Legal viability of non-compete agreements; asking applicant for preferred pronouns; condo/HOA collections policy; disability discrimination under the ADA; and more in Our Social Media Posts This Week, Sept. 10-16, 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.

state finds probable cause that christian school discriminated against catholic man in hiring

The post on Sunday 9/10/2023 told us the state finds probable cause that Christian school discriminated against Catholic man in hiring.  Frank Provenzo says his job interview at Christian Central Academy started with a prayer – not a silent one to himself hoping to be hired but a request from his interviewers to bow his head and join them in their invocation. Provenzo, 59, said officials from the private school also presented with an agreement and asked him questions – more details on that are in the post. Provenzo told them his religion and more (yes, see the post) and thought the interview went well. But he did not get the job. Now, a year later, the state agreed with his allegation that the school unlawfully discriminated against him because of his creed. The school declined to comment.

Let’s look at more of the background. Prior to the interview on July 14, 2022, school officials did not mention any faith requirements for the job, so Provenzo says the questions at the interview rattled him. Then they gave him the agreement. A couple of days later, a school official called with the news he did not get the job. The reason he was given is noted in the post. And interesting are the things the school denied – see the post. Also interesting is the reason the school gave for not hiring him – again, see the post.

As part of the investigation report, the state noted that the school did not hire any employee that identified as anything other than Christian between January 2020 through August 2022. Provenzo was given a document labeled Application for Staff Employment, Spiritual Requirements. What it says is detailed in the post. The report also mentions the report Provenzo was asked to sign (yep, in the post).

TAKEAWAY: Remember the limits of the ministerial exception when it comes to religious discrimination – consult an employment lawyer.

feds, states put non-competes in regulatory crosshairs

The post on Monday 9/11/2023 noted that the feds, states put non-competes in regulatory crosshairs. Hopefully this is not the first time you are seeing anything about this issue – the federal government’s proposal to ban non-compete clauses. Some states are also trying to restrict or ban non-competes entirely. Either way, employers can and should expect increased scrutiny of non-compete agreements and ensure they are necessary to protect a legitimate protectable interest and are otherwise reasonable.

Ome industries that might be the most impacted by this are noted in the post. This all stems from the January 2023 FTC proposed rule banning non-competes in most circumstances – the basis for the proposed rule is in the post. The proposed rule was put out for comment and 27,000 comments were received. No that is not a typo.

What the proposed rule bans is listed in the post, along with how the FTC’s proposed rule defines a non-compete clause. What the provision is called doesn’t matter, just what it aims to do.

But this may not go smoothly if it goes. the U.S. Chamber of Commerce opposes the proposal and argues that the FTC does not have the legal authority to issue such a broad sweeping rule because non-competes have traditionally been governed by state law.

But it is not only the FTC taking aim at non-competes. The general counsel for the NLRB issued a memo in May 2023 stating that most non-competes are illegal, as interfering with employees’ “concerted activity” to secure better working conditions by resigning, or making a plausible threat to resign. How the NLRB explained this is in the post.

TAKEAWAY: employers should act now to determine whether their existing non-competes are actually necessary; things to look at, and possible alternatives, are noted in the post

is it ok to ask a job applicant for their preferred pronouns?

The post on Tuesday 9/12/2023 asked: Is it ok to ask a job applicant for their preferred pronouns? Note that this applies in any work sector and could cut both ways … The question is meant to ensure preferences are followed and build and maintain an inclusive culture.  Employers must be careful what they ask applicants so they don’t subject themselves to potential liability for discrimination. So what should employer questions focus on? See the post. And with the question about preferred pronouns, an applicant who does not get hired may use the fact that they were asked this question to support a discrimination claim. So how can an employer find out this information? See the post.

TAKEAWAY: If the questions to be asked of an applicant are not directly related to job duties and qualifications, run them by an employment lawyer first.

communiciton counts: developing a collectiosn policy for condo and homeowner community assessments

The post on Wednesday 9/13/2023 reminded us that communication counts: developing a collections policy for condo & homeowner community assessments.  When homeowners don’t pay assessments, the association should immediately refer to its collections policy. And follow it. Having such a policy in place ensures that all owners are treated equally., typically have timelines for how long an owner has to make a payment before the issue is turned over to a collect Some common contents in a good collections policy are listed in the post, including whether the association will consider payment plans and legal actions if there’s no response. Often owners who are in denial or ignoring requests will pay when threatened.

