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Jan 3, 201301:22 PMOpen Mic

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Employment law update: Facebook follies, age discrimination, and more

Employment law update: Facebook follies, age discrimination, and more

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Legislation and administrative action

EEOC states that employers can discriminate in favor of disabled or older workers. An EEOC Opinion Letter states that nothing in the ADA or ADEA prohibits an employer from hiring only people with disabilities, or people over 40, or from discriminating against people somewhat over 40 in favor of people even older. The language of these laws covers only one-way discrimination; it does not cover those without disabilities or the more youthful.

This is different from the other EEO laws, which prohibit discrimination against any race, any religion, any national origin, and both genders equally; one cannot discriminate in favor of one over another. Employers should be cautious about any reliance upon this EEOC letter. It will only apply if the rejected party’s complaint is limited solely to being of a younger age or being non-disabled. The moment the plaintiff claims that a preference for a disabled or older person led to rejection of qualified people of a different race, sex, national origin, etc., then the EEOC will likely see a viable discrimination case. So the letter probably has only a very limited real-life application.

Federal minimum wage eclipsed state by state. The federal minimum wage of $7.25 per hour has been criticized by some as a “poverty wage,” yet has been defended by others as valid compensation that will cost jobs if increased. Any change has become mired in congressional politics. State by state, the federal wage is becoming less relevant as the amount for all workers in states is raised above $7.25.

Many municipalities and counties require a “living wage” or “prevailing wage” significantly higher than the minimum to be paid by all companies receiving government contracts. The following states have joined the higher-than-federal-minimum-wage group, effective January 2013: Colorado, $7.78; Florida, $7.79; Missouri, $7.35; Montana, $7.65; Ohio, $7.85; Oregon, $8.95; Rhode Island, $7.75; Vermont, $8.60; and Washington, $9.19.

Litigation

The Legal Update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a federal court decision in another part of the country, and especially a different state’s court decision, may not quite be “the law” in your jurisdiction. Some courts lead the way; others lag behind. The Legal Update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois, and Indiana).

National Labor Relations Act, social media and privacy

Employee’s Facebook activity could not be disciplined, but watch out for ex-spouses. Three pre-school employees created a Facebook page titled “Don’t U Hate It When …”. They used Facebook to express frustrations – sometimes about their work, sometimes about their management – with some insulting comments and a lot of profanity. One of the employees was in the process of a divorce, and her soon-to-be ex-husband, out of pure spite, forwarded the Facebook contents to the employee’s manager for the purpose of getting her in trouble. It worked. All three were fired. In addition, the manager forwarded the contents to other program managers to assure that no one else would hire the three of them.

When the discharges were challenged, the arbitrator found the employees’ critique of managers was protected activity. Much of the profanity was about non-work issues and not proper for the employer to consider at all. There was no justification for the manager to share the information with others. On the other hand, the employees had no privacy claims; Facebook is public, and the employees should have known the postings could be seen. Furthermore, the employer was not engaged in an effort to look into employees’ media use; the husband sent it, unsolicited. Finally, the arbitrator had no jurisdiction over the vindictive husband who started the whole mess. In re Vista Nuevas Head Start and Michigan AFSME Council 25 (2012).

Jan 9, 2013 04:58 pm
 Posted by  Robert W.

Nice article Bob!!!! Thank you.

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