McDonald’s and its franchisees, million-dollar award against the government, silly Association rules, and more in our Social Media Posts This Week – Jan. 19 – 25, 2020

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 1/19/20, we learned that the NLRB says McDonald’s is not responsible for franchisees’ labor practices. This puts the joint employer theory on the rocks now! The case ended when the Board directed a federal administrative law judge to approve a settlement between McDonald’s, franchisees and the workers who had alleged violations. So, what was the long road to get here? In 2015, the Union alleged that McDonald’s and franchisees retaliated against workers who supported the Union (how is in the post). The government’s attorney asked that McDonald’s be considered a joint employer of those working for the franchisees. That had gained traction – until late 2019 when a settlement was proposed BY THE NLRB attorney. The judge rejected it for the reasons in the post. The Board panel then overruled. The settlement includes payment into a fund as noted in the post.

            TAKEAWAY: This may or may not be extended to other types of employers and agency relationships – stay tuned.

The post on Monday 1/20/20 told us that a business recovered millions in fees, expenses, and costs after claims by the EEOC were found to be frivolous. Let’s start with the number: $4.7 million. Now let’s go back to why. The EEOC initially charged that the truck driver was subject to unwanted sexual advances and sexual remarks that amounted to sex discrimination. Eventually the EEOC filed suit. As part of the case, the federal appellate court made a finding adverse to the EEOC – see the post. So now, the same court made additional findings, including that the EEOC did not conciliate or investigate the additional claims of similarly situated employees prior to filing suit and other things noted in the post. That then led the court to rule on the recovery of fees for the claims that were dismissed; how it analyzed that portion is in the post.

TAKEAWAY: It is possible to fight he government and win, but it can be a long and costly road to get to that point. (It’s better to just do things right from the start and try to avoid suits.)

The post on Tuesday 1/21/20 told us what not to do when you’re serving out your notice period at work. Yes, it happens. Employment ends and one party gives notice to the other about the end date. But then the employee still must work out that notice period. So, what should employees do (and employers hope they do)? Be on best behavior – don’t make the employer possibly reconsider any reference it might have been willing to provide. And don’t cut off your nose as noted in the post.

TAKEAWAY: While employed, workers are still subject to the company’s rules. Violations can (and should be) enforced and might lead to an earlier termination than any prior notice that was given.

The post on Wednesday 1/22/20 was about silly Association rules – but that can be life in a planned community … We suggested that you let us help you with your issues. Yes, all types of rules are legal but goofy. One association fined someone for not carrying her dog when she walked from the elevator through the lobby to the outside. Seems ok, right? But given her condition (see the post), it was not. And there’s more to laugh about (because you are not the one who was subject to the silly rule), including having to keep garage doors open from 8 am – 4 pm M-F or be fined. The reason given for that one is in the post (as well as how someone tried to game that rule). And then the contrary is associations that have a rule that garage doors cannot be left open. The laughs continue in the post.

            TAKEAWAY: Planned communities are just that: communities. But they are governed by various legal documents, including rules, and all owners must follow those rules or face the noted penalty for violations.

In the post on Thursday 1/23/20 we read about a county ADA park lawsuit that settled (and reminded you that the ADA goes beyond the workplace)! Here, a man confined to a wheelchair says he spent 5 days at a park unable to use its restroom or showers (so he had to leave the park for those functions). He says he asked if the park was ADA-accessible before he went there and was told it was. But when he got there, what he fond (and experienced) was as noted in the post. And how far did he travel to get there? See the post. The case has settled for monetary relief and more as in the post.

TAKEAWAY:  Public places are subject to the ADA – beware (and be kind to those of limited mobility).

The post on Friday 1/24/20 was about the changed NLRB position on confidentiality in workplace investigations. And we noted that this applies to ALL workplaces, not just unionized. This position is new and reversed a prior ruling. So now the burden is no longer on the employer to show that the integrity of the investigation would be compromised without confidentiality. Why it changed is in the post – and it now conforms to the test enunciated in Boeing in 2017.

            TAKEAWAY: Ok, now employers can require confidentiality during an investigation – but there is still the question of what happens when the investigation is concluded. Consult your employment lawyer to make sure you do it right.

Finally, in the post yesterday 1/25/20, we read that “Two Years of Experience, No Salary, No Equity” is how NOT to do an internship. This is not Black Swan revisited. But it IS a reminder of what can and cannot be done with an internship. It can probably even be unpaid if a checklist of factors is met, including that both parties understand it is unpaid, how what is done during the internship compares to an educational environment, and more noted in the post. So, would the ad requiring 2 years of experience be ok? See the post. And what about its requirement that the intern take initiative and more? Again, see the post.

TAKEAWAY: If you intend to hire an intern, make sure it is done legally – to protect you and the intern.

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