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 8/18/2024 offered practical guidance on labor and employment issues in a post-Chevron world – what employers may expect. You now (should) know about the US Supreme Court’s June 28th decision in Loper Bright Enterprises v. Raimondo that was discussed in our post on Sunday, August 11, 2024. Loper Bright killed the 40+ year Chevron doctrine. We don’t know for sure, but it is also expected to have an impact on labor and employment agency action. Here is what might be expected.
As a result of Loper Bright, federal courts are to exercise independent judgment when reviewing statutory text and use traditional statutory construction to find the “best meaning” of the statute. And the effect on existing judicial decisions upholding agency rules and orders? See the post.
Let’s first look at the potential impact on/to the EEOC. Nothing immediate is anticipated. Why? Title VII only authorizes the EEOC to issue procedural regulations. Therefore, the EEOC acts in other ways as noted in the post, and those other ways may survive Loper Bright.
Other anti-discrimination laws enforced by the EEOC (including the ADEA and ADA do So what that means in light Loper Bright is explained in the post. And since remedies awarded under the anti-discrimination laws enforced by the EEOC are statutory, not regulatory, Loper Bright will have no impact.
But hold on … the EEOC recently issued regulations implementing the Pregnant Workers Fairness Act (PWFA). Legal challenges (as identified in the post) are pending. Loper Bright may lead to additional scrutiny or challenges of the PWFA regulations.
And what about the impact in the wage and hour arena? It will be more difficult for DOL’s Wage and Hour Division to defend its rules in court. There is a huge body of statutory regulation for the statutes DOL enforces in this area – including the Fair Labor Standards Act (FLSA). But post-Loper Bright? See the post for advice to employers and the expected impact on challenges to DOL’s wage and hour rules. For example, a challenge to DOL’s 2020 rule setting a salary minimum for “white collar” exemptions is pending in a federal appellate court and the court recently requested that the parties submit briefs on the impact of Loper Bright on that case. And there is more as noted and discussed in the post.
The anticipated impact relative to the NLRB and OSHA is also discussed in detail in the post.
TAKEAWAY: Employers should continue to abide by anti-discrimination laws and EEOC guidance to help minimize litigation and enforcement risk but monitor legal developments. Employers should also discuss with their employment lawyers when and how to make Loper Bright arguments in agency and court actions and put a greater emphasis on statutes (and legislative intent).
The post on Monday 8/19/2024 was about ADA service animals in the workplace: navigating accommodations. The Americans with Disabilities Act (ADA) offers protection to individuals with disabilities, including those who use service animals. Those protections extend to both businesses and the workplace. But knowing how and when to accommodate the service animal is not always understood.
The simplest way the ADA might come into play relative to service dogs is in a workplace that has a no-animals policy. The ADA would allow an employee to bring a service animal to such a workplace.
What the service dog must do, and how that relates to the person they support, is discussed in the post. Service animals are dogs and, in some situations, miniature horses. However, there is a possibility that other animals might also qualify as service animals – see the post.
As part of the ADA’s reasonable accommodation process, an employer normally will work with the employee to find effective alternative accommodations. But it is a bit different with service animals given their training (see the post).
How and when the relevant part of the ADA applies in the workplace is described in the post (along with how that compares to other federal laws dealing with accommodation).
Employers must also know the difference between service animals and emotional support animals (ESAs) and the duty to accommodate under the ADA. The post provides details on the difference and impact on/by the duty to accommodate under the ADA. Note that the critical difference lies in the tasks performed. Examples are in the post. But the fact that an animal is an ESA and not a service animal is not the end of the inquiry; employers must still undergo the interactive process and give extra consideration to possible alternative accommodations for an ESA (on the basis noted in the post).
So now that you know your duty to accommodate might require allowing animals in the workplace, you need to know what steps to take or things to think about. First is what documentation you might need to verify the disability and explain functional limitations if the disability isn’t obvious. Where that information usually comes from, and what is needed relative to service animals, is in the post.
The ADA allows service animals to enter most workplace areas and public accommodation places. There are other statutes that deal with air and rail travel for work – see the post. But there are limits as noted in the post (with examples) and that might require exploration of alternative accommodation.
The post also discusses some possible scenarios when another employee has an allergy to the service animal and steps an employer might take.
Service animals usually result in no cost to the employer as they are “bring your own”. Contrast that with other accommodation an employer might have to make – see the post.
The conduct expected of service animals in the workplace and how coworkers should treat them is also discussed in the post as are misconceptions about service animals (including that they need a specific license or credentials and the other things listed and detailed in the post).
