Impact on employment laws of pandemic end; EEOC process; HOA/condo owners’ entitlement to records; AI use in hiring/firing; and more in Our Social Media Posts This Week, Aug. 13-19, 2023.

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

gluten-allergenic customer sues chipotle for discrimination

The post on Sunday 8/13/2023 told us a gluten-allergenic customer sues Chipotle for discrimination. Kristen Russell alleges in a recently filed disability suit that she was humiliated by employees when she tried to place an order at a Boston location in May 2022. Russell suffers from a gluten allergy, which is worse than Celiac Disease (the difference is explained in the post). Russell says that she always told employees at that location of her allergy when she ordered and that the staff had always been accommodating prior to that time in May 2022. What staff did for her is noted in the post. Russell says that the only thing on the menu she can’t safely eat is the flour tortilla. And what does Chipotle claim on its website about customer accommodation? See the post. So let’s jump back to that day in May 2022. Russell says that when she arrived, she notified counter staff of her allergy as she always did. But this time she was told there was nothing on the menu she could eat. Russell explained what normally happened, but after arguing with her the staff member called over the manager. What allegedly happened after that is described in the post. Needless to say, Russell has not been back to Chipotle since that incident. Her suit alleges violation of both the ADA and state law (along with emotional distress on the bases set forth in the post). Chipotle did not comment.

TAKEAWAY: No matter what segment of the market your workplace occupies, your employees must know how to fulfill their duty to accommodate customers or clients (or employees) – training is imperative.

the impact on eeo laws by the end of the covid-19 pandemic declaration

 The post on Monday 8/14/2023 was about the end of the COVID-19 pandemic declaration and the impact on EEO laws. The Administration announced the end of the COVID-19 pandemic declaration on May 11, 2023. That left employers facing uncharted waters. Many had implemented various workplace mandates during the pandemic, including those noted in the post. Federal and state regulations provided legal cover to employers for those mandates and financial assistance. And now that the COVID declaration has ended, the EEOC has warned that regulations in place related to COVID-19 should not just be abandoned wholesale. The EEOC has issued updated guidance for employers related to a post-pandemic workplace and workforce. The main laws that are impacted are the ADA, Title VII (specifically as to religious objections), and the ADEA. GINA (if you don’t’ know what that is, see the post) is implicated to a lesser degree. The EEOC guidance includes a non-exhaustive list of issues most important to employers which are also listed in the post.

Employers may still ask employees if they have COVID-19 symptoms and screen for symptoms when reporting to work if it is a business necessity (which keeping COVID out of the workplace could be). Other questions an employer may and MAY NOT ask are described in the post. And employers may still bar employees from entering the workplace if they present COVID-19 symptoms.

What about workplace vaccine requirements and accommodations? See the post. But beware that accommodating employees’ religious beliefs has now changed due to the recent Supreme Court decision in Groff v. DeJoy. Some of the things an employer may consider in determining if it can, or must, provide an accommodation are listed in the post.    

TAKEAWAY: Just as before and during the COVID pandemic, employers must know how (not) to proceed – getting advice from an employment lawyer is a good step.

the eeoc complaint process: steps and insights employers (and employees) need to know

The post on Tuesday 8/15/2023 was about the EEOC complaint process: steps and insights employers (and employees) need to know. Did your business recently receive an EEOC complaint? Do you know how to handle the process if you do? If you answered YES to either question, then you must know how to respond appropriately or your business could face a discrimina-tion lawsuit. And what could that do to you? See the post for various potential consequences. And that’s why understanding the EEOC complaint process is necessary for any business. What does the trend line show as to recent EEOC charges? Yep, see the post.

EEO laws protect employees from discrimination on the basis of sexual orientation, race, religion, age, gender, national origin, disability, or genetic information. If employees feel that they have experienced discrimination on the basis of those protected characteristics, they can file a complaint with the EEOC. How that can be done is in the post. The information the EEOC recommends that employees include in their complaints is also listed in the post.

What happens after an employee has filed a charge? The EEOC notifies the employee of the charge number and sends a copy of the charge to the business. Sometimes the EEOC offers mediation as an alternative method of resolution. What happens if the parties agreed to mediation is in the post. If mediation is not an option and is not agreed upon by both parties, then you will have to provide a written answer to the employee’s complaint. What happens after that is noted in the post. It can be time-consuming, which means it costs you money whether or not you have an attorney involved.

If the EEOC determines that no discrimination took place, you will receive a notice from the EEOC entitled ‘Dismissal and Notice of Rights.’ The employee will then have 90 days to file a lawsuit if they want. But what if the EEOC determines that there was discrimination? See the steps described in the post.

What is discussed above is for the private sector. Federal employees and job applicants must go through a different process to file a complaint of discrimination. That process has a few more steps and is detailed in the post.

But whether private or public/federal, at some point you may be the recipient of a charge filed with the EEOC and you need to respond. So, what should you do? First, describe the issue thoroughly. Set forth your defense in detail, including the legitimate business reasons for any adverse action taken. Next, provide context about your business. Things to include are listed in the post. Documents supporting your defense should also be included. You may need to redact certain information. Examples of documents that might be relevant are in the post. Two more things to do in preparing your response are described in the post.

