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 12/8/2024 told us that the National Labor Relations Board General Counsel cracks down on stay or pay provisions and calls for make-whole remedies. NOTE this is NOT the NLRB position and Board composition (and counsel) may (probably will) change with the incoming administration. But still keep this on your radar. There are three main parts of interest for employers from the GC’s October 7 memo: unlawful provisions, potential penalties, and the compliance deadline.
A reminder of to whom the NLRA applies is in the post. And we again note that the General Counsel’s memo does not necessarily reflect the position of the NLRB and is not law. Let’s take a deeper dive into the memo.
Stay-or-Pay Provisions Presumptively Unlawful – the General Counsel’s position is that these presumptively violate the NLRA, unless four requirements are met, if they require an employee to repay the employer for certain benefits (see the post) if the employee does not remain employed for a specific period. The four requirements are that the agreement must be voluntary, the repayment amount must be reasonable and specific, and the other 2 noted in the post. What does “voluntary” mean? That the employee freely chooses to enter into the agreement and suffers no financial loss or adverse employment consequence for entering into the agreement. What it means relative to cash payments and training and/or educational reimbursements is detailed in the post.
The repayment amount must be reasonable and specific. It must be clearly set forth in the agreement. And “reasonable” means that the amount is no more than the cost to the employer of the benefit provided to the employee. No mark-up.
The other 2 requirements, and details as to each, are in the post.
The General Counsel has stated an intention to pursue employers with pre-existing stay-or-pay provisions that do not meet the requirements as well as those entering into such agreements in the future. December 6, 2024, was the deadline for employers to amend unlawful stay-or-pay provisions, i.e., stay-or-pay provisions that were not entered into voluntarily and those where an employee voluntarily agreed to an existing stay-or-pay provision. What the GC suggested employers should do, with an example, is all in the post.
And if there is a violation? The General Counsel calls for significant make-whole remedies where an employee (1) did not seek other employment opportunities due to an unlawful stay-or-pay provision and (2) can show the 3 things listed in the post. The GC is also looking at overly broad non-compete provisions and the remedies for same (based on what is discussed in the post).
TAKEAWAY: This all has to do with terms and conditions of employment and may come within Section 7 of the NLRA, meaning it applies to all workplaces, union or other. Talk to an employment lawyer if your contracts contain stay-or-pay or non-compete provisions.
The post on Monday 12/9/2024 teaches us about alcohol rehab and employment concerns: what to know before you go. This is a good roadmap for employers and employees that looks at the challenges, rights, and practical solutions for maintaining job security while seeking help for alcohol dependency. Additionally, legal protections and support available for employees dealing with substance use disorders are discussed.
First up are the employees’ rights. The decision to seek alcohol rehabilitation treatment is protected under the ADA and FMLA. Who is eligible under each of those statutes, what they provide or guaranty to employees, and to whom those laws apply is all in the post. Know that FMLA leave can cover both inpatient and outpatient substance abuse treatment programs, but it does not apply to employees currently using illegal drugs or other substances. Likewise, reasonable accommodation under the ADA is not required if it would be an undue hardship to the employer; some things that might be a reasonable accommodation in this context are listed in the post. What information an employer can release under the ADA is also discussed in the post.
Despite applicability of the ADA and FMLA, employers can (and should) still hold employees accountable for performance standards and conduct expectations.
We noted that both outpatient and inpatient treatment programs could be covered under the FMLA. Some providers even offer telehealth options, such that treatment is even more accessible for those maintaining employment. What typical inpatient programs usually entail is in the post. Employees undergoing either type of treatment must discuss rehab needs with their employer, to include treatment timeline expectations, leave requirements and documentation, and the other items listed in the post. If an employee will be taking any leave, the employer must consider project status documentation, temporary coverage arrangements, and the other things noted in the post. The employer must also ensure confidentiality to the extend required under the FMLA, ADA, and Health Insurance Portability and Accountability Act (HIPAA) as discussed in the post. Many workplaces also offer support systems and Employee Assistance Programs (EAPs) for eligible employees.
Employers also must consider how job applicants play into this. Employers can require a pre-employment drug test as a condition for job offers; what happens if there is a failed test, and who gets the test results, is covered in the post. And finally, employers must know, and employees want and need to know, can someone be fired for going to rehab? The answer is “maybe”. There are certain circumstances in which termination might apply – see the post.
