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

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

            In the post on Sunday 7/2/17 we asked: Are WiFi allergies an impairment covered by the ADA? Perhaps, according to a federal court in the Midwest. George was a front desk clerk. He was discharged for sleeping on the job and other bases. He sued, alleging failure to accommodate and discrimination under the ADA. George's reasoning as to how he was disabled is in the post. In the suit, the court said the employee did not show he was disabled within the ADA, having not alleged a substantial limitation of a major life activity. The court also discussed whether or not electromagnetic hypersensitivity is a physical or psychological disorder (which makes a difference for ADA coverage) – its discussion is in the post.  

TAKEAWAY: As always, when you take adverse action against an employee, make sure it has a legal basis.

The post on Monday 7/3/17 told us an appeals court ruled against the EEOC in the Auto Zone discrimination case. Remember this was the case brought by the EEOC alleging discrimination against Kevin, a black sales manager who was transferred from a store with a largely Hispanic clientele, but without change in pay or responsibilities. The suit was brought under a part of the law not often used - but listed in the post. The EEOC lost at the trial court and appealed, losing again on appeal.

TAKEAWAY: Sometimes an action that appears adverse or based on a protected characteristic may not be so – and lack of proof will doom any suit brought on that basis.

In the post on Tuesday 7/4/17 we wished you a Happy Independence Day – and suggested you take a moment to breathe, think and enjoy.

TAKEAWAY: Legalities and employment law are important to a business, but so are recognizing important milestones for our country and the employees.

The post on Wednesday 7/5/17 told us the EEOC sued Applebee's for gender discrimination. The EEOC acted on behalf of a transgender hostess, Danielle, who was harassed by employees who made crude and disparaging remarks to her (including gawking, laughing and pointing to her genitalia  and more in the post) during her short (how short? Read the post) employment. Allegations are that the GM witnessed many of the incidents but did nothing – except what's in the post. But it got worse. Suit followed a failure to conciliate.

TAKEAWAY: Don't discriminate on the basis of gender – it has nothing to do with job performance.

In the post on Thursday 7/6//17 we talked about FMLA abuse: serving jail time, moonlighting, vacationing and more. One example in the post is am employee with a bad back who could not sit or stand for long periods. While she was on FMLA leave, she posted pictures of herself drinking and dancing at a bar. The employer fired her on the basis that if she could dance, she could work. Except that the suit she filed was not dismissed because the employer did not get a medical opinion or diagnosis. More examples - of what to do and not do - are in the post.

TAKEAWAY: Even if the reason for FMLA leave seems outrageous, it may be legal. Investigate before taking adverse action that may come back to bite you.

The post on Friday 7/7/17 asked: Was employee fired for Facebook photos or as retaliation for FMLA leave? Here, the employee took FMLA leave for shoulder surgery. Before his return to work, the treating physician said he'd need another 45 days of recovery. The employee said he'd return for light duty, but provided no medical release as required. Instead, he got 30 days of non-FMLA medical leave. So what did he do during those 30 days? Took several vacations (and posted pictures on Facebook of course). When he returned to work (with a medical release), he was suspended and then terminated. He sued for FMLA interference and retaliation. The trial court dismissed – the reasons are in the post. On appeal, the court let the retaliation claim go forward (on the basis in the post).

TAKEAWAY: Timing of adverse actions can be oh so important – make sure the time and basis are both right.

Finally, in the post yesterday 7/8/17 we noted racial nicknames and inconsistent rules enforcement support a discrimination claim (and that these are easy to avoid). Here, a black employee was called offensive nicknames (including Joe Dirt, Coolio, and others listed in the post) by supervisors and co-workers and was fired for smoking in barred areas (allegedly pursuant to the employer's progressive discipline system which worked on demerits). He sued for race discrimination, including uneven enforcement of policy. For that reason and others (in the post), the case proceeds to trial.

TAKEAWAY: If you base an adverse action on a rule violation, make sure the rule is evenly enforced or you may find yourself on the wrong side of a suit.


ICYMI: Our Social Media Posts This Week – June 25 - July 1, 2017

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

In the post on Sunday 6/25/17 we asked: DOL guidance on joint employer-independent contractor withdrawn - now what? What happened is that DOL quietly withdrew its former position on who is the employer in a franchise setting, giving some employees one less deep pocket to look to in some situations. See the post for a more in-depth overview. The question now is whether the NLRB will back away from its "indirect control" or joint employer theory.

