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 continual change in federal labor and employment law 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 4/13/2025 was about how some of Trump’s firings could upend legal precedent and expand presidential power. It has been following the same pattern. First, an aide to the President emails a leader of an independent agency to fire them. Then the leader sues, citing a law on the books that protects them from getting fired without cause. And then the Trump administration argues that the law is unconstitutional. And the fight goes to court.
Many legal observers think, and it appears to be likely, that the administration is setting up a test case for the Supreme Court to revisit a 1935 decision that prevented a president from firing a member of the Federal Trade Commission and paved the way for independent boards to act more freely. Author’s note: keep in mind that the agencies whose leaders have been fired are supposed to be independent, i.e., not beholden to any party or person. Some of the things these various agencies do are listed in the post – and at least one of them probably touches everyone.
The Supreme Court precedent, Humphrey’s Executor, protects technical experts who head those agencies from political influence, but Trump and his supporters argue that limiting a president’s power to fire independent board members is an unconstitutional restriction of executive power.
As of the end of March, Trump had fired at least seven people who sit on independent boards because he disagrees with their views, even though laws passed by Congress protect them from serving at the pleasure of the president. Most have sued to block their firings. The judges hearing the cases have not all agreed on whether the firings are permissible (i.e., legal). Conventional thinking is that the cases will all be consolidated and argued before and decided by the Supreme Court. Given the current disposition and leanings of the Justices (see the post), a 6-3 or 5-4 decision upholding the administration’s view seems quite likely.
Let’s go a bit deeper with Humphrey’s Executor. That case started in 1933 when President Franklin D. Roosevelt became dissatisfied with William Humphrey, a member of the Federal Trade Commission, which is by law to protect consumers against monopolies. Humphrey had been appointed by Republican President Calvin Coolidge and the Senate had confirmed him to his six-year term. The law said he could only be fired for “inefficiency, neglect of duty or malfeasance in office.” But Roosevelt, a Democrat, didn’t agree with Humphrey’s politics and twice asked him to resign. Humphrey refused. Finally, Roosevelt fired him. Humphrey refused to recognize the firing, kept showing up for work, and sued the government, arguing that his firing was illegal. When Humphrey died, his estate took over the case, which went to the Supreme Court, and he/it won. The Court’s unanimous ruling in 1935 has reined in executive power over independent boards for nearly a century.
What is the danger if the current Supreme Court reverses this precedent? See the post. Just a few of the agencies most people are familiar with and that will be affected are the Consumer Product Safety Commission, the National Transportation Safety Board, the Federal Election Commission, and the Federal Communication Commission (FTC).
Who has been fired so far? Trump took what may be his biggest swing to date at Humphrey’s Executor in a March 18 email firing Rebecca Slaughter and Alvaro Bedoya, two Democratic members of the FTC. His aide forwarded a letter from Trump arguing that the Supreme Court decision doesn’t apply to them. What that letter said is in the post. Both Slaughter and Bedoya have sued, saying their firings are illegal and Humphrey’s Executor protects them. See the post. As of the date of this post, the administration had not filed a response to the lawsuit, but go back to more of what Trump said in the termination email (see the post).
Before firing Slaughter and Bedoya, Trump fired:
- Two Democrats on the Equal Employment Opportunity Commission (EEOC), which deals with workplace discrimination complaints;
- A Democratic member of the Federal Labor Relations Authority, which handles disputes between federal labor unions and the government;
- A Democratic member of the National Labor Relations Board (NLRB), which deals with disputes between private sector unions and employers; and
- A Democratic member of the Merit Systems Protection Board (MSPB), the first stop for federal employees seeking to complain about allegedly illegal treatment (which has perhaps become more important and relevant now than ever given the current administration’s downsizing of the federal government’s workforce).
We know from our prior post of Fri. 4/11/2025 that federal District Court judges reinstated the NLRB and MSPB members, but on appeal the reinstatements have been stayed. The effect of the stay is also in those posts. The case brought by the fired FTC commissioners, Slaughter and Bedoya, is in federal District Court in Washington, D.C. They too seek reinstatement and a ruling that Trump cannot fire them. There has been no ruling in this case yet, but the seesaw in the other cases might provide a clue as to the route this case will take.