TAKEAWAY: Employers should remember that common conditions like asthma, migraines, ADHD, and anxiety can meet the ADA’s definition of disability, such that an open mind in the accommodation process is a must. Also consider involving an employment lawyer.
The post on Tuesday 8/20/2024 was about homeowners fighting for HOA bank records. We noted that it should not be this difficult for owners to get (at least) some financial records. Homeowners in this community have seen their dues increase by $500 annually since they moved into the newly constructed community in 2021. They have few options since the HOA is not under owner control. Homeowner Natalie Brides said, “Really, it was just ‘this is the budget’ and that’s it.” But Brides, her neighbor Liz Skrypek and other homeowners are now asking more detailed questions about the HOA’s finances, especially given the incomplete construction of amenities and increased costs (see the post for more details). For example, the total 2024 budget is $60,000 more than what was approved the prior year before.
Skrypek and Brides saw a TV report on another community that was questioning its HOA finances and realized that the company hired to manage that community’s contracts, vendors and day-to-day was the same as theirs, Cusick Community Management. And who hired Cusick for their community? See the post.
WBTV has reported extensively on HOA boards still under declarant control. What that means is in the post. WBTV’s research found that Cusick, whose legal business name is Blue Lake Capital, LLC, is often chosen by some of the Charlotte, NC region’s biggest residential builders to manage HOAs still under their control. The statement by one attorney who represents Cusick is in the post. Because it is the management agent, Cusick is often the intermediary between the declarants/developers and homeowners.
Let’s go back to Weddington. Skrypek and Brides want answers to their lengthy list of questions. For one, they want to know why they are being forced to pay for $12,000 in irrigation repairs instead of the developer paying for that. Cusick’s response? See the post.
In another area, the budget for water and sewer in their common areas was $3,000 in 2023 but increased to almost $22,000 in 2024 after Cusick reported monthly expenses were more than half of what was planned in the 2023 budget. And the pool? Yep, see the post.
Because they were not getting answers, owners formed a small committee and used a form provided by Cusick to request copies of the HOA’s bank records, receivables (such as fines and fees) and invoices (water, landscaping, administrative). They emailed the form to Cusick and the developer on March 1st – and are still waiting. What is interesting is what’s happened in the interim – see the post. On June 20, residents were told only to email Cusick regarding HOA matters despite the Board still being declarant controlled. They were also told not to directly contact vendors or service providers about the HOA. NOTE: in this author’s experience, those contact requirements/restrictions are not unusual and actually help in streamlining communications and keeping them on point.
When WBTV asking if Weddington Pointe homeowners would get access to the financial records they requested, a spokesperson for the developer said that, “Cusick represents Century and it is our expectation that current and relevant financials are on the Cusick website.” The attorney representing Cusick also responded; see the post.
There is relevant law in NC (as in most other states including PA) and more legislation may be coming. But for now, Weddington Pointe homeowners like Brides and Skrypek are testing ways to access financial records and are especially focused on landscaping costs. Why? The 2023 annual budget for the landscape contract was $133,560; it rose to more than $162,000 for 2024. But there was also an additional line item for “Landscape Other” that was budgeted at $4,000 in 2023 and ended up costing the HOA a lot more (see the post for the actual amount and watch your jaw drop to the floor). To what Cusick attributed that “other” expense line item is in the post. As part of its investigation, WBTV gave the information Weddington owners had received about landscaping (except what they were paying) to another landscaping company to drive the neighborhood and provide an estimate. The landscaper did so. The estimate provided by that landscaper (which also has contracts with numerous other communities) was much less than the $162,000 in the Weddington Pointe budget (the exact number is in the post). What Cusick’s attorney had to say about that large difference is also in the post. What is interesting is that, in part, he said the quote was missing a lot of details about the Weddington Pointe contract, but what it is missing is exactly the information residents have been trying to obtain.
A request from residents in the other Cusick-managed association referenced above to review additional financial records was recently denied by their HOA. The basis for denial is in the post. NOTE: the denial may have been proper under state law and the association’s governing documents but we don’t have enough information to know that. Apparently Weddington and the other Cusick-managed association are not alone – a lawsuit was filed in 2021 by an HOA in Charlotte against a group of contractors, subcontractors and Cusick suggests these communities aren’t alone in their concerns. Details about that suit, which includes Cusick as one of the defendants, are in the post. That suit was marked “settled in full” in 2023. What Cusick’s attorney told WBTV about the lawsuit is in the post.
