Below is a review of the posts (on Facebook, LinkedIn, and X [formerly Twitter]) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 1/21/2024 asked: What happens when ADA accommodations miss the mark? As an employer, you know that you should not only have detailed written policies, but make sure they are followed. But there are times during the accommodation process that you as the employer need to put the policies aside and look at the facts that apply. A federal appellate court recently provided useful guidance on how to properly address an accommodation request which may violate an internal policy. What did the court do? See the post.
Robert Hampton was born missing the second and fifth digits on both hands, the result of a congenital birth condition. Because of this disability, Hampton has difficulty grasping, pulling, and performing other functions with his hands. In May 2016, the Department of Corrections (UDC) hired Hampton to serve as a Corrections Officer. UDC had adopted a Firearms Policy that required corrections officers to qualify with and use only Glock handguns on the job. Hampton was concerned about his ability to qualify with and safely use the approved Glock handguns because of his disability but successfully completed the firearms training, qualifying with a Glock. Even after qualifying, Hampton was still worried about using the Glock style handgun. So he requested an accommodation – see the post. UDC did not meaningfully engage in the interactive process and did not respond to Hampton’s request for accommodation. The warden – who did not know of the accommodation request – eventually terminated Hampton’s employment.
Not surprisingly, Hampton sued UDC, claiming a failure to accommodate. What Hampton had to show is described in the post. And in this case, as in many cases, the analysis turned on whether something was an essential job function. The facts playing into the analysis here, as well as how employers usually show that something is an essential job function, are noted in the post.
UDC argued that the accommodation violated a policy; the trial court agreed and dismissed the suit. The appeals court disagreed. It said that the simple fact that an accommodation would result in a disabled worker violating a rule that others must obey cannot, in and of itself, make the accommodation unreasonable. An example the court used is in the post. The court also noted that the ADA provides specific examples of reasonable accommodations, including those listed in the post. The court concluded that Hampton’s accommodation fit within one of the listed categories (see the post) and therefore Hampton was entitled to ask a jury if UDC failed to provide him with a reasonable accommodation.
So what can employers learn from this decision? First, employers must engage in the interactive process once an accommodation is requested. How to do that in light of the essential functions of a job is described in the post. A second thing employers should do is noted and detailed in the post.
TAKEAWAY: Make sure to consider the accommodation request that has been made in light of the job’s essential functions – involve an employment lawyer.
The post on Monday 1/22/2024 was about Groff v. DeJoy and its impact on religious accommodation. You (should) know that Title VII prohibits employers with 15 or more employees from discriminating against employees and applicants on the basis of religion. It also requires employers to reasonably accommodate an employee’s sincerely-held religious beliefs unless doing so creates an undue hardship. In July 2023, the Supreme Court decided Groff v. DeJoy and clarified what constitutes an “undue hardship” in the Title VII religious accommodation context.
Pre-Groff, the focus was on whether the religious accommodation would require the employer to “bear more than a de minimis cost” and, if so, it constituted an undue hardship. How difficult it was to meet that standard is in the post. But then came Groff and raised the “undue hardship” threshold, bringing it more in line with the test for accommodation in the disability context under the ADA.
The general background of Groff is in the post. After winding through the lower courts, the Supreme Court determined that “hardship” for purposes of assessing the feasibility of a religious accommodation is more severe than a mere burden; rather, it is “something hard to bear.” What that means, and the effect of this new standard on employers, are in the post. The test is fact-specific and will require courts and employers to assess “all relevant factors” in each case, including the accommodations at issue and their practical impact in light of the various things detailed in the post.
The Groff decision has significant implications for employers – including a heavier burden when employers deny requests for religious accommodation. The default position has changed – see the post The only reason/basis for which the employer should deny the accommodation is if it can point to concrete and substantial increased costs or other hardships that are excessive or unjustifiable.
TAKEAWAY: The accommodation process has been the same for religious and disability requests; now the definition of “undue hardship” is the same too. Know the law.
The post on Tuesday 1/23/2024 told us condo association sues State Farm for water damage 30 years too late. That is not a typo! Gold Creek Condominium Phase I Association of Apartments Owners was completed in 1982. It first learned of water damage to its 72-unit complex in 2018. It sued State Farm under an all-risk insurance policy issued for the period. Oct. 1, 1989, to Oct. 1, 1990. Another insurer provided later coverage – see the post. Both carriers denied coverage and the condominium association sued. The federal trial court dismissed the suit; the appeals court affirmed. The court said that the State Farm policy clearly required the Association to bring suit within one year of rain events during the policy period, such that this suit was filed too late. The court also affirmed dismissal of the other insurer on the basis noted in the post. The condominium’s attorneys did not respond to a request for comment.
