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.
In the post on Sunday 3/7/21 we learned that a Circuit Court reversed Order finding employment arbitration agreement void due to coercion. An employee brought suit against her employer in federal trial court for sexual harassment, defamation, and hostile work environment. The employer argued that an arbitration agreement barred the suit. The trial court said that the agreement was signed by coercion (the facts on which it based this ruling are in the post) and held it to be invalid. The employer appealed. The appellate court analyzed the facts; what it looked at, and its holding, is in the post. Michigan is an at-will state as is Pennsylvania, so it is likely that this would turn out the same way under Pennsylvania law. The employee also argued that she did not knowingly and voluntarily waive her right to a judicial forum for her Title VII claims. The appellate court applied a five-factor test (its analysis is in the post) and found a valid waiver.
TAKEAWAY: Arbitration agreements can indeed be binding but must be executed under legal circumstances. Know the law.
The post on Monday 3/8/21 was about the EEOC charge statistics (charges filed with the EEOC) FY 1997 through FY 2020. So, what do we see? Among other things, total charges decreased from 80,680 in FY97 to 67,448 in FY20 (yes, I bet you are surprised!). The chart in the post is broken down by type of charge, i.e., race, sex, national origin, and 8 other categories. The EEOC’s priorities have changed during this period, which may explain some of the changes in filings. For example, race went from 29,199 filings (36.2%) in FY97 to 22,064 (or 32.7%) in FY20; the high was 30,510 (or 37%) in FY10. Retaliation (all statutes) more than doubled from 18,198 (or 22.6%) in FY97 to 37,632 (or 55.8%) in FY20; retaliation just under Title VII also doubled, going from 16,394 (20.3%) in FY97 to 27,997 (or 41.5%) in FY20. Age claims, one of the EEOC’s recent priorities, actually decreased by number from 15,785 in FY97 to 14,183 in FY20 but increased in percentage (19.6% in FY97 to 21% in FY20). Want a surprise? Look at the statistics for sex and disability (in the post).
TAKEAWAY: What causes filings to increase or decrease: societal attitude? Case law? Other? Know the law.
The post on Tuesday 3/9/21 asked: How do you know if your condo or homeowner’s association is well-managed? Amenities are clean and well-maintained, right? Beautiful landscaping, right? Smiling residents doing things together, right? You still need to look; the post provides some tips, including diversity on the board (gender, age, background/talents/abilities), open and transparent communications (details, feedback and deliberations, outcomes – some examples of how to do this are in the post), even enforcement (with no favoritism or selectivity), and more as in the post. Some are mandated by statute in PA, others are common sense and/or best practices.
TAKEAWAY: Board members are volunteers; they usually do their best to manage an association, but things happen. Checks and balances, the things noted in the post, and a knowledgeable community association lawyer all help to keep an association well-managed.
From the post on Wednesday 3/10/21, condo and HOA electronic / virtual meetings now and in the future. But they must be legal. Most association bylaws provide for in-person meetings (Board and association). That has been a detriment during the pandemic for many reasons, some of which are noted in the post. To continue to transact business, some associations have moved to virtual meetings (if legally allowed). There are ways under PA law to hold virtual meetings during the pandemic; that buys time for the association to do what it needs to and amend its Bylaws and provide for continuation of virtual meetings post-pandemic.
TAKEAWAY: Know what PA law and your Governing Documents say about electronic/virtual meetings; get advice and assistance from a community association lawyer.
In the post on Thursday 3/11/21 we saw the EEOC says hotel fired Seventh Day Adventist for refusing to work Saturdays. Yes, that was the employee’s Sabbath. The employer hotel accommodated her for 10 months with no issue. But then … see the post as to what happened after that and before the EEOC sued. What makes it worse is the previous accommodation and apparent failure to look for a workable solution going forward. Examples of religious accommodations (for any employer) are in the post. Also in the post are examples where employers offered what courts held were reasonable accommodations even though they paid less. As with any accommodation, the employer need not provide what the employee requests, but it must then engage in the interactive process in good faith. A tip on how to do that is near the end of the post.
TAKEAWAY: Remember an employer’s obligation to accommodate sincerely held religious beliefs? The EEOC does, and it will investigate allegations of a failure to do so.
The post on Friday 3/12/21 showed us that an employee filed suit alleging a mandatory COVID vaccine violates the Emergency Use Authorization (EUA) Law. This could have far-reaching ramifications. So, what happened? The suit filed in federal court in New Mexico on 2/28/2021 by an employee of a county detention facility seeks an injunction preventing the employer from being fired for refusing to get a vaccine. The basis of the suit is that the vaccine has only been approved under an EUA and therefore cannot be mandated by employers. Claims surprisingly NOT included in the suit are noted in the post. The employee’s argument is that the employer’s vaccine mandate is preempted by the EUA law (how it is preempted is in the post). The EEOC’s FAQ issued 12/16/2020 seem to endorse employer-mandated vaccines approved by the FDA under an EUA under the conditions noted in the post.
TAKEAWAY: This situation (vaccines being given, and possibly mandated by employers, under an EUA) applies nationwide, so stay tuned. In the meantime, make sure to follow the accommodation process under the ADA and Title VII when vaccines are mandatory – and get advice from an employment lawyer.
Finally, in the post yesterday 3/13/21, we talked about compliance with ADA and FMLA when worker is a COVID long hauler. What does that mean? Symptoms that last for months. That may be deemed not a transient or temporary condition, such that protections apply under the ADA and FMLA. The ADA defines disability as noted in the post. It normally excludes short-term conditions from which the employee will fully recover. But this is very fact-specific and could spill over into the “regarded-as” category under the ADA. How? See the post. If the ADA applies, then the employer might be asked to make an accommodation. Likewise, a COVID long hauler might have protection under the FMLA. Alternative definitions of a qualifying serious health condition under the FMLA are noted in the post. There are other requirements before FMLA eligibility kicks in (see the post), but employers must work through it. Also to be considered for COVID long haulers: short-term disability.
TAKEAWAY: Employees with long-term COVID effects may make employers walk a tightrope, but they will as it is legally required. Get assistance form your employment lawyer.
York, Pennsylvania 17403