Below is a review of the posts (on Facebook, LinkedIn, and X [formerly Twitter]) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 10/22/2023 told us Chipotle settles sexual harassment lawsuit for $400,000. Not a typo. The agreement settles an EEOC lawsuit filed in March 2022 which alleged that young female employees, including a 17-year-old, at two Chipotle locations were verbally and physically sexually harassed by two male staff members, ages 29 and 24. And as to what management knew and did? See the post. Chipotle, based in Newport Beach, Calif., did not admit to wrongdoing in the settlement agreement. It’s statement as to why it settled is in the post.
But this is not the first time Chipotle was accused of mistreating young employees. In 2020, the restaurant chain paid a $1.37 million penalty in Massachusetts for 13,253 state child labor law violations between 2015 and 2019. This was also not the first time Chipotle was sued for sexual harassment in the workplace. Since 2016, Chipotle has paid millions in settlements and judgments for sexual harassment lawsuits in FL, CA and TX.
In this case, the EEOC said that a manager not involved in the harassment alerted the general manager of one location in October 2019 that the 29-year-old worker may have been pursuing an inappropriate relationship with a 17-year-old employee. Good, right? Well … The GM didn’t investigate. What the GM did instead is in the post – which is where the problem is exacerbated. As background, the EEOC alleged that at that location, on one occasion the service manager sexually assaulted the teen worker while closing the store and would trap female workers in the restaurant’s walk-in refrigerator. And there were other incidents at both locations that are detailed in the post (and are just icky). So when the GMs at both locations knew about the crew member’s sexual harassment and aggressive behavior, what did they do? See the post.
The 29-year-old and 24-year-old male workers are no longer employed at Chipotle. Further, Chipotle denied all the allegations in the lawsuit in an answer filed in April 2022. As part of the settlement, there are nonmonetary terms (that are pretty important given past history with Chipotle) – see the post. And the $400,000 Chipotle is paying as part of the settlement? It will be divided among the three former crew members who the EEOC said were victims of the sexual harassment.
TAKEAWAY: Make sure your employees do not harass or discriminate against any employee, regardless of age. And if there is a complaint, investigate and take appropriate corrective action.
The post on Monday 10/23/2023 noted that office worker who went on maternity leave for 28 months and refused to return to work has no discrimination claim. Jowita Parsons began working for as an import coordinator in March 2019 for the business which sold “forest commodities” like paper. Parsons was called into a meeting by her line manager, Ben Wallace, where he raised concerns about her punctuality and standard of work. Later that year, Wallace sent her an email about a mistake in her work and Parsons complained. The outcome of the complaint is in the post. Then she was issued a disciplinary warning for how she behaved towards Wallace. Four days later, Parsons asked to take maternity leave four weeks early. As a result Wallace, who was in the Philippines at the time, had to arrange cover for her job – which involved the administration of fulfilling and delivering orders – at short notice.
Then, on March 25 2020, two days after lockdown, Parsons told her boss she would like to extend her first maternity leave to 12 months. She was due to return to work in October 2020, but got pregnant again and requested her second maternity leave be attached to the first. Her second maternity leave was due to end in November 2021, after it was extended because of a ‘family issue’. Parsons then asked for more time off which was granted – meaning she wasn’t then due to return to the office until the new year. By this point, Parsons had been on maternity leave for two years, two months and two weeks. Wallace told her she would need additional training before returning to work and requested a specific date she would return rather than leaving it open ended. Parsons was given a return date; her response is in the post. In February 2022, her employment was terminated after she failed to return to work. Parsons sued for unfair dismissal and sex and pregnancy discrimination.
The judge found that Parsons was asked about her return to work and on eight separate occasions she categorically stated that she was not able to return at all. And when she was asked to provide written alternative suggestions to return to work, she did not. And there’s more – see the post. In the end, the judge upheld the termination for the basis set forth in the post. NOTE that this probably would play out the same here in the US.
