Below is a review of the posts (on Facebook, LinkedIn, and X [formerly Twitter]) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 10/15/2023 reminded us that intermittent extended FMLA leave for stress and anxiety raises difficult issues for employers. The COVID-19 pandemic brought employers an increase in employees seeking accommodations or leave for stress and anxiety-related mental health issues, some involving requests for intermittent FMLA leave as a result of those issues. The requests might have been accompanied by medical certification that the employee may need to miss work several times a month due to unforeseeable panic attacks or other incapacitating symptoms. Sounds ok, right? Well, let’s dig a bit deeper. What if an employee says they need FMLA leave after being asked to assist with important business tasks? Or after being counselled for performance issues? And how does the employee then “justify” the FMLA leave request? See the post.
So what is the employer to do in situations like those? Look at the FMLA. If the frequency or reasons for the leave request are inconsistent with the original medical certification, the employer can (and should) request updated information from the employee’s medical provider. And if it is suspected that the medical certification does not meet the criteria for an FMLA serious health condition, employers should act as noted in the post.
What employers cannot do is deny leave because of disruption to their business or based on suspicions that the employee is manipulating the leave requests to avoid certain work tasks. Again, what the employer should do in those circumstances is in the post. Finally, the employer might want to try to identify and deal with workplace stressors that trigger the employee’s need for intermittent FMLA leave. How this might work is noted in the post.
TAKEAWAY: Business continuity is important, so employers should have (or develop) a plan that balances employee medical issues with meeting crucial business needs. Get help with accommodation issues from an employment lawyer.
The post on Monday 10/16/2023 told us the EEOC sues Bennett Enterprises / Ralphie’s Sports Eatery for race and disability discrimination and retaliation. According to the EEOC’s lawsuit, the server, who is a biracial woman with a diagnosis of depression and anxiety, worked for Bennett Enterprises at its Ralphie’s Sports Eatery location in Kenton, Ohio. The EEOC alleges that Bennett Enterprises subjected the former server to a hostile work environment because of her race included the things noted in the post. After Bennett Enterprises learned of the former server’s disability, it denied her a promotion, suspended her, and then fired her. The former server filed a discrimination charge with the EEOC alleging race and disability discrimination. But that’s not all – what else happened between the former server and Bennett Enterprises is in the post. The EEOC’s suit alleges violations of Title VII and the ADA. The suit was filed in federal court after conciliations failed.
TAKEAWAY: Employers must make sure they know their obligations under the ADA – and that they do not retaliate against workers who take advantage of their rights.
The post on Tuesday 10/17/2023 was about understanding condominium fees: what every property owner should know. Note that HOA fees are similar. Understanding condominium (and HOA) fees is a crucial aspect of owning such property. These fees, also called assessments, are pretty straightforward once broken down. Every condo owner (or owner in an HOA) should understand these fees as they are part of the responsibility of being an owner. Condo/HOA fees or assessments are monthly (or other periodic) payments made by owners to the association. The fees are used for management and maintenance of the common areas and shared amenities. Some of the things paid for by condo/HOA fees include those listed in the post. The amount of the fees can be based on the size of the unit, but the place to find the assessment basis is noted in the post. In addition to paying a share of maintenance and operation costs, condo/HOA fees also contribute to a reserve fund. What the reserve is used for, and why it is a good thing for owners, is in the post. Condo/HOA fees do not remain the same from year to year, but often increase (due to the things noted in the post). But very large and sudden increases in fees can be a red flag, indicating potential financial mismanagement within the association. When considering purchasing a condominium or unit within a homeowners’ association, potential buyers should not only look at the current fees but also the history of fee increases and the health of the reserve fund. What that tells the buyer is noted in the post. Further, potential buyers should also understand what exactly the assessments include. They will cover basic maintenance and repairs, but some may include other things such as those noted in the post.
TAKEAWAY: Before buying in a condominium or homeowners’ association, it is imperative to understand what fees will need to be paid and what they are for.
The post on Wednesday 10/18/2023 noted that courts expand the scope of actional discrimination in Title VII cases. There has long been a question of whether certain employment decisions can be challenged as discriminatory under Title VII when they do not involve hiring, firing, promotions, or compensation. Under sexual harassment law, working in an abusive environment can support a claim that an employee’s terms and conditions of employment have been altered because of sex, race, national origin, religion, age, or disability. There also are settled standards for assessing how offensive the environment has to be to support a hostile environment claim. But when it’s not a hostile environment, there is less consistency in how courts see other employment decisions that affect terms and conditions of employment (including those noted in the post). Courts often require that an employee claiming that those decisions are discriminatory must show that the decision has some material or tangible effect beyond the decision itself. ;But that may be changing; recently, several courts have reexamined those standards and the US Supreme Court will weigh in next year. Let’s look at some background.
