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 6/27/21 we saw that Ryder and a staffing firm settle a race bias suit for $2M. Who are the parties: Ryder Integrated Logistics Inc. (yes, the moving van company) and Kimco Staffing Services. What are they paying: $1 Million each. Why? The EEOC filed a suit against them accusing them of racially discriminating against Black employees. Allegedly employees at a Ryder facility were subjected to a hostile work environment (what colleagues did or said is in the post). And there was more: actions by the company as noted in the post. One black employee complained, but neither company investigated, Instead, they fired the employee. The settlement must be approved by the Court and includes not only the monetary payments, but also the non-monetary items noted I the post. What is interesting is (1) there is no admission of liability as part of the settlement and (2) Ryder says that its management was not involved and was unaware of the complaints “related to the events while the individual was employed by the staffing vendor”, it is taking responsibility because the alleged conduct occurred on its premises. If you want more info, the case is EEOC v Kimco Staffing Services, 5:19-cv-01838 (C.D. Cal.); the proposed consent decrees were filed 5/24/2021.
TAKEAWAY: Your agents, whether employees or contractors, can end up costing you a lot of money if their actions are illegal; keep a close eye on all to ensure legal compliance.
The post on Monday 6/28/21 reminded us that COVID long haulers are likely protected by the ADA and FMLA (so you need to know the law). Do you know what we mean when we say “long haulers”? That term refers to people who had COVID-19 and cannot seem to get rid of the effects. Complaints include debilitating aches and more as noted in the post. And a commonality” what they term a brain fog that makes it hard for them to concentrate. So why do you care (as an employer, not as a human)? They probably have protections from existing laws including the ADA and FMLA. Both act so as to pretty much bar you from failing to recall or rehire them due to their continuing COVID effects. One example worked through in the post is of a retail clerk with more than 50 employees pre-COVID shutdown which is not reopening and rehiring employees. See the post for how both of those statutes apply to the situation. What about the long haulers being treated as disabled under the ADA? It is fact-dependent and you will need to look at the things listed in the post. So what do you do if they are deemed disabled? Follow the normal process (as outlined in the post). Remember, though, that if the person cannot perform the essential duties even with reasonable accommodation, termination is an option. And what about FMLA leave for the long haulers? They may indeed qualify as noted in the post – but follow the normal process.
TAKEAWAY: Don’t wait for a lawsuit; consult employment counsel relative to the status of COVID long-haulers BEFORE taking adverse actin that might come back to bite you.
The post on Tuesday 6/29/21 was about a Christian management company suing for the right to discriminate against workers for being members of the LGBTQ+ community, having sex and using Grindr. Yep, you read that right, they want the right to discriminate (in some cases). You know that a year ago the Supreme Court ruled in the Bostock case that Title VII also applies to discrimination based on sexual orientation and gender identity. Well, now Steve Hotze seeks an exemption to allow him to fire LGBTQ+ staff dur to his religious beliefs. The Bear Creek Bible Church is a co-plaintiff in the suit. So, what is the basis of the suit? That the EEOC guidance permits no exemption for employers that oppose homosexual or transgender behavior on religious grounds and more as noted in the post. What does that mean specifically as to the plaintiff here? See the post. This suit pits RFRA (Religious Freedom Restoration Act) and the First Amendment against post-Bostock Title VII. Hotze and the Church argue that they should be exempt from the non-discrimination provision as long as they apply rules equally to both men and women. They give examples which are noted in the post. And, interestingly, they have a back-up in case the ruling is against them on that request: that gay and trans workers are to be distinguished from bisexual employees so the latter can be fired.
TAKEAWAY: It seemed that the Supreme Court was clear in its Bostock ruling, but what is even more clear is that people will still try to find loopholes or exemptions. Stay tuned – and until there is a definitive ruling to the contrary, follow the intent and dictates of Bostock.
The post on Wednesday 6/30/21 told us that a homeowners’ association fined a couple for displaying a small pride flag on their front yard (and asked what your association would do?) Bob Plominski and Mike Ferrari put out a small flag to celebrate Pride Month. This was not the first time they put out the flag. But this time, the HOA said the flag violates a rule and told them to remove the flag or face a fine of $50/day. How did it come to this? The post gives some background. Plominski and Ferrari opined on the genesis of this matter, but the HOA did not respond.
TAKEAWAY: Flags are often a touchy and difficult subject when it comes to restrictions in a condo or homeowner association – the safest thing (for owners and board members) is to consult a knowledgeable community association lawyer.
to associations to ensure
proper maintenance and repair
of common elements
In the post on Thursday 7/1/21 we learned that a Baltimore firm warned of risks for the just-collapsed Florida condo tower in 2018. The structural engineering firm has offices in Baltimore and also Palm Beach Gardens, FL. The firm performed services and prepared a report for the condo association in 2018 that noted “abundant cracking and spalling of varying degrees were observed in the concrete columns, beams and walls.” That wasn’t all. See the post for the entire report. The report did note the main issue – that is highlighted in the post. One thing the report did not contain was a warning that the damage noted posed imminent danger. Of course, that was 2018 and we are now in 2021, with another 3 years of traffic, weight-bearing, wind and salt … What we don’t know is what the Association’s Board did with the report in the intervening years and whether it met its fiduciary obligations.
TAKEAWAY: The Surfside condo tower collapse is a tragic incident that stands as a sad but important wake-up call for all associations to ensure proper maintenance and repair of common elements, especially after professional reports.
The post on Friday 7/2/21 was about business continuity amid COVID-19: returning to workplaces. As businesses think about bringing workers back on premises, they also need to consider safety for those employees, including whether to require employees to be vaccinated against COVID-19 and whether to continue mask mandates (and if so, under what circumstances). Certainly, CDC guidance is important, as is a state’s health department recommendations, but ultimately it may be up to the employer to make decisions that can have legal ramifications. For example, if there is a vaccine requirement, the employer must take into account those things noted in the post or risk violating federal laws. There might also be occupancy concerns as part of any accommodations that must be made when bringing employees back to the workplace – see the post for examples. And finally, an employer must continue enhanced cleaning and disinfection practices as noted in the post.
TAKEAWAY: As with COVID itself, consideration of whether to require employees to return to the workplace involve many questions that must be answered and are fact dependent. Involve your employment lawyer.
employee terminations
Finally, in the post yesterday 7/3/21, we learned answers to the most common questions about employee termination. Let’s set the stage: most employees are at-will and can be terminated at any time, with or without reason, as long as the termination does not violate local, state or federal law. Ok, now let’s look at seven questions: (1) What is at-will employment? (2) What is termination for just cause? (3) What can’t I fire an employee for? (4) How do I terminate an employee for poor performance? (5) How do I properly fire an employee? (6) can I terminate an employee with mental health issues? And (7) Are terminated employees entitled to a severance package? First, at-will employment means that there is no written contact to the contrary, such that either the employee or employer can end the relationship at any time with or without notice. But various laws temper that a bit. Title VII prevents the employer from terminating employment based on a protected characteristic (see the post). There are also other reasons the employment might not be at will or termination may have some prerequisites – see the post. Second, just cause for termination means the employee has done something (or failed to do something) that is sever enough that termination is warranted. Often what constitutes just cause is spelled out in a written contract. Some examples are noted in the post. The answers to the other 5 questions, along with examples, are also in the post.
TAKEAWAY: Know the ins and outs of terminating an employment relationship BEFORE taking that step – and consult an employment lawyer to know the possible ramifications of your action.
York, Pennsylvania 17403