TAKEAWAY: Be familiar with the provisions of your condo or HOA insurance policy; work with a community association lawyer to protect your interests.
The post on Wednesday 1/24/2024 was about 5 employment mistakes small businesses should avoid. Really these apply to ALL businesses, but they are more often encountered by small businesses. So what are these top five mistakes small businesses will want to avoid to limit exposure? Topping the list is not having an up-to-date employee handbook. The purpose of a handbook is in the post. But you can’t just have one, you must use it, evenly applying it to all employees. Not having a handbook or having one that is outdated or irrelevant to your specific business can lead to disputes, misunderstandings, and claims of unfair treatment – and even lawsuits.
Number 2 on the list is misclassification of employees. Are they independent contractors? Are they hourly employees, or are they exempt and can be salaried? A worker is not properly classified? See the post. Talk to an employment lawyer about proper classification. Among other things, this affects who may be treated as salaried and who must be paid overtime.
The third mistake is non-compliance with wage payment laws. There are wage and hour laws (which address the things noted in the post) and wage payment laws. The latter provide for when to pay. Why this is important is also in the post.
The other two big mistakes are listed and described in the post.
TAKEAWAY: Knowing where the possible land mines lie is a big step; being able to avoid them is even bigger and may take the assistance of an employment lawyer.
In the post on Thursday 1/25/2024, we read an employment law Christmas carol (a little late but still useful for the future). This is a play on the Charles Dickens classic, but humorously tailored to a different context. To start, we talk about Marlie who was dead. How dead? See the post. So at 8 p.m. on Christmas Eve, it was time to call it a night. “You’ll want all day tomorrow, I suppose?” Scrooge said to his CFO, Cratch Bobbit. “If quite convenient, sir.” And what did Scrooge say in response? See the post.
Later, after arriving at his dark, sparsely furnished home in London, Ohio, Scrooge had dinner (described in the post) in front of his fireplace, warmed from the burning of the stick he had used to threaten some little children who were singing Christmas carols on his front steps. Suddenly Marlie appeared. She was transparent; Scrooge could see her scrunchie-wrapped ponytail right through her head! Scrooge was curious (or scared?). Marlie identified herself – she was his Human Resources Manager. Scrooge had fired her seven years before for the reason noted in the post. Marlie told Scrooge that he would be haunted by Three Spirits.
As the clock struck the appointed time, Scrooge found himself face-to-face with an unearthly visitor. Who was this specter? The Ghost of HR Past. Scrooge’s past. He was worried. They flew to the other side of London, passed through a wall, and stood at the entrance to a small office, its roof covered with snow. Scrooge recognized it – it was his first office. How many employees did he have then – and why did it matter? See the post. Then they went to see another Christmas. They went in the busy streets of London, into a seven-story building, up the elevator, and into the seventh-floor suite. Who was there and why? See the post.
And then it was time to see another Christmas. It was in the same suite, but a year later. It was festive, quite festive (see the post). Scrooge was having a grand old time, so much so that after too many appletinis, he grabbed his receptionist, Mrs. Fezziwig, and gave her a bear hug and a big wet kiss on the lips. Marlie has something to say about that – see the post. Scrooge didn’t listen. Marlie explained in more detail (see the post). Scrooge then kissed Malie, said “Marlie, you are a wet blanket, but I love you anyway,” and went back to the appletinis. And then it was time for another Christmas.
This time they were in the office of the attorney for ES Corp. Scrooge was there signing a big settlement check. The amount and basis are in the post. Scrooge said “Well, at least Marlie didn’t sue me; I will never have fun again.” He attorney thought that a good idea.
And then a strange voice called Scrooge by name and bade him enter. He obeyed. It was the Ghost of HR Present. The Ghost took Scrooge to the house of Cratch Bobbit and his family. It was Christmas morning. The Bobbits were discussing Cratch’s holiday work schedule – see the post. At one point Mrs. Bobbit exclaimed, “ARE YOU CHECKING WORK-RELATED EMAILS RIGHT NOW?! On Christmas Day!? I tell you, Cratch, I have had it! It’s Scrooge or me!” And then their son Tiny Tim chimed in – see the post. That reminded Mrs. Bobbit of an FMLA question (see the post) to which Cratch had no good answer (but a truthful one – again see the post).