TAKEAWAY: Employees are allowed certain time off under the FMLA (and possibly ADA), but it is not indefinite. Employers must know what they can do and when – consultation with an employment lawyer is suggested.
The post on Tuesday 10/24/2023 said the EEOC alleges McDonald’s manager sexually harassed a 17-year-old worker until she was ‘forced’ to resign. Ugh. The EEOC alleges that her supervisor made “sexual comments” including some that were “raunchy and harassing,” to the teenager over the course of a month in late 2021. Some of the remarks are listed in the post (you will wince). The manager, a new hire at the time, was the teenager’s direct supervisor and was nine years older than her. The franchise restaurant is operated by Arch Fellow North LLC. The harassment ultimately culminated in him grabbing the teenager by the waist as they were leaving a dark storage shed in November 2021 and making the comment noted in the post (yep, you will wince again). The teen repeatedly told him to stop and rushed out. A few days later, another teenage worker informed the GM of the manager’s alleged behavior towards multiple young women, including the comment made in the shed. The GM then spoke to the teenager who told her that she had been harassed in the shed and that she was “very uncomfortable” working with the department manager. But what did the employer do? See the post. And as if that were not enough, the training supervisor asked the teenager to sign a harassment complaint form but wouldn’t let her take a picture of it and told her to keep the incident “as quiet as possible”. It wasn’t until nearly a week after the other teenage worker alerted the GM to the supervisor’s apparent conduct that the employer questioned him. What he claimed to have told the teen while in the shed is in the post. He also admitted to calling other employees “gorgeous” and “handsome.” Arch Fellow issued a “final warning” to the supervisor but never suspended him or changed his duties so that he wouldn’t supervise teenage girls and young women. The teenager resigned in mid-November 2021. And it gets worse (yes, it can). What did she have to do to resign? See the post. The EEOC is seeking backpay, punitive damages, and other compensation from Arch Fellow for the teenager.
TAKEAWAY: We’ve said it so many times: employers must train workers how to behave, investigate complaints, and take immediate action when warranted (even before an investigation is complete depending on the circumstances). Get legal assistance.
The post on Wednesday 10/25/2023 continued the saga: Condo board loses federal records suit, sanctioned for ‘frivolous’ claims. This may be one of the longest-running suits around … and it’s not over yet. The Boca View Condominium Association lost another court battle in its long-running fight to prevent a unit owner from exercising her right to inspect its financial records.
Earlier this month a federal judge dismissed a suit challenging the constitutionality of a 2010 Florida law that prohibits condo and homeowner associations from denying record requests they deem weren’t made in “good faith and (for) proper purpose.” The suit was filed in May, shortly after the state appellate court denied the association’s motion to suspend the state court order while its appeal is pending. The ruling was based on a magistrate’s recommendation in September 2023 (described in the post). The judge now has sanctioned the association and its attorneys for filing a federal lawsuit that was “factually and legally frivolous,” and “filed in bad faith based on a legal theory with no reasonable chance of success, all for an improper purpose.” More details on the underlying motion filed on July 4 by the Psalters and the basis for the sanctions are in the post. The judge’s sanction order requires the association to pay the Lepselters’ costs of fighting the federal suit. Unsurprisingly the association’s lead attorney did not respond to a request for comment about the court orders.
And the background for the entire suit? We’ve discussed it in prior posts … It all started in 2019 when Eleanor Lepselter sent a written request to inspect and photograph the association’s financial records. She asserted her right under state law to bring Yellin to the record inspection as her personal representative. When they showed up to inspect the records, the association’s treasurer refused to allow Yellin to accompany Lepselter into the room where the records were kept. What happened next is in the post and resulted in an arbitrator finding that the association broke state law and the records must be made available to Lepselter and Yellin. Then in January 2020 the association filed a state court suit against the Lepselters challenging the arbitration ruling. Almost three years of litigation later … Then in October 2022, a state court judge ruled; the substantive finding is in the post. But just as important is that he also ordered the association to pay the Lepselters’ legal fees, later determined to be around $246,000.
