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 4/7/2024 told us that printing company forced to pay fine of over $30k after asking an employee for their green card. The settlement was reached between Printful and an employee that they had hired recently, according to the U.S. Department of Justice. Printful is a drop shipping company that operates a print on demand concept and shipping T-shirts and other products for E-commerce retailers. DOJ said in a press release that Printful “violated the Immigration and Nationality Act (INA) by discriminating against a worker based on her citizenship status when checking her permission to work and …” more as noted in the post. The Charlotte Observer reported that Printful violated discrimination law and “skewed its hiring process” by demanding to see a “green card” from an employee who had already provided necessary work documentation including those things listed in the post. DOJ’s Civil Rights Division noted that employers cannot reject workers’ valid documents or require specific or unnecessary documents based on citizenship status. The payment includes a civil penalty of $27,500 (which goes to the U.S Treasury) and $6,200 back pay and wages to the employee. And (of course) there is a nonmonetary component too – see the post. What did Printful say about all of this? See the post.
TAKEAWAY: Know the law – and what documents can or cannot be requested from employees.
The post on Monday 4/8/2024 was Real life: Dad-to be was told he could only take two days for paternity leave, but he knew the law and got a nice, long break. In 1999 he was a Sales Manager for the now-defunct Circuit City. He and his wife were expecting their first child. His wife was leaving her employment to stay home with their daughter after birth. Because it was their first child, the father also wanted to be home for a little while at the beginning. So when talking to his Store Manager about some time off after his daughter’s birth, he asked for a week off. It didn’t go well. What he was told, and the supposed reason, are in the post. The father-to-be was not happy – but had done his homework on the FMLA (Family Medical Leave Act) and knew that it provides up to 12 weeks of maternity/paternity leave with the job (or a substantially similar one) guaranteed to be waiting upon return. The employee knew more of the details about the FMLA, including how much leave was available – see the post. He knew that paternity leave is rarely used because it is most often unpaid leave. But he had plenty of PTO saved up. So he told the Store Manager what he planned to do (see the post). The Store Manager tried to argue but was told that he should probably contact HR. Amazingly (or not so), the Store Manager came back later and asked if the employee would accept the week’s leave he’d originally asked for. The employee then said he’d accept 2 weeks or 12 and that the choice belonged to the Store Manager. The finale? See the post.
TAKEAWAY: Remember that FMLA leave applies to fathers (to be) too.
The post on Tuesday 4/9/2024 asked: can condo or homeowners’ association board limit who can play on its pickleball courts? The issue arose because some owners are allowing residents of other nearby communities to regularly join them in using the courts (which, in turn, prevents owners from being able to use the courts during peak hours). The question was whether (under FL law) the association could impose rules limiting or restricting the hours during which non-residents are permitted access to, and can use, the pickleball courts (and more as in the post). The answer is that the board probably could adopt and enforce such rules. There are many examples including those in the post.
Of course, it all depends on the provisions of the association’s declaration as to what the Board can do and whether the proposed rule is reasonable (the meaning of which for this context is in the post).
TAKEAWAY: Owners and Board members alike must know applicable law and the provisions of their association’s governing documents as to what can or should be done relative to use of amenities – consult with a community association lawyer to be sure.
The post on Wednesday 4/10/2024 explained law student’s suit alleges Chicago Bears didn’t hire him as ‘legal diversity fellow’ because he is white man. A first-year student at the DePaul University College of Law in Chicago filed suit against the Chicago Bears football team. Jonathan Bresser Jr. claims suit filed in early March 2024 that he is qualified for the position because he has more than two years of experience as a litigation paralegal (at the firm that is representing him in his suit). The lawsuit includes a sentence from the 2023 US Supreme Court decision (issued jointly in SFA v. Harvard and SFA v. UNC) striking down race-based university admissions programs. Let’s look at the background here.
A job posting emailed in November 2023 said the Chicago Bears team was looking for a “person of color and/or female law student.” Bresser applied, intending to submit his grades as a supplement to his application when they became available, as the job posting allowed. Bresser was rejected Jan. 5, before he submitted his grades. In December Bresser had received a notification that his LinkedIn profile had been viewed by a Chicago Bears employee. The LinkedIn profile included a photo. On March 1, nearly two months after rejecting Bresser, the Chicago Bears requested Bresser’s grades transcript, “attempting to claw back” the rejection. And what about the timing of that request? See the post.
Bresser’s suit alleges race and sex discrimination in violation of Title VII and state law, race discrimination in contracting in violation of Section 1981, civil conspiracy, and conspiracy to interfere with civil rights in violation of Section 1985. A Chicago Bears spokesperson declined to comment when contacted by Law360. Stay tuned.
TAKEAWAY: Employers – which can include those for whom unpaid interns work – should not make any decisions on the basis of race or any other protected characteristic. Really.
In the post on Thursday 4/11/2024, we learned that Shane’s Rib Shack franchisees to pay $56,500 in EEOC sexual harassment and retaliation lawsuit. RSPS Holdings and SRS Milledgeville, franchisors of the barbeque restaurant, have agreed to the payment plus non-monetary relief to as part of the settlement. The EEOC’s suit alleged that the companies violated federal law when they subjected a teenage female employee to a hostile work environment based on her sex, then fired her in retaliation for complaining.
The employee — who was a college freshman at the time — was sexually harassed by an older male manager from September – December 2021. What he said and did is described in the post (and is just ugh). The female employee complained about the harassment to her supervisor on multiple occasions, but the supervisor too no effective remedial actions. Instead, she was terminated shortly after her last complaint. The explanation given? See the post.
