The post on Sunday 3/5/2023 noted a religious discrimination case (out of Johnstown, PA) gets settlement. Interesting in light of Groff v. DeJoy case now before SCOTUS. Tithonus Tyrone LP, which operates an assisted care facility, has settled a federal suit filed 3 years ago by a former employee. Linda Miller was an LPN at Colonial Courtyard Tyrone who objected to the company’s decision to require her to work on Sundays. Why? Because of her long tenure and history of work there (detailed in the post). But the company said there was no choice, she had to work on Sundays. On 11/12/2018 Miller was scheduled to work. She called off, saying she was ill, and produced a doctor’s note. The company terminated her two days later. She filed suit in early 2020 alleging failure to accommodate her religious beliefs and disparate treatment (on the basis noted in the post). It did not help that Miller was over 60 years old at termination (which resulted in inclusion of a count for age discrimination too). Some of what the company said in its answer is in the post – and not surprising. Neither party would comment on the settlement (with Miller giving a reason).
TAKEAWAY: Situations where an employer has been providing accommodation for religious beliefs for a long tie and then stops provide legal fodder; make sure you are on solid legal footing before ceasing to provide that accommodation. Consult an employment lawyer.
The post on Monday 3/6/2023 was about how to discipline an employee for a negative attitude. This is so important! Managers seem to know what to do when it comes to absenteeism, tardiness, dress code violations, or poor performance. But what about employees with a negative attitude (including gossiping, whining, persistent pessimism, and other things)? The other things are easy for managers – see why in the post. But how does one define what constitutes a negative attitude? Managers (and employers) cannot just let it go because that bad attitude might have a harmful impact on the workplace as described in the post. And what if the attitude leaks outside the workplace to customers and clients …
There are a few things managers can do to try and prevent negative attitudes at the outset and to administer discipline if/when necessary. First, there should be company policies and the manager should follow them. Of course, the policies should also explain what will not be tolerated of employees and the potential discipline. More details on this from the employer’s and employee’s viewpoint are in the post. This is especially important when the negative attitude results from race, religion, age, sexual orientation, gender, or any other protected group/characteristic – so management must follow the hint in the post.
It is also helpful if the manager documents what has happened and what is considered a bad attitude. Recording these things as they happen is preferable. Also, managers should take the other steps noted in the post to help protect the employer later (in case needed). There might also be a progressive discipline policy that the manager must follow. Again, it must be followed to the T as noted in the post – including making sure the employee is put on notice. Part of the policy will probably entail a writing – that provides a paper trail. But it can be done in a way so as to inspire the employee – see the post. And if the behavior continues despite the necessary steps having bene taken, it might be time to discharge the employee. It might also be time to look at what the managers are doing to foster a positive environment – see several possible steps listed in the post.
TAKEAWAY: No ostriches allowed – address poor attitude and poor performance as they occur and make sure to document everything in the employee’s file.
The post on Tuesday 3/7/2023 said ‘It’s not fair’: condo owners upset over assessment fee. Well, it sounds like the association had insufficient reserves … But let’s look at the background. The secretary of the El Pueblo de Vera Condo Association said that the roofs of three buildings desperately need repairs that “cannot wait any longer”. (Does that mean they already waited too long?) Owners got letters from the association noting the upcoming repair costs, the assessment per unit, and how that could be paid; details are in the post. Many owners are retired and on fixed incomes.
TAKEAWAY: Yearly assessments with no increase, and/or the lack of a valid reserve study, is probably a sign that reserves are or will be insufficient when the time comes; make sure your condo or homeowners’ association has proper reserves.
The post on Wednesday 3/8/2023 told us lawmakers move to extend FMLA to workers at small businesses, schools. While at first blush this seems like a boon to workers, think about the huge impact on small businesses … Companion bills (the Job Protection Act and ESP and School Support Staff Family Leave Act) were reintroduced in the US Senate and House of Representatives on February 2nd with a stated aim as noted in the post. The sponsors estimate they will provide coverage for tens of millions and 2.7 million workers respectively if passed. What would the legislation do? The JPA would apply to businesses with at least one employee (instead of the 50 now required under the FMLA), remove the current 1250 hours worked requirement, and more as listed in the post. The ESP and SSSFLA would offer protection to those listed classes/types of employees if they work more than 60% of the total monthly hours expected for their position (which is similar to a provision for anther class of protected employees as noted in the post). Keep eyes and ears open as these bills move through the legislative process.
