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 9/29/2024 noted DHL to pay drivers $8M in EEOC racial discrimination settlement. Yep, that’s a big delivery. This involves a long-running lawsuit in which the EEOC accused the company of assigning Black workers to routes in neighborhoods with higher crime rates and more as listed in the post. The EEOC filed suit against DHL in 2010 in federal court after conciliation failed. The initial complaint was brought on behalf of two dozen workers at three of the company’s facilities and involved conduct dating back to 2005.
The settlement proceeds will be distributed among 83 workers who participated in the lawsuit. But that’s not all – DHL also will be subject to a consent decree. How long the decree will be in place and what it requires by way of non-monetary relief are discussed in the post.
DHL’s statement, which in part denies liability, is in the post as is that of the EEOC’s General Counsel.
TAKEAWAY: Treat all similarly situated employees the same. Period.
The post on Monday 9/30/2024 told us EEOC claims employer treated workers’ failure to return from FMLA leave as “voluntary resignation”. Uh-oh is right! So what happened here? In a suit filed mid-September, the EEOC alleged that an adult care organization failed to accommodate employees with disabilities who were unable to return to work after exhausting FMLA leave, but instead treated their inability to return as voluntary resignations. Prior to expiration of their FMLA leave, the two employees had filed accommodation requests asking for an extension of unpaid leave. Not only did the company dent the requests, it took the other actions noted in the post and then fired them. And the company did not even hire replacements until those employes had starting working for other employers (undercutting any undue hardship argument). The suit alleges a violation of the ADA. The relief sought is listed in the post.
Keep in mind that the EEOC and various federal courts have previously said that exhaustion of FMLA leave does not necessarily preclude additional leave under the ADA if the circumstances and facts so warrant. For example, as noted in one EEOC technical assistance document, a qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation so long as this would not impose an undue hardship on the operation of the employer’s business. What the employer may consider in that determination is in the post.
This was not the EEOC’s first rodeo on these types of facts. In 2022 it reached a $65,000 settlement with a trucking and property management company that was similarly alleged to have terminated two employees with disabilities who were unable to return to work after their FMLA leave. What the EEOC alleged there is in the post. But federal courts have not given carte blanche to employee requests for leave extension in line with the ADA. In 2017, a federal appellate court held that an employee who requested three months of medical leave in addition to the FMLA’s 12-month leave period was not a “qualified individual” for purposes of the ADA. The rationale is in the post. And years after that another federal appellate court ruled in favor of an employer in the case of a school registrar who exhausted the FMLA’s leave entitlement but could not provide a return to work date. The holding in that case is discussed in the post.
TAKEAWAY: Know your obligations under both the FMLA and ADAA and how they might interact – consult an employment lawyer early on.
The post on Tuesday 10/1/2024 explained clinic settles ADA claim alleging it fired worker on Day 1. All Day Medical Care Clinic, a healthcare clinic in Maryland, settled allegations from the EEOC that it refused to accommodate and then fired a scheduling assistant on her first day of work, according to court documents filed in mid-September.
According to the lawsuit (which is linked in the post), the scheduling assistant informed the CEO on her first day of work that she had a low vision disability and would require Optelec Magnification and Zoomtext software to perform her job. What he then allegedly told her is in the post. Even though someone offered to pay for the software, the CEO stood firm in the action noted in the post.
In the consent decree, in which All Day Medical Care Clinic did not admit liability, the healthcare provider agreed to pay $75,000 (broken down to $50,000 in lost wages and $25,000 in non-economic damages). It is also responsible for non-monetary relief as listed in the post. The EEOC issued a reminder that employees are not required to disclose their disabilities prior to employment and ore as noted in the post.
TAKEAWAY: Employers must know the law, including when an employee must ask for accommodation and the process to be followed thereafter. Talk to an employment lawyer.
The post on Wednesday 10/2/2024 asked: Is that condo you’re eyeing (or selling) on a lending naughty list? Yes, homeowners’ and condominium associations are still grappling with Fannie Mae and Freddie Mac guidelines. If you are shaking your head and saying “huh?”, read on.
Not that long ago Fannie and Freddie issues stricter lending guidelines for condominium sales, meaning some properties may not be eligible for certain financing. Underwriting a residential mortgage loan involves a detailed review of the prospective borrower’s financial picture as well as the property to be pledged as collateral for the loan. But when it comes to loans for condominiums, the review goes beyond the property appraisal. Most lenders want to ensure HUD approval for FHA loans and the Department of Veterans Affairs approval for VA loans. What that means for conventional loans, and the continuing effect of the Champlain Towers collapse, is explained in the post. Further, for those condominiums trying to meet the guidelines, that might bring to light certain things and have the opposite effect as described in the post.
The inability to obtain financing for a unit in a condominium is a problem for purchasers and sellers. So what should condo associations and management companies do? See the post.
TAKEAWAY: Make sure your condominium is not on the “naughty” list – work to meet the criteria.
