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 10/1/2023 noted employee’s PTSD diagnosis may excuse violation of disciplinary policies. As you hopefully know, the ADA does not require employers to ignore or excuse serious violations of their rules or policies. For example, an employee who brings a weapon to work in violation of the employer’s policy cannot claim that subsequent disciplinary action was discriminatory because the employee blames a mental disability for his or her ignorance of the workplace rule. However, a new decision from a federal appellate court calls into question an employer’s ability to strictly enforce disciplinary rules if aware of an underlying medical condition.
In Lee v. L3Harris Technologies Inc., Lee was involved in a confrontation with a co-worker. The employer was aware of Lee’s PTSD diagnosis but terminated him for disrupting the workplace and threatening his co-worker. Lee sued, claiming disability discrimination and retaliation in violation of the ADA. The trial court dismissed the suit on summary judgment; the basis is in the post. On appeal the court reversed in part, remanding the discrimination claims for trial. The appellate court’s analysis and basis for reversing and remanding is in the post. The decision serves as a guidepost to an employer’s possible required accommodation of workers with known disabilities. The first thing an employer should do when it comes to disciplining (or terminating) an employee with a known disability is noted in the post.
TAKEAWAY: Facts matter. Discuss the facts of a given situation with your employment lawyer before taking adverse action against an employee with a known disability.
The post on Monday 10/2/2023 told us a grocer shells out $50K over disability discrimination allegations. JC Market Thriftway must pay $50,000 in compensatory damages, backpay, and other injunctive relief to resolve an EEOC disability discrimination charge. Let’s take a step back … The EEOC’s investigation found that an applicant received a job offer with instructions to report to training the next day. After the applicant disclosed their disability and need to carry medical supplies, the grocer refused to provide a reasonable accommodation and fired the worker. The investigation also uncovered more as noted in the post. The settlement includes the noted monetary damages as well as the non-monetary terms and conditions noted in the post. The company also agreed to make a donation to a disability rights organization.
The EEOC also recently announced a separate job candidate discrimination lawsuit — also involving a violation of the ADA — against an Olive Garden restaurant operator. The suit alleges that a manager asked a potential hire for a Pennsylvania branch of the franchise about the applicant’s cane and the extent of his disability. The manager allegedly then declined to hire the job candidate due to that disability-related information.
TAKEAWAY: Employer’s must know their obligations relative to accommodating employees and applicants – get help from an employment lawyer if unsure.
The post on Tuesday 10/3/2023 told us to plan for the future with HOA and condo reserves financial management. Not only do those managing an association – the Board and/or professional management company -have to ensure the association’s financial stability, but also to effectively plan for the future and the unexpected. That’s where reserves come in. Association reserves are funds set aside for future maintenance, repair, and replacement of common elements within the community. Some states, including FL, have laws in place requiring certain amounts of reserves and other reports/studies in place. etc.) But even without a statutory requirement, there are reasons reserve management is important. The post includes some practical tips to guide an association relative to reserves.
The first tip is to have a safety net. That is a reserve fund. Why? Because over time common elements such as roofs, roads, and recreational facilities will require maintenance or replacement. The result of having no reserve for those items is noted in the post.
Next, conduct regular reserve studies. What they do is in the post. The reserve study helps determine necessary funding levels for reserves and budget appropriately. Hand in hand with a reserve study is putting in place, and continually updating, a clear reserve funding plan outlining how the association will allocate funds to reserves going forward. The types of things to include in the plan are noted in the post. There are also several other tips/steps an association should heed or take relative to reserves that are listed in the post.
TAKEAWAY: Nobody likes financial surprises – reserves help owners in condominium and homeowner associations avoid surprises and ensure stability and performance of their assets. Community association lawyers can help with getting a plan in place and providing referral information for reserve study professionals.
The post on Wednesday 10/4/2023 showed us that a fired Morgan Stanley executive alleges reverse discrimination. He alleges reverse discrimination as a result of wrongful termination after being replaced by a Black female colleague. The suit was filed in federal court by a white executive, Kevin Meyersburg, who was Morgan Stanley’s head of executive services until May. Meyersburg alleges violation of civil rights statutes including state law. In general, Meyersburg alleges that his termination “was the result of the firm’s attempt to comply” with internal hiring and promotion policies aimed at diversifying employment. The relief he is requesting is noted in the post. Morgan Stanley declined to comment.
According to his complaint, Meyersburg was in charge of a profitable wealth management business when Morgan Stanley ended his employment. He said that the group he led managed around $5 billion in assets and added 3,000 new accounts during his tenure. But then reality happened. Meyersburg alleges that in May, during a meeting with his boss, he was “confused and bewildered” after being told of his termination and the managing director of Morgan Stanley’s financial wellness team would take leadership of the group. What Meyersburg says about that person, and what his boss said as to the reason for termination, are in the post (along with more related background details). Meyersburg alleges that the reason provided for his termination is ironic given his efforts to expand diversity at the firm; he helped run an internal program called Inclusive Leadership and his team scored highly on an annual survey gauging employee feedback about the firm’s core values, including diversity initiatives.
But at least some attorneys not involved in the suit think there might be a problem with it. One said the case appears to have been brought because the employee who replaced Meyersburg is Black and if the logic of the suit were applied broadly, it would result in the end of programs seeking to increase gender diversity. More on this is in the post. Similar political and legal battles are being waged around the country. For example, in New Orleans, a federal appeals court is weighing a challenge to the SEC’s approval of a Nasdaq stock exchange rule on corporate board diversity. A suit about a California law is noted in the post.
