Discharge based on socmedia posts, employment issues in bankruptcy, ADA accommodation during COVID, bids for HOA/condo associations, and more in Our Social Media Posts This Week, Mar. 28 – Apr. 3, 2021.

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.

Socmedia posts: easy to do, harder to justify in some employment contexts. image by freestocks.org.

In the post on Sunday 3/28/21 we learned that that the Third Circuit affirmed the employer’s right to fire for social media posts. Yes, important for all to know and understand. This decision just came out in early March. The plaintiff in the suit was a senior control analyst for BNY Mellon. She posted a comment on a news article on Facebook; what the article was about and her comment are in the post. BNY Mellon fired her when it discovered her post; she sued, alleging race discrimination under Title VII. The trial (district) court granted summary judgment for BNY Mellon. She appealed and tried to get a reversal based on comparator information. How the appeals court analyzed that information is in the post. She also argued that a violation of BNY Mellon’s social media policy was a violation; the court’s analysis of that argument – and a good tip for employers on policy wording — is also in the post. In the end, the discharge was upheld.

TAKEAWAY: Know your footing before taking adverse action against an employee based on socmedia activity; the result might be a charge or suit against you under the NLRA (yes, some portions apply to ALL employers) or Title VII. Consult an employment lawyer.

bakery sued for lgbtq discrimination

The post on Monday 3/29/21 was about a bakery sued for alleged LGBTQ discrimination. Two suits were filed against the bakery in federal court; both alleged discrimination against and harassment of LGBTQ employees. Gilbert Johnson, a gay man, and Katherine Phillips, a lesbian woman, claim wrongful termination based on sexual orientation, a violation of Title VII. They were fired one day apart. Johnson was a GM. His allegations include what happened after something from his supervisor’s husband – see the post. He also alleges that when he hired a transgender woman, his job duties changed – see the post. Then when Johnson and Phillips advocated for the trans employee and other LGBTQ colleagues, they were subjected to offensive remarks, including those noted in the post. Phillips has additional allegations as to how her upward mobility was impacted. Phillips was soon fired, then Johnson the next day. And the transgender employee Johnson had hired? See the post. The employer refused to try the case in the media.

TAKEAWAY: Make sure you are on strong legal footing before taking adverse action against someone in a protected class.

employment issues in bankruptcy – part 2

The post on Tuesday 3/30/21 was about the Top 10 labor and employment issues in bankruptcy, part 2 (the post on March 14, 2021 contains part 1.) So, #6: (back) wages, something near and dear to us all. Employees are entitled to priority classification for wages owed but unpaid within a certain period prior to the bankruptcy filing and for wages earned but not paid after the bankruptcy filing– see the post for details. Next, COBRA and group health plans. The law applies, but there is sometimes a bankruptcy overlay depending on the chapter of bankruptcy involved and whether or not special rules come in to play. The post talks of all of that in general. Other issues to consider are pension liability and 2 more discussed in the post. These all affect just about every employee when a bankruptcy is filed by the employer.

TAKEAWAY: The company filing for bankruptcy protection will sue a well-versed bankruptcy attorney; employees too should retain bankruptcy counsel if they are owed wages or to ensure they know their rights after the bankruptcy filing and that the employer fulfills its obligations.

compliance with ada accommodatioN requests
amid covid-19

From the post on Wednesday 3/31/21 we learned about complying with ADA accommodation requests amid COVID-19: what you need to know. The post was written as specifically pertaining to the retail sector, but has applicability to all workplaces and work sectors, but especially those with employees who cannot operate with employees working from home. So how do you get those employees to come to work with COVID still raging? First, you have to know if the person is just scared or has a legal disability under the ADA (which may entitle the person to accommodation).  Some preexisting conditions may be worsened by the pandemic and thus are entitled to a reasonable accommodation. The post lists a few examples recognized by the EEOC. ON the other hand, if the employee believes that the work environment is not safe for return, then OSHA might be implicated and the employee might be protected against adverse action. In the former situation, a disabled person may be entitled to accommodations including those noted in the post as examples. Keep in mind that it can be difficult to prove that a requested accommodation is an undue burden, so you may need to provide that (or another) accommodation or be subject to suit. Also make sure you know how age and increased risk of COVID-19 effects are dealt with in the ADA accommodation context.  

TAKEAWAY: Have a hotline to a good employment lawyer so that you can get counsel before stepping on a legal land mine.

tips to better run an homeowners’
or condo association

In the post on Thursday 4/1/21 we read 7 tips to better run an homeowners’ or condo association (and noted these are good for owners and Board members). State law provides some requirements for homeowner and condo associations; so do the Governing Documents (Declaration/Covenants/Restrictions, Bylaws and Rules/Regulations). But what else do you need to know that will help with Association operations? These tips. First, prepare ahead f time. Not just for meetings, but for anything. Next,  know your Governing Documents – and follow them. They are more than ink on paper. Third, improve communications. Transparency. Some things and times this is especially important, and how to accomplish it, are noted I the post.  Other tips, including how to get people to attend meetings, are also covered in the post.

TAKEAWAY: These tips are important; so is having a community association lawyer on call to answer questions, aid with compliance, and generally keep the Association in the legal lane.

must lowest bidder by hired by hoa/condo association?

The post on Friday 4/2/21 noted the lowest bidder need not be hired –  correct for Pennsylvania homeowner or condo associations? The question is whether an association must bid road repaving and then hire the lowest bidder. FL law has some relevant provisions (noted in the post). What does PA law say? Nothing specific to bids, but it deals with fiduciary duty. See Sections 5303(a) of the PA Uniform Planned Community Act and Section 3303(a) of the PA Uniform Condominium Act.

TAKEAWAY: Owners and Board members must know what Boards can and cannot do without owner input or vote – a community association lawyer can help with that and other questions.

lengthy leave as an ada accommodation?

Finally, in the post yesterday 4/3/21, we learned that a months-long inability to work dooms an ADA claim. McAllister was a machine operator for a company that produces 5-hour Energy drinks. She began working through a staffing company then was hired for the assembly line. A promotion to machine operator followed. In June 2016, McAllister suffered severe head and back injuries from a car accident. She had surgery as detailed in the post (ugh). She then submitted the forms for short-term disability and FMLA leave; what the doctor said as to a return to work is in the post. About 2 weeks before the leave was set to expire, the doctor updated the return-to-work prognosis (see the post). The employer contacted McAllister to discuss her inability to return and a company policy. The discussion led to a further leave (see the post for the basis). When she was still unable to return after that leave, the company terminated her employment. She then applied for LTD and SSDI; the doctor did more tests and gave an estimated return to work date (listed in the post). About 18 months after the accident McAllister brought suit, alleging a failure to accommodate under the ADA. The trial court granted summary judgment to the employer (the reasoning, which is couched in the alternative, is in the post). McAllister appealed. Why the appeals court upheld dismissal of the suit is in the post – and proves instructive for employers.

TAKEAWAY: Leave can be a reasonable accommodation under the ADA, but it is not indefinite. The facts of each case will determine reasonableness (or undue hardship), so consult an employment lawyer.

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