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 7/7/19 we learned that years later, women still fight Walmart over discrimination. Sometimes bravery is demonstrated on the battlefield of law. This battle started in 1993. Claire began a job at pace membership Warehouse and was the sole income in her household. Sam’s Club bought Pace soon thereafter; Claire was hopeful about her opportunities to advance based on materials Sam’s disseminated. What happened over the ensuing years is in the post (and, unfortunately, is not uncommon). At one point, a statement made by a district manager (noted in the post) just made no sense to her. But she kept going back, day after day until she left in 2002. Claire’s not the only one – there are hundreds who have filed suit as noted in the post. Most of them have similar general facts: earning less than men in similar roles, being told the men needed to support their families, and more as noted in the post. Note that Walmart has a history with class claims, starting in 2001 and detailed in the post. Some of the women still involved now were part of it back then too. The post also talks about others’ stories of pay discrimination based on gender and the reasons they were given in an attempt to justify the discrepancy. While Walmart says it has made changes to ensure pay equity (see the post), these women – and the EEOC – say it is not enough.
TAKEAWAY: Unless there is a valid LEGAL reason to the contrary, pay everyone doing essentially the same job the same wage. Really.
The post on Monday 7/8/19 told us that the Justice Department tells SCOTUS that Title VII applies when workers are denied transfer. Broad application. This encompasses lateral transfers, not just an adverse transfer. See the post for how this arose and the status of the case.
TAKEAWAY: If you don’t discriminate against employees on the basis of any protected characteristic, you don’t have to worry about whether adverse action is required to support a cause under Title VII.
The post on Tuesday 7/9/19 noted an association was sued over radon – be careful how you enforce architectural and similar rules/restrictions. You know what radon is, right? That odorless, colorless gas that is the second-leading cause of lung cancer in the US. It enters homes and, if above a certain level, should be remediated by installation of a system to vent it out of the home. Tony needed to mitigate his condo; the association put restrictions on what could happen and when as noted in the post. More about radon is in the post.
TAKEAWAY: While life in a planned community (one with a condo or homeowners’ association) is subject to legal documents including a Declaration, Bylaws and Rules/Regulations, those documents must be enforced evenly and reasonably 9and in legal fashion). Consult a community association lawyer for help.
The post on Wednesday 7/10/19 reminded us that when counseling jerk employees, focus on behavior. Yes, you know, the employee who is a jerk. So how do you counsel that person so as to stay out of lawsuit range? First, recognize that “jerk” is not a legally-protected class. You are entitled to, and should, discipline those employees. So what do you do? Don’t ask the cause of the jerkiness. DO take the steps noted in the post. DON’T delay just because the jerk is a long-time employee. Again, do act as suggested in the post.
TAKEAWAY: Don’t be an ostrich when it comes to jerk employees; if for no other reason than that their behavior might subject you to a hostile work environment claim by other employees, take action.
In the post on Thursday 7/11/19 we saw a court OKs prorated bonus for worker on FMLA leave. Here, Moody’s was the employer; it prorated a bonus based on the FMLA leave. Gregory was entitled to incentive payments based on his performance and that of his team. He took FMLA leave for cancer. Moody’s then prorated his bonus based on the absence (and lost production). Gregory sued, alleging FMLA interference. The federal court sided with Moody’s – its reasoning is in the post. And, based on the facts in the post, it makes sense (at least to this author).
TAKEAWAY: When one makes an interference claim, s/he must show that the employer actually interfered with the leave – which is hard to do if there has been no interference.
The post on Friday 7/12/19 told us that a failure to explain inconsistency between SSDI application and ADA claims results in dismissal. Sounds strange in light of the US Supreme Court case referred to in the post, right? Not really. In this case, the plaintiff voluntary quit after being required to cross-train for different positions. Then she filed for SSDI benefits; the basis she listed on that application is in the post. She then filed suit for an alleged ADA violation (failure to offer a reasonable accommodation). The employer asked that the suit be dismissed based on the difference in statements between the SSDI application and the lawsuit. The court here agreed with the employer for the reasons noted in the post and how that played out under the Supreme Court case.
TAKEAWAY: In any situation where failure to reasonably accommodate is the basis for suit, make sure the employee has only one position relative to the alleged disability. Get legal assistance.
Finally, in the post yesterday 7/13/19 we learned about reductions in force (RIF) and ADEA implications. So does an employees who was let go as part of a RIF when a younger employee was retained have a valid legal claim? The answer (as you suspected) is “it depends”. On the facts of course. In the case in the post, the company’s business decreased so it did a RIF and the plaintiff was terminated, but a much younger employee was not. The company’s reasons as noted in its motion to dismiss the case are in the post. What the court said when denying the motion to dismiss is also in the post. Of course, the President’s statement (in the post) didn’t help the company either…
TAKEAWAY: Just as with any other adverse action, make sure there is valid legal support for a RIF – engage an employment lawyer to keep you out of legal quicksand.
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