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 3/30/14 was about illegal job interview questions – the ones NOT to ask. The post gave examples of some categories that should not be delved into (including age, race, religion and disability) and examples of questions that could really be the back-door way to ask the illegal questions (such as “when did you graduate from high school?” which could be the back-door to ask about age). If the interviewer asks something that appears to be illegal, then the applicant may politely inquire as to why the question is being asked. If, for example, the question is about the applicant’s height and the position is to operate a machine requiring the operator to be at least a certain height, then the question is relevant to the job and acceptable. Chances are pretty good that if there is no job-related reason for the question, the interviewer will shrug it off after being called on it and just move on.
TAKEAWAY: Both employers and applicants should know what can and cannot be asked in a job interview.
On Monday 3/31/14, the post was about the FMLA and the ADA being the Brad and Angelina of employment law. What does that mean? Whether you realize it or not, the 2 laws often go hand in hand. When an employee takes FMLA leave for his/her own medical condition, there may be ADA implications too. The employer should not wait for the (potential future) request, but would be better served by beginning the interactive accommodation process at that point – at least asking if the employee foresees the need for accommodation upon his/her return to work from FMLA leave.
TAKEAWAY: When an employee is being considered under either the FMLA or ADA, employers should automatically be thinking of what, if any, obligation they have under the other statute as well.
Next, on Tuesday 4/1/14 the post affirmed the fact that employees can affirmatively decline FMLA leave and protections. Why does that matter? Because then the employee does not have protection under the FMLA. In the highlighted case, the employee was discharged after 3 no-call no-show days following an approved leave. The employer was able to bring forth evidence that the employee had specifically NOT wanted the leave counted as FMLA leave (such as the initial leave request being presented to a supervisor and not HR, HR having asked more than once if she needed additional leave time, and the employee being told that she should go to HR is there were questions), so she did not have protections when she failed to return after the leave.
TAKEAWAY: Employers should ensure they know what is or is not being requested; there is no need to grant an employee more than s/he is asking for.
On Wednesday 4/2/14, the post was about a federal case where an employer must pay $100,000 in attorneys’ fees–on $7,650 of damages. What? Yes. A female filed suit against her employer, alleging 6 different claims. She dropped 4 of them and went to trial on the other two. The jury ruled in her favor and awarded just under $8000 in damages and over $100,000 for attorneys’ fees. On appeal, the court found the attorney fee award not unreasonable as it was exactly what the statute intended – a way to discourage employers from acting illegally.
TAKEAWAY: Employers who take illegal action and then don’t settle are likely causing more – and more expensive – harm to themselves in the long run.
On Thursday 4/3/14, we talked about strategies to avoid retaliation claims. What are 3 of the ways mentioned? Develop and maintain an effective no-retaliation policy, train employees, and effectively manage investigations. Other things were also mentioned in the post, so read it if you haven’t already. And why is this important? Because, as the saying goes, an ounce of prevention is worth a pound of cure. Translation: spending a little time and money now will (hopefully) prevent your business from having to spend a lot of time and money later.
TAKEAWAY: Again, employers should take all possible measures to ensure compliance now rather than having to pay (more) later.
The post on Friday 4/4/14 was about whether firing an employee over a scheduled doctor’s appointment violates the FMLA. Again, this is a federal court case. The employee made a doctor’s appointment, her supervisor asked her to cancel it so they could have a meeting, and she refused. Four days later, the supervisor terminated her employment. She ended up filing suit (after exhausting administrative remedies) for FMLA interference and retaliation. On the interference claim, the court found that the employee did not provide reasonable notice, such that the claim failed. On the retaliation claim, the court found that because she had not given proper notice, she had not properly tried to exercise her FMLA rights so there could be no retaliation. In the end, a win for the employer.
TAKEAWAY: Both employers and employees have to play by the rules of the game; if the employee doesn’t, then the law and its protections may not apply.
Finally, yesterday 4/5/14, the post was about a sex discrimination settlement for an Erie restaurant. The underlying allegations were that the co-owner frequently made offensive comments of a crude or sexual nature to, or in the presence of, the plaintiff and other female employees and that the co-owner also touched female employees in a sexual manner. Further, they alleged that he continued these behaviors despite being told to stop and that they were unwelcome. The plaintiff even said it was so severe that she was forced to quit. The restaurant refused to settle at the EEOC administrative phase, so the EEOC filed suit. Finally the restaurant employer agreed to settle.
TAKEAWAY: There is no place in the workplace for sexual discrimination or harassment; if it is found, the employer will pay – handsomely.
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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