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 all of the changes in federal labor and employment agencies and executive orders (EOs), so check with us or another employment lawyer before taking any action based on something in our posts.
The post on Sunday 3/23/2025 alerted us that National Labor Relations Board (NLRB) Acting General Counsel rescinds numerous predecessor’s memoranda (including relative to noncompete agreements). Yes, continuing constant state of flux in labor & employment law now.
Less than one month into the new administration, several memoranda issued by former NLRB General Counsel Jennifer Abruzzo were rescinded, including GC 21-06 and GC 21-07 addressing remedies to be sought; GC 21-08 on the rights of student-athletes under the National Labor Relations Act (NLRA); GC 23-02 on electronic monitoring; GC 23-05 on severance agreements; and GC 23-08 and GC 25-01 on non-compete agreements. The last 3 have significant impact for employers that use non-compete agreements in their employment or severance agreements. More detail on what each of those 3 provided is in the post.
Although General Counsel’s memoranda were not binding law, they still had legal significance because they painted the legal landscape and informed the NLRB on how to interpret and enforce the NLRA moving forward. Similarly, rescission of the memoranda also is significant for employers that use non-compete provisions because it can be seen as underpinning a new era of labor policy (how/why is in the post). But the rescission does not overturn McLaren Macomb and Stericycle, Inc..
In McLaren Macomb the NLRBheld that employers may not offer employees severance agreements that require employees to broadly waive their rights under the NLRA. In Stericycle Inc., the Board adopted a new legal standard for evaluating employer work rules challenged as facially unlawful under Section 8(a)(1) of the NLRA. The Stericycle standard is set forth in the post. Both of these decisions are still enforceable and can only be overturned by a subsequent NLRB decision.
Also, the rescission does not apply to other restrictive covenants such as confidentiality and non-solicitation provisions. What does this mean for employers? Proceed with caution, especially given the conflicting decisions regarding non-compete agreements by the various NLRB administrative law judges (see the post for the gamut covered).
So why do (or should) employers care about the rescission? Because it gives an anticipatory glimpse at how non-competes may be viewed by the NLRB moving forward. But at this time, what employers should do is noted in the post.
TAKEAWAY: Employers (ALL employers, union or not) should continue to monitor and keep abreast of updates in this area and seek guidance from their labor and employment lawyers – you still want to be on the right side of legal.
The post on Monday 3/24/2025 talked about an $11M verdict in an employment discrimination case despite absence of economic damages for wages and benefits. Employers beware! The case, Roque v. Octapharma Plasma Inc., comes from a California jury verdict in favor of an individual plaintiff but is still helpful for employers in other states.
Alice Roque was 74 years old when she was terminated after working nearly 19 years for Octapharma Plasma, Inc. Prior to termination, Roque had been reassigned from a position that permitted her to sit to one that required standing, resulting in back pain. After Roque reported her back pain, her supervisor suggested that she resign (see the post for a little side tiff on this). Shortly after that, Roque went on medical leave that was later extended by doctor’s notes provided to Octapharma. Before her leave ended, Octapharma terminated Roque’s employment. Roque alleged that despite her protests and requests to keep her job, Octapharma made no efforts to remedy the situation.
Roque’s lawsuit alleging 12 causes of action followed. After years of litigation in state court, the jury found Octapharma liable on the claims of failure to accommodate, age discrimination, and failure to take steps to prevent such discrimination. And despite Roque having waived economic damages, the jury awarded her more than $2.2 million for past and future physical injuries (what this compensated her for is in the post) and emotional distress (again, see the post for what this compensated). The jury also found that Octapharma acted with malice, fraud, and oppression and thus awarded $9 million in punitive damages. But Octopharma will probably be on the hook for even more than the $11M+ – see the post.
This was not the largest verdict ever awarded by a California jury in an employment case, but it does bring two warnings to employers. First, keep in mind the unpredictability of employment cases brought to verdict in a jury trial and the importance of a robust arbitration program by employers. The second warning is in the post.
TAKEAWAY: Facts matter, and when they show a failure by the employer to fulfill its obligation to (try to) reasonably accommodate, liability and possibly a huge damages award will result.
The post on Tuesday 3/25/2025 told us that employee replaced by white male coupled with employer’s poor investigation fuels disparate treatment claim. This is another roadmap for employers. In Lui v. DeJoy, a federal appellate court held that demotion of a woman of Chinese ethnicity, when coupled with a white male replacing her, gave rise to an inference of discrimination. Further, the employer’s investigation into the demotion and the employee’s related complaints lacked depth and independence and were insufficient to show a legitimate, nondiscriminatory reason for the demotion. Let’s go deeper.
