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.
The post on Sunday 7/23/2023 told us Disney accused in lawsuit of “systematically” paying women less than men. The suit alleges that female employees in CA earned $150M less than male counterparts in an 8-year period. The latest filing seeks class-action status for about 12,500 current and former full-time female employees in certain positions (listed in the post). The pay disparity is alleged to have been 2%. Disney disputes the allegations. The suit was originally filed in 2019 after LaRonda Rasmussen found out that 6 men with the same job title earned substantially more than did she (including a recent hire described in the post). Nine other current or former employees thereafter joined the suit. The statutes at issue are noted in the post.
TAKEAWAY: Pay workers doing the same job the same wage. Easy peasy.
The post on Monday 7/24/2023 showed us that a flight attendant must delay cancer treatment until American Airlines approves FMLA leave. Sounds sad and wrong, but let’s take a closer look. Jace is a Philadelphia-based flight attendant who was diagnosed with testicular cancer less than a year after starting the job. Despite his doctor wanting him to immediately undergo surgery and chemotherapy, he thought that doing so (which would mean not working during that time) could mean losing his job. Jace shared his diagnosis with his manager who said that Jace did not qualify for FMLA leave at that time. Why not? See the post. So Jace took a leave of absence due to an operation. Based on how American Airlines’ attendance system works (see the post), he received attendance points. What contact did he have from the airline’s management while out for surgery? Yep, see the post. Even though he had the surgery, Jace could not take the time off to undergo chemo until he qualified for FMLA leave. How does this affect Jace? See the post.
TAKEAWAY: FMLA leave is statutorily guaranteed if the conditions/criteria in the law are met. But employers can voluntarily allow various types of paid or unpaid leave even if the person does not qualify for FMLA leave.
The post on Tuesday 7/25/2023 told us DOL clarifies how holidays impact partial weeks taken under FMLA. The opinion letter was released May 30th. It clarified that whether the holiday time counts against FMLA depends on two factors: Whether the employee took a partial week off under the FMLA and the other one noted in the post. You (should) know that the employee’s regular schedule, or work week, is the basis of the leave entitlement under the FMLA. So if an employee typically works a 40-hour week, they are eligible for twelve (12) 40-hour weeks of FMLA leave (or 480 hours). The calculation for someone working a 30-hour week is in the post. The opinion letter comes is in when an employee takes a full work week of FMLA leave and a holiday occurs during that work week. The question is whether even the holiday day is to be counted as FMLA leave (the answer is in the post). Likewise, the opinion letter answers the question of whether a holiday occurring during a week in which the employee has taken less than the entire week as FMLA leave is considered FMLA leave (and again the answer is in the post). DOL’s justification for its answer is also in the post.
TAKEAWAY: Know how to properly calculate FMLA leave. Period.
The post on Wednesday 7/26/2023 told us woman says HOA may take her home if she doesn’t pay more than $4,700. Charlie Cromartie admitted to owing some HOA dues in January. She said it was $132, but suddenly the amount has grown to more than $4,700. What is the basis of the amount due? See the post. Cromartie said she refused to pay and has been going back and forth with the HOA for months. But now the HOA has put a lien on her property. Cromartie’s deadline to pay is noted in the post and if she does not, the HOA may foreclose on her house. The HOA’s management team said it won’t discuss Cromartie’s account for privacy reasons. Applicable state law (which has tight time frames) is described in the post.
TAKEAWAY: Disagreeing with an amount due or a policy does not mean an owner can refuse to pay in an HOA or condo – consult a community association lawyer for assistance.
In the post on Thursday 7/27/2023 we saw an owner of property management company accused of stealing nearly $600K from HOA. She has been arrested on embezzlement charges. Investigators allege that Tammi Morrison stole nearly $600,000 of the HOA’s money in the short time she was in charge. What police said she used the HOA money for is in the post. Not surprisingly, homeowners say they feel duped. Morrison runs Morrison Management LLC, a property management company for several HOAs. In 2021 she took over managing the finances for Mt. Greenwood and The Vineyards at Mt. Greenwood HOA. Then things changed in August 2022 – see the post. Morrison was arrested in June and charged with grand theft. She is out of jail after posting $15,000.
TAKEAWAY: Most management agents are honest, but your association should have in place safeguards and insurance just in case.
