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 8/11/19 we learned about a close call: winning ADA case by one vote, but the warning signals for employers are loud and clear. So what happened? Bilinsky started at American Airlines in 1991 as a communications specialist. There was no formal job description. Due to her medical condition (noted in the post), she was allowed to work remotely from Chicago despite her team being in Dallas. In 2013, American Airlines merged with US Airways, resulting in a restructuring of departments. Bilinsky’s position changed and she now had to be in Dallas. She said no. What then happened is in the post. After she was terminated, she sued under the ADA. The trial court found that she was not a qualified individual under the ADA. Bilinsky appealed. On appeal, the court had to determine the essential functions of the job since there was no job description. What the court did is in the post. Likewise, how it arrived at its decision is also in the post. On affirming, the court said that it was fact-specific.
TAKEAWAY: To ensure that you don’t end up fighting a similar battle, ensure that job descriptions are in place and accurate, even after changes to the job.
The post on Monday 8/12/19 asked whether to hug or not to hug: a 5-step guide to embracing at work. In today’s environment and culture, one cannot just hug colleagues. So how do you know whether or not to hug a co-worker? First, read the room. Think about the culture and geographic influence. Next, keep in mind the power dynamic. Meaning that the one in power should NOT be hugging. Even after asking, for the reason noted in the post. It might be ok between colleagues whose positions are on a par. Other tips are in the post.
TAKEAWAY: The safest way to proceed with hugging is not to do it unless you ask and are sure any affirmative response is not given under duress or pressure.
The post on Tuesday 8/13/19 asked: what type of antenna or dish must a condominium or homeowners’ association allow? Note the answer is not IF, but what kind. That is because of the rule noted in the post. The rule applies to video antennae (including direct to home satellite dishes of the listed size), TV antennas, and wireless cable antennas. What the rule prohibits is in the post. The rule was amended as also noted in the post. To whom the rule applies is in the post, as well as how, if at all, Associations’ limits are effective or valid.
TAKEAWAY: Know what can and cannot be restricted relative to antenna and dish installations – consult a community association lawyer for assistance.
The post on Wednesday 8/14/19 taught us that performance counseling and mediation are not adverse actions for federal discrimination purposes. We suggested you know what is and is not an adverse action. Hopefully you know that not everything unfavorable that occurs in the workplace is not illegal. Something must be adverse to be actionable, and even then not every adverse action qualifies. In the post, a new principal began to criticize Fields’ work and lesson plans, but did offer assistance with corrections. Suit was filed for race and age discrimination. What happened next is in the post; Then additional charges/claims were filed – see the post. On appeal, the court affirmed the trial court’s ruling. Its analysis is in the post.
TAKEAWAY: Let’s say it again: know what is and is not an adverse action. Run it by your employment lawyer first if you are not sure.
In the post on Thursday 8/15/19, we saw that a federal judge allows a sexually hostile environment discrimination suit to move forward. Kim filed suit against the Toyota dealership and its GM. Before she sued, she resigned after having worked there for almost 7 years. She quit because the GM intentionally antagonized her; the owner and HR were aware of some of what the GM did, including calling females staff names and other things noted in the post. The GM admitted to much of what was alleged and tried to explain it away as noted in the post. A male former employee testified that the GM did not treat women well, including the incidents noted in the post. With all that, the judge denied the dealership’s motion for summary judgment for the reasons in the post.
TAKEAWAY: Train your employees so they know what they can and cannot do and discharge them if they violate the law.
The post on Friday 8/16/19 talked about Amazon risking a legal gray area by indefinitely holding Alexa recordings. We asked about your “confidentiality” … Unless you’ve had your head in the sand, you know that Amazon confirmed in writing that Alexa’s transcripts and underlying data are not truly scrubbed from the cloud or third-parties. Even if the user manually deletes the recordings. Yes, Alexa gives notice of what it does and the ability to make changes; no, it doesn’t tell the things in the post. And does this violate US privacy laws? See the post. How this way of operating may pose a legal risk to Amazon is in the post.
TAKEAWAY: While AI can make your life easier, it also needs information and data to get to that point – and what it does with that information and data may reveal more about you to others than you want revealed, whether in life generally, at the workplace, or as part of a suit.
Finally, in the post yesterday 8/17/19 we saw that employee preference has little place in FMLA and FLSA compliance. We suggested you know what is required. Is it what the employee wants? What the employer provides? Something in the middle? Well, it depends (on what the applicable law requires). For example, employees can no longer ask that the employer not deem a qualifying leave as FMLA leave- why that is so is explained in the post. And what if the employee then decides not to take the leave? See the post and be careful how you proceed. Something else that is not necessarily optional or up to the preference of the employee is classification as an employee or contractor. Why not is explained in the post.
TAKEAWAY: Employers must know what is required of them, even if an employee requests a different outcome or different action. Stay on the right side of legal.
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