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 10/27/2024 went from office romance to courtroom drama: lessons from “Presumed Innocent”. Raymond Horgan, the District Attorney of Kindle County, declares “it’s Rusty’s case,” in the premier of Apple TV+’s legal thriller, Presumed Innocent. (You may have seen the big-screen movie with Harrison Ford many years ago – this is a reboot.) The “case” concerns the brutal murder of Carolyn Polhemus, a respected prosecutor who had an affair with her coworker— Rusty Sabich. Rusty justifies his assignment based on merit (i.e., he “is better” than the rival prosecutor, Tommy Molto), but viewers know that Raymond selects his close friend to investigate the murder to thwart attempts by other prosecutors to gain leverage and weaken his chance at reelection. As expected, Raymond’s plan backfires. We won’t spoil it for the few who don’t know, so go to the post. The plotline takes many twists and turns throughout Rusty’s trial, but one cannot ignore that workplace romance has widespread effects. Workplace romance is not uncommon; people meet on the job and sometimes end up in consensual relationships, but those relationships may bring legal risks for employers. Let’s look at that in more detail.
The first area where there might be risk is sexual harassment. This could be quid pro quo or hostile work environment. A good explanation of quid pro quo harassment is in the post. Employers are strictly liable for quid pro quo sexual harassment involving supervisors.
Then there is hostile work environment (HWE) harassment. Again, how that is defined is in the post. Employers may be vicariously liable for HWE harassment by supervisors and can be held liable for HWE harassment by non-supervisors under the circumstances noted in the post.
Another area of potential legal risk for employers is sexual favoritism by the participants, i.e. when those involved in a consensual romantic relationship believe that an adverse employment action against them is a result of an office romance or behavior exhibited after the romance.
Other areas of potential legal risk for employers that arise from workplace romances – including a biggie, retaliation – are listed and discussed in the post.
So what can employers do to avoid, or at least minimize, these legal risks (besides outright banning workplace romances which probably won’t work anyway but will only drive the people involved into secrecy and make things worse)? One best practice is to have in place a well-drafted workplace romance policy and uniformly enforce that policy. Other best practices are listed in the post, including actions an employer might consider if it becomes aware of a workplace romance.
TAKEAWAY: Workplace romance happens. Employers should have in place valid legal policies to deal with those scenarios.
The post on Monday 10/28/2024 noted US Supreme Court to decide if white, straight workers face higher bar in bias lawsuits. The issue is whether it should be more difficult for workers from “majority backgrounds,” such as white or heterosexual people, to prove workplace discrimination claims.
The appeal is by Marlean Ames, a heterosexual woman, who seeks to revive her lawsuit against the Ohio Department of Youth Services (Agency). She filed the suit after she lost her job to a gay man and was passed over for a promotion in favor of a gay woman, both of which she says violate Title VII.
The 6th U.S. Circuit Court of Appeals (based in Cincinnati) decided in 2023 that Ames had not shown the background circumstances” required to prove that she faced discrimination because she is straight. How (and on what basis) other Circuit Courts have ruled on this issue – and there is a split – is noted in the post.
If the Supreme Court rules in favor of Ames, that could be sued to support the increasing number of suits by white and straight workers claiming discrimination under company diversity, equity and inclusion (DEI) policies. The timing of argument and anticipated decision on the case are in the post.
Let’s look at some of the background of the suit. Ames was in charge of ensuring the Agency’s compliance with a federal law designed to deter sexual assaults in prisons. She claims that despite having received positive feedback for job performance, in 2019 she was demoted to her old job and had her pay cut by nearly $20 an hour. She also made allegations concerning promotions and more – see the post for those details. Ames brought suit in 2020. A federal trial judge dismissed the case in 2023. Ames then appealed and the 6th Circuit affirmed in December 2023. The basis of the Circuit Court’s ruling is detailed in the post. Stay tuned …
TAKEAWAY: Before taking adverse action against an employee, especially one in a protected group, contact an employment lawyer. Know the law and follow it.
