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: yes, there is still instability and fluctuation in federal labor and employment law – and more expected with an EEOC quorum in place now – so check with us (or another employment lawyer) before taking action based on something in our posts.
The post on Sunday 10/12/2025 noted that Someone wants your employee fired: what (not) to do.
Some employers are now getting calls or emails asking them to fire someone for a social media post. The current environment is marked by increased violence and political discord which has led to a new viral trend: termination trolling. What does that mean? See the post.
A number of employers have publicly dismissed employees (either on their own or in response to public pressure) after becoming aware of those employees’ social media comments or posts. So given the volume of posts and increased efforts to get people fired based on their social media posts or other comments, employers should be prepared to deal with that scenario sooner rather than later (i.e., now).
What to Do if You Receive a Complaint? The post contains a link to another that talks about managing controversial commentary. But if you are one of those employers who receive demands to fire someone on the basis of remarks or a social media post, you should hit “pause” and first think about the answers to some questions:
-Who is complaining? Is the complaint from a co-worker/colleague, a customer, an organization, or an unnamed anonymous source?
-What is the nature of the complained-of content? Some things to look at/consider here are listed in the post.
-What is the context of the offending content? Again, some things to consider here are in the post.
-And a few more listed and described in the post.
Also, employers should remember a few important points:
- The First Amendment does not – generally – apply to private employment.
- However, (certain provisions of) the National Labor Relations Act (NLRA) does apply to private employers – not just those with unionized workforces but ALL employers. The post contains more information on what is covered.
- In most places in the US (except Montana), the doctrine of at-will employment generally governs unless there is an employment contract or collective bargaining agreement that applies. What at-will employment means is in the post (along with some exceptions).
- State law might apply to speech in the workplace or to off-duty conduct (either of which might include social media) and may implicate privacy concerns – see the post for more on both of those.
While this is (one of) the “hot potato” moment(s), it/they will eventually cool and new ones take its/their place. It is important that employers manage all controversies even-handedly so as not to give rise to discrimination claims. That means that when (probably not if) an employer is confronted with demands to fire someone for something they said or posted, proceeding thoughtfully is the way to go. That includes discussing the situation with an employment lawyer to assess legal implications for each possible action that might be available.
Be Prepared. Help yourself before you need a defense. What does that mean? In anticipation of this type of complaint, review your handbooks and update relevant policies, including those listed in the post. And (re)train employes on how to handle things – including those things in the post.
TAKEAWAY: It’s not a matter of if, so employers need to know what (not) to do when they get a complaint accompanied by a demand to fire an employee. Legal assistance should be a must in that situation.
The post on Monday 10/13/2025 told us Merck manager’s awkward whispers did not constitute harassment, judge rules. Let’s look at the facts that formed the basis for the September 8th ruling from the U.S. District Court for the Eastern District of Pennsylvania.
The plaintiff, Nyamu, filed a grievance against his supervisor after a meeting in which the supervisor — upon learning that he forgot to give Nyamu a work schedule — allegedly whispered into Nyamu’s ear that he was unsure how he forgot Nyamu “because I use your voice to know where you are standing … You have a voice that is very specific to me.” Nyamu claimed in the suit that the whispered remarks constituted both race- and sex-based harassment for the reasons noted in the post. The court disagreed on both counts and granted summary judgment to Merck.
In his suit Nyamu attempted to link his complaint about the manager’s conduct to a decision by Merck to move him from one department to another. He claimed that his new department offered him comparatively less training than his old post and did not allow him to work overtime, whereas his previous department did. The court did not buy the argument. What it found was the basis for the transfer is detailed in the post. Here, Nyamu had not met the requirements (see the post for what happened) and so Merck had to act; Nyamu, however, alleged that the transfer was in retaliation for his complaint about the manager’s allegedly discriminatory conduct (the whispered comment).
When harassment is considered actionable under Title VII of the 1964 Civil Rights Act and other federal workplace civil rights laws (pursuant to the EEOC) is described in the post. The court’s analysis found that the manager’s whispered comment was not inherently derogatory, and a reasonable person would not believe that the behavior violated Title VII. The court also made a finding about the whispering as related to sexual discrimination– see the post.
Other cases involving one-off statements have also gone in favor of employers, including a decision in August involving a Michigan car dealership. Details about that are in the post.
TAKEAWAY: The fact that a comment was a one-time thing is not decisive, but weighs in favor of no liability on the part of the employer, but don’t rest on those laurels – train your employees not to make those one-off comments in the first place.
The post on Tuesday 10/14/2025 told us EEOC employee’s discrimination lawsuit cleared for trial. Let’s find out more.
The EEOC employee alleged that the agency discriminated against her based on her race, sex and national origin. She can proceed with her suit filed to Kandan v. Lucas and EEOC. The post has a link to at least some of the documents filed in the suit.
Kandan is an Indian-born US citizen who works as an enforcement manager for one of the EEOC’s field offices. She alleged that she was passed over for a promotion to field director in favor of a Black male candidate who was “groomed” for the position by the district director (who is also a Black male).
