ICYMI: Our Social Media Posts This Week – Nov. 27 – Dec. 3, 2016

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 11/27/16 we suggested you minimize employee lawsuits: 7 best practices for small business – and really any business. Don’t let your worst nightmare (arriving at work only to be greeted by someone handing you lawsuit papers) come true. The steps listed in the post, along with others, can help you avoid that scenario. Those steps include being familiar with applicable federal, state and local laws; having a corporate structure that protects your (the owner’s) personal assets, perhaps most importantly consulting with an experienced employment law attorney BEFORE problems arise, and others in the post.  

TAKEAWAY: Protect yourself and your business from charges and lawsuits by (former) employees – take the appropriate steps before your nightmare becomes reality.

The post on Monday 11/28/16 noted a retaliation claim proceeds when evidence allegedly manufactured. Ugh. Yes, a lower-level employee duped the company into thinking there was consensual sexual banter, Andrea, an EMT, alleged that a co-worker, Tyrell, made unwelcome sexual advances toward her, with the final being a naked picture of him texted to her while at work. The company refused her offer to view the texts. Tyrell then allegedly manufactured evidence against Andrea, including those things in the post. Andrea was discharged and filed a retaliation complaint. On appeal, the court said that the company could be held liable for wrongs committed outside the scope of employment when negligent in giving effect to the retaliatory intent of employees. Yes, the cat’s paw theory.

TAKEAWAY: Thoroughly investigate all allegations of harassment and discrimination – don’t let the company be used as a paw(n).

In the post on Tuesday 11/29/16 we asked: What qualifies as a request for accommodation under the ADA? Is it only when an employee says “I need an accommodation for my disability?” Of course not. The employee need only ask for help in some way; often this arises in connection with surgery or a doctor’s restriction. The post gives us the example of Eugene, a maintenance supervisor at a coal mine, He went to the ER after a potential work injury and got a doctor’s excuse for a few days. He had already scheduled a week off and the following week for surgery. However, 2 days into his scheduled week off, he met with the HR manager, about the work injury. The post tells what happened during that meeting, (but I think it is clear the employer was on notice of the need for accommodation). About 2 months later, Eugene met with the GM and an HR person; he was suspended. The employer’s alleged basis for suspension is contrary to what Eugene said. Eugene then told them about his upcoming surgery. After meeting with his doctor, but before the doctor wrote a note that Eugene was disabled, the employer decided to discharge Eugene. (See what the post says about how this supposedly occurred). Eugene then advised the company of his doctor’s note and was discharged a few days later in writing. Eugene sued for retaliation. The case is now in the court system.

TAKEAWAY: Make sure any request for help is viewed under the ADA’s accommodation lens. Keep good records of any such requests and what you as the employer do in response. And make sure there is valid legal support for any adverse action.

The post on Wednesday 11/30/16 noted workers filed 15 EEOC complaints against McDonald’s claiming sexual harassment. I doubt Ronald is happy! Fifteen females filed charges against McDonald’s as franchisor but also against the franchisees. They allege groping, lewd comments and propositions from store managers and supervisors including cash for sexual favors. They also allege that their internal complaints were ignored. The post mentions in detail the allegations by one employee – and it’s not pretty.

TAKEAWAY: Make sure to train your managerial-level employees and insist they follow your anti-harassment and anti-discrimination policies. Investigate complaints – don’t put your head in the sane. And discipline if necessary (including discharge).

In the post on Thursday 12/1/16 we read about a $100,000 disability discrimination settlement. That’s big money to be paid by Harrison Poultry from GA. The underlying complaint with the EEOC alleged that the male manager asked for a 7-day extension to his prior (approved) vacation to meet doctor’s orders restricting him from work. So how did the employer respond? It immediately fired him, even before his vacation was done. More details are in the post.

TAKEAWAY: Remember that an employee request for disability accommodation need not use any magic words, need not mention the ADA, and need not use the work “accommodation” to trigger the employer’s obligation to begin the interactive accommodation process (or be caught in the crosshairs as was this employer).

The post on Friday 12/2/16 advised BYOD – but be smart! The post starts with a bit of history: portable electronic devices were initially work-related productivity tools. Then they got smart. They could do more and took up much less space. Employees only wanted to carry one device to do it all, personally and for work. Technology keeps advancing at an alarming pace, but have your policies kept up? Things to look at (and possibly revise even if already included) are the remote wipe, overtime pay, payment for the device or data cost, and litigation holds. The post contains more details on each item.

TAKEAWAY: Employers need to be smarter than the devices their employees use – that includes having and enforcing policies about the possession and use of the devices.

Finally, the post yesterday 12/3/16 noted the EEOC sued Plastipak for sex harassment and retaliation. You’re probably saying “so what?” The what is that this came out of the Baltimore office, just down the road and often where local cases are assigned for investigation and determination, and has a cornucopia of joint employment along with harassment and retaliation. The EEOC’s suit alleges that Plastipak and a temp agency jointly employed Carrie. After Carrie rejected sexual advances from a Plastipak employee, the employee complained (mostly falsely) to supervisors about Carrie’s supposed rule violations. Carrie complained to her immediate supervisor about the sexual harassment and, in return, was terminated by Plastipak. What Plastipak told the temp agency is in the post.

TAKEAWAY: Be careful about joint employment now that the door has been opened. Also, whether you are the employer or joint employer, take all complaints seriously, investigate them, issue discipline, and don’t take adverse action against the person complaining (unless s/he knowingly made a false complaint to harm another).

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