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 2/17/19 we looked at military leave and health benefits under USERRA (and noted that as more veterans are in the workforce, you need to know this). You should know that USERRA requires an employer to restore an employee to his or her previous position of employment upon returning from military duty. But do you know what happens when the person is away on military leave? For the most part, whatever is offered to those on other types of non-military leave. As for health / medical benefits, there are some things to know. Coverage is talked about in the post, as is how to elect it. Likewise, the post reviews whether the employer can make the employee pay for premiums during military leave. Finally, the post mentions situations where the employee might want to discontinue coverage.
TAKEAWAY: As with other applicable laws, know what USERRA says are the rights and responsibilities of both the employee and employer – before you need to apply it.
The post on Monday 2/18/19 told us that reporting to work impaired, failing drug test, and failing to request accommodation doom employees’ ADA discrimination lawsuits. Yep, seems about right … Here, a federal appellate court was faced with several ADA-related claims after an employee had reported to work under the influence of drugs. The Court did the standard burden-shifting analysis on the discrimination claim and found that the plaintiff had a disability and was discharged. It then looked at the employer’s reason for termination (see the post) and whether the employee rebutted that reason (again in the post). The Court next analyzed the failure to accommodate and retaliation claims; see the post. Ironically, and perhaps because of the analysis, the next day a different federal appellate court came to the same decision on similar facts (that are noted in the post.
TAKEAWAY: Know what is required of each party under the ADA and how it will play out in a court of law. Consult employment counsel if necessary.
In the post on Tuesday 2/19/19 we asked: Can neighbor dictate improvements to your home if you live in a condo or homeowners’ association? The answer is my favorite: it depends. On what? The Governing Documents (Declaration, Bylaws, Rules/Regulations). There might be provisions such as those in the post. There might be an architectural of other committee or groups that has some say. There might be applicable law (like in the post).
TAKEAWAY: know what you can and cannot do – check the Governing Documents before you make any change in your home if you are in a planned community.
The post on Wednesday 2/20/19 noted that the Bird Box method won’t work for HR (and suggested that if this is you or your company, you contact me for help). Bird Box as in the Netflix movie. Have you seen it? It has generated many mems on social media, including the one in the first paragraph of the post. Sort of an updated version of sticking your head in the sand. And the parallel to the workplace: HR cannot stick its head in the sand to things that are happening (or should happen and are not). Some examples of things that happen that shouldn’t where HR needs to step in: people telling dirty jokes at the water cooler and laughing along; receiving, or even forwarding, off-color or racially-insensitive jokes in emails from co-workers; and more things that could be considered harassment as listed in the post. What about someone struggling to do some or all if her job and you can observe a disability or have been told about it? Have you then taken any of the actions in the post that might qualify as failure to engage in the interactive accommodation process? More head in the sand things: overlooking wage and hour violations, dispensing with corrective action for poor job performance, and more in the post.
TAKEAWAY: Don’t let your company, whether HR or anyone else, use the Bird Box method – it could lead to liability for you.
In the post on Thursday 2/21/19 we read about Hilton employees being fired after being accused of racism. We commented that it is nice to see quick and proper action! Employees at the DoubleTree by Hilton in Portland allegedly evicted a black guest who was speaking on a mobile phone in the lobby. Allegedly a Caucasian security guard asked for the guest’s room number. What happened after that is in the post. So the guest accused the hotel as noted in the post. As well he should have.
TAKEAWAY: Train your employees to do their jobs color-blind – and blind when it comes to any other protected characteristic too.
The post on Friday 2/22/19 was another about Hilton Hotels and told us about a dishwasher awarded $21 million after boss made her work on Sundays. Not a good week (in this blog) for Hilton. Marie worked as a dishwasher at the Conrad Miami. She is a member of the Soldiers of Christ Church which is a Catholic missionary group that helps the poor. She told the hotel from the start that she could not work Sundays due to her religious beliefs. They scheduled her on a Sunday at one point, but it played out as in the post. Six years later, she was again scheduled to work on a Sunday. The kitchen manager put up with Marie’s shift swaps for a bit, then Marie was fired (the alleged basis is in the post). A jury came back with a $21.5 million award (but the post explains a damages cap), along with $35,000 in back wages and $500,000 emotional and mental distress. Hilton said it will appeal (but hasn’t it already lost in the court of public opinion?).
TAKEAWAY: Make sure the facts support you, and even consult an employment law if necessary, before taking any adverse action – no matter who the employee is; it’s the best way to operate.
Finally, in the post yesterday 2/23/19 we saw that Ford Motor Company is sued by employee who faced demands for sex, photos of her naked. Yes and then we commented on how sad it is that this type of thing still goes on today. DeAnna, an African-American woman, started as a production supervisor in June 2018. She alleges in her suit that she was on the receiving end of unwanted racial and sexist comments and conduct of a sexual nature. Like what? She alleges that her supervisor, continually asked to see her breasts (the wording is in the post), would call her a name (in the post) and explain it in sexual terms (see the post), and asked DeAnna to send him naked pictures of herself. She tried to ignore him, but then he did this (in the post). The suit alleges that this is not the supervisor’s first rodeo with this type of thing. Ford’s response is in the post – if true, it took some appropriate action. But DeAnna disputes that Ford is innocent, in that management knew – and approved as explained in the post. And it gets worse. See the post. Ick.
TAKEAWAY: Control your employees – even those who supervise other employees – it could be your head they are helping to take off or your pocketbook they are helping to empty.
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