Below is a review of the posts on Facebook and LinkedIn from the past week. You can check out the full posts by clicking on the links.
NOTE: there is continued instability and fluctuation with the (attempted) changes in federal labor and employment law resulting from executive orders (EOs) and court decisions, so check with us or another employment lawyer before taking any action based on something in our posts.
The post on Sunday 5/25/2025 told us President nominates Assistant US Attorney to serve as EEOC Commissioner. Normally you’d think this is a good thing, right? But these are not normal times … The nomination will both solve some, and possibly create other, problems.
President Trump nominated Brittany Panuccio, currently an assistant U.S. attorney in the Southern District of Florida, to serve as a commissioner. If confirmed, Panuccio would give the EEOC a quorum, which it has lacked since the president fired 2 sitting Democratic commissioners in January 2025 (which has been the subject of MANY posts including Sun. 4/20/2025, Fri. 4/11/2025 and Mon. 4/7/2025). If confirmed, it will give the EEOC the ability to move forward with implementing policy changes, issuing new guidance, and rescinding other guidance. What the Acting Chair, Andrea Lucas, has planned has been the subject of many posts too.
Once the EEOC has a quorum, it will be able to engage in rulemaking, policymaking, and issuing (and, in some instances, rescinding) official guidance that advances the administration’s agenda. But the EEOC currently has only two commissioners, one less than needed for a quorum. The statutory requirements relative to the Commission’s makeup are in the post. Given that, the president will still be able to nominate another Republican to serve as a commissioner.
The same statute, Title VII sets quorum requirements (see the post) and demands that for there to be a quorum at the agency, there must be three active commissioners. Panuccio’s confirmation would meet quorum. And, based on statements by Acting Chair Lucas and other informal guidance, it can reasonably be anticipated that once the EEOC has a quorum, it will make certain types of charges, litigation, and other policy matters a priority including:
- focusing on investigating and litigating with an expanded definition of what constitutes an adverse action when considering employer diversity, equity, and inclusion (DEI) programs (e.g., where a DEI program results in one protected class failing to receive the same or similar mentorship or feeling ostracized or discriminated against because of such programs);
- eliminating systemic investigation and litigation of otherwise neutral employer policies that may have a disparate impact on a protected class;
and the other things listed and described in the post.
The lack of a quorum has prevented the EEOC from many things, including investigating charges consistent with Acting Chair Lucas’s perspective concerning various active agency guidance (several of which she condemned in public statements), enforcing administrative subpoenas (due to a 2024 delegation of authority), and more as detailed in the post. Expect things from the prior administration to be rescinded.
Perhaps more importantly, the lack of a quorum has prevented the EEOC from engaging in rulemaking, policymaking, and issuing (and, in some instances, rescinding) official guidance that furthers the current administration’s agenda. Some would consider this a positive, in that nothing has been done to change what has been in place for years (and on which employers have been able to rely). Others would have a different view as noted in the post.
If Panuccio is confirmed, employers should expect the EEOC to begin working on rescinding guidance and policies that run afoul of the current administration’s agenda, adopting updated guidance and policies, and proposing new and updated regulations. And that might not be all – see the post.
You may say, well, the EEOC has no authority to overturn case law, so why do I care? The answer is that you care because the EEOC can become a burden on employers’ resources during investigations of charges of discrimination. How to lessen that burden is in the post.
TAKEAWAY: Employers must keep up with politics to know where the employment law winds are blowing – and what they must do to remain protected from windstorms. Have an employment lawyer on speed dial
The posts on Monday 5/26/2025, here and here, were short: it was Memorial Day 2025. We suggested that you remember those who worked so hard for what we have.
TAKEAWAY: Don’t make their sacrifices for naught.
The post on Tuesday 5/27/2025 gave us HOA Q&A: Are the ledgers of our association subject to privacy concerns? Do you know what Pennsylvania law provides? How about your association’s governing documents?