The EEOC filed a motion for summary judgment in August and the ruling came down September 20, pretty quickly. The judge found that Kandan presented sufficient evidence for a reasonable jury to conclude that her non-promotion was discriminatory. (NOTE: that finding does not mean the eventual decision in the case will come out that way, just that there is enough at this point for the court not to grant summary judgment to the EEOC.)
The judge found that while Kandan had more years at the EEOC than the employee who was ultimately selected, the latter’s “equally extensive military background” did not make for “an apples-to-apples comparison,” Dossier wrote, noting that selection of the other employee by itself was not sufficient evidence. The judge also discussed the high bar courts need to clear for selection decisions themselves to be evidence – see the post for those details. The post also details the facts relied on by the judge in her decision. The judge also found that the hiring process raised questions, including those listed in the post.
In its summary judgment motion the EEOC alleged that Kandan ranked the lowest of the three interviewed candidates and that the employee who was selected received the highest scores from each interviewer on the panel. What a spokesperson for the EEOC said after the judge’s ruling is in the post.
This is not the first or only suit against the EEOC in recent months. For example, in late July, an LGBTQ+ advocacy organization sued the EEOC for allegedly refusing to enforce federal workforce protections for transgender workers. A link to that is in the post (and in our post of Saturday 9/27/2025). And a suit was filed against the EEOC in August by a school district – see our post of Sunday 8/31/2025 for more on that. Both of those cases are still working their way through the courts.
TAKEAWAY: While it is the federal agency charged with enforcement of anti-discrimination and anti-harassment laws, the EEOC is still an employer subject to those same laws – and has found itself in the legal crosshairs more and more often during the current administration.
The post on Wednesday 10/15/2025 noted mother fights HOA after receiving letter complaining about son playing on a magnolia tree. Was this rules enforcement or something else? Let’s see.
Ariel Barner’s five-year-old son, Owen, enjoys swinging from a magnolia tree near his bus stop in his (FL) community. Many young kids do, right? Ut here the University Pines Property Owners Association, the neighborhood HOA, sent Barner a letter accusing her of violating HOA rules by allowing Owen to play on the tree.
Barner, who is new to the HOA, was surprised by the HOA’s legal threat which included a demand for $382.16 to cover its lawyer’s involvement. What did she say should have happened? See the post.
Barner said that Owen “… loves monster trucks. He loves dirt, puddles… he’s a boy. He likes mulch. He likes trees.” An attorney not involved with the case talked about the letter the HOA sent Barner and what might be problematic about it – see the post.
But the HOA’s attorney differs on the legal basis for the letter, including the HOA’s concern about potential liability if Owen were to fall from the tree and more as noted in the post.
Ok, so you don’t live in that HOA and may not even live in any FL HOA, but you still care about what’s happening here. This highlights the tension between HOA (or condo) regulations and the everyday activities of children, questions about the balance between safety and freedom in residential areas.
What is Barner’s next step? See the post. And the implication for other planned communities? Yep, in the post.
TAKEAWAY: Residents may not like the effect of the various restrictions in place for their community, but they are bound to comply just as the board is bound to enforce those restrictions. Consult a community association lawyer with questions.
In the post on Thursday 10/16/2025 we read about cupcake controversy: business license clashes with HOA rules. Good reminder that HOA and condo restrictions are not just residential.
Cupcakes are sweet. Usually people respond positively to pastries. But that wasn’t the case recently when neighboring residents objected to a proposed business based on their HOA covenants which require 100% of owners to approve any alteration to a home for use other than as a single-family dwelling unit. So what happened here?
Lilly Whyland applied for a business license with the municipality. Her business is called KiKi’s Cookies & Cupcakes, LLC. Her application said that she would bake the products in her kitchen, but no retail transactions would occur there; rather, she would drive to the places where she would sell her goods. Whyland told the HOA board that she ran the idea by the HOA president. What he allegedly told her is in the post.
But three of Whyland’s neighbors, two of whom received a notification from the town about the public hearing on her application, said it was a problem for the town to approve Whyland’s business application because that home-based business required approval by 100% of owners (which was not in hand). The town ended up tabling the matter until its next meeting on Oct. 20.
One thing the town will do in the interim is noted in the post. They will also change the business license application in the future as a result of this issue – see the post. Where that idea came from is discussed in the post.
One town Board member said it was not the town’s place to say what could occur in a residential area with covenants. That comment is in the post.
Interestingly, discussion about the proposed baking business took place twice during the September 22nd board meeting, once during the public hearing and then during the regular meeting prior to the vote (which got tabled).
One HOA owner came to the public hearing and testified. He included what the HOA restrictions provide (quoted in the post) and the legal posture (also in the post). That owner also noted that he’d talked to the HOA president about what he had told Whyland and whether or not that was binding on the HOA given the covenant. That too is in the post. That owner also questioned whether this was within the town’s jurisdiction (given the covenant) and why the town’s attorney was not present at the meeting. The response to the latter question is in the post. But despite that response, the town board chairman suggested tabling the issue to enable the board to get a legal opinion.
