In the post on Sunday 7/24/2022 we had a timely employer’s guide to workplace protections for abortion-related decisions. The June 2022 SCOTUS decision in Dobbs v Jackson Women’s Health Organization has perhaps brought more questions than answers for employers, such as: Can employees take job-protected leave to travel to another state to obtain abortion-related services? And what other rights might employees have under federal employment laws? It’s important to know the answers. First, Title VII, through the Pregnancy Discrimination Act (PDA), bans discrimination on the basis of pregnancy, childbirth and related medical conditions (as being unlawful sex discrimination). The EEOC tells us how an employee’s decision whether or not to have an abortion plays into that – see the post. And what about health plan coverage? From existing EEOC Guidance from 2015 we know that Title VII does not require an employer to pay for coverage of abortion except in limited circumstances noted in the post. But if an employer does decide to cover abortions-related services, that coverage must be the same as for other medical conditions. State law may also apply (see the post). And what about employers who are self-insured and are therefore governed by ERISA, a federal law, instead of state insurance law? Anticipate litigation as noted in the post. For those employers who will provide travel benefits to covered employees, some things to consider are noted in the post – and remain subject to ever-changing state laws. And let’s circle back to the question of job-protected leave based on an absence for travel to obtain abortion-related services. What Title VII requires is noted in the post; on top of that, such leave might be a reasonable accommodation in certain situations (and there might also be state law that provides protection). Those accom-modations come into play under the PDA, ADA, and FMLA. When those laws might apply is noted briefly in the post as well as tips for employers relative to each of those laws.
TAKEAWAY: Employers must still know federal anti-discrimination and other laws along with a state law overlay. Get good legal counsel.
The post on Monday 7/25/2022 was about 11 employment laws every business (owner) should know. Alphabet soup in a way, but an important way. The 11 are worker’s compensation laws, social media rights, employee benefits laws, FMLA, FLSA, FCRA, EPA, NLRA, Title VII, the IRS 20-factor test, and OSHA. Let’s review those 11. First, worker’s compensation laws vary by state and have loopholes for the unwary, one example of which is in the post. Next, social media rights. In the employment context this is not a First Amendment issue, but rather something that has come up under the National Labor Relations Act (NLRA) which, as you may recall, APPLIES IN PART TO ALL WORKPLACES REGARDLESS OF UNIONIZATION STATUS. The post touches on an employer’s considerations in the social media context. And then there are employee benefits laws, including the ACA, HIPAA and COBRA. Each has different eligibility requirements and obligations – employers must know them. Who is covered by the provisions of the FMLA and what it provides are noted in the post. The FLSA is the main wage law in the US; it includes overtime requirements and more as noted in the post. Employers probably don’t give much thought to the Fair Credit Reporting Act, but they should if they run background checks. Some requirements and obliga-tions under the Act are noted in the post. The Equal Pay Act is described in the post as well as some applicability of the NLRA and its penalties. Likewise, Title VII’s broad reach is described in the post along with an example of where it might unintentionally apply. And what about the IRS’s 20-factor test; what is that? It is the guideline (along with other laws depending on where the employer or employee is located 0- see the post) for worker classification as an employee or independent contractor. Finally, what the Occupational Safety and Health Act does, and to which businesses it applies, are noted in the post.
TAKEAWAY: You cannot run a business without knowing which laws do or might apply to your workforce. Period.
The post on Tuesday 7/26/2022 showed us an HOA tells homeowner to remove pride display. Jordan Hall put up the display in June which is Pride Month, but on July 8th he got a letter from his homeowners’ association providing 48 hours to remove it. At night you can see the display briefly between the trees when going toward the community; the colors pale in comparison to bright white porch lights. Where did Hall get the idea for his display? From the top (see the post). The reasons given by the HOA for removal are noted in the post – and it denied any discriminatory or improper motive. Hall makes a distinction between his light display and something that is permanent and continually visible. He also points to how the HOA has responded to Christmas and other lights at various houses in the neighborhood (noted in the post). The irony behind this is Hall moved to his home because he thought the city was moderate and progressive and a good place for a gay man. He’s hosted pride parties and erected other pride displays over the years he’s been there. In 2021, the HOA president attended a pride party as a neighbor, but Hall thinks he knows why (see the post). Hall says he will keep up his display and may file suit if necessary
TAKEAWAY: All planned communities, whether condominium, homeowners’ or cooperative, have rules and restrictions that apply to all owners, but those restrictions cannot trump state or federal law. Consult a community association lawyer with your questions.
The post on Wednesday 7/27/2022 advised of a PriceWaterhouseCoopers (PwC) age discrimination $11.6M class action settlement. PwC is a tax and auditing company that serves many industries and has over 295,000 employees in 156 countries. But a class action suit was filed against it alleging that it refused to hire associates over the age of 40 and used questionable hiring practices (such as those noted in the post). And more? Yep, see the post. PwC admits no liability but has agreed to settle. The large fund includes a reserve for some applicants (as noted in the post) and will be applied based on weighted criteria (again as noted in the post). The settle-ment also includes non-monetary relief, which often can be as important, if not more important, than the monetary relief. What PwC agreed to is noted in the post.