In March a judge reinstated Susan Grundmann to her post on the Federal Labor Relations Authority in March. The basis of that decision is in the post. Importantly, the administration has not appealed that ruling.
But the administration did appeal decisions to reinstate Cathy Harris to the MSPB and Gwynne Wilcox to the NLRB. A three-judge panel of the D.C. Circuit Court of Appeals heard those two cases together. The panel split, with the majority agreeing with the argument of the Trump administration. More on the panel’s opinions is in the post (as well as our post of Mon. 4/7/2025). Harris and Wilcox asked for the full D.C. Circuit Court to hear their cases. That court recently reversed the panel in a 7-4 decision. Again, see our post of Fri. 4/11/2025 for more on that. Any appeal from that ruing goes to the Supreme Court.
TAKEAWAY: There is continuing flux in the makeup of some independent agencies, making it legally impossible for them to hear cases and issue decisions. This stoppage directly affects many people – and indirectly affects even more people – every day. Stay tuned.
The post on Monday 4/14/2025 asked: What if my employer asks me to do something illegal? This is a difficult position for an employee to be in: you may want to follow orders, but it could possibly result in you going to jail. Remember when ex Trump lawyer Jenna Ellis plead guilty several years ago to making false statements about election fraud in the 2020 presidential election? It was alleged that she attended a meeting with Georgia lawmakers where Trump personal lawyer and former New York Mayor Rudy Guiliani and Ellis both made false claims about voting irregularities (that are specified in the post). In her statement to the court, Ellis claimed that she relied on more experienced lawyers to provide her facts about the alleged election fraud. How she summed up is also in the post.
So what should an employee do if asked to do something illegal? The easy answer is: just say no. Because “I was just doing what I was told” is not a valid legal defense. But it’s not that easy when the employee does not want to lose their job. But think of Ellis and ask yourself if any job is worth going to jail over even if saying “no” to the supervisor means career suicide. Let’s say you are in this situation. What steps should you take?
First, get your supervisor to put in writing the claimed illegal order. Why? Evidence. For what might be the whistleblower process described in the post. The law may vary on how to report illegal conduct (see the post), so it is important that an employee knows which law may apply and how to report.
Think about first discussing the situation with your supervisor. They may not know that what they’ve asked you to do is illegal. How to handle this is detailed in the post (and may lead to a simple resolution). But if you cannot discuss the situation with your supervisor, or they “double down”, then speak with another supervisor, Human Resources, the Chief Executive/Financial Officer or even the company’s internal or external attorneys. Why? See the post.
But on the other hand, it might be a good idea to first talk to your own lawyer (before going to HR or your supervisor). Hire a skilled employment lawyer to get legal advice on how to proceed. Some of the things that might be discussed are in the post.
Finally, as Ellis found out, agreeing to do something that is illegal could ruin your career or put you in jail. What you should do if your employer won’t change its mind and you need to say no is in the post.
TAKEAWAY: it seems that more employees are finding themselves at this crossroads (or perhaps it is just more public now), so know what to do.
The post on Tuesday 4/15/2025 told us that a woman loses her home over unpaid $400 HOA fees. This should never have happened for so many reasons …
This was the fate of Taylor Sanders, an African American woman from North Carolina. Her 3,300-square-foot home was later flipped, leaving her with nothing. Let’s look at the facts.
This started five years ago when the HOA claimed that Sanders owed $400 in unpaid dues. She said she never received notices rom the HOA, but acknowledged she owed the debt. In February 2021, the HOA placed a lien on her property. By April, she was told that she owed $1,200 and foreclosure proceedings would start. Sanders thought it was all a misunderstanding and ignored the warning. Her home was eventually sold for $49,000, and the new owner then flipped it for $850,000 just five months later. Sanders is sharing her story to warn others about the risks of ignoring HOA notices.
