Monday
May092016

ICYMI: Our Social Media Posts This Week – May 8 - 14, 2016

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

In the post on Sunday 5/08/16 we learned the EEOC filed the first suits for sexual orientation discrimination. The time has come! Federal law does not specifically protect LGBTQ persons from workplace discrimination or harassment. However, the EEOC ruled that discrimination on the basis of sexual orientation is sex discrimination and therefore illegal. Now it’s backed up its talk with a walk (to the courthouse). One of the first 2 cases were filed against a Pennsylvania-based employer, Scott Medical Health Center, alleging that a gay male employee was repeatedly harassed based on his sexual orientation, including his manager calling him anti-gay epithets. Ugh. More details are in the post.

TAKEAWAY: The Supreme Court told us that marriage between persons of the same sex is legally cognizable; now let’s see what courts do with the EEOC’s interpretation of sex discrimination as including sexual orientation.

The post on Monday 5/09/16 noted a federal contractor was sued over alleged hiring discrimination against women and people of color. This NY company with over $46M in federal contracts is in hot water again, this time for allegedly discriminating in hiring practices as against Asians, blacks and women. The suit alleges B&H hires only Hispanic men for entry-level positions in the warehouse while promoting and compensating white workers at higher rates than Hispanics. More allegations are in the post, including denial of equal access to clean, functioning bathrooms. B&H denies the allegations, including that it has no bathrooms segregated by race or religion. Time will tell as this winds its way through the system.

TAKEAWAY: Federal contractors have some anti-discrimination obligations that private-sector employers do not – be careful of what you do (or don’t do) and against whom to stay in compliance.

In the post on Tuesday 5/10/16 we asked: Are you discriminating against older employees without realizing it? Yes, it might be true. The post highlights some things that may not quite be illegal (or could be), but still might be discriminatory against older employees, including using the word “overqualified” to mean “old”.

TAKEAWAY:  Don’t use the term “overqualified” unless you truly mean the person has more or better skills than are required for the job – and nothing more. A younger person could be overqualified too.

The post on Wednesday 5/11/16 told us a Yelp tweet about a fired employee could spell legal trouble. A former Yelp employee posted something on socmedia, alleging that she was fired after asking for time off to care for a sick boyfriend. Nothing strange so far, right? Wait for it. Yelp then replied on socmedia, with details! See the post. Not only did that make their lawyer cringe, it may have gotten Yelp in legal trouble for violating one or more laws. Further, since she denies some of the information in Yelp’s reply, there could be a defamation claim in the works too.

TAKEAWAY: While it can be difficult, an employer does not have to respond to public comments or allegations about its actions – and often it should not in order to stay on firm legal footing.  

The post on Thursday 5/12/16 was about the firing by KFC of a manager who discriminated against a transgender employee.  Our recent post on the underlying incident was here. KFC made the right decision by firing the manager who acted illegally. KFC also hired the employee (again). A good ending.

TAKEAWAY: All companies want to be known, but not for illegal actions – here KFC publicly did the right thing to remedy discrimination practiced by one of its managerial staff. Kudos!

The post on Friday 5/13/16 asked Is Hispanic is a race (a federal court says yes). In short, a white, Italian-American employee sued after being denied a promotion given to a white, Hispanic employee. A jury agreed with him to the tune of $1.35M.  The verdict was upheld on appeal with the ruling that “Hispanic” does indeed refer to a race under Title VII. Details of the case are in the post, but this case broke new ground in broadening and defining the meaning of race under the statute. The decision noted that “Hispanic” has always been deemed a race in reference to Section 1981 cases, then here brought that definition over into Title VII (to sit alongside national origin, which is not covered under Section 1981 and under which “Hispanic” might also fit).

TAKEAWAY: It’s risky to assert new legal ground as a basis to justify what could be an illegal action – the obvious, best course is not to take the potentially illegal action in the first place.

Finally, the post yesterday 5/14/16 told us that SEPTA dues over an ADA project. A borough in Bucks County, PA, has a $36M project to bring its bus station into ADA compliance. SEPTA is all for that. What SEPTA is not all for are issues with fees and regulations. SEPTA asked to be treated like Amtrak (which would exempt it from many fees and regulations). Stay tuned!

TAKEAWAY: Even doing the right, legal thing might not make you immune from suit – just keep that in mind.

EXTRA: on 5/14/16, we posted (here and here as but two examples) congratulations to Sara A. Austin on becoming the 122nd (and only third female) President of the Pennsylvania Bar Association! It is worth taking a minute to check out the video of the procession leading her to the podium.

Monday
May022016

ICYMI: Our Social Media Posts This Week – May 1-7, 2016

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

In the post on Sunday 5/01/16 we asked: Could lunch periods count toward the FMLA hours eligibility criterion? Quite possibly. The case profiled in the post shows just that. Gus was scheduled to work 11-7 with a ½ hour lunch break. He never took the lunch break, but instead worked through it, eating at his desk. He never explicitly told anyone he was doing that, never got permission, and was never told not to. When he asked for FMLA leave, he was told he had not met the 1250 hour threshold. His calculations, including the lunch periods he’d worked through, indicated he had exceeded the threshold. He took time off, was suspended, and eventually discharged, after which he sued. The employer argued that it did not condone him working through lunches and even his time sheets didn’t request pay for doing so. More details are in the post. The court said it was the employer’s burden to know what its employees were doing and make sure it did not work if he wasn’t supposed to. The time worked through lunches was counted.

TAKEAWAY: Courts often side with an employer that has not knowingly permitted an employee to work certain hours, but on the off chance a court looks at the situation differently it is best for employers to keep track of what employees do and when they do it. Not knowing that information could make an employee eligible for FMLA protection earlier than the employer thinks will occur.

The post on Monday 5/02/16 noted it’s not just for employers: supervisors can also be sued for FMLA violations. Yep, personal liability. And ignorance of the law is no defense. As the post notes, liability turns on how “employer” is defined. So how could a supervisor get on the hook, even unintentionally? A common method is by discouraging an employee from taking FMLA leave by stray comments or not knowing procedures. The post talks about some of the things encompassed by the FMLA so that employers – including managerial employees – know what to look for; the post also lists other laws which, if violated, can lead to personal liability for supervisors.  

