Existing nondisclosure clauses are void (per NLRB); condo/HOA board risk management; ok to dock exempt employee PTO for performance; and more in Our Social Media Posts This Week, Apr. 16-22, 2023.

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.

eeoc sues subway franchises for unlawful employment practices on the basis of race and color

The post on Sunday 4/16/2023 told us EEOC sues Subway franchises for unlawful employment practices on the basis of race and color. The EEOC alleged that the franchises (noted in the post) violated Title VII when they subjected employees to a hostile work environment, discharged Black employees and discriminated against applicants based on race and color. The suit was filed March 20, 2023 in federal court after conciliation failed. The EEOC alleged that between Oct. 2018 – Aug. 2021, the owner of the franchises repeatedly told the GM not to hire Black employees, to fire others because they were Black or appeared to be Black, and more as noted in the post. After the GM confronted the owner (what he said will surprise you – see the post), nothing changed and eventually the GM resigned. The suit is filed on behalf of the GM and other affected employees and requests both monetary and non-monetary relief as listed in the post.

TAKEAWAY: Adverse action should be taken only based on performance, not a protected characteristic. Contact an employment lawyer before the land mine blows up in your (Business) face.

nlrb says old severance agreements with non-disclosure clauses are void – and this applies to all employers (union and non-union)

The post on Monday 4/17/2023 told us the NLRB says old severance agreements with non-disclosure clauses are void – and this applies to ALL employers (union and non-union) since this is terms and conditions of employment. Yep, not only does this decision apply going forward, but the NLRB says it applies retroactively too. The NLRB General Counsel’s memo was issued March 22nd to offer more guidance on the McLaren Macomb decision (see our post 4/10/2023 on that decision). This post reviews a bit of background on McLaren. The more recent memo made clear that whether or not the employee signed the agreement is irrelevant, rather it is the employer’s offer itself that it (now) illegal. Since the General Counsel is now interpreting McLaren as applying retroactively, employers are left in a bind as to existing agreements. Are they to contact everyone with an existing agreement? Wait to see if that provision of the agreement becomes relevant on a later date? Or at least wait until any appeal period runs (and any appeals are decided)? One small part of the memo might make HR personnel happy – see the post.

TAKEAWAY: Employers should now tailor their agreements to the McLaren ruling but discuss with an employment lawyer whether to take any other action relative to existing non-disclosure provisions.

risk management considerations for condo (& homeowners’) association boards

The post on Tuesday 4/18/2023 was about risk management considerations for condo (& homeowners’) association boards. This is not only having the right D&O insurance but taking (or not taking) the right actions so as not to invoke the D&O coverage. What does D&O insurance cover? See the post. Examples of the types of decisions boards make that may or may not be covered under a D&O policy are in the post. So, what can associations do to minimize D&O risk? First, validate members (by some or all of the methods noted in the post). Next, and oh so important, is to document Board meetings. That can be done via Minutes or a recording (audio and/or video, if applicable state law is followed) or both. And there is more that can be done too – see the post.

TAKEAWAY: Consult a community association lawyer to ensure your association is minimizing D&O risk to the extent it can.

federal appellate court says flsa permits employers to dock pto for performance reasons

The post on Wednesday 4/19/2023 told us a federal appellate court (whose decisions govern in PA, NJ and DE) says FLSA permits employers to dock PTO for performance reasons. In a decision issued March 15, 2023 (cited in the post), the Third Circuit Court of Appeals said that Bayada Home Health Care Inc did not violate the FLSA when it deducted PTO from workers who did not meet productivity goals. Let’s look at the background. The system applied to exempt workers; it awarded extra compensation to those who met goals and deducted PTO from those who did not. Base salaries were never affected. The workers brought suit alleging violation of the FLSA (and citing the language noted in the post). The trial court found in favor of Bayada and dismissed the suit. The workers appealed and have now come up short again. The key to the Third Circuit’s ruling is at the end of the post.

        TAKEAWAY: Know how – and how much – to pay your various employees. Get legal advice to stay on the right side of legal.

eeoc raises fine for notice-posting violations

In the post on Thursday 4/20/2023 we saw the EEOC raises fine for notice-posting violations. To $659.00. You know that you as employer must post notices where workers can see them – examples are in the post. If there is no posting, or improper posting, the EEOC can levy a fine. The prior amount is noted in the post (it is not a small increase). And for what can the fine be assessed? See the post. And it should be the poster that was updated in October 2022 containing a QE code for worker ease; a link to the prior article with links to downloadable posters is in the post.

TAKEAWAY: Make your life easier; put the poster where it should be. And keep it there. Just do it.

elderly woman speaks out after condo manager attacked her and mouthed antisemitic curse

The post on Friday 4/21/2023 said an elderly woman speaks out after she says condo manager attacked her and mouthed antisemitic curse. Martha was following her normal routine – returning to her unit after working out. One elevator was not available, so Martha went to the other one. When it happened … the association manager approached and … (see the post and VID). The building’s guard stepped in, but the incident didn’t stop. You can read the post and watch the VID. Martha called the police. Martha then sent an email to the association about the incident (the contents of which are in the post). What was the association’s response? See the post (and probably be disappointed). Martha (and her husband) have not returned to their unit because of this.

TAKEAWAY: Condo and homeowners’ associations are responsible for the actions of their agents; there is also potential legal liability for harassment or discrimination based on a protected characteristic including religion. Know the law.

“cracking open a cold one on skype just isn’t the same”: molson coors defeats sales rep’s accom-modation claim

Finally, in the post yesterday 4/22/2023, we were told “Cracking open a cold one on Skype just isn’t the same”: Molson Coors defeats sales rep’s accommodation claim. The employee was a sales exec, serving Molson Coors’ largest customer, Buffalo Wild Wings. The man spent about half his time travelling which was part of his job description. In 2019, he had health issues and took medical leave. After a heart transplant, and exhausting available leave, he notified Molson Coors he could return with restrictions (as listed in the post). The interactive accommodation process began, but Molson Coors decided it could not accommodate his restrictions (for the reasons in the post). It then fired him and he sued for disability discrimination (under state law). The trial court dismissed the claim and this was affirmed on appeal. The basis for dismissal is described in the post – and makes complete sense.

TAKEAWAY: Remember that the worker must be able to perform the essential duties of the job with or without accommodation to be eligible for ADA (and applicable state law) protection; the employer need not change the essential functions. Contact an employment lawyer for assistance on accommodation issues.

Skip to content