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 4/29/18 we saw a court ruling highlighting when alcohol is and isn’t ADA-protected. James filed suit, alleging disability discrimination based on being a recovering alcoholic. The acts he cites to in support of his allegations are in the post. His suit was not successful for 2 reasons. First, he didn’t prove that the alleged acts were related to his alcoholism. The second reason is in the post and is even more key.
TAKEAWAY: Claiming a disability and proving it are not the same – and employers should make employees scale that height.
The post on Monday 4/30/18 warned to watch out for Section 1981, the ancient law that can put your own assets at risk. Most people are aware of Section 1983 in the civil rights context. But are you aware of another federal statue commonly referred to as Section 1981? You should be! Here, Nelly, a Hispanic women from Ecuador, was a housekeeper. She alleged constant offensive harassment based on race ad national origin. Examples are in the post. When she was unable to sue under Title VII (for procedural reasons), she sued under Section 1981. The theory of her case is in the post. And that theory will get her to trial (unless the case settles).
TAKEAWAY: If your personal assets are on the line, and for bigger numbers, know what the law says and what you need to know or do to defend against a suit brought under it.
In the post on Tuesday 5/1/18 we read: “We did not sign up to work at a strip club”: former servers allege sexual harassment at ‘breastaurant“. You’ve read about Hooters Girls, now read about the Twin Peaks Girls. They had to be physically fit and wear a tight T-shirt (showing cleavage and some midriff below the belly button), short khaki shorts and knee-high mountain boots. Getting the mental picture? Then put those girls in a line-up … and the other things alleged to have happened as noted in the post (make sure to read all the way to the end as the allegations are intersperse throughout the post). As if that wasn’t bad enough, the employees had to sign something talking about the essence of their role – see the post – that gave the charges even more credence. And how many suits will have police as witnesses?!?! Two of the charges were filed by women, the third by a gay man. And when the women complained – what management said is in the post.
TAKEAWAY: Know the limits of requirements for uniforms/required clothing and don’t push them – or you too might find yourself as a defendant.
The post on Wednesday 5/2/18 alerted us that legislation assigning investigation and mediation of certain complaints re planned communities and condominiums to Bureau of Consumer Protection is on the way to the Governor for signature. Wonder how this will work out?
TAKEAWAY: Keep up with the law. Know what the law requires and of whom.
In the post on Thursday 5/3/18 we saw that the EEOC sues Arby’s franchisee over alleged sexual harassment. We also noted that’s not the kind of meat the commercials refer to (you know: “Arby’s has got the meats.”) So what happened? The EEOC filed suit alleging sexual harassment of teenaged female employees, including hiring a team leader trainee with a known history of sexual harassment (whose alleged actions are in the post), deliberate touching (detailed in the post) and more. Despite complaints, management did nothing until the harasser physically injured one of the girls. The franchisee has not yet responded.
TAKEAWAY: if you know about illegal actions taken by an employee, take immediate action to stop it (and don’t put the person in a position of being able to repeat the actions in the future).
The post on Friday 5/4/18 referenced DOL opinion letters under the FLSA on pay for time spend travelling away from home and non-exempt employee’s 15-minuite rest breaks necessary under the FMLA due to a serious health condition. The first opinion letter (released 4/12/18) addresses whether an employee is entitled to pay for time spent raveling away from home and tells when it is compensable (see the post). Another opinion letter (released the same day) provides guidance on whether a non-exempt employee who takes 15-minute breaks which are FMLA approved is entitled to compensation for the breaks. The opinion analyzes if and how these breaks differ from other breaks and why they are or are not compensable – see the post.
TAKEAWAY: As important as knowing what to pay employees is knowing for what to pay them – know the law and be in contact with an attorney who can help.
Finally, in the post yesterday 5/5/18 we read that an employee may have to take paid leave and FMLA leave concurrently. We noted this does not require a new law or new interpretation. In the post, the state had enacted paid family leave. But often companies have a policy for some sort of paid family leave. In either scenario, employers should determine whether or not the leaves run concurrently (so as to minimize the employee’s time out of work) and what portions are paid and unpaid. The post gives some examples.
TAKEAWAY: If the leave qualifies under the FMLA, then it should be required to run concurrent with FMLA leave time and is only paid to the extent of any paid time provided by the company (or applicable state law).
York, Pennsylvania 17403