In the post on Sunday 8/29/21 we saw that an ex-Tesla employee wins rare $1 million racial discrimination award. Melvin Berry won the award after arbitration and made many Black employees who complained that Tesla did nothing about this type of complaint jump for joy. Berry was hired as a materials handler in 2015 and quit less than 18 months later. What did Berry complain about? That when he confronted a supervisor for calling him the “N-word” he was forced to work longer hours and push a heavier cart. Tesla argued that there was nothing in Barry’s file about his complaint and that he left voluntarily and that he experienced only “garden variety” emotional suffering. How Berry described it is in the post. And what about the complaints by other Black employees? They include that Tesla ignored the common use of racial slurs on the assembly line (one former employee at one of the factories said in a sworn declaration that he “heard the ‘N-word’ used at least 100 times by co-workers and that Black and White employees alike referred to the factory as ‘the plantation’ or ‘slaveship’”) and more as noted in the post (note that it is not pretty). Arbitration is usually confidential, but what was filed in court gives a hint to what happened here. And that is the arbi-trator finding Berry’s allegations more credible than Tesla’s denials. And why was there a court filing related to the confidential arbitration? See the post. And keep your eyes open – a September trial is set on claims of discrimination by a contractor worker who came to Tesla in 2015 as an elevator operator.
TAKEAWAY: Many companies require arbitration as part of the complaints resolution process and it is therefore hard (impossible?) to know how they turn out; here we know and it shows that employers must toe the legal line or be found liable to employees.
The post on Monday 8/30/21 told us that Chipotle is to pay $70,000 to settle an EEOC sexual harassment and retaliation case. The EEOC filed the suit after conciliation failed. The suit alleged that a male crew member repeatedly made sexually offensive remarks about the body of a female service manager. What that led to (again, it’s not pretty) is in the post. After her reports to store management got nowhere, the service manager told the GM she was going to report the behavior to corporate HQ. Within 3 days she was terminated. The settlement involves more than monetary damages – see the post.
TAKEAWAY: Not only can conduct (or lack of conduct) be illegal, so too is retaliation based on the reporting of the (lack of) conduct. Make sure your employees are properly trained.
The post on Tuesday 8/31/2021 was about Teen Mom OG Amber Portwood being sued by an homeowners’ association for unpaid fees. Just goes to show that reality TV stars put their pants on one leg at a time too. This is not Portwood’s first legal trouble. Here, the HOA sued for unpaid fees plus court costs and attorneys’ fees. Portwood has not been living in the unit (her residence is noted in the post) but at least one person related to her has been – see the post. Allegations by the HOA are in the post, including how long it has been since Portwood paid dues and the amount she owes as of the filing of the suit. And this wasn’t the first time the association sued her – a suit last fall was dismissed shortly after filing when she paid what was due. Portwood’s other legal troubles are noted in the post too.
TAKEAWAY: Whether or not the owner lives in the unit, there is still a responsibility and obligation to pay all dues and assessments; collection may well occur if there are arrears.
The post on Wednesday 9/1/21 was about how employers can avoid COVID-19 litigation in the return to the workplace. Not too long ago the goal of employers was to make sure employees returning to the office avoided contracting COVID-19. Now it has often turned to avoiding litigation resulting from the return to the office. So, what are some tips to aid in achieving that goal? First, communicate clearly regarding remote work and leave. This is especially important now that the line diving work and home space (literally and figuratively) is blurred. Employers and employees must know when employees at home can be expected and required to work (with an example noted in the post). The next tip is to avoid retaliation claims. Examples of what those claims might be, and the process that they may follow, are in the post. Certain managers should handle communications and things should be handles as noted in the post. Also to be wary of are disability discrimination allegations and wage and hour lawsuits, both of which are discussed in the post (as to examples and tips for avoidance).
TAKEAWAY: Before returning employees to the office, have a plan in place that includes dealing with medical/disability and religious accommodations as well as safety issues. Work with employment law counsel.
In the post on Thursday 9/2/21 we saw that Genesis HealthCare agreed to resolve allegations of ADA violations. The allegations are that 12 of its skilled nursing facilities located in 2 states denied admission to prospective residents because they were prescribed an FDA-approved medication for opioid use disorder. The US Attorney (“USA”) sued, alleging violations of the ADA, Rehabilitation Act and ACA. The USA received complaints about the behavior which are more detailed in the post. The settlement requires the facilities to adopt a non-discrimination policy and provide applicable training aw well as pay the monetary penalty noted in the post (part of which will be suspended and forgiven for the reason noted in the post).
TAKEAWAY: Remember that the ADA and other laws are broader than just employment-related protection; know the law.
The post on Friday 9/3/21 was about a Black woman stunned after her white neighbor scolds her for hanging Tigger flag outside her house. That is not a typo – Tigger, the bouncing tiger character in Disney’s Winnie the Pooh. Why did the neighbor complain? See the post. She captured home security footage which is in the post. The woman also mentioned that the community has rules but look at what she said about them (yes, in the post).
TAKEAWAY: Rules in a community association apply to everyone – you may not like what they let someone do, but that person may not like what the rules let you do. Know the rules (and other restrictions and obligations) and their enforcement – consult a community association lawyer.
Finally, in the post yesterday 9/4/21, we were reminded that long-haul COVID symptoms may qualify as a disability under the ADA. Guidance on this was issued at the end of July but may have slid under the radar for many employers. Research to date shows that 10% of those who contracted COVID-19 will have lingering symptoms for weeks or months after the virus itself is not detectable in them. There is a formal, long name for this, but it is referred to as “long COVID” and the individuals as “long-haulers”. What the symptoms might include and how an individual’s physical and mental capabilities may be limited are in the post. Sometimes those limits indicate a disability as defined under the ADA, other times they do not. An example is in the post. So, what should employers do now in anticipation of more cases of long-haulers? Recognize that someone telling of these symptoms or the effect on their ability to work may be a request for accommodation (which needs no specific words) and take the other steps noted in the post.
TAKEAWAY: Employers must be aware of their obligations under various laws as COVID continues to morph into variants and various ways of exposure and effect – use an employment lawyer to help you navigate the minefield.