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.
To start the week, the post on Sunday 7/13/14 was a reminder that the ADA requires AN accommodation, not necessarily the employee-requested one. It is good to get input from the employee on what s/he might want as an accommodation, but that is not the end of the process.
TAKEAWAY: The employer remains in charge, even in determining what accommodation it will provide (or that to provide one would be an undue hardship under the law).
On Monday 7/14/14, the post was about the fact that an unlawful policy does not always make for an unlawful termination. In a (seemingly rare) win for employers at the NLRB, it was held that just because a policy was overbroad (and therefore unlawful), the termination based on that policy was not unlawful. On the facts here, the employee was terminated not for protected activity (discussing wages), but for sharing confidential customer information. Since that was NOT protected activity, termination based on that was legal.
TAKEAWAY: as I’ve stressed over and over, all employers, unionized or not, must be aware of the potential implications of all policies and whether or not they comply with the NLRA. It is best to run all Handbooks by an employment attorney to ensure compliance.
On Tuesday 7/15/14 we talked about “Not enough of a male chauvinist pig”. Yep. This came up in a same-sex harassment situation when a male fitness instructor sued the employer because he “didn’t fit the stereotype of being ‘sexually loose, promiscuous and predatory’ like his harassing male supervisor.” The employer argued, unsuccessfully, that the case should be dismissed because the employee did not allege he was harassed for being effeminate. Here, the employee was found to have stated a sufficient claim of same-sex harassment and the case would proceed.
TAKEAWAY: Same-sex harassment is becoming more common; it can encompass non-conformity with many sexual stereotypes, even not being enough of a male chauvinist pig.
On Wednesday 7/16/14 the post was about an NLRB decision finding a non-solicitation policy to be unlawful. There, the employer was a food service distributor that sells food, paper products, and cleaning supplies, among other items, to institutions throughout the western US. The alleged violations included that the employer had several overly-broad policies. The Board agreed the employer had an overly-broad non-solicitation policy. The policy at issue was short and sweet: “Solicitation discussions of a non-commercial nature, by Associates, are limited to the non-working hours of the solicitor as well as the person being solicited and in non-work areas. (Working hours do not include meal breaks or designated break periods.)” So what was the problem? The policy prohibits even union solicitation in work areas during non-working hours.
TAKEAWAY: ALL EMPLOYERS MUSDT VIEW ALL POLICIES IN LIGHT OF THE DICTATES OF THE NATIONAL LABOR RELATIONS ACT. Period.
On Thursday 7/17/14 the post was about 5 ways to deal with pregnant employees without getting sued. It is NOT recommended that employers merely bury their heads in the sand, but rather that they address the issues. So what are some of the suggested actions relative to pregnancy? (1) Know which laws apply to your company. (2) Have a written policy. (3) Disregard your policy [yes, you read that correctly]. Go to the post for more on this item and the other two.
TAKEAWAY: Liability avoidance is high on every employer’s list, as it should be; having in place the steps to ensure legal compliance relative to pregnant employees is imperative.
Friday 7/18/14’s post covered 3 employment law trends HR managers need to know about. So what are they? 3) The NLRB and the EEOC are keeping watch. And, if you haven’t already figured it out from all of our posts, they are being more and more aggressive. 2) Workers want their time off. Be it the ADA, FMLA, or other applicable laws, employees have rights. For the #1 trend, go to the post.
TAKEAWAY: Employers cannot operate their businesses in a vacuum: they must be conscious of and in compliance with applicable laws and employee rights. Ignorance will not be a defense to a lawsuit.
Finally, yesterday 7/19/14 we posted about no harm, no foul equaling no liability under the FMLA. The court said that technical violations of the FMLA will not result in liability for the employer unless the employee can show that the non-compliance affected the decisions regarding leave. Here, the employer did not timely provide FMLA notices; the court said that was not a violation, but could be if the employee could show that s/he would have scheduled FMLA leave differently. A win for employers? Sort of.
TAKEAWAY: While employers (at least in the geographic area governed by that court decision) can rest a bit easier, they should not just do nothing; employers should still aim for full compliance so as to avoid matters going to court.
York, Pennsylvania 17403