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 12/1/2024 told us former Hallmark Channel casting director sues Network for alleged age discrimination. Definitely not good for Hallmark’s feel-good image. The suit was filed in in October.
Penny Perry, a 79-year-old former casting director at Hallmark, alleges that Lisa Hamilton Daly, the executive VP of Programming, told staff she did not want to cast “old people,” because they do not fit the network’s image. The examples Hamilton Daly then allegedly pointed out, and what she said about them, are in the post. And those stars that were the examples? They’ve definitely shone bright as described in the post. Hallmark denies the allegations. It said that the referenced stars, “… have a home at Hallmark. We do not generally comment on pending litigation. And while we deny these outrageous allegations, we are not going to discuss an employment relationship in the media.”
But that’s not all. The suit also alleges that Perry “was unceremoniously fired in April after nine years with the company.” How this also ties in to Hamilton Daly is detailed in the post, including supposed comments about age and health. The suit notes that contrary to Hallmark movies, for Perry “… there was no happy ending, and no feel-good episode to wrap up her career with Hallmark.” And since the termination? Perry has sent over 300 inquiries for new employment and has had no luck landing any full-time employment offers. The suit brings this in as part of the same claim as noted in the post.
TAKEAWAY: It might be La-La Land, but Hollywood still must abide by federal and state employment laws. When it plays out on the big stage, we all get to watch and learn … and it is still someone’s real life.
The post on Monday 12/2/2024 noted employer’s denial of worker’s month-long leave request to attend religious retreat not discrimination, court holds. Good case following Groff v DeJoy decision. The employer here is the New York State Unified Court System (NYSUCS) and it was found not to have violated Title VII when it denied a senior office clerk’s leave request and then fired her. Facts matter.
Every year, for several years, the NYSUCS granted the clerk’s request to take three weeks of annual leave in February to attend the retreat. The last year she made the request, she asked for a month’s leave, but the NYSUCS granted her only one week. The basis for its response is in the post. The clerk was terminated two months later. What the NYSUCS said was the reason for discharge is also in the post (and is probably not at all what you are thinking). After termination, the clerk brought various state and federal law claims against the NYSUCS including those listed in the post). All of the claims, except for religious discrimination under Title VII, were dismissed before it got to this point. But then here the court granted summary judgment to the NYSUCS on the Title VII claim.
This case is important in the wake of the Supreme Court’s June 2023 Groff v., DeJoy on an employer’s burden of proving “undue hardship” in Title VII religious accommodation cases. What the Court held there is described in the post. Although this case didn’t come under the guise of a religious accommodation suit, employers faced with such claims can look to the court’s reasoning here (as noted in the post both as to the reason and any alleged discrimination or pretext). The many facts here that supported the court’s decision are also laid out in the post (including why it took so long for the NYSUCS to take the action it did in terminating her employment). The case even involved analysis of an alleged discriminatory remark and if it was more than a stray remark – see the post.
TAKEAWAY: Facts matter – as well as how they apply under the law as it exists. Know your obligations to accommodate employees’ religious beliefs (and medical conditions) and get legal assistance if needed.
The post on Tuesday 12/3/2024 explained homeowner says HOA suddenly dropped responsibility for repairing a shared fence. What are her options? Quick answer: always start with the association’s governing documents. Ok, let’s dive deeper.
This was not Pauletta Aldridge’s first hurricane damage rodeo. In the 20 years she’s lived in her home, she’s experienced several major storms, including hurricanes Ike and Harvey, both of which caused damage to her fence. In the past, the fence was repaired by the HOA since it borders the neighborhood park. What Aldridge said about those past repairs is in the post.
But that changed. This year, when Hurricane Beryl damaged the fence, no one showed up to repair it. Aldridge called the HOA to find out what it was going to do. The HOA said it was not going to repair the fence but that it was her responsibility. So what are Aldridge’s options?
The first thing to do is get a copy of the HOA declaration and bylaws and review them to see who (HOA or owner) is responsible for what type of maintenance and repair. They may also outline procedures for a dispute (which should be followed along with the tips in the post). Another thing an owner can do (regardless of it being part of a dispute policy or procedure) is to request a meeting to discuss the issue with the board. If the board does nothing, what might be the next step is noted in the post. At the end of this road might be the need to consult with a community association lawyer.
Another (parallel) road might be the insurance coverage on the property. How that might cover this type of thing is described in the post. And finally it the repair is determined to be on the owner, there might be a need to explore alternative funding options (such as those listed in the post).
TAKEAWAY: Maintenance and repair responsibility within a community association (whether condominium or homeowners) is usually spelled out in the declaration or bylaws – and may also implicate state law. Read all of those and consult a community association lawyer to know what rights and responsibilities owners and the Association have.
