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 2/3/19 we learned about having no hippopotamus for Christmas – employee requests for service animal accommodations. OK, the ‘service hippo” is a bit extreme, but you still need to know how to respond if an employee asks to bring a service animal to the workplace, especially a non-traditional animal. The first step is defining “service animal”. See the post for that. The next step is determining what is reasonable in each set of circumstances. The post uses one industry as an example – with an outcome that might surprise you.
TAKEAWAY: A reasonable accommodation request under the ADA starts the interactive process – that does not change when the request is for a service animal. Know all parties’ rights and responsibilities and involve an employment lawyer to keep you on the right side of legal.
The post on Monday 2/4/19 told us that an employer’s litigation hold is not unlawful, NLRB advice says to ALL employers. But a directive for employees not to discuss a case which involved wage issues WAS unlawful. Beware how you fulfill your legal duty of preservation. So where does this all come from? Remember that the NLRB, which pertains to ALL workplaces when it comes to protected activities, was looking closely at handbooks and policy manuals. As part of that, in late December 2018 it released an Advice memorandum (from October 2018) evaluating an employer’s directive that employees preserve all communications relative to a wage and hour class action matter. Exactly what the employer said to its employees is in the post. The employer also did something else noted in the post. One employee filed a charge alleging a violation of his Section 7 rights. The memo says that the first directive from the employer was unlawful; the reasoning is in the post. On the contrary, the litigation hold was not unlawful for the reasons in the post.
TAKEAWAY: Know what might be considered to interfere with protected rights, even in a non-Union workplace. Check with labor & employment counsel if you’re not sure.
In the post on Tuesday 2/5/19 we asked: What if any are the requirements to serve on your homeowners or condo Association Board? Can a tenant be a Board member? What about an owner who is delinquent in paying assessments/dues? The answer is “it depends”. On what the Association’s Governing Documents say. One type of example is in the post.
TAKEAWAY: Know who is eligible to serve on the Board of your Association – contact a community association attorney if you need assistance with determining eligibility or amending Governing Documents.
The post on Wednesday 2/6/19 was a reminder about harassment in the workplace: document details and track complaints. In real estate, it’s location location location. In the workplace, it’s document document document. Whether hard or electronic, do it. Document EVERYTHING. An example of how this all plays out is in the post. Bridgette was one of the few females working on a service truck in her company (and the industry). The company policy promised confidentiality to the extent possible. Other handbook promises are in the post. Bridgette reported harassment and provided the details requested by management. What happened next is in the post. When Bridgette asked to take it further, the company gave instructions as to how to proceed; Bridgette didn’t follow up. After she was discharged, she sued. The post tells how the court ruled and why.
TAKEAWAY: If you have in place a complaint procedure, make sure it is followed (by employees and management) to the letter. If there isn’t one, put one in place (and follow it). Help yourself while there is time.
In the post on Thursday 2/7/19 we saw a Court grants judgment for employer where decision-maker was unaware of Plaintiff’s medical history. Often an employer is loath to act against an employee who has medical issues, but if done property, it is perfectly legal. In the post, the plaintiff was a team leader in the IT department. Colleagues knew about some of his medical issues (as outlined in the post). When a third-party found performance issues, the plaintiff was discharged. He sued for disability discrimination. How and why the court ruled are in the post.
TAKEAWAY: Any adverse decisions should always be based on fact, not a protected characteristic or what someone else says/reports.
The post on Friday 2/8/19 noted that independent contractor misclassification can result in big fines. Remember, labels aren’t everything. A rose by any other name … Pick your analogy, you can’t game the system. The game cost the companies in the post $3.2M. The companies were all owned by the same person. He had drivers be hired as contractors by one of the companies and then assigned them to drive for the other 2 companies. How it worked is in the post. And why the settlement included reclassifying them as employees is also in the post.
TAKEAWAY: There are ways to properly and legally establish an independent contractor relationship – discuss it with your employment counsel to make sure it is done right.
Finally, in the post yesterday 2/9/19 we saw that an FMLA claim was not barred by failure to tell proper manager about absence. So what happened? The plaintiff was hired as a supervisor, working under the director. She started treating for eye problems that related to diabetes. Eventually she received a severe diagnosis (see the post). That eventually led to her requesting, and the company approving, intermittent FMLA leave. When she needed to take it one day, she did not follow the required chain of command. She was fired. She sued for an FMLA violation. Why the court denied the employer’s motion for summary judgment is in the post.
TAKEAWAY: As in our Takeaway relative to the post on Wednesday, if there is a policy, make sure it is followed to the “T” by employees and management; if it isn’t, it won’t provide the support it is meant to.
York, Pennsylvania 17403