The basis for the association’s board’s continued denial of a records inspection is in the past. And there is history to that too. The association won a long lawsuit in December 2018 against another unit owner, Eileen Breitkreutz, who made a public record request. Why that request was filed is noted in the post. A judge in that case ultimately ordered Breitkreutz to pay $395,000 in legal fees incurred by the association.
In this case, at the October 2022 trial against the Lepselters, the association argued that the 2010 law did not apply because it was not in effect when the association’s governing documents were recorded in 2004. It argued that another state law (noted in the post) applied too. After losing the trial court case, the association’s motion for a rehearing was denied, as was its motion to suspend the ruling requiring it to turn over its financial records. The association filed an appeal in January and its federal lawsuit in May. Its constitutional arguments in the federal lawsuit are described in the past. In the sanctions order the judge noted that the association’s treasurer did not cite any of the legal arguments subsequently raised by the association when he originally denied Yellin the opportunity to inspect records with Eleanor Lepselter in 2019. The judge also explained why he believes the request was denied – see the post. The Lepselters’ attorney was to submit his legal bill.
Litigation in the state trial court continues while the appeal is in the briefing stage.
Yellin was given 20 hours over three days in May and June to inspect and copy financial records but only made it to records ending in 2016 before the association stopped cooperating – according to a motion for contempt she filed in the state court proceeding. The associator’s response to that motion is in the post. What Yellin alleges that she found in the records she was able to inspect is appalling – and in the post. Both the contempt motion and the association’s motion to strike it are still pending.
TAKEAWAY: It’s hard to top the actual facts – but look to the length an owner will go to take advantage of legal rights to inspect records. One must wonder why the association won’t allow such inspection – if all actions taken were legal …
In the post on Thursday 10/26/2023 we learned owner in years-long legal battle with HOA over landscaping feature. Jim Hildenbrand moved to Avignon Villa Homes, a community for older adults, and almost immediately ran into issues with the HOA and neighbors (anyone seeing red flags?). First, it was his satellite TV dish, which the HOA wanted him to move. (Anyone thinking perhaps the dish violated a restriction that was in place?) Then, it was citations for parking cars in his driveway overnight – plus an unapproved statue on his lawn. (Anyone thinking other restrictions that were in place that he violated?). And there’s more – see the post.
Hildenbrand then began a years-long fight with the HOA over dividers in his garden that he claimed were approved. The shin-high wall lines his plant bed along the side of his house, which he thinks increases curb appeal. The HOA ordered him to remove it, but he did not. Regardless of how nice the wall might look, the matter is now in court. Hildebrand claims he did not receive anything in writing that prohibited him from keeping the short wall. He also said. “It’s standing up for my constitutional rights,” he said. (NOTE: he’s wrong. There is no constitutional right to the landscaping of one’s choice, especially when you live in a community association with various restrictions.)
One of his neighbors supported his fight and claims that after her support, she was targeted by the HOA for issues they had not pointed out before. But other residents of the neighborhood have a different story to tell about Hildenbrand.
They say that he is the problem, not the HOA. Some of the comments, including from current or former Board members, are in the post. The HOA president said that this case is about more than just whether the wall stays. “The minute you start saying, ‘Oh well, that’s not a big deal,’ then before you know it, nothing is a big deal … this as a test case: Either our declarations are enforceable, or they’re not,” he explained.
Hildenbrand pays $185 a month to the HOA, like other owners, but that is hardly the most expensive thing for him. In his first few years in the community, he amassed $3,500 in fines. How the HOA dealt with that is in the post. He then found himself dealing with court fees as he fought to keep his wall. Hildebrand says he’s close to $300,000 out of pocket in this battle.
When the issue initially went to court in 2014, the HOA won and their order to remove the wall was upheld. Hildenbrand then hired an attorney who filed various motions which failed. The history after that is noted in the post. In 2017, a judge ordered Hildebrand to pay $25,000 to the HOA, upholding the original ruling; Hildenbrand quickly appealed.