TAKEAWAY: If you don't violate any law in your treatment of anyone performing services for you in any capacity, you don't need to worry about whether or not you are considered a joint employer.

The post on Monday 6/26/17 included 3 things "The Office" taught me about employment law – part 2. This follows our earlier post with Part 1. Here, we talk about workplace violence and the fact that it must be taken seriously. The post is peppered with scenes from the TV series to illustrate the lesson.

TAKEAWAY: Workplace violence happens – be ready with a policy that is evenly enforced and on which managers are trained.

The post on Tuesday 6/27/17 asserted that the Trump Administration forgets about LGBTQ people in its EEO statement (and asked if omissions are becoming a habit). The Department of Commerce removed sexual orientation and gender identity from its EEO statement. At least as of now the EEOC will still enforce discrimination on those bases, the removal does not bode well for federal employees under the current Administration.

TAKEAWAY: Not only is there no reason to discriminate on the basis of sexual orientation or gender identity, but it could cause you to lose customers or be subject to suit.

The post on Wednesday 6/28/17 told us that transgender employees may have rights under the ADA in PA. A transgender female employee sued Cabela's under Title VII and the ADA. The case is interesting because the law specifically excludes gender identity disorder from its coverage. That, then, would possibly be a violation of equal protection. So how did the Court get around this quicksand? It narrowly interpreted the exception to avoid the constitutional implications. See the post for more details.

TAKEAWAY: Rights granted to LGBTQ employees are expanding as interpretations broaden – be careful that you know your obligations under the ADA and other laws.

In the post on Thursday 6/29/17 we asked: Want to get sued? Read this self-help primer (and suggested you then call us). The first item on the list of things to do to ensure you get sued is to run your business the way you want. Don't worry about the law, employees, or anyone else. Insult your employees – when they move too slowly, tell them they "are getting a little long in the tooth" and other comments in the post. Next, don't hire an HR person. That person might do what your attorney suggests (and more in the post). More tips are in the post, ending with just doing anything to make money, regardless of what gets in your way.

TAKEAWAY: Once you get through the post, and realize you actually don't want to get sued, call me for an employment audit to ensure all practices and policies are legal and evenly enforced.

The post on Friday 6/30/17 told us a Restaurant & Pizzeria to pay $50,000 to settle a national origin discrimination suit. Yes that's a lotta dough (you knew that had to be said, right?!?). A small chain of pizza joints in NY settled a suit with the EEOC by agreeing to pay $50,000 (and other relief in the post). Allegations were that the chain discriminated against Hispanic employees by subjecting them to name calling, slurs, creating and maintaining a hostile work environment due to national origin, and requiring that only English be spoken (with a business reason for that rule). More details are in the post.

TAKEAWAY: National origin will rarely if ever make a difference in job performance – so don’t take adverse action against an employee based on that characteristic.  

Finally, in the post yesterday 7/1/17, we noted that a purged disciplinary record can be considered in future litigation. And you thought it was done and gone, right? It depends on the terms under which the record was purged. In the post, the necessary language was not there.

TAKEAWAY: Make sure that any settlement or agreement contains all terms and conditions – that will help avoid any surprises in the future.


ICYMI: Our Social Media Posts This Week – June 18-24, 2017

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

In the post on Sunday 6/18/17 we talked about 3 Things ‘The Office" Taught Me About Employment Law (Part 1). Yes, television can be educational (but don't tell your kids!). So what does it teach us? Timing and good documentation are everything. The series includes a part where there is an office relationship and one of the employees is discharged – she sues and proof of when their relationship started becomes key. The post gives background, but comes around to the lesson: know who did what and when, and document it.

TAKEAWAY: Keep records now in case you ever need them later – and record could mean a formal memo, an email, a photograph, or something else that records what happened, when, and who was involved.

In the post on Monday 6/19/17 we learned that non-union employees have no right to co-worker's presence during investigatory interview. While this is a ruling from the NLRB, it applies in the non-union world, so pay attention. Union employees have the right to have a co-worker present during an investigatory interview that might result in discipline. The question before the NLRB was whether non-union employees have the same right. The Board has flip-flopped on the answer in the past, with the latest decision (in 2004) answering in the negative (the reasoning is in the post). This unanimous ruling came about as a result of a petition from a former NLRB attorney.

TAKEAWAY: While the right of unionized employees to have co-worker present in an investigatory interview that might lead to discipline is intact, the same right is not extended to non-union employees; however beware as other protections under the NLRA do extend to non-union employees.

