Below is a review of the posts on Facebook and LinkedIn from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 7/7/2024 noted that Amazon Music must face bias claims by Black worker placed on improvement plan (Muldrow decision playing out). In late May, Amazon.com lost its early motion to dismiss claims that it discriminated against a Black event producer by limiting her job duties and placing her on a performance improvement plan. This is one of the first decisions to apply the US Supreme Court’s Muldrow decision (see our posts of Sat. 6/1/2024, Thurs. 4/25/2024 and Mon. 3/25/2024 for more on Muldrow).
Keesha Anderson worked as an event specialist for Amazon Music from 2019 to 2022. She says she was forced to quit after both white and Black supervisors sidelined her (including excluding her from meetings and events and the other things itemized in the post) and placed her on a performance plan that all but guaranteed failure. Anderson also alleged that the PIP also prevented her from being promoted or transferred. Why she quit in 2022 is noted in the post. Anderson sued in 2023.
As part of the case, Amazon argued that what Anderson alleged were not adverse actions under Section 1981, but the Judge did not buy it in light of Muldrow. NOTE that prior to Muldrow, some federal appellate courts held that a PIP cannot form the basis of a Title VII claim (some examples are in the post). How the Judge brought this case (under Section 1981) within the purview of the Title VII decision in Muldrow is in the post. But it was not a complete win for Amazon – yep, see the post.
TAKEAWAY: This is just the start of the ripple (or wake) effect of Muldrow … Know how it affects your workplace actions.
The post on Monday 7/8/2024 asked Wait, that’s age discrimination? Yes it is – check policy changes and get legal sign-off. You should know that unlawful age discrimination can take many different forms – including policies that don’t directly say they discriminate based on age but have the clear effect of doing just that. This is an example.
In 1991, language arts teacher Charles Koplinski began working for a School District (in Illinois). To calculate a teacher’s pension, IL looks at the average of the four highest consecutive salary years over the last 10 years before retirement (“High 4”). Teachers hired before 2005 – “Tier 1” teachers – can retire with a full pension at age 55 if they have 35 years of service. With only 10 years of service, they have to work until age 60. And with only five years of service, they must work to age 62. Teachers with 20 years of service can retire at 55 with a discounted pension. But in 2005 IL passed a new law that required school districts to pay more into the teacher’s retirement system if the teacher received a raise of more than 6% in any of the High 4. The district where Koplinski worked did not want to pay more, so in 2007 it added a new collective bargaining agreement (CBA) provision (see the post for the language). The effect of this new provision was essentially to back out the new law. Well, that might save the district money, but it put them smack in the middle of a different problem: age discrimination. First, it only applied to employees who were at least 45 years old. The other basis is in the post.
Koplinski disliked the new CBA provision. He earned a master’s degree in 2008, and by 2015 he had earned enough post-master’s credits to move up on the district’s salary scale. If he was under 45, his salary would have gone up to $77,242. But because he was within 10 years of retirement eligibility at age 50, the district applied the new 6% cap and his salary went up to only $73,880.94 instead. The district applied the 6% cap to at least two dozen other teachers too. So in 2017, Koplinski filed an EEOC charge (what he alleged is noted in the post). The EEOC decided to pursue the case on Koplinski’s behalf (which it does in only a small percentage of cases). The EEOC’s position is in the post.
At the federal trial court, both the EEOC and the school district moved for summary judgment. The court granted the EEOC’s motion and denied the district’s motion because the policy facially discriminated based on age. How the court got to that is in the post. The court did not agree with the district’s proffered reason for its implementation of the new policy (which is in the post). Based on the grant of summary judgment, the court entered an order for monetary damages (the amount is in the post). And the EEOC said it will seek additional lost wages in future proceedings.
TAKEAWAY: Whether directly (disparate treatment) or indirectly (disparate impact), treating employees over age 40 differently (worse) based on age is illegal. Just don’t do it.
The post on Tuesday 7/9/2024 noted that while interpreting condo association docs, Judge rules tacos and burritos are, in fact, sandwiches. You have to keep reading to understand why this is a condo post.
The ruling stems from a legal battle that started in 2022, when Martin Quintana, a developer, unveiled plans to open his restaurant, “The Famous Taco Mexican Grill,” on a strip mall in Fort Wayne, Indiana. The Planning Commission did not let him open the restaurant because of a writing to which Quintana was a party. What was that? An agreement with a local condo association that only alcohol-free restaurants that did not allow outdoor seating and only sold “made-to-order or subway-style sandwiches” were allowed to open at that location. Why the agreement was put in place is noted in the post.
After the suit had been going on for more than two years, the Judge ruled that Quintana’s original plans were permissible based on the agreement. His analysis of the language and application to the facts is in the post. The Judge also said that the commission can appeal his ruling.
TAKEAWAY: Be prepared to live with interpretations of your contracts or agreements, even if it is not what you intended; the best practice is to say what you mean from the start.
The post on Wednesday 7/10/2024 noted that employer’s handling of workplace harassment complaint can serve as ‘template’. [NOTE: while this was in Canada, it would apply equally here in PA.]
Let’s start down this road(map). On May 21, 2019, the employee, who had worked for Parq for over 10 years and oversaw a team, told her supervisor informally that one of her staff was singling her out and criticizing her work errors publicly in retaliation for past discipline. At the supervisor’s request, she followed that discussion with an email summarizing her complaint. Things escalated; on July 14 the employee made a formal complaint to the HR Director that the colleague had mocked her speech impediment in front of other employees. The source of the speech impediment is noted in the post. So, what did Parq do? It conducted a 2-month investigation (the results of which are in the post) and took action as a result (which again is in the post). The employee was not satisfied though and brought an administrative complaint (which has now been dismissed).
