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 7/21/2024 told us the Supreme Court sides with Starbucks, deals big blow to NLRB – broad employment law implications. The Supreme Court just dealt a blow to the National Labor Relations Board (NLRB) by making it harder for the Board to obtain early court injunctions on behalf of employees. The decision raises the bar the NLRB must clear to get preliminary injunctive relief. The effect of that on the NLRB, businesses/employers and pro-union advocates is noted in the post.
Let’s look at the case. In 2022, six employees at a Starbucks location in Memphis formed an organizing committee and announced plans to unionize the store. To help in that effort, several store employees invited a local tv news crew to visit after normal operating hours. What was discussed is in the post. Starbucks management was not happy to learn about the media event and quickly launched an investigation. Subsequently, it fired seven employees – since nicknamed the “Memphis 7” – who were involved with the event on the basis that they violated company policy. The union that was helping the employees filed charges with the NLRB against Starbucks. The violation alleged is noted in the post.
The NLRB investigated and then issued a complaint against Starbucks. Then the NLRB did what ultimately would lead to the Supreme Court’s decision. It asked a federal district (trial) court to issue a preliminary injunction to reinstate the terminated employees during the pendency of the board’s administrative proceedings. The statutory language it relied on for that request is in the post (and is key). The district court granted the board’s request, applying what is referred to as the “reasonable cause” standard.
Then the U.S. Court of Appeals for the Sixth Circuit affirmed that decision and the Supreme Court agreed to accept an appeal from there.
The Supreme Court explained that, ordinarily, the party seeking injunctive relief must show four things (which are listed in the post). Some courts had applied that more stringent standard in considering injunctive relief requests by the NLRB, while others applied the reasonable cause standard. Of course the NLRB argued that the lower standard should apply. But the Supreme Court did not agree – the basis for its decision, along with an explanation, is in the post. The board’s argument that courts should apply a more deferential standard to its requests for preliminary injunctive relief because federal appeals courts review final board decisions with deference was also shot down. The upshot is that courts considering NLRB requests for preliminary relief must apply the traditional 4-part test.
So what was the effect of the ruling on this case? See the post.
TAKEAWAY: no matter which side of a suit you are on, you must know the law – including who has what burden of proof.
The post on Monday 7/22/2024 noted an ADA challenge to wellness incentives stays alive. Employers should be alert. In mid-June a federal judge (in Illinois) refused to dismiss a class action lawsuit brought under the ADA based on a “voluntary” wellness program. Yes, you may well have forgotten that the ADA comes into play not only for prohibiting disability discrimination and requiring reasonable accommodations, but also relating to employee medical information. ALL employees, not just those with disabilities. When an employer can request medical information is detailed in the post. But there is an exception, and that’s what underlies this case. The exception is that if an employer has a voluntary wellness program, it can ask for employee medical information in that connection without violating the ADA. The kinds of information that might include are listed in the post.
OK, so the employer in this suit had a wellness program it considered to be “voluntary.” No one was fired or denied a promotion or subjected to unfair terms and conditions of employment because they refused to participate. Sounds voluntary, right? There was one catch. Those who participated in the wellness plan got a nice financial “discount” on their health insurance premiums. The dollar translation for that is in the post (and to many is not inconsequential, i.e., it might push them to participate and provide medical information that might otherwise not provide). So how did that translate to an alleged ADA violation? See the post.
The employer argued that the plaintiffs had it all wrong, that the program was voluntary and the lawsuit had no merit. The plaintiffs argued to the contrary (see the post). In mid-June the judge ruled that the lawsuit could proceed based on what the plaintiffs had alleged. (Why is that even bigger than it sounds like? See the post). Now this was not the end of the case, but actually pretty early on. It does not mean that the plaintiffs will prevail, but they survived the early motion to dismiss. There are a lot of if’s and maybe’s that could happen – some are identified in the post. But there is still a takeaway for employers, even at this stage.
And as a side note, the case may not be limited to the alleged ADA violation. GINA (the Genetic Information Nondiscrimination Act) may also apply. A case from a few years ago had similar allegations – there is more background on that in the post.
TAKEAWAY: Review your wellness programs with an employment lawyer; look at whether any monetary incentives for participation are so sweet that employees may feel they have no choice but to participate, in which case requests for medical information in connection with the program might run afoul of the ADA.
The post on Tuesday 7/23/2024 was about a condominium association suing Allstate over $9.7M repairs. The association first made a claim with Allstate in October 2022 and requested an investigation into any hidden damage. By June 2023, the association, its experts, and its insurance providers, including Allstate, conducted an investigation that revealed “system-wide” hidden damage to the parts of the buildings noted in the post. The condo association said that the repair costs exceeded $9.7 million. Despite the damage occurring during the policy period, Allstate denied coverage in December 2023. The association filed suit for a court order that the hidden damage is covered under the policies and that no coverage exclusions apply. The claims in the suit are detailed in the post and include a claim under the state’s consumer protection act.
TAKEAWAY: It is not uncommon for courts to be asked to interpret provisions of insurance policies, especially if big dollars are at stake (like here). It’s a good idea to know what coverage your policy provides BEFORE YOU NEED IT.