TAKEAWAY: When it becomes personal people pay more attention; whether looking to liability of the company or a manager, don’t violate any laws and you won’t have to worry about liability.  

In the post on Tuesday 5/03/16 we learned the feds sued a NYC electronics store for discrimination. The suit alleges that B&H Foto & Electronics Corp. only hired Hispanic men for entry-level laborer jobs, excluding females and most African-American and Asian applicants. The suit also alleges that Hispanic employees were subjected to racist and degrading remarks, paid at a lower rate, and more (yes, even more; see the post). The suit seeks wages, promotions and other lost benefits related to employment. There was no comment from the employer, the largest non-chain photo and video equipment store in the US. Note: the post says that this is not the first legal problem for B&H – the EEOC monitored its hiring and wage practices from 2009-12 as part of a settlement in a prior discrimination case (in which B&H also paid $4.3M to 149 employees discriminated against for being Hispanic).

TAKEAWAY: Illegally discriminating once – stupid. Doing the same or a similar thing twice – beyond belief.

The post on Wednesday 5/04/16 was about how to stay in touch and within legal bounds in the age of BYOD. We explored the various means of communication in this day and age where communication methods seem to change daily (or more frequently). Employee education and training, along with internal communication policies, are highly recommended. The post talks about the types of susceptible communications, which departments or groups may be more prone to issues, and some suggested solutions.

TAKEAWAY: Having a policy on communication, especially involving BYOD, and properly implementing it are key for every business entity today.

In the post on Thursday 5/05/16 we learned of a woman who sued a dental office for pregnancy discrimination and violation of privacy. Ada, a student in a dental assistant program, started an externship at Western Dental & Orthodontics. She was told by her adviser and Western Dental’s office manager that a successful externship would probably result in a job. On Day 1, Ada was told by the managing dentist that the externship was akin to a “four to six week working interview”. She alleges she performed well. But then she overheard a conversation between 2 employees discussing whether Ada was pregnant; it came up because a third employee had supposedly looked through Ada’s purse and found prenatal vitamins. A week after that, the one of the employees, a supervisor, told Ada there was no longer an opening in the same office but there might be one in an office twice as far away. Ada told her adviser that she’d been passed up due to pregnancy. The post gives more details. On the externship’s last day, Ada was given a farewell party and cards for her pregnancy – which Ada had not announced and which was not obvious as she did not yet show. The supervisor told Ada to check back on possible openings after she delivered. Coincidentally, Ada saw online job ads for a dental assistant at the same office she’d been told did not have an opening. Is it any wonder why she sued?

TAKEAWAY: If a situation will look fishy, an employer should take pains to ensure it is legal and aboveboard – otherwise it is the employer which could be subject to the pain of a lawsuit.

In the post on Friday 5/06/16 a Virginia woman claimed KRC fired her for being transgender. Hired and fired within an hour – is that a record? If so, KFC is not a proud record-holder. Georgia Carter says that shortly after hiring her, the KFC manager called her back, confused by her driver’s license which listed her as a male. The supervisor then told Georgia KFC couldn’t hire her as it didn’t know which bathroom she could use. More details are in the post (including that KFC later fired the manager for discrimination and offered employment to Georgia).

TAKEAWAY: PA is one of the states where discrimination on the basis of sexual identity or orientation is not illegal, but that doesn’t’ make it right. Also, the EEOC now says that Title VII covers this type of discrimination, so PA employers should beware.

Finally, the post yesterday 5/07/16 noted that just because you say so, doesn’t make it so (employee versus contract redux). How many times must we say that labelling someone an employee or a contractor doesn’t mean they legally fit into the classification?!? You know – or should by now – that this is one area in which DOL and the IRS continue to concentrate enforcement efforts. The post touches on the DOL’s mid-2015 interpretation and the factors used by a court in determining employee versus contractor status. The post also contains some suggestions on how to get it right and not just call someone a contractor and wish it to be so.

TAKEAWAY: Some ways to stay out of legal hot water on the classification issue include using legal independent contractor agreements and preparing to give up control.

Wednesday
Apr202016

ICYMI: Our Social Media Posts This Week – Apr. 24-30, 2016

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

In the post on Sunday 4/24/16, we noted: posting beach vacation photos on Facebook during FMLA leave isn’t a good idea. OK, being on FMLA leave does not mean the person can’t live their life. But there’s a limit and it was apparently reached here. Rodney was an activity director overseeing other staff. He took FMLA leave for shoulder surgery and recovery, but still co9undlt return after. The employer granted an additional month off (non-FMLA). Apparently Rodney took many fun trips during the end of the FMLA leave and the following month. He even posted pho9tos from his trips. All good, right? Well, except that some hots were of him swimming (with the recovering shoulder?) in the ocean. More details are in the post. He was discharged after the posts.  The court ruled in favor of the employer (see the post).

TAKEAWAY: FMLA leave does not mean the employee must sit at home twiddling his or her thumbs and doing nothing else. But it does mean that if the employee acts in a way contrary to the reason for leave, the employer can consider taking adverse action.

The post on Monday 4/25/16 talked about workplace retaliation under the FMLA and ADA – just (don’t) do it! This seems like a common sense kind of thing, but … With retaliation complaints increasing in frequency, don’t be on the list of respondents (of an EEOC charge) or defendants (for lawsuits). The post gives more information on what actions may not be taken under the FMLA and ADA; if those actions are taken, they may be considered retaliatory.

TAKEAWAY: Employees are entitled to certain rights under the FMLA and ADA; don’t take adverse action against them for taking advantage of those rights.

