In the post on Sunday 8/28/2022 we learned about military leave and USERRA reemploy-ment rights: 3 steps for reading orders to determine five-year cap exemptions. Don’t know what any of that means? Then definitely read the post! Let’s start at the beginning. USERRA is the Uniformed Services Employ-ment and Reemployment Rights Act of 1994. USERRA has numerous exemptions to its five-year service limit, so employers may need to (ok, should) review an employees’ orders and discharge documents (DD-214 or NGB 22) before denying reemployment rights under USERRA. The employee must show that s/he was not on leave for more than 5 years, but the things the employer must do during the leave period are noted in the post. So how does an employer fulfill its obligations? First, get familiar with orders and training schedules. At the least you should see the issuing authority (the specific branch of the armed forces), an order number or reference code, the period of leave, purpose of leave, statutory authority for the orders, and a point of contact. And what if the employee is in the reserves? See the post. Next, the employer should determine if the leave is exempt by looking at the statutory authority. It should be either “10 U.S.C.” or “32 U.S.C.” followed by the code section. The difference between those two – and other things in the orders that may affect exemptions -is discussed in the post. The third thing employers should do is the actual math. A sample calculation is in the post. It is important to remember that there is nothing in USERRA requiring a minimum length of employment prior to coverage under the statute.
TAKEAWAY: When dealing with leave and reemployment rights under USERRA, know how to do the proper calculation so as not to run afoul of the law.
The post on Monday 8/29/2022 was about microaggressions in remote work: legal responsibilities. We noted that this all pretty much holds true in the US too. As remote work continues, employers must deal with online harassment and abuse. When employees are in the workplace it is often easier to spot that type of behavior, but things get muddier and more difficult in the remote environment. Even though Zoom and Teams (and other platforms) let employees meet and communicate while working remotely, they also provide platforms for harassment, including micro-aggressions. What is meant by that? See the post (and then you will go aha!). It might be unintentional or intentional. Some ways microaggressions manifest are listed in the post. And know that in a recent survey, 26% of employees reported being on the receiving end of microaggression at work – with 36% having witnessed it in their workplace. Employers, and especially their HR personnel, must be on the lookout as noted in the post.
TAKEAWAY: Employers should try to foster an (in-person or remote) environment where this type of behavior cannot occur; it is a good way to prevent potential future charges or litigation.
The post on Tuesday 8/30/2022 told us an employer can’t terminate vulgar employee because of spotty disciplinary record – a 5-step plan to avoid the same fate. This actually comes out of something involving the National Labor Relations Act but remember that certain provisions of the NLRA apply to ALL work-places, so pay attention. Here, the company had to compensate and re-hire the employee. Let’s look at the background and a plan so you can avoid the same outcome. The Employer, Constellium, changed its system for scheduling overtime assignments; many employees were upset. How it worked is in the post. Employees protested the new system for a while by not signing up for OT, but eventually they started signing up. One employee, Andrew Williams, did not. He remained upset and wrote something on the sign-up sheet to criticize the new system and employees following it. What he wrote is in the post. Constellium terminated him after that. His union grieved the termination and the NLRB ruled in Williams’ favor (on the basis stated I the post). Constellium then appealed to federal court, arguing that the manner of his protest should take him out from Section 7 protection. The court ruled against the employer because of its own actions. The standard the court used, which was adopted in 2020, is whether the employer knew the behavior was part of a larger protest and whether there is evidence it was motivated by that protest when it disciplines/discharges the employee. The court went through the facts here (outlined in the post) and found that Constellium’s defense failed. So what 5 steps can an employer take to make sure it does not end up like Constellium? Ensure that policies match current standards, disseminate policies carefully and fully, and the 3 others listed in the post.
TAKEAWAY: Be careful when taking adverse action against an employee for behavior that might be covered by the NLRB (yes, even in a non-union workplace) – consult an employment lawyer before acting.
The post on Wednesday 8/31/2022 notes that drainage issues frustrate homeowners as rainwater floods their neighborhood. You expect the water to drain from your streets and yards pretty quickly after rain, right? So did these owners. But they got flooded streets and lawns that stayed. Here the owners and HOA blamed it on the city, saying that the city did not clear out drains outside of the HOA (with how that affected the HOA noted in the post). But the City says that the drainage issues belong to the HOA because it is a private storm water system. The City also distinguished work it was doing in that area and how the flooding affected the work – see the post.
TAKEAWAY: Know the division of responsibility among owners and the condo/homeowners’ association (or municipality) and get advice from a community association lawyer.
In the post on Thursday 9/1/2022 showed us a judge partially dismissed lawsuit to block 14th Street cannabis dispensary. We first talked about this in our post on Wednesday May 25, 2022. Now at least part of the suit filed by residents who live above the storefront that might become a canna-bis dispensary was dismissed. The suit was filed by the Condominium association and alleged that the building’s owners misrep-resented what business would be taking over the ground floor space and sought an injunction. The judge dismissed part of the suit at the end of July without prejudice (meaning it can be brought again). The allega-tion as to what the residents were told is in the post as well as what other neighborhood residents think will happen if the dispensary opens there. Why was the suit dismissed? The court found that at least some of the claims in the suit were not ripe for the reasons in the post. But the remaining counts in the suit (also identified in the post) will go forward.
TAKEAWAY: Condo and homeowners’ associations can be called on to do many things – know what your Governing Documents provide and consult a community association lawyer for assistance..
The post on Friday 9/2/2022 told us ex-VP sues Bayer, saying she defended a pregnant colleague and got discharged for it. Irene Laurora was previously Bayer’s “Working Mother of the Year”. She was also a vice-president. Now she’s a plaintiff in a suit wherein she alleges that Bayer retaliated against her when she defended a colleague who was pulled off of an important project solely because she was going to take maternity leave. What the company allegedly did to Laurora, which of course ended in her termination, is in the post. She sued under state law and the FMLA. Bayer has denied these allegations. This is not Bayer’s first rodeo: it faced claims of gender discrimination in a suit by from five women in 2011. Other drugmakers have been defendants too: in 2021 Novartis settled a suit by former employees alleging a “boy’s club” atmosphere for $110 million; there is also another Novartis case and a pending Merck case as detailed in the post.
TAKEAWAY: Not only should employers not discriminate against pregnant women, but they should not discriminate against those who defend or otherwise support pregnant women standing up for their rights.
Finally, in the post yesterday 9/3/2022, we saw a remote worker wonders: Can boss spy on my home PC? The answer to the question may depend on appli-cable state law. In PA at least, for the most part workers have no expectation of privacy in the workplace or while working. But remote work presents a challenge as it is often done from an employee’s home and so there are different privacy concerns, especially if the employee is using his or her own equipment (as opposed to equipment provided by the employer). There are situations and ways in which employers can monitor performance – and ways employees can keep their personal information personal; see the post. But also pay attention to the warning in the last paragraph of the post because it is commonplace as technology becomes more omnipresent.
TAKEAWAY: Whether in the bricks-and-mortar workplace or the remote workplace, know what information about an employee can be gathered by an employer and how. Consult an employment lawyer.