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: there is continued instability and fluctuation with all of the changes in federal labor and employment agencies resulting from executive orders (EOs) and court decisions, so check with us or another employment lawyer before taking any action based on something in our posts.
The post on Sunday 4/6/2025 was an employment investigations checklist – good roadmap for employers. Get a plan in place before you need to use it.
Internal investigations into employee complaints and employee conduct have been on the rise in recent years. Employment (or workplace) investigations can take many forms and can be initiated by the employer, an employee, or a third party (such as a regulator, vendor or a customer). An example of a frequent action leading to investigations is in the post. And since the #MeToo movement, increase interest from governmental and regulatory agencies, and high-profile cases int eh news, employees seem more likely to raise concerns. The effect of the COVID-19 pandemic is noted in the post (both as to complaints and investigation complexity).
The employment investigations checklist discussed in the post outlines key steps for employers to consider when faced with an internal employment investigation. It must be tailored to the specific facts of each complaint and any applicable local law.
STEP 1: DECIDE WHAT FORM OF INVESTIGATION IS APPROPRIATE
- Acknowledge the grievance, complaint or allegation directly to the complaining party. And consider the other things listed in the post.
- Decide whether to conduct a formal or informal investigation by taking into consideration the multiple items noted in the post.
STEP 2: TAKE INITIAL ACTIONS
- Identify stakeholders implicated by the complaint (e.g., other employees or third parties).
- Address any immediate safety risks.
- And take the other steps listed in the post including preservation of evidence and confidentiality concerns as discussed in detail in the post.
STEP 3: APPOINT AN INVESTIGATOR
- Appoint an investigator who is credible, not involved in the issue at hand, and not likely to become so at a later stage. Some helpful tips on who to appoint are in the post (along with a reminder of potential issues of legal privilege).
- Ensure that the potential investigator has sufficient time to complete the investigation thoroughly, taking account of the complexity of the issues.
STEP 4: PLAN THE INVESTIGATION
- Once an investigator has been appointed, the investigator should develop and document an investigation plan. Some things that might include are listed in the post.
- The plan may change along the way; make sure to document any changes.
- Keep the plan and/or timeline under review and be ready to revise it if new information becomes available during the investigation.
- Consider any other potential issues such as those listed int eh post.
STEP 5: IMPLEMENT THE INVESTIGATION PLAN
- Ensure the investigation is timely and transparent.
- Maintain confidentiality as far as possible (and where legally required).
- Source, collate, and review documents and other material for evidence. What might be included here is detailed in the post.
- Implement the plan (especially those things listed and detailed in the post).
- Arrange a note-taker. Audio recordings may be appropriate but again this is fact-dependent. Decide what to do with the notes as explained in the post.
STEP 6: MAKE FINDINGS OF FACT
- Consider and discuss with stakeholders, including your legal team, whether and how to document the investigation’s findings.
- Consider what form of report will be made; e.g., written or oral, fact-finding only or with legal analysis and recommendations for the decision-maker to consider and whether it will be privileged (if conducted by lawyers. Or maybe two reports are needed – see the post.
- Make sure the report is complete and meets the various “criteria” listed in the post.
STEP 7: DETERMINE THE WAY FORWARD
- Decide what the next steps should be; this could be formal or informal action. Include those things noted in the post.
- Consider a media strategy if the investigation report is disclosed.
- Consider updating company policies and training programs to prevent similar issues arising in the future.
- Collate investigation records and store them in a secure and central location.
- Deal with other issues as noted in the post.
TAKEAWAY: Let’s say it again: Get a plan in place before you need to use it. And make sure the plan is legally compliant – run it by your employment lawyer.