In the post on Tuesday 6/20/17 we noted that Rosebud is to pay $1.9M to settle an EEOC case of race discrimination. So what or who is Rosebud? The operator of 13 Italian restaurants in the Chicago area. [NOTE: just look at the list of the restaurants in the post; if you've been to Chicago, you've probably eaten in one of them.] The EEOC alleged that Rosebud did not hire African-Americans due to their race (and more illegal practices mentioned in the post). Conciliation failed but the matter has not settled with payments going to African-Americans who were denied jobs (and other items).

TAKEAWAY: The settlement included monetary and other remedial relief – if you don't want this to rain down on your business, don't make decision based on race.

The post on Wednesday 6/21/17 provided your entertainment for the day: strange (but true) sexual harassment cases. The first one was sex on the ceiling. A female employee was at an out-of-town business convention. Her employer booked her lodging. She met a local male friend; after dinner, they went back to her room for a tryst. She was injured – the post tells how. The employer was held liable for her workers comp claim because she was at a place her employer sent her for work. Wow. The next case was titled "do it a few more times before it is harassment". The plaintiff female employee worked part of the time in a construction trailer. One comment directed to her by a male employee was that "a large-breasted women, whom he called 'Double D', would attend a particular event. More of that comment, and others, is in the post. The court said that because the comments happened on only (its choice of language) 4 occasions, the conduct was not offensive or pervasive enough to rise to a level of HWE. What? Three more cases are in the post and provide entertaining reading.

TAKEAWAY: Life can indeed be stranger than fiction, but don't be a case told round the world – rather, follow the law and stay out of the news.

In the post on Thursday 6/22/17 we noted that bankruptcy may be your first and best option. Read the post and contact me to discuss. Filing for bankruptcy should not always be the last option you consider, but the decision is fact-dependent. For example, you can probably legally get rid of debt for less than a settlement might cost. It might also help your credit score (I know, seems counter-intuitive, right, but it's true.). The post contains a few more reasons to consider it first.

TAKEAWAY: Bankruptcy is prevalent in our society and has a bad name. However, there is no scarlet "B" and it might be the best thing for your situation – discuss it with me (or another knowledgeable bankruptcy practitioner).

The post on Friday 6/23/17 stayed in the NLRB world and noted the NLRB is still in business – watch your handbooks and policy manuals. Yes, this applies to both union and non-union workplaces, so all of you read on. All employees have right to unionize, bargain collectively and engage in other protected concerted activity under Section 7 of the NLRA. If employees could reasonably construe a policy or rule to limit or prohibit the protected activity, the Board will strike it down as illegal. That happened recently to 17 policies from one single employer. Some of the stricken policies were a responsive action policy, a conflict of interest policy, and an outside employment and business activities policy. Other examples are in the post.

TAKEAWAY: Have an employment attorney review your handbook or policy manual to make sure it passes NLRB muster – you don't want to find out the hard way that something is to be found illegal.

Finally, in the post yesterday 6/24/17, we were upbeat with 7 things you can do every day to help our oceans. These are not just for divers, but for everyone. The simple ways you can help include cutting down on plastics during mealtimes (buy reusable containers, bring silverware from home, and don't use straws that are not reusable). Also, change your coffee habits (paying attention now, aren't you?). How? Don't use disposable coffee cups (from the office or coffee shop) or Styrofoam – bring a reusable cup/mug. Also, don't use individual K-cups or similar products. They are indeed convenient, but they are not biodegradable or recyclable. Instead, get and use a reusable K-Cup (or reusable coffee filters if you don't use a Keurig). The other 5 items are in the post and are pretty easy too.

TAKEAWAY: Be a world steward – today and every day. Do your part to protect the oceans – they give us pleasure and are an important part of the food and water cycle. Just do it.


ICYMI: Our Social Media Posts This Week – June 11-17, 2017

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

In the post on Sunday 6/11/17 we learned that a staffing agency was sued for age bias. Yep. Allegedly (in a suit filed by the EEOC) it did not refer an applicant to a customer due to age. When the agency learned his birthdate, it emailed him with what will certainly be the centerpiece at trial – see the post for the meat!

TAKEAWAY: Make work-related decisions based on job performance and nothing else – this will help ensure that you do not find your name before the word "defendant' on a lawsuit.

