Bad “Don’t Speak Spanish” policy, when misconduct and protected activity collide, not collecting condo/HOA assessments, racial slurs, and more in Our Social Media Posts This Week – Aug. 2 – 8, 2020.

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 8/2/20, we saw that Albertsons will pay $210K to settle a “No-Speak-Spanish’ suit. The suit was brought by the EEOC, alleging that a manager harassed employees who spoke Spanish on the job. Or even at these other times as noted in the post. Albertsons agreed to non-monetary relief too; that is listed in the post. While this happened in San Diego, it could as easily happen in Central PA where there is a large Spanish-speaking population.

TAKEAWAY: Employers need to be aware of the broad implications of what managers do or say, especially when lesser-used provisions of the law – such as the prohibition against adverse action based on national origin – come into play.

The post on Monday 8/3/20 was about what to do when employee misconduct and protected activity collide. Yes, an employer can discipline an employee for breaking a rule or policy. But should it if the employee engaged in protected activity around the same time as when the rule/policy was broken? One federal court decision seems to say no. In that case, Brad, a black man who had been working at the company for 15 years, got into a fight with his adult daughter Kayla in their shared home. Kayla worked in the same facility as Brad, but for an affiliated company. The day after the fight, she complained to the HR department of Brad’s employer. What the relevant policy says, and what HR did after the complaint, are in the post. So then Brad called the ethics hotline and made a complaint of race discrimination; the basis is in the post. HR and the company President were aware of Brad’s complaint. The company gave Brad 3 choices: they ae listed in the post. He chose the 3rd option. The company put the terms in writing but added something as noted in the post. Brad objected to that addition. How things progressed is detailed in the post, including Brad’s suit, the trial court ruling, and how and why the appellate court ruled (including letting the retaliation claim go forward).

TAKEAWAY: Employers can discipline employees and enter into agreements with them – it is when there is a deviation from normal practice close in time to a protected act by the employee that trouble arises. Consult an employment lawyer to assist.

The post on Tuesday 8/4/20 told us that an internet retailer was ordered to pay $55,000 to resolve a disability discrimination lawsuit. So, what happened? The EEOC sued Black Forest Décor when conciliation failed. The facts involve Barbara, a warehouse worker, who in early 2018 told the company that she had a medical condition for which she would probably need surgery. Hover, her doctor allowed her to continue working until the surgery. Was that good enough for the company? No. It put her on unpaid leave until the surgery – for the reason noted in the post. Barbara kept updating the company with details on her condition and the surgery. There was no contact form the company for weeks until it sent Barbara a letter; the contents are described in the post. The suit was brought under the ADA and includes both monetary and non-monetary relief as part of the settlement.

TAKEAWAY:  Don’t assume that employees need any accommodation unless they ask; if you do, you run afoul of the “regarded as” prong of the ADA and can be in legal hot water.

The post on Wednesday 8/5/20 confirmed that failing to maintain and properly collect assessments is a breach of fiduciary duty by an Association board member. In this case, the plaintiffs were owners of condo units in Maine. The Declarant (builder/developer) still had more than 50% of the votes as the time and so controlled the Board. What the Board did, or in this case did not do, is noted in the post. The plaintiffs claimed they lost value in their units due to the Declarant’s actions. The trial court ruled in favor of the plaintiffs on all counts and what it ordered by way of relief is in the post. On appeal, one of the bases of judgment was overturned, but the other – breach of fiduciary duty – was affirmed for the reasons noted in the post. Do you know if this would play out the same in PA?

TAKEAWAY: Condo and homeowner association Board members must know their obligations at all points in time, whether Declarant- or owner-controlled, and owners must know their rights. Contact a community association lawyer to help you.

The post on Thursday 8/6/20 taught us that a manager’s racial slurs establish employee’s sexual harassment claim. The employee, a black female born in the US Virgin Islands, sought damages from Auto Zone for discrimination and sexual harassment. First, some background. She had been terminated for improper use of a customer loyalty rewards card for her own use. After an internal investigation, she admitted that she left the register signed in for other employees to use. After discharge, she sued – the bases are in the post. After analyzing the standard of proof and shifting burdens for the disparate treatment claim (all of which is in the post), we saw how that connected to the facts f the case (as in the post). Then the analysis moved to the sexual harassment (hostile work environment) claim. It was found to be a viable claim based on the facts (as noted in the post – ugh).

TAKEAWAY: let’s say it again: train employees not to get you in hot water. Just do it.

The post on Friday 8/7/20 confirmed that the ADA’s “accommodation of last resort” remains a thorn in employers’ sides – but legal. Yes, we are talking about reassignment. The question often arises as to whether an individual with a disability who can’t perform the essential functions of a job is entitled to a transfer to a vacant position if there are other, more qualified candidates for the position. This is an issue because while the ADA mentions reassignment as a potential accommodation, it does not say whether the transfer is noncompetitive. Likewise, EEOC regulations also say nothing. However, EEOC Guidance leans toward noncompetitive – see the post and linked document. Courts are split on the issue – how they come out is listed in the post. We almost had a decision from the Supreme Court, but the case settled.

TAKEAWAY: Since there is nothing definitive on whether reassignment as an accommodation of last resort is noncompetitive, employers should consult an employer lawyer to advise as to ramifications of deciding either way.

Finally, in the post yesterday 8/8/20, we had a COVID-19 update: OSHA Guidance. We suggested that you know what you (may) need to do. The 2 Guidance documents became effective 5/26/20 and addressed how OSHA will respond to employee COVID-19 safety and health complaints and how an employer determines under what circumstances an employee who tests positive for COVID-19 is an occupational illness that must be reported. The first thing mentioned in the post is the timing of an OSHA response and on what that is based. Likewise, the post lists when the COVID-19 case must be logged. Also, one instance when ALL EMPLOYERS must report to OSHA is also noted in the post. Details on all of this are in the post.

TAKEAWAY: To lessen the chance of an employee complaint and subsequent inspection, follow applicable CDC Guidelines, OSHA Guidance, industry COVID-19 alerts, and applicable state and local workplace orders. Get legal help if necessary.

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