The EEOC alleged that the conduct violated Title VII of the Civil Rights Act (described in the post). The EEOC filed suit in federal court after conciliation failed. The court approved the two-year consent decree. In addition to providing monetary relief to the victim, the companies have agreed to the non-monetary relief that is described in the post. They also agreed to provide the EEOC with periodic reports regarding any future employee complaints of sexual harassment or retaliation (including the details noted in the post). The EEOC highlighted this case as an example of the dangers that young employees, especially women, can face in the workplace. Links to the EEOC’s information on sexual harassment and retaliation are in the post. It also has webpages (for which the link is also in the post) with information for teens and other young workers about employment discrimination.
TAKEAWAY: There are eyes on all employers; employees should be treated equally, fairly, and legally at all times. It can be so costly if action is taken to the contrary.
The post on Friday 4/12/2024 was an HOA Q&A: Are we required to give notice of meetings to people who don’t live here full-time? (NOTE: you do not need to subscribe). The inquirer noted that a large percentage of the owners in their condo building live out of town for at least part of the year. The board posts notices of all meetings on the bulletin board in one of the common area rooms. The question was whether the Board is required to give the notices to the owners who don’t live in the building full time since they won’t see the posted notices if they aren’t here?
The answer (at least under FL law) was slightly for meetings of the board versus meetings of the members. The applicable statute provides for meeting notices, including how it be given and the time period for same (see the post for details). As to meetings of the members (including those listed in the post), there are different statutory notice requirements – see the post. And of course the governing documents might also have requirements to be satisfied relative to notice of meetings.
TAKEAWAY: Notice of meetings is usually provided for both in applicable statute (which could be the condominium or planned community act or the for-profit or non-profit corporation law) as well as the association’s governing documents – the Board must know what is required. Advice from a community association lawyer will be helpful.
Finally, in the post yesterday 4/13/2024, we saw that EEOC weighs in on alleged conflict between religious beliefs and civil rights training. On March 7, 2024, the EEOC issued a written opinion in Barrett V. v. Vilsack. The EEOC affirmed a federal agency’s dismissal of an employee’s EEO claim that asserted a conflict between the agency’s mandatory civil-rights training and the employee’s alleged sincerely held religious beliefs. The agency’s training emphasized the importance of treating all customers and employees, including LGBTQI+ individuals, with courtesy and respect, and the employee asserted that this requirement conflicted with his sincerely held religious beliefs as a Roman Catholic. On appeal, the EEOC upheld the agency’s decision to dismiss the employee’s claim.
So why do you care about this decision? Given the increase in the number of employees requesting religious exemptions from discrimination training and DEI programs, there are key pointers for employers:
- The EEOC noted that an employee must not only state a sincere religious belief, but must also assert that that belief is actually in conflict with the employer’s workplace training or program. What this means for the interactive process is noted in the post (along with a tip for employers).
- The EEOC confirmed that an “undue hardship” analysis “is not limited to considerations of financial cost” even after Groff. What the EEOC said is included in determining undue hardship is described in the post. The EEOC also noted the employer’s legal obligations to comply with Title VII and other EEO laws as part of the undue hardship analysis.
- The content of the workplace training or program matters. On what the EEOC based this part of its decision and the impact on employees is in the post.
This decision arose in the public sector. The EEOC’s part in the process involving private-sector employees is described in the post. In contrast, the EEOC exercises supervisory authority over the federal government’s own EEO programs, and the EEOC’s Office of Federal Operations handles appeals from final federal agency EEO determinations and dismissals. In limited circumstances, sitting in a quasi-judicial capacity, the full EEOC votes to affirm or deny the appeal (such as happened here). The EEOC’s federal sector decisions are not binding precedent but can be persuasive authority in in private-sector litigation. A few examples of that are in the post.
In Barrett V. v. Vilsack, the complainant, a Design Engineer at the Department of Agriculture’s Natural Resources Conservation Service in Temple, Texas, was scheduled to attend a mandatory civil rights training which would cover the need to treat all customers and employees with courtesy and respect, including members of the LGBTQI+ community. Barrett requested to be excused from attending the portion of the training that would provide information on how the topic of professionalism applies when interacting with members of the LGBTQI+ community, on the basis that the topic contradicted his sincerely held religious beliefs as a Roman Catholic. The Agency denied Barrett’s religious accommodation request and Barrett attended the training. Interestingly, he conceded in a subsequent affidavit that the training was respectful of his religious beliefs. Barrett then filed an EEO complaint alleging that the Agency discriminated against him based on his religion in the several ways identified in the post. The Department of Agriculture dismissed Barrett’s claim; the bases for the dismissal are in the post. Barrett then appealed the Agency’s decision to the EEOC.
On appeal, the EEOC applied the standard for analyzing Title VII claims of religious discrimination via failure to accommodate as in the recent, unanimous Supreme Court decision in Groff v. DeJoy. Details on the process and what Groff held are in the post. Applying those standards, the EEOC affirmed the Agency’s decision, emphasizing that Barrett had failed to identify even generally a religious belief, observance, or practice that conflicted with the mandatory civil-rights training. More details on the EEOC’s reasoning – along with how facts were weighed – are in the post. The EEOC did not stop there. It also held that even if he had identified a conflict between his religious practice and the training, excusing Barrett from attending the civil rights training would impose an “undue hardship” on the Agency’s business under Groff. A short description of that analysis is also in the post.
Religious accommodation requests must be handled carefully by employers, particularly when alleged religious rights are in conflict with other protected classifications. Each request must be considered on its individual facts. For assistance with religious accommodation requests – including process maps, written religious accommodation request forms, customized talking points for the interactive process, and template approval and denial documents, reach out to the authors.
TAKEAWAY: Requests for religious accommodation must be looked at on a case by case basis, including what happens when those religious rights are in conflict with other protected classifications. An employment lawyer should be brought in on these matters.
NOTE: after 4/17/2024, we will no longer be posting on X (formerly Twitter).
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