The post on Monday 4/7/2025 told us a federal Circuit Court rules Trump can remove independent NLRB and MPSB members without cause. Latest twist (until our post this Friday 4/11/2025) … and effect on pending matters. On March 28, 2025, a panel of the US Court of Appeals for the District of Columbia ruled, staying previous reinstatement orders from federal district courts after the President had removed the board members earlier in his term (after which they filed suit). The effect of this ruling is that it leaves the NLRB and MSPB without enough members to hear cases. Recall that the NLRB is a five-member board that enforces labor law through representation and unfair labor practice cases, whereas the MSPB is a three-member bipartisan board adjudicating personnel and merit systems issues involving federal employees.
The court’s decision addresses significant constitutional questions regarding the President’s power to remove members of independent agencies, boards and commissions and Congress’s authority to restrict removal.
Writing separate concurring opinions, two of the (three) judges found that the government was likely to succeed on the merits with its argument that the President, as the head of the executive branch, has the authority to remove members of both the NLRB and MSPB because the agencies wield “substantial executive power”. Parts of what those judges wrote is in the post.
But a third judge issued a separate dissenting opinion sharply criticizing the appeals court for granting the stays and stripping each agency of the quorum that the district court orders had maintained, “leav[ing] languishing hundreds of unresolved legal claims.”
The government’s argument directly contradicts a 1935 decision by the US Supreme Court, Humphrey’s Executor v. United States. The holding in the case, and its basis, are in the post.
So now what? The stays are not a final decision. Rather, the litigation continues. Given the significant constitutional issues, it is likely that the case will ultimately be decided by the Supreme Court.
TAKEAWAY: Statutes and case law that have been on the books and followed for long periods of time (sometimes 100 years (give or take) are now being challenged by the Administration and others. Employers must remain attuned so that they know how to comply if and when their obligations change.
The post on Tuesday 4/8/2025 noted FCC to investigate ‘DEI discrimination’ at Disney, ABC. The Federal Communications Commission’s Enforcement Bureau has launched an investigation into hiring practices to ensure no violations of equal employment opportunity regulations. What the FCC Chairman said in a letter to Disney is in the post.
The FCC investigation (allegedly) is to ensure that Disney and ABC have ended “any and all discriminatory initiatives in substance, not just in name,” said the FCC Chair. What else he’s looking at is in the post (which, to this author, seems more like continuing retaliation against Disney for its past practices than an actual interest in ensuring EEO compliance).
The Communications Act and FCC rules prohibit entities like Disney and ABC from discrimination on the basis of race, color, religion, national origin, age or gender. What the FCC Chair is supposedly looking for is in the post.
The FCC Chair also accused ABC of imposing mandatory “inclusion standards” that require half of all regular and recurring characters to depict underrepresented groups and at least half of all writers, directors, crew and vendors be hired based on group identity. His statement again is in the post.
Disney officials are reviewing the letter, according to a prepared statement. What it said is in the post. ABC officials did not respond to a request for comment.
This all stems from the Trump administration’s ban of DEI practices within the federal government and opposition to discrimination among U.S. employers.
TAKEAWAY: No employer is out of the reach of EEO statutes/regulations, but employers must be keenly aware of how some are now being interpreted.
The post on Wednesday 4/9/2025 told us a former Chicago Trump Tower board member sues, alleging financial misconduct, racketeering and retaliation. The federal lawsuit accuses the Trump Organization of financial misconduct, racketeering, wire fraud and retaliation, including having the plaintiff arrested in the tower’s spa facilities.
Onisim Dorneanu, who lives in Oregon, Wisconsin, listed the Trump Organization, Inc., building management and the current condo association president as defendants in his suit. He owned 16 units, including 12 in the tower’s hotel, and lived there part time. He further alleges that after he joined the Board of Directors, he became aware of the condo association’s “poor financial condition,” the “high frequency” of losses for himself and other owners. He said he became concerned about misallocated funds, actions to conceal financial information, misrepresentation of expenses and a practice of booking hotel units owned by the tower at a significantly higher rate than units owned by individuals. The suit alleges this is pattern of racketeering to defraud Dorneanu and other investors and that the defendants committed acts of wire fraud in pursuit of this scheme.