The post on Wednesday 12/4/2024 talked about employer obligations for political and discriminatory speech in the workplace. While the 2024 presidential election is in the rearview mirror, the environment is still politically polarized and promises to get only more so; employers must keep in mind their rights and obligations relative to political speech in the workplace – whether it occurs on or offline. Why do you care? Because if not handled properly, political discussions can lead to breakdowns in workplace relationships and morale, adverse employment actions or even lawsuits.
If political discussions become inappropriate, or speech violates Title VII or other applicable laws, employers must enforce their policies against harassment, discrimination and retaliation in the workplace, but not to the extent that the enforcement discourages or inhibits protected activity. What else employers must not do while enforcing anti-harassment policies is in the post.
At the federal level, there are few political protections for employees as against private employers, but Sections 7 and 8 of the National Labor Relations Act (NLRA) and guidance from the National Labor Relations Board (NLRB) indicate that certain employee political activities are protected within reason. Specifics on that are in the post (and pertain to all employers, whether or not unionized). This is considered “protected concerted activity” under the NLRA. An example from one case is given in the post. In contrast, an employee individually complaining about work is not concerted activity – what needs to occur for it to rise to the level of concerted activity is explained in the post. Likewise, an employee who makes highly offensive, knowingly false or publicly disparaging statements is not protected. To the contrary, those types of statements might put the employee in legal peril as detailed in the post. There also might be state law protection for political speech that is broader than offered under the NLRA (see the post for examples).
So what should employers do? Enforce pre-existing policies against discrimination, harassment and retaliation, regardless of whether it is couched as political speech. And keep in mind that employers must (attempt to) prevent discrimination, harassment and retaliation based on protected characteristics (including the many listed in the post). What about when an employee repeats at work something they heard outside of the workplace? And the repeated statement violates the law or a company policy prohibiting harassment or discrimination? Some recent examples of this are in the post. No matter how the employee repeating the statement characteries it, the employer should put a stop to any such statement that would violate state or federal law (or company policy).
Contrary to what some might think, there is no First Amendment exception to enforcing anti-discrimination laws like Title VII. Courts have found no such violation for the reasons noted in the post.
With all that said, there are still protections and limitations for discrimination speech online, including on social media platforms. Employers must know what protections and limitations relative to this online speech may impact the workplace. Ann example is described in the post. Employers can, however, ask employees to disclose their social media if it is believed to be relevant to an investigation related to allegations of employee misconduct or a violation of laws or regulations and as long as the social media access is only used for the investigation or related proceedings. An example of how this played out in one case in the federal courts is described in the post. But even where an employer has good cause to view an employee or applicant’s social media, that should be done carefully so as to prevent improper handling of such data which could then result in additional claims including discrimination.
TAKEAWAY: Employers should work closely with experienced employment lawyers to ensure that their policies and practices relative to political speech and social media – including prohibitions on discrimination, harassment and retaliation – are legally compliant and that any investigations of complaints are also compliant and don’t lead to a new minefield.
In the post on Thursday 12/5/2024 we learned that a movie theater agrees to pay former employee $137K in EEOC discrimination settlement. Yep, real life is not like the movies! A federal judge recently approved a $137,000 settlement and consent decree in a lawsuit filed by the EEOC on behalf of a woman whose former employer refused to re-hire her for filing a claim against the company. The District Judge approved the settlement order on October 26, which document outlined the agreement requiring Cinergy Entertainment Group to pay former employee Naidaisha Gaston $137,000, including back wages and $55,000 for her attorney. The company also agreed to the non-monetary items listed in the post. Let’s get more background details.
The suit alleged that in 2022, Gaston was working as a bartender for the company which operated the subject dine-in cinema. She told a general manager she was pregnant. About a week later, Gaston was fired for an alleged policy violation. She then file a charge of discrimination with the EEOC. Over a year later, Gaston applied for a bartending position at Cinergy and called to ask the GM about the status of her application. The GM’s response and instructions to Gaston and what happened after that are all in the post. Gaston alleged (in the suit) that because of all of that, she was deprived of equal employment opportunities and that her status as an employee was adversely affected despite being engaged in protected activity. Statement by EEOC attorneys are in the post (and serve as a reminder of the breadth of its enforcement authority).
TAKEAWAY: It is much less costly to follow applicable law from the start than to settle as a defendant in a lawsuit – contact an employment lawyer if you need assistance with legal compliance.
