In the post on Sunday 5/31/20, we saw that law firm Covington & Burling defeats suit by guard who scuffled with boss. Carlos, an African American, began work as a security officer with the firm in May 2017. In December, he complained to HR that his Caucasian supervisor harassed, intimidated, and threatened to fire him because of his race. In March 2018, another manager told him what co-workers were saying – see the post. Ten days later, he and his supervisor had a confrontation. A brief summary of what happened during the altercation (verbal and physical) is also in the post. The firm fired them both and Carlos sued for retaliation and wrongful termination. Last month a judge ruled against Carlos on both claims. The judge first noted that to prove retaliation, Carlos needed to show that the termination was a result of his prior complaints about the supervisor. He then delved into additional facts and how they play out with applicable law on both claims – see the post.
TAKEAWAY: Not all adverse actions are actionable – but make sure there is a valid, legal basis before taking adverse action against an employee in case you need to defend yourself later.
The post on Monday 6/1/20 was about how not to reopen your business after coronavirus shelter-in-place orders are lifted. Many of the directives and orders to be followed tell an employer to develop a plan, but do not provide such a plan. Employers must therefor make their own plans. So, what are some of the things you should NOT do as part of reopening your business? First, don’t automatically move to take temperatures. Why? You have to pay people as they wait in line, you have to keep the information confidential, and you have to keep them safe while in line. See the post for more on taking temperatures. Next, don’t assume that it will be easy to enforce social distancing when the workplace reopens. Offices, cubicles and desks may be easy to keep 6’ apart, but what about bathrooms, break rooms and other common spaces noted in the post? Think about it. Three other things to consider before reopening are also in the post.
TAKEAWAY: Create your reopening plan before reopening. Make sure it complies with all applicable directives/orders and is feasible in your circumstances. Get legal assistance too.
The post on Tuesday 6/2/20 told us a neighbor said, “‘I was actually very shocked” when neighborhood battled over blue Christmas lights honoring medical workers. Most planned communities have rules about how long holiday decorations and lights can be kept up after the holiday. Here, an owner kept out blue lights to thank healthcare professionals fighting COVID. The Association, trying to enforce its rules, asked that they be removed or he would be fined. How he responded to the Association, and his admission, are in the post. What would your Association do?
TAKEAWAY: The Declaration, Bylaws and Rules/Regulations are there for everyone to follow; only the Board, in certain circumstances, can permit deviation, otherwise it must enforce the restrictions. Know your rights and obligations when living in a planned community (condo or homeowner) and get legal assistance if you have questions.
The post on Wednesday 6/3/20 told us that DOE will pay more than #$1.1M to settle principal discrimination suit. So, what’s the background of this hefty price tag? First, it’s not a suit BY the high school principal, Minerva Zanca, but rather ABOUT her. Three teachers and an assistant principal say that she began the racial discrimination by attempting to get 2 of the untenured African American teachers fired (the basis is in the post). The assistant principal did not go along and Zanca then accused him of sabotage and had security remove him from the school. What she did to the third teacher is also noted in the post, along with her comments to the assistant principal. The behavior was brought to the attend of the DOE’s Superintendent; what he did after the EEOC found probable cause is in the post. At some point, the suit settled.
TAKEAWAY: Train employees how to act and what they can and cannot say, enforce the training, and contact an employment lawyer to assist.
In the post on Thursday 6/4/20 we saw that a PA company fired only female workers over their pregnancies, lawsuit claims. Aarcon Enterprises is a site development company. Kerri and Ashley were employed for several years and were considered good employees. At a meeting with the company president, they both announced their pregnancies. How the president responded is in the post. More on their conversation is also in the post. A mere four days later, another employee met with Kerry and Ashley separately; he laid them off, providing the reason noted in the post. That left the company with no female employees. Until the company re-hired the former office manager and the president’s wife (who were not pregnant). Kerri and Ashley sued under the Pregnancy Discrimination Act (part of Title VII). Examples of other PDA suits are noted in the post.
TAKEAWAY: Do what the law requires: treat pregnant employees the same as other employees, be it with regular work conditions or a requested accommodation.
The post on Friday 6/5/20 taught that a federal court addresses performance issues during FMLA leave. This is not an easy area for employers. Often an employer discovers a performance issue while an employee is out on FMLA leave and then must decide what, if anything, to do. Here, in December 2009, the School District hired Rita as an HR benefits coordinator; she was promoted in 2014. A new HR Director was hired in early 2015. There was an issue about Rita’s 2017 evaluation; see the post. In late 2017, Rita notified the District of her need for FMLA leave. During the leave, her boss sent her a letter discussing performance issues – the post describes all of them (and they are many). The letter also told Rita she would have a chance to respond upon her return to work. What happened after that is in the post. Rita returned in early April. She was put on leave for an investigation into the performance issues, then terminated. Rita sued for FMLA retaliation and other claims. The District asked for summary judgment. The court analyzed the facts and how they played into the District’s alleged nonretaliatory reason for the discharge – all of that is in the post – and denied summary judgment.
TAKEAWAY: Know what can or cannot be done during leaves and what will help or hurt you when trying to defend an adverse action against an employee. Yes, get legal assistance.
Finally, in the post yesterday 6/6/20, we were back to the theme of late and saw that ADA expert say shoppers with disabilities are required to wear a mask. While most parts of the country have reopened, with or without mask requirements, many stores do have requirements that shoppers wear face coverings. Shoppers don’t like that and social media is afire with claims about ADA and constitutional violations. Our prior post addressed that aspect. But the shoppers are just plain wrong. How and why is discussed in the post – and is important to you as a consumer and business owner.
TAKEAWAY: Know the law – especially as applies in this COVID environment – and do things the right way, with the assistance of an employment lawyer.