But it’s not always (and perhaps rarely) the management company’s fault that costs rise in an HOA. Those rising costs require increased assessments and owners are often reluctant to pay more. A statement by Cusick’s attorney (that is in the post) relates to this aspect and shows how tough things can get at times. But owners in Weddington and the other Cusick-managed community just want information (including on the things noted in the post).
Cusick is not new to lawsuits. From 2015-2017, two former executives sued Cusick. In one suit, a former owner claimed Cusick failed to pay out the company shares they sold. How that suit settled (with Cusick paying) is in the post. Another lawsuit filed by a former executive claims Cusick failed to pay him after he was terminated. More details on that suit are in the post. That case also was settled and dismissed. What did Cusick’s attorney have to say about the suits? See the post.
As an interesting aside, the author of the post lives in a subdivision in which the HOA was in the process of transitioning to Cusick Community Management. His reporting, however, predated the HOA’s decision.
TAKEAWAY: Pennsylvania has statutory requirements for turnover of an association from the developer to owners; it also details the fiduciary duty owed to owners by the Boad, whether controlled by the developer or owners. Contact a community association lawyer to discuss your association.
The post on Wednesday 8/21/2024 noted Price Waterhouse Coopers (PwC) pushed out principal 1 day before her assets vested, lawsuit alleges. Timing … The plaintiff, a 55-year-old Asian American woman, joined PwC in 2019 to build out a digital transformation related to payments. Under the supervision of one supervisor, a White male, she said leads she generated were taken away and she was kept from pursuing new business opportunities. A White male partner allegedly stole credit for revenue she generated and blocked a promotion, according to her suit. And that’s not all. The principal also worked with another male partner who threatened and berated her and more as noted in the post — treatment she said she never saw men subjected to. She filed internal complaints about his behavior, as did another female director. The result is noted in the post (and might surprise you).
The plaintiff’s suit also alleges that she exceeded revenue goals despite having credit and clients taken from her but was let go at the end of a five-year “conditional offer” period before becoming a full principal. Specifically, one day before her five-year anniversary. What she said about that timing is in the post. She also alleged in her suit that she was underpaid in comparison to her White, male counterparts.
She alleged violations of Section 1981, New York state law, New York City law, and the Employee Retirement Income Security Act (ERISA). She plans to amend her complaint to include alleged violations under the statutes listed in the post after she received a notice of right to sue from the EEOC. And what does she request by way of damages? See the post.
PwC denied the allegations. Its statement about the suit is also in the post. Stay tuned.
TAKEAWAY: Employers must take care to treat comparable employees the same regardless of any protected characteristic (race, sex, ethnicity, religion, or others).
In the post on Thursday 8/22/2024 we read about when social media posts become workplace harassment. Yes, employers beware. The US Court of Appeals for the Ninth Circuit (a federal appellate court) recently ruled that companies can be held liable for hostile work environment claims under Title VII of the Civil Rights Act of 1964 if an employee shares harassing content online on their personal social media that negatively impacts the workplace. This is the first appeals court decision on employee use of social media outside of the workplace since the EEOC issued updated guidance on sexual harassment on April 29, 2024. How the guidance is relevant here is noted in the post. NOTE: it is as yet untested how courts will treat that guidance in light of Loper Bright.
In Okonowsky v. Merrick Garland, the court overturned a trial court’s decision on summary judgment in favor of the government in a case brought by a staff psychologist working at a federal prison where she claims that her employer, the Federal Bureau of Prisons, failed to address a sexually hostile work environment created by a co-worker. The psychologist claimed that the co-worker posted derogatory content on social media and, despite being directed to stop in accordance with the prison’s anti-harassment policy after the psychologist reported it, the wo-worker continued to post. The psychologist eventually resigned due to the lack of action and filed suit.
The trial court granted summary judgment to the prison. Its rationale is detailed in the post. On appeal the Ninth Circuit disagreed and found that online social media contact can constitute workplace harassment. The court rejected the “notion that only conduct that occurs inside the physical workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.” The court further also issued a warning about socmedia posts and its effect on the workplace – see the post. The Ninth Circuit then sent the case back to the trial court.
As mentioned above, the Ninth Circuit’s decision is consistent with recent guidance from the EEOC on sexual harassment and the use of social media accounts by employees. Part of what that guidance provides in quoted in the post, along with the EEOC’s conclusion as to effect.
So what should employers do? Conduct thorough investigations into any employee claims of a hostile work environment (regardless of the basis), including complaints about co-workers’ social media posts. And train managerial-level employees on how to handle such claims. Also take the other steps noted in the post.
