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 7/1/18 we saw that the EEOC filed seven suits for harassment (and noted that was probably not lucky #7). The suits span state lines. In one suit, a shipbuilder was sue for race and same-sex sexual harassment against a male Asian-American and 3 African-American employees. How? See the post for details (which are not pretty). In another suit, a staffing service was sued for allowing female employees to be subjected to sexual harassment. Again, the post contains the allegations. Another company was sued for allegedly subjecting female employees to unwelcome physical and verbal sexual harassment – the details are in the post. The fifth suit was filed against a trucking company for alleged sexual harassment and threats against a female truck driver. The post tells more details. Suit #5 was filed with allegations that female employees were subjected to ongoing verbal and physical sexual harassment and retaliation in North Hollywood – what happened is true Hollywood – and in the post. The next suit also alleged sexual harassment of female employees; the last suit alleged a sexually hostile work environment. Details for both are in the post. How the suits will turn out remains to be seen.
TAKEAWAY: The EEOC takes harassment seriously, and even more so in the #MeToo era. Just don’t do it.
The post on Monday 7/2/18 was a good reminder: if discipline differs, note why. Simple but effective. Here, Debra was an at-will employee who got fired after working at the company 15 years. What she (allegedly) did is in the post. She sued, alleging that 4 men were not fired after what they did (also in the post). The employer explained the differences in the employees’ actions and why their discipline varied from Debra’s. Yep, see the post. The Court, which governs us here, agreed and dismissed the suit.
TAKEAWAY: Given the same set of circumstances, enforcement should be uniform. But if facts differ, the treatment arising from those facts might also differ. Know when variation is legal.
In the post on Tuesday 7/3/18 we learned that a college and its president filed a motion to dismiss “Jewish blood” Title VII claims. The background is that a former coaching prospect filed suit, claiming he was not hired due to having “Jewish blood”. He later amended his complaint to add race discrimination. The defendants requested dismissal, saying that Jewish ancestry does not qualify as a race. Other defenses are noted in the post. The applicant’s reply to the dismissal request is also noted in the post. The motions have not yet been decided.
TAKEAWAY: If you (intend to) take adverse action against an employee or applicant, make sure it is legal and not abed on any protected characteristic. Check with an employment law attorney if you are not sure.
The posts on Wednesday 7/4/18, here and here, celebrated Independence Day – and asked that you remember we are not (legally) independent until harassment and discrimination are gone.
TAKEAWAY: Independence has many forms – none of it involves treating others differently because of a protected characteristic.
In the post on Thursday 7/5/18 we saw that yes, overtime can be an essential job function. A federal court recently confirmed this. McNeil was hired by the railroad as a critical call dispatcher. They were scheduled for 8.25 hour shifts and subject to mandatory overtime if staffing needs so required. More about the job duties is in the post. In early 2014, McNeil took FMLA leave to care for a parent. She received short-term disability while on leave. She then went on long-term disability. When that was about to end, she provided medical records supporting a request for accommodation including no overtime work. She was terminated and sued. The Court’s analysis and reasoning is in the post.
TAKEAWAY: Make sure the job duties and job description are clear on what is and is not an essential duty.
The post on Friday 7/6/18 was a reminder to review your handbook or policy manual for at-will conflicts (and then contact us to help). You should know that PA is a strong at-will state, meaning that the employee can quit or be fired with no notice and no reason, as long as the dischargen is not for an illegal basis. But as the post shows, there could be exceptions. Jesse was an at-will employee who got fired and sued. The court allowed him to continue his suit anyway for the reasons in the post.
TAKEAWAY: Have an employment lawyer review your handbook or policy manual and any contracts to ensure that there are no conflicts – and then make sure all actions are taken in compliance with those documents.
Finally, in the post yesterday 7/7/18 we saw that an employer paid $63K for failing to offer the employee FMLA. A roofing company knew that its employee had a serious health condition, but did not offer FMLA protection. What else did it do (illegally)? See the post. In the end, it paid over $30K for compensatory damages and the same amount for liquidated damages.
TAKEAWAY: It’s expensive to stick your head in the sane – don’t. Know what the law requires and do it.
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