The post on Friday 12/6/2024 was about steps involved in condo (and homeowners’) association management. While there are differences in condominium and homeowner associations based on what is owned and how, the basic management principles are the same. In both types of associations there is a legally created group of owners that work together to oversee the maintenance of community common areas (and anything else within the Association’s charge). The benefits of living in an association can include well-maintained amenities and creating a sense of community and collaboration among owners. Four basic steps involved in management of any association are dealt with here.
The first step is electing a Board of Directors. An association is governed by a board of directors who are elected by the members (after the association is no longer under builder/declarant control – see the post for more on that). This is where homeowners have the opportunity to volunteer to serve on the board. The pay for and length of Board terms is discussed in the post. Elections for board positions are held at the association’s annual meeting.
The Board usually consists of directors and officers who are responsible for making decisions in the best interests of the entire community. What that entails, as well as the various positions, is all in the post.
Next, and oh so important, associations must adhere to state and local laws and ordinances and their own governing documents (i.e., the articles of incorporation, declaration, bylaws, and rules & regulations). What the articles, declaration and bylaws do is explained a bit in the post. The association, through its board, enforces the governing documents, including the restrictions that are set forth in them. Some common restrictions include pet policies, rental policies, noise restrictions, parking regulations, and the others listed in the post. What can happen if there is a violation of the governing documents is noted in the post.
Operation of the association may be (and probably is) too much for just the members of the board. It is often a good thing (and may be required under the governing documents) that the board establish committees. Examples of standard committees and how they operate are in the post. And since operations take money, establishing a budget is also part of the board’s function. This too is probably required by applicable law or the governing documents (or both). Some of the components of a budget, and details on budget creation, are in the post.
Finally, because fulfilling all of the fiduciary duties of the board takes time, and not all board members have that time, it may be a good idea for the board to hire a community management agent. Whether this person or firm is full-time or part-time, an employee or a contractor, will depend on the association’s needs. Things a management agent can do are discussed in the post.
TAKEAWAY: Community association board members are volunteers, not trained in management and operations – they need to know how to fulfill their fiduciary tasks and where they might turn for assistance (including to a community association lawyer).
Finally, in the post yesterday 12/7/2024, we took note that EEOC’s pregnant worker suits are compliance lessons for employers. So please pay attention … The EEOC has begun filing lawsuits alleging violations of the Pregnant Workers Fairness Act (PWFA). These cases highlight that even more so now there is a new “Bermuda Triangle” of laws for employers to navigate related to pregnancy-related requests for accommodation. The PWFA added more protections for pregnant workers (defined as noted in the post) beyond the ones available under other existing federal laws. Prior to enactment of the PWFA, pregnant workers were protected only by the Pregnancy Discrimination Act (PDA), the protection provided by which is noted in the post, and the Americans with Disabilities Act (ADA), under which an employer’s obligations are as noted in the post. The problem is that many pregnancy-related conditions do not fall under the auspices of the ADA (why not is explained in the post). All three laws (PWFA, PDA, and ADA) now apply whenever an employer is considering a pregnant worker’s accommodation request. The suits filed by the EEOC in September and October, on the heels of the final rule it issued in June, provide a compliance roadmap for employers. Let’s take a closer look.
First, the PWFA, in contrast to the ADA, expressly includes a provision that prohibits employers from forcing a pregnant worker who is requesting accommodation to take leave when there are other reasonable accommodations available that would allow the employee to keep working. A few of the EEOC’s recently-filed cases deal with this provision – see the post and our posts on Mon. 11/11/2024 and Sun. 11/3/2024.
Next, in those same cases, the EEOC said that the employers didn’t engage in the interactive process with the employee before denying the accommodation. That is a legal no-no (imagine pointer finger wagging).
Third, the EEOC suits serve as warnings against rigid policies that do not account for pregnancy-related needs. The post (and our posts on Mon. 11/11/2024 and Sun. 11/3/2024) talks about how this arose in one of the EEOC suits (Polaris) and what the company did relative to time-keeping that was in violation.
A huge difference is that unlike the ADA, the PWFA requires accommodation for pregnant workers even if they temporarily cannot perform the essential functions of their job. Some of the EEOC suits dealt with this – see the post and our posts on Mon. 11/11/2024 and Sun. 11/3/2024.
There are also two other pieces of the roadmap that these suits provide for employers who pay attention. They are detailed in the post and our posts on Mon. 11/11/2024 and Sun. 11/3/2024.
TAKEAWAY: before you find yourself adrift in the new Bermuda Triangle (PWFA, PDA, ADA) for pregnancy-related accommodation requests, look at the roadmaps in the EEOC’s recently-filed suits – and contact an employment lawyer.
York, Pennsylvania 17403