$550K discriminatory hiring settlement; (planes, trains and) lawns in condo/HOAs; employer considerations after Dobbs; coded language in job ads; and more in Our Social Media Posts This Week, Nov. 13-19, 2022.

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.

staffing solutions will pay $550K to settle eeoc discriminatory hiring and placement suit

In the post on Sunday 11/13/2022 we learned Staffing Solutions will pay $550K to settle EEOC discriminatory hiring and placement suit. One would think that a staffing company would know the law, but apparently not. The suit filed here alleged that Staffing Solutions either refused to hire highly qualified Black applicants or placed them in the lowest-paying, lease desirable jobs and more as listed in the post. There were also allegations regarding age discrimination (as noted in the post). Finally, the EEOC charged that an office manager complained about the illegal hiring practices but was warned that she would be fired if she failed to comply. The office manager then felt she had no choice but to resign. The suit included claims under Title VII, the ADA, and the ADEA for discrimination and retaliation. The settlement includes a 3-year consent decree under which Staffing Solutions will pay $475,000 to applicants and employees subjected to the discriminatory practices, $75,000 for an independent monitor to review hiring and placement decision for legality (and more services as noted in the post, and significant non-monetary relief as also noted in the post. And there’s more, including that the company’s owner hast send a letter to all clients committing Staffing Solutions to following federal laws prohibiting discrimination (today’s version of writing “I will not _____” 100 times on the chalkboard).  

TAKEAWAY: Don’t discriminate against employees or applicants (or retaliate against those who report discrimination); it will just get worse for you.

failing to cite? say bye to employment claims (in some courts).

The post on Monday 11/14/2022 asked Failing to Cite? Say Bye to Employment Claims (in some courts). The issue is whether a plaintiff in a suit must specify not only the facts upon which the suit is based but also the law that applies. Here, the facts might state claims under more than one statute, but only one was cited. Bailie Bye filed a complaint alleging that her employer (MGM Resorts) discriminated against her based on sex for not allowing lactation breaks. She cited only to Title VII and did not mention the FLSA, so the question was whether she could later pursue the FLSA claim. Bye’s complaint had factual details (as described in the post) and listed the various types of illegal conduct she alleged (again, see the post). But not until the summary judgment stage did she mention the FLSA and what it requires relative to her claim (yes, see the post). The court there said that her delay in citing the FLSA as a statutory basis for her suit was the equivalent of a failure to bring a claim under the FLSA (the analysis and reasoning are in the post).

TAKEAWAY: Each separate legal basis for relief should be cited by the employee/plaintiff and, if not, objected to at some point by the defendant-employer. But know legal procedure (near the end of the post).

here’s why we don’t need lawns (or what to do about them in condo and Home-owners’ associations)

The post on Tuesday 11/15/2022 mentioned Here’s why we don’t need lawns (or what to do about them in condo and homeowners’ associations). Lawns require upkeep – time and money (water, fertilizer, week killer, pesticides, electricity, and more as itemized in the post). When defining “lawn” to include golf courses, parks, athletic fields, campuses, and other big green spaces, it was found (by a NASA entity) that there are at least three times more acres of lawn in the US than irrigated corn. Yep. So what about giving up the lawn and replacing it with other things? People not living in a community association can make that decision for themselves (as long as they follow any applicable municipal ordinances); however, those living in condominium or homeowner associations have restrictions they must follow. And sometimes those restrictions require a certain type or amount of land-scaping. And what to do about those condo/HOA restrictions? See the post.

TAKEAWAY: All residents of community associations must abide by the governing documents, but those documents can be amended. Consult a community association lawyer to help you, whether you are an owner or Board member.

employer considerations in the aftermath of the dobbs decision

The post on Wednesday 11/16/2022 taught us about employer considerations in the aftermath of the Dobbs decision. Note that this is important for employers who want to maintain a happy (or any) workforce.  Unless you’ve had your head buried in the sand, you know that on June 24, 2022, the US Supreme Court over-turned the constitutional right to abortion that was established in Roe v. Wade. Dobbs was a 6-3 decision that upheld a Mississippi law banning abortion after 15 weeks (long before a fetus was considered viable under the Roe framework). The emphasis under Justice Alito’s majority opinion is noted in the post. Once Dobbs was issued, many state statutes regulating abortion sprung into effectiveness. That then begs the question of how Dobbs impacted the extent to which employers can provide coverage for employees for abortions and other female reproductive health care services under health care plans. The first question an employer must ask is where it does business because it must abide by the statutory scheme in each such state. And the ‘where do we do business” question is not as straight-forward as you may think: see the post as to why that is so. Other questions an employer must ask include what kind of health care plan it provides and what about protected speech in the workplace. A full discussion of each of those questions is in the post.

