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.
The post on Sunday 11/24/2024 told us the Supreme Court kicks off the new term with an eye towards employment law cases. This term (Oct. 2024 – June 2025), the Supreme Court has been asked to weigh in on at least four cases that raise important issues with potentially far-reaching implications for employers. These are the main issues that employers should be aware of and the potential implications for which they should prepare.
1. Exhausting State Administrative Remedies as a Prerequisite to Bringing Federal Civil Rights Claims in State Court
First up was Williams v. Washington which was argued on October 7, 2024. The Alabama Supreme Court affirmed dismissal of a lawsuit for failure to exhaust administrative remedies. The suit was brought under Section 1983 of Title 42 of the U.S. Code, for alleged constitutional rights violations based on an agency’s handling of unemployment compensation benefits during the COVID-19 pandemic. What Section 1983 provides is in the post. The state court said that in order to bring Section 1983 claims in state court, individuals must exhaust all available administrative remedies before the applicable agency. One issue raised in this case is the application of a 1982 Supreme Court case, Patsy v. Board of Regents. What that case stands for, and the arguments made by the parties to SCOTUS, are in the post. And why do you care about what happens here? Because the decision could resolve the differing applications of Patsy and clarify the precedent set by that decision regarding state courts. And there’s more – see the post.
2. Liability to Employees for Failed Drug Test
This case is Medical Marijuana Inc. v. Horn an involves a truck driver who brought a claim under the Racketeer Influenced and Corrupt Organizations Act (RICO) against a CBD maker after he was fired for failing a required drug test by testing positive for THC. The plaintiff alleges that he failed the drug test (and lost his job as a result) because a product he was taking was falsely advertised by the CBD maker as containing only CBD. RICO is rarely sued in this context, but can be (which makes this an interesting case). There is a split among the federal appellate courts on applicability of RICO. The case was argued on October 15, 2024. Why employers need to be aware of this case – and its possible implications – is detailed in the post.
3. FLSA Misclassifications and Overtime Exemption
Employers have the burden to demonstrate that employees are properly classified under the FLSA, but the actual burden is unclear and has gotten muddier when the Fourth Circuit Court of Appeals issued its decision in E.M.D. Sales Inc. v. Carrera U.S. This case was argued on November 5, 2024. The Supreme Court will hear and decide what that burden is that an employer must meet. More background on the FLSA’s requirements and possible burdens is all in the post. This is important to employers because once again there is a Circuit split and employers need to know how to classify employees and defend against FLSA claims for alleged unpaid overtime arising from any misclassification. How it could play out depending on the Court’s ruling is discussed in the post – as is what employers should do now while awaiting that decision.
4. ADA Protections for Former Employees
The fourth case is Stanley v. City of Sanford. The issue here is whether, under the ADA, a former firefighter who was qualified to perform her job and who earned post-employment benefits while employed loses her right to sue over discrimination with respect to those benefits solely because she no longer holds her job. Here the former firefighter took early retirement due to disability. After retiring, she learned that the City had lowered post-employment benefits for retirees who retired due to a qualifying disability. She sued the city, alleging that the change discriminated against retirees with disabilities in violation of the ADA. (Background on the ADA, and the relevant provision, is in the post.) The Eleventh Circuit Court of Appeals ruled that former employees cannot invoke ADA protection post-employment. Once again there is a Circuit split on the issue so the Supreme Court’s decision is important (and especially so for employers that offer post-employment benefits).
TAKEAWAY: Employers must know which laws apply to their workforce and how to operate within the laws’ framework – relying on good employment law counsel is fine, but self-awareness is also good.
The post on Monday 11/25/2024 noted former ‘Jeopardy!’ and ‘Wheel of Fortune’ staffers file discrimination complaints against Sony. The complaints include allegations of discrimination, harassment and retaliation against Sony which allegedly laid off workers who spoke out against toxic working conditions.
Shelley Ballance Ellis, a former production executive on the game shows, and Monique Diaz, a former member of the series’ clearance and licensing department, each filed a state complaint. They had previously filed unfair labor practice charges with the National Labor Relations Board over similar issues. Sony Pictures denied that any of its decisions were retaliatory, attributing the layoffs to a broader reorganization. Its statement – with its reasons – is in the post.
Ballance Ellis self-identifies as the highest ranking Black production executive at “Jeopardy!” and “Wheel of Fortune,” as well as the head of the shows’ clearance and licensing department for 26 years. She has accused Sony of terminating her and “every diverse person” on her team because they repeatedly raised concerns about discrimination in the workplace. Background on Diaz, including comparator information, is in the post.
Ballance Ellis further alleges in her complaint that after she, Diaz and their colleagues were let go, Sony replaced them with mostly younger white employees. So we have pay inequities and discriminatory employment practices; but wait, there’s more. Ballance Ellis and Diaz also say that they and their colleagues objected to many offensive things on both shows, including footage of Southern plantations aired on “Wheel of Fortune” various “Jeopardy!” clues. The damages alleged by Ballance Ellis and Diaz, and their statement, are noted in the post.
TAKEAWAY: Time will only tell if this goes to court or settles – and what the facts truly were. As Johnny Gilbert might say, “stay tuned.”
The post on Tuesday 11/26/2024 told us the EEOC sues Culver’s Restaurants for discriminating against transgender employee and retaliating against him and his co-workers. The case was filed against five related entities operating Culver’s restaurants. The EEOC said the harassment included repeated misgendering, deadnaming (which is explained in the post) and publicizing his birth name without consent.
