ICYMI: Our Social Media Posts This Week – Nov. 10-16, 2019

Below is a review of the posts (on FacebookLinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 11/10/19 we learned that the NLRB ruled that company’s media and confidentiality policies are lawful. We reminded you that this applies to ALL workplaces. The focus here was on restrictions on communications responsive to inquires from the media. The rule that was at issue is listed in the post. Board counsel alleged that the rule violated the NLRA by chilling the exercise of Section 7 rights, including that noted in the post. The ALJ agreed. However, the full Board did not. It looked at the language of the rule and what it has deemed “Category 1” rules under a prior decision (noted in the post).

TAKEAWAY: In all workplaces, make sure your rules and policies are legal under the NLRA – consult an employment and labor law attorney.

The posts on Monday 11/11/19, here and here, were a thank you to veterans and reminder of their protections under USERRA. Know the law.

TAKEAWAY: Those who have and are serving in the armed forces have rights under the law – make sure to give them what they are entitled to.

The post on Tuesday 11/12/19 told us that Eagle United Truck Wash will pay $40,000 to settle an EEOC racial harassment and retaliation suit. The company operates these truck washes around the country. But the allegations arose from a location in PA. Eagle’s supervisors and co-workers allegedly harassed an African American truck washer to verbal harassment as noted in the post. He complained, but it continued. He was then fired. Ugh. After the EEOC sued, Eagle settled for the terms noted in the post.

TAKEAWAY: Don’t think your managers can get away with illegal discrimination or retaliation – they can’t – and you will end up paying the price.

The post on Wednesday 11/13/19 showed us that a Judge’s decision to overrule a jury over Christmas lights was appealed. So, what happened? And what should you keep in mind at this time of year relative to your Association (whether you are an owner, Board member, or counsel)? The Morrises hosted an annual Christmas display at their home; they asked for donations to charities as noted in the post. In 2014, they moved to a new community and told the homeowners association about what they do. The HOA’s response is in the post. The Morrises sued in federal court. A jury found in their favor and awarded them monetary damages. The judge overruled the jury verdict and took the action noted in the post. They have now appealed. Stay tuned.

TAKEAWAY: As noted in the post, make sure any restriction is not based on religion (or any other protected characteristic) – consult a community association lawyer (like us) so your association doesn’t end up as a defendant.

In the post on Thursday 11/14/19 we saw that a Missouri cop got $19M in anti-gay discrimination suit. No, that is not a typo. Wildhaber was a police sergeant. He sued in 2017, alleging that he was passed over for multiple promotions based on sexual orientation. Some of the things he cited in support for his allegations are listed in the post. Of course he complained; nothing was done, so he filed a charge with the EEOC. What the employer did after that is in the post. He then filed a charge of retaliation. Some of the testimony that came out during the trial is in the post and is not favorable to the employer. How the jury broke out its award is also in the post. A comment from the jury foreman is also in the post and shows a new day has dawned.

TAKEAWAY: Even without a Supreme Court ruling on whether Title VII protects sexual orientation, such protection is being recognized on the state level. Be careful of your actions.

The post on Friday 11/15/19 taught us that an employee absent nearly 60% of the time was unqualified under the ADA. Adrianne was an insurance auditor. She exhausted her FMLA leave. The employer at first approved a disability accommodation as noted in the post. When she needed ore than that, she was fired. She sued. Both the trial and appellate courts found in favor of the employer. Their reasoning is in the post.

TAKEAWAY: Yes, the ADA can come into play after FMLA leave is exhausted. And yes, the essential functions of a job still apply, which might include presence at the job site. Work with an employment lawyer to make sure any accommodation issues are resolved legally.

Finally, in the post yesterday 11/16/19 we saw that Founders Brewing settled a racial discrimination lawsuit with former employee. Some of the allegations in the suit brought by the former employee included that co-workers called him the N-word, labelled one printer “white guy printer” and another “black guy printer”, and more noted in the post. Evans and the company apparently got together and came to a settlement, but its terms are not public. What is public, and noted in the post, are some excerpts from deposition testimony about whether the company’s GM knew Evans’ race – you decide whether or not it’s believable. Also interesting is that the employer’s now-former diversity and inclusion director resigned a week before the settlement; why she resigned is noted in the post.

TAKEAWAY: Don’t discriminate against anyone on the basis of a protected characteristic – the court of public opinion might be even harsher than any judicial court’s award.

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