TAKEAWAY: Whether intentional or not, age discrimination is illegal – know what cannot be said or done, and then don’t say or do it.
In the post on Thursday 7/28/2022 we saw that the EEOC said 2 fired for not joining company Christian prayer. The suit alleges that two employees with a North Carolina company say they were fired after refusing to participate in the firm’s daily Christian prayer meetings, which they said went against their respective religious beliefs. John McGaha was a construction manager at Aurora Pro Services and Mackenzie Saunders was a customer service rep. This suit comes on the heels of a ruling by the U.S. Supreme Court that a high school football coach who knelt and prayed on the field after games was protected by the Constitution. The EEOC alleges that daily prayer meetings are part of Aurora’s business model, though there is no reference to it on its web page. And what about attendance and repercussions for not attending? See the post. And what were the prayers for? Also in the post. McGaha, who identifies himself as an atheist, was hired on June 8, 2020. He said the prayer meetings, which initially lasted around 15 minutes, stretched in length to around 45 minutes and even longer. Saunders, who worked at Aurora from November 2020 until Jan. 21, 2021, describes herself as noted in the post. The Complaint further alleges that McGaha said the longer the prayer meetings went, the less tolerable they became. On one occasion he was asked to lead the Christian prayer, which he refused. In late August 2020, he asked the owner of the company to be excused from those parts of the meeting that pertained to religion because of his conflict with it; the owner’s response is in the post. McGaha asked again in September 2020 to be excused. The post also contains the owner’s response to that request. McGaha refused and he was fired, but before that the company took some other actions as noted in the post In January 2021, Saunders stopped going to the prayer meetings because they conflicted with her religion. What the owner told her when she was fired is in the post, What relief does the EEOC seek in the suit? See the post
TAKEAWAY: Remember that employees are entitled to their (lack of) religious beliefs and the employer must try to reasonably accommodate those beliefs. A complete refusal (most likely) does not meet that standard.
The post on Friday 7/29/2022 showed us an HOA president wants to tow tenant’s unregistered vehicles. Can it be done legally? There are several issues that arose with a tenant, not an owner. Violation notices were sent and extensions provided, to no avail. The tenant came to a hearing, but he was claiming “racism” and the board got scared and did nothing. He has two white Mercedes plated in Texas, with no date/sticker on them, in two unnumbered spots in the back lot. He also has a red/orange RoadRunner, parked in his numbered spot, but with an expired plate from 2015 (not a typo). The association’s rule book says “All vehicles on property must be registered and insured.” So what can or should the association do? See the post.
TAKEAWAY: If the Declaration, Bylaws or Rules and Regulations (as applicable) are followed, in every case, then there should be no support for any claim of discrimination on the basis of a protected characteristic (race or other). Consult a community association lawyer for assistance.
Finally, in the post yesterday 7/30/2022, we talked of supreme agitation: prepare for employee protest and socmedia activity now that Supreme Court has issued abortion decision. This post follows our post on Sunday 7/24/2022. So what might be expected? Increased social media activity by employees, passionate discussion around the water cooler, and employees wearing badges or T-shirts or other clothing which takes one side or the other on the abortion rights debate. Given that, employers must consider employees’ rights to engage in protected concerted activity (remember that pesky Section 7 of the NLRA that applies to EVERY workplace, union or not?!?!) before deciding whether to take disciplinary action against those employees. And because the abortion rights debate is often intertwined with religious beliefs, employers must also consider something else that is noted in the post. Can a private employer just ban what appear to be political discussions during work hours or in work-related forums? From making personal social media posts that name their employers? That’s where the potential protection under the NLRA comes in. The scope of the protection is noted in the post. Employee discussions about employer support for abortion through coverage of abortion care under its benefit plans might come under that NLRA protection. The current General Counsel of the National Labor Relations Board, which enforces the NLRA, has indicated that her office holds a very expansive view of the activities protected by the NLRA, including employee concerns relating to social justice issues and political protests. She also opined on whether speech by a single employee can be protected concerted activity – see the post. All of this means that employers must look at any employee speech, protest, or social media posts about abortion rights through the lens of potential NLRA protection. One particular example that is now popping up everywhere is discussed in the post. And wait, there’s more. You will recall that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination or harassment based on religious beliefs and may require that an employer accommodate some religious expression in the workplace. But what is an employer to do when other employees feel harassed because they may not share the same religious beliefs as those whose beliefs are to be accommodated? See the post for considerations and tips. So yes, each situation must be analyzed on its own as the decision on whether the subject speech implicates Title VII the NLRA is fact-specific.
TAKEAWAY: Review your social media policy (or put one in place!) and contact your employment lawyer if (when?) these situations arise.