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 1/13/19 we continued the post-holiday theme with … Moving up the naughty list: following your policy can provide a complete defense. Do you have a (progressive) discipline policy? Do you follow it uniformly? These are important questions. In the case in the post, Todd, over 40 with OCD and bipolar, worked at a hospital with a progressive discipline policy. He quickly moved through the steps; after a certain violation (listed in the post), he was discharged. Todd sued under the ADEA and ADA. The hospital moved for summary judgment. The federal appellate court’s rationale is in the post.
TAKEAWAY: Have a discipline policy and use it uniformly.
The post on Monday 1/14/19 was about qualification standards vs essential functions: one can lead to suit for alleged violations. Know the law. Yes this all goes back to those pesky (not really) job descriptions. You must know the difference between an essential function of the job (which should be in the job description) and a qualification standard used for an ADA accommodation. The post explains the difference according to the EEOC. For examples of each, including a court decision, also see the post.
TAKEAWAY: Make sure your job descriptions and accommodation efforts are both based in reality – consult employment law counsel before you are in court.
In the post on Tuesday 1/15/19 we thought: His, hers, other. SCOTUS will hopefully revisit this and provide a final decision. This plays out every day all around the country: someone who was born one gender and transitioned or is in the process of transitioning but identifies as the new gender, uses the restroom of the new gender. Someone else gets upset. Suit is brought. The background in the case at issue is in the post. The Third Circuit Court of Appeals, which governs PA. upheld the policy enacted by the schools (which is detailed in the post). Now the case is at the Supreme Court. Soon we may all know if Title VII (and Title IX) protect transgender persons. The question is whether the word “sex” in the statutes is expansive enough to include gender identity, something that was not at all thought about at the time the statutes were enacted. More background is in the post.
TAKEAWAY: Not knowing how SCOTUS will rule, the best way to act relative to transgender employees is just to treat them like every other employee.
The post on Wednesday 1/16/19 asked: can an Association dictate the type of replacement window? When you live in a house that lies within a planned community, with a homeowners’ or condominium association, the answer is “it depends”. The first thing to do is review your Governing Documents – the Declaration, Bylaws and Rules/Regulations. See the post. Those documents might answer your question. If not, consult a community association lawyer (like Austin Law Firm).
TAKEAWAY: Before you buy into a planned community, know what you will or will not be able to do as concerns your future home – you will be held to it after purchase (and can hold other owners to the same things).
In the post on Thursday 1/17/19 we saw that an employer must reinstate former employee who shared staffing concerns with media. Note that this might well go beyond the health care industry, so be careful even in your non-union workplace. Yes, this is a decision from the NLRB. Yes, you are a non-union workplace. But yes, you need to pay attention because some portions of the Act apply to ALL businesses, union or non-union. See the post for statutory reference. So what happened? Karen-Jo was a hospital activities coordinator. She contacted a newspaper as to coworker concerns about the hospital’s staffing. When it was printed, she was fired. She filed a charge with the NLRB. After a 2-day trial, the ALJ issued a decision. His rationale is in the post and can easily be extended beyond the health-care industry
TAKEAWAY: We will say it again: even non-union businesses need to heed the protections given to employees in some portions of the NLRA – contact employment law counsel if you think something in your business might be implicated.
The post on Friday 1/18/19 was about how to fire someone fairly: Document your decision. In real estate, it is location location location. To employment law attorneys, document document document. As noted in the post, documentary support can win a case for you. Here, Detra, a teacher, took FMLA leave for several conditions. The first time, she completed an FMLA form and it was approved. The rest of the background is in the post. When an issue relative to the approved FMLA leave arose, Detra complained and … see the post. Then, after what happened as in the post, Detra was discharged. She sued. How and why the court ruled are in the post.
TAKEAWAY: An employee against whom adverse action is taken may be considering filing an administrative charge or suing, or may actually do it; you need to be prepared to support your decision as being legal.
Finally, in the post yesterday 1/19/19, we saw an employer was to pay $80K to settle an EEOC sexual harassment case. We also noted that sadly, quid pro quo harassment lives on. Here we saw that Nick, a former manager at a Subway location, sent text messages to two 17-year-old female job applicants. What the messages said is in the post. The EEOC ended up filing suit. The post also lists the terms of the settlement.
TAKEAWAY: Know what is legal and train your employees – don’t wait until you are adefendant in a suit.
York, Pennsylvania 17403