Friday
Oct212016

ICYMI: Our Social Media Posts This Week – Oct. 16-22, 2016

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

In the post on Sunday 10/16/16 we talked about the presidential candidates' paid family leave plans. This might be of interest to you before Election Day. Trump's proposal would give new mothers 6 weeks of leave with some payment through unemployment plus child care tax credits. However, the proposal applies only to women who have given birth. What it leaves out (or does not address) is in the post. Clinton's proposal is broader: any family member would get up to 12 weeks' leave with at least 2/3 of their salary paid. The plan would also include care for sick relatives. The post explains how she proposes paying for that.

TAKEAWAY: Know before you vote – but do vote on Election Day, Tuesday November 8, 2016.

The post on Monday 10/17/16 was about an EEOC lawsuit accusing Wynn Law Vegas of discriminating against a disabled veteran. The suit was filed last month as a result of alleged discrimination against an Army veteran diagnosed with PTSD. The complaint alleges the Wynn refused to accommodate the disability for a security bike officer position by requiring submission of burdensome doctor's notes. That, according to the complaint, made the stress even worse (and violated the ADA). More details are in the post.

TAKEAWAY: Employers have an obligation to participate in the interactive accommodation process. They are permitted to request certain medical information, but only to the extent necessary for the process. Employers should not try to bully employees under the guise of accommodation.

In the post on Tuesday 10/18/16 we reported that employees don't have the right to wear dreadlocks (per a recent federal court ruling). The decision came out in mid-September. The EEOC had filed suit on behalf of Chastity Jones, a black job applicant. Chastity applied on-line for a CSR position that entailed no public contact. She was brought in for an interview and showed up professionally dressed with short dreadlocks. After the interview, Chastity and others applicants were told by a Caucasian employee that they were hired. Nothing was said about Chastity's hair. There was a brief meeting about a required lab test and then it hit. The woman said the employer couldn't hire Chastity with dreadlocks. The reason given is in the post. When Chastity refused to cut her dreadlocks, the offer of employment was rescinded becasue she would have been in violation of the grooming policy. The company's race-neutral grooming policy is mentioned in the post. The suit alleged race discrimination. The trial court dismissed the case, finding no plausible allegation of intentional race discrimination. The EEOC appealed. The appeals court affirmed on several bases: the EEOC's combining of disparate impact and disparate treatment, precedent regarding the prohibition of discrimination on the basis of immutable traits, and two other bases in the post. The ruling comes down to Title VII dealing with immutable characteristics like race, color and natural origin and a hairstyle, "… even one more closely association with a particular ethnic group, [being] a mutable characteristic." The post gives much more detail on the various bases on which the court ruled against the EEOC.

TAKEAWAY: When it comes to race and natural origin, things are not (literally) black and white. Often a judicial interpretation is required; here it analyzed the situation and determined there was no discrimination. Before having your company dragged through the courts, consult an employment law attorney as to the appropriate course of action.

The post on Wednesday 10/19/16 noted that an age-related comment doesn't always show bias. Huh? It depends … on the context among other things. In the case in the post, Dana was over 40 and refused an initial severance offer. A second offer was made to her and a supervisor said Dana should consider accepting because of her age. She didn't accept and was discharged, then sued for age discrimination. The court ruled against her; its analysis is in the post.

TAKEAWAY: The mere mention of age in the workplace often throws fear into an employer, but it need not as long as age is not being used in a discriminatory manner. That, however, is part of the training employees, especially managerial-level, should get.

In the post on Thursday 10/20/16 we talked about the good and bad of homeowner and condo associations (and suggested you contact us with questions). So what were some of the items mentioned? Membership in the association is required and automatic upon buying a unit in the development. A Board governs the association and enforces the restrictive covenants and bylaws. It is important to know what those documents say before buying. Examples of why are in the post. Associations can be good if properly performing their role of enforcement – that protects property values and often maintain amenities like pools and clubhouses and landscaping. Of course the cost for all of that is shared among the owners so knowing the current and proposed budgets is also a good idea.  

