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 up, the post on Sunday 1/19/14 was about what NOT to ask job applicants. A grocery store chain found out the hard way when it had to pay to settle a suit filed against it by the EEOC. What happened? Applicants were asked disability-related questions before being offered jobs. As if that wasn’t enough, when an employee had an epileptic seizure at work, he was fired a few days after the seizure even though he had performed well and had a doctor’s note saying he could return to his normal job.
TAKEAWAY: Do not ask disability-related questions before making a job offer. You can ask if the applicant will be able to perform the essential functions of the job, with or without reasonable accommodation.
Then, Monday 1/20/14 the post was about less pay possibly being a basis for a race discrimination claim. The article described an African-American woman who sued for race discrimination because she was paid less than a Caucasian co-worker. There were several bases for the claim and the court allowed the case to go forward on one of them. The court found that past decisions from the employer’s management (Board) did not bind the current Board, such that claims based on different decisions from the two Boards could not go forward. However, when it came to an HR director’s subjective decision-making, not based on any policy, the court let the woman’s case go forward.
TAKEAWAY: Employers must be careful to uniformly enforce their own policies or, when there are no policies, make uniform decisions relative to employees. If a decision differs in one case from another, there should be a valid, legal basis for the difference.
Next, on Tuesday 1/21/14 the post was about the ADA and its potentially far-reaching effects in commercial situations too. Who is responsible for ADA issues in a leased commercial space, the landlord or the tenant? The answer is (of course) “it depends”. On what the lease says. On what applicable state law might provide. On what the parties might have done in the past. On what a court might decide if the matter ends up in litigation. Parties often don’t think about this before it becomes an (expensive and possibly business-ending) issue but they should. Suits are being brought around the country on ADA access and accommodation issues other than in the employment context.
TAKEAWAY: if you are the owner or tenant of a commercial space, make sure your lease specifies who is responsible for ADA compliance. Then there is less of a chance of questions if an issue later arises.
Wednesday 1/22/14 brought a post about new (and legal!) ways for employers to spy on employees. The article lists 10 legal ways an employer can “spy” on its employees: internet usage monitoring, GPS, keylogging, email monitoring, social media, audio recording, videotaping, off-duty conduct, medical records, and company devices. Go to the post for more detail on each, but know that many employers probably already use one or more of these items now.
TAKEAWAY: Employers should know applicable laws and make sure they have in place one or more appropriate policies telling employees in which activities/actions they have no expectation of privacy, then evenly enforce the policies. If employees don’t like what the employer is telling them, then they should not take the job.
Thursday 1/23/14’s post was about the fact that an employee’s lack of cooperation in an investigation could be a basis for discharge. An employer can reasonably expect its employees to cooperate in internal investigations so that it can gather facts and make proper determinations; employees who won’t cooperate could be found to be interfering with the investigation and subject to discipline, up to and including discharge (regardless of the outcome of the investigation).
TAKEAWAY: Make sure the policy manual or handbook specifies that employees must cooperate with investigations and are subject to discipline, up to and including termination, if they don’t cooperate. Then follow the policy.
The post on Friday 1/24/14 was about 10 employment laws that supervisors need to know about. The laws that made up the list are all federal laws; they are: Title VII of the Civil Rights Act, FLSA, FMLA, ADA, ADEA, EPA, OSHA, PDA, NLRA, and GINA. The article includes a general description of what each law covers and what supervisors should know or how they should act to remain in compliance. If you think I just spouted off a bunch of alphabet soup, or even just for a refresher, you must absolutely click on the link and read the article!
TAKEAWAY: It is not just the job of HR – even working with an employer’s attorney – to know what laws may apply to a situation. Supervisors must also have a basic working knowledge as they are the front line dealing with employees and what those super-visors initially (omit to) say or do can irreversibly affect a situation or suit. Employers should make sure HR personnel and front-line supervisors are well-versed in at least these 10 laws, and possibly others, including applicable state laws; periodic seminars for HR person-nel and supervisors are an employer’s time and money well-spent in education, prevention, and risk-management.
Finally, yesterday 1/25/14 brought a post about whether employers are paying employees more than they must. “Huh?” you say. If you do not understand which laws require what pay, then you might be paying too much. For example, the FLSA (if you don’t know what the FLSA is, go back to the link to Friday’s post and read it) does not require that paid time off be counted as hours worked as long as there is no work performed. Similarly, the FLSA does not prevent an employer from sending someone home before s/he works all scheduled hours that week, even if it is solely to keep that employee from getting overtime wages. Further, employers can pay an employee at different rates for different work (as long as they keep appropriate records).
TAKEAWAY: Make sure you are paying only what you have to unless you have a written contract or agreement to the contrary or unless you just want to pay the higher wages.
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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