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 9/1/2024 noted federal prosecutors, Community Bank settle ADA complaints. This post serves as a reminder as to the breadth of the ADA.
The US Attorney said the case was about two complaints about a branch of the bank where customers were denied American Sign Language interpreters for complex banking services. The complainants, who are deaf and use ASL as a primary means of communication, were both customers at Community Bank and were engaged in residential real estate purchases. Each requested an interpreter to assist with their closings, one in January 2021 and the other in October 2023. What the Bank did in response to the requests is noted in the post.
Each of the complainants obtained interpreter services without help from the bank, but were frustrated and stressed by the efforts to get help communicating in ASL. The complainants will receive monetary relief under the agreement (the amount is in the post) and the bank also agreed to non-monetary relief including developing and prominently posting an ADA Effective Communications Policy at each branch location and on its website for public availability and the other things noted in the post.
Community Bank, N.A. was founded in 1866 and has more than 200 branches today. Its comment on the settlement? See the post.
TAKEAWAY: The ADA is more than employment-related; keep in mind the accommodation obligations it requires.
The post on Monday 9/2/2024 noted the Consumer Financial Protection Bureau (CFPB) warns that employee NDAs, confidentiality agreements may violate whistleblower laws.
On July 24, 2024, the CFPB) issued guidance putting financial regulators and employers on notice that requiring employees to sign broad confidentiality or nondisclosure agreements that arguably deter employees from reporting alleged misconduct to federal watchdogs or from engaging in other whistleblower activity may violate federal whistleblower protections. The CFPB agreed that confidentiality and nondisclosure agreements may have “legitimate purposes”, but there is also another side – see the post.
The CFPB is just the latest federal agency to indicate concerns with confidentiality and nondisclosure agreements and whistleblower protections. In a news release it clarified its viewpoint – see the post. Its guidance comes on the heels of efforts by other federal agencies, including the Dept. of Labor and others noted in the post that have stepped up enforcement of their whistleblower programs.
Federal agencies have brought several enforcement actions against the use of confidentiality and nondisclosure agreements (NDAs) in recent years. For example, in June 2024, the CFTC fined a commodities trader $55M (yes, that’s million) in its first-ever enforcement action under its seven-year-old rule prohibiting companies from impeding employees from reporting potential violations of the Commodity Exchange Act (CEA) and CFTC regulations. In January 2024 the SEC issued a large fine – the post details the amount and basis. In its recent guidance the CFPB supported asserted that its position is based on NDAs and confidentiality agreements possibly violating Section 1057 of the Consumer Financial Protection Act (CFPA). What that Section prohibits is in the post.
Relative to confidentiality agreements, The CFPB noted that they may have “legitimate purposes,” such as protecting employer confidential trade secrets. However, the CFPB warned that the way in which such agreements “are worded and the context in which they are employed could lead an employee to reasonably believe that they would be sued or subject to other adverse actions if they disclosed information related to suspected violations of federal consumer financial law to government investigators.” According to the CFPB, confidentiality agreements may have “legitimate purposes,” such as protecting employer confidential trade secrets, but it still issued a caution (see the post).
Specifically, the CFPB stated that agreements providing “that the employer may file a lawsuit or reserve[] the right to take adverse employment action” upon violation of the agreement are at issue due to how they might be interpreted (see the post).
The CFPB went further and said that the circumstances or context under which employees are required to sign confidentiality agreements might also violate Section 1057. The guidance also detailed some examples of when that might occur. – see the post,
Are there any exceptions? The CFPB said agreements “with no acknowledgment of and exception for the exercise of whistleblower rights” risk violating Section 1057. And what about agreements that forbid the sharing of information only “to the extent permitted by law”? See the post. On what the CFPB rested that guidance is also in the post. The CFPB also noted that employers can reduce the risk of a Section 1057 violation by inserting certain language as noted in the post.
TAKEAWAY: Employers should consider reviewing the wording of their confidentiality agreements and NDAs and the context in which they are signed, utilized, and enforced.
