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.
The post on Sunday 1/12/2025 noted EEOC sues ChowCall for breaching conciliation (settlement) agreement. Don’t mess with the feds! The EEOC’s suit alleged that Value Unlimited, Inc., which does business as ChowCall, a food delivery service, violated the law by refusing to comply with the terms of a conciliation agreement. The EEOC alleged that Value Unlimited participated in conciliation in September 2022 and that they entered into a settlement resolving a disability discrimination charge. What the settlement involved – monetary and non-monetary – is in the post. The EEOC also alleged that Value Unlimited breached the agreement in two ways – they too are in the post. The EEOC filed suit in federal court in to enforce the settlement agreement and recover its costs for having to bring suit. So far Value Unlimited did not have a statement.
TAKEAWAY: settlements are a good way to resolve EEOC charges (if there is no valid defense), but then you must live up to the terms.
The post on Monday 1/13/2025 noted the US Supreme Court remands NLRB case, signaling potential changes to Chevron deference doctrine. This is so important for ALL employers. On December 16, 2024, SCOTUS vacated a D.C. Circuit Court opinion that upheld a decision by the National Labor Relations Board (“NLRB”) on the successor-bar doctrine (which is explained in the post). SCOTUS said it was remanding “for further consideration in light of” its Loper Bright decision. You may recall that Loper Bright overturned the 40-year-old Chevron doctrine (details of which are in the post) and now requires courts to apply their own construction of the law. But this remand might be broader than appears at first glance. While the D.C. Circuit has jurisdiction over all appeals of NLRB decisions, this remand may be just a foreshadowing of future, sweeping changes under the National Labor Relations Act (“NLRA” or “Act”). Why? See the post. Ok let’s go look at the background here.
In June 2022, a divided NLRB held that a Puerto Rico hospital violated the NLRA by withdrawing recognition from an incumbent union representing health care employees that it inherited after acquiring the hospital. The NLRB held that the hospital violated the successor-bar doctrine (on the basis noted in the post). The hospital then withdrew recognition from the union, which filed unfair labor practice charges with the NLRB. After an administrative law judge issued findings and conclusions, the NLRB majority held that the hospital violated the successor-bar doctrine (described in the post). The NLRB majority reasoned that the successor-bar doctrine, which came from a 2011 NLRB decision, was a permissible interpretation of the NLRA that struck a reasonable balance between the parties’ interests. The support for their decision is discussed in the post.
In contrast, dissenting former NLRB Member John Ring criticized that precedent and advocated returning to a 2002 NLRB decision (identified and described in the post). Ring’s dissent also opined that the successor-bar doctrine upheld by the NLRB majority was irreconcilable with the rationale of Supreme Court decisions (cited in the post with their context and why Ring believed they controlled).
Then in February 2024, the D.C. Circuit upheld the NLRB majority’s decision, also declining to overturn the successor-bar doctrine in the 2011 Board decision. The D.C. Circuit’s holding is discussed in the post (and included Chevron deference as specifically cited by one D.C. Circuit Judge in a concurring opinion (details of which are also in the post). That same judge noted that he took no position on how things might change if Chevron did not apply.
And now the case is back in front of the D.C. Circuit, but this time with no Chevron guardrails in place. Has the D.C. Circuit shown its hand in a decision it issued shortly after Loper Bright (discussed in the post)? Now, by this remand, the D.C. Circuit must revisit the issue. Will its conclusion stay the same or change? The lack of those Chevron guardrails might have many effects, some of which are identified in the post.
TAKEAWAY: the lack of Chevron deference may well change the world as it has been for appeals from administrative agency rulings – only time will tell. But make sure your employment lawyer can argue your case with and without Chevron.
The post on Tuesday 1/14/2025 noted that Lubin Logistics to pay $20K and provide remedial measures in EEOC disability discrimination lawsuit settlement. Yes, shadows of FedEx, because … Lubin operates as a small package delivery contractor for FedEx. The EEOC charged Lubin Logistics with firing a delivery driver because of his lupus (described a bit in the post and relevant to the background). About two weeks after being hired, the employee experienced a flare-up after being assigned to a delivery truck without a working door, working heating system, or functional passenger seat. The employee requested and received permission to return to the delivery terminal prior to the end of his shift because of his disability. Several days later, a Lubin supervisor told the employee that he could no longer work there because of his medical condition and fired him. The EEOC alleged that conduct violated the ADA and filed suit in federal court in Georgia (after conciliation failed). But now there IS a settlement. It requires Lubin to pay the $20K and take other non-monetary action as listed in the post (which action is fairly detailed).
TAKEAWAY: The ADA is there for a reason – employers have an obligation to accommodate those who can perform the essential functions of a job with or without accommodation. Get assistance from an employment lawyer during that process (or after EEOC charges are filed).
The post on Wednesday 1/15/2025 told us condo association sues couple for screaming, slamming doors, and more. Was it just bad neighbors or necessary enforcement? Well, if the claims filed by Imperial Royale at Boca Pointe Condominium Association are true, Murray and Margalit Felt are not the sort of neighbors you want. The Association has sued the Felts, claiming that their behavior and actions not only violate condo rules, but affect the way residents live their lives. The suit seeks financial damages and more – see the post. Let’s look more closely at the suit.