The post on Friday 7/28/2023 explained that workplace reverse discrimination claims likely to surge in wake of Supreme Court ruling. Companies should brace for a surge in reverse-discrimination claims as corporate DEI programs face height-ened scrutiny in the wake of the late-June Supreme Court ruling ending race-based college admissions policies (see our post from 7/17/2023). Though the ruling only applies to the education sector, it is predicted to embolden critics of companies’ increasingly aggres-sive programs to bolster workplace diversity. What do many companies say they will do? See the post.
Federal law prohibits employers from considering race and other protected characteristics in making employment decisions. With the affirmative action ruling under their belt, it is expected that critics will turn their attention to challenging private employer DEI programs under workplace anti-discrimination laws, such as Title VII of the Civil Rights Act. Hence the possible surge in reverse discrimination claims. Those types of claims have been waning (see the statistics in the post), but a headline-grabbing reverse-discrimination lawsuit filed in 2019 by former Starbucks regional manager Shannon Phillips, who is white, alleged she was fired as a “scape-goat” after police were called to remove two Black men from a Philadelphia store. See our post from 7/8/2023 for more on that including the June jury award.
Another big score a reverse-discrimination case was by David Duvall, a former senior VP of hospital network Novant Health – his 2021 award is noted in the post. Duvall alleged he was fired without notice—despite strong performance reviews—as part of Novant’s efforts to promote diversity in its management ranks. By whom he was replaced and other employment changes by Novant is all in the post. Interestingly, in court Novant argued that Duvall underperformed (though he’d hit some targets) and did not exhibit leadership potential.
So what should employers do now? Review their practices and eliminate potentially discriminatory behavior. Otherwise they might face a suit like the one filed against Starbucks’ then-CEO, Howard Schultz, and other officers and directors that is detailed in the post. Starbucks is seeking dismissal of the suit on multiple grounds (including that mentioned in the post).
Even the EEOC is “getting into the act”: on the one hand, a quote from an EEOC commissioner from an interview with Fox News is in the post along with a warning about how employers should NOT use race going forward. In contrast, EEOC Chair Charlotte Burrows, opined that DEI programs for employers are legal for the purpose(s) noted in the post.
TAKEAWAY: If you don’t take race into account in any hiring disciplinary or termination decisions, then you may not need to worry about this, but it’s still best to review your policies and procedures with an employment lawyer.
Finally, in the post yesterday 7/29/2023, we saw that employee can’t show firing was because of her gender. Discrimination claims are reviewed under a three-step analysis under which the third step is often the key. For the first step in their prima facie case, which is usually pretty easy to meet, a plaintiff must show: (1) they are in a protected class (such as those mentioned in the post), (2) satisfactory job performance; and (3) adverse employment action. What the employer then must show in the second step is described in the post. Assuming the employer does that, things shift back to the employee plaintiff for the third step: pretext. The employee must essentially rebut the second step and show it was a pretext for discrimination based on the employee’s protected characteristic. Examples of how to prove pretext are in the post. Often they can’t make the showing. A recent federal appellate case serves as a good reminder.
Chandra Balderson was terminated by Lincare, Inc., a provider of in-home respiratory care, despite being one of the most productive sales reps. Balderson was terminate for violating Lincare’s legal compliance program and code of conduct. What Balderson’s job was, and her violation, are described in the post. Balderson claimed the reason for her termination was pretextual because a male employee had engaged in similar conduct and received only a final written warning. The trial judge found that the employer’s explanation not credible and awarded Balderson $30,141 in back pay and $120,000 in punitive damages. Of import is that Balderson admitted her misconduct and the policy violation along with other items noted in the post. But she still argued that the only reason for the different discipline to the male employee was because he was a man and she was a woman.
On appeal the court pointed to some distinguishing facts (see the post) in finding the male’s acts did not rise to the magnitude of Balderson’s misconduct. The appeals court stated that Balderson must prove intentional discrimination and then found that the employer’s proffered reason for the termination could be false, but that such falsity alone would not necessarily result in a finding of pretext. The appellate court found that while Balderson may have shown that her termination was “unwise or even unfair,” she failed to demonstrate that her termination was due to her sex – and that she testified that her sex was never an issue during her employment or her termina-tion. More facts the appellate court pointed to that worked against Balderson are noted in the post. As a result the appeals court found that Balderson simply did not prove intentional discrimination based on her sex.
TAKEAWAY: The ultimate issue in every discrimination charge or suit is whether the plaintiff has evidence of intentional discrimination. Contact an employment lawyer to ensure that your position is heard.
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