Our Social Media Posts This Week – Feb. 23 – Mar. 1, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First, the post on Sunday 2/23/14 was about whether the inability to perform the essential functions of a job can affect disability discrimination and FMLA claims. The short answer: YES. In the spotlighted case, the employer had a job description, signed by the employee, that detailed essential functions. The court said, as have other courts, that transferring essential functions to other employees or hiring other employees to assist are not the types of reasonable accommodation required under the law.

TAKEAWAY: Not only should employers have job descriptions for their employees’ positions, but the descriptions should be accurate and list essential functions. Further, if/when the job changes, so should the job description.

Monday 2/24/14 brought a post with notification of the rule redefining ‘spouse” for FMLA purposes expected to be issued by DOL in March 2014. No surprise, the expected change will align the definition with the Supreme Court’s Windsor decision on DOMA and same-sex marriages.

TAKEAWAY: Employers should make sure they are aware of changes to or interpretations of the laws that affect them or their employees. The Windsor decision is making widespread change.

Next, on Tuesday 2/25/14 the post was about how NOT to defend against an ADEA case. There, the defendant was the US Census Bureau. At one point, the plaintiff failed to meet performance specifications and was counseled. Thereafter, her medical condition necessitated a short leave and, upon her return and notifying the Bureau of her condition, she was put on reporting restrictions (relative to her condition), her desk was moved, and job duties were reassigned. Four days later, she was discharged, allegedly for poor performance. The Bureau attempted to defend by saying the decision to discharge was made prior to the leave, but the Court did not buy that (noting it appeared the severity of alleged poor performance was inflated and the timing was suspicious with no other evidence put forward by the Bureau).

TAKEAWAY: If an employer asserts something as a defense, it should have evidence to support the defense. If it doesn’t, then not only will the matter proceed toward trial (increasing the employer’s litigation costs and possibly subjecting it to an adverse and costly verdict), but the employer will lose credibility with the Judge.

Wednesday 2/26/14 was a post about the Top 5 reasons your company needs an (updated) Handbook or Policy Manual. The authors start out by saying, “Employee handbooks are crucial to protect a business from needless lawsuits and assist with smooth business operations.” They then list their Top 5 reasons why. They are simple and to the point.

TAKEAWAY: If your company has employees, you should have a Handbook so that you can tell employees what you expect of them (and, in some cases, what their rights are). The Handbook should be revised as your business changes.  Also, the Handbook should be reviewed periodically by an employment lawyer to ensure that it is in compliance with all applicable laws (or interpretations of the laws).

Thursday 2/27/14’s post was a bit off our traditional track – it was about 50 ways to make good use of Siri on your iPhone. The post links to a video of some commands. Even if only one command is useful for you, then playing the video is time well spent. But I bet you will end up using many of them!

TAKEAWAY: You spent money to buy an iPhone. You spend more money each month for data and text plans for the iPhone. Learn more ways to make the iPhone work for you.

The post on Friday 2/28/14 (the last day of the month already!) told, yet again, how expensive it can be for an employer to discriminate against its employees. Here, Ruby Tuesday has to pay $575,000 (along with providing other relief) to settle a class action age discrimination suit. What were the allegations? That Ruby Tuesday engaged in a pattern or practice of age discrimination against job applicants who were 40 years of age or older at six of the chain’s restaurants (5 in PA) and that it failed to preserve employment records, including employment applications, as required by the ADEA and EEOC regulations. Part of the settlement obligates Ruby Tuesday to make special reports to the EEOC for a period in excess of three years.

TAKEAWAY: Just don’t do it – discriminate, that is. If and when you get caught – and you will – it will be much more costly. Here, not only does Ruby Tuesday have to pay out of its pocket, but its reputation gets dinged so it loses in the court of public opinion too.

Finally, yesterday 3/1/14 brought another post about whether job descriptions are important under the ADA (are you beginning to sense that perhaps they are?!?!).  A federal court let the case proceed to trial on whether or not there was liability under the ADA. The Court reviewed the list of 7 factors to identify essential functions that is in the ADA Regulations; job descriptions are on the list. In that case, inclusion of “Other duties assigned” in a job description left a question as to whether or not something was an essential function, so the matter was sent on toward trial.

TAKEAWAY: If you didn’t get it before, get it now: job descriptions are important. Have them, use them, and keep them updated, especially as to the essential functions of the job.


     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.

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