        TAKEAWAY: Employees started to and still discuss abortion in the workplace in light of Dobbs; employers must know how to deal with those discussions as well as state laws restriction abortion or other female health care services. Legal consultation is a good idea.

“early career” recruiting strategies risk age bias liability

In the post on Thursday 11/17/2022 we noted that ‘Early Career” recruiting strategies risk age bias liability. Yes, employers must know the law! Employers often want the best and brightest of the new crop of employees; who can blame them. But is how they go about getting those employees that might bring legal woes to the doorstep. Coded language will rarely escape notice. In a recent case brought by the EEOC against Lilly USA, we see that in action. The suit alleges that Lilly violated the ADEA when its executive pledged to hire more “early career” professionals (to the detriment of older workers). A similar age-bias suit against IBM was settled in August; the language it used that put it in legal hot water is noted in the post. What was the exact quote by Lilly’s SVP for HR (yep, one who should definitely know better) in 2017? See the post. And yet Lilly denied the EEOC’s allega-tions in the suit. Age often is used as a proxy for digital competency even when untrue. HP too was hit by an age bias suit in 2020 because of a statement made by its former CEO (which is in the post). The HP suit ended in arbitration. And there are plenty more – including biopharma company Novo Nordisk, R3 Government Solutions, Fisher Connectors, and more (for which suit details are in the post). It became harder to win an age discrimination case after the Supreme Court’s decision in Gross v FML Financial Services because of the high burden it imposed on the plaintiff employee (as noted in the post). There is a move in Congress to change the burden, but that has not yet happened.

TAKEAWAY: Treat all employees and applicants the same regardless of age – or be prepared to see the word “Defendant” after your name in a lawsuit caption.

benefits of buying a home in a planned community

The post on Friday 11/18/2022 was about the benefits of buying a home in a planned community. That term refers to a home in a condominium or home-owners’ association (or in some places a cooperative). Often a planned community will include many amenities like a park, gym, pool, and more. What are some things to consider before buying? Location (but know who is responsible for roads maintenance (i.e., municipality or associ-ation). Structure (but know who owns which part of the community – see the post). Safety (again, know what you can and cannot change relative to your home – see the post). Homeowners’ Association – enforces the various rights and obligations of owners including those things mentioned in the post.

TAKEAWAY: Life in a community with a condominium or homeowners’ association can be great, but know the various parties’ rights and restrictions. Consult a community association lawyer.

DOL and Unifirst reach agreement resolving alleged gender-based pay discrimination

Finally, in the post yesterday 11/19/2022, we learned that DOL and Unifirst Corporation reach agreement resolving alleged gender-based pay discrimination. In case the link did not work; here it is again: www.dol.gov/newsroom/releases/ofccp/ofccp20221005). Unifirst is one of the US’s largest uniform providers. It will pay $104,568 in pack pay and interest to 37 former and current female employees in a PA production facility in resolution of alleged pay discrimination that was identified in a routine audit. Unifirst is a government contractor, so OFCCP audits for compliance. A recent audit found that Unifirst paid females less than male counterparts since 1/1/2021. How that is illegal is in the post. But the back pay and interest is not all – UniFirst also agreed to other things identified in the post as part of the settlement. This was not the first time Unifirst settled a matter with the government; other settlements were 1/20/2017 for alleged violations in NC and 7/30/2020 for alleged violations in NH.

TAKEAWAY: In addition to other things, OFCCP enforces Section 503 of the Rehabilitation Act, so what it does can be analogized to Title VII and other statutory enforcement proceedings and settlements. Know the law. And get an employment lawyer involved.

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