The post on Tuesday 9/3/2024 contained 5 details you should really pay attention to in HOA (or condo) documents. (NOTE: click on more on each page to get the entire text). You should know that homeowner’s and condo association contracts are very detailed – from outlining how high grass should be to what color to paint a home. And big problems can arise when association rules aren’t followed, but what if you’ve already signed the contract to purchase the home in an association? There is some advice for first-time homebuyers when it comes to reading association contracts and which provisions they should really pay attention to.
First, check out HOA Transfer Fees at Time of Sale. How much and who pays? Have a community association lawyer review the documents – they are a legal contract.
Next, the HOA’s budget and projections, especially if purchasing in a condominium. Why does that make a difference? See the post. Along with the budget you should review the Minutes of recent board meetings to see what is going on – what do owners want. What is happening with assessments. And more as noted in the post.
Tips and details relative to Association’s rules, pet and parking policies, and property modification provisions are in the post.
TAKEAWAY: before you sign on the dotted line for a home in a condo or homeowners’ association, have a community association lawyer review them and explain the benefits and obligations to you.
The post on Wednesday 9/4/2024 was about hiring discrimination claims: 5 ways to stay out of hot water. This post lets you learn from a real employer’s mistakes.
The scenario: You are advertising for an open position. You get three applicants: (1) Applicant 1 meets or exceeds all of your requirements (2) Applicant 2 fails to meet your minimum requirements; and (3) Applicant 3 meets some of your minimum requirements, but not all. You interview all three, and what do you do?
Most people would make an offer to #1, right? Well, in real life, instead of doing that, the employer offered the job to both Applicant 2 and Applicant 3. Yes, it hired two people even though only one position was vacant and even though Applicant 1 was far more qualified than the others. (Applicant 2 was later moved into a different position for which she was presumably qualified.)
And now let’s throw in some more details. Applicant 1 was 66 years old and had an injured leg that made it hard for him to walk and required him to stick his bad leg out straight when he was seated. Applicant 2 was 29 years old, and Applicant 3 was 30 years old. Neither 2 nor 3 had any type of known disability. This was a job for a drug/alcohol addiction counselor.
Applicant 1, who was not hired, filed suit; the bases are noted in the post. He lost when the federal trial court judge in Pennsylvania granted summary judgment to the employer. But recently the Court of Appeals for the Third Circuit (whose decisions govern in PA) reversed and sent the case back for trial. Let’s dive deeper …
According to Applicant 1, the day he showed up for his interview (in 2019, pre-COVID and pre-interviews by videoconference), the two interviewers stared at his leg the whole time. One gaped (literally, mouth wide open) at him. But did the interviewers say about this as part of the suit? See the post. Not good. But there’s more. Applicant 1’s resume, which the employer had, showed that he graduated from college in 1973. From that it was possible to make a good guess of his age at the time of the interview (see the post for how that’s done). And apparently he looked more or less his age. But since the interviewers were in the same protected age group, it’s all good, right? Well …
More details about Applicant 1’s disability are in the post. And we know that the position was filled with two less-qualified candidates, but the company’s in-house counsel told an investigator with the U.S. Equal Employment Opportunity Commission in writing that the position was never filled. Uh-oh. And because of the Third Circuit opinion, the employer now will have to go to trial on Applicant 1’s discriminatory failure to hire claims. The statutes at issue are noted in the post. There are more details in the post about the others who were interviewed. So now let’s get to the 5 lessons in hiring that you’ve been waiting for all your life (which should seem pretty intuitive).
No. 1: Don’t discriminate. Nuff said.
No. 2: Being “in the protected age group” won’t shield you from a charge of age discrimination. Wrong. Why that is wrong is explained in the post.
No. 3: Know when a hiring decision might look bad, and be prepared to explain it thoroughly. What the employer said about the interview with Applicant #1 was NOT helpful in its defense. What it should have said is explained in the post.
The last 2 tips, and explanations, are in the post. Along with a bonus tip: If you made an honest mistake in explaining the reason for a hiring decision, fess up and re-explain. The trial judge who granted summary judgment didn’t think the employer’s inconsistent reasons for rejecting Applicant 1 were a big deal. What he blamed it on is in the post. But the appeals court saw it differently. What the employer probably should have done is in the post.
TAKEAWAY: know what you can and cannot do in situations that might really be a land mine – consult with an employment lawyer.