The post on Tuesday 10/29/2024 asked: I received orders for deployment: will I have a job when I return? Know USERRA, the United Services Employment and Reemployment Act. What USERRA requires of employers relative to active-duty service members is in the post. This is similar to the FMLA, but not the same.
USERRA entitles the employee/service member to reemployment if their absence from work is “necessitated by reason of service in the uniformed service.” What is included is noted in the post; deployment is not specifically mentioned. But reemployment is not automatic – the person must satisfy several things. First, they must give the employer notice (in writing or verbally) of the absence. Next, they are (only) entitled to a total of five years’ leave. How that is counted is in the post. The other requirements are also noted and described in the post.
TAKEAWAY: Employers must know when USERRA comes into play and what reemployment obligations they have to the service member employee.
The post on Wednesday 10/30/2024 noted condo association allegedly disposes of songwriter’s gold records and military burial flag without permission. Should the minority be able to hold up repairs for the majority? NOTE: the post also contains a short VID.
You’ve probably never heard of Rudy Clark, but you probably do know his music (just a sampling of which are listed further down in the post). He wrote some of the biggest hits of the 1960s and 1970s, recorded by everyone from Aretha Franklin to George Harrison. Mr. Clark passed away in 2020. His daughter contacted a TV station after Hurricane Helene in Sept. 2024. She said her condo association tossed out memorabilia without permission, including his gold records and military burial flag, after the condo (which she inherited from him) was damaged by the storm. The TV station looked into her claims.
This happened at Madiera Beach Yacht Club which was severely damaged by Hurricane Helene. How badly? See the post for the damage noted by Bryan Green, one of five members of the Madiera Beach Condominium Association’s board. The association gave residents until October 15th to remove the possessions they wanted; what was not removed would be thrown out by a contractor hired by the association’s insurance company.
Many condo owners are glad contractors are doing the dirty work. They signed authorization forms for the contractor to remove their damaged personal property. One owner said that the sooner everyone clears out their stuff, the sooner repairs can start. The post describes why it is so important to get repairs started, especially to those residents remaining (in the second-floor units).
But one owner does not agree: Risann Curry said she doesn’t think contractors should remove personal property without permission. While she lives in the area, she said that about half of the unit owners live in other states or other countries. And their knowledge of their units after the back-to-back hurricanes and limited lodging options nearby? See the post. That all affects their ability to retrieve property they may want.
The association said most owners signed the consent forms, but some did not. Gina Clark, who lives in New York City and inherited her unit from her father Rudy Clark, is one of the few owners who did not sign the consent form. Gina flew down after Hurricane Helene hit; the post describes what she found in her unit. She said she tried to rent a storage unit for her father’s belongings but was unable to find anything. So what happened (according to Gina)? See the post.
Gina said she never signed the authorization form allowing the remediation company to remove her possessions. However, the board said that she was given a two-week notice and the deadline to submit an authorization form had passed. The board’s statement as to the procedure is in the post. And that statement (and legal posture) is apparently supported by state law. How that works is described a bit more in the post. But what seems to be legally iffy is disposal of items that don’t interfere with remediation. Ideas as to what could be done with those are in the post. The TV station searched bags near Gina’s condo but didn’t find the few items she really wanted (as noted in the post).
So the questions is if and whether the association must stop remediation of the community when a minority of owners don’t act by the deadline. How the board answered this, and why, is in the post. Gina Clark probably doesn’t agree.
TAKEAWAY: What obligation does an association have to keep after owners relative to their property when it comes to repairing damage in the entire community? How will your association respond to something like this? Think about having in place a plan and let owners know what it is.
In the post on Thursday 10/31/2024 we learned about understanding condo association rules. Note that a lot of this applies to homeowner associations too. Condominiums can often be a more affordable option than single-family homes, but before buying a condo one should remember that they almost always come with written restrictions and rules. Those rules could be paradise or a nightmare for a buyer.