TAKEAWAY: Alcohol or other substance abuse happens – and it can affect one of your employees or a job applicant. Know which laws apply and what rights and obligations you and the employee or applicant have. Get help from an employment lawyer if needed.
The post on Tuesday 12/10/2024 noted the Justice Department secures settlement agreement to ensure opportunities for people with physical disabilities to live at home. Remember that the ADA is broader than just the employment context. The agreement here resolves a lawsuit filed in September 2023 against the State of Colorado after a multi-year investigation. The suit alleges violation of Title II of the ADA and the Supreme Court’s decision in Olmstead v. L.C. by segregating adults with physical disabilities, including older adults, in nursing facilities without necessity. What the ADA and the Olmstead decision require of state and local governments is in the post. Some of the services at issue include assistance with bathing, dressing, managing medications and preparing meals. A statement by the acting US Attorney is in the post.
As part of the settlement, Colorado agreed to help thousands of nursing facility residents move back to the community, identify people at risk of unnecessary nursing facility admission to help them stay in their homes with the services they need; provide people with information to make an informed choice about whether to live in a nursing facility or receive the services they need at home; and the many more things listed in the post.
TAKEAWAY: Even though you may deal with the ADA as an employer, it also applies to access to your workplace (assuming it is public), such that accommodation might become necessary at some point. Know the breadth of the ADA and your obligations.
The post on Wednesday 12/11/2024 explained condo owners outraged after being slapped with $21M fee as housing crisis escalates. Yes, that’s million. A $21 million special assessment bill for repairs – just 16 years after construction! That translates to some residents of the two condo buildings in Miami facing individual payments of more than $40,000. Understandably, some are even considering selling (but then there will be the effect on the sales price …).
The condo board says that the repairs are urgent and required under law and that work is already under way on some things including a roof replacement and pool deck restoration. But residents want to know why, in a building less than 20 years old, there is a need of such dire repairs so quickly and with such a hefty price tag.
One resident said there was a lack of transparency and the decision was rushed. On November 13, the board approved the special assessment based on findings from a Structural Integrity Reserve Study; what the study found is in the post. Owners agree that some things need to be done, but they do not believe the board had authority to levy the assessment given what the declaration requires (see the post). There is a dispute as to what happened and if the declarations requirement has been met. See the post for both sides. The Association’s General Counsel cited state laws put in place after the Surfside Champlain Towers collapse in 2021 as justification for the board’s actions. His statement is in the post. The board has offered to let residents pay the assessment over time in installments, but will that be enough?
TAKEAWAY: There might be no PA law requiring it, but your condominium should have current reserve and structural integrity studies in place as well as a healthy reserve fund – consult a community association lawyer for guidance.
In the post on Thursday 12/12/2024 we learned that police investigate condominium amid resident allegations of mismanagement. Coral Springs Police are investigating allegations involving the Ramblewood East Condominium Association board after years of complaints from residents alleging mismanagement at the property. Toward the end of a recent city commission meeting, the City Attorney said he was going to “address the homeowner’s association situation” in the large (1120 unit) community. His statement is in the post. During the public comment portion of the recent meeting, several Ramblewood East residents complained about the condo association board. This was not the first time – see the post. According to numerous residents, Ramblewood East has been plagued by many issues in recent years, including leaking roofs, flooded walkways and other issues listed in the post, as well as millions of dollars in code violations allegedly not paid by the association. Some residents allege that the board has misused money collected from owners. What the attorney said about the City’s position – and what might happen – is also in the post.
The Association board did not return an email message and phone call seeking comment. An attorney named as the Association’s registered agent in state business filings also did not return an email seeking comment. What the City Attorney said about that is also in the post.
TAKEAWAY: Know who does or does not have jurisdiction over financial issues arising in your condominium or homeowners’ association – a community association lawyer can assist with the answer.
The post on Friday 12/13/2024 noted the termination wasn’t perfect, but the employer nailed the retaliation case. We warned that this will not turn out as you think it will.
A full-time adjunct instructor at the University of Illinois-Springfield (we’ll call her “Jackie”) made six internal complaints between April 2015 an April 2016 that her boss, an Arab Muslim, was being discriminated against because of his religion and his ethnic background. As an adjunct, Jackie was employed through annual contracts. Her 2014 and 2015 contracts, prior to her complaints, were for 12 months each. But in 2016, after she had made some complaints, and a mere two days after one of her complaints, she was offered only a nine-month contract. She begrudgingly accepted that 2016 contract. During the term of that 2016 nine-month contract, she was told that her contract would not be renewed. Jackie sued the University for retaliation under Title VII based on her complaints of ethnic and religious discrimination.