In the post on Tuesday 4/26/16 we learned we don’t want to pay $4.7M – EEOC files Supreme Court brief in CRST fee sanctions case. That’s a lot of money at stake – taxpayer money to boot. SO what is at issue? Whether an award of attorneys’ fees is appropriate when the EEOC fails to satisfy its pre-suit investigation duties but the employer was not fully successful on the merits of the case. This all started when the EEOC filed (a presumably class-action) sexual harassment suit against CRST. The trial court granted CRSTs motion for dismissal on the basis that the EEOC had not done any investigation into the specific allegations by the alleged aggreiveds pre-suit – or even attempt conciliation. Thereafter, CRST filed for sanctions by way of attorneys’ fees and costs. Again the trial court ruled in the employer’s favor, awarding $4.7M. Yes. Million. On appeal, the court reversed and remanded (for further determination by the trial court). Details are in the post. After more procedural machinations (in the post), the cert petition was granted late last year. This case was just argued in late March so we should have a decision by the end of June.

TAKEAWAY: The outcome can be important to employers who are fighting an EEOC charge or suit so stay tuned.

The post on Wednesday 4/27/16 was close to home: an ex-worker accused Allied Waste Services of discrimination and harassment. Doug, an African-American male, filed suit in federal court earlier this year. He alleged constant harassment (by his superiors). He also alleges that after a shoulder injury incurred during work, he filed a WC claim and, with permission, used a company vehicle to go to a doctor. The suit continues that he was thereafter discharged for stealing the vehicle, stealing company time and falsifying documents (all of which he denies).

TAKEAWAY: An employer is free to take legal, supported adverse action against an employee – but make sure it is indeed legal and supported in case you have to prove it in court.

In the post on Thursday 4/28/16 we noted that the reason you discriminate against foreign accents starts with what they do to your brain. Yes, occasionally science does intersect with the workplace in a way that can be helpful to employers. Scientists are finding that the way our brains process foreign accents may actually contribute to discrimination. Details on the findings are in the post. Suffice it to say that the foreign accent, especially one we can’t readily understand, results in a lessening of believability which, in turn, may result in discrimination.  

TAKEAWAY: Like many other characteristics employees possess, don’t let a foreign accent be one in which you base adverse behavior or action unless you can prove it is job-related.

In the post on Friday 4/29/16 we asked Does employees’ use of apps lead to violations of workplace policies? This is more of the BYOD saga that employers have been and continue to have to contend with. Many apps supposedly let employees discuss (or complain about) the terms and conditions of their employment (and therefore are presumably protected under the NLRA). However, such comments could lead to wrongful action like bullying or shaming and that, in turn, could turn into illegal harassment or discrimination. See the post for more details on how this might occur. It is early in the game for this type of scenario, but employers should beware.

TAKEAWAY: As with all emerging technology, employers should look carefully at apps and how far they go – or how far employees go when using them – before considering or taking any adverse action.

Finally, the post yesterday 4/30/16, noted that limiting employees’ hours to dodge the ACA’s employer mandate could violate ERISA. Everybody knows about the requirements to provide health insurance (if certain guidelines and criteria are met) and the cost of same to employers. In an effort to reduce that cost, some employers try to reduce employees’ work hours. But this could be a violation of ERISA if the recent case is followed by other courts (and upheld on any appeal). A procedural history of the case is in the post. Turning on the fact that the beleaguered employees already had health care coverage, the court said that there could indeed be a legal violation and denied the employer’s motion to dismiss the case.

TAKEAWAY: Be careful if trying to avoid the ACA mandate – but do so legally and after considering possible outcomes.

Monday
Apr182016

ICYMI: Our Social Media Posts This Week – Apr. 17-23, 2016

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

In the post on Sunday 4/17/16, we noted that restaurants, developers and other businesses face a wave of ADA lawsuits related to parking – and that you should know the law. Here, the suits are about handicapped and van accessible disabled parking spaces. The list of defendants includes McDonald’s and Wells Fargo. The suits allege a violation of the ADA’s requirements for parking accessibility - details are in the post.

TAKEAWAY: If you have public parking, know the law on how many accessible spaces you must have – or prepare to join a list of defendants.

The post on Monday 4/18/16 was about firing someone returning from leave – do it right and legally. This post touches on the quandary of (allegations of) retaliating against someone for taking FMLA leave and not knowing the reason for poor performance issues until the leave occurs. Here, Cynthia supervised 55 employees. While she was out on FMLA leave, many complained about her. When she returned from leave, her supervisor talked to her; her performance improved over the next year, and then in year 2 she received a satisfactory rating even though her performance had slipped some. In 2012, she took FMLA leave and had personal issues to deal with. She didn’t return the FMLA forms, so the leave wasn’t approved. Again there were complaints about her while she was on leave. Her supervisor investigated and met with her upon her return to work. The employer fired her based on poor performance. She alleged gender discrimination and retaliation for using FMLA leave. The post tells you how the court ruled on the suit.

TAKEAWAY:  As we’ve said numerous times, an employer should ensure that it has legal support for any adverse action it plans to take against an employee.

In the post on Tuesday 4/19/16 we noted that reducing employees’ hours could lead to discrimination claims under ERISA. In a first of its kind case, a federal court is allowing a suit against Dave & Buster’s to move forward. The issue is whether the company’s “right-sizing” of its workforce was for the purpose of avoiding healthcare costs under the ACA (and therefore was a violation of ERISA – see the post).  The case was filed as a class action. The name plaintiff alleged that her participation in the health insurance plan stopped as a result of the workforce realignment in an effort to reduce health care costs. Stay tuned as this case moves ahead (and others may follow).

TAKEAWAY: Don’t reduce employees’ work hours to avoid ACA obligations without thinking it through and discussing it with an employment law attorney.

The post on Wednesday 4/20/16 told us that Cessna Aircraft Company will pay over $160,000 in an EEOC disability discrimination suit. So what happened? The EEOC charged that Cessna didn’t individually assess the ability of conditional employees to perform the essential functions of their job (but instead relied on workers’ comp standards). In one case, the employee had to meet a national maximum medical improvement standard to be eligible for work even though he had an unlimited return to work note from his doctor. Cessna withdrew its offer of employment regardless.  Another example is in the post. After pre-suit conciliation failed, the EEOC filed suit. The settlement includes Cessna’s payment of $167,500 and other things (listed in the post).

TAKEAWAY: Standards - especially in an unrelated context – are not a stand-in for an individualized assessment of whether or not an employee can perform the essential functions of a job, with or without reasonable accommodation.