Condo rules have many purposes: see the post. Everyone knows what to expect but truly understanding the rules and regulations might not be a simple task. While the post talks of Toronto, what it says could apply anywhere, so let’s take a closer look.
To start, condo associations are governed by a board of directors elected by the unit owners. What the board does is listed in the post. The board is bound by the applicable statute as well as the declaration, bylaws and rules/regulations. process typically involves input and approval from unit owners. Sometimes the board can change the bylaws on its own, but usually such an amendment requires approval by owners. To the contrary, though, the board can almost always change the rules on its own, so owners are not guaranteed that the rules will remain the same at all times after they purchase their unit.
The post describes the difference between the statute, declaration, bylaws, and rules/regulations. There are some common restrictions or rules; they include pet policies, noise and nuisance regulations, architectural standards (which usually include changes to a unit as well as landscaping), and more as noted in the post. Most of these common restrictions can and do affect owners’ everyday life, so being able to live by them is oh so important.
Association boards often hire property managers to help them enforce the various community (governing) documents. The post contains a good summary of the role of the property managers and what they can (or cannot) do.
What happens if an owner violates a restriction/rule? Usually a policy or procedure is followed, often starting with a warning about the violation and how to come back into compliance. And what if the owner does not comply? See the post for common processes. What might be just as bad (or some might say worse) is that violations can strain relationships with neighbors and damage reputations within the community.
What if an owner thinks a restriction or rule is unfair or outdated? Maybe it’s something the board will amend (or bring to owners to approve an amendment). Or maybe it’s just something the owner must continue to live by if there is no change … or move elsewhere.
TAKEAWAY: before buying a house in a community association, read the various documents; they are a legal contract. Know what they provide now and how they can be changed. Engage a community association lawyer to work with you.
The post on Friday 11/1/2024 was about 3 requests that probably aren’t valid for ADA accommodations. While the ADA is broad, there are a few workplace modifications that generally are not considered reasonable, meaning the employer need not provide those upon request by an employee. What is reasonable you ask? Well, it depends (on the circumstances). Nevertheless, there are three workplace modifications that are unlikely to be considered reasonable accommodations. Let’s look at them.
First up is indefinite leave. Courts consistently find this not to be reasonably. And the EEOC agrees. How a leave request scenario might play out, and what is or is not within reasonable limits, is described in the post.
What about someone requesting a job with less stress? Probably not a reasonable accommodation request. How many courts have ruled on that is described in the post. But employers do need to delve into the cause of the stress to know whether or not an accommodation might be reasonable – see the post for more detail.
The third thing that is probably not a reasonable accommodation request is detailed in the post – and mad come as a surprise. EEOC guidelines support this (also in the post).But there are circumstances where this request might be reasonable and best practice – see the post for an example.
TAKEAWAY: Know your accommodation obligations – get an employment layer involved early to help you fulfill your obligations.
Finally, in the post yesterday November 2, 2024, we learned the EEOC sues after company fires female production workers then HR Director for complaining about sex discrimination. Glunt Industries, Inc. and Merit Capital Partners IV, LLC allegedly violated federal law, said the U.S. Equal Employment Opportunity Commission in a recently-filed lawsuit.
Glunt’s website says that it is the most complete large-scale fabricating and machining operation in the US. Merit Capital Partners purchased Glunt in 2012. The EEOC charged that they both engaged in longstanding classwide sex discrimination when they failed to hire women for production jobs. The EEOC said the companies also discriminated against their HR director and retaliated against her both for her role in hiring women and because she opposed sex discrimination, leading to her separation. But wait, there’s more – see the post for detail on all of the charges.
The EEOC alleges violations of Title VII in the suit filed in federal court in Ohio. Conciliation failed prior to the suit having been filed. The relief sought by the EEOC is detailed in the post. The EEOC’s statement is also in the post. And this action reminds us that eliminating barriers in recruitment and hiring is one of the EEOC’s six national priorities.
TAKEAWAY: Don’t treat employees differently; and definitely don’t take adverse action against those trying to ensure compliance with the law. Push that speed dial button for your employment lawyer.
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