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 7/22/18 we learned when a manager shouldn’t say ‘Good job!’ – and other pitfalls to avoid. Supervisors must be trained on what they can and cannot say to employees. Phrases like ““We are really looking for someone younger” and other things listed in the post should not be heard in the workplace. A restaurant learned this lesson the hard way when its managers did the things in the post. When employees do things they often do, what a manager should not say is in the post. And don’t say “Joe is just being Joe” for the reason in the post. More tips are in the post too.
TAKEAWAY: Supervisors can and should be complimentary when deserved, but there are other things they should be trained not to say – to protect the employer from potential future liability.
The post on Monday 7/23/18 told us Raley’s to pay clerk who said late shift before Thanksgiving was religious discrimination. Pay $140,000 (plus revise its policies). Jennifer Webb, a courtesy clerk, had been scheduled to work a Wednesday night shift the evening before Thanksgiving 2014.Webb is a Jehovah’s Witness and had told Raley’s supervisors before her hiring in May 2014 that she could not work shifts after 5 p.m. on Wednesdays and before 4 p.m. on Sundays because she had to attend religious meetings at those times. How Raley’s treated her at the beginning, and then how it changed, are in the post. As a good employee, Webb showed up at 2 pm on Thanksgiving, but when she told a supervisor she could not stay past 5 p.m., she was fired. Raley’s disputed Webb’s claims on the bases in the post.
TAKEAWAY: Employers must remember that the law trumps their business needs in most cases.
In the post on Tuesday 7/24/18 we learned that the purchaser bears the risk by not asking for a resale certificate. State law provides that upon request the association must provide a certificate, and only those amounts listed can be collected from the purchaser, but that presupposes a request. In the case in the post, the purchaser did not request a resale certificate, the Declaration (which was filed) provided the consequences of delinquencies, and the appeals court ruled in favor of the association (and its analysis is in the post).
TAKEAWAY: As seller or purchaser, know your rights and obligations relative to a residence in a condo or homeowners’ association.
The post on Wednesday 7/25/18 told us a sexual harassment claim was ordered to trial against Dollar General. The employee complained that her supervisor solicited sex from her and sent her lurid text messages (plus more – yes more – in the post). It was reported to the assistant store manager and lead sales associate. The assistant store manager personally saw one text message the store manager wrote to the employee in which he solicited sex from her. The post details what the assistant store manager did (which was all good) and the district manager’s response (which was not). And take note of employer’s knowledge of the applicable history as in the post. The store manager was eventually fired. The employee was also fired after a few months on the job for reasons unrelated to her report of sexual harassment. She filed an EEO complaint which resulted in the EEOC filing suit on her behalf. Why the court ruled against Dollar General on summary judgment is in the post.
TAKEAWAY: If there is a policy, follow it – timely and to the letter, otherwise it will not provide a defense to you if and when needed.
In the post on Thursday 7/26/18 it was noted: Too small for FMLA to apply? Don’t count on it. What does that mean? Either you have a sufficient number of employees for the FMLA to apply or not, right? Well … If there is no joint employer relationship, or other reason that the threshold number of employees is increased, then it won’t apply. But if you are like the case in the post … Don’t wait to be like the parties in the post.
TAKEAWAY: Employers should know whether or not they are legally deemed the employer for FMLA (and other) purposes. Consult employment law counsel to be sure.
The post on Friday 7/27/18 asked: Whose hide are you saving when you fail to terminate an employee who should be fired? (We also noted that the post would apply under PA law too.) We’ve all seen it (and perhaps lived it) – an employee should be discharged, but the employer decides to “keep trying”, that is, to find a way to save the employee’s job, even when everyone—including the employee—knows it’s futile. This scenario affects not only the employer and the employee, but others noted in the post. This is especially important in an at-will state (which PA is and which is defined in the post). Employers must look at the totality of the circumstances, not just hurt feelings relative to the termination.
TAKEAWAY: If there is a question as to whether an employee should be terminated, or what legal liability might flow from the termination, the employer should consult employment law counsel – but don’t just bury the issue in the sand to grow and raise its ugly head another day.
Finally, in the post yesterday 7/28/18 we read that an ADA lawsuit over lifting restrictions was reinstated. The background: Victor suffered a non-work-related shoulder injury and was granted medical leave in January 2012. Between March and December 2012, he asked to return to work with a lifting restriction that started at 30 pounds but lessened to 50 pounds. The employer rejected that, relying on the written job description that lifting 75 to 100 pounds is an essential job function. Victor sued; at the trial stage, he won on summary judgment (meaning there could be no issues of material fact in dispute that, when applied to the law, entitled Victor to judgment) but the case was reinstated on appeal. Why? For the reasons in the post.
TAKEAWAY: We continually advise employers to have in place accurate job descriptions; part of accuracy is that it actually tracks what the person(s) in the job actually do(es).
York, Pennsylvania 17403