Another owner, who lives within 250 feet of Whyland, also spoke during the public hearing. She was in favor of the business but also pointed to the HOA’s covenants. She also questioned which neighbor were notified by the town about the public hearing (on the basis noted in the post).
A third owner also spoke – what he said is in the post. And the town manager’s statement? See the post.
TAKEAWAY: in general,whether or not a municipality allows something is not conclusive as to it being permitted in a homeowners’/condo association, but how the ordinance/law is structured can make a difference. Either way, the condo/HOA restrictions are normally enforced. A community association lawyer can assist in these situations.
The post on Friday 10/17/2025 told us the customer is not always right: employer liability for third party harassment.
Picture this: It’s late Friday evening and you, the business owner, are almost packed up for the weekend when your human resources manager knocks on your office door. Judging by the look on their face, you two aren’t going home just yet. They explain to you about a complaint that was just received from an employee working at one of the company’s restaurants. She is being harassed — not by a co-worker, but by a customer. The customer is a regular, a 50-something man who dines there at least once a week and visits the bar even more often. According to your employee, about a month ago, this customer began making comments to her as noted in the post. The employee has done her best to ignore the customer, but his behavior hasn’t changed. He rarely misses her shift, keeps doing the things noted in the post, and, most recently, brought her a gift. Your employee reported the situation to her supervisor, who brushed it off (the supervisor’s statement is in the post). The employee has now come to the HR manager who has now come to you to ask if the business can be held liable for workplace harassment by the customer. After a recent federal appellate court decision, the answer may depend on where in the country your business is located. Scared? Let’s look more closely.
In September the Court of Appeals for the Sixth Circuit (which covers Kentucky, Michigan, Ohio, and Tennessee) was asked to consider whether an employer can be held liable for workplace harassment committed by a non-employee. In the case before that court, an outside sales rep for a manufacturer and distributor of cleaning products sued her employer, alleging that type of harassment. Specifics about what was alleged there are in the post. After the employee reported the incident to her supervisor, the client was reassigned to a different sales rep. Not long after, though, the employee was terminated. Surprise (not), she then sued her former employer,alleging that the client’s actionshad created a hostile work environment. The trial court ruled against the employee and she appealed to the Sixth Circuit.
The Sixth Circuit affirmed the dismissal of the hostile work environment claim. But as part of its decision the Sixth Circuit adopted a new, employer-friendly test for analyzing whether employers are liable for harassment perpetrated by their customers. What that new standard is (and it’s about as employer-friendly as you can get!) is in the post. That new standard is also not in alignment with the position of the EEOC and several other Circuit Courts. Under long-standing EEOC regulations, employers may be subject to liability under a much less stringent negligence test (that is detailed in the post). In its decision the Sixth Circuit recognized that most other circuits (listed in the post) which cover 32 states and Puerto Rico, Guam, and the Northern Mariana Islands) have adopted the EEOC’s approach.
So what does this mean for employers? Several things:
- First, the Sixth Circuit’s decision is binding on employers in the states within its jurisdiction. But that does not equate to a license to allow third parties to harass employees. Because at some point that behavior might raise to the level of the Sixth Circuit’s new standard (see the post).
- Next, this decision is not binding on most of the US – there is a different standard that applies to employer liability for third-party conduct (as detailed in the post) and the EEOC is still (as of now) enforcing that different standard.
- Finally, employers should (re)train supervisors and managers about third-party harassment and company liability (as detailed in the post).
TAKEAWAY: Do what you can to decrease your risk of legal liability. Your managers’ actions will probably be imputed to you, so make sure they know what they can and cannot, or should or should not, do relative to third-party harassment. And keep your employment lawyer on speed-dial.
Finally, in the post yesterday 10/18/2025, we learned that EEOC sues C&M Defense Group for sexual harassment and retaliation. Let’s find out why.
C&M is a provider of security services to businesses in Atlanta that operates as Global Security Management Team, LLC. It is also now a defendant in a suit filed by the EEOC.
The EEOC alleged that a female security officer was subjected to sexual harassment by her immediate supervisor, including frequent, unwanted sexual comments and advances and more as detailed in the post. The suit also alleges that the security officer complained to C&M’s field support manager and to the owner/CEO, but C&M failed to properly remedy the harassment. What the company did instead is in the post.
A statement from the EEOC’s District Office is in the post. The EEOC alleged that C&Ms conduct violates Title VII (on the basis noted in the post). Conciliation failed before the suit was filed.
The EEOC’s District Office Director also issued a statement (which hopefully represents the EEOC’s position from the top down) – see the post.
TAKEAWAY: Employers cannot harass or discriminate against employees – they also cannot just put their heads in the sand when an employee complains about that type of behavior. Make sure an employment lawyer keeps you on the legal straight and narrow.