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 7/19/15 we talked about employee or contractor: proper classification. Yes we’ve posted about this before but employers just don’t’ seem to get it. This time we linked to a fact sheet in an attempt to give you guidelines; then call us to discuss the situation. If a person is classified as a contractor but is in reality an employee, the employer can be liable for a lot, so don’t make the mistake.
TAKEAWAY: It is possible to have an independent contractor relationship with someone, but certain requirements must be satisfied. Make sure to do it the legal way from the start.
The post on Monday 7/20/15 was about what you should do when an employee doesn’t return FMLA forms. First, remember that the FMLA allows – but does not require – employers to obtain medical certification of an employee’s need for leave. Most do get the information. But what if the forms don’t come back? The employer has to allow at least 15 calendar days for them to be completed and returned – and may need to allow more.
TAKEAWAY: Employers should have a policy about FMLA leave forms and apply it evenly – but also know when to make exceptions.
In the post on Tuesday 7/21/15, we talked about a military veteran suing for age discrimination in being discharged. Now the first thing that makes this different than the usual suit is that the plaintiff mitigated his damages by finding other employment. So why did this 75-year-old marine veteran with about 30 years’ experience operating large motor vehicles sue? He applied on-line, went for an in-person interview, and was hired. When he reported to work (with other new employees), he was pulled aside, told he was too old, and discharged. Yep, he sued.
TAKEAWAY: As we keep saying over and over, don’t let age (or race or any other protected characteristic) determine eligibility to perform a job; let performance be the determining factor.
The post on Wednesday 7/22/15 was about the requirements of cause for discrimination under the Equal Pay Act. This law slips under the radar at times, but is still out there when a person of one gender feels s/he is doing the same job but being paid less than a comparable person of the other gender. See the post for the requirements.
TAKEAWAY: Unfortunately it still happens; women are too often paid less than men for doing the same job. Regardless of who is being paid less, the Equal Pay Act can remedy the situation.
The post on Thursday 7/23/15 told us about a sweet-smelling development: aggrieved individuals aren’t needed to bring a Title VII pattern & practice case. This was a decision from a federal court in Illinois but may have far-reaching ramifications. The EEOC sued Rosebud Restaurants (and 13 related entities) for an alleged practice of refusing to hire African-American because of their race (including statements by the owner/controlling person of a preference not to hire black job applicants). The EEOC sued. Rosebud moved to dismiss, saying that THE EEOC needed to point to at least one specific an aggrieved individual to maintain the suit and since that didn’t happen, the suit should be dismissed. Based on the statutory language, the Court said that no specific individual must be named (and further that the EEOC may bring such actions in its own name and pursue widespread discrimination). The court also distinguished a retaliation case from this pattern & practice case. So now the case moves forward…
TAKEAWAY: Owners and managers should be careful about what they say and who they (fail to) hire; using a protected characteristic and not performance as an adverse factor could be very costly.
The post on Friday 7/24/15 was about another suit brought by the EEOC, this time related to a principal discharged on the alleged bases of age and gender discrimination. The employer owns and operated government-funded private schools; it hired Boro as a principal/supervisor. When the employer learned Boro had retired from a prior job, it started to ask questions about his fitness for this job and making age-related comments. It finally fired Boro a few days after hiring him. The suit also alleges that one of the owners made comments to the effect that females were more desirable as employees “because they were passive”. To read more, go to the post.
TAKEAWAY: Have you heard this before? Hire, discipline and fire based on the ability to perform the job and nothing else.
Finally, the post yesterday 7/25/15 highlighted a suit by the subject of racially-charged words and action for race discrimination and retaliation. Here, Kaiser was a phlebotomist who filed suit against a non-profit organization for race discrimination and retaliation. The allegations include that when travelling for business, Kaiser was subjected to racially charged words and remarks including “frequent use of the n-word, comments about President Obama, interracial dating, and stereotypes about blacks and food”. Once his supervisor told Kaiser not to be offended by the use of the n-word or if people stared at him. Go to the post for more details. Shortly after asking another employee how long he had to endure all of that before reporting it higher up the chain, the other employee reported that Kaiser threatened him. The next day, he was discharged for the alleged threat. He sued.
TAKEAWAY: If an employer is going to have a basis for adverse action, make valid, hopefully with support; don’t make up something because others will see right through it.
York, Pennsylvania 17403