Coded age-related comments; denying remote work as an accommodation; owner responsibility for overdue condo/HOA assessments; and more in Our Social Media Posts this Week, May 7 – 13, 2023.

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 5/7/2023 asked: ‘When are you going to retire?’: Coded comments drive EEOC age bias lawsuits. The EEOC filed 2 suits on the same day. ON March 31, it sued Exact Science Laboratories LLC, a company that manufactures Cologuard colon cancer screening test kits. The EEOC alleges that Exact did not hire a candidate as a medical sales rep – despite him being qualified – because the company wanted “more junior” applicants. What did the company say and do? See the post. And the other suit filed that same day? The EEOC says that J&M Industries Inc. fired a 65-year old employee when she turned 65 and would not retire. Prior to that, the company had made multiple age-related comments to her including those in the post. And of course the company did not admit  it fired her due to age, but the reason it gave is also in the post. The position was filed by a man in his 30s only weeks after she was fired.

TAKEAWAY: Age is not a basis upon which an employer can discriminate against employees. Period.

The post on Monday 5/8/2023 told us the EEOC says Walmart violated the ADA by firing an employee for epilepsy-related absences. Say it ain’t so … A manager worked at a store in NC. About 18 months prior to being fired, he started suffering epileptic seizures. He needed medial attention and became unable to work for limited periods of time. He requested 2 accommodations noted in the post. Walmart did not grant the requests but instead demoted him. He then was late or missed work 14 times between Feb – Jul 2018 and was fired for violating the attendance policy. Yep, the absences/tardies were related to his medical condition. Walmart’s response? See the post.

TAKEAWAY: Employers must know their obligations under the ADA – and not just shirk them by discharging the subject employee. That only makes things worse.

The post on Tuesday 5/9/2023 showed us a payments processing company illegally denied remote work as a disability accommodation. Total Systems Services LLC became the defendant in a federal suit filed by the EEOC in late March based on alleged violations of the ADA and Title I of the Civil Rights Act. So what happened? An employee had diabetes, hypertension and anxiety, all of which put her at a higher risk of serious complications or death if she contracted COVID-19. In May 2020 she requested to work remotely as an accommodation after several coworkers tested positive. She explained how she could work remotely – see the post. The company nevertheless denied the requested accommodation. After that, she applied for, and received, short-term disability leave and then FMLA leave. During that time she continued to request remote work as an accommodation. In June the company explained why it could not grant the request at that time – see the post. When she returned in August, the company still did not allow her to work remotely – 1 in fewer than 10 who were denied that accommodation. She resigned. This case is similar to one from 2021 that is described in the post – and which did not turn out well for that employer. However, here the company did not only deny the reasonable accommodation, it went farther (see above and in the post).

TAKEAWAY: We said it above and will again: employers must know their obligations under the ADA’s reasonable accommodation process. An employment lawyer can be of assistance.

The post on Wednesday 5/10/2023 noted couples owning a single unit cannot serve on the board together (in a condo or HOA). Or can they? In the post there was an almost-100 home association in which the elected secretary’s husband wants to be appointed to a board vacancy. Whether or not this is permissible depends on both applicable state law and the association’s governing documents. One example of how that might play out is in the post.

        TAKEAWAY: Know what your association’s governing documents and applicable law provide for various legal issues – consult a community association lawyer.

In the post on Thursday 5/11/2023 we saw an Association sues new condo owner for nearly $200,000. More and more people live in condo and homeowner associations all the time – it is imperative that they know the ramifications of unpaid assessments. Likewise, the Board must know too as those charged with enforcement. Here a corporate entity purchased a condo in January for $58,000 (a steal, or so it must have thought). Then the association contacted the new owner to pay the several years of unpaid dues and fees totaling just under $200,000. Not a typo.  When unpaid, the association filed suit in late April. There is a link to the suit in the post. The damage amount is broken down into components and will only increase with accruing interest (and possibly attorney’s fees).

TAKEAWAY: Know the law on unpaid assessments in a condo/homeowners’ association – get advice from a community association lawyer.

The post on Friday 5/12/2023 told us Heartfelt Home Healthcare Services settles pregnancy discrimination lawsuit with EEOC. Heartfelt is based in Erie, PA, so this is (close to) home for many of you. The EEOC alleges that over and over the president and VP told a pregnant worker with hypertension that she was a “liability to the company” due to her condition. She needed medical care due to her condition but was then released to return to work with no restrictions. And what did heartfelt then do? See the post (but we think you can guess). After conciliation failed, the EEOC filed suit in federal court in Pennsylvania. Now that suit has settled by heartfelt paying monetary damages (the amount is in the post) and agreeing o other non-monetary relief (as listed in the post).

TAKEAWAY: Do not discriminate against pregnant workers – and keep in mind that the Pregnant Workers Fairness Act is effective June 27, so discuss your obligations with an employment lawyer.

Finally, in the post yesterday 5/13/2023, we saw that the former Bed Bath & Beyond CEO sues over unpaid severance. Mark Tritton started at BB&B in November 2019 after having led Target. He had an employment agreement with BB&B, some of the terms of which are in the post. Then they agreed on a severance package (how that was calculated is also in the post) and the company began making payments to him. Tritton alleges that the company stopped paying his $6.76 Million (!) severance in January; he sued in early April. The agreement called for bi-monthly payments. Whether or not the company has a defense is yet to be seen, but its chief legal officer apparently did comment (see the post). NOTE: BB&B has now filed for bankruptcy, such that Tritton may not see much more of that severance anyway.

TAKEAWAY: Regardless of the dollars attached, employers must still abide by contractual obligations in employment matters. Get legal advice if needed.

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