Surprise, a federal court granted summary judgment to the University, dismissing Jackie’s case without a trial, and more recently the federal Court of Appeals affirmed. Another surprise, those decisions (termination by the University and findings by the courts that there was no legal wrong) were probably correct. Let’s look at this roadmap for employers after an employee engages in some type of legally protected activity.
Yes, the timing was atrocious – see the post for a recount. And the University admitted that it made at least one other “significant” mistake, which is noted below. But there are four reasons why the University won anyway.
No. 1: The University could prove that it wasn’t out to get Jackie. There are more facts. In January 2016, two adjuncts complained to HR that the same Arab-Muslim boss had not put them on the Spring 2016 schedule (despite their prior schedules – see the post). They alleged that the boss was retaliating against them because they had complained about him (a description of the complaints is in the post). The University began an investigation, initially focused on whether the boss had engaged in retaliatory behavior
No. 2: The University conducted a thorough investigation and followed the leads where they led. The University Ethics Office interviewed Jackie as part of its investigation. She made a key admission during that interview – see the post. (Anyone thinking cat’s paw?) After that, the University put Jackie on administrative leave and began investigating whether Jackie herself had retaliated against the other adjuncts. Jackie was interviewed again and alleged that the process was unfair. (See No. 4, below.) At the end of the investigation, the Ethics Office made a finding (the basis of which is in the post) and recommended that Jackie be non-renewed as a result. The Associate Vice Chancellor for Undergraduate Education accepted the findings and recommendations and told Jackie that her contract would not be renewed.
No. 3: The University had excellent documentation. The thorough investigation conducted by the University was written up in a memo from the Ethics Office to the Associate Vice Chancellor. Tied up with a bow of sorts. How that helped in court (big time) is discussed in the post.
No. 4: The University didn’t violate its own policies. Yes there was one glitch: the University admitted that the Ethics Office made a “significant” mistake by not providing Jackie with a copy of an internal report about the investigation before asking her to respond to the allegations. But that was not fatal for the University the reason noted in the post. NOTE: even though it did not hurt the University, employers should be wary not only of policies, but also practices and protocols that could lead to an inference of a violation if there is no valid reason for deviation.
(BONUS) No. 5: Even if the University had been wrong and the other adjuncts were lying, the University still would have won. Jackie claimed that the other adjuncts lied about her, but that didn’t save her case. What she had to show is listed in the post, and according to the appeals court, she did not. How that might have played out (the “good-faith mistaken belief” defense) is described in the post.
In the end the courts found that Jackie had engaged in legally protected activity and was subjected to adverse action, but her case faltered over whether that protected activity caused the adverse action. So coming full circle, while the University’s actions were not perfect, they earned a dismissal (of the suit against it)!
TAKEAWAY: Employers must know how to defend against possible claims of discrimination and retaliation; that includes investigations and good documentation. And getting an employment lawyer involved early in the process.
Finally, in the post yesterday 12/14/2024, we learned Vibralife of Katy to pay $80K in EEOC disability discrimination lawsuit. This is not a snoozer! VibraLife is a rehabilitation and assisted living facility. According to the lawsuit, VibraLife hired an employee with a sleep disorder for a night shift position. The job posting required the selected candidate to work 36 hours per week in three 12-hour shifts. When she began her employment, the employee was told that she would be required to work a fourth 12-hour shift every other week. She then promptly requested an accommodation to limit her schedule to the specific terms of the job posting and offer of employment. What the employer did in response is in the post. Alleging that Vibralife’s conduct violated the ADA (on the bases noted in the post), the EEOC filed suit in federal court after conciliation failed.
The court entered a consent decree on Oct. 29 to settle the suit. Vibralife agreed to pay $80,000 in monetary relief and also, as part of the three-year decree, agreed to other non-monetary relief as noted in the post. Statements by EEOC attorneys are in the post.
TAKEAWAY: Don’t stick your head in the sand – or refuse to act – when an employee requests an accommodation. Engage in the interactive process.
York, Pennsylvania 17403