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 4/8/18 we read that the FMLA covers remote, mobile employees. Yep. Why? Because, as the post explains, the work site is the location to which the employee reports and from which assignments are made. That means the employee must get required notices and is entitled to all rights under the FMLA. The post gives some tips.
TAKEAWAY: Know who is entitled to protection under which law – before you have to respond to suit.
The post on Monday 4/9/18 told us to dig into harassment case to learn what really happened. Good advice! Let’s say an employee alleges sexual harassment by a supervisor? Do you take the employee at his/her word? No, you investigate. And maybe your situation will turn out like the one in the post!
TAKEAWAY: Documentation can be key, but any evidence to counter the allegations of harassment by an employee is helpful to defend an employer.
In the post on Tuesday 4/10/18 we learned that telecommuting becomes a more reasonable ADA accommodation every year. The ADA requires that an employer offer a reasonable accommodation if possible and not a hardship, but it does not specify what accommodation are reasonable or possible. That is left up to the parties in each situation. It may depend on the job description, actual practice, or something else, all as noted in the post.
TAKEAWAY: Interactivity is key to accommodation, but a starting point will be the essential functions listed in the job description and the actual practice.
The post on Wednesday 4/11/18 was about Association home front: wake-up call on playgrounds – exercise or peril? Associations, whether for condominium, townhouse, or single-family houses, need to know their rights and responsibilities relative to common facilities. In the case in the post, the association was found liable for the injury in an amount that far exceeded its insurance coverage. When might the association be found liable for injury? Examples are in the post. Associations need to have protocols and rules in place to deal with common elements and then follow those protocols.
TAKEAWAY: Every common element might lead to responsibility for the Association, so treat it with kid gloves and consult a lawyer knowledgeable in the area as to the legal ramifications.
In the post on Thursday 4/12/18 we saw that the ability to work a 12-hour shift wasn’t an ADA essential function (said the court). In keeping with this week’s mini-theme, we are reminded that the job description must contain the essential functions the employer actually believes are essential to the job. If not, something similar to what happened in the post might happen to you. Also, as noted in the post, the actual practice is important too.
TAKEAWAY: Have a job description, list the essential functions of the job, and follow the job description.
The post on Friday 4/13/18 asked: would the Stormy Daniels NDA be enforceable under Pennsylvania law? We all know that non-disclosure agreements, also referred to as confidentiality agreements, are disfavored, but they are certainly in vogue right now. Most include provisions in case of breach by the employee – see the post. In Stormy’s NDA, she was prohibited from speaking publicly about the behavior that is the subject of the agreement and there was huge penalty if she were to violate the agreement. Some other terms of the NDA are in the post, including an identification of the parties. The post analyzes the NDA under PA law as to whether or not it might be upheld.
TAKEAWAY: If you insist on having a restrictive covenant, make sure an attorney vets it for (probable) validity and enforceability.
Finally, in the post yesterday 4/14/18, we noted a plant manager’s texts could be sexual harassment. Samantha was an inventory control supervisor for Coca-Cola. Her plant manager sent her over 5000 texts – he also did more noted in the post. It all created problems in her marriage and made his wife come to the workplace (why? See the post). The supervisor ended up being transferred but his harassment didn’t stop. Yep, he did these things noted in the post. Why does it matter that he continued the actions? Because it showed a pattern or practice that brought in behaviors prior to the look-back deadline date. Other things that the court ruled on are in the post.
TAKEAWAY: To avoid this type of situation, train your employees and make sure they follow the training – take action if they stray.
York, Pennsylvania 17403