Dawn Lui, a woman of Chinese ethnicity, worked for the United States Postal Service (USPS) since 1992 and was promoted to Postmaster of the Shelton, Washington Post Office in 2014. After her promotion, Lui alleged that she was targeted with false complaints related to her sex, race, and national origin. Lui’s supervisor reported his concerns about Lui’s treatment to Human Resources and alleged that the HR Manager worked closely with one of Lui’s alleged perpetrators to pursue discipline against Lui. USPS then asked Lui’s supervisor to demote Lui based on “Unacceptable Conduct[.]” The supervisor refused because he thought the allegations were false. USPS replaced Lui’s supervisor with a different manager who approved Lui’s demotion. USPS then replaced Lui with a white man.
Lui internally appealed her demotion to Karen Bacon, the Tacoma Postmaster. Bacon’s investigation involved only a review of documentation related to HR’s demotion decision and written complaints by other employees about Lui. Bacon then affirmed the demotion. Lui filed suit against USPS in federal court, alleging a hostile work environment, discrimination based on race, color, sex, national origin, and age, and retaliation. The trial (district) court granted summary judgment against Lui on all of her claims. Lui appealed.
The Court of Appeals then reversed the district court’s grant of summary judgment on Lui’s disparate treatment claim on two bases: (1) a discriminatory inference from the demotion coupled with replacement by a white male and (2) what the investigation did not show.
As to the first item, the court held that Lui showed that she was: (1) demoted from her position at a lower salary and (2) replaced by a white man, thus an inference of discrimination arose. And once she made that showing, she satisfied the fourth element of her prima facie discrimination claim. (Note: all four elements that a plaintiff must show are laid out in the post. Only the fourth element was at issue in this case.)
Next the court looked at USPS’s investigation into Lui’s demotion relative to its burden to show a legitimate, nondiscriminatory reason for the adverse employment action (the demotion). The court found that the facts did not support that burden – see the post for the analysis.
So why do you as an employer care about a case coming out of CA? Because the appellate decision emphasizes two critical elements of employment decision-making (as listed in the post). When both of the issues arise, companies should proceed carefully and make sure their decisions are supported at each step.
TAKEAWAY: It is not news to employers that they must have a valid legal basis for their decisions, especially those that are adverse to one or more employees. This case demonstrates the liability that can attach to a failure to have that legal basis. Consult an employment lawyer before taking adverse action.
The post on Wednesday 3/26/2025 asked: Can condo/HOA make rules about where a dog can be walked in a neighborhood? First the factual scenario.
A couple retired and moved into a condo several years ago. They noted that one of the rules provided for dogs to be walked away from residences. Most of the townhouse-type units have front, back and/or side yards. Also, the units in the small community are arranged in cul-de-sacs around islands with plants and grass, with plants and a lawn around the pool entrance and a small, wooded area in one corner of the property. The couple thought that dog owners had plenty of convenient places to walk their dogs (in addition to their own lawn areas), so the rule seemed considerate and reasonable. Then recently a new owner (who happens to be a lawyer) with a dog moved in. He says that the governing documents give him the right to walk his dog on any and all common areas (defined as noted in the post). He claims that the association cannot limit where owners, guests and their dogs may walk. That might lead to several unappetizing scenarios like those mentioned in the post. The couple asked if the new neighbor is correct.
The answer is “it depends” or “maybe”. Because generally unit owners in a condominium have the right to use and travel though the common elements. But that right is subject to restrictions in the governing documents and any applicable rules. If the new neighbor was correct about the rule at issue here, then an example of what might ensue is in the post. The neighbor has probably overstated his rights as subject to the board’s promulgation of reasonable rules. But “reasonable” is the key word. How something is looked at – and possible alternatives including lesser restrictions – can determine reasonableness; see the post.
TAKEAWAY: Know what your association’s governing documents (and applicable law) provide – get a community association lawyer involved early on.
In the post on Thursday 3/27/2025, we read that homeowners facing thousands in fines oust HOA board. The facts here are sad but probably not unique. NOTE: the post also contains an embedded VID.