The suit references information provided by hotel employees about acts between late 2023 and early 2024 – see the post. Dorneanu said he raised these concerns to the condo board’s president – who is allegedly also a flooring vendor doing business with the hotel – who dismissed the concerns. What else the board president told Dorneanu is in the post.
But Dorneanu persisted. He then raised those concerns to executives at Trump Inc.; how the sit characterizes the investigation is in the post. After a Trump Inc. executive denied that his concerns were valid, and after once again raising the alarm about the hotel’s money management, Dorneanu resigned from the board in August 2024.
Dorneanu alleges that, coincidentally, days later, a hotel attorney sent him a letter accusing him of not acting “to address any legitimate business concerns, but rather, to seek retribution against certain individuals.” What else the letter said is in the post. Then on Feb. 2, Chicago police arrested Dorneanu in the tower’s steam room and charged him with misdemeanor trespass. How the sit characterizes that action is also in the post. Dorneanu says that all of that left him with no choice but to sell his units at the tower. The first was listed for sale in March.
The lawsuit does not ask for a specific amount of damages – what it does seek is in the post.
TAKEAWAY: Members of the board in any community association are fiduciaries charged with acting in the best interests of all owners, not just themselves. Most states have statutes providing for liability for breach of that fiduciary duty. Contact a community association lawyer with questions.
In the post on Thursday 4/10/2025, we learned that condo sales are threatened as Fannie Mae “blacklist” grows. Know whether your association is affected.
Condominiums, or condos, can be a good alternative to purchasing a house or continuing to pay rent. But those who find their dream condo or have a deal to sell theirs might be in for a bit of a shock when the deal falls apart. Why?
A secret so-called “blacklist” of government-sponsored enterprises (GSEs) has led to difficulty in obtaining mortgages to purchase condos. The domino effect: Buyers being unable to buy means that sellers have difficulty finding qualified purchasers. What underlies this? Inadequate insurance or condos in need of repair. The solution? Hmmm. Let’s dive deeper…
The federal government established two private mortgage companies to operate as secondary mortgage lenders. Fannie Mae, formerly the Federal National Mortgage Association, was created in 1938 as part of President Franklin D. Roosevelt’s New Deal. What it does is in the post.
And then there is Freddie Mac, which was originally called the Federal Home Loan Mortgage Corporation. What it does is also in the post. Freddie Mac was created in 1970 to make it easier for potential homeowners to be approved for a mortgage.
Both Fannie Mae and Freddie Mac were put under the conservatorship of the federal government by the Federal Housing Finance Agency (FHFA) after the 2008 financial crisis. How Fannie and Freddie work, and what happens when a homeowner goes into default, is in the post. Because of that, Fannie and Freddie have authority to set regulations to provide buyers with mortgage access. But that also means they have the authority to deny mortgages for various reasons. And they have been exercising that power more frequently since the 2021 Surfside collapse (details of which are in the post).
For Fannie or Mac to approve a mortgage for a condo, both the unit and the building it’s in must be considered safe and in good repair. When they refuse to back a mortgage, and what that supposedly does, is in the post. Fannie and Freddie also have insurance requirements that must be met. This can have a devastating effect on some condos as described in the post. That, in turn, has caused condo associations, which are charged with purchasing insurance, to pivot to less expensive policies with limitations.
All of this has created what a Wall Street Journal report termed a “blacklist” of over 5,000 properties for which Fannie Mae refuses to back a mortgage due to disrepair or inadequate insurance. Fannie denies the existence of a blacklist. How it responds to what has and is happening is in the post.
Whether or not there is an actual blacklist, it’s affecting the industry. At least one new state law has been adopted (see more about it in the post). That has resulted in a decrease in average value per unit, a surge in available units over 30 years old, and some larger condo lenders entirely abandoning that market. The domino effect from that across the nation will not be pretty.