TAKEAWAY: While the legislation sounds great, think about the JPA from the small business side … How is a small business with one (or even a few) employees to deal with an employee’s absence, whether on an intermittent basis (for which it will probably be impossible to find a temp) or for up to 12 weeks (where it still may be impossible to find someone given today’s climate)? And then fire the person they hired to fill in because the original employee would have job protection … More thought is probably necessary.
In the post on Thursday 3/9/2023 we read that George Washington University and the EEOC continue to spar over six-year pay discrimination lawsuit. Both parties have asked the judge to throw out the other’s filings in the suit filed by the EEOC in 2017 on behalf of Sara Williams, the former executive assistant to the athletics director, alleging violations of the Equal Pay Act and Title VII by paying “special assistant” Michael Aresco more than double what Williams was paid for “sub-stantially equal” work. But let’s take a step back in time first … In October 2016 Williams filed a charge of sex discrimination with the EEOC; the basis is in the post. In April 2017 the EEOC notified GW that it found reasonable cause to believe there was an EPA violation and suggesting conciliation. In May GW asked the EEOC to reconsider its decision and requested additional infor-mation from the EEOC. It took only 11 days for the EEOC to deny that request. Then in July 2017 the EEOC noted a failure to conciliate and filed suit in September 2017. The EEOC’s complaint spells out the alleged pay disparity and actions of then-Athletic Director Patrick Nero, all as noted in the post. The EEOC requested a jury trial and other relief as listed in the post. In November 2017 GW filed a motion to dismiss the complaint which was contested by the EEOC (summaries of the content of each are in the post). One filing by the EEOC in 2022 notes, among other things, that Nero asked Williams to pick up coffee, prescriptions and dry cleaning. (there is more in the post). GW’s December 2022 filing says that the EEOC’s various allegations show that job duties for Williams and Aresco were not similar. And look at the timing of Nero’s resignation (in the post).
In May 2019 the judge denied GW’s motion to dismiss for the reason noted in the post. The judge also provided guidance on the EEOC’s next step. Then in late 2019 a big hullabaloo over secrecy of evidence emerged that was decided in June and November 2020. Then … quiet. For two years. Until November 2022 when GW filed a motion for summary judgment. GW gave details about Aresco’s hiring and position and distin-guished Williams (see the post). The EEOC filed a brief in opposition in late January 2023 (with a summary of the contents in the post including a possible golden nugget for the EEOC/Williams by GW’s HR Manager). So now we wait.
TAKEAWAY: First, don’t discriminate in pay for substantially similar jobs on the basis of sex. Next, if you do, make sure it is legally defensible (which, by the way, is all but impossible). Talk to an employment lawyer.
The post on Friday 3/10/2023 (which apparently did NOT get posted – here’s a link: http://ow.ly/JBjE50NcgLh) provided condo-buying tips for the perfect space (NOTE: many apply to buying in an HOA too). Any time you buy in a condominium or homeowners’ association, you trade the cost of doing one or more things yourself for paying to have it/them done for you (by the association). The payments are in the form of periodic dues or assessments. Community associations may also bring amenities an owner would not get otherwise. The first difference to note when buying a condo is that the owner usually only owns inside the walls and not the walls or any-thing outside (including the land); all of that is common ground owned jointly by all owners as part of the association. Owners in HOAs typically own at least some land around their house, but there is still common ground. There are other things to know about life in a community association- rules and fees and neighbors and special assessments, oh my. These are discussed in the post and should be looked into care-fully before buying. And recognize that even if you know what is in place at the time of purchase, it may change after the purchase EVEN IF YOU DISAGREE. And the enforcement …
TAKEAWAY: Ownership of a residence in a community association has pros and cons; know what both are as to owners and the Board by discussing with an experienced community association lawyer.
Finally, in the post yesterday 3/11/2023, we learned that Joe and The Juice settled big US gender discrimination case. For 5 million … This is a Danish juice chain that operates on multiple continents including North America. The case started in June 2017 when Joe was establishing itself in the US. After investigating, the EEOC alleged that Joe did not recruit, hire or promote females in the restaurants. Joe has agreed to the settlement without need for suit – and without admitting liability. The settlement involves Joe paying $715,000 (5 million kroner) and providing other extensive non-monetary relief as listed in the post. And where is Joe today? See the post.
TAKEAWAY: we’ve said it before … don’t treat employees (or applicants) differently on the basis of sex. It will be costly in so many ways when (not if) it comes out.