Employment Laws to Watch in 2017

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Employment Laws to Watch in 2017

With a change in administration just around the corner, President-Elect Trump’s priorities are starting to take shape. What can we anticipate for 2017? It is still too early to forecast what the upcoming year will bring, but here are five employment areas to keep your eye on in the months ahead.
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6 FAQs About the Implications of the Ohio Medical Marijuana Bill on Employers

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Medical Marijuana

House Bill 523 passed by Governor John Kasich on June 8, 2016 legalizes medical marijuana use in Ohio. Effective September 6, 2016, authorized licensed physicians are able to recommend the use of medical marijuana to someone with a qualifying medical condition which consists for chronic and severe illnesses. Under this bill, consumption is limited to oil, edibles, and patches.
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FCRA Class Action Lawsuits: The Most Common Violations

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FCRA Class Action Lawsuits: The Most Common Violations

Every year, the number of FCRA class action lawsuits against employers keeps growing. The main reason for this: there’s money to be made. With a number of well-publicized high-dollar settlements, including Home Depot’s $3 million and Publix Super Market’s $6.8 million, as well as the potential for large payouts, it’s expected that this trend will continue.
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The 10 Crucial Skills for Supervisors to Have

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The 10 Crucial Skills for Supervisors to Have

Supervising and managing a group of employees who all have different personalities, skill sets and who may or may not interact well with each other is no easy task. New supervisors are no longer solely responsible for their own results and performance. Instead, they must now facilitate results and success through their employees. One of a supervisor’s main roles is to establish goals and lead a team of people to achieve them.

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The Ultimate Guide to Training in 2015

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If your organization is like most, a guiding question for your 2015 planning will likely be some version of this question: “What kinds of training & development programs should we choose that will help ensure we are able to attract and retain talented employees, as well as prevent regrettable attrition, within our organization in 2015 and beyond?” What follows is a snapshot of some of the most popular training topics for 2014 and into 2015, along with a brief explanation of how they can each be leveraged to the benefit of the organization.

Up & Coming

Leadership Development

Pointing to the need to refocus attention on the longevity of an organization and the generational shift towards Millenials that is occurring in the overall workforce, leadership development is definitely on the list of hot training topics on the rise.
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10 Employment Laws that Supervisors Need to Know

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Supervisors and managers have a shared responsibility with HR in making sure that their interactions and relations with employees are compliant with federal and state employment laws. Here are ten (10) of the most important employment laws that supervisors need to be aware of and the major responsibilities that supervisors typically are responsible for in ensuring compliance.

10 Employment Laws that Supervisors Need to Know

1. Title VII of the Civil Rights Act

Purpose:

To prohibit job discrimination in the workplace

Overview:

Title VII of the Civil Rights Act covers an employer who has fifteen (15) or more employees and prohibits discrimination against any individual on the bases of race, religion, color, sex (including pregnancy and gender identity), sexual orientation, parental status, national origin, age, disability, family medical history or genetic information, political affiliation, military service, or any other non-merit based factor. The law also protects individuals from harassment in the workplace.

Supervisor Responsibilities:  

Supervisors must treat all employees and applicants consistently and equally, without regard to their race, color, religion, gender, national origin or any other characteristics that are protected under law. Supervisors are not to base any employment decisions on these protected characteristics, cannot deny opportunities to an individual because of their characteristics, and cannot retaliate against an employee. Supervisors are to treat all employees respectfully and avoid unwanted/unwelcomed behavior that constitutes harassment.
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FMLA & Facebook: 6 New Lessons for Employers

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FMLA & Facebook: 6 New Lessons for Employers

Increasingly, Facebook and other social media postings are entering the courtroom as employers use them as evidence for taking adverse action against employees. Here are two cases regarding Facebook and the Family Medical Leave Act (FMLA) which serve as models for employers on this issue and offer six (6) important lessons.

Case Law Overview

Case #1

In Lineberry v. Detroit Medical Center, a federal district court ruled that an employer is entitled to fire an employee if they have an "honest belief" that he or she is abusing FMLA leave.

In the case, Carol Lineberry was employed by Detroit Medical Center as a Registered Nurse. She injured herself on-the-job when moving stretchers, was treated by her physician, and was told not to return to work. As a result, Lineberry received approved FMLA leave from her employer.