In court fees, all combined, this legal battle has totaled almost $1 million. Not a typo! By 2019, the HOA had spent nearly $388,000 on legal proceedings and Hildenbrand had spent around $400,000. Four years later, the appellate court still sided with the HOA but revised the ordered fine to $17,600 and kicked it back down to a lower court to finalize. And it’s still going on …
TAKEAWAY: If owners do not comply with the applicable restrictions, it can cost a lot to enforce – so the condo or HOA should know if those fees can be charged back to the owner. Consult a community association lawyer.
The post on Friday 10/27/2023 alerted us that the EEOC issued new Guidance on harassment in the workplace. This is helpful for everyone to read! Among other things the Guidance addresses how digital technology and social media postings can contribute to a hostile work environment and the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County (the holding of which is in the post for those who don’t remember). The Guidance is open to public comment through November 1, 2023; if issued in final form, it will mark the first update to the EEOC’s official harassment guidance in nearly 25 years. So let’s dig in a bit.
The Guidance spotlights how social media postings and other online content can contribute to hostile work environments, even if it occurs outside of the workplace and is not work-related. Some examples are provided, including “[a] sexist comments made during a video meeting and others noted in the post. The Guidance also clarifies that conduct occurring in non-work-related contexts can contribute to a hostile work environment if it impacts the workplace – this includes electronic communications through phones, computers, and social media. An example of this is in the post.
Another notable aspect of the Guidance is that it incorporates the U.S. Supreme Court’s 2020 Bostock v. Clayton County decision (the cite for which is in the post). While Bostock dealt with an allegedly discriminatory employment discharge and did not involve harassment, the EEOC’s Guidance notes that the Supreme Court’s reasoning “logically extends to claims of harassment,” so the EEOC says that sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including how that identity is expressed. The Guidance lists several examples including those in the post. The EEOC also includes a hypothetical fact pattern in the Guidance depicting harassment based on gender identity. A general summary of the hypothetical is in the post. The fact\ pattern is probably drawn from real life as many of the facts are unfortunately common these days; according to the EEOC, the facts established harassment based on gender identity and, therefore, sex-based discrimination under Title VII.
TAKEAWAY: Employers should review their policies and practices to ensure that they adequately protect against, and provide avenues to report, potential harassment that occurs virtually and think about including examples of harassment in the Guidance when implementing harassment prevention measures. Do all of that in tandem with an employment lawyer.
Finally, in the post yesterday 10/28/2023, we saw that a DOL gender discrimination investigation of US Foods leads to back wages and other remedies. After allegations by 997 women, US Food locations in New Jersey, New York, Ohio, and North Carolina have been ordered to pay over $721,414 in back wages and interest extend job offers to 46 eligible class members, and to retain a hiring and employment consultant. US Foods is also required to report to the Office of Federal Contract Compliance Program (OFCCP) regularly on its hiring practices. which is consistent with OFCCP’s newly introduced reporting requirements. Let’s look at the background.
According to DOL, a routine government contractor compliance review determined that some US Food locations in those 4 states engaged in discriminatory hiring practices against female applicants for various warehouse positions from 2019 – 2021. US Foods actions allegedly violated Executive Order 11246 (which is described in the post). And this was not the first time. According to DOL, US Foods has previously entered into agreements for similar alleged violations from 2017 – 2021 in Alabama; Illinois; Utah, South Carolina; Florida; and Michigan.
OFCCP has been taking additional steps to confirm government contractors’ compliance with Affirmative Action Program (AAP) requirements through a portal described and linked in the post. The OFCCP’s portal opened on March 31, 2023, and stayed open until June 29, 2023. Which contractors are subject to the AAP requirement is noted in the post. Some contractors who do not timely comply are more likely to be audited; the effect of not timely certifying is noted in the post
TAKEAWAY: contractors who have not complied with the AAP reporting requirements or who have complied with the requirements but have not certified that compliance using the OFCCP’s Contractor Portal should do so as soon as possible – and seek legal guidance to hopefully avoid ramifications
York, Pennsylvania 17403