The post on Monday 6/12/17 was about a former bank officer who filed a sex and age discrimination lawsuit. Why? Because the bank employer hired a younger, less qualified male. Sheryl, age 49, also alleged retaliation when she was fired after having filed complaints with the EEOC and FDIC. Some of the facts supporting her allegations are in the post, including ranking higher on the software program used by the employer to screen and categorize candidates. She even pointed out a white lie error on the male's CV.

TAKEAWAY: Don't take adverse action against an employee if it's not job-related. And if an employee files a charge or complaint of discrimination or harassment against your company, don't retaliate – instead, investigate and make sure there is no truth to the complaint.

In the post on Tuesday 6/13/17 were listed 5 tips to avoid this summer's legal hazards. So what are they? First, plan ahead for vacation requests – including making sure they comply with your policy. Next, remind staff about any applicable dress code. Evenly enforce it. Make sure not to interfere with any clothing worn for religious reasons. Reasons 3-5 are in the post.

TAKEAWAY: Each season has its own unique "dangers" and you must be aware of them all so you know how to deal with them – which might call for the assistance of legal counsel.

The post on Wednesday 6/14/17 talked about a lesbian suing over alleged anti-gay job discrimination at a bank. Penelope Hudson worked at the bank for 15 years until her discharge. Her suit alleged harassment, disparate treatment, and hostile work environment due to being a gay woman. Her complaint includes some alleged incidents, including being told her appearance was "too butch". More are in the post. The employer allegedly even tied in her FMLA request to being gay. See the post on that one too.

TAKEAWAY: The most interesting thing is probably that the suit was filed in a state that, similar to PA, has no state law protecting people form discrimination on the basis of sexual orientation or transgender status, but the suit was based on alleged violations of a city ordinance and Title VII. This is one to watch!

In the post on Thursday 6/15/17 we asked: so you received a demand letter, now what? (And said let us help you). The good news is that a demand letter is (usually) a prelude to a lawsuit, it is not a suit. It gives you a chance to resolve the matter before suit – and before you end up spending a lot of time and money on what could (to you at least) be a small matter. So what do you do? Think before you respond. Decide what your objective is and how that plays into the purpose of the demand letter. Also think about geography – in the sense of where any lawsuit might be brought and how easy or difficult that would make it for you to defend, including state versus federal court, your state (or locality) or another, and the rules of procedure and state laws that might apply to or govern your case. The other things to consider are in the post.

TAKEAWAY: It's never pleasant to be sued – but it happens. It is possible to avoid suit at times, but the best thing you can do after receiving a demand letter is to prepare for suit. This should include bringing your attorney into the loop to make sure your legal interests are protected in any action you decide to take (or not take).

The post on Friday 6/16/17 noted that the refusal to hire a medical marijuana user violated state law – and that PA will be facing this dilemma shortly. The case in the post was decided under Rhode Island law, but is instructive as PA winds its way down the road of legalized medical marijuana. In the case, the plaintiff applied for an internship and disclosed her legal medical marijuana status (because she could not pass the employer's required pre-employment drug test). The employer's policy is in the post. She was not hired and sued. Aptly, the court's ruling started with a Beatles quote on getting high and ended in favor of the plaintiff, finding an implied private right of action and the ability to bring suit under a disability claim even though there is no legal protection for illegal drug use and marijuana is illegal under federal law. The ruling had a thorough analysis including how both state and federal law could be accommodated – see the post.

TAKEAWAY: PA has in place a medical marijuana law and is in process of handing out licenses for growers and distributors; once that happens, it will be available to those with licenses to obtain it. Those people might be your current or future employees, so now is the time to put in place (legal) policies relative to medical marijuana in your workplace.

Finally, in the post yesterday 6/17/17 we learned that evidence of similarly-situated employees of the same race doom a discrimination suit. Here, the plaintiff alleged he was scrutinized more than others due to race or color. However, some of the employer's evidence, including that a Caucasian employee was terminated for safety violations a month prior to plaintiff's discharge and more things in the post. Also, those not disciplined included employees of the same race and color as the plaintiff. The court found no evidence of discrimination.

TAKEAWAY: You can't always avoid suit, but you can defend one once it is filed. Make sure that all adverse actions have a legal basis, then bring out that support to defend the suit.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – May 28 - June 3, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – May 21 - 27, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – May 14 - 20, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – May 7-13, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


ICYMI: Our Social Media Posts This Week – Apr. 30 - May 6, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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