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 11/3/2024 told us EEOC files initial string of lawsuits under the Pregnant Worder Fairness Act (PWFA). The EEOC released its final PWFA rule and interpretative guidance in April 2024 and is not taking enforcement action including filing the first three lawsuits against employers. It also announced a settlement against a fourth employer resolving a pregnancy discrimination charge – details on that are in the post. These suits should be a reminder to employers to know and meet their obligations under the PWFA – or face the EEOC for enforcement. Let’s look at the suits.
First, in EEOC v. Wabash National Corporation filed on September 10, 2024, in federal court in Kentucky, the EEOC alleges that the national producer of semi-trailers and other commercial trucking equipment violated the PWFA when it failed to accommodate an employee’s known pregnancy-related limitation, despite its purported offer of comparable accommodations to non-pregnant workers with similar limitations. The details behind the EEOC’s allegations are in the post, including denying a pregnant assembly line worker’s request to transfer to a role that did not require lying on her stomach and much more.
The next day, September 11, 2024, the EEOC announced a settlement resolving a discrimination charge against ABC Pest Control, Inc., alleging that it terminated a pregnant employee after she requested a reasonable accommodation to attend monthly medical appointments related to her pregnancy. The monetary and non-monetary terms of the settlement are discussed in the post.
Third, on September 26, 2024, the EEOC filed suits in federal court against Polaris Industries, Inc. (filed in Alabama) and Urologic Specialists of Oklahoma, Inc. (filed in Oklahoma). Both lawsuits involve an employer’s alleged failure to accommodate an employee because of their pregnancy or related condition.
In EEOC v. Polaris, the EEOC alleged that the employer violated the PWFA and ADA on four bases, including that the employer refused to excuse a pregnant employee’s absences for pregnancy-related conditions and medical appointments and required her to work mandatory overtime despite the employee’s healthcare provider’s restrictions that limited her from working over forty hours a week, and the other bases detailed in the post.
In EEOC v. Urologic Specialists of Oklahoma, Inc., the EEOC alleged violations of the PWFA and ADA when the employer did not allow a medical assistant to take breaks, to sit during shifts, or to work on a part-time basis, all of which her physician said were necessary to “protect her health” during the final trimester of her high risk pregnancy, and the other things detailed in the post.
No, the remaining three cases have not been decided (or settled) yet. But employers still can learn something from them, even at this early stage. First, the PWFA prohibits employers from placing a pregnant employee or an employee impacted by pregnancy, childbirth or related medical conditions on a leave of absence (paid or unpaid) when a reasonable accommodation is available. The EEOC provides suggestions for potential alternative accommodations in its resources (some of which are linked in the post). And next, the PWFA requires employers to engage in the “interactive process” to determine whether the requested accommodation (or an alternative accommodation) is feasible. As with the ADA, an employer is not required to provide the accommodation requested by the employee, but must be reasonable in its participation in the interactive process and may not unreasonably deny or force an accommodation. An example of this using the facts in the Wabash case is in the post.
So, given the EEOC’s clear intent to enforce (and prosecute violations), what should employers do now? First, and as should not need to be stated but will, they should make sure policies and trainings comply with the PWFA. This includes training both management and HR personnel on the things noted in the post. This is critical as the PWFA is broader than the ADA and those charged with fulfilling the company’s obligations must understand the differences. Examples of some differences, and what that may mean for the employer, are in the post. At the same time, the PWFA has limitations on requests for medical documentation that are different than under the ADA (see the post). The managers and HR personnel also should be made aware of the EEOC’s suggested accommodations, which may include suspension of a job function. They also need to do and know the other things described in the post.
TAKEAWAY: Due to the newness and EEOC’s apparent strict enforcement, employers should be careful when faced with requests for workplace accommodation from a pregnant employee and contact your employment lawyer before denying a pregnancy or childbirth-related accommodation to an employee or taking any adverse employment action against an employee who has requested such an accommodation.
The post on Monday 11/4/2024 noted Amazon employees decry 5-day RTO (return to office) mandate – other employers may soon follow. Some Amazon workers said they’re thinking about looking for new jobs elsewhere, although many tech workers believe competitors will soon follow with similar in-office mandates.
Amazon employees were overwhelmingly unhappy when the company recently announced return-to-work requirements of in-office work five days per week starting in January 2025. Some statistics from a recent poll are in the post along with a quote from one employee (which might even be referring to a quiet quit). Amazon made the announcement Sept. 16 that affects more than 350,000 workers, requiring them to return to the office five days per week on Jan. 2 and ends the current three-day in-person schedule.
There was a lot of buzz and activity within 3 days after the announcement. See the post for details. Another effect has been that Amazon hiring managers have seen candidates drop out of the hiring process due to the loss of remote work opportunities. Amazon employees were unhappy on many fronts, including those detailed in the post.
But while Amazon may be the leader, professionals in the tech industry believe other tech companies may follow (based on a recent survey of more than 8,300 participants). More than two-thirds polled agreed that companies such as Apple, Meta and Microsoft will likely make similar RTO announcements. What is interesting is that executives are not looking at RTO mandates as a doomsday, but quite to the contrary. See the post. The RTO policies are expected to drive away high performers, women and millennials, with the predicted effects of that on the companies noted in the post.