In the post on Thursday 4/21/16, we talked about a settlement between the EEOC and Pharmacy Solutions for $85,000 to resolve pregnancy discrimination allegations. The allegations are that 2 former employees received negative comments from the company’s owner about their pregnancies and were fired within a month.

TAKEAWAY: Don’t take adverse action against an employee due to pregnancy – treat her just like any other employee.

The post on Friday 4/22/16 asked about chat: when does it become harassment or discrimination? At issue are questions by a supervisor about when an employee plans to retire. If frequent (enough), and perhaps accompanied by other age-related comments, there might be a legal violation. In one subject case, the president thought the 55-year-old employee who was seeking a managerial promotion “would not remain with the company long enough to learn the manager’s job.” The court dismissed the case, finding the employer had a legitimate interest. The result in another case is in the post. In a third case, we are reminded that encouraging a 63-year-old waitress to retire, calling her a “stupid old yaya” and not letting her dress like younger waitresses could be illegal. Other age-related comments (such as those in the post) could also land an employer in hot water.

TAKEAWAY: Don’t use age as a factor on which to base employment decisions – it usually is not job related and will only get you in legal trouble.

Finally, in the post yesterday 4/23/16, we talked about a Med School professor who claims discrimination. The 19-year associate professor sued Yale, alleging “retaliatory denial of promotion” as a result of retaliation against her (by denying further promotion applications) for a 2012 gender discrimination complaint she had filed against the school. Details are in the post. Yale declined comment.

TAKEAWAY: This is another one we will have to keep an eye on – but it chronicles yet more concerns about impediments to women advancing in formerly all-male medical fields.

Monday
Apr112016

ICYMI: Our Social Media Posts This Week – Apr. 10-16, 2016

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

In the post on Sunday 4/10/16, we talked about a white officer passed over for promotion moving forward with his racial bias suit. The white Italian-American officer was passed over for an ethnically Hispanic officer; he alleged the former mayor, an African-American, specifically promoted the other officer due to race. The mayor argued that since the other officer self-identified as white, there could be no discrimination since “Hispanic” is not a race for federal discrimination purposes. A jury agreed with the plaintiff in May 2014 and awarded him $1.35M. The mayor appealed. The appellate court disagreed with the mayor, finding that Section 1981 claims include discrimination based on ancestry and ethnicity, including the lack thereof, and that same is also a cognizable claim under Title VII. Note: see the post regarding what the court did with the $1.35M jury award.

TAKEAWAY: It is much safer not to discriminate based on any non-job-related characteristic than to have to argue in court why the basis of discrimination is not illegal.

The post on Monday 4/11/16 put all jiggery-pokery aside to talk about Justice Scalia’s impact on employment law. He sided with employers in Young v UPS (arguing in his dissent for a narrower standard than was adopted by the majority). His narrower interpretation is in the post. He sided with the employee in EEOC v Abercrombie & Fitch (writing the majority opinion holding employers liable even if the applicant’s need for accommodation was but a motivating factor in the decision not to hire). More on Scalia’s legacy is in the post.

TAKEAWAY: It is always sad when a Supreme Court justice dies, but here Justice Scalia left big shoes to fill in the employment law area.

In the post on Tuesday 4/12/16 we talked about Employment Law 101: national origin, citizenship & immigration status discrimination. The starting point is, of course, Title VII. IRCA also comes into play. Both require employers not to discriminate on the basis of national origin, citizenship or immigration status relative to any significant aspect of employment. The post details the types of violations and what counts as national origin, citizenship or immigration status, as well as what to do if a managerial employee causes the violation or if national origin or citizenship is a job requirement, and whether retaliation can play a part. The post also gives some examples.

TAKEAWAY: Employers now are (or should be) used to ignoring national origin when making employment decisions. Citizenship and immigration status should be added to the “do not consider” pile too.

The post on Wednesday 4/13/16 was about record retention and disclosure rules under the ADA and FMLA. Be alert employers! The ADA focuses on whether discrimination occurred against the employee; therefore, records should be kept on the accommodation request and the reasons any attempts to accommodate were unsuccessful. The medical information MUST be kept in a separate file and treated as confidential. To whom that information may be disclosed is listed in the post. In contrast with the ADA, the FMLA requires that employers retain records for 3 years from the last date of entry for payroll information, dates and hours of leave taken, and other items listed in the post. Confidentiality of medical information is similar to that under the ADA.

TAKEAWAY: Know what you must keep and in what form (whether all together or in separate files) and who is permitted access to the files. Doing it incorrectly may subject you to liability and damages.

In the post on Thursday 4/14/16, we learned that prison officials illegally fired or punished guards because doctors didn’t let them work overtime due to medical conditions. Sounds convoluted but it’s really not. A federal lawsuit alleges that prison officials in Lackawanna County (about 2 hours north of Southcentral PA) took illegal action by firing 3 guards and punishing 3 others. The allegations include the officials calling them lazy or harassing them with derogatory names, fliers and posters for refusing to work overtime. Part of the County’s defense is that the EEOC already dismissed the charge on the basis that the union contract allows official to require guards to work overtime. Interestingly, the guards don’t want reinstatement. See the post for more details.

TAKEAWAY: The question is whether the ADA, FMLA and state law trump a union contract by requiring accommodation for, and preventing retaliation on account of, a medical condition.

The post on Friday 4/15/16 questioned how is the FMLA to be covered in joint employment situations. The post lays out generally the responsibilities under the FMLA along with which employer (primary or secondary) that responsibility falls to. For example, jointly-employed employees are to be counted for coverage and eligibility determinations by both the primary and secondary employers. The post covers other areas of responsibility including the employee-eligibility determination, notices, leave, and benefits.

TAKEAWAY: Joint-employer liability is not going away; even if you aren’t the primary employer, you might be the secondary employer and, as such, have liability under the FMLA. Know your obligations (and the employee’s’ rights).

