Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
In the post on Sunday 10/2/2022 we saw pharmacist wins $134,000 jury award in ADA service dog case. A rare case that went to trial related to a service dog came back in favor of the Plaintiff on September 15th. The complaint alleged that the female plaintiff needed the service dog due to her hypoglycemic unawareness (what that is and how it manifests is in the post). She gave a doctor’s note to HR. The employer hospital’s response? No, because there were concerns about sterility and “various laws and guidance” that “required” the pharmacy to be a sterile area. But she did not stop trying after providing the doctor’s note. She also gave her employer suggestions how it could minimize any sterility risks it asserted. Yep, rejected. And how did she describe the pharmacy area in light of the hospital’s claims of sterility? See the post. So now the hospital has learned an expensive lesson. In a similar vein, the EEOC filed suit against Hobby Lobby this past July, alleging an ADA violation because if refused to allow a worker’s service dog. The (ok, let’s call it interesting) reason given by Hobby Lobby for its refusal is in the post. That case is still pending.
TAKEAWAY: When it comes to service dogs, the bar is high for an employer to reject that accommodation – get advice from an employment lawyer if faced with this issue.
The post on Monday 10/3/2022 maintained theme and told us Vision Center agrees to settle ADA allegations. The case had been filed by the US Attorney, alleging that the Vision Center’s eye exam chair and equipment were not accessible to patients with mobility disabilities (how they described that is in the post) and that the Center asked those patients to bring an attendant/aide to help them transfer into the exam chair. Rather than going to trial, the Vision Center agreed to a settlement that includes adopting new ADA policies involving mobility impaired persons attending appointments independently and more as listed in the post, PLUS it will pay $1,000 to the patient for whom it was unable to provide an eye exam.
TAKEAWAY: Remember that ADA protections go beyond the employment context; if your business is open to the public, including retail or professional services, you must comply with the ADA. Again, get assistance from an attorney who is knowledgeable in this area.
The post on Tuesday 10/4/2022 showed man’s comeback to HOA fining him over his truck applauded: ‘motivation’. As the percentage of people living in condominium or homeowner associations or cooperatives continues to rise (over 80% of new homes in 2020!), so too does the number of people who are unhappy with those associations over something. Here the man got a letter from his HOA saying his truck had been in his driveway and not moved for 2 days so they deemed it “non-running”, a violation of the rules subject to fine. (For more background, see the post). Why he had the truck in his driveway for so long without moving it is also in the post. But the letter served as a push. He also moved it each day – early in the morning – as noted in the post to prove that it was running. Needless to say, the fine was removed. Will he continue to do what he’s doing? See the post. The man said that this incident was his “proudest petty moment.”
TAKEAWAY: Life within a community association comes with various restrictions – sometimes an owner comes up with a legal but ironic or humorous way around those restrictions.
The post on Wednesday 10/5/2022 was about challenging unemployment compensation benefits? When is it worth it? Almost any time a former employee receives UC benefits, the employer’s premium (or contribution rate) will increase. So does that mean employers should fight UC eligibility in every case? No. Two important considerations for an employer are whether there is a legitimate basis for the challenge and if it will lead to other litigation from the former employee. Employees are disqualified from receiving UC benefits (at least in PA) for what is deemed willful misconduct; that includes the things listed in the post and more. But some conduct by an employee that might be wrong, or just seem wrong, is not disqualifying for UC purposes. Examples are in the post. Employers should also be aware of the effect on UC benefits when an employee submits a resignation and they are told not to serve out all of the time. Good tips for an employer when terminating an employee are in the post. Also consider whether there will be any type of severance or settlement agreement or release as its terms might dictate what the employer can do relative to the soon-to-be former employee’s claim for UC benefits.
TAKEAWAY: UC benefits might seem cut and dried, but there are a lot of legal implications and ramifications. It’s not enough to deal with an HR provider/consultant, you need an employment lawyer.
In the post on Thursday 10/6/2022 we learned a federal court reinstated employee’s claim that social media app messages provided sufficient notice of medical absence. Pay heed as this may be you some day. The actual holding in the decision handed down August 15, 2022 was that an employer’s “usual and customary” notice procedures relative to absences went beyond the company’s written polices and potentially included social media messages between an employee and manager. Here the employer’s written attendance policies required notification to the group leader via an approved call-in line at least 30 minutes prior to shift start. The call-in number and procedure were disseminated to employees in several forms. The policies also provided that an employee who missed three consecutive shifts without calling in would be deemed to have abandoned the job. So what happened here? In June 2019 the employee had an emergency appendectomy. While in the hospital he used a social media messaging app to notify his group leader that he would be out for 2 weeks to recover. Over the next few days there was more messaging with the group leader in the same fashion. More details on the employee’s route to recovery and subsequent communications with the group leader are in the post. The whole time the employee was on approved FMLA leave. The employee returned when he said he would and worked almost the whole week – until he felt pain at the end of the week. Using the same messaging app he told his group leader. The following week he again reported to the group leader in the same way. But the group leader responded differently this time. What he did that resulted in termination of the employee is noted in the post. So he sued, alleging FMLA retaliation and interference (and wrongful discharge under state law). The federal trial court granted summary judgment for the employer on all counts. It said that since the employee had not followed the written policy as to call-ins, he had no basis for suit and dismissed the suit. He appealed. The appellate court affirmed dismissal of the FMLA retaliation and state law claims, but reversed on the FMLA interference claim. How the appellate court characterized “usual and customary” practices as bolstered by the (lack of) statutory language is in the post – and pretty darn broad. So that claim was sent back to the trial court to proceed to trial (if not settled beforehand).
TAKEAWAY: Rules and policies are meant to be followed; variations can be deemed an amendment or supplement to the rule/policy that might bind the employer going forward so be careful in this arena.
The post on Friday 10/7/2022 was about eligibility for condo or HOA board, priority of Governing Documents, and more Q&A. First, what if a unit is owned by more than one person – can both serve on the Board? Maybe. It depends what the Declaration, Bylaws, or Rules and Regulations provide in this situation. Next, what is the hierarchy of rights and obligations in a condo or homeowners’ association or cooperative? Applicable state law is at the top, king of the heap if you will. Then comes the order noted in the post. There are also more Q&A in the post, including if and how the Board must respond to owners’ petitions.
TAKEAWAY: Know the various rights and obligations and their hierarchy as applicable to life in your association – consult a community association lawyer to be sure.
Finally, in the post yesterday 10/8/2022, we learned that Eagle Services to pay $100,000 to resolve EEOC national origin and race discrimination charge. Eagle is an industrial and environmental cleaning service with multiple locations in multiple states. A charge had been filed with the EEOC alleging that it discriminated on the basis of race and national origin by subjecting employees to harassment. Further, there was an allegation that a supervisor repeatedly called minority laborers and service techs racist names and did more nasty things as noted in the post. Even after repeated complaints to upper-level management, the actions continued over a period of several years. The matter settled prior to suit being initiated. In addition to the monetary relief, Eagle agree to do other things as listed in the post. The settlement was without admission of liability (and, to the contrary, Eagle denied the allegations).
TAKEAWAY: settlements are always best as they are a sure outcome, even when the facts and law seem to all be on the same side.
York, Pennsylvania 17403