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 4/30/17 we asked: Are customer lists a trade secret? We also noted they probably are under PA law, but you should ask an attorney to be sure. The real answer may be “it depends” – on what is sought to be classified as a trade secret and how the state’s trade secrets law applies. The post gave some hints on what may or may not qualify.
TAKEAWAY: Anything that is publicly available will not be classified as a trade secret, but for other things, “it depends”, so as an employment law attorney.
The post on Monday 5/1/17 posed a question: Tattoo U: what can employers do about offensive body art? Sometimes tattoos or other body art are included within a dress or grooming policy. But sometimes not. Any such policy should be reasonable and follow the other tips in the post.
TAKEAWAY: Make sure any policy on body art is legal and reasonable – we can help you.
In the post on Tuesday 5/2/17 we told you how to hire an intern and not end up with an employee (aka, Do it right). These are the lessons of earlier lawsuits under the FLSA asking for minimum wages and overtime pay. The post reviews the 6 factors from the US Department of Labor to be considered an intern (and thus not subject to minimum wage or overtime pay requirements). They include that the internship is similar to training given in an educational environment (although it can include actual operations), the internship experience is for the benefit of the intern, and 4 others in the post. A good idea is to have the intern sign an agreement with the items listed in the post. Also be careful when dealing with international interns as a different set of rules applies.
TAKEAWAY: Summer is almost here – do it the right way with any interns you take on or be prepared to meet the requirements of the FLSA.
The post on Wednesday 5/3/17 noted that ignorance may not be bliss – Court rules against employer on ADA claim. In the federal case, the plaintiff alleged that she suffered from cyclic vomiting syndrome, her absences were a result, and her termination was discrimination based on her disability. More details are in the post. The employer, a medical center, said she did not disclose the condition to her supervisor and thus it had no notice. There was no question as to whether or not there was a qualifying disability. The question was whether or not the employer was on notice of its need to accommodate. The Court found it was (for the reasons in the post).
TAKEAWAY: It doesn’t take much for an ADA plaintiff to meet his/her burden of showing an inference of termination (or other adverse action) based on a disability – make sure any such action has a legally-supportable basis.
In the post on Thursday 5/4/17 we pointed to a study finding bullying is driving LGBTQ people out of tech. The study found LGBTQ people were almost twice as likely to be bullied and 64% said that contributed to them leaving the company. The study also offered tips to prevent this turnover – which costs employers money due to having to replace workers – including developing top-down diversity and inclusion strategies and 2 others in the post.
TAKEAWAY: Sex, and sexual orientation, are not relevant to any job – so don’t even bring them into the equation. Just don’t do it.
The post on Friday 5/5/17 noted that Americans United says “religious beliefs are not a justification for discrimination” and suits are pending in many courts. This issue will probably end up at the US Supreme Court. Currently, a case pending in a federal appeals court deals with a transgender woman fired in August 2013 from a funeral home; the lower court found no discrimination. Details about that case are in the post. The lower court found that sex discrimination was a viable claim (for failing to conform to sex- or gender-based stereotypes) but the employer then amended its defense to include the Constitution’s Free Exercise Clause and the Religious Freedom Restoration Act (RFRA) following the Hobby Lobby case. The lower court agreed and then the EEOC appealed.
TAKEAWAY: Pennsylvania courts have no definitive ruling yet on whether sexual orientation is a prohibited basis of discrimination in the workplace. But just because there is no law doesn’t mean employers should act on it.
Finally, in the post yesterday 5/6/17 we talked about the reasonable accommodation you can’t afford to forget. What is it? Reassignment. You don’t have to create a new job, but you do have to consider open positions as a reasonable accommodation under the ADA. The post gives the prerequisites for reassignment to be an option, who should identify the position, and when reassignment need not be considered. In the case in the post, the employer did not consider reassignment despite the employee saying he was willing. The employer ended up settling by paying $90,000 in back pay, interest and compensatory damages, plus reinstatement with retroactive seniority and benefits.
TAKEAWAY: Don’t be party to an expensive lesson – document any open positions when considering reasonable accommodations and why they would not be successful or present an undue hardship.
York, Pennsylvania 17403