Finally, in the post yesterday 4/16/16, we noted the subject FMLA policy was missing something kind of important. Make sure yours is not like this one. So what happened? The IL Dept. of Corrections didn’t specify the 12-month period it would use to calculate employees’ entitled to leave. That came up in the context of a suit by a former employee who’d taken time off and requested it count as FMLA leave. DOC said he exceeded his allowable time and terminated his employment. He sued for FMLA interference because he’d never been told how the leave was being calculated or from what date the calculation started (among others in the post). In ruling against DOC on its summary judgment motion, the court said that DOC hadn’t proven that it clearly articulated when the 12-moonth period for calculating FMLA leave began. Therefore the court calculated it in a way most beneficial to the employee (which left him with additional eligibility to cover the absences). The court then sent the matter to a jury trial.

TAKEAWAY: Most employers merely reiterate the legal requirements: leave within a 12-mnth period for eligible employees. Be more specific or the lack thereof might come back to bite, hard.

Monday
Apr042016

ICYMI: Our Social Media Posts This Week – Apr. 3-9, 2016

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

In the post on Sunday 4/3/16, we against asked the question: Independent contractor or employee? The answer can make a HUGE difference. The answer to the question depends first on whether it is for federal or state purposes. Most often the agency will use the economic realities test. Those factors are in the post.

TAKEAWAY: Knowing how to properly classify a worker is important in many ways, including tax withholding and entitlement to the benefit of certain state or federal laws.

The post on Monday 4/4/16 was about Jewish professors filing charges claiming religious discrimination that damaged their reputations & careers. The professors allege that the school's president and other administrators discriminated against them after they spoke out about a lack of a Jewish perspective on campus (which, in turn, has now created a fear in others of speaking out). The post contains additional allegations levelled against the small, 811-undergraduate student school, including that an outside consultant acted as an “enforcer” and further exacerbated matters. The school has denied the allegations. The matter is in the EEOC charge process.

TAKEAWAY: If adverse action is taken or adverse treatment practiced, make sure there is a valid legal reason for same.

In the post on Tuesday 4/5/16 we noted that a failure to timely and thoroughly investigate sexual harassment claims may cost you. A recent federal court decision said that claims of sexual harassment and hostile work environment are not limited to victims of the opposite sex. The decision was based on a finding that the employer failed to take thorough, timely action after a male employee complained of improper, unwanted, offensive physical contact from another male-co-worker. More details are in the post. This case contrasts with one that is binding on PA cases (unless factually distinguishable).

TAKEAWAY: When a complaint of same-sex harassment is filed by an employee, you must investigate it timely and thoroughly, just like you would any other complaint.

The post on Wednesday 4/6/16 provided the Top 10 workplace discrimination claims in 2015 (based on a breakdown from the EEOC). It resolved 92,641 charges in FY15 and secured in excess of $525M for victims in that period. Retaliation was the #1 charge (39,757 charges filed and GINA took the #10 spot with 257 charges filed. The rest are in the post.  

TAKEAWAY: Don’t be (part of) a statistic; always strive to ensure no charges of illegal harassment or discrimination are filed against you.

In the post on Thursday 4/7/16 we talked about a $1.3M discrimination verdict being overturned in a police case. In 2009 the village’s then-Mayor appointed Miguel as the new police chief. A white lieutenant sued the village and Mayor, alleging failure to promote based on race. A jury verdict awarded the lieutenant over $1.3M but ordered a new trial (for procedural reasons).

TAKEAWAY: While this case may not be final yet, it underscores the fact that employers should never make decisions based on race. Period.

The post on Friday 4/8/16 was about how sexual harassment allegations caught up with Peyton Manning after 20 years. He usually maintains a squeaky clean image, but he was named in a complaint filed by a sports team trainer against the University of Tennessee’s athletics department. Facts are in the post but include athletes calling her breasts “midgets” and violence by athletes toward women having been “played down” by supervisors and an effort “made to shield the student athletes”. The 27th allegation concerns Peyton Manning; details are in the post. While that charge was settled, it is still part of a suit recently filed against the University (after an earlier suit filed against Peyton and other family members was also settled and a second suit is closed with no details as to what happened).

TAKEAWAY: Even settled matters involving discrimination and harassment have a way of rearing their ugly heads in the future. The best way to avoid that is to ensure nothing happens to form the basis of a complaint in the first place.

Finally, in the post yesterday 4/9/16, we learned that gay couples sued a hospital for discrimination. Why? Straight couples who worked there were allowed to work in the same unit but the gay couples were not. When the hospital finally relented, it was with behavioral conditions not imposed on hetero couples. Suit was filed earlier this year.

TAKEAWAY: If you allege that an action (or failure to act) violates a policy, make sure that policy has been disseminated and is evenly enforced. Otherwise you too could be facing down the barrel of a suit.

Monday
Mar282016

ICYMI: Our Social Media Posts This Week – Mar. 27 - Apr. 2, 2016

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

In the post on Sunday 3/27/16, a federal court ruled that a former Dollar Tree assistant manager’s work environment was not hostile. Doreen was hired in Dec 2010 and promoted to assistant store manager shortly after. In Jan 2012 a new supervisor came in. Doreen says that the supervisor harassed her on the bases of sex and religion for a month until she (Doreen) was discharged. Details are in the post, but include that the supervisor told her if she wore a necklace with a cross pendant again he’d rip it off her neck. Many claims were in the initial suit but were disposed of by the trial court; this appeal centered on only the retaliation (hostile work environment) claim. The appellate court also found insufficient evidence of a HWE.

TAKEAWAY: You don’t have to like where you work or the people with whom you work, but that doesn’t make the environment illegal.

In the post on Monday 3/28/16 we learned that a jury awarded $450,000 in a discrimination suit against the county and treasurer. The case was filed in federal court in Illinois by the former Comptroller. Linda alleged that after a hospitalization, she had an impairment that qualified as a disability under the ADA. When she returned to work, she found out her duties were being transferred to someone less experienced than she AND that she had to train that person. More details underlying the suit are in the post (including comments that an employer should never utter). After another hospitalization, her position was eliminated but she alleges that the duties were performed by the other person she trained. Is it any wonder she filed suit under the ADA? Or that the jury found in her favor?

