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.
On Sunday 8/2/15 the post listed 6 legal requirements employers should watch in 2015. So what are they? (1) More accommodation for pregnant employees. (2) Breast-feeding in the workplace. (3) Minimum wage exceptions. The other 3 are in the post.
TAKEAWAY: There are so many things that an employer must be aware of and watch out for that one’s head can spin, but certain areas garner more attention than others from those charged with enforcement. It only makes sense for employers to look more carefully at those areas too.
The post on Monday 8/3/15 was about a lawsuit accusing Tata of favoring South Asians and discriminating against American workers. Hmmm. The suit was filed in federal court in CA by a non-South Asian employee claiming that 95% of the 14,000 Tata employees are South Asian or mostly Indian, such that the workforce is grossly disproportionate. The suit says that Tata discriminates by hiring from those holding H-1B visas (which are primarily for those from India), mostly hiring South Asians when hiring domestically, and disfavoring the few non-South Asians employees in placement, promotion and termination. The suit seeks class action certification. Tata plans to “vigorously defend” the allegations.
TAKEAWAY: Numbers don’t lie; when your workforce is disproportionate and you either don’t care or don’t do anything about it, you may be in legal hot water.
In the post on Tuesday 8/4/15, we asked when is an employee legally working? The question is simple, but the answer not so much. The answer is important though as it can affect employers and employees under many laws, both state and federal. After a bit of history, the post talks about a federal case in which casino security guards had to remain on premises, monitor two-way radios, and respond to emergencies during their meal breaks. The court focused on whether the meal time benefitted primarily the employer or employees. For the court’s decision, go to the post.
TAKEAWAY: Just as proper classification as an employee or contractor is important, so too is whether what the person is doing is compensable or not.
The post on Wednesday 8/5/15 was about the importance of documenting performance. I know you’ve heard me say it before, but I will again: in real estate it’s location location location, and similarly in the employment arena, it’s document document document. Whether using paper and pen(cil) or doing it electronically, make sure to document things about the person’s performance. If you take an adverse action and there is nothing to support it, your back will be against the wall. In the case in the post, Addiel, a hotel chef, was not the best of employees BUT his employer did not document anything in his personnel file. And as if that wasn’t enough, Addiel also alleges that the hotel’s GM of HR told him he was “no longer capable to work at the line because you are old”. Suit was brought for age discrimination; the hotel argued that his termination was based on poor performance but when there was no substantiation, the court ruled against it. (It didn’t help that the hotel didn’t follow its own disciplinary policy either.)
TAKEAWAY: To withstand allegations of illegal discrimination, make sure adverse employment actions are based on performance and that the personnel file contains support for the action.
The post on Thursday 8/6/15 asked who doesn’t like non-competes? The answer seems to be that nobody dislikes them or, conversely, everyone (or at least every employer) wants them. For all employees, not just managerial employees usually associated with non-compete agreements. Make sure you know what the law requires in order that a non-compete be held valid and enforceable (otherwise is no point in having one).
TAKEAWAY: Non-competes are legal agreements and, as such, you should have them prepared by an attorney to cover the specific facts of each position; otherwise you are jeopardizing the enforceability of the agreement.
The post on Friday 8/7/15 told us about a former Harvard professor suing for sex discrimination in tenure denial. The suit, brought under Title IX, alleges that she was denied tenure, retaliated against, paid less, and given less work space because of her advocacy work involving victims of sexual assault. More details about the allegations are in the post. The professor alleges that when questioned by her, Harvard admitted that her political activities contributed to the negative tenure review (and resulting dismissal). However, Harvard’s legal counsel now says that there is no merit to the allegations.
TAKEAWAY: Some employers must be concerned not only with Title VII (and the anti-retaliation provisions of other statutes), but also Title IX.
Finally, the post yesterday 8/8/15 was about when volunteers become employees under anti-discrimination laws. The post links to an article written by my colleague and Connecticut attorney Dan Schwartz; he talks about this in the context of CT law, but it can be applied generally to PA relationships too. The question is, “when that person is carrying out important functions related to the mission of the agency and acting under the direct supervision of the leadership of the agency, can claims of discrimination be brought ….” The CT court faced with the question decided that what matters in determining whether the person was an employee is whether and how s/he was remunerated. The post gives more details on what could constitute remuneration for these purposes.
TAKEAWAY: As in other areas of the law, just because you decide someone is in a position other than employee does not make it legally so; to be sure, discuss the situation with a lawyer well-versed in employment law (or literally pay for the consequences).
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