts, saving transgender rights for another day. The bathroom case, as it is often referred to. The federal appellate court had ruled in favor of the student and the case was appealed to (and accepted by) the Supreme Court. However, since the ruling was at least in part based on guidance from the DOJ and DOE that has since been withdrawn under the new Administration, the Supreme Court sent the case back for another look in light of the withdrawn guidance (more procedural details are in the post).

TAKEAWAY: While this is a Title IX case, it will give a probable hint at interpretation of whether gender identity or sexual orientation discrimination is permitted under Title VII; until the matter is finally decided, just don't discriminate against LGBTQ individuals.

The post on Thursday 3/23/17 was about sex teasing, lurid questions and dirty jokes: women fast-food workers targeted. Statistics are clear that a large percentage of women in the fast-food industry are the target of these types of behavior. And that it leads to extreme stress and other issues. Did women know this was illegal discrimination? See the post.

TAKEAWAY: Don't treat someone differently based on a protected characteristic – unless their job performance mandates it, and then have a valid reason for your action.

The post on Friday 3/24/17 talked of a $21,500 settlement in a disability discrimination case – remember the 'regarded as" prong. A medical services provider allegedly fired an employee based on her medical condition. Avid worked there as an outreach-enrollment coordinator. She had undergone a post-offer, pre-employment physical. Despite the doctor advising a medical hold, she began to work. Later she was fired based on the doctor's recommendation. Was there proof of a disability that prevented her from performing the essential functions of her job, with or without accommodation? Nope. See the post for more details.

TAKEAWAY: Don't take adverse action against someone based on what you think is a medical condition that will affect the ability to perform the job's essential functions; wait until (alerted or) asked about an accommodation.

Finally, the post yesterday 3/25/17 asked: Does the NFL combine violate the ADA?   I bet you never thought about it in those terms, right? Now you will never think about it in any other way. So the combine is when the best college football players eligible for the NFL draft try out: actual workouts, medical testing, interviews, and psych testing. Any problems can affect if and when the player is selected, thus hitting the pocketbook. So is this in reality an ADA violation since it is a pre-offer IME and adverse action based on a potential disability? Perhaps. But the post has the NFL's (defensive) reason for the purpose of the medical testing

TAKEAWAY: Was the ADA intended to apply to pro football? It doesn't matter if a court of final decision decides that it does, so be careful in other areas you think might not be touched by the ADA.


ICYMI: Our Social Media Posts This Week – March 12-18, 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 3/12/17 we noted that a gentlemen's club agreed to extend a settlement agreement in an EEOC race discrimination suit. Ok, so the adult-entertainment employer had an agreement in place with the EEOC to resolve allegations of race discrimination and retaliation. Bad, right? Wait, then it allegedly violated the terms of the settlement agreement and the EEOC filed for contempt. I know you want to know what it did to "earn" the suit in the first place. It (allegedly) subjected African-American entertainers to arbitrary fees and fines, forced them to work less lucrative shifts, and excluded them from company advertisements. Other allegations are in the post (and are not pretty). As part of the settlement of the underlying suit, the company had to pay $50K to the affected employees plus other injunctive and other relief; it made the payment, but that's it. To resolve the contempt request, the earlier settlement agreement was amended (as noted in the post).

TAKEAWAY: Ok, you messed up, did something that is illegal and entered a settlement agreement to resolve it. Don't make things worse by violating the settlement agreement – that is just asking for a heap of trouble (and financial stress and bad publicity …).

The post on Monday 3/13/17 talked about accommodation and the ADA: who is qualified and what is reasonable? Whether or not attendance is a job requirement and unpaid leave an accommodation under the ADA are valid questions. There is no question that unpaid leave IS a reasonable accommodation if the person intends to return after treatment/recovery. Also, modification of a no-fault attendance policy may be required as an accommodation – see the post for details. The post also gives an example of when attendance on the job is an essential function and inability to attend makes the person unqualified.

TAKEAWAY: Once things move from the FMLA into the ADA arena, or even if they start there, make sure the employee is eligible for protection and then approach the accommodation itself with an open mind.