And what are some things you should avoid during the EEOC complaint process? Not having proper documentation such as those things listed int eh post (as applicable to a particular situation). And not having an anti-discrimination policy. What your policy should include is noted in the post. And another thing to avoid is also in the post.

TAKEAWAY: Hoping you are never on the receiving end of an EEOC complaint is fine but know how to respond if your hopes are dashed. And get an employment lawyer involved.

woman battles hoa over property fence

The post on Wednesday 8/16/2023 showed us a woman battles HOA over property fence.  Jennipher Durden has been fighting with her HOA for over two years. And the latest action by the HOA has her really fed up. She says that one can look all the way down the street into others’ yards because part of the fence on her property has fallen. The part of the fence that is to be main-tained by the HOA. But that’s not the only issue with the fence – see the post. All worry because the current fence condition may allow pets to escape – or other critters to get in the yards. The HOA, through its management company, explained what it was doing (see the post). The builder denied responsibility.

        TAKEAWAY: Board and management agents must ensure that all association obligations are met – that requires knowing what those obligations are. Enlisting a community association lawyer might help.

hoa and condo q&a: are an association’s ledgers private relative to assessment delinquencies?

In the post on Thursday 8/17/2023 we read HOA and condo Q&A: Are an association’s ledgers private relative to assessment delinquencies? The answer depends on the provisions of the association’s Governing Documents and applicable state law (both relating to community associations and to the same type of business entity in general). An example of how this works under Florida law is in the post. But in Pennsylvania it might play out differently. There are provisions of the Uniform Condominium Act, Uniform Planned Community Act, and Uniform Cooperative Act that deal with an owner’s right to inspect association records; there are also provisions of both the non-profit and business corporation laws that deal with the right of a stockholder or member to review corporate records.  

TAKEAWAY: Know what your association’s Governing Documents and applicable law provide as to the information owners may obtain. Consult with a community association lawyer.

former county employee sues over maternity leave firing

The post on Friday 8/18/2023 explained that a former County employee sues over maternity leave firing. We noted that this is not the only suit the County faces … Angela Gabbard filed suit in federal court in OH against three judges on the trial court, the county and commis-sioners, seeking compensatory and punitive damages and to be returned to her job. Let’s look at the background. Gabbard had her baby on May 31, 2022. She had 30 days from then to provide her FMLA form to the county. On June 9th she gave the form to her doctor and told her supervisor that she had done that. About a month later, on July 13th, a co-worker asked when she intended to return; Gabbard said she would take the entire 12 weeks of leave; a week later she said she’d return in September. But Gabbard alleges that didn’t sit well with her supervisor. What made the supervisor unhappy is noted in the post.  Then by letter dated August 2nd, Gabbard was fired. The letter noted several purported bases for the termination. Gabbard says that she was never told additional paperwork was required. Judges and others involved would not comment.

And what about the other suit against the same county? It has been going on for over six years. A former magistrate claims that a judge fired her for being Jewish. A $1 million verdict was entered this past February in her favor but the suit continues. The background facts of that suit are in the post. And even though there was a jury verdict for the plaintiff, she has appealed the trial court’s dismissal of the county (and other things). On the other hand, the employer/judge appealed what is argued as an excessive jury verdict.

TAKEAWAY: Discrimination happens at all levels and in all workplaces; employers need to know what action they can and cannot legally take against employees.

developing principles and protocols for recruiting and hiring with ai

Finally, in the post yesterday 8/19/2023, we learned about developing principles and protocols for recruiting and hiring with AI. We all know that the rise in AI across all business functions has spiked dramatically and that generative AI has taken center stage, even raising existential questions in the minds of its creators. That all makes it even more important that business leaders need a road map for the use of AI — not just for defense and reducing the risk of legal liability, but also to embed the responsible use of AI and machine learning in the workplace.

In May 2023 the EEOC issued new technical guidance demonstrating how Title VII applies to companies using AI-based decision-making tools around employment. The new guidance follows prior guidance from 2021, its Artificial Intelligence and Algorithmic Fairness Initiative (linked and described in the post). Employers must remember that even though AI tools may be developed by outside vendors, their responsible use is squarely in the employer’s hands. And there might even be more legal liability on behalf of the employer – see the post.

As a threshold, employers using AI for recruiting and hiring should ask questions including how much input the AI tool will have on the hiring decision, whether the candidates know that an AI tool is being used as part of the hiring process, and others listed in the post.

The federal government may soon be int eh game of regulating AI use. NLRB General Counsel takes the position that certain AI technology tools used by  employers to manage employee job performance may be problematic. Other governmental offices are also looking into AI – see the post.

Given all of this, and the alarming pace at which AI is growing and evolving, what are some things employers who use AI in employment can and should be doing? First, as to any systems used for recruiting and hiring, review them frequently for validity and reliability, and ask if they are reducing and managing harmful bias. Next, facilitate company-wide practices around accountability, compliance and transparency. Other things employers should do are listed in the post.

TAKEAWAY: AI is here to stay; know how to use it properly and legally so that it is an aid to your business and not a legal liability.

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