The question was from someone who lives in a condominium association. One of the owners requested to see the ledgers for two homes believed to be delinquent in the payment of assessments. The Board cited privacy concerns and refused to provide access to the ledgers. The owner questioned if the Board’s position was correct.
Well, it depends. First, on where (in what state) the association is located. Because that, of course, will affect what statutory provisions may come into play. For example, the Florida Statutes provide that the ledgers are official records of the association and which official records are confidential and not subject to unit owner inspection. So if owners’ ledgers are on that list (see the post), the Board would be correct. The owner who requested access to the ledgers can always as the Board on which statute they relied for the denial of access. If there is no basis for denial, then there are some possible remedies, including those noted in the post (which have similar alternatives in other states).
TAKEAWAY: State laws as well as the governing documents have bearing on what records owners can examine. Talk to a community association lawyer with your specific question.
The post on Wednesday 5/28/2025 alerted that the US Supreme Court lets Trump administration keep MSPB and NLRB members sidelined. This only happened 5/22/2025 … The decision allowed Trump’s firing of two Democratic members of federal labor boards to remain in effect while their legal challenges proceed in a dispute that tests his power over independent government agencies. The latest whipsaw …
The court temporarily blocked orders by two separate federal judges that had shielded Cathy Harris from being dismissed from the Merit Systems Protection Board (MSPB) and Gwynne Wilcox from being removed from the National Labor Relations Board (NLRB) before their terms expire. Both were appointed by Trump’s Democratic predecessor, former President Joe Biden.
In a brief, unsigned opinion, the court said that the May 22 action “reflects our judgment that the government is likely to show that both the NLRB and MSPB exercise considerable executive power. Because the Constitution vests the executive power in the president, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents. The court has a 6-3 conservative majority. Not surprisingly, the three liberal justices dissented from the order.
But because concerns have arisen in Washington that empowering Trump to oust Harris and Wilcox could imperil the Federal Reserve’s independence, the Court also sought to allay those concerns. What the Court’s majority said is in the post. How/why the concerns, and need to assuage them, arose is also in the post.
You will recall from our prior posts on this (some of which are Sun. 4/13/2025, Fri. 4/11/2025 and Mon. 4/7/2025) that the legal fight over the firings of Harris and Wilcox has become an important test of Trump’s efforts to bring under his sway federal agencies meant by Congress to be independent from a president’s direct control. Wilcox’s lawyer issued a statement about this latest order; it is in the post.
Part of the history of these cases is that on April 9th Chief Justice John Roberts temporarily halted the judicial orders blocking Trump’s firing of the two. The MSPB and NLRB thereafter confirmed that Harris and Wilcox were no longer in their posts.
Two U.S. District Judges issued separate rulings upholding federal laws protecting officials serving in these posts from being fired without cause, thereby rejecting Trump’s argument that the measures passed by Congress encroach on authority granted to the president under the U.S. Constitution. More detail on the judge’s rulings are in the post. They rest on 1935 Supreme Court precedent in a case called Humphrey’s Executor v. United States.
In response to the court’s most recent order, Justice Elena Kagan wrote a dissent saying the May 22 order was “nothing short of extraordinary” and that the court’s majority had allowed Trump to “overrule Humphrey’s by fiat” while the legal challenges proceed. Kagan’s dissent was joined by fellow Justices Sonia Sotomayor and Ketanji Brown Jackson. More of what the dissent said is in the post.
In 2022 President Biden appointed Harris to a seven-year term. Trump moved to fire her in February after naming Henry Kerner, a Republican, as acting MSPB chair.
Similarly, in 2023 Biden named Wilcox, the first Black woman on the NLRB, to a second five-year term. Trump moved to fire her in January. Without Wilcox, the board lacks a quorum.
TAKEAWAY: The puzzle pieces keep moving … and employers need to be aware of the location because there is a ripple effect on rights and obligations dealt with by the MSPB and NLRB. Stay tuned.