The administrative tribunal called Parq’s treatment of the complaint “fair, timely and thorough,” such that there was nothing else the employee could under applicable law.
But what about Parq’s delay? When the employee brought her allegations to Parq’s HR Director, they apologized for the delay and promised to follow up. By July 17, 2019 (a mere 3 days later), the HR Director advised the complainant that an investigation was starting. And soon after the official complaint, the employee transferred to a different area (why is noted in the post). But then the next day she went on medical leave because of stress she said was a result of the harassment. The effect Parq’s delay had on her was explained in the charge and is in the post. But the tribunal came out at the same place for the same reason: the steps Parq took were exactly right (including what Parq did as part of its investigation and the action it took after the investigation concluded, all of which is detailed in the post). Parq documented what it did, what it found, and what action it took – a valuable part of its defense.
TAKEAWAY: Despite training, things will happen, so have a procedure in place to investigate and take action on any justified allegations of harassment or discrimination. Run it by an employment lawyer for legal compliance.
In the post on Thursday 7/11/2024 we noted that EEOC sues Pepsi for failing to accommodate and firing a blind employee. Yep, this could have been so simple. According to the EEOC’s lawsuit, PepsiCo hired a blind employee as a customer care advocate at a call center. The employee notified PepsiCo that he was blind and requested reasonable accommodation for his visual impairment that would allow him to access information in the call center computers to perform his job. A vocational counselor from the state Department of Health and Human Services (DHHS) offered to conduct an assistive technology assessment of PepsiCo’s computer system and offered assistance with purchasing supportive equipment for the employee. Pepsi said no thank you to that offer; its reply is noted in the post. And then PepsiCo put the employee on unpaid leave while it reviewed the accommodation request. PepsiCo eventual response is noted in the post; it then fired the employee. The EEOC alleged that PepsiCo failed to consider or offer other accommodations to assist the employee in performing the essential functions of the job which violated the ADA. The suit was filed in federal court after conciliation failed.
The EEOC singled out job applicants and an employer’s obligations to reasonably accommodate under the ADA. See the post. “
TAKEAWAY: If an agency (or other entity) that deals with workplace accommodation is able to make suggestions to help an employer fulfill its obligations, don’t turn them away. And don’t just put your head in the sand either.
The post on Friday 7/12/2024 contained condo & HOA Q&A: Does the Corporate Transparency Act (CTA) apply to residential associations? If you live in a community association, and especially if you are on the board, you need to discuss this with your association’s lawyer, pronto!
In January of 2021 the Corporate Transparency Act (CTA) was signed into federal law. The purpose of the CTA is to increase transparency in corporate entities; its focus is to prevent money laundering, terrorist financing, tax evasion, and other illicit activities that small corporate entities are sometimes used to hide. While the CTA focuses on for-profit corporations and limited liability companies, condominium, cooperative, and homeowners’ associations (even if non-profit) are not exempt from its reporting requirements (nor are management companies). The Community Associations Institute (CAI) is pushing for exemption from the CTA for community associations, but as of now the law has not changed.
The CTA requires disclosure of “beneficial ownership” of the reporting company; that includes those who own or control an entity. To whom the disclosure must be made is noted in the post. The definition of “reporting company” for CTA purposes is in the post. Most condominium, cooperative, and homeowner associations will come within the definition.
So what does that mean? That community associations (and management companies) must comply with the CTA. They have to disclose the individuals who exercise substantial control over the organization. Who that includes – and what information about those persons that must be disclosed – for management companies and condominium, cooperative and homeowners’ associations is noted in the post. And if there are changes, those too must be reported (which will probably be an annual thing for associations due to board turnover).
This portion of the CTA became effective Jan. 1, 2024. The deadline for initial reports (with a few exceptions) is noted in the post. The CTA contains civil and criminal penalties for not reporting or not updating or providing false or fraudulent information.
TAKEAWAY: Talk to a community association lawyer about putting in place a CTA policy for your association. Be ready in case there is no exemption from compliance for condominium, cooperative or homeowners’ associations.
Finally, in the post yesterday 7/13/2024, we saw a former employee alleges PrimePay violated ADA and ADEA. The timing is certainly interesting … Let’s look at the facts.
Seth R. Eisman filed suit against PrimePay, LLC, alleging violations of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Pennsylvania Human Relations Act (PHRA). The suit was filed in May 20214 in federal court.
Eisman is 56 years old. He began his employment at PrimePay in September 2023. He is a former Senior VP of Sales. Eisman alleges that he was wrongfully terminated in April 2024 due to his age and disabilities. He alleges that he was terminated shortly after disclosing his need for medical leave and shortly after an announcement by PrimePay (that is discussed in the post).
Eisman notes his job performance prior to April 1, 2024 (see the post). Eisman’s complaint details a conversation he had with Jamie Press, SVP of HR, on April 1, 2024. That was when he told Press about his upcoming surgery on May 14, 2024. What he says happened after that – and how PrimePay acted – is in the post. He alleges that his termination was without reason other than vague references to “cultural fit” issues.
Eisman alleges that PrimePay discriminated against him on the basis of disability and age and retaliated against him for requesting reasonable accommodations under the ADA. And what does he argue about the severance offer they provided to him? See the post.
Eisman seeks monetary damages (as itemized in the post), which list is fairly standard in a case like this. Stay tuned.
TAKEAWAY: Employers need to ensure that any adverse action (which is now determined under the new Muldrow standard!) is legally compliant – get an employment lawyer to sign off before action is taken.
York, Pennsylvania 17403