What did the HOA say about this? See the post. Know that under North Carolina (and also Pennsylvania) law, HOAs can foreclose on properties if fees go unpaid. How that comes about is in the post.
North Carolina lawmakers are considering legislation that supposedly would strengthen homeowner protections (see the post), but the bill has been stalled in the Legislature since May 2024.
TAKEAWAY: Owners are responsible to pay all amounts due to their condo or homeowners’ association; their failure to do so can have dire consequences, including an eventual foreclosure. Consult with a community association lawyer if there are questions about failure to pay, catching up, or the Association’s enforcement rights and obligations.
The post on Wednesday 4/16/2025 noted that former EEOC officials defend DEI programs in response to Acting Chair’s technical assistance. Does this make for more confusion for employers – or does it simplify?
On April 3, 2025, a group of former EEOC officials issued a statement defending specific employer diversity, equity, and inclusion (DEI) programs in response to technical assistance issued by the EEOC’s acting director last month. The former officials assert that employers can implement specific DEI programs without violating anti-discrimination laws, despite the recent technical assistance that could classify such initiatives as unlawful discrimination. They identified some specific DEI-related initiatives (listed in the post) that are lawful and can help employers prevent unlawful discrimination in the workplace. The basis on which the former EEOC officials said that employers can and should act is also in the post.
The new EEOC technical assistance documents (Guidance) was issued on March 19, 2025, by Acting Chair Andrea Lucas. What the Guidance does is detailed in the post (and our earlier post of Thurs. 4/3/2025). The former EEOC officials said that companies have a legitimate interest in promoting diversity and can “adopt effective and lawful mechanisms to support diversity by advancing equal opportunity for all employees, without the use of illegal preferences.” (emphasis in original) More of what the former EEOC officials said, and their basis, is in the post. The statement is signed by several former EEOC officials who held the roles of chair, vice chair, acting chair, commissioner, general counsel and legal counsel including Charlotte Burrows (commissioner from 2015-2025 and chair 2021-2025), Chai R. Feldblum (commissioner 2010-2019), Jocelyn Samuels (commissioner 2020-2025, vice chair 2021-2025), Karla Gilbride (general counsel 2023-2025), P. David Lopez (general counsel 2010-2016), Peggy R. Mastroianni (legal counsel 2011-2017), and Ellen Vargyas (legal counsel 1994-2000) and multiple others listed in the post.
Specifically, the former EEOC officials identified several DEI programs that were called into question by the recent technical assistance that they argue can be implemented without violating anti-discrimination laws: (1) anti-discrimination and harassment training, (2) ERGs or affinity groups, (3) broader recruitment efforts, and (4) data collection designed to identify or prevent potential unlawful discrimination. The post contains details on the legal basis on which each of those can be implemented, along with relevant examples.
TAKEAWAY: given the administration’s attacks on DEI and employers’ attempts to implement programs to prevent unlawful employment discrimination and avoid liability from unlawful discrimination lawsuits, if you choose to do anything you should carefully think it through, read the Guidance, review the former officials’ statement, and meet with your employment lawyer.
In the post on Thursday 4/17/2025, we read that the EEOC chief shifts focus to investigating DEI, but the methods provoked an outcry. NOTE that this is a sister post to our post of Wed. 4/16/2025. The initial steps taken by Andrea Lucas, EEOC acting chief, have earned her strong backing from the Trump administration, and in fact Trump recently nominated Lucas to a new five-year term as commissioner. Lucas’ aim as acting chief of the top federal agency for protecting worker rights is clear and described in the post (and our posts of Mon. 2/24/2025, Fri. 2/28/2025, and Tues. 3/11/2025).
But former Democratic EEOC officials and prominent civil rights groups have accused Lucas of taking shortcuts that supersede her authority. They have also urged employers to be wary of her directives and guidance, if not to altogether ignore them. The biggest issue lies with two guidance (technical assistance) documents issued jointly by the EEOC and Department of Justice (DOJ). Details on those documents are in the post. The joint guidance follow letters that Lucas sent to 20 prominent law firms demanding information about diversity fellowships and other programs she claimed could be evidence of discriminatory practices.
