What constitutes FMLA leave, equal work for equal pay, resolutions for community associations, tips to avoid lawsuits, and more in our social media posts this week – Jan. 12 – 18, 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 1/12/20, we read about just when you thought you knew what constituted FMLA leave … It may change. Here, the employee showed signs of a health issue – what those signs were is in the post. The employer, a high school, refused to accommodate her request for time off until the beginning of the next school year. She was not offered a job for that next year, which snowballed into the events noted in the post. She sued. At trial, a jury found in her favor; the reasons are in the post. That was affirmed on appeal. And in case that’s not enough, we were reminded about the DOL opinion letter that FMLA leave to attend meetings at school related to a child’s health condition. More specifics on that are in the post.

            TAKEAWAY: Don’t just deny an FMLA request – consult with employment counsel first so that you do not have the word “defendant” after your name.

The post on Monday 1/13/20 was about a court decision that there is no need to show unequal pay for equal work to bring a Title VII pay discrimination claim. Often an EPA violation is required prior to proceeding under Title VII. Not anymore – at least in some parts of the country. So how did this come about? A female VP filed a claim under both statutes alleging less pay than male VPs based on sex. The background is in the post. The employer alleged that the males performed different, more highly compensated work. The appellate court’s analysis is in the post and bears reading in case PA follows this line.

TAKEAWAY: Whether PA courts will follow this decision remains to be seen, but you should be prepared just in case you need to make this argument or defend against it.

The post on Tuesday 1/14/20 brought us new year’s resolutions for HOA and condo association directors (and residents). Some of the suggestions include to always follow the Golden Rule, check one’s attitude (including remembering you are a servant, meeting and checking on fiduciary duties, remaining neighborly, and being patient), and more listed in the post. Some communities have their own policies on civility or use the new one put out by the Community Associations Institute, but the items in the post are good for inclusion somehow.

TAKEAWAY: Life in a community association should be pleasant – to keep it that way, be neighborly and follow applicable law and legal documents. Consult a community lawyer for assistance.

The post on Wednesday 1/15/20 taught us that (a court finds) ADA does not protect employee’s dormant genetic condition. Sheryl has the BRAC1 gene, also know as the breast cancer gene. About 2 months after she started working as an admin assistant with an early childcare provider, she opted for a double mastectomy for medical reasons. A mere 2 weeks later, she was fired. Suit was brought. Surprisingly (or not so?), the court ruled against her. Its reasoning is in the post. The author of the post also noted that the case might have turned out differently if brought under a different prong of the ADA (and, as we warned, that GINA may apply).

          TAKEAWAY: This case may be an outlier, but tread lightly in this area and only after consulting employment counsel.

In the post on Thursday 1/16/20 we saw that American Woodmark will pay $25,000 to settle an EEOC disability discrimination suit. The suit alleges that Erica, a 16-year employee, requested 2 days of unpaid leave to visit a doctor relative to her disabilities. The employer assigned her points for missing work and then, because she then had excessive points, fired her. That was even after Erica took the actions noted in the post. The EEOC’s conciliation efforts failed, so it sued, Finally the employer saw the light and settled (for monetary relief and the other things noted in the post).

TAKEAWAY: Know the law and what is or is not a reasonable accommoda-tion under the ADA.

The post on Friday 1/17/20 mentioned 20 steps to avoid employment lawsuits. The first, which probably tops most lists, is to document (either something that happened or should have and did not). Next, consider having in place an arbitration agreement (but discuss that with legal counsel). Third is to have an employee handbook – and keep it up to date and enforce it evenly. The remaining tips are in the post. And most if not all of these are good for PA employers too.

          TAKEAWAY: Be smart and do what you can to minimize risk for legal violations – and consult with an employment lawyer when putting in place these measures to do it correctly and legally.

Finally, in the post yesterday 1/18/20, we talked about  notification of a wage and hour audit – contact your employment lawyer as soon as you get the notice and don’t say or do anything until then (as it could end up adverse to your interests). The notice will ask questions, but it will probably also request document like payroll records and others mentioned in the post. Whether you need to respond, and what you need to provide, is discussed in the post. It also talks about some of the things the audit is reviewing (including classification of employees, proper maintenance of time records, and more noted in the post). And in case you are determined to be in violation, you will need to pay back wages and, probably, liquidated damages and civil penalties.

TAKEAWAY: Do it right from the start – properly classify employees, pay them correctly, take proper deductions, and keep meticulous records of everything related to pay.

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