TAKEAWAY: It sounds trite, but it's good advice: know before you buy. A house is a big financial commitment, so when it is located in a condominium or planned community, it is especially important to obtain and read all relevant documents; they are binding legal documents.

The post on Friday 10/21/16 noted that a security firm is to pay $115,000 to settle an EEOC retaliation suit (and asked how safe that makes you feel). Guardsmark is apparently a VERY large security company, but not so large that it can discriminate with impunity. It has agreed to pay $115,000 (plus other relief) to settle an EEOC case. What was the background? A security guard used security cameras to zoom in on a woman's private parts. The subject employee told the woman and she filed an internal complaint for sexual harassment. Good, right? Yes, Except that the next step was the company firing the employee after learning about the woman's complaint. More details are in the post.

TAKEAWAY: If there is a complaint about potentially illegal action, don't retaliate against anyone as a result of the complaint. Rather, look it as a chance to halt any (more) liability and take appropriate action.

Finally, the post yesterday 10/22/16 told us about another settlement: Savannah River Nuclear Solutions for a discrimination suit. This one sticks out because the settlement comes only a few months after the release by the GAO of a scathing report about the company's treatment of employees. Here, Victoria Bradner had filed suit in October 2015 alleging discrimination on the basis of race (she is Hispanic). Victoria was a long-time employee who was terminated in January 2015. But it started before that. She was going through a divorce so a male co-worker brought her a gift; it was in the storage room and she went there to look at it. It was a specially-shaped cake; the post tells you what shape. Victoria left the cake in the storage area where her supervisor and another employee went to look at it. Shortly after, when Victoria expressed interest in an open job that would be a promotion, she was investigated relative to the cake (and other things). She was discharged and a younger, less-experienced Caucasian female promoted into the position. This was on the heels of a conciliation agreement with DOL in August 2015 alleging a history of discrimination against women and black employees from at least 2010; the employer paid almost $234,000 under that agreement. The post gives details on even more suits and charges filed against and settled by the same employer.

TAKEAWAY: If an employer gets its hand slapped once for alleged illegal conduct, it should learn the lesson and realize the government will be watching even closer. A second, third or fourth alleged illegal action is even worse.

Monday
Oct102016

ICYMI: Our Social Media Posts This Week – Oct. 9 - 15, 2016

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

In the post on Sunday 10/9/16 we asked did the hospital fire the employee due to age? A federal lawsuit filed by the EEOC says yes. The suit alleges that several employees, including 59-year-old Katherine, were field doe to age or forced to quit due to a HWE, all of which violated the ADEA. The complaint includes comments made by the chief nursing officer against Katherine, including referring to her as an "old b____,", telling her a younger nurse could "dance around the older nurses," and more (yes there were more!) in the post. The hospital denies the allegations and alludes to discharge of an employee for, among other things, violation of HIPAA.

TAKEAWAY: We've said it before and will again: before taking adverse action against an employee in a protected class, be sure there is a valid, legal reason for the action. You may need to show that support if sued.

The post on Monday 10/10/16 noted Chipotle is again under fire, this time for alleged race discrimination. An African-American employee complained that Latino co-workers were given preferential treatment and then she was fired – so say her complaint against Chipotle. Sheqweshu filed suit in CA state court alleging race discrimination, retaliation, wrongful termination, and other claims. The suit alleges that she started working there in June 2012 and was promoted several times. Things changed in December 2015 when she returned from maternity leave – the new Latina district manager and 2 other Latino managers gave Latino workers better shifts and assigned Shaqweshu and other African-American employees to non-preferred shifts. The manager's comment when Shaqweshu spoke to him about it is in the post (and is not a good thing for management to say). The saga continued when the manager changed nothing, Shaqweshu spoke to the District Manager (who thereafter suspended her without reason), and then the discharge came in January 2016.