TAKEAWAY: Condo boards must ensure that required maintenance and repair (and, sometimes, replacement) are done on a timely basis. When dues/assessments do not increase, that may be a sign that maintenance is not being done (as costs are always increasing). Talk to a community association lawyer about any concerns.
The post on Friday 4/11/2025 noted that appeals court reverses Trump firings of 2 board members (one each from MSPB and NLRB) in cases likely headed for the Supreme Court. The two board members fired by President Trump can go back to their jobs for now – until a likely Supreme Court showdown on the president’s power over independent agencies. This is an update from our post on Monday 4/7/2025.
The appeals court issued the 7-4 decision in connection with suits brought by two women separately fired from agencies that both deal with labor issues, one of which plays a key role for a federal workforce Trump is trying to drastically downsize.
The order relies largely on a 90-year-old Supreme Court decision, Humphrey’s Executor. Again, what that case held is in the post. Why some are not enamored of the holding from that case is also in the post. Some experts say that with the current conservative majority on the Supreme Court, the time may have come to overturn Humphrey’s Executor.
What the majority wrote in an unsigned opinion is in the post. But the vote was 6-5 on whether to pause the decision for a week to let the Administration appeal to the Supreme Court right away.
The ruling is not a final decision on the legal merits of the case, but it does reverse a judgment from a three-judge panel from the same court as discussed in our post of Monday 4/7/2025.
Cathy Harris was on the Merit Systems Protection Board, which reviews disputes from federal workers. How that ties in to what else the Administration is doing is in the post. Gwynne Wilcox served on the National Labor Relations Board which deals with unfair labor practice cases. Neither Board could hear cases (or issue decisions) after their removal due to the lack of a quorum.
Government lawyers argue that Trump can remove both board members. More details are in the post. Of course Wilcox and Harris argue to the contrary – see the post.
TAKEAWAY: How far does presidential power go, especially in the face of almost a century of a clear limitation? The Supreme Court may soon tell us, but as of now it is not as far as the Administration wants or argues.
Finally, in the post yesterday 4/12/2025, we learned that a federal court adopts broad reading of ADA protections in recent workplace accommodations case. And yes, you care.
The decision was issued on March 25, 2025, by the Second Circuit Court of Appeals in Tudor v. Whitehall Central School District. The decision establishes that employees with disabilities may be entitled to reasonable accommodations, even if they can perform the essential functions of their jobs without them. Re-read that sentence, then keep reading.
The case involved a high school teacher with PTSD who was denied brief afternoon breaks. The court used that to emphasize the ADA’s broader support for employee well-being and inclusion. The Second Circuit’s ruling is better explained in the post and aligns with similar decisions from other federal circuits. Let’s go back a bit to see how this decision came about.
Angel Tudor is a New York high school teacher who was diagnosed with post-traumatic stress disorder (PTSD) and requested the accommodation of brief afternoon breaks to manage her condition. At the time of that request, Tudor had a history of requesting work accommodations in the years preceding her lawsuit. The school district denied her request during the 2019–2020 school year, after which she filed suit alleging a failure to accommodate under the ADA. The lower court dismissed her claim (on the basis set forth in the post). But now the Second Circuit has overturned that decision. In looking at the language of the statute, the Court said that whether an employee can perform her job responsibilities without a reasonable accommodation does not mean that she must do so. How that translates in the workplace is in the post.
This decision does not govern cases in Pennsylvania, but in light of this opinion and similar ones from at least six other circuit courts of appeal, employers may want to reassess their accommodation policies as noted in the post.
TAKEAWAY: Employers should already know that who is eligible for protections under the ADA is construed broadly; similarly, what an employer must do to meet its obligation to reasonably accommodate is more often than not interpreted broadly. Discuss your obligation with an employment lawyer to stay on the right side of legal.
York, Pennsylvania 17403