In the post on Thursday 9/5/2024 we learned manufacturer to face claim it allowed race-based taunting so severe that victim changed his route to work. A US District court judge denied a request form Bell Textron to dismiss claims of a hostile work environment, disparate treatment and retaliation. The Black worker, a turning machine operator, alleged that he was fired a month after he and another worker reported to human resources that a co-worker was being offensive while the plaintiff walked by him. What the co-worker allegedly did is in the post. The employee said that working in that environment forced him to alter his route to work and more as in the post, all of which altered the terms, conditions and privileges of his employment. The court said that the timing made tf plausible that termination resulted from the complaint? what did Bell Textron have to say about the decision? See the post.
The case was brought under Title VII which, among other things, prevents retaliation against employees for participating in a complaint process. Retaliation cases are seeing an increase in filings now. In one recent case millwork and cabinetry company Third Bench Holdings agreed to pay $165,000 to settle EEOC retaliation allegations. Against whom it supposedly acted, and why, is discussed in the post. And then last month construction contractor Superior Automatic Sprinkler Co. agreed to settle a suit alleging it retaliated against a transgender worker by reassigning him to other job sites after he reported harassment. And the day before that was the settlement in the Pro Pallet case – see our post of 8/30/2024 for details on that one.
TAKEAWAY: When employees make a complaint, take it seriously. Investigate. Make a decision as to whether the complaint is well-founded or not. Then act on the decision. And consider getting advice from an employment lawyer.
The post on Friday 9/6/2024 told us an HOA issues cease & desist letter to parents of children playing sports in community area. The post contains both an article and a VID in this situation where friendly games between kids turned into ugly fights between adults. What happened?
Several parents in the neighborhood said they did not understand why others don’t want their kids to play outside while supervised in the common area. This normally occurs after school and after work. The games played are noted in the post. But some parents recently received a cease and desist letter in the mail from the homeowner’s association. The reason it gave to stop the kids from playing where they did is noted in the post. Those who received the letter disagreed with how the play was characterized. And then crews began to add more trees to the common area; the effect of that was noted by parents (and is in the post). There are also many in the association who are relieved by the HOA’s action. How they characterize the kids’ playing is also in the post. Along with what they worry the future will hold if it continues unchecked. All neighbors just want the issue resolved. The management company’s comment? In the post.
TAKEAWAY: Rules & Regulations apply to everyone in a community association – whether or not an owner likes them.
Finally, in the post yesterday 9/7/2024, we saw an employer settled GINA claim alleging worker was harassed over ancestry test results. Worldwide Printing and Distribution, which does business as ResourceOne in Oklahoma, will pay $47,500 to settle allegations it violated the Genetic Information Nondiscrimination Act (GINA) and Title VII, the EEOC recently announced.
The background … While at work, the employee showed her supervisor the results of an at-home DNA test, which indicated she had a small percentage of ancestry from Cameroon, the Congo and Northern Africa, according to the EEOC complaint. What the supervisor then did is detailed in the post. The actions were allegedly non-stop, so the employee was forced to quit. The EEOC then sued ResourceOne (with the claims and bases therefore detailed in the post). Under the consent decree, ResourceOne will pay the employee $2,175 in backpay and $45,325 in compensatory damages.
GINA claims are rare, but ancestry services and at-home DNA testing kits are now widely available, such that employees who use them may share the results at work — setting the stage for a potential GINA claim as happened here. Employers need to know the full breadth of GINA’s restrictions – see the post. As relevant here, GINA also prohibits harassment based on genetic information and retaliation against someone for opposing discrimination. The employee here asked her supervisor to stop the harassment, but it continued. The supervisor also (allegedly) retaliated as noted in the post. And what did the shift manager do after the employee complained to him? See the post (and say “ugh”). In addition to the monetary relief, ResourceOne is subject to nonmonetary relief as detailed in the post.
One tip to stay on the right side of GINA has to do with when the employer requests medical information from an employee or job applicant, such as to verify a Family and Medical Leave Act (FMLA) or disability accommodation request. What the employer should do then is noted in the post.
TAKEAWAY: Know the law – all of what applies to your workforce – and get advice from an employment lawyer when necessary.
York, Pennsylvania 17403