Homeowners one neighborhood claim their HOA president is retaliating against residents who think she is mishandling their dues as some face fines that could cost their houses. “I’m fearful when I leave my home,” said Jacques Boyd, echoing others living in the community (east of Atlanta). What many residents have done as a result of the HOA president’s alleged actions is in the post. One resident, Frank Bosah, recently received a debt collection bill from the HOA for $137,768 with no explanation. What did his attorney say about that? See the post. Bosah thinks Melanie Downing, the HOA president, wants his house. (What an HOA in GA can do if an owner is in arrears is noted in the post.) Bosah’s house has six bedrooms and an additional mini-apartment in the basement with a large backyard.
Downing lives down the street, next to David and Hattie Williams, who are both elderly and battling cancer. Their son, John Coleman, and his family moved in to help care for David & Hattie. How Coleman feels about the current situation is in the post. After arguments with Downing over property lines, Coleman filed a police report alleging that she kicked him. What the police did with the complaint is in the post. Soon after that, the Williamses/Colemans received a debt collection notice of $10,150, with no explanation. How the situation has affected David and Hattie is also in the post.
Homeowners said they began asking for financial ledgers when their dues went up $500 this year. In 2019, when the first homes sold, HOA dues were $500. When Downing took over in 2022, dues increased to $745. This year, dues are $1,316. Another comparison: in 2021, grounds and maintenance costs were budgeted at $4,000. In 2024, that budget increased to $18,000.
Homeowners also claim that Downing elected her own board of two people, has only shared proposed budgets for 2024 and 2025, and has never provided receipts for anything.
And look at the community. It is only 28 homes along a 0.2-mile street. Owners are responsible for mowing their own lawns, with the HOA responsible only for grounds to the entrance, the mailbox area, and a retention pond. What two things did the Board do this year that have owners asking questions? See the post. A local tv station reached out to the management company, SMGmanagement. They said they terminated their contract with the HOA. Their full response is in the post. The tv station also reached out to the law firm that issued the debt collection letters to residents but had not received a response as of publication. And what about Downing, the HOA president? When the tv station reached her by phone, Downing said she cannot comment due to “pending litigation.” After that residents shared a video of Downing in an HOA meeting. What it shows is in the post (and is interesting in how she distinguishes her responsibilities from that of other owners). The tv station reviewed the governing documents to see if they backed up Downing’s claims – see the post for the result.
After several residents legally requested financial documents, a special meeting was scheduled for Feb. 1, 2025, to vote for a new HOA board. One owner said that Downing told them that they had to pay a $200 special assessment fee in order to vote, as well as a late fee of $50. Whether that comports with GA law is in the post. So the special election went forward. Takesha Allen is now the legal HOA president after receiving 16 votes; there is also a new secretary and treasurer. But (not surprisingly?) Downing has not acknowledged the election, causing the board to take the action noted in the post. And coincidentally (?) the owners who voted for Allen have begun receiving more fines since the election. What a few neighbors said about the notices they received (including basis and background) is in the post (and makes one laugh a bit). And the fines keep coming – see the post. One family had enough – they filed suit against Downing for harassment. That is on top of the action the new HOA board had to take (as mentioned above and in the post).
State law gives owners the right to view their HOA’s financial records. But apparently no agency enforces that law; what the attorney general advises owners to do is in the post. Some state legislators have tried to put more teeth in the law. How that has worked out so far is noted in the post.
TAKEAWAY: don’t let one bully run the association / board – all board members are fiduciaries who must participate in decisions and follow the governing documents and applicable law. Ensure legal advice from a community association lawyer.
The post on Friday 3/28/2025 told us the Pennsylvania Public Utility Commission (PUC) ordered to pay more than $71K in disability discrimination case. One way or another, that is taxpayer dollars.
The Pennsylvania Human Relations Commission (PHRC) has ordered the PUC to pay a lump sum of $71,560.42 and continue to the pay the complainant lost wages for up to one year in an employment discrimination case that was dual filed with the PHRC and the US Equal Employment Opportunity Commission.