Last year the U.S. Court of Appeals for the District of Columbia held in Chambers v. District of Columbia that when an employer transfers an employee or denies an employee’s request for a transfer because of the employee’s race, color, religion, sex, or national origin, the employer violates Title VII. Then In Hamilton v. Dallas County, the full U.S. Court of Appeals for the Fifth Circuit held that a policy of assigning work shifts based on sex violated Title VII. How the Dallas County Sheriff’s Department treated male and female employees differently is noted in the post. Nine female officers sued the County because of the sex-based policy. Based on precedent, the trial court held that the policy did not violate Title VII because there was no “adverse employment action” which the Fifth Circuit had said includes things such as those listed in the post. The policy at issue did not change officers’ pay or benefits. A panel of the appellate court agreed that the holding was required based on precedent, but suggested the full court should reexamine the issue. Then the full Fifth Circuit reversed. It said there was disparate treatment because of the officers’ sex, so the only question was whether the policy was an adverse employment action. The court’s analysis and decision is in the post.
Then came the U.S. Circuit Court of Appeals for the Second Circuit, in Banks v. General Motors, which recently held that an employee challenging a discriminatory transfer decision must show the new work assignment was less prestigious, had less desirable responsibilities, or was less conducive to career advancement. The facts of that case are detailed in the post. The Second Circuit held that because the new position to which Banks was assigned had fewer responsibilities and a less desirable shift, it “impacted the ‘compensation, terms, conditions, or privileges of employment’” sufficiently to constitute actionable discrimination. How the new position came within the parameters laid out by the court is in the post.
And finally we get to the US Supreme Court. The differing analyses and holdings of the courts of appeals relative to discriminatory transfer decisions will be reconciled by the Supreme Court when it decides Muldrow v. City of St. Louis. Muldrow challenged her transfer from one division of the police department to another based on her sex. How the Eighth Circuit ruled is in the post. The Supreme Court has reframed the question before it as “Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?” Why should employers pay attention to the Supreme Court’s decision? Because it could be broader and include those other things noted in the post.
TAKEAWAY: Employers must know the law and what they can and cannot do – an employment lawyer can be a huge asset.
In the post on Thursday 10/19/2023 we saw the EEOC sues Len Stoler Lexus (in Towson, MD) for disability discrimination. Sad facts here. In a recently-files suit the EEOC alleged that the Baltimore-area car dealership violated federal law by demoting, and later discharging, an employee because of her disabilities. The claims referred to the ADA. According to the suit, Len Stoler Lexus employed a service advisor who sustained traumatic brain injury and a coma after surviving a serious motorcycle accident which affected her ability to speak, walk, and engage in other activities of daily life. After intensive rehabilitation, she was ready to return to work in her previous position, but Len Stoler demoted her to a lower paying cashier position at a different location because of her disabilities. There were later interactions between the employee and dealership (discussed in the post), culminating in her being fired. The suit was filed after conciliation failed. As of the post, there was no comment or filed response from the dealership.
TAKEAWAY: Employers must treat workers with disabilities the same as other employees unless they request an accommodation; then employers must engage in the interactive accommodation process. An employment layer can help navigate the minefield.
The post on Friday 10/20/2023 talked about an HOA allegedly charged $200 in hidden fees as owner tried to sell home. Let’s take a closer look to see if the fees really were hidden or were legitimate. Ralph Tucker feared that fees outlined by his HOA could stop potential sales. He was selling his home and came across the fees just two days before closing. Ralph, who is a former business owner, reviewed the contract and saw a $200 fee that he thought would be paid to the HOA. He found out the fee went to the management company. What the fee is for is noted in the post. It was called one thing when Tucker was selling his home and something else when his daughter sold her home a few months later. How the management agent described the fee, and what it covers, is in the post. Tucker contacted officials and found out the fee was legitimate; what they told him is also in the post. Buyers of homes in some HOAs have to pay specific charges when they buy. In Tucker’s case, the buyer of his home paid two fees totaling $525; those fees are described in the post.
TAKEAWAY: When buying a home in a condo or HOA, review the documents to know what you are paying; engage a community association lawyer to review your rights and responsibilities after purchase.
Finally, in the post yesterday 10/21/2023, we saw that Black Sweetgreen workers sue for racial discrimination and sexual harassment. The facts here are a bit unusual. In a suit filed recently in state court, ten Black employees, including men and women, sued Sweetgreen and two “head coaches” for racial discrimination and sexual harassment in several restaurant locations. The suit alleges that the employees at over a half-dozen locations were regularly subjected to the use of the N-word by their managers and/or other coworkers, plus other derogatory comments. Sweetgreen’s website highlights DEI initiatives (including those noted in the post). A comment by a Sweetgreen spokesperson is also in the post. The plaintiffs’ lawyer said that the use of racial slurs in the workplace is common for Black employees, but shouldn’t be. But there’s more. The suit lists the names the plaintiffs’ coworkers called them; they are listed in the post. And there’s more. Allegedly the plaintiff’s Hispanic managers did not hire or promote qualified Black employees; their rationale is noted in the post. Complaints to upper management abut this were allegedly ignored and never addressed. And there’s even more as to how Hispanic employees were allegedly favored over Black employees – see the post. And what about female employees? They alleged sexual harassment by managers on the bases descried in the post. As a teaser, it is alleged in the suit that managers would comment about female customers and employees “Wow, you better be careful how you bend over.” The suit was originally filed in March with two plaintiffs, but eight more came forward with allegations at different locations.
TAKEAWAY: Employers must train their employees on what they can (and cannot) say or do – and then take appropriate action if there are complaints. Again, an employment lawyer can help.
York, Pennsylvania 17403