Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
In the post on Sunday 2/24/19 we learned about an important decision regarding what constitutes “protected concerted activity” in all workplaces. So yes you need to read this. The NLRB recently issued a decision that narrows what is considered protected concerted activity (those things for or on account of which you cannot take adverse action against an employee). This type of activity does not always require 2 or more people; in certain circumstances it could only relate to 1 person in the types of situations noted in the post. For example, one person speaking out on behalf of co-workers. So what happened in this case? The employer fired a skycap. He had declined to help when asked and instead, in front of co-workers, complained about prior tips. How this played out is in the post. The skycap was eventually fired. The NLRB looked at the complaint and had to decide if it was protected concerted activity or did not rise to that level. Its reasoning, and map for future situations, is in the post and actually makes sense.
TAKEAWAY: Know what is protected under the law – in all workplaces – and what is not before you take adverse action. Contact an employment lawyer to be sure.
The post on Monday 2/25/19 said that Chili’s allegedly told a lesbian to dress ‘more gender appropriate’. This author commented that this was disappointing if true as she probably eats at a local Chili’s weekly. The backstory: Meagan is a lesbian single mother. She was offered a promotion but only if she started to ‘dress more gender appropriate”. What that meant is in the post. How it came about is also in the post. The exact comments are also in the post (and sad if true). And Chili’s’ statement? Well, it seems to stand behind the manager but twist the words – see the post. And the worst part? Chili’s apparently told Meagan (whether verbally or in writing I am not sure) that it could not have been discrimination “because he [the manager] hangs out with gay people”. Ugh! The ACLU sued on Meagan’s behalf, alleging sex discrimination.
TAKEAWAY: Treat all employees the same regardless of their gender or gender identity or preference. Make decisions solely based on job performance.
In the post on Tuesday 2/26/19 we saw that a federal court finds employee medical marijuana use need not be accommodated at work (and suggested you note if/how this affects PA at this point). Daniel was a forklift operator. He alleged that he took medical marijuana for prior injuries and that he provided documents to the employer that it was safe for him to operate machinery while taking the medical marijuana. Daniel had a work-related injury and was told to take a drug test to return to work (per company policy). He was suspended until he took the test even though he showed his prescription and requested an exemption. The question before the court was whether passing the drug test was an essential function of the job. The court then analyzed that as in the post to come up with its decision. So what should PA employers and employees take from this? That since PA law is similar to NJ law, PA courts may follow this reasoning (again, as noted in the post) – or they may not.
TAKEAWAY: the use of medical marijuana in the workplace, and any action to be taken as a result, should be discussed with counsel first.
The post on Wednesday 2/27/19 reminded us to know who is responsible for what damage to a unit in condominium or homeowners association. Check your Governing Documents and PA law and contact us (or other community association lawyers). Facts: pipe under the concrete slab in first floor unit needed repair. The pipe supplies water to that unit and 23 others. The pipe burst and water flooded the unit. Contractors came in to repair it. The association paid for the repairs. The bill for drying out the unit was sent to the owner of the flooded unit. The owner questioned why the bill was not paid by the association. The answer (as noted in the post) depends on the Governing Documents and applicable state law.
TAKEAWAY: Know who is responsible for what repairs and replacements relative to each unit in a community association – consult knowledgeable community association law counsel with any questions.
In the post on Thursday 2/28/19 we saw that a court ordered the plaintiff in an FMLA lawsuit to produce private social media content in discovery. Did you really think it would be exempt? Really? Many court cases these days involve social media: the employee wants to keep it out and the employer wants it in. Here, the plaintiff was a valet attendant. The employer tried to get private social media accounts in the race and disability discrimination case. What exactly the plaintiff wanted is in the post; the relevant time period and the reasoning are also in the post. Based on the request and what was both shown and explained in support (listed in the post), the court granted the request.
TAKEAWAY: Under the right circumstances, and for the right reason, an employer may well be able to gain access to an employee’s social media.
The post on Friday 3/1/19 showed us that a federal court limited the ADEA’s disparate impact application to employees (and not applicants). Query: Will the Third Circuit, which takes precedence in PA, follow? So what happened? Dale unsuccessfully applied for a job as an attorney at CareFusion Corporation. His experience was greater than the maximum listed in the job announcement. CareFusion passed over Dale and instead hired a 29-year-old applicant who met but did not exceed the prescribed experience requirement. Dale then sued for age discrimination on a theory of disparate impact liability (and also disparate treatment). The court started with the plain text of the statute (see the post). It looked at several statutory provisions (noted in the post) and went through why Dale’s argument was wrong (as in the post). Finally, the court looked at the background of the ADEA (see the post) and held that while the ADEA protects employees from disparate impact age discrimination, it does not extend that same protection to outside job applicants.
TAKEAWAY: this ruling is not precedential in PA, but its logic makes sense. Know where you stand in PA before making an argument on statutory application.
Finally, in the post yesterday 3/2/19 we saw 5 questions to consider before listing your property for a short-term rental, aka: To Airbnb or Not to Airbnb. You do know what Airbnb is, right? And you want additional, easy, income, right? So you decide to combine the two, right? Maybe. First, know the answers to these 5 questions (and maybe others). First, is your property zoned for short-term rentals? This is a threshold question. If the answer is no, stop, (do not pass Go). Second, is there a requirement that you get a business license or rental permit? This will probably be in the applicable municipal Ordinance or similar. The other three questions are in the post. And when you think you have all of the answers, consult a lawyer to keep you out of hot water.
TAKEAWAY: Do your homework before being called to the principal’s office (or court); make sure short-term rentals are allowed before registering to use Airbnb or similar services.
York, Pennsylvania 17403