        TAKEAWAY: All collections policies must comply with the association’s governing documents and applicable state and federal law – consulting with a community association lawyer is the smart way to go.

in neighborhood 24 years – now hoa threatens to tow car after parking rules changes

In the post on Thursday 9/14/2023 we read about someone in neighborhood 24 years – now HOA threatens to tow car after parking rules changed.  Was the restriction waived? Did the HOA have authority? Let’s see.

The neighborhood named Westfield is ungated, but the HOA issued an announcement claiming the streets inside and outside the community are not open for parking. One resident, Kevin Sloan, said that street parking has never been raised as an issue in the 24 years he has lived in the neighborhood. In a recent newsletter the Owners Association announced it would start enforcing car and parking violations. What it said in the announcement is noted in the post. Sloan said all are angry. The HOA says it was not trying to make anyone angry, but there was a different purpose. See the post. But there’s a possible catch: the HOA might not have the right to do what it wants to because of the roads’ status. The post explains how this works. So now, because of that, the HOA backed off from its plans and would not follow through with attempts to tow vehicles. The Board President-elect said the HOA board had plans to present members with options for moving forward, including the one thing mentioned in the post that might provide more options.

TAKEAWAY: Condo and homeowner associations may impose restrictions on owners, but those restrictions must comply with applicable law – running them by a community association lawyer is the smart thing to do.

employee’s toe condition was not a disability under the ada

The post on Friday 9/15/2023 noted employee’s toe condition was not a disability under the ADA. Facts make a huge difference, so let’s look at the facts here in this case involving Enterprise Services, a spin-off of Hewlett Packard, that was decided by a federal appellate court in mid-August. The employee worked remotely from his home in Baltimore. He requested two accommoda-tions: a hotel room for a Washington, D.C., conference so he wouldn’t have to drive back and forth and risk aggravating his arthritis, and a rental vehicle for a team-building trip that required walking. Enterprise denied both requests. When Enterprise looked at his performance, it found the things noted in the post and fired him for the basis also noted in the post. He sued Enterprise for discrimination based on his arthritic toe and for failing to accommodate the condition. The trial court ruled for enterprise and the appellate court affirmed.

The appellate court said that the case turned on whether the employee had a disability as defined by the ADA. The court answered that in the negative; its reasoning is in the post. The EEOC says that in ADA cases, the primary focus in on whether discrimina-tion occurred, not on whether someone has a disability. How that impacts litigation is noted in the post. But this time the court did not do that.  Why? See the post.

So how does this translate for employers when an employee indicates an accommodation is needed? Five magic words – that are in the post. And then the process jumps off from there. If the disability or need for accommodation is not obvious, the employer may ask for reasonable documentation about the disability and functional limitations. Supervisors should be trained on the accommodation process, including what is noted in the post.

It is also good for employers to keep in mind that while retaliation is prohibited, employees must still perform their job duties and follow all rules, polices and other things required of employees. But if they don’t, and the employer thinks discipline might be warranted, they need to start with the step noted in the post.

TAKEAWAY: Eligible employees are entitled to accommodation for disabilities; figuring out what is needed and what can be offered is part of the reasonable accommodation process that takes both the employer and employee.

eeoc sues employmeNt & training centers inc. for disability discrimination

Finally, in the post yesterday 9/16/2023, we saw the EEOC sues Employment & Training Centers Inc. for disability discrimination. They should have known better! Employment & Training Centers, Inc. allegedly refused to provide a reasonable accommodation for an individual applying for a data entry position charged the EEOC in a recently-filed suit. According to the suit, ETC interviewed an applicant with end-stage renal disease and made a conditional offer of employment, subject to the applicant passing a drug screen. The applicant said that because of his disability he could not produce urine and requested an alternative method of drug screening. The company said no and that there was no alternate test was available. ETC then rescinded the conditional job offer. But internal records did not help ETC – what they showed is in the post. So then that put ETC at a different crossroads, one discussed by the EEOC and noted in the post.

TAKEAWAY: Employers must know their obligations under the ADA to reasonably accommodate both employees and applicants. Get advice or assistance from an employment lawyer.