A group of 10 former EEOC officials recently released its own letter warning the legal community that the joint guidance gives the misleading impression that common programs “are fraught with legal peril” – how they further characterized the guidance is in the post along with what action the former EEOC officials suggest be taken. More details are in our post on Wed. 4/16/2025.
Last month, many of those same former EEOC officials sent a letter to Lucas warning that she appeared to exceed her authority with her demands for information from the 20 law firms without first launching a formal investigation. A group of prominent civil rights organizations went a step further in their own letter to Lucas – see the post. Statements from some of the former EEOC officials and civil rights groups are also in the post.
Law firms – including some of the 20 targeted by Lucas – are already coming under pressure to change their approach to DEI in response to separate Trump executive orders designed to punish them for taking on the president’s rivals as clients and other actions that have angered him. One example is in the post (and has been in the news and is now joined by a handful of other similar examples that have been publicly reported). The 20 law firms targeted in Lucas’ letters did not respond to questions from The Associated Press about whether they intended to respond to her demands. Lucas did not respond to request for comment on the DEI technical assistance documents, and the EEOC declined to say whether the law firms have any legal obligation to respond to her letters or whether they would face any penalty for not doing so.
Lucas, a Republican who was first appointed to the EEOC in 2020, has long argued that she is not reinterpreting civil rights laws but rather doing something else – see the post. Lucas has argued that the EEOC has turned a blind eye to what she deems risky company practices (more details of which are in the post along with one of her statements).
An arm of the Society for Human Resource Management has said the EEOC has made especially clear that companies should avoid fellowships, internships and other programs that are only open to women or certain racial groups. And while Lucas has acknowledged that she cannot unilaterally change some of the EEOC’s guidelines and policies that may contradict Trump’s slew of executive orders, the EEOC has already moved to drop seven lawsuits alleging discrimination against transgender and nonbinary people in response to an executive order declaring that the government would only recognize the male and female genders. Why nothing formal can be done by the EEOC now is in the post – and our prior post on Wed. 3/5/2025. The letter from the former EEOC officials accused Lucas of cherry-picking rare instances of discrimination to convey the message that certain things are inherently risky, when in fact most are legally sound (as they noted in their letter and is in the post).
TAKEAWAY: it feels appropriate to again say that if you choose to take any action that in any way implicates DEI, you should carefully think it through, read the joint documents, review the former officials’ statement, and meet with your employment lawyer.
The post on Friday 4/18/2025 told us court rules owners must pay all assessments due PLUS all attorneys’ fees and costs incurred by condo association in 20+ year legal fight. While this case comes from another country, if it had been brought in the US it almost certainly would turn out the same, so let’s take a closer look.
Wallace I. Rolle and Krystal D. Rolle, the condo owners at issue, were attorneys who thought they knew better than the condo association itself. In 2001 they purchased a unit in the Town Court condominium, a property comprising 65 units. They never intended to live there, but rather it was always to be a rental property to generate income for them. Indeed, they enjoyed the rental income in the following years without the “inconvenience” of paying their share of the common expenses of the property. They refused to pay their assessments. They asserted that they had no legal obligation to do so.
The Rolles asserted that condo owners had no power to delegate their duties to manage, maintain and operate the condominium to a managing agent and that the agreement with the management company was therefore ‘null, void and of no legal effect’. The snowball effect they argued resulted from that is detailed in the post, with the end result being that nothing was legally due from them to the association. More of the facts …
Real Estate International was the agent hired to manage the Town Court condo complex on the management association’s behalf. The Rolles sued the condo association more than two decades ago in January 2005. The amount in dispute started smaller, but what it is now is in the post. And the Rolles did not stop there; they said that the management company/condo actually owed them money because it failed to fulfill its responsibilities. That allegedly resulted in a leak of water into their unit from the floor above, which the Rolles paid a plumber to fix at a cost of $5,946. The other basis on which they claimed they were owed money is in the post (and will figure later so keep it in mind).
