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 4/5/20, we saw that Ceviche House was sued by the EEOC for sexual harassment, retaliation, and forcing employee to quit. The EEOC alleged that the owner and GM subjected a female server to illegal behavior. Details? Allegedly the part-owner would regularly discuss sex at work, display nude photos of women, and more (yes, there’s more, see the post). When a female server complained to management about his behavior, nothing was done to stop him; and they told her so! The owner then retaliated as noted in the post. The server was forced to quit after that. The EEOC sued after conciliation failed.
TAKEAWAY: It’s bad enough when managers violate the law, but even worse when an owner does it – don’t be that owner.
The post on Monday 4/6/20 was an EEOC COVID-19 reminder: anti-discrimination laws continue to apply. Yes, the pandemic has been brutal to almost every segment of the economy – but that doesn’t mean that all laws are pushed to the side. For example, when laying off employees due to less (or no) work, employers may not choose which employees to lay off based n a protected characteristic (age, race, religion, or others). Examples specific to the COVID-19 complexities are in the post. Employers must follow the dictates of all statutes mentioned in the post. To help employers, the EEOC has a webinar addressing FAQ about the intersection of those laws and the COVID-19 crisis – the link is in the post. Also important, and in the post, is some information about what an employer must or need not do at this time relative to accommodating employees under the ADA.
TAKEAWAY: COVID-19 did not remove statutory requirements for employers, but merely added more to (or a gloss over) them. Consult an employment lawyer to be sure.
The post on Tuesday 4/7/20 asked: Are proxy votes in condo and HOA (homeowners’) associations limited to only certain things? Well, it depends … on applicable state law and the association’s Governing Documents. Proxies can be used to vote on amendments to the Governing Documents, budgetary matters, or other things as noted in the post. Limitations may vary as already noted here. And how long a proxy is valid depends on the language of the proxy itself and the Governing Documents and state law.
TAKEAWAY: Proxies are often needed in order that a quorum be attained and votes can be taken – consult a community association lawyer to ensure your proxies are proper and legal.
The post on Wednesday 4/8/20 contained tips for filing your business interruption insurance claims and avoiding liability pitfalls. COVID-19 has caused many businesses in many industries to drastically scale back operations or even to close. The question is whether business interruption insurance will pay for lost revenues. First, you must have this – it’s usually part of your commercial general liability coverage but you may have to pay extra for it. One question that seems to have been answered relative to this coverage is in the post. Another is whether insurers will consider the presence of COVID-19 on property as constituting a physical loss or damage that is covered by the policy. If so, you want to be prepared, so follow the tips in the post.
TAKEAWAY: Insurance is one of those things owners hope to never need; but if the need arises, they want it to cover the loss. This may be the time to pull out the business interruption coverage and file a claim.
In the post on Thursday 4/9/20 we learned that the EEOC sued AgriAFC for disability discrimination. The employer here is an agriculture retailer. The employee worked as a driver/warehouse worker. He had a pre-existing back condition (from prior military service). When the employer learned that he was taking medication for the condition, his manager took the action noted in the post. A short time later, he was fired (for the reason noted in the post). Conciliation failed, so the EEOC filed suit. The EEOC noted that the ADA provides the protections noted in the post relative to medical conditions, medication, and what an employer can ask or do.
TAKEAWAY: Don’t assume that an employee is disabled – that will put you in legal quicksand where you don’t want to be.
The post on Friday 4/10/20 told us that past salary cannot excuse gender pay discrimination, a Court rules. The underlying issue is whether an employer can base an employee’s salary on past earning or if it is pay discrimination. One federal appellate court just said it cannot. The court did a good analysis of the question and resolution and details are in the post, including the purpose of the relevant statute (the Equal Pay Act) and how it is violated by this practice. In this case, Ms. Rizzo was a math consultant. Her salary (as others in that county) was based on past earnings. As part of a lunch conversation, she learned that a newly hired male mat consultant made significantly more than did she even though she had been there longer. What else she then learned about her pay is in the post. The burden-shifting scheme is set forth in the post as a reminder of what each party must prove. It was easy for Ms. Rizzo to meet her initial burden, shifting the burden to the employer. That is what was before the court. How the court interpreted the statute providing the employer’s burden (that pay differences are based on a factor other than sex) is in the post – and proves instructive.
TAKEAWAY: There might not be binding law on this in PA, but this case provides a good roadmap for employers to protect themselves from suit for allegedly illegal pay differentials. Have your employment lawyer assist you.
Finally, in the post yesterday 4/11/20, we learned that xenophobic COVID-19 lingo poses a legal risk for employers. It’s a different world right now, but as noted in our post this past Monday 4/6/20, existing anti-discrimination laws still apply. Some of the President’s language has been used as an example of what would not pass muster in the private workforce. For example, he often called COVID-19 the “Chinese virus”. That could be construed as racist and xenophobic language demeaning Asian Americans. How the President attempted to counter that (before changing his language somewhat) is in the post. In the public workplace, employers must do more – and ensure that any derogatory connotation or intended harassment is removed. Some suggested ways to proceed are noted throughout the post. And now that many are remotely working, there is more danger through electronic communications that an employer might have more difficulty monitoring. How an employer might deal with that is also in the post.
TAKEAWAY: Do not let any employee use a derogatory term toward or harass another employee based on any protected characteristic (regardless of what the President does). It will come back to the owner and bite hard.
York, Pennsylvania 17403