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.
The post on Sunday 6/25/2023 told us the Equinox jury verdict serves as cautionary tale for employers – know the current or possible future law and its implications. In May 2023, a federal jury found Equinox Holdings Inc. liable for a hostile work environment and discrimina-tion on the basis of race and gender. The jury award: see the post (but sit down, it’s huge!). While this has no precedent outside of New York City, it is a good guide for all employers. Let’s review the case history.
Robynn Europa, a Black woman who worked at an Equinox gym in Manhattan, brought suit in September 2020 in federal court. She alleged violations of various federal laws (listed in the post) and state law resulting in a hostile work environment on the basis of race, sex/gender, and disability; she also alleged a claim of retaliation. Some of the allegations in support of her claims are that one of her supervisees, a white man, did not accept her as his supervisor, he made objectifying comments about the physical appearance of Black, female clients and others in the workplace and tried to talk to Europa about which were the most sexually attractive, and much more as described in the post. Europa repeatedly complained to the GM verbally, in person, but nothing was done. Why did she keep going back to him with complaints? See the post. Further, the GM continued one action even after Europa complained about it in writing (what he did is in the post). And there’s more in the post about how Europa was treated differently than other managers. Europa was eventually discharged. In the suit, the court dismissed the ADA and retaliation claims on summary judgment, but the other claims went to trial. The jury found Equinox liable – the breakdown of the award (between compensatory and punitive damages) is in the post. As of now, Equinox’s post-trial motions (relative to the damages awards) are pending. So what can all employers learn from this case?
TAKEAWAY: Properly train all managers at all levels and repeat periodically; include the reporting chain for complaints/issues and more.
The post on Monday 6/26/2023 reminded us that the Pregnant Worker Fairness Act (PWFA) went into effect 6/27/2023. The Act was signed into law by the President on 12/29/2022. What does it do? It requires covered employers to provide reasonable accommodation to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless there will be an undue hardship for the employer. The PWFA does not replace other laws that might provide greater protection (including PA law as described in the post). Who is a covered employer? One with at least 15 employees (along with others as listed in the post). Some things that an employer may need to consider/offer by way of reasonable accommodation include the ability to sit and drink water, closer parking, flexible hours, and more as listed in the post. Determination of undue hardship includes the size of the employer as well as its financial resources and more as noted in the post. The PWFA also has restrictions on what covered employers can do, including prohibiting employers from requiring an employee to accept an accommodation without a discussion about it, denying a job or other opportunities to a qualified employee or applicant based on the need for reasonable accommodation, and more as in the post.
TAKEAWAY: Employers must know what laws apply to their workforce and update their policies accordingly – including vetting them with employment counsel.
The post on Tuesday 6/27/2023 told of a outrage after HOA sends “desist letter” over the plants on patio: ‘I’ve lived here for 4 years’. Are community associations monsters? Not usually – but sometimes it may seem so to residents. Here the person had plants on their patio ledge for 4 years. There had been no issues. Then suddenly they received a letter from the association that plants were not allowed on the condo ledge. How did this person’s plants compare to others? See the post. One suggestion (in the post) as to a possible basis of differing treatment? Probably not, but one never knows for sure. And what about the time lag in enforcement – would or should that make a difference legally?
TAKEAWAY: the starting point is the Governing Documents – and then the facts as applied to the GovDocs. And finally, a visit with a community association lawyer.
The post on Wednesday 6/28/2023 was (more) about an HOA gone bad? Towed man’s cars before his funeral. Especially in a condo or homeowners’ association in an urban environment, parking can be a nice amenity. But as with other amenities in a community association, parking can come with restrictions that owners/ residents must follow. Rick Cousely died suddenly or a heart attack, leaving his wife Dori and two Dodge Chargers parked in the neighborhood where they had lived for over 20 years. Dori was consumed with planning Rick’s funeral and (understandably) forgot about the cars. The HOA had them towed. What trouble did it cause for Dori? See the post. So she called the HOA president who admitted authorizing the towing (for more on the conversation, see the post). So why were the cars towed? Allegedly based on HOA rules (as described in the post). The silver lining (if there can be one in this situation) is that the towing company did offer to help Dori as noted in the post.
TAKEAWAY: Like it or not, living in a community association comes with various restrictions and those restrictions don’t change based on a change in circumstances for residents. Know the things you can and cannot do – and how the association deals with violations. Consult a community association lawyer.