On April 8, 2022, the court upheld the couple’s claim for the plumbing repair costs and awarded them $20,000 for the resulting loss of rental income but dismissed the rest of their claim for monies due to them. The association was to provide an accounting, and then the Rolles to pay it. If the parties could not agree on the amount due, the court would decide. The Rolles appealed, but their appeal was unanimously dismissed. They then appealed again, with the only remaining issue being whether the association had the power to delegate its functions of managing, maintaining and operating the condominium to a managing agent. The court found the Declaration was clear – see the post – but Ms. Rolle argued to the contrary anyway (yep, see the post for her argument). She was shot down. The court found (in part) that “… in failing and refusing to pay the managing agent’s fees, let alone the other elements of the contributions levied by the respondent, the appellants have been acting unlawfully for the past 25 years, in manifest breach of their obligations ….”
The court noted that the outstanding sum claimed by the Town Court management association was up to $118,658 in October 2014, before increasing to $222,302 in October 2019. The court found no explanation as to why it took 16 years for the matter to come to trial in February 2021 – its discussion of how this affected other owners, and admissions by the Rolles, is in the post.
The court found that their legal arguments were “wholly without legal substance” and “incapable of being argued” had they not been attorneys. The court also unanimously determined that the couple must pay the legal costs incurred by Town Court at every stage and hearing. But the court went even further as to what it ordered the Rolles to pay as explained in the post. That was because despite the Rolles only disputing some of the assessments, they never paid the amount that was not in dispute. Never.
TAKEAWAY: Let us be clear: owners of units in a condominium or homeowners’ association has a legal obligation to pay dues/assessments. The association has a legal duty to collect those assessments and (at least in Pennsylvania) can also collect from the owners the attorneys’ fees and costs of collection. Enlist a community association lawyer to help with your enforcement/collections.
Finally, in the post yesterday 4/19/2025, we reaffirmed that pregnancy discrimination remains EEOC priority, lawsuits show, but will that remain true under the Acting Chair?
The EEOC has reached settlements in two pregnancy discrimination cases and has filed a new lawsuit according to its recent media releases. In the first settlement, an assisted living facility paid $20,000 to resolve allegations that it refused to schedule and then fired a temporary worker upon learning she was pregnant. Details on the second settlement and the new suit are in the post. These all evidence at least the EEOC’s past interest in enforcing the Pregnant Workers Fairness Act. Whether that will continue is in question given that Acting Chair Andrea Lucas has expressed her opposition to parts of the final rule passed in April 2024.
Details of the history of the PWFA (to whom it applies, what it requires (or prohibits), and its timeline) are in the post. The EEOC finalized a rule in April 2024 clarifying that it regarded abortion as a “related medical condition” that could be protected under the law. The rule was finalized in June 2024, after which the EEOC filed three lawsuits.
In one of those suits, the EEOC alleged that a trucking equipment manufacturer refused to transfer a pregnant employee to a role that did not require lying on her stomach and forced her to take unpaid leave. Details about the allegations in the other cases are in the post. And yet another case dealt with postpartum pregnancy-related accommodations when a worker was fired for requesting leave to recover and grieve following a stillbirth. The accused Miami-based resort settled for $100,000.
The EEOC has not yet filed a suit related to abortion-related accommodations, but the controversial final rule has provoked a number of lawsuits from religiously affiliated employers. Last fall, a North Dakota judge enjoined the EEOC from enforcing the rule as against a Catholic employer organization – the basis of that is in the post. There were more recent rulings in Missouri, Louisiana and Mississippi that are noted in the post.
So while the final rule remains in effect as of now, Acting Chair Lucas has been clear that she intends for the agency to revisit the definition of “pregnancy, childbirth, or related medical conditions” once a quorum has been reestablished (which goes back to the firings and those pending suits as discussed in our post on Wed. 3/5/2025 ….)
TAKEAWAY: We feel like we are repeating ourselves, but it is true: where there are rules and laws in place, they remain valid unless and until a court overturns them or stays their application (or Congress or an agency repeals them), but employers must stay abreast of all of this so they k now what they can and cannot, or should or should not, do. Yep, keep your employment lawyer on speed dial.
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