While on leave, Lineberry took a vacation to Mexico. The trip was approved by her physician who stated that the vacation would not conflict with her recovery nor would be as physically demanding as performing her job duties. During her vacation, however, Lineberry posted photos on Facebook suggesting that she misrepresented her need for FMLA. Her coworkers saw these postings and complained to Lineberry's supervisor.

When questioned, Lineberry informed her supervisor that she used a wheelchair during her travel, however during a subsequent disciplinary meeting, when reminded that airports have cameras, admitted to lying about using a wheelchair. As a result, Detroit Medical Center terminated Lineberry for dishonesty and falsifying information. Lineberry sued the hospital, alleging that it interfered with her FMLA rights and retaliated against her.

The court considered Lineberry's Facebook postings and dishonesty about the use of a wheelchair as facts which led Detroit Medical Center to reasonably believe that she had misused FMLA leave.

Case #2

A similar case, Jaszczyszyn v. Advantage Health Physician Network, involved Sara Jaszczyszyn, a customer service representative employed at Advantage Health Physician Network. Sara requested and obtained the appropriate medical certification for intermittent FMLA leave as a result of a car accident.

After receiving certification, Sara was absent for a continuous and open-ended length of time. While on FMLA leave, Sara posted pictures of herself at a festival, socializing and enjoying time with friends. Her coworkers viewed these pictures and complained to their boss. Sara was eventually terminated and filed a retaliation claim against Advantage Health Physician Network.

Sara's claim was dismissed by court, primarily because the organization was able to show that it had an honest belief that she was engaging in fraud and relied on facts in its decision to terminate her. Also, the organization conducted a complete and thorough investigation of the issue and inquired about the discrepancy between her claim and Facebook photos.

Employer Takeaways

These two cases have some important implications for employers in terms of managing social media postings and FMLA leave, specifically:

  1. Social media postings may be legitimate evidence, coupled with other relevant facts and evidence from many different sources, to aid in an investigation and substantiate that an employee is abusing or misusing FMLA leave.
  2. Coworker complaints or reports about behavior on Facebook and other social media websites can be taken seriously and may prompt further investigation.
  3. Employers are permitted to properly investigate an employee's FMLA leave if they suspect that an employee is violating the terms of their leave.
  4. It's important to follow your disciplinary policy and procedure. These organizations remained compliant and consistent with their disciplinary policies and procedures, and took steps to obtain the appropriate information prior to terminating the employees.
  5. Organizations should obtain the appropriate information about an employee's medical restrictions under FMLA before taking adverse action on an employee.
  6. Employers should focus on responding to complaints about Facebook and other social media behavior, rather than routinely "spying" on employees' Facebook profiles and social media behavior.

There will undoubtedly be much more case law to glean insights from as Facebook and other social media postings make their way into the courtroom. As these cases unfold, employers should use them as models and lessons for how to manage FMLA and other employment laws.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

Additional Resources

FMLA Administration & Services: ERC's Preferred Partner, CareWorks, provides ERC members with discounts on services related to day to day management, tracking, and overall administration of FMLA. CareWorks' approach is outcome-based, streamlined, and cost-effective, and ensures that claims are handled consistently and in compliance with state and federal laws. 

Employment Law Fundamentals: This seminar is designed to provide managers and supervisors with an overview of relevant employment law considerations and to support a proactive, positive work environment. Presented in an interactive style, this seminar can be customized to specific topic areas desired by the employer.

ERC Preferred Partner CareWorks provides Absence Management and FMLA Administration. ERC Members save 5% off per EE per month fee or a $500 discount off Initial Set-up Fee

Recap: Employment Law - The Year Ahead

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ERC's 2013 "Employment Law: The Year Ahead" program featured presentations from three attorneys at Buckingham, Doolittle, & Burroughs LLP which covered major topics in employment law related to the NLRB, Affordable Care Act, and expected regulations for 2013.

1. NLRB

Unconstitutional Board Appointments

Neil Bhagat led the program with an update on the NLRB. While the Federal Appeals Court invalidated decisions made by the National Labor Relations Board (NLRB) when it determined that President Obama acted unconstitutionally by making recess appointments to the Board, Bhagat explained that employers should use the Board's recent decisions as guidance until a decision is made on whether the Board's decisions are binding or not.
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ERC Members Save on Employment Law Event!

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Fisher & Phillips LLP is providing a full day employment law seminar on April 17th in our area. The law firm has generously extended the preferred rate of $125 to ERC members for this program. 

When registering, use the code ERC42.