In the post on Thursday 6/29/2023 we read that a manufacturer must pay record $22 Million for wage and hour violations. This hits close to home as the case is out of federal court in eastern Pennsylvania. A federal jury recently required East Penn Manufacturing Co. to pay $22.25 million for wage and hour violations (which is supposedly the largest recorded jury verdict under the Fair Labor Standards Act (FLSA) according to DOL). Dol was also poised to ask the court for additional relief as noted in the post. Let’s go back some. DOL sued East Penn for an alleged failure to pay 11,400 employees who worked at battery plants in Lyons Station, PA, between November 2014 – September 2021 for time spent putting on protective clothing at the beginning of their shifts and undressing and showering at the end of their shifts (“donning and doffing”). How did DOL say East Penn handled things? See the post. DOL rested on decades of case law relative to pay for donning and doffing. East Penn’s statement is included in the post. East Penn did have a small win: the jury rejected claims related to employees who didn’t wear uniforms (what that entailed is also noted in the post).
How did East Penn keep time? There were two systems. The time and attendance system registered when an employee swiped in and out for the shift. The Human Machine Interface (HMI) system registered when the employee started work on the production line. East Penn used HMI data to calculate hourly pay, overtime and bonuses. There were limits on when employees could swipe in and out (see the post).
Because of the risk of exposure to hazardous chemicals, East Penn required most employees to wear uniforms (with some having special requirements noted in the post). East Penn gave workers a five-minute grace period to change clothes at the start of a shift and a 10-minute grace period at the end of the shift to change clothes and shower. So what was the issue? The court determined in 2021 that certain donning and doffing activities were compensable, but East Penn’s argument went to the calculation of what was compensable (see the post for its argument).
So what should employers learn from this case? They should keep accurate time records and pay for actual work hours (dealing with safety equipment as noted in the post). And how do they know what is compensable? It can be job-specific as shown by the examples in the post. Also, overtime applies, so employers should take into account donning and doffing time. And one final tip for employers is in the post.
TAKEAWAY: Paying employees incorrectly can be costly – do it right from the start and avoid the time and cost of litigation, to say nothing of back pay (and more). Contact your employment lawyer.
The post on Friday 6/30/2023 noted the COVID19 emergency declaration has ended – but do the accommo-dations continue? The emergency went into effect 1/31/2020 and expired 5/11/2023. During that time so many things changed in the workplace, including what the workplace itself was and where it was located. Over the past 3+ years the EEOC has issued updated guidance on various issues; its latest one came out 5/15/2023 (and is linked in the post). Among other things, it dealt with continuing accommodation, dealing with COVID-19 or Long COVID, and screening measures.
As to the first issue, continuing accommodations, that will be a case by case determination. Those at high risk (examples of which are in the post) may be at the forefront. As with all accommodations dealing with medical conditions, employers can request documentation from health care providers (as noted in the post).
And what about Long COVID? It is now a part of the workplace and affects many people. But is it a disability within the ADA definition? See the post. Accommodations for Long COVID might include a quiet workspace, noise cancelling or white noise devices, and more as listed in the post. And of course for those who were working remotely during the pandemic, that option is never off the table as an accommodation. And employers must keep in mind that if Long COVID is a disability, then it is entitled to ADA protection from harassment and discrimination on that basis – see the post for more details.
Finally, the EEOC’s Guidance discussed screening measures that employers might have in place, including when employees call in sick, when any employee enters the workplace, and if employees have symptoms of or have tested positive for COVID19. This is a moving target as variants emerge. Employers must keep in mind what is and is not allowed under the ADA and under what circumstances – many details about that are in the post (especially as relates to taking temperatures).
TAKEAWAY: the health emergency may be over, but COVID continues to effect workplaces on a daily basis, so employers must know how to deal with it under the many applicable laws. An employment lawyer can help.
Finally, in the post yesterday 7/1/2023, we were reminded of Rule 1 in beating an age discrimination claim: Get your story straight. One would think that need not be said, right? Well … Shifting explanations are never a good thing and can sink an employer’s defense. A recent case is a perfect example.
Dr. Edward Bartoszek is a DDS; after early retirement he became an adjunct instructor at a college. He started out teaching part time in the dental hygienist program, but then moved to biology courses at the college’s request. In 2019, when Dr. Bartoszek had been teaching biology full-time for seven years, the college decided to hire a full-time faculty member to teach – BIOLOGY. Dr. Bartoszek, who was then 68, applied. Who did the college hire? See the post. Dr. Bartoszek filed an EEOC charge. IN its 2021 position statement to the EEOC the college addressed why it did not hire Dr. Bartoszek for the position (see the post). Note that the college did not address the fact that Dr. Bartoszek had been teaching biology there full time for the past seven years. Eventually Dr. Bartoszek field suit. The college moved for summary judgment. And here comes the oops.
The college gave a different reason for why it did not hire Dr. Bartoszek for the position – see the post. It did not assert the reason it had given to the EEOC. The judge picked up on this inconsistency and denied summary judgment, sending the case toward trial (and a jury trial at that). The judge’s (short) statement is in the post verbatim and worth reading. Surely it will be repeated in some form later in the case.
TAKEAWAY: When discrimination is hinted at, employers need to get employment counsel on board, do a proper investigation, and accurately state the facts and position in a uniform, consistent way.
York, Pennsylvania 17403