The EEOC alleged that Asher Lucas, a transgender Culver’s shift manager, was repeatedly and purposely misgendered by two employees. Three of Lucas’s colleagues witnessed one of the employees – who was openly hostile toward gay and transgender people – make anti-trans comments and misgender him. Lucas and his colleagues reported the harassment to a Culver’s general manager, but nothing was done to stop the harassment. What did occur instead is in the post. Lucas and his colleagues again complained to their general manager. There was no investigation; instead, Culver’s fired them the next day. The EEOC filed suit in federal court after first attempting to reach a pre-litigation settlement. The EEOC’s statement is in the post.
The EEOC has guidance on discrimination based on sexual orientation or gender identity at https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination and on retaliation at https://www.eeoc.gov/retaliation.
TAKEAWAY: Train your managers to treat all employees the same and to make sure co-workers do the same. Anything other than that might lead to a lawsuit being filed against you.
The post on Wednesday 11/27/2024 provided safety tips for HOA and condo holiday lights – including ensuring rule compliance. Residents in condo and homeowners’ associations are getting an early start on holiday décor this year. They need to review any seasonal décor guidelines (holiday decoration rules and regulations) in their community and also follow some simple steps to decorate safely.
Around the country, community managers and boards are receiving more requests than ever for holiday classics like wreaths, garlands, and warm white lights. For those doing their own decorations, it is recommended that they not use tall ladders. Why? See the post. Another issue to be aware of is electrical outages. Know what type of lights you are using and what voltage and wattage they need. And if the lights go out, note what is in the post. A pro tip when decorating trees and bushes is to install enough lights to make it look professional. What that can mean is in the post. .
Community association managers and board members note that the biggest restrictions that homeowners associations have regarding holiday decorations is the timing, i.e., when they can be put up and when they must be removed. There are also other common restrictions such as those listed in the post.
TAKEAWAY: Those living in a community association are well-advised to ensure that the decorations they intend to put up are allowable – including when they will be put up and when removed. A community association lawyer can also help.
In the posts on Thursday 11/28/2024 here and here, we wished you a Happy Thanksgiving – enjoy the day, be it a big meal with family or relaxing or working.
TAKEAWAY: Thanksgiving means different things to different people – celebrate it your way but ensure that if you are working, you follow all rules set out by your employer.
The post on Friday 11/29/2024 told us Center One and Capital Management Services to pay $60K in EEOC religious accommodation suit. Center One, LLC, is a provider of consumer debt collection services; Capital Management Services, LP, is a related company. The EEOC’s lawsuit alleged that in October 2016, a Center One employee who was a Messianic Jew requested a reasonable accommodation of his religious belief which required abstaining from work on religious observance days. Allegedly Center One refused to accommodate on the basis that he did not provide a certification from a religious leader or religious organization supporting his request. What the company did instead is detailed in the post. The employee was forced to resign. The EEOC filed suit in federal court in the Western District of Pennsylvania. The employee later joined as a plaintiff in the case. The trial court granted summary judgment to Center One and Capital Management Services, and both the EEOC and employee appealed. On Feb. 1, the U.S. Court of Appeals for the Third Circuit vacated the trial court’s ruling and remanded the case for trial.
After that the parties agreed to settle the case before trial. On Oct. 24 the court approved the 18-month consent decree resolving the litigation. In addition to paying $60,000 to the employee, there is a lot of non-monetary relief, all of which is detailed in the post. The EEOC’s statements are also in the post.
TAKEAWAY: Don’t tempt fate – especially now after the Groff v. DeJoy decision from the Supreme Court. Know what you need to do to accommodate a reasonable accommodation of religious beliefs – get legal help if needed.
Finally, in the post yesterday 11/30/2024, we learned ten focus areas for avoiding AI hiring discrimination. This is so important as AI takes a larger and larger role …
The Department of Labor (DOL) recently released its AI & Inclusive Hiring Framework which includes ten focus areas for employers to keep in mind should in order to remain compliant and avoid AI hiring discrimination. The purpose of the guidance is to help employers legally use AI in as part of their hiring technology. The ten focus areas are:
- Identify Legal Requirements: This should be obvious.Employers should first determine which employment laws and regulations apply to their use of AI hiring technology. This may depend on many things including those identified in the post. Employers should also keep an eye on emerging laws that may create new requirements regarding AI hiring technology.
- Establish Staff Roles: Employers are encouraged to establish roles, responsibilities, and training within their organizations to maximize the benefits and manage the risks of using AI hiring technology. How this can be accomplished is in the post.
- Inventory Technology: Employers should collect information about the AI hiring technology they plan to use and add that to their AI system inventory. What else should form a part of that inventory is in the post.
- Work with Vendors: Employers should consider developing policies and procedures for working with vendors and other third parties to ensure compliance during the AI procurement and implementation process. What this should include is listed in the post.
The other 6 areas of focus are identified and detailed in the post. All 10 focus areas are important and should be take into consideration by an employer before using AI as part of its hiring process.
TAKEAWAY: Employers are responsible for any discrimination practices by an Ai system they choose to use in their hiring, so it is best to go slow and know what the AI includes and how it works before actually putting it into use. Contact an employment lawyer for assistance with legal compliance.
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