TAKEAWAY: No matter what the employer thinks about a person, it should never be stated aloud unless a lawsuit is sought. Employees with disabilities, or those who have a record of disability or are perceived as having a disability, should be treated like everyone else unless and until they request an accommodation. Anything else might be illegal.

In the post on Tuesday 3/29/16 we talked about when you should consult with an attorney about harassment or discrimination in the workplace. If you are asking the question, the answer is probably NOW. An employee who doesn’t complain but quits may lose the right to sue. Likewise, if an employer is creating a trail in the employee’s file, the employee may or may not have certain rights. Other ways an attorney can help an employee are in the post.

TAKEAWAY: The flip side is that the time for the employer to consult an attorney about alleged harassment or discrimination in the workplace is also NOW. The attorney can help ensure that (1) an investigation is done and done properly and (2) appropriate, legal action is taken as a result if warranted. The attorney can also help the employer document any findings and the basis for taking or not taking any action.

The post on Wednesday 3/30/16 was about a former employee accusing Hahnemann University Hospital of age discrimination. Hits close to home … In a lawsuit filed earlier this year in federal court, the former employee claimed age discrimination based on his job termination. The complaint says that Richard was employed at the Hospital almost 40 years and unexpectedly discharged in mid 2013. He says no reason was given for the discharge (NOTE that, all else being equal and no agreement to the contrary, the employer is not required to have or provide a reason for the discharge, a result of PA’s strong at-will doctrine). Anyhoo, Richard says that he was the most senior of all employees in his department and the discharge was based on age discrimination. The relief he seeks in the suit is detailed in the post.

TAKEAWAY: It is not illegal to discharge an older employee, but make sure you have a solid legal basis to do so, otherwise you too might be staring down the barrel of an age discrimination suit.

In the post on Thursday 3/31/16 we learned that a Vail hotel paid a #1M sex harassment settlement – yep, that’s a lot of snow! The settlement amount from the federal suit brought by the EEOC goes to 8 employees (at least 2 of whom were in the US illegally). The civil suit came on the heels of a criminal case in which the housekeeping manager was convicted of sexually harassing 2 females on his staff (find out how in the post). He was convicted of criminal extortion and unlawful sexual contact. The trial revealed that the primary accusers didn’t complain for more than a year after the fact and that when they did, management was hostile and eventually fired them. Later the police filed criminal charges, he was convicted, and thereafter the EEOC filed its civil suit. The EEOC pointed out that even though some of the women were not in the US legally, the law still protected them in the workplace and suit was appropriate on their behalf. The complaint even alleges that the company’s owner went to have funding cut to the entity assisting the women in filing their EEOC charge (they did not have an attorney) if the continued to assist.

TAKEAWAY: Remember that the laws about discrimination and harassment apply to everyone in the workplace; don’t think that illegal status of an employee will overcome an illegal action by the employer.

The post on Friday 4/1/16 also contained big bucks: an Indian-origin US man won $3.1M in a discrimination suit – no joke! This man was among 47 immigrants denied recruitment as police officers for being foreign born alleged the complaint filed against the Chicago police department. 2 men, one of Indian origin and the other a Belize-born man, won $3.1M. They both took and passed the 2006 police exam but they were rejected for having lived in the US fewer than 10 years. They filed EEOC charges. The suit alleged that the residency rule adversely impacted foreign-born applicants.

TAKEAWAY: As in any other area, make sure that hiring policies have a rational relationship to the job and do not have an adverse impact (intended or otherwise) on any protected class.

Finally, in the post yesterday 4/2/16 – another close to home – we asked is the Rittenhouse Hotel guilty of age discrimination? Here, a former housekeeper, John, filed an age discrimination suit against the Rittenhouse Hotel (the name under which Hersha Hospitality Management operates the property). He said he worked as an assistant executive housekeeper and performed well. He further alleges that Ken, a much younger male, was hired as co-assistant despite having less experience; further, the hotel gave Ken a more desirable shift and reassigned John’s duties to Ken. When John, age 53, was fired but Ken was not, John sued.

TAKEAWAY: This case is recent and as of now we have nothing further. But we can caution employers in this situation to ensure they have valid legal bases for any adverse action taken against someone in a protected class.

Thursday
Mar242016

ICYMI: Our Social Media Posts This Week – Mar. 20-26, 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 3/20/16, we talked about a woman who claims to be the victim of reverse discrimination. Alicia, a white woman, claimed in a federal suit that she suffered discrimination and retaliation for being white and not Native American. She worked with the employer for about 6 years. In October 2014 she got a new boss. She alleges that in the first few weeks, he made several comments to her suggesting he thought she was of Native American descent. Alicia neither commented nor corrected him. Her children fell ill before Thanksgiving; when she returned to work after taking a few days to care for them, she commented about the employer being closed for the holiday. As part of the ensuing conversation (more details are in the post), it came up that Alicia was not Native American. Her boss’s behavior toward her changed after that, including making other racial comments to her – including that he wanted to hire only Native Americans. Alicia’s complaint also alleges that she took it up the chain of command and, in return, suffered suspension without pay and a discharge in January 2015 (when she was the facility’s deputy director).

TAKEAWAY: It’s not common, but reverse discrimination does happen. Keep your eyes peeled as this one progresses.

The post on Monday 3/21/16 was about Greyhound’s agreement to pay (at least) $375,000 to settle disability claims. That is to be divided $3000 to certain passengers with disabilities and $75,000 for a fine. The settlement came about after allegations by DOJ that Greyhound didn’t maintain required accessibility features on its fleet, failed to help disabled passengers board and exit buses, and failed to let wheelchair-bound customers make reservations on-line. There is an uncapped fund for affected passengers so the $300,000 figure might go a lot higher. Go to the post for more details.

TAKEAWAY: Once again David beats Goliath – all employers must comply with all applicable provisions of the ADA.   

In the post on Tuesday 3/22/16 we asked can you lose your home in a business lawsuit? The answer is, of course, “it depends”. On how your business is set up and whether or not you observe corporate formalities. If you operate as a corporation, LLC, LLP or LP, and observe corporate formalities, your home is probably not reachable by creditors. However, if you operate as a sole proprietorship, the home is probably reachable by creditors.