In the post on Thursday 10/3/2024 we saw ‘shocked at the response’: neighborhood funds its own fire hydrant. When a fire engulfed a house in the Wissler’s Ranch neighborhood in 2017, the community’s three 10,000-gallon water cisterns built in the 1990s were tested – and failed – in a real-world situation.
Because they could not use the cisterns (based on their condition which is described in the post), firefighters went five miles away to a pressurized fire hydrant. They ended up with a 45-minute drive and fill up which hindered their ability to fight the blaze. The eventual result is detailed in the post.
Rather than letting that happen again, the owners in the community of decided to fix the issue themselves. The HOA voted on a special assessment to cover the things listed in the post. Each homeowner paid about $2,800. The construction process (including what is discussed in the post), only took nine months. It was done and ready in Spring 2024. What the community did after project completion is also in the post. And what the municipal officials said is also in the post. They also clarified that while some new housing developments in the area are building pressurized systems, the cost of replacement for outdated cisterns can be a tough sell for existing neighborhoods like Wissler Ranch. And what about Wissler Ranch’s new hydrant? See the post for what the owners think.
TAKEAWAY: Would your condo or homeowners’ association jump in to pay for emergency services that the municipality is supposed to provide?
The post on Friday 10/4/2024 noted that in Starbucks case, judges ‘flummoxed’ over National Labor Relations Board enforcement powers. Yep, thanks again to the US Supreme Court.
A panel of the 3rd Circuit Court of Appeals recently seemed to struggle to pinpoint the outer limits of the National Labor Relations Board’s powers to remedy illegal labor practice in a case involving Starbucks.
Ting oral arguments the three-judge panel expressed confusion, and at times frustration, with both lawyers in Starbucks’ appeal of an NLRB ruling (which is noted in the post). This case was just one of the many accusing Starbucks of unlawful labor practices amid a nationwide campaign to unionize its stores. This is also part of the onslaught of challenges to the NLRB’s authority – see the post.
The judges were focused almost exclusively on Starbucks’ claim that the NLRB does not have authority to order employers to reimburse workers for any direct or foreseeable expenses stemming from being unlawfully fired.
For decades the Board took certain actions in this type of case like those listed in the post, but then in a 2022 decision it said workers who are wrongfully fired should also be paid back for other financial harms (like those listed in the post). The backdrop here is that Starbucks has been accused of firing hundreds of workers for organizing or supporting unions (an allegation it has denied).
The judges pressed the parties’ lawyers on whether the June 2024 decision of the US Supreme Court in Jarkesy v. U.S. Security and Exchange Commission (linked and holding explained in the post) applies to the NLRB and forecloses those novel awards. The judges said they were not sure whether the expanded remedies sought by the NLRB were “legal remedies” traditionally imposed by courts, like the ones at issue in Jarkesy, or something else (as discussed in the post). One of the judges even said he was “flummoxed” by the distinction. Another just wanted the lawyers to answer the questions.
Starbucks’ attorney argued that NLRB remedies are only valid when clawing back from the defendant something it should not have kept (like those things listed in the post). The argument made by Board counsel is in the post. One of the judges seemed to be leaning toward concluding that NLRB remedies are equitable and not covered by Jarkesy, but then Board counsel’s argument surprised him (see the post). Stay tuned.
TAKEAWAY: A threshold issue is what authority an administrative agency (like the NLRB) has – the answer can be huge for employers, especially given that Section 7 of the National Labor Relations Act applies to ALL employers (not just those with unions).
Finally, in the post yesterday 10/5/2024, we asked: Could flight attendant who landed in rehab get FMLA interference claim off the ground? You may recall that the FMLA gives employees who take medical leave the right to reinstatement when they return from leave. This case involving a United Airlines flight attendant who sent ill-considered messages to a former romantic partner who also worked at the company addresses whether there are limits to that rule. Let’s dig deeper.
The flight attendant was having a romantic relationship with a female coworker about 20 years his junior. After she broke it off, he allegedly left threatening text messages and left threatening voicemails on her phone. The content of one of the texts is in the post. The company then started to investigate whether the attendant violated the company’s discrimination and harassment policy. What the attendant admitted is also in the post. Then in February 2021 the attendant announced that he was an alcoholic and requested FMLA leave for rehab through April. United granted the request. But while he was in rehab, he was fired for violating its harassment and discrimination policies. He then sued United for FMLA interference (on the basis noted in the post). The court explained the attendant’s burden of proof (see the post).
So, did United interfere with the attendant’s right to reinstatement?
A. No. He was going to be fired anyway.
B. Yes. The FMLA required the company to reinstate him.
If you selected A, you agreed with the court in its September 11th decision (captioned in the post). The court acknowledged the attendant’s argument that United fired him to stop him from being reinstated to his position after he completed his medical leave. But the court then held there are limits and explained what that limit was in this case (as detailed in the post). The court also said that no reasonable juror could conclude that United’s motive for firing the attendant was his use of medical leave. Support for that conclusion is in the post.
TAKEAWAY: Know the limits of what can be done after an employee returns from FMLA leave; get advice from an employment lawyer.
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