The PHRC determined that the PUC discriminated against the complainant based on disability by failing to provide a reasonable accommodation of full-time telework and by making working conditions so intolerable that the complainant was forced to resign. A rare public hearing was held October 16 and 17, 2024 in Dauphin County. Who participated in the hearing is detailed in the post (along with a statement by PHRC Executive Director Chad Dion Lassiter) In its final order of February 24, the Commission ordered seven (7) things:
- The PUC is to pay the complainant a lump sum amount of $71,560.42, (what makes up that amount is in the post);
- The PUC to pay the complainant lost wages at the rate of $930 per week, less gross interim earnings reported by the complainant, from the date of the order and continuing for a period of one year (front pay);
- The complainant is to file semi-annual reports with the PUC indicating the gross amount of earnings during the previous six-month period, for a period of one year. If the amount the complainant earned is less than what they would have earned as a PUC employee, then PUC is to pay the amount of gross earnings they would have earned with PUC minus their gross earnings during the relevant six-month period;
- The complainant is to continue making good faith efforts to secure employment in mitigation of the damages;
And the other three things described in the post.
TAKEAWAY: Nobody is immune from (applicable) law. Employers, public and private, must ensure they comply with all obligations, including reasonably accommodating employees with disabilities.
Finally, in the post yesterday 3/29/2025, we read that university professor alleges wrongful termination after travel crisis prevented timely return from FMLA leave. Statutory interpretation can be so important! Dr. Gholam R. Ehteshami, a longtime professor of Chemical Engineering Technology at Navajo Technical University (NTU), is challenging his termination that occurred while he was on federally protected medical leave. He claims he was improperly terminated for “job abandonment” despite his decade of service to NTU. The case raises significant questions about employee protections under the Family and Medical Leave Act (FMLA) and employers’ obligations when unforeseen circumstances affect an employee’s return-to-work timeline (meaning that all employers should pay attention).
Let’s first look at the background of the termination. First, what Dr. Ehteshami had done while at NTU is in the post. Dr. Ehteshami was abroad, supposedly in Iran, on approved FMLA leave to care for his ill wife. When attempting to return to the US, he encountered an unforeseen political crisis that resulted in flight cancelations beyond his control, thus preventing his timely return to campus. Despite his efforts to return and his eventual arrival back on campus just days after his expected return date, NTU terminated his employment, claiming “job abandonment”. The university allegedly locked him out of his email and proceeded to replace him in his position.
And what about the FMLA? What it provides to eligible employees is in the post. The purpose of FMLA protection is to ensure that employees who need to take leave for medical or family reasons do not risk losing their jobs. How the protections are (or are not) affected by workplace changes while the person is out on approved leave is also discussed in the post. But what about a situation like Dr. Ehteshami’s, with only a brief delay in return due to circumstances beyond his control? AN employer should carefully consider whether termination is appropriate, including looking at the things noted in the post.
Here a significant complicating factor is the communication difficulties Dr. Ehteshami faced while in Iran. What was happening in Iran that played into this is detailed in the post. All of that may have affected Dr. Ehteshami’s ability to provide timely updates to NTU regarding his travel situation. How other courts have ruled when deciding whether marking an employee as absent without leave (AWOL) is appropriate when circumstances beyond their control prevent timely return is one thing to be considered, along with what is noted in the post.
Dr. Ehteshami filed a formal complaint with the US Department of Labor and is considering additional legal action under Navajo labor laws. The case presents legal questions regarding the interplay between FMLA protections and unexpected travel disruptions. While the FMLA does not provide absolute protection against termination, adverse employment action must be clearly unrelated to the employee’s exercise of FMLA rights. The employer bears the burden of demonstrating that an employee would not have remained employed regardless of taking leave. Several court cases have addressed similar situations. One is described in the post. What employers generally are expected to show when claiming job abandonment is in the post. That may be difficult for NTU to do here given the facts.
Another offroad here is that NTU policies may also come into play (as long as they do not contradict the FMLA). Because faculty often have complex work arrangements that involve teaching, research, and service obligations, there might not be a neat fit into the FMLA’s hour-counting framework.
So what can employers learn from this case (especially given the daily changes in requirements for international travel)? Employers may need to develop more flexible policies to accommodate unexpected travel disruptions, particularly when dealing with political instability or communication restrictions. Thinking outside the box might be required (such as occurred in the example discussed in the post).
And what about Dr. Ehteshami? He has requested that NTU reconsider its decision, reinstate him, and revise its leave policies to prevent similar situations in the future. If his complaint proceeds, investigators would likely examine whether NTU’s actions constituted FMLA interference or retaliation. Potential remedies could include those things listed in the post. And what happens if the matter gets to court? See the post.
TAKEAWAY: employers must know what they can and cannot do upon an employee’s failure to return from approved FMLA leave including taking into consideration the facts leading to the failure to return. Consult an employment lawyer before taking action.
York, Pennsylvania 17403