In the post on Tuesday 3/14/17 we noted the EEOC urges the court to toss the AARP wellness program lawsuit. Remember that the EEOC issued final rules this past May permitting employers to assess penalties against workers refusing to participate in wellness programs (and provide medical and genetic information)? Well, AARP sued, alleging the rules violate GINA and the ADA and increase the risk of age discrimination. December brought a ruling refusing to put the rules on hold but allowing the suit to go forward. Some interesting tidbits: the EEOC's position in this suit is opposite that it had taken earlier and it has alleged that AARP has no standing to bring the suit.

TAKEAWAY: We don't know how much weight deference to the Agency will carry, nor the effect of any ACA repeal, but the outcome (if it gets one) will have a far-reaching impact.

The post on Wednesday 3/15/17 told us that yes Virginia, age discrimination is alive and well. And it's worse for women than men. Ugh. These things have been asserted in many ways for many years, but now there's statistical proof: a study by the San Francisco Federal Reserve from a nationwide field test. The post gives background information including the age groups used and how the test was run. The "double standard of aging" is mentioned in the post too.

TAKEAWAY: Don't take age into account when making employment decisions. Period.

The post on Thursday 3/16/17 provided 11 tips to avoid employment lawsuits. Are there just 11 ways to avoid suits? Of course not, but the 11 in the post are good ones. So what are they? The first is to hire a good HR person – and make sure that person knows his or her stuff! Next is if you can't hire an HR person, have someone on call to respond to these issues, whether HR consultant or attorney or someone else. Third, you as the owner (or manager) should be at least passingly familiar with applicable laws, including what is or is not considered discrimination and harassment and what the company can or cannot do in response to an employee committing such acts. The other 8 tips are in the post (you didn't really think I'd review all 11 here did you?).

TAKEAWAY: Being the defendant in a lawsuit is no laughing matter - and can be quite costly in terms of human time, financial resources, and effect on your reputation. So take steps to avoid that situation.

The post on Friday 3/17/17 noted that a lawsuit claims age discrimination at Fiat Chrysler – again. Yes again. For the second time in two months. The allegations this time are that Fiat mistreats older employees during evals which results in lower pay and fewer promotions than younger employees. To buttress the argument, the suit claims that employees' pictures are used during evals, such that upper-level managers who rarely if at all work with the employee being evaluated has the photo at eval time and this leads to lower evals for older employees, even if the intermediate supervisors have given high marks. Read more of the background and supporting data in the post. Fiat Chrysler of course denies the allegations.

TAKEAWAY: Use only valid data when evaluating employees, not extrinsic things that are irrelevant and might subject you to a suit like this.

Finally, the post yesterday 3/18/17 told us about one time you don't have to give FMLA notice. You already know that you have to tell an employee about his or her rights under the FMLA if it might apply (and especially if s/he asks about those rights). But does it make a difference if the employee has already been off on FMLA approved leave? Yes (at least in the case in the post. There, Georjane was a Delta Airlines flight attendant. She violated a rule and was terminated; after treatment she was reinstated under a last-chance agreement. She then violated the call-in policy (by not notifying Delta soon enough that she was too tired after caring for her mother) and, due to the last-chance agreement, was again terminated. She brought suit under the FMLA because Delta didn't tell her about her FMLA rights. Delta's defense was successful: since she had already taken FMLA leave, she knew how to ask for it and take it and didn't need notice each and every time. The post also mentions the other reasons the termination was upheld – and that harkens back to our 3/9/17 post on the same subject).

TAKEAWAY: You do need to make sure an employee is aware of his or her rights under the FMLA and ensure that the process is followed, but once the employee is aware, you may not need to tell the employee again.


ICYMI: Our Social Media Posts This Week – Mar. 5-11, 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 3/5/17 we talked about anxiety, absenteeism and the ADA – what to do. While an employer must reasonably accommodate a qualified employee, there might be times when no accommodation is possible. Therefore, the employee is unable to perform the essential tasks, even with accommodation, such that the employer may discharge the employee. A recent federal case showed how this works. Williams was a customer service rep for AT&T who had depression and anxiety attacks that caused her to miss work a lot. She was terminated for job abandonment and violation of the attendance policy. She sued under the ADA. On appeal, the court first noted that regular attendance was an essential job function and, given her record (detailed in the post), she could not perform that function and needed accommodation. The next step was whether AT&T failed to offer a reasonable accommodation. The court said that the little information Williams had provided did not meet her burden (and worked against her as in the post). The court ended up finding neither discrimination nor retaliation.