TAKEAWAY: The tide may have turned, with workers no longer having the upper hand on working remotely or not working for a particular employer. Only time will tell.
The post on Tuesday 11/5/2024 talked of a 90-year-old woman who says HOA removed her fence and billed her for it. Why was she treated differently than her neighbor? NOTE: the post contains a short VID too. Sylvia Hackbarth was horrified when she discovered her homeowner’s association had torn down her fence and billed her for it. Hackbarth lives alone in her condo. Her backyard doesn’t have much privacy, so she wanted a fence. Edward Davidian lives next door. What he does to help his neighbor is in the post (and it’s a lot). Davidian helped Hackbarth with the whole fence process – and his fence was almost exactly the same as hers. They both secured the city permits and submitted the same plans to the condo association but only Hackbarth’s fence was torn down.
Letters from the condominium association warned Hackbarth to remove her fence or it would be torn down and she would be fined. The letters said her project was unapproved. Hackbarth was unaware of the warnings. What Davidian said, and what he did for his fence and Hackbarth’s fence, is in the post. City permits show both neighbors got permits for their fences in June 2024. Davidian sent the permits and all of Hackbarth’s plans to the Condominium Association once she finally got the warning letter. But it was too late. What Davidian said and saw is in the post. And to rub salt in the wound, the association then sent Hackbarth a $1,000 bill for cutting down the fence.
What Hackbarth said she will do now is in the post. Also, the tv station reached out to the condo association but had not received a response.
TAKEAWAY: If the fence were not approved, then the question is why since it is apparently the same (or sufficiently similar) to the one at the adjacent property. If the fence was approved, then the question is why any of this happened. Problems like this might well call for the association’s board and/or the owner to contact a community association lawyer.
The post on Wednesday 11/6/2024 noted the National Labor Relations Board hits Amazon with joint employer lawsuit. And yes, you non-union employers care because of the universal applicability of Section 7 of the NLRA (National Labor Relations Act).
The NLRB alleged in its Sept. 30th complaint that Amazon, as a joint employer of employees represented by the Teamsters union, discriminated against unionizing employees and refused to collectively bargain with them. The complaint alleges that Amazon interfered with, restrained and coerced the drivers’ exercise of their rights under Section 7 and more as detailed in the post. The NLRB’s Los Angeles office had previously found that delivery drivers employed by Battle Tested Strategies, an Amazon delivery service partner, were jointly employed by the two companies. Amazon’s statement about the charge is in the post.
And now some backstory. This goes back to 2023, when Battle Tested Strategies employees became the first group of Amazon delivery drivers to unionize. But then Amazon terminated its contract with Battle Tested Strategies, after which the Teamsters filed a labor practice charge with NLRB. What the NLRB found as to Amazon’s tactics (in violation of the NLRA) is in detail in the post. And to bring that full circle, the Teamsters now alleged, and the NLRB alleges, that Amazon “possessed and exercised control” over Battle Tested Strategies’ labor relations policies and administered a common labor policy with Battle Tested Strategies for affected employees. Yep, joint employer allegations.
This is not Amazon’s only pending tangle with the NLRB. Others are described in the post.
TAKEAWAY: All employers (yes, even non-union employers!) must be careful of being deemed a joint employer because if the other entity violates the NRLA, especially Section 7, then you might well get dragged into the legal mess.
In the post on Thursday 11/7/2024 we learned that TransUnion settles job applicant’s claim that firm’s background check was bogus. Yep, ugh. The settlement happened on October 9th in a Texas suit, Kinder v. TransUnion Rental Screening Solutions, Inc.
The plaintiff had applied for a job as a Chick-fil-A delivery driver. An offer was made, contingent on the applicant passing a background check. Chick-fil-A contracted with TransUnion to complete the check, which came back showing that the plaintiff had 2 misdemeanor convictions. What they were for is noted in the post (and would be clearly relevant to the position at issue). After receiving the report, Chick-fil-A told the plaintiff that it could not move forward with onboarding until the background check cleared. The plaintiff then filed suit in federal court, alleging that the convictions belong to an unrelated person. There was also communication with TransUnion that was not really helpful to the agency: it started with the plaintiff initially calling TransUnion to dispute the report and being told that it could take up to 30 days for the dispute to be reinvestigated, and then ended as described later in the post. The plaintiff claimed that the person actually convicted of the reported misdemeanors had a different last name, driver’s license number and social security number and more things distinguishing him from the address listed in the conviction records reported by TransUnion. The actual settlement terms have not been disclosed.
This suit is but one of several cases filed in the past year over an allegedly erroneous background check. Two of the cases involve HR services firm ADP, including a recent suit in which a job candidate alleged that an ADP-generated report falsely showed that he was a convicted felon. ADP settled a separate case last July – the details of that are in the post. The plaintiffs in each case alleged violations of the Fair Credit Reporting Act (the relevant requirements of which are in the post).
Employers continue to rely upon background check firms to vet new hires, but a 2024 study found a huge problem with the results – see the post. Background checks may also influence employers to become biased against formerly incarcerated workers who could perform well in the position.
TAKEAWAY: Employers using background checks must do so with their eyes open, i.e., not solely relying on that as the basis to extend or deny an offer of employment. Consult an employment lawyer with questions.
The post on Friday 11/8/2024 noted Ye’s new neighbors scoff at his outrageous plans for $35 Million