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 10/12/14 we talked about a win for an employer in the BFOQ category. NOTE: if you don’t know what a BFOQ is or when and why it comes into play, talk to an employment law attorney.) So what was the case about? An 8-year battle between the EEOC and ExxonMobil over whether the mandatory pilot retirement age violates the ADEA. The court ruled for ExxonMobil, saying that it proved its requirement to be a BFOQ reasonably necessary to the normal operation of its particular business. The court also found that the EEOC did not show there is a specific means of individualized testing to account for every risk of su7dden incapacitation, a risk that increases with age as shown by ExxonMobil. The EEOC apparently will not appeal further. Even though the case is not binding here in PA, the bases upon which it was decided are good to know and use.
TAKEAWAY: If you assert something is a BFOQ, be able to defend it in court (or don’t say it in the first place).
The post on Monday 10/13/14 talked about not being “black enough”. Yes, you read that right. An employee who self-identified as bi-racial claimed discrimination on race and color (along with age). The tribunal said that a colleague thought her not “black enough” and that the staff had “colourist thinking” (that access to jobs and opportunities incr4eases the lighter the skin color and the potential for discrimination increases with darker or black skin).
TAKEAWAY: Discrimination on the basis of color (or race or many other protected characteristics) is illegal. Just stick to job qualifications.
On Tuesday 10/14/14 we reminded you when you look at the FMLA, also look to the ADA (and vice-versa). A hospital learned this the hard way. It’s leave policy followed the FMLA and fired any employee who took more than the 12 weeks of FMLA leave; it also fired employees who were not eligible for FMLA leave and were absent for a certain time. Alas, the hospital forgot that the ADA might require an unpaid leave as an accommodation under the ADA if the employee qualified.
TAKEAWAY: Don’t look at either the FMLA or ADA in a vacuum; look at both together to ensure compliance.
The post on Wednesday 10/15/14 was about what to do if someone who owes you money files for bankruptcy protection. The first thing NOT to do is run and hide your head in the sand. No, you look carefully at the documents you received and take timely action. The documents should tell you to file a Proof of Claim, what information to include, where to file it, and by what deadline. Follow the instructions.
TAKEAWAY: Not following the instructions within a bankruptcy case can make you ineligible to receive any distribution through the bankruptcy, so make sure it is done right. Get assistance from a bankruptcy attorney if you are unsure how to proceed.
On Thursday 10/16/14 the post was about EEOC allegations of an ADA violation by firing a worker who declined a wellness plan. What happened? The employer financially penalized and then fired an employee who declined to participate in the company wellness plan. The EEOC sued because the medical exam and disability-related inquiries connected with the wellness plan were not voluntary the way they were set up and that violates the law according to the EEOC.
TAKEAWAY: You can ask employees to participate in a wellness plan, but you can’t require participation without violating the law.
The post on Friday 10/17/14 was a reminder that if your employee does this, you might be getting sued. These are tell-tale signs of behavior that might tell you that your company might be getting sued. So what are some of the signs? If your employee submits a 4 page, single-spaced typed rebuttal to a verbal warning. If your employee urgently demands a copy of his personnel file and says he needs to take the afternoon off for “personal business”. If your employee attempts to tape-record her performance review. Others are in the post.
TAKEAWAY: While these are humorous, getting sued is not; employers should do everything they can to avoid suit and, at the same time, prepare to defend in case one is brought.
Finally, the post yesterday 10/18/14 talked about the difference between alcoholism and drunk under the ADA. Employers (and HR personnel) should know the difference. Here, the post recounts an episode where a municipal maintenance employee (who drove a city vehicle) came to work with 21 ounces of whiskey in his truck. He drank the whole bottle over his one-hour lunch break. He later denied drinking but his boss took him to the police station. He blew way over the legal limit. The employer charged him with various violations, one of which would let him be fired even if this were the first offense (which it was not). He sued, alleging failure to accommodate his alcoholism. The court said that he showed no comparator and could not prove pretext; it also said the ADA does not protect being drunk at work.
TAKEAWAY: Know when you have to try to accommodate an employee and when you can just fire (or otherwise discipline) that person.
York, Pennsylvania 17403