TAKEAWAY: Whether mental or physical disability, make sure the essential functions of the job are clearly spelled out in writing, then make sure the employee can perform those functions with or without reasonable accommodation. If not, then you can terminate. TO make sure you don’t fall into a legal quagmire, consult your employment law lawyer.

The post on Monday 3/6/17 was about how to be sure you received all documents for your home in a planned community (condo or HOA). As more and more people live in planned communities (whether condominium or detached homes), it is important to be sure that you know the rules and regulations (and statutes) that govern that community BEFORE moving there. By law in PA, the builder must give specified documents to the potential buyer; likewise, any other seller must give the documents listed in PA law to the potential buyer. The post gives some examples there.

TAKEAWAY: As either seller or buyer, know what PA law requires you to give or receive to avoid the potential sale becoming unraveled.

In the post on Tuesday 3/7/17 the suit's $155M question: is a law firm partner an employee? This has implications beyond law firms too so keep reading. The law firm is subject to a pending class action alleging gender bias (that it discriminated against female partners). The firm is alleging that she is not an employee and therefore Title VII and the EPA do not apply. She countered that there is a difference between partners and management – and most of the former are not part of the latter, hence they are employees. More details are in the post.

TAKEAWAY: Remember the Clackamas Gastroenterology Assoc. case mentioned in the post and the factors listed there when trying to determine if someone is an employee or owner. Be careful (or you might be sued).

The post on Wednesday 3/8/17 was about how to deal with homeowners who fail to pay assessments (and a suggestion that you let us help you). Why do you as a homeowner care? Because the more people in your community who don't pay their dues, the more you end up paying to cover that shortfall – the expenses don't decrease, just the income. The post gives more details on some suggested processes to have in place to avoid this. It also mentions what might happen if the person files for bankruptcy protection.

TAKEAWAY: Make sure there are processes in place for when people don't pay their dues – and that the Association works with an attorney who can step in if and when the owners who owes money files for bankruptcy protection.

The post on Thursday 3/9/17 told us that employers can enforce call-out policies, even for FMLA leaves. What does that mean? Even if an employee is out on approved FMLA leave, s/he must still follow the employer's call-off policy unless there is an unusual circumstance that prevents it (and then s/he must do what the policy requires as soon as possible). The employee's failure to follow the call-off policy enables the employer to discipline the employee per its policies, up to and including termination (if the policy permits). The post gives a recent example. Kellogg had a call-off policy; failure to comply results in points being assessed. At 8 points, the employee is put on probation and at 9 points, discharged. The policy excuses FMLA-related absence, but still requires employees on those leaves to call in, Alexander had complied with the policy in the past but did not this time; he got points. When he was again absent and failed to follow the call-off policy, he got more points and was discharged for exceeding the limit. He sued for FMLA interference and retaliation. The trial court granted summary judgment for Kellogg and he appealed. On appeal, the court again ruled in favor of Kellogg – the reasons are in the post.

TAKEAWAY: From the employee's perspective, make sure you follow all call-off policies, even when on FMLA leave, or your job could be in danger. From the employers' perspective, make sure employees, even those on FMLA leave, follow all call-off policies or take the steps outlined under the disciplinary policy.

The post on Friday 3/10/17 was an update: the judge declared a mistrial in the Texas Roadhouse discrimination case. Hopefully you have bene following this: the EEOC sued Texas Roadhouse for age discrimination. Now, a jury failed to reach the required unanimous decision, so the judge declared a mistrial. That means the case will be re-tried beginning May 15th if the parties don't settle before then. The background of the suit is in the post including the EEOC's allegations and Texas Roadhouse's responses/defenses.

TAKEAWAY: One big reason this case is important to everyone is that it did not result from a complaint by a (former) employee, so this might set precedent.

Finally, the post yesterday 3/11/17 was about a discrimination lawsuit against a DA – even lawyers are subject to the law. The District Attorney says he fired 2 female employees because a third told him they were plotting to get their supervisor fired (and for other reasons in the post). They say the firings were illegal discrimination based on sex, hostile work environment (HWE) and retaliation. The case (as noted in the post) provides a good reminder of the burden-shifting scheme in a discrimination case and how it played out here. The county approved a settlement with the plaintiffs and extricated itself from the case.

