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 3/6/2022 we learned the EEOC sued Pneuline Supply for disability discrimination and retaliation. [NOTE: here’s the link which was broken in the post – http://ow.ly/cvoB50IhOa8]. So what happened? Pneuline hired Lyubov Mezentseva in May 2017 as an assembler. At that time Pneuline knew she had a severe hearing impairment and that she was proficient in ASL but not English. How did Mezentseva communicate? See the post. From January – May 2018 she filed multiple grievances about being excluded from work discussions and meetings due to her hearing impairment. One example is noted in the post. At one point the employer disciplined her for having filed a complaint. In May 2018, after a mandatory meeting where there was no ASL interpreter present, Mezentseva formally requested a certified ASL interpreter for meetings. And how did the employer respond? See the post. After conciliation failed, the EEOC initiated suit on 2/2/2022. It seeks back pay and both compensatory and punitive damages on her behalf, along with the other relief noted in the post.
TAKEAWAY: Know what the ADA requires of you and follow the process – step by legal step. Really.
The post on Monday 3/7/2022 showed us that a former public defender settled an employment discrimina-tion lawsuit for $605k. That’s a lot of taxpayer money, so let’s see what allegedly happened. Beattie Butler included in his suit (filed in 2015) claims for retaliation for freedom of speech, discrimination, defamation, breach of contract, and denial of due process. The suit was filed after he was fired in October 2014, a time when he was undergoing aggressive treatment for metastatic rectal cancer. Let’s go back even farther. Starting in 2007, Butler alleged that he noticed misconduct by prosecutors but when he tried to alert the solicitor was told to back down. What he was told on one occasion by his former boss is noted in the post. How and why the litigation settled is also noted in the post.
TAKEAWAY: Treat all employees fairly, legally and equally – don’t discriminate or retaliate. The resulting actions if you do will be much worse than you think.
The post on Tuesday 3/8/2022 showed us the City sends a warning to Arboretum over case involving email signature pronouns. No this is not a lesson in the English language, but rather a legal lesson. The employee who filed a complaint with both the City and EEOC is a genderqueer lesbian who uses both she/her and they/them pronouns. The employee was fired in May 2021. However, she/they allege that prior to that, employees were told to stop using their pronouns in emails signatures and other places as noted in the post. Prior to that time, there was no policy for email signature blocks and, in fact, they included various things as listed in the post (some of which remained even after the policy change). But the employee was allegedly not fired for her/their signature block, but for another reasons noted in the post. After Lambda Legal published the complaint online and it was reported in a local newspaper, the City sent a letter to the Arboretum. A copy of the letter is embedded in the post – and hints at action that might occur if this and future illegal acts are founded.
TAKEAWAY: Follow the law – statute and case law – to avoid putting your business in legal hot water. Consult an employment lawyer for assistance.
The post on Wednesday 3/9/2022 was about community association building blocks: community drainage and flooding parameters. Significant rain can lead to excessive surface water and nuisance (localized) flooding. So what should planned communities do? The first step, of course, is in the planning pre- and during construction. Some of the places surface and storm water management might be dealt with are listed in the post. And after construction there is often an agreement between the municipality (in PA it is usually the county or other conservation district) and owner, first the developer and then the condo or homeowners’ association as successor, for maintenance and repair of the surface and storm water management elements. Who has what obligations is normally set forth in legal documents, including the association’s Declaration, along with the ramifications if the obligations are not fulfilled. One big issue that often arises is when one or more properties experience flooding as a result of surface or storm water from another proeprty (often this is water from an upstream property flowing to a downstream property). Some things that the law might take into consideration in the upstream neighbor’s liability for the flooding are listed in the post. Pennsylvania has a recent case (from the Superior Court in 2021) that deals with this exact issue.
TAKEAWAY: Association boards (and owners) must fulfill all obligations in good faith and according to the law – you can rely on the opinions of lawyers, so consult a knowledgeable community association lawyer.
In the post on Thursday 3/10/2022 we saw that HOAs refuse to replace non-working street lights or deal with eyesore properties. In the first case, both the association board and its manage-ment agent knew the lights were not working. What that meant under applicable law is in the post. A different association dealt with homes that were not kept up according to (association or general) standards (but where the owners did just enough to straddle the line – see the post). As in that case, PA allows associations (either by applicable law or their governing documents) to enforce community standards or do the work and charge the cost back to the owner(s).
TAKEAWAY: Once again, owners and association boards must know what their obligations are and fulfill them; enforcement action can be taken upon any failure. Consult a community association lawyer to know your rights and obligations.
The post on Friday 3/11/2022 was about Employee discipline 101: managing employee behavior. Managers (well, most of them) do not like to be disciplinarians, but sometimes that is part of the job. Managers need to be trained how to properly and equally enforce the company’s policies and ensure that employees perform. So what are good ways to do that? First, be clear from the outset as to what is being asked or required of employees. Examples are in the post. Some things to discuss in a handbook or policy manual include the dress code and facial hair, tardiness, absenteeism, and the many other things listed in the post. Notify employees what might happen if they run afoul of the expectations or requirements. If a manager is unaware or uncomfortable doing what needs to be done, there are other possible ways to proceed; one example is in the post. Regardless of how it happens, the disciplinary process must be followed – step by step. So managers must know the process (there’s that training again!). If written discipline or notes are required, then they should probably contain the items listed in the post (as a starting point). A performance improvement plan could be part of the disciplinary process. It should be prepared with assistance of counsel to ensure legal compliance (as noted in the post). Finally, if warranted, termination might occur. The manager (or other decision-maker) should be clear as to the reason for termination – not only to follow the policy but for the reasons noted in the post.
TAKEAWAY: Documenting all steps of the disciplinary process not only follow the policy, but help with a defense if suit is later filed. Ensure you remain legal the whole way through the process.
Finally, in the post yesterday 3/12/2022, we learned about exploring the blurred lines between FMLA and ADA. Yes they are separate laws, but you should know by now that employees dealing with one of those laws might also be eligible for protection under the other. For example, if an employee’s approved FMLA leave expires, is s/he entitled to further leave under the ADA? Or if the employee meets the requirements under both laws, to what is s/he entitled? See the post for an explanation of how the overlap might play out. What appears to be true in most cases (but remember each is fact-dependent) is that if the employee requests FMLA leave, the employer has no obligation to explore non-leave accommodation under the ADA. One example is a federal case from PA, Capps v Mondelez Global (2015 and 2017 decisions), discussed in the post ( and of which employees and employers alike should take notice). The post also discusses another PA federal case, Watson v Drexel University, from 2020 (from the same court where the Capps case originated. The question was the same: whether request for FMLA leave satisfied the employer’s reasonable accommodation obligation under the ADA. Again, each case depended on its facts and each court ruled based on the facts before it, but each is educational and should be used by employers and employees as roadmaps.
TAKEAWAY: An overarching theme is that you must know the law – and should consult an employment lawyer to assist you with what your rights are, the obligations of the other party, and what can happen if the obligations are not met.
York, Pennsylvania 17403