TAKEAWAY: We don't know if there's any meat on these bones, but any employer taking adverse action - especially when it impacts on persons in a protected class – should ensure that there is a valid, legal basis for the action.

In the post on Tuesday 10/11/16 we highlighted a local case where a man claims Genco Distributions violated the FMLA. The suit was filed May 2016 in the federal court in Harrisburg with allegations of ADA Reg violations, retaliation and wrongful termination in violation of the FMLA and PHRA. Francisco has cervical radiculopathy; he alleges that Genco discriminated against him as a result of the disability and retaliated too – by giving erroneous information to Wal-Mart as a reference after he applied for a job there. More background details are in the post.

TAKEAWAY: Whenever an employee hints of something that might require accommodation under the ADA, the employer should begin the interactive accommodation process – there are no magic words the employee must use or documents the employee must provide prior to the start of the process.

The post on Wednesday 10/12/16 asked are wild sex comments are enough to prove harassment? Comments between co-workers, a complaint to a superior, and further harassment do not necessarily rise to the level of legal harassment (at least in this situation). The first text sent by David to Karen, a co-worker on vacation; the text said Karen should "just have fun and wild sex". The contents of the second text are in the post. After being reprimanded, David allegedly treated Karen rudely, threw a chart at her, and (as lead nurse) sometimes denied her lunch breaks and assigned her more difficult work. The court said the texts were not sexual harassment because they didn't show an "anti-female animus or seek sex with Karen. Further, David's later actions were not actionable as HWE because they were a result of her reporting his texts, not her being a female. Further findings by the court (including a possible claim that Karen left out of her suit) are in the post. The dissent viewed the same facts in an opposite way.

TAKEAWAY: Don't wait for a court to decide whether an employee's actions are harassment or not – stop any such action before it starts by proper training of and control over employees.

In the post on Thursday 10/13/16 we cautioned you to think twice before suing your (former) employer. Why? Several reasons. One: the employer probably didn't make the (adverse) decision lightly. You may not like what happened, but chances are pretty good that the employer doesn’t either. Two: the employer probably did not discriminate against you. While it does exist, there is much less discrimination in the workplace than people think, and certainly every adverse action is not a result of discrimination. Three other reasons are in the post.

TAKEAWAY: Employees should know their rights and feel free to consult an employ6ment law attorney or take administrative or legal action they feel appropriate, but they should keep in mind that there is probably no pot of gold at the end of the (non-existent) rainbow for them.

In keeping with the apparent theme of the week, the post on Friday 10/14/16 noted that sexual harassment goes digital. Yes, Gretchen Carlson got a $20M settlement from FOX News. Yes, sexual harassment continues to exist in the workplace. And yes, sexual harassment now takes more and different forms – electronic and digital – than it used to. Email, texts messages, IMs, and socmedia all increase the ability of employees to interact – and harass each other, with the employer being held liable. The post talks about some things an employer can do relative to harassment through electronic communications, including ensuring the harassment policy includes electronic communications and online and socmedia activities and expressly prohibiting sexually explicit communications on company technology.

TAKEAWAY: Employers must take steps to prevent employees from being harassed; that helps protect employees and lowers the risk of liability for the employer.

Finally, the post yesterday 10/15/16 talked about the fault line running under "no fault" attendance policies (and what happens under PA law). Often an attendance policy is n-fault, meaning points are given or other action taken regardless of the intention of the absent employee. Sounds easy and uniform, right? It is, except when there are exceptions under applicable law – such as the ADA and FMLA and others. And, as noted in the post, rewards and bonuses cannot take into account statutorily-required and allowed absences. The post also mentions a few things employers can do to protect themselves.

TAKEAWAY: Uniformity is great, except when the law requires otherwise; be careful enforcing no-fault attendance policies so as not to run afoul of laws that prevent that enforcement. Talk to an employment law attorney to be sure.

Thursday
Oct062016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday
Sep292016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Sep192016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Sep122016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday
Sep062016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Aug292016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday
Aug222016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday
Aug162016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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