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 8/5/18 we saw that the US Supreme Court will hear an age discrimination case against the Mt. Lemmon Fire District. This is a narrow question with broad implications. It concerns the ability of the Fire District to fire its two oldest employees. The narrowness is because the whole case turns on a single legal point: can government employers be too small to have to comply with federal anti-discrimination laws. There is a minimum number of employees required as a threshold for private employers, but the statute is silent as to public employers. Argument in favor of and against application of a floor are in the post.
TAKEAWAY: Of course the safest ways for public employers to proceed is to act as if the private-sector floor applies or not to take adverse action against those in the age-protected category.
The post on Monday 8/6/18 talked about how NOT to address your employees. Here, the 2 plaintiffs, Julianne Taaffe and Kathryn Moon, had worked in the ESL program at Ohio State since 1983, teaching students from 40 countries. In 2009, when a new program director began disparaging them and other veteran ESL staffers while promoting younger and less experienced people, they wondered if they had done something wrong. But they knew they had not. That was confirmed in 2010 when an email from their boss was inadvertently copied to another staff member. The post contains the contents of that email. The post also contains some ways in which the boss referred to older members of his staff. An internal complaint resulted in no action being taken. After the EEOC got involved, things happened. See the post for the next occurrences.
TAKEAWAY: the age discrimination laws apply to state employers too – but with more limitations on damages. All employers should take care not to act adversely against older employees without valid, legal basis.
In the post on Tuesday 8/7/18 we were told that a trial date was set in a veteran’s fight against a homeowner’s association. The post was actually a video. It is about an association fining the owner for displaying a flag and how that plays out with rules agaisnt it.
TAKEAWAY: Living in a condo or homeowner’s association comes with rules, but there is also the Flag Act.
The post on Wednesday 8/8/18 reminded that Yes, you should explain different discipline for the same offense. Employers are always cautioned to have in place rules/policies and to evenly enforce them, right? In the post, that did not happen – or did it? Read the post.
TAKEAWAY: Make sure that if a policy is not evenly applied, you have support for the difference.
In the post on Thursday 8/9/18 we saw that employers often designate leave as FMLA despite objections. Is that ok? The post has the short answer and some of the reasons the employee might not want to use FMLA leave time. The post also talks about why an employer may or may not want to designate leave as FMLA leave.
TAKEAWAY: Know the implications of designating leave as FMLA leave – talk to an employment law attorney.
The post on Friday 8/10/18 was about the Workforce Mobility Act possibly being the wrong solution for non-compete litigation. What does the Act do? It imposes a flat ban on all covenants not to compete for all U.S. employers and employees engaged in “commerce”. It is pretty broad. The post mentions how the bill defines a “covenant not to compete” and that it provides for civil fines and a private right of action (including punitive damages) against violating employers, along with carving out confidentiality provisions consistent with the Defend Trade Secrets Act, 18 U.S.C. §1836. The post also mentions many legitimate uses for non-compete agreements, most of which appear not to have been taken into consideration by the Bill’s supporters. And in what court do you want to have a suit over a non-compete? You may have no choice under the Act.
TAKEAWAY: While well-meant, the pending legislation may (once again) do more harm than good as its net sweeps too broadly. Stay tuned.
Finally, in the post yesterday 8/11/18 we saw that a federal judge initially accepted allegations that discrimination for “Jewish blood” is illegal racism. So this small Southern Baptist college in Pineville, LA tried to get dismissed a lawsuit alleging that it refused to hire a football coach because he has “Jewish blood”. The post includes the court’s ruling – it is well worth the read! The plaintiff, Joshua Bonadona, was the top-ranked applicant for the job and a 2013 graduate of that school. The judge considered the definitional distinction between “descent” and “blood” and then quickly tossed it aside as irrelevant. More of the background facts relief on by the judge are in the post.
TAKEAWAY: Don’t take adverse action against someone based on a protected characteristic – and if/when you do, don’t try to push it under the rug with a small, ineffectual brush.
York, Pennsylvania 17403