The post on Wednesday 7/24/2024 noted Factor One Pharmacy to pay $515K to settle EEOC disability and genetic information discrimination suit. Factor One Source Pharmacy, LLC is a pharmacy providing specialized pharmacy services to patients requiring complex medications. The lawsuit alleged that Factor One violated the ADA and GINA when it inquired about employee disabilities and genetic information and pressured employees to use its pharmacy services. The detailed information it requested is listed in the post. And what it did to increase its profits (according to the complaint) is also in the post (and ties in to the information it requested). Employees who refused to go along were fired or laid off, while employees who played ball kept their jobs, even if they had worse performance reviews than employees who were let go.
The alleged ADA and GINA violations occurred while Factor One was under prior ownership. The EEOC filed suit in federal court after conciliation failed. In addition to $515,000 in monetary relief, the settlement also includes the non-monetary relief described in the post. The EEOC also issued a statement about the settlement – see the post.
TAKEAWAY: Know the law – don’t discriminate based on familial connections or disability. Contact an employment lawyer for assistance before taking adverse action on either based on either of those characteristics.
In the post on Thursday 7/25/2024 we saw Raytheon’s “recent graduate” job ads amount to age discrimination, class-action suit alleges. Raytheon is a major aerospace and defense company with nearly 200,000 employees. The class-action suit alleged that it “intentionally and effectively excludes nearly all older workers from qualifying for, competing for, and obtaining many jobs” at the company. How does it (allegedly) do that? Through job ads. See the post for some specific examples.
The 67-year-old lead plaintiff applied for at least seven positions at Raytheon in the past few years. He says he met all qualifications except that he was not a recent college graduate and did not have less than 12 or 24 months of relevant work experience, such that he was not considered. The statutory bases of the suit are listed in the post. He filed the suit and asks to represent a nationwide class of qualified applicants aged 40 and older who applied for and were denied or were deterred from applying to one of the subject job ads. What the plaintiff seeks by remedy is in the post.
Raytheon denied the allegations. Its statement is also in the post.
Raytheon is not the first employer to get into trouble over job ads. In June 2023, as part of a settlement, Target agreed to various things including monitoring its job ads to ensure they don’t target younger workers and the other things noted in the post.
TAKEAWAY: Just because you don’t mention a number or words like “age” or “older” doesn’t mean your ad is legal; get a legal opinion if you want to be sure the ad is legally compliant.
The post on Friday 7/26/2024 asked: Don’t like having to prove to condo/HOA dog is service animal? Blame the law (not the lawyer). There is often confusion because some disabilities are hidden while others are overt and community associations don’t know what they can ask in different situations.
When someone requests an accommodation under the federal Fair Housing Act, housing providers (including condo and homeowner associations) may ask about the nature of the disability (what that means is in the post) and the connection between the disability and need for the accommodation. There might be a difference between what is requested when the disability is overt versus when it is hidden. The burden of verifying a disability? See the post.
You know it too; some people can and do lie about being disabled to justify keeping their pets. They often submit a certificate they purchased online that came after no independent verification of disability or need. So where would that leave the association? See the post.
And what about the right to verify the need for a “service animal” (which is entirely different from an emotional support animal) pursuant to the ADA? That does not apply to housing providers – but the obligation to accommodate is still there (and is even stronger for service animals than ESAs).
Association boards have a duty to all residents. What happens if there are no-pet rules but service animals and ESAs are in the community? See the post.
TAKEAWAY: Know the difference between service animals and emotional support animals – and what information the condo or homeowners’ association can request. Involve a community association lawyer early in the process.
Finally, in the post yesterday 7/27/2024, we read that former police officer alleges discrimination against her pregnancy needs. Maria Guzman filed suit in federal court on June 3, 2024, against the Village and its Police Chief Sassetti, Deputy Chief Chlada Jr., and Figueroa. The suit includes charges of sex and pregnancy discrimination, retaliation, and harassment after she requested reasonable accommodations for her pregnancy and lactation needs.
Guzman was employed by the Police Department (SPD) from April 2012 until her termination on July 21, 2023. She alleges that when she returned to work after giving birth in June 2022, she was treated less favorably than other employees who took leave for temporary disabilities unrelated to pregnancy. Her specific allegations are in the post. She also details how her supervisors failed to provide necessary accommodations for her to express breast milk at work. Again, details on that are in the post. So what was she forced to do? Pumping in gas station bathrooms or alternatives as noted in the post. All of that adversely affected her milk production and caused physical pain.
And after she complained about the issues, she says that she experienced continuous retaliation including unwarranted disciplinary actions and all of the other things described in the post. She did not quit, so the defendants (allegedly) came up with reasons to terminate her employment.
Guzman’s lawsuit includes counts under various federal and state laws as listed in the post. The understandably long list of relief she seeks is also in the post.
TAKEAWAY: don’t treat pregnant employees (or those who return after birth) differently than other employees. Just don’t do it (unless legally required but talk to an employment lawyer first).
York, Pennsylvania 17403