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 7/14/19 we saw that Pilgrim’s Pride settled a suit based on a discrimination claim. What type of claim? Disability. The employee asked for and was granted leave for absences due to heart surgery. He attempted to return to work after. What did the company do? See the post. The EEOC filed suit on his behalf after conciliation failed. As part of the settlement, the company will pay $50K plus the other relief as noted in the post.
TAKEAWAY: Comply with the law – and make sure adverse action is legally justifiable.
The post on Monday 7/15/19 told us an employee could rely upon former supervisor’s statement about existence of discrimination. Huh? David said that his former supervisor at Citizens Telecom told him that he did not receive a promotion for three reasons: he was a former Verizon employee and the 2 other things in the post. The former supervisor still worked for the company at that time. On appeal, the court allowed in the former supervisor’s statement for the reasons in the post. Because of that, summary judgment for the company was reversed on the failure to promote claim.
TAKEAWAY: Make sure to train employees what NOT to say – it may come back to bite you in an expensive way.
The post on Tuesday 7/16/19 relayed that JPMorgan Chase settled a class action suit, will give equal parental leave to mothers and fathers. You may recall that JPMorgan Chase was sued a while back for not giving fathers the same leave as mothers. Derek tried to claim primary caregiver status when his son was born; what he was told is in the post. The result was he got 2 weeks’ pf paid parental leave (instead of the 16 weeks given to mothers). He filed a charge with the EEOC. JPMorgan Chase then acted as noted in the post. The suit was then amended to relate to primary caregiver status and not leave time.
TAKEAWAY: Ensure that policies are both facially and actually gender neutral.
The post on Wednesday 7/17/19 asked: Should patio owners pay for deck repair or replacement in community associations? Ok, let’s add a few more facts. Some homes have patios, others have decks. The association is responsible for the maintenance of both patios and decks; now decks need to be replaced. So should patio owners have to pay for that? The answer is: it depends. On applicable state law. On provisions of the Governing Documents. See the post for how it works in that situation.
TAKEAWAY: Part of living in a community association is paying for things that you might not use or form which you might not benefit because others are paying for things that you DO use or form which you DO benefit. Consult a community lawyer to be sure of your rights and obligations.
In the post on Thursday 7/18/19 we learned that an assumption that marijuana card holder used cannabis led to an ADA claim. We noted this could play out the same in PA – beware. Remember that the ADA applies to applicants and employees. Here, the person suffered from PTSD and depression. He applied for a position of receiver lift/forklift operator. He received a conditional offer and had to undergo a drug test. During an interview with HR, he mentioned his medical cannabis registration. What HR told him is in the post. Despite the conversation, and prior to the drug test, HR withdrew the job offer. He filed suit. The company responded with a motion to dismiss, alleging he was not entitled to ADA protection on the basis noted in the post. How and why the court ruled in his favor (at least at this stage) is all in the post.
TAKEAWAY: Be careful on what you base adverse actions – make sure whatever it is legally supports the action.
The post on Friday 7/19/19 noted that documentation of employee’s poor performance defeats FMLA interference claim. Here, Brandy alleged that she was fired based on negative performance reviews which were based in part on protected absences. What else she alleged is noted in the post. Brandy’s supervisor documented performance issues along with the other things listed in the post. Both the trial and appellate courts granted summary judgment for the employer; their rationale is in the post.
TAKEAWAY: Document document document. It can make or break your defense.
Finally, in the post yesterday 7/20/19 we noted that you’d (not?) be surprised how far the ADA goes. It reaches even to the PGA. Pro golfer John Daly apparently requested permission to ride a cart in the PGA Championship due to osteoarthritis in his knee. Yes, an accommodation request that runs afoul of the rule requiring players to walk the course (with a caddy). Daly was not the first pro to request a cart – see the post. But the prerequisites for ADA protection are all there – again, see the post.
TAKEAWAY: The ADA was meant to be broad, and so it is – it is often best to think of accommodation rather than eligibility.
York, Pennsylvania 17403