TAKEAWAY: Make sure any supposedly legitimate reason given for an adverse action is not really pretext – and that it will hold up in court if necessary.


ICYMI: Our Social Media Posts This Week – Feb. 19-25, 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 2/19/17 we said that good records help win discrimination cases. The post details an example where good records helped boost the employer's defense against a race and age discrimination complaint.

TAKEAWAY: We've said it before, and we'll say it again (snd again even later in this blog): document document document. Not just documents, though, but good ones.

The post on Monday 2/20/17 was timely: employees learned harsh lesson about right to work laws after skipping work to attend immigration rally. "A Day Without Immigrants" rallies were held around the country recently to raise awareness (and in some cases to protect). For 18 employees, however, their awareness of the state's right to work status was heightened. The post gives more details, but they learned that the company was within its legal rights to terminate their employment.  

TAKEAWAY: Pennsylvania is also a right to work (or at-will employment) state, meaning that employers can fire employees without reason and without notice (as long as there is not an illegal basis for the termination). This should be kept in mind as an employment relationship progresses.

In the post on Tuesday 2/21/17, we learned a clothing retailer must stand trial for firing a bra-less boss. Yes we live in a strange world! A court said that a female regional manager fired after complaining that subordinates spread rumors that she let a top male exec see her breasts can proceed with a retaliation claim. Rochelly did not dispute that when she met with the CEO, she did not wear a bra. What she denied, however, was that she showed him her breasts. The employer issued a written disciplinary warning to a female employee who gossiped about the matter. The alleged basis upon which she was fired, and the judge's reasoning in allowing the case to proceed, are in the post. Keep your eyes open as this case moves forward.

TAKEAWAY: Keep in mind that a retaliation suit does not necessarily require the underlying claim to be found valid in order to proceed.

The post on Wednesday 2/22/17 noted that Fidelity responds to age discrimination allegations. We say it's never clear-cut. Here, Thomas alleged in his suit that Fidelity Brokerage Services fired him without explanation and replaced him with a younger worker. Thomas had about 30 years' experience in the industry and had been working for Fidelity about 5 years. There is a dispute over how Fidelity requires consultants to handle work on accounts – see the post for the options.

TAKEAWAY: If you are taking adverse action against an employee age 40 or older -- especially if that person is being replaced by someone younger than 40 -- make sure there is a valid legal basis for the adverse action or you may find yourself in legal quicksand.

The post on Thursday 2/23/17 says to document every ADA accommodation (it may save your neck one day). It is great that you grant accommodation to disabled employees, but make sure to document what was done (or not done) and why. You might need those notes later if someone claims the disabled employee was treated in a preferential manner. An example of this is in the post and shows how documentation can support the employer (and end a suit quickly in its favor).

TAKEAWAY: Document, document, document – what was requested, by whom, when, the response, and the basis for the response.

The post on Friday 2/24/17 asked: Think your temp is just your temp? Think again – s/he may be your employee! Joint employers are the "thing" now, an extension of an NLRB ruling and the way protections for employees are broadening. It all depends on how much, and what, control you exert over the person placed at your workplace by the temp agency. If you are found to be a joint employer, then you are responsible for all obligations of an employer under all applicable laws. So too is the temp agency. Some of the factors to be used in determining if there is sufficient control to hold one to be a joint employer are in the post. Likewise, there are arguments both in favor of giving a temp worker a copy of your handbook (as in the post) and against it too (because arguably it doesn't apply to one not an employee). For more, see our post from Saturday 2/18/17 on this subject.

TAKEAWAY: Be careful how you treat temporary workers – they may legally be treated as employees whether or not you want them to be.

Finally, the post yesterday 2/25/17 was about turning an FMLA request into one under the ADA – just like magic! A recent decision by the Third Circuit Court of Appeals, which governs PA, is both good and bad for employers. The good is that an employer's honest belief that an employee misused FMLA leave can defeat a retaliation claim, even if the belief turns out to be incorrect. The bad is in the post

TAKEAWAY: As we've said in several prior posts, don't look at the FMLA in a vacuum. Take into consideration other applicable laws, including the ADA, too.