TAKEAWAY: This question – and the answer – is but one reason someone starting a business should meet with an attorney at the start: to protect assets against a downside.

The post on Wednesday 3/23/16 was about a dyslexic employee winning a discrimination case against Starbucks. Note: this happened in the UK but would probably play out the same here in the US. Starbucks allegedly wrongly accused Meseret, a dyslexic employee, of falsifying documents when she merely misread numbers she was recoding. The tribunal found that Starbucks failed to accommodate under the UK equivalent of the ADA. Details are in the post. A separate hearing will be held to determine the damages to be awarded.

TAKEAWAY: Employers must know of their obligations under the ADA and act so as to fulfill those obligations – else a heavy hammer might fall.

In the post on Thursday 3/24/16 we highlighted an applicant who couldn’t not raise an arm as protected by the ADA. Michael applied for a field engineer position; after an offer, he underwent a pre-employment physical. The employer learned he had unsuccessful surgery to repair a torn rotator cuff and couldn’t raise his right arm above his shoulder. Michael told the doctor that he had taken a prescription painkiller, retained the prescription, but no longer took the medication. The doctor cleared him to work if the employer put in place certain restrictions (listed in the post). The employer’s manager said the restrictions would prevent Michael from doing the job. After more back-and-forth between Michael and various of the employer’s departments, including Michael providing additional documentation, the company withdrew its offer of employment based on his inability to climb a ladder. Michael filed a charge with the EEOC; it found the company had failed to perform its obligations under the ADA and issued a right-to-sue letter; Michael sued. The trial court initially ruled in favor of the employer on the basis that the rotator cuff injury did not render Michael disabled under the ADA and that he was not qualified for the position. The appellate court reversed, in part because rescission of the job offer showed Michael “had a substantial impairment in the major life activity of lifting” or that the company believed he did. The case then was allowed to proceed.

TAKEAWAY: Employers must think through the possible repercussions of any adverse action taken against employees and applicants.

The post on Friday 3/25/16 was a finding by a federal court that the Philadelphia School District was not liable for discrimination against a fired janitor. Odell Wray, an African-American high-school janitor, sued the School District for racial discrimination after he was fired. He alleged that it all stemmed from his interracial relationship with a Caucasian teacher at the school. The allegations include that the principal told him “jungle fever” was not allowed at school (and other actions/comments noted in the post). The final incident occurred 11/28/11 when Wray went into the school with a female whom police knew to be a prostitute. When they left the building, Wray told the police he’d gone to get his debit card and let her use the bathroom. She, however, admitted to a sexual encounter inside the building (and that it was not a one-time occurrence). Wray disputed what she said. The next day the police told the principal what happened. There was then a long disciplinary process including hearings and he was fired in April 2013. He sued (you saw that coming, right?), alleging discrimination under the cat’s paw theory. The Judge found no proximate cause between any act motivated by discriminatory animus performed by the non-decision-maker principal and the discharge itself. Details of the analysis are interesting and in the post.

TAKEAWAY: An employer with a legitimate reason and basis for adverse action can indeed take that action (but it should be prepared to show the support if necessary).

Finally, in the post yesterday 3/26/16 we said, don’t cry over spilled milk: best practices for handling nursing employees. Yes this is about employees who are nursing and need to express milk in the workplace. They have both state and federal protection (depending on the state in which they work). In reverse, under Title VII (federal law), there can be no discrimination on the basis of pregnancy or its related medical conditions, one of which is lactation. The post gives some examples of EEOC enforcement guidance on this subject. The FLSA contains applicable provisions (as a result of the ACA!); they include that employers must provide reasonable break time for non-exempt employees to express milk as frequently as needed for one year after childbirth and others mentioned in the post. The FMLA also applies because lactation can result in medical disorders; see the post. In addition to those laws, state or local laws may apply.

TAKEAWAY: Employers must be aware of ALL laws that might apply under their given circumstances. Some other suggested actions are in the post.

Wednesday
Mar162016

ICYMI: Our Social Media Posts This Week – Mar. 13-19, 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 3/13/16, we alerted you that the EEOC now gives employees access to employer position statements (including exhibits/attachments) upon request. This is a policy change and lets employees get the actual statement rather than just a summary form the EEOC. Because of this, employers must carefully redact information and note on any exhibits or attachments that they are confidential. This change should either really help or really hurt an administrative claimant as s/he will now know what the employer is claiming (and how to counter it if possible). The policy became effective 1/1/16. What is still not part of the policy, however, is employers getting a copy of any response the employee files to the employer’s position statement.

TAKEAWAY: This policy change by the EEOC may give employees an arrow to place in their quiver, but if the employer had a valid, legal basis for any adverse action it took, it probably need not worry.

The post on Monday 3/14/16 taught that a woman sued the school board for discrimination and retaliation under the FMLA. Jill was a teacher for the county for 11 years; she says the employment ended by an illegal discharge in violation of the FMLA (and other laws). In 2014 she had some serious health conditions (details are in the post); she notified the employer and go an approved personal leave. In August she turned in FMLA paperwork but the employer did not change her leave to FMLA leave. She was discharged in October 2014.

TAKEAWAY:  Make sure to follow all the steps related to an FMLA leave – from soup to nuts – to avoid liability.

In the post on Tuesday 3/15/16, we talked about Yahoo sued over employee rankings and alleged anti-male (gender) discrimination. Gary was discharged in 2014. He said that since Yahoo reduced its workforce by more than 30% around that time, he should have gotten a 60-day notice under applicable law. That came 3 months after he had been selected for a prestigious fellowship, Yahoo executives approved his attendance, and he was in the middle of the fellowship. The suit also alleges that supervisors favored female workers and that they received preferential treatment.

TAKEAWAY: Let’s see, we have an older male who was fired when younger women were not. Did Yahoo really think this wouldn’t lead to a suit?