The association’s allegations include that constant and repeated outbursts of yelling in the hallway common element areas by Murray Felt caused great disruption to residents. And that the Felts constantly and repeatedly slammed their Unit door (which was in need of repair) with no effort to close it without disturbing others. Further, that the Felts had been doing a substantial remodel of their Unit before obtaining the necessary permits and the association made work stop until permits were in hand (more about this whole remodeling thing, which is somewhat key, is in the post). The association also alleged that there were various instances of abusive and improper comments by the Felts to the Board of Directors and management staff that rose to the level of harassment. And there was a litany of other allegations about the Felts’ behavior (some of which are in the post). The relief requested by the association in its suit is set forth verbatim (in several long paragraphs) in the post. As of when the post was published, the Felts had not filed their answer. (If you want to read the entire complaint, it’s embedded in the post.)
TAKEAWAY: It is rare that enforcement of condo or HOA rules and restrictions gets to this point, but it does happen. Everyone living in a community association must know what they or the association can or cannot do – contact a community association lawyer.
In the post on Thursday 1/16/2025, we learned woman finishes replacing stormwater pipe she plugged, causing neighborhood flooding. Yep, that ended up being a VERY expensive HOA dispute. Diane Goglas had plugged a stormwater pipe in her yard with concrete; that caused months of extensive neighborhood flooding. But she has now fixed the problem at a not insubstantial cost – see the post for the dollars. Much of this came out in a court hearing during which Goglas explained why she had hired a company to stop up the old pipe. The judge ordered Goglas to pay fees and costs too – see the post for the amount and the judge’s statement.
The stormwater pipe was at the center of a long dispute between Goglas and her neighborhood that consists of about 100 homes. She had long said the old stormwater line was broken and flooding her yard causing sinkholes and erosion, but the association was being no help. How that devolved is in the post (along with a bit of no-so funny humor about signs residents put up). The county could do nothing because the community roads and infrastructure are owned by the association. When Goglas did not fix the stormwater pipe by the end of July, the association went to court. The judge’s decision is in the post.
But that’s not all. There was another suit filed by residents about the pipe. What happened there is also in the post. Documents filed in that case show the total cost to Goglas so far (including attorneys’ fees, pump rental, and construction and installation costs for the new pipe). See the post for that total. Goglas’ statement is also in the post.
TAKEAWAY: An owner who does not like how the association is (or is not) acting cannot just take things into their own hands – because if they do it could come at a high cost.
The post on Friday 1/17/2025 asked: Who to WARN? Does the WARN Act apply to fully remote employees? Most employers who have gone through a large-scale layoff or closed a location will tell you that WARN is their most dreaded four-letter word. But now, with continuing (and in some sectors, increasing) post-COVID remote work arrangements, the question of who to WARN of mass layoffs or closures is even more daunting.
What the WARN Act requires is noted in the post. Usually an employer’s employment site is the location where the employee works. But what about employers with remote employees? That is not covered by the WARN Act (but might be by some similar state laws). How the WARN Act might relate to “mobile” employees is in the post. For those workers, the single site of employment is either (i) their home base, (ii) the place from which their work is assigned, or (iii) the place to which they report. But this doesn’t really seem to consider a remote fixed place of work (the workers’ homes). There is no definitive case law on this; the cases so far have offered conflicting decisions on the issue of WARN notice to remote employees. To hedge their bets, many employers have included remote workers along with those to whom it provides WARN notices.
But one employer recently took a different tack. On December 7, 2023, all of Zulily LLC’s employees were laid off in connection with its liquidation. There were about 300 Washington-based employees and about 550 Ohio-based employees. Some worked in offices in Ohio or Washington, others worked remotely from their homes. Only the in-office employees were provided with WARN notices. You will not find it surprising that litigation followed.
In May 2024, some Ohio-based remote workers sued in federal court in Ohio. Then, in September 2024, some Washington-based remote workers brought a similar suit in federal court in Washington. Both suits alleged that the remote workers were entitled to WARN notice (with the basis therefore in the post). Zulily moved to dismiss both complaints, arguing that the “mobile worker” exception to WARN’s single site of employment did not apply to fully remote workers (the basis for their argument is in the post). That motion remains pending.
TAKEAWAY: Nobody wants to be caught on the wrong side of legal – involve your employment lawyer when it comes to compliance with the WARN Act (or other statutes).
Finally, in the post yesterday 1/18/2025, we talked about dusting off and updating the ol’ employee handbook for 2025. Employers must ensure that their handbook (or policy manual) is in compliance with all applicable laws – and may want to also consider trends and best practices too. It is always a good idea to periodically review (and revise if necessary) those policies. Sand what better time than early in the new year?!
Here we look at a few things employers must consider, including remote work policies, anti-harassment practices, employee classifications under the Fair Labor Standards Act (FLSA), paid time off, pregnancy accommodations, and more.
While many employers are bringing some or all of their workforce back to the brick-and-mortar worksite, others still have fully remote or hybrid workers. As a result, and to cover ALL employees (on-site and off), some things a handbook should address include work hours and availability (including company-provided equipment and communications and more that is listed in the post), anti-harassment policies (including the definition of harassment, how to report harassment, and more that is in the post), proper classification of employees (i.e., exempt vs. non-exempt under the FLSA) to avoid the significant risks that accompany misclassification (which are in the post along with things to keep in mind when classifying employees and some steps for employers to take as part of the classification process), paid time off (PTO) policies (including any needed compliance with state or local statutes/ordinances, how it will accrue, and more as in the post), and other areas that are in the news now (for one think pregnancy-related!) as a result of EEOC and other agencies’ enforcement efforts and which are described in detail in the post.
TAKEAWAY: One, two, three: go and review your handbook for legal compliance. Put in place employment agreements where appropriate. Or, better yet, have your employment lawyer do these things.
York, Pennsylvania 17403