TAKEAWAY: Social media posts by employees can be deemed to have occurred in the workplace, so know how to deal with them – and train your employees. Get an employment lawyer involved early in the process.
The post on Friday 8/23/2024 noted that condo owners file lawsuit over validity of new public easement on beach. Beachgoers recently lined up along the Gulf of Mexico near Perdido Beach Access #2. Many come from out-of-state, including one man who sat in the sand close to the water in front of La Riva condominium complex in an area that, until last year, had been private property. And there the story begins …
La Riva’s condo association is one of six associations on Perdido Key involved in a lawsuit against the County asking the court to determine if a 75-foot public easement on the beach in front of their property is, in fact, valid. The County implemented the 75-foot public easement last year after the original deeds to 64 beach front lots were discovered. The language on the nearly 70-year-old deeds indicates that the US government, which originally owned the land before selling it, intended for those portions of Perdido Key beaches to remain open to the public. How that portion of the beach was treated prior to discovery of the deeds is described in the post.
One attorney representing multiple owners with the six condo associations said he’s confident the law is on their side. His actual quote is in the post.
A County Commissioner who represents Perdido Key is determined to fight to keep the Gulf front easement open to the public. He believes private and public beachgoers can co-exist peacefully. How he said the property owners benefit from this new situation is in the post. He also talked about the legal background and the length to which he is willing to go – see the post.
The lawsuit does not surprise longtime residents and property owners on Perdido Key because public beach access remains an important issue. On the one hand, the condo owners bought their units with the expectation that it was a private beach; on the other hand, some County residents believe public beach is limited and more is needed and welcome.
The Perdido Key Association board is now waiting to see how it works out in court.
TAKEAWAY: Know what your condo or homeowners’ association does or does not own and act accordingly – contact a community association lawyer.
Finally, in the post yesterday 8/24/2024, we read about extraordinary misconduct: with this drill, I thee wed …? The content of the post is both funny and not so funny – it talks about real life and the dangers of social media and the workplace. The federal court summed it up aptly, “This is a case about a dental appointment in Qatar, an international romance, national security, and a once-in-a-lifetime pandemic. It is also a case about Title VII.” Let’s dive into this extreme case of bad workplace judgment.
In Waan v. FGS, LLC, the employee was hired by a contractor that provides intelligence analysts to governments to combat terrorism and the proliferation of weapons of mass destruction, among other national security threats. (Imagine the security clearance needed for that job!) He was assigned to work at a military base in Qatar, with top secret clearance (of course).
And then came COVID. Keep in mind the early days when we didn’t know much about it other than people were dying in mass numbers and hospitals were overwhelmed, there was a shortage of PPE and we were supposed to social distance. Friends and family became people inside virtual squares. The world seemed to halt. During that time, FGS employees had to live on base and could only leave for specific critical reasons (such as the examples listed in the post) with supervisory approval. And masks and social distancing were still required during off-base travel.
The analyst here, along with a co-worker, requested and received approval to go to the dentist. The romantic analyst then arranged for his girlfriend and his co-worker’s girlfriend (without the co-worker’s knowledge) to meet them at the dentist. Once there, he dropped to one knee and proposed. Pictures were taken – see the post for what the photos showed, keeping in mind the rules at that time – and then posted to Facebook. Yep, the analyst’s superiors learned of his romantic escapade at the dentist’s office. They were not pleased. What happened next is in the post. The analyst’s superiors decided to fire the analyst, because he had deliberately used the dental event as a pretext for his proposal and several more things as listed in the post, all of which were on top of a “pattern” of other recent disciplinary incidents (including those detailed in the post). While out analyst might have gotten top marks in the romance department, he certainly did not in the smarts department.
The analyst sued for race (Asian) and national origin (Cambodia) discrimination under Title VII. The Maryland federal court rejected his claims, finding that the analyst did not establish the required elements for a claim of disparate treatment based on race or national origin (the 4 elements of which are listed in the post). The court found that he could show the first and third elements, but not the other two. And even though the analyst pointed out that his White co-worker hadn’t been fired despite lying about keeping his mask on (as those darned pictures showed!), the court found that the co-worker wasn’t a proper comparator for the reasons noted in the post.
So what does this mean for employers? It reaffirms that legitimate differences in circumstances can justify different treatment of employees. Some examples are in the post. Is there also another lesson? See the post (and smile).
TAKEAWAY: Employers have the authority to discipline (and terminate) employees; different circumstances can warrant different treatment, legally. Contact an employment lawyer with questions.
York, Pennsylvania 17403