The post on Wednesday 3/16/16 talked about a black bartender’s firing reminding that blatant discrimination still happens. Here it was a six digit lesson for the employer. This took place in a sports bar where, as the author said, one would think “the color of your jersey tends to trump the color of your skin”. Well apparently not so. The owner of a new bar wanted employees to have a certain look to attract the clientele he wanted. A white look, with young, blond female bartenders and servers. He fired a black bartender who had apparently been hired without his knowledge. She sued. The jury award is in the post. And the owner was not subtle about it: apparently he would not shake her hand, fired her within an hour, and thereafter insisted on seeing every applicant pre-offer “to prevent the hiring of another African-American employee”. To make things worse (yes they could be), the bar closed early one night when the clientele was predominantly African-American and used a fake guest list the next night to discourage African-American customers. And there’s even more in the post.

TAKEAWAY: Everyone should know that race has nothing to do with job performance - so don’t make adverse employment decisions based on race. Just don’t do it.

In the post on Thursday 3/17/16, we learned that another Disney security worker filed suit. What is in the air there in the Mouse House? The suit by a long-time employee (24 years!) alleges discrimination or retaliation. What happened? She says she didn’t get a promotion because she is married to an African-American. She filed an internal complaint, after which she was told she could no longer work in the security division. She ended up as a custodial administrative assistant. And the internal complaint was determined to be unfounded. Go figure. More details on this and the other 7 suits are in the post.

TAKEAWAY: We’ve said it before and will again: Employers should have a valid, legal reason to take adverse action against an employee – especially when there is a protected characteristic or other legal implication on the horizon.

The post on Friday 3/18/16 dealt with an employee’s age discrimination suit that settled for $600,000. Here, Lori, a municipal employee who had filed suit against her employer alleging age discrimination, retaliation and failure to prevent discrimination will receive a $600,000 settlement AND a new job. After Lori got a preliminary layoff notice, and in response to her inquiry, she was told reassignment was not an option. However, after Lori was laid off, the employer reassigned a co-worker with less seniority to a temporary position in another office after that position’s predecessor was also reassigned. Details are in the post. So this co-worker (who got the position Lori wanted): she is also the comparator in a suit filed by the EEOC against the same employer alleging a failure to properly hire.

TAKEAWAY: Again, adverse actin should have solid legal footing – or a solid check will be written by the employer to the subject employee as happened here.

Finally, in the post yesterday 3/19/16, we learned that Rental Pro will pay $37,000 to settle a discrimination suit. Age yet again. In this suit the EEOC alleges that the employer fired Ronald, age 52, due to age, that the employer wanted “younger and peppier” employees to bring “young blood” into the company. Wrong. Now the only blood that was involved was that being wrung from the employer along with the settlement payment.

TAKEAWAY: Employers, are you listening? Age will rarely if ever be an indicator of job performance or ability, so don’t take adverse action on account of age.

Monday
Mar072016

ICYMI: Our Social Media Posts This Week – Mar. 6-12, 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 3/6/16, we noted that all dogs go to heaven, but can they go to work? Dogs become family members to some people; they often calm and comfort people, hence the desire to bring them to work. The ADA doesn’t talk of service dogs, so they must be looked at under the accommodation context (and as part of the interactive process). The ADA does define ‘service animal”, so that is one starting point, but it applies only to public accommodations and not employers. Tips on what an employer should do are in the post.

TAKEAWAY: Don’t just reject out of hand an employee’s request to bring his/her dog to work. Find out on what the request is based and work through whether allowing the dog’s presence may be legally required.

The post on Monday 3/7/16 was about 7 policy provisions to curb FMLA abuse. Yes Virginia, FMLA leave is an entitlement under certain circumstances, but that doesn’t mean employers have no control over it. The post lists 7 provisions that should appear in a handbook concerning FMLA leave, including that all leave requests should be in writing and medical certifications and recertifications will be required.  The other tips are in the post.

TAKEAWAY: While the employee is away (on FMLA leave), the employer … will still control the basics of the leave as outlined in the post, starting with how the leave will be requested.

In the post on Tuesday 3/8/16, we talked about 2 reasons not to forget about the ADA’s interactive process. What are the reasons? NC and WI. The states where we find the defendants in 2 recent cases dealing with the ADA interactive accommodation process. Read the post for details on the cases.

TAKEAWAY: If the employer knows of the need for reasonable accommodation, it must, in good faith, engage in the interactive process.  Period.

The post on Wednesday 3/9/16 we learned that Cessna settled a disability discrimination suit (and isn’t flying so high now). It will be paying $167,500 to 2 former employees. Read the post for more.

TAKEAWAY: Just because an employee has a disability does not mean the person cannot perform the essential functions of the job, with or without reasonable accommodation. The employer’s first step should NOT be to take adverse action based on the disability.

In the post on Thursday 3/10/16, we moved close to home where an ex-employee accused Medical Products Laboratories of racial discrimination. James filed suit in federal court, alleging unlawful termination and discrimination based on race. He said he had excellent evals, but that a co-worker, subjected Liberian- and African-descent employees to discrimination, including doing unnecessary work. More details are in the post.

TAKEAWAY: Employers must ensure that employees at all levels are trained in what is and is not discriminatory and told the company does not tolerate the former.

The post on Friday 3/11/16 told us the diocese settled with a food pantry coordinator fired for a same-sex union. This part of sex discrimination is the new (but now here) frontier. So what (allegedly) happened? The diocese specifically cited to her same-sex union as the reason for dismissal (which happened only after the marriage became public and mentioned the church); she sued the diocese and its former bishop. Coincidentally, the settlement came 2 days after a judge decided that 2 of her 3 claims could proceed to a jury trial. More details are in the post.

TAKEAWAY: The dismissed claim was based on employment discrimination against an ecclesiastical entity; this was one of a few (if not the only) situations where religion can trump normal employment discrimination statutes and jurisprudence.

Finally, in the post yesterday 3/12/16 we learned that Two Hawk Employment Services was dues by the EEOC for disability discrimination. Two Haw is a temp agency; it allegedly asked an applicant illegal medical questions during the application process and, to top that, refused to hire the applicant based on the responses. Ugh.

TAKEAWAY: Make sure you know what you can and cannot legally ask of applicant and employees relative to their ability to perform essential functions of a job, with or without reasonable accommodation. Not knowing will land you in hot water.

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