ICYMI: Our Social Media Posts This Week – Feb. 12-18, 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 2/12/17 we heard about Costco being hit with a $250,000 verdict in customer harassment suit. Huh? A female former employee was sexually harassed by a male customer for over a year and now Costco has to pay. She alleged Costco didn't do enough to stop the harassment -- he even told store employees about his contacts with her -- and the jury agreed. More details and background are in the post and make interesting reading.

TAKEAWAY: Employers have a duty to ensure that employees are not the victims of harassment – be it from co-workers or customers. Make sure to fulfill that responsibility or you will find yourself on the wrong end of a suit.

The post on Monday 2/13/17 was a reminder to properly communicate wage agreements to avoid misunderstanding, lawsuits. We noted that in writing is best. This is not a trifling matter (for the attempt at humor, see the post), but can have an effect on overtime calculation. Having a written agreement as to how it will be calculated can obviate any later problems.

TAKEAWAY: It is always best to get the terms and conditions of employment in writing, and that holds true for overtime pay calculations.

In the posts on Valentine's Day, Tuesday 2/14/17, here and here, we sent heartfelt wishes for a wonderful and legal day.

TAKEAWAY: Sometimes a break from the substantive is warranted to just refresh.

The post on Wednesday 2/15/17 talked about 3 very real forms of discrimination employees face at work. The first is what is sometimes called "part-timer discrimination". It refers to different treatment visited on those working part-time hours. The discrimination may also take the form of retaliation. The second type is family responsibility discrimination. This often hits working mothers but could include denial of family leave requests by either parent, failure to hire due to pregnancy, and adverse treatment of those who care for elderly parents. The third type of discrimination is in the post.

TAKEAWAY: Unfortunately discrimination still exists in the workplace – employers should take all steps possible to eradicate it (which boosts employee morale and protects the employer from costly charges and suits).

The post on Thursday 2/16/17 was about a man suing Lowes for FMLA violations and wrongful termination. John started working at Lowes in March 2012. He said he always suffered from sleep apnea and that, as a result, he sometimes overslept and was up to 5 minutes late for work. John says that Lowes had medical documentation of his condition and need to use FMLA leave to cover the tardies. In Fall 2015, a manager asked John about the tardies; he described his medical condition but the manager told him to arrive on time. Then other potentially discriminatory things happened or were discovered; they are in the post. In May 2016, he was discharged. He filed suit for violations of the ADA, FMLA, state law, and wrongful termination.

TAKEAWAY: Train managers on how to deal with the employer's obligations under the ADA and FMLA – failure to act properly subjects the employer to possible suit.

The post on Friday 2/17/17 told us of an autistic man suing Chick-Fil-A on claims of discrimination. Even the headline doesn't sound good. Suit was filed on claims of a refusal to hire based on the disability. James alleges that the manager told his job coach that the employer "was not interested in hiring people with disabilities" and more in the post. Chick-Fil-A didn't even know if James was qualified to do the job, with or without reasonable accommodation. Ugh.

TAKEAWAY: If an applicant or employee has a qualifying disability, don't take adverse action at the outset – ask if the person can perform the job's essential function with or without accommodation and, if necessary, start the interactive accommodation process.

Finally, the post yesterday 2/18/17 highlighted an article in which Sara Austin was quoted relative to contingent workers. If you're not sure what that term means, or the potential legal ramifications, see the post.

TAKEAWAY: Know the law as an employee or employer. Sara Austin and Austin Law Firm can help you.


ICYMI: Our Social Media Posts This Week – Feb. 5-11, 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.

The post on Sunday 2/5/17 was about the employer, not the staffing firm, being on the hook for a possible ADA violation. Yes you read that right. So what happened? Two job applicants, Katelynn and Tia, sought employment through a staffing agency. They were interviewed and given badges for their job with the employer. When they asked for information, a supervisor allegedly did not respond due to their hearing impairments. Their badges were then taken back and the job rescinded. More details are in the post. The EEOC sued. The employer defended on the basis that it had no duty to provide an ASL interpreter as the staffing agency, not it, was the employer. The court ruled against the employer on summary judgment, saying it was the real prospective employer (and thus had a responsibility under the ADA to accommodate). The post also has more details on record evidence supporting the judge's ruling.

