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 6/16/19 we saw that US courts crack down on employees using “slippery” criteria to hide discrimination. We gave a tip: have a solid, definitive reason/basis for adverse action. Now we have another federal circuit holding that an employer may not defend a discrimination charge by using “vague” and “slippery” reasons. Why? See the post. And what does that mean? That employers must provide specific reasons for adverse decisions, including those for example things listed in the post. In this case, a foreign services officer sued, alleging national origin discrimination resulted in a failure to promote. The employer’s internal investigation found nothing illegal; the EEOC and then the federal district court agreed. However, on appeal, the federal appellate court said the employer listed vague, subjective criteria, and sent the case back to the intermediate appellate court. It then reversed and sent the case back to the trial court to proceed on the discrimination claim. That’s when and how the instant decision came about – the court found that the employee set forth a prima facie case of discrimination, looked at the employer’s asserted legitimate nondiscriminatory reason, and ruled as noted in the post.
TAKEAWAY: Let us say it again: if you are taking adverse action, make sure you have a legitimate, non-discriminatory basis for that action.
The post on Monday 6/17/19 was about dogs and miniature horses and dragons, oh my. Know the difference between a service animal and ESA and what the ADA requires. Ok, you will probably not have to deal with a dragon in your workplace, but you should know what is or is not required under the ADA. And the difference between a service animal and an emotional support animal (ESA). The ADA provides that service animals are dogs (and miniature horses) that do certain things as noted in the post. There are limits to and conditions under which a service animal can act – see the post. Can an employer ask anything it wants relative to the service animal? No, only those questions noted in the post. Pretty much none of this, however, applies to an ESA under the ADA (but state law may intercede – know the law).
TAKEAWAY: Know what law requires what, if any, accommodation by way of service animals and ESAs in the workplace – consult an employment lawyer to stay on the right side of the leash.
The post on Tuesday 6/18/19 told us that an employee’s personal notes lead to trial. So what happened? A correctional officer sued for an hostile work environment, alleging various things including being the target of crude comments and more in the post. She complained to supervisors, but there was no response that followed the policies. And then lighting struck: during an investigation on a different issue, the employer found plaintiff’s handwritten notes of the alleged harassment. The employer’s argument as to how the notes should be weighed, and the court’s “response”, are in the post.
TAKEAWAY: If you receive a complaint, investigate and take appropriate action. Apply policies evenly. Don’t allow for wiggle room.
The post on Wednesday 6/19/19 was about a veteran battling an Association on parking patriotic van in driveway. We asked what your Association would do? The van has stars and stripes is meant to honor veterans at funerals, and is otherwise parked in the driveway. The van is at the center of a controversy. Why the homeowners association began citing the owner and more are in the post. And then what happened? See the post for the happy ending to this story.
TAKEAWAY: Interpretation and definition of key provisions of the Governing Documents can be oh so important – make sure your documents are clear and unambiguous before trying to enforce them. Work with a community association lawyer.
In the post on Thursday 6/20/19 we saw that Court finds no CFAA violation where employee shares confidential company information with competitor. We noted that the Third Circuit has not yet ruled, but suggested that you don’t wait – protect yourself in contracts and manuals/handbooks. The CFAA (Computer Fraud and Abuse Act) prohibits, in part, “… intentionally accessing a computer without authorization or exceeding authorized access and thereby obtaining … information from any protected computer.” So what happened here? Two former employees allegedly sent confidential company information to their personal email accounts and also to a competitor’s email accounts. They also took the actions as in the post. The court looked to the definitions of certain terms of the Act and the primary purpose of the Act; its reasoning is in the post. While the Third Circuit (that governs PA) and Supreme Court have not yet ruled, other federal circuit courts have taken the varying positions listed in the post.
TAKEAWAY: With no definitive case law, it is imperative that employers have in place policies and procedures dealing with access to and use of information and systems.
The post on Friday 6/21/19 told us that Uber drivers are not employees according to the NLRB (leaving us with one standard for federal law and another for state wage & hour law? Yes, this may well apply to your business so pay attention. In an advice memorandum from mid=May, the NLRB’s Office of General Counsel determined that UberX and UberBlack drivers are independent contractors, not employees. While it goes to the now inability of many gig workers to unionize (since they are not employees), it also has application to non-union companies. Why? Because the memo looked to common agency law from a January 2019 NLRB decision and some of the factors, including that drivers set their own schedules and have complete control over their cars, choose their own geographic log-in location, and more as in the post. The General Counsel found the factors pointed toward “entrepreneurial independence” and dismissed the method of payment as an indicator for the reasons in the post. What else the General Counsel said as part of the reasoning is in the post.
TAKEAWAY: The memorandum only applies to unionized business under federal law, so employers may be dealing with one standard on the federal level and another on the state level – talk to your employment lawyer to know how to treat your employees.
Finally, in the post yesterday 6/22/19, we learned about pay for work performed by non-exempt employees and asked: Does hours worked include a few extra minutes? You already (should) know that the Department of Labor has proposed increasing the salary threshold for exemption from the FLSA overtime requirements. That would mean that some employees who are now exempt might not be in the future. It might also mean that those who don’t stop working when they are off the clock (or out of time) must be paid under the circumstances noted in the post. But wait, does an employer have to pay for every minute a non-exempt employees works? Not according to the regulations as noted in the post. But of course there is an exception to the exception – yep, see the post.
TAKEAWAY: Have a policy on what after-hours work is allowed and when it is not allowed – and follow the policy. Don’t just stick your head in the sand.
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