In the post on Thursday 5/29/2025, we learned actress-model’s Title VII harassment claims against resort fail (but other claims remains). She was hired by the resort for assorted services; now she’s been told that she cannot bring Title VII claims against the resort owners for alleged sexual harassment by its primary executive. Let’s go deeper …
Defendant Preserve at Boulder Hills (“Preserve”) developed the Preserve Sporting Club & Residences resort. Preserve hired the model, actress and social media personality to appear in commercials, social media videos and print ads for the resort and also to handle various promotional and logistic tasks at special events on the property. She claims in her federal court suit that the Preserve’s key principal repeatedly subjected her to sexual advances and ore (as noted in the post). She alleges that is a violation of Title VII of the federal Civil Rights Act.
In response, the Preserve argued that because she was a contractor and not an employee, Title VII employer liability did not attach. The judge agreed – see the post for the reasoning.
But the judge also found sufficient allegations for both quid pro quo and hostile work environment sexual harassment to allow those claims under state law to proceed. As part of that ruing the judge dealt with procedural arguments b the Preserve – again see the post.
TAKEAWAY: Just because action is adverse does not always mean there is a legal remedy for it. Certain statutes require a specific relationship or criteria before they apply. Let an employment lawyer answer your questions.
The post on Friday 5/30/2025 taught us about HOA pool safety: debate over eliminating lifeguards. Yep, it’s that time of year now. And some communities are considering eliminating the lifeguard at their pool for financial reasons. In New Jersey for example, there was a recent change to the state’s public recreational bathing code and the portions addressing the duties of lifeguards. The new requirements are detailed in the post.
A qualified common-interest community (such as a condominium or HOA) may exempt itself from the requirements, but it is all or nothing. See the post for what that means in real life.
You probably know the safety benefits of having a lifeguard, but have you thought about the other financial and liability considerations? See the example detailed in the post.
Under the revised NJ law, if a qualified common-interest community decides to eliminate the lifeguard, it must take steps set forth in the law, including posting the sign with all of the language in the law. See the post for more details.
We all know that having lifeguards can be expensive and they seem to be hard to find, especially with what seems to be a current shortage (at least on the East Coast). Because of that, some HOAs are looking at ways to eliminate lifeguards without the liability. These associations have private pools. They can adopt a “swim-at-your-own-risk” policy. They should also put in place certain procedures and safeguards including Rules and Regulations for the now-unattended pool. Those Rules should include things similar to what is in the post (both as to public posting and procedures to follow). One of the most important things is what is listed last: openly communicate the policy and any other pool rules with residents.
TAKEAWAY: Pools are an enjoyable amenity in many condo and homeowner associations, but they come with much liability and decisions for the Board, including whether or not to have a lifeguard. Do it right, do it legal, do it to keep risk of liability to a minimum – have a community association lawyer on the decision-making team.
Finally, in the post yesterday 5/31/2025, we saw that EEOC sues Marriott Vacations and Marriott Ownership Resorts for religious discrimination. Those entities sell vacation timeshare programs for hotels and vacation clubs. The EEOC alleges that they violated federal law in a recently-filed lawsuit.
The suit alleges that management initially allowed an employee who is a Seventh-Day Adventist a religious accommodation that allowed her to avoid Saturday shifts. But then there was a change in management and they began scheduling her for Saturday shifts. She made repeated complaints. Then the companies changed her schedule (which impacted her as noted in the post) and continued to schedule her for Saturdays, leaving her to choose whether to go to work or honor her religious practice. Her choice? See the post. The EEOC alleges this is a violation of Title VII and filed suit in federal court in Florida after conciliation failed.
A statement by EEOC Acting Chair Andrea Lucas is in the post (and is interesting given some other statements issued by her since her appointment). The EEOC’s Regional Attorney also issued a statement, bringing home the basis of its suit. That too is in the post.
TAKEAWAY: Employers have a legal obligation to accommodate sincerely held religious beliefs unless it would be an undue hardship. Providing accommodation and then withdrawing it can be a hard thing to overcome. Talk to an employment lawyer about accommodation obligations