TAKEAWAY: Just as the ADAAA broadened the rights of disabled employees, so too who is an employer is broad – it is probably safest to deem yourself the employer for accommodation purposes and proceed accordingly (or be prepared to defend yourself in a costly suit).

The post on Monday 2/6/17 was about a former employee with Asperger's claiming discrimination by the County. Robert first filed a charge with the EEOC, and, after receiving his right to sue notice, filed suit against Camden County. He alleged violation of both the ADA and FMLA by the County not providing proper accommodation and then retaliating against him. The post goes into more details, including allegations that the County knew of Robert's mental impairment from the time of hire. The County denies all allegations. Stay tuned!

TAKEAWAY: If there is even a whiff that an employee might need accommodation under applicable law, go down that path early – don't wait until suit is filed.

In the post on Tuesday 2/7/17 we talked about a Sikh doctor filing a religious discrimination suit against a potential employer. Yes, potential employer! Here, the suit was filed in federal court alleging that Dr. Singh is an observant Indian American Sikh who maintains a turban and beard for religious reasons. It also alleges that he was denied employment when those 2 things were questioned. (Check out the post on the employer's stance before and after it found out about his looks and religious beliefs.)

TAKEAWAY: Outside of places of worship or related educational institutions, religion probably has no place in the workplace – don't let it be the basis of any (adverse) decisions.

The post on Wednesday 2/8/17 was about Charters Community Health being accused of retaliation over FMLA leave. Ugh. Nancy alleges in her state-court filing in Pittsburgh that the employer forced her to accept a demotion or to resign as a result of taking FMLA leave. The actual details are in the post. She has requested a jury trial.

TAKEAWAY: Even if there is a valid, legal basis for adverse action, the timing or coincidences can make it appear illegal; look at all of that prior to the action.

In the post on Thursday 2/9/17 we noted a manufacturer is not insulated from charges it underpaid a Latina supervisor. Rather, the employer will pay $60,000 to settle an EEOC suit brought for discrimination against an Hispanic supervisor. The suit alleges that she was paid less than male counterparts (and other grounds noted in the post).   

TAKEAWAY: Watch the EEOC's priorities – including national origin discrimination and overbroad English-only policies - and stay out of the cross-hairs.

The post on Friday 2/10/17 was about the Union & Ameridrives International being accused of violating a man's FMLA rights. This suit alleges violation of the (LMRA and) FMLA. Steven sued in federal court alleging that his discharge, after taking advantage of his rights under the FMLA, was pretext. The post has more specifics on the underlying actions and the basis on which each defendant was made part of the suit.

TAKEAWAY: Make sure any adverse action is legally supported and, in the labor context, the Union fulfills its duties to member employees.

Finally, the post yesterday 2/11/17 was about the top 10 things to know about bankruptcy. Every business should know these basics due to the prevalence of bankruptcy filings and their wide-ranging impact. Some of the things to know about are the types of bankruptcy, the automatic stay, what a proof of claim is, the purpose of the creditor's meeting, the priority of any payments to creditors, the effect of a discharge (if the debtor is an individual), what are executory contracts and how they are treated in bankruptcy, and preferences and how they can impact you. More detail about each of those is in the post.

TAKEAWAY: It is almost never a good day when you get a notice that a person or company who owes you money has filed for bankruptcy protection; contact us to help protect your interests, including ensuring you get any payment to which you are legally entitled.


ICYMI: Our Social Media Posts This Week – Jan. 29 - Feb. 4, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – Jan. 22-28, 2017

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

In the post on Sunday 1/22/17 we suggested you get permission to kill employees' phones – and make it part of your BYOD policy. You have a BYOD policy, right? So make sure it grants authority for the employer to remotely wipe the phone if and when appropriate. Get the employees' permission in writing. Read the post.

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – Jan. 15-21, 2017

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

In the post on Sunday 1/15/17 we talked about a man alleging a fall in a non-ADA compliant Winn-Dixie bathroom. He alleges he tried to enter the stall with the store-provided scooter, but the scooter would not fit through the doorway. He then tried to stand up and walk in, but fell and was injured (hence the suit). More details are in the post.

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

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

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

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

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

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

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

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

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

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

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

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

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

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