The interesting thing about Meyersburg’s suit is that it is the flip side of accusations that Morgan Stanley has recently faced related to diversity. In 2021, it settled a suit filed by its former chief diversity officer – what that suit alleged is in the post.
TAKEAWAY: Employers must walk the line of promoting diversity while ensuring not to discriminate against employees or applicants – that dance may take the assistance of an employment lawyer.
In the post on Thursday 10/5/2023 we saw that a jury awards over $36M in EEOC disability discrimination case against Werner Trucking. The eight-person jury returned a verdict of $36,075,000 in favor of the EEOC and against Drivers Management, LLC and Werner Enterprises, Inc. The jury found ADA violations and awarded plaintiff Victor Robinson $75,000 in compensatory damages and $36,000,000 in punitive damages after a four-day trial and deliberating for less than two hours. Let’s take a deeper dive.
The jury found that the truckload carriers failed to hire and failed to accommodate Victor Robinson, who is deaf, for a truck driving job in 2016. What the evidence presented by the EEOC at trial included is in the post. and not only did it apply to Robinson, but the VP of Safety testified at trial that Werner continues to deny employment opportunities to new deaf drivers. The EEOC filed the lawsuit in federal court in 2018 after conciliation failed.
TAKEAWAY: Let’s stress that employers must know their duty under the ADA to accommodate applicants and employees with disabilities; it can be really expensive to NOT fulfill that obligation.
The post on Friday 10/6/2023 told us an HOA cut off an ailing owner’s water because of unpaid dues. Beth Williams fell behind on her HOA dues after she was diagnosed with chronic kidney failure. But she didn’t say anything to the HOA …
Williams belongs to the Cottage Cove HOA which cut off her water supply for 31 days, forcing her to use store-bought gallons jugs of water and a water dispenser that was given to her. Williams said she “had to get humiliated and ask people to borrow showers, to borrow washing machines to wash my clothes” and when her daily allotment of water ran out, she did without. Williams thought she owed the HOA $713 in dues and $120 in late fees. But the account was turned over for collection, which added other amounts as noted in the post. And as often happens, because the account had been sent to collections, her online portal was closed and she had to deal with the lawyer.
What the HOA covenants state relative to the water system is in the post. There is also an amendment relative to unpaid dues and action the Board can take – it too is in the post. The HOA denied interview requests but said it acted within “its rights and obligations under the law, and provided proper notice before action was taken.” This author notes that at no point did Williams contact the association about her situation.
So are the covenants legal? See the post. And even if they are, associations may have a human element with leeway to help neighbors in particular circumstances. And what about Williams? She doesn’t think she’ll ever be able to pay off her HOA debt. But the HOA may be ok – see the post.
TAKEAWAY: All owners of houses in community associations (condominium, cooperative, homeowner) are responsible to pay dues/assessments; the association has and can take legal remedies if the dues/assessments are not paid. Contact a community association lawyer about unpaid dues and legal rights and remedies.
Finally, in the post yesterday 10/7/2023, we talked about employment law: off duty behavior does matter. Let’s look at an example (that might well play out the same here in the US).
Bernice was a 36-year-old teacher working for a school board and a member of a union. In April 2021 (remember the pandemic was still raging), she went into a Starbucks without a mask on and ordered a coffee. The barista asked her about not wearing a mask and Bernice said she was exempt from the mask requirement. The barista asked her to wait outside for her coffee. Bernice got upset because she was a regular Starbucks customer, just not at this location. Bernice had never been asked to wait outside before. She complained about the request but complied. Bernice kept her eye out and when she saw her coffee was ready, she went in to retrieve it. At that point, a 20-year-old customer who was also waiting made a crack. Bernice made a derogatory statement about the other customer’s age, implying she was an adolescent. There was a heated verbal exchange and the 20-year-old said she was going to mess up Bernice outside. Bernice left the store and the other customer followed. The other woman slapped Bernice’s coffee from her hand. Bernice grabbed her jacket, pushed her shoulders, and hauled her to the ground. They both ended up there before some Starbucks employees broke it up. Bernice called the police. After a cursory investigation, the police decided it was a consensual fight and no charges were filed. But that was not the end. Then came the TikTok video. Another customer had been filming part of what happened. The video described Bernice as an anti-masker who demanded to be served without a mask. The VID then claimed that when another customer stood up for Starbucks employees, Bernice assaulted her by pulling her hair and slamming her into the concrete. Bernice’s name and photo were included. The VID did not show the fight outside, just part of what happened inside the store.
When Bernice’s school board employer found out about the TikTok video, it did a brief investigation and fired her. What the employer told her in her termination letter is noted in the post. When Bernice grieved her termination, it became clear the TikTok video was inaccurate and misleading (on the several bases noted in the post). During the grievance process the adjudicator noted that teachers hold a position of trust, competence and responsibility, that their off-duty behavior can affect public confidence in the teacher and the school system, and that a loss of respect by their students and other teachers and community can disrupt and harm the delivery of education. The adjudicator’s resolution of the grievance is in the post – and perhaps not what you are thinking.
TAKEAWAY: What you do on your own time is usually your own business unless it harms your employer. But be careful what you do out there; everyone has a camera in their pocket.
York, Pennsylvania 17403