ICYMI: Our Social Media Posts This Week – Dec. 4-10, 2016

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 12/04/16 we noted a poor performing employee cannot shift the ADA interactive process obligation. The employee had an accident; the employer offered a transfer to an administrative (from a manual labor) position. He accepted but was unsure if he could do the job. The employer gave him training and let him shadow someone. What did the employee do? He didn’t do the additional training, missed work with no notice, and arrived late and left early. But he was not discharged. No, the employer tried to find other placements for him. When it could not, he was discharged for poor performance. He sued for failure to accommodate. (More details are in the post.) The court said the employee had a duty to at least try in good faith in the administrative position, which he did not do. That halted the employer’s accommodation obligation and allowed discharge.

TAKEAWAY: While the accommodation process is a must, it is still a two-way street and both the employee and employer must participate in good faith.

The post on Monday 12/05/16 said a supervisor’s remark could be used as direct evidence of discriminatory bias. Ouch. The background is that a female healthcare worker was passed over for promotion despite having more experience. The reason given for the failure to promote included a reference to her having bene out on maternity leave. That one comment was all the court needed to let the case go forward. The post gives more details.

TAKEAWAY: Train your employees in what to say – and not to say – to employees. Their words can land you in hot water from which it is difficult to escape unscathed.

In the post on Tuesday 12/06/16 we noted that sometimes quantity CAN be the deciding factor. To what, you ask? Poor performance. We all know (or should) that the FMLA does not require a reduction in performance standards for an employee on intermittent leave (or a reduced work schedule). But the employer might have to adjust productivity requirements based on the leave to see if quotas have been met. As the post notes, this is a quantity adjustment that takes out of the equation the FMLA leave (thus being fairer to the employee). If the employee still can’t meet standards, adverse actin may be warranted.

TAKEAWAY: It is true that an employer cannot take adverse actin because the employee was out on approved FMLA leave. However, if a quota is adjusted for the time out on leave and the employee de not meet the adjusted quota, then adverse action may well be legal.

The post on Wednesday 12/07/16 was about planes, trains and automobiles: paying for travel time. The issue is whether or not the employer must pay for travel time by non-exempt employees. Pennsylvania employers should look to the FLSA for the answer, but the post gives some hints. For example, it notes that travel to and from work is generally not compensable (the post does note an exception). A big question always seems to arise relative to travel for business. Actual travel is normally time worked for which the employee must be paid. However, meals (with an exception noted in the post) and commuting between the residence and travel depot is normally not compensable. These rules apply both during the regular workweek and weekends (or other usual days off).

TAKEAWAY: Know for what travel time your employees must be paid to avoid a possible later suit.

In the post on Thursday 12/8/16 we talked about settlement of a same-sex harassment suit. The headline of the article does not bode well: female sales consultant was subjected to unwelcome sexual comments and groping by female co-worker. According to the complaint, despite a member of management witnessing much of the offensive conduct and the employee complaining, nothing was done to stop the conduct. The employer will pay $50,000 and other equitable relief to settle the case.

TAKEAWAY: Remember that sexual harassment is illegal, period. Stop it as soon as you are made aware of it.

The post on Friday 12/9/16 notes a lawsuit accusing Facebook of violating the 1964 Civil Rights Act. I wondered why it took so long for someone to file such a suit. The suit, which was filed as a class action, is based on a feature that allows advertisers to target users by race and ethnicity (by using the “Narrow Audience” feature to exclude certain demographics). The post contains a bit more background.  

TAKEAWAY: Be it employment or any other place of public accommodation, Title VII does not allow for discrimination on the basis of race or ethnicity. Just don’t do it.

Finally, the post yesterday 12/10/16 was about a gender-specific bathroom ban for a transgender police officer landing the school employer in hot water. It seems like a gender-neutral bathroom would resolve all issues relative to bathroom use, right? Nope. So what happened? Bradley began employment in 1992 as Brandily, a female. He eventually became a police officer and served for 17 years. In 2011, he began dressing like a man, identifying as a man, and using the men’s bathroom at work. Complaints from male coworkers soon followed. He told his bosses he was transgender and transitioning (with more details in the post). He was banned from the men’s bathroom and told to use the gender-neutral bathroom (plus other things listed in the post – ugh). The school district then distributed a memo about his situation; he eventually filed an administrative agency complaint for gender-identity discrimination and harassment. The school district then reversed the male bathroom ban. However, when his records were not updated, he sued under federal and state law. Both Bradley and the school district filed for partial summary judgment (the school district’s initial defense is in the post). The judge made several rulings: Title VII applies to gender identity (stereotypes about sex), there was direct evidence of discriminatory intent, and the bathroom ban was an adverse action for which the school district had no legitimate nondiscriminatory reason. The judge also denied summary judgment on the harassment and retaliation claims.

TAKEAWAY: Make sure that if you take an action seemingly in accord with the law, it really is legal – and not based on an underlying intent to discriminate.

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