And then came the third Ghost, this one shrouded in a deep black garment concealing its head, its face, its form, and leaving nothing of it visible except one outstretched hand. Scrooge knew who it was – the Ghost of HR Future! The Ghose merely pointed forward. Scrooge was in bad physical shape by then – see the post. After a brief rest, Scrooge and the Ghost entered a courtroom. An older version of Cratch Bobbit was on the left with a man who looked like an attorney. An older version of Scrooge was on the right with the attorney for ES Corp. A bailiff shouted, “All rise!” and a judge entered the room and took her seat. The judge noted what the case was about – a class action brought under the Fair Labor Standards Act – and a prior ruling she had made relative to exemption (see the post). The judge went on to explain the ramifications of her prior ruling, including that Mr. Bobbit had not been paid for all hours worked, including one zillion hours of overtime. The Judge also dealt with the rest of the class – see the post. And it got worse; the judge found that all of the violations were willful. What that then entitled Mr. Bobbit and the other class members to is noted in the post. Future Scrooge began to weep. His attorney had a keen observation – that is in the post. Future Cratch stopped at Scrooge’s table on his way out of the courtroom. “Forgive me, Mr. Scrooge. I bear you no ill will. This lawsuit was my wife’s idea.” Present Scrooge knelt in front of the Ghost of HR Future. He begged and said he could change. Then he woke up in his own bed.
As you would expect, Scrooge was better than his word. Since Marlie was dead, he hired a new HR Manager and faithfully followed all of her instructions. ES Corp. hit a new high – see the post. The next year, on the recommendation of the new HR Manager, Scrooge allowed his employees to work from home two days a week. ES Corp. hit an even higher high – see the post. And as for the Bobbits? Scrooge gave Cratch a $200,000-a-year salary increase and more that helped both ES Corp. and the Bobbits – see the post. All of this made Mrs. Bobbit very happy. She even started telling Cratch how lucky he was to work for a fine gentleman like Ebenezer Scrooge!
TAKEAWAY: Listen to those who know the law; don’t find out at a later date what a costly mistake you made by not listening to them.
The post on Friday 1/26/2024 was about the Corporate Transparency Act – does it apply to cooperatives and condominiums? Perhaps this is the first you are hearing about the CTA? It brings new requirements for business entities created by the filing of a document with the secretary of state – including cooperatives (coops) and perhaps condominiums (condos), – to report personal identifiable information about certain of their beneficial owners to the US Dept. of Treasury’s Financial Crimes Enforcement Network (FinCEN).
First, who is required to report? Any entity that is created by filing a document with the secretary of state or similar office under the laws of a state. He expansive list of who might be included is in the post. Coops and condos created by the filing of a document with the secretary of state are Reporting Companies (unless otherwise exempt) and must comply with the CTA. And what about unincorporated condo associations? See the post.
Next we look at who is exempt from CTA compliance. There is a list of 23 types of entities that are exempt from the reporting requirements. Ae coops and condos within the 23? See the post.
And what must be reported? Disclosures about the entity’s beneficial owners (as defined by the CTA) and the other things listed in the post. Updated or corrected reports must be filed within 30 days of any change of information previously submitted to FinCEN about the beneficial owners or the Reporting Company. The post details who is a beneficial owner; it also includes reference to the regulation that provides three criteria to determine if someone has “substantial control”. Beneficial owners of coops and condos will likely include the directors, managers, and certain key officers (as identified pursuant to the CTA) and the other persons listed in the post.
The information that must be provided to FinCEN about each beneficial owner is listed in the post. You might be surprised (and unhappy) by some of the things on the list. Similarly, what information must be provided to FinCEN about a Reporting Company is also listed in the post. Because it is an entity and not an individual, those things won’t seem too bad.
And then we must look at when Reporting Companies must provide the required information. There is a distinction between entities in existence prior to January 1, 2024, those created on or after January 1, 2024, but before January 1, 2025, wand entities created on or after January 1, 2025. The different reporting dates are in the post.
FinCEN’s guidance and regulations are evolving. In the meantime, certain coop and condo boards should work with their attorneys and start to compile a list of who might be considered a beneficial owner and start to compile the required information – but with the timing noted in the post. It might also be a good time to tell certain individuals what might happen – see the post.
How a Reporting Company reports to FinCEN, and what happens if it does not do so timely (think $$$), are discussed in the post.
TAKEAWAY: Even though the CTA is still being analyzed and interpreted, anyone who lives in or is on the board of a cooperative or condominium should be talking to the association’s attorney about the impact of this law.
Finally, in the post yesterday 1/27/2024, we warned: Don’t give employees the wrong idea. Most people who now hire or supervise employees were at some point (and perhaps still are) employees. So what’s the humorous take on the employee-employer relationship? That no employee thinks they get paid too much and no employer thinks they pay their employees too little. Pay is often tied to annual evaluations (or reviews). What is one thing that should never be said to an employee who is unhappy with the raise they got? See the post. And that is because the employee might actually listen to that one thing. Making that one statement sets off a domino effect – see the post. The lesson is to make employees feel appreciated.
TAKEAWAY: Employees certainly value being appropriately compensated, but there are also intangibles that count in the work relationship. And not providing those intangibles might cause you to lose a good (or great) employee.
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