Social Media Posts February 16-22 2020

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.

In the post on Sunday 2/16/20, we saw that a nuclear power company avoided an ADA discrimination judgment. So, what happened? In 2005, Mark, a military vet, applied for and received a nuclear security officer position at a power station. The NRC requires people in that position to have a certain clearance. The post describes how the clearance is obtained. Some years later, in 2012, Mark filed a claim for disability benefits with the VA on several bases (see the post). A scant few weeks later, he did not disclose those things on his employer’s annual medical assessment. He did the same thing in 2013 and 2014. Things changed in 2015. The employer asked Mark to work overtime; he refused, saying he’d be too tired. It suspended him. Mark complained to the ethics hotline. Only the did the employer find out about his condition. The domino effect that triggered is noted in the post. The result was employment termination. Mark sued, alleging disability discrimination (and other things). The trial court ruled against him and was affirmed on appeal. The court’s analysis is in the post.

            TAKEAWAY: Every now and then something does not turn on disability, but another facet of the law – know all of the requirements and get legal counsel when needed.

The post on Monday 2/17/20 taught us that a staffing firm can sue buyer for discrimination. Here White Glove Staffing was in contract negotiations with Methodist Hospitals of Dallas and supplying kitchen staff during the negotiations. Someone from Methodist told White Glove that the chef preferred Hispanics. White Glove sent Carolyn, an African American; when she worked is in the post. Then Methodist asked White Glove to send an Hispanic worker. White Glove again sent Carolyn; the hospital’s response to that and the negotiations is in the post. White Glove sued. It lost at the trial level and appealed. How it could go forward on appeal is explained in the post.

TAKEAWAY: don’t try to take illegal adverse action through an agent or proxy when you can’t take the same action yourself.

The post on Tuesday 2/18/20 contained the ins and outs of the Pregnancy Discrimination Act – and was a good primer for employees and employers. The PDA is an amendment to Title VII. It requires that pregnant employees be treated the same as all other employees. Some of what that means is in the post, including how it compares to other health conditions and leave under the FMLA. Retaliation for making a claim of PDA discrimination is illegal; likewise, so is creating a hostile work environment. How to file a claim, and a genera idea of the process, is in the post. What is also in the post are tips for employers to prevent an adverse finding if such a claim is brought against them.

TAKEAWAY: Pregnant employees are to be treated no differently than other employees; the ensure the devil does not get the better of the details, consult employment counsel.

The post on Wednesday 2/19/20 told us that condo and HOA buyers must be given the Association’s financial documents. PA law requires that certain information be given to a potential buyer upon request. It even includes the ramifications or effects if the information is not provided or is incomplete/incorrect. But what if the information is provided? The potential buyer should look for the things noted in the post. Those same things should also be flags for current Association members and Board members.

            TAKEAWAY: If you already live in a community association, and might even be on the Board, or if you might be moving into a community association, know what to look for. Consult a community association lawyer for assistance.

In the post on Thursday 2/20/20 we were reminded that employers are not required to provide THE accommodation requested, but rather a reasonable accommodation. Yes, this is another lesson learned at the feet of Walmart. Here, the employee was offered a position as an assistant manager. He then noted that as a Seventh Day Adventist, he could not work any Saturdays until after sundown. How that contrasted with the average workload for an assistant manager is in the post. Walmart denied his request for accommodation and withdrew the offer of employment. However, wat else it did is noted in the post. He sued, alleging a failure to accommodate his religious beliefs and retaliation (by withdrawing the job offer). Walmart filed for summary judgment. How and why the court ruled is in the post – and is instructive for other employees and employers.

TAKEAWAY: Know the burden-shifting that goes along with the reasonable accommodation framework and how each party must interact – get legal assistance to protect your rights.

The post on Friday 2/21/20 was about 5 common mistakes employers make under USERRA (you know what that is, right?). USERRA (the acronym is defined in the post) prohibits ALL employers from discriminating against applicants and employees based on uniformed service. There are reemployment rights and protections for service members. What USERRA protects is in the post. However, to have protection under USERRA, an employee must give “advance notice” unless a condition noted in the post applies. Further, how “advance notice” is defined – and how it may be given – is discussed in the post. There are times the employer may request documentation – see the post. What trips up some employers is the “escalator principle” – see the post for what it is and how it works. Finally, discrimination based on the military service is prohibited – examples of how it can come about, even just out of frustration, is in the post.

            TAKEAWAY: It is important to know what’s legal given the increasing number of veterans and active military personnel in the workforce – know each party’s rights and obligations and train your employees.

Finally, in the post yesterday 2/22/20, we saw that a charter bus company settled an ADA case.  How did the case come about? A 74-year old veteran became paraplegic after his helicopter was gunned down in Vietnam. He wanted to go with many fellow vets on an Honor Flight charter bus tour. The accommodation requested on his behalf months ahead is noted in the post. It did not happen. How that violated the ADA is detailed in the post.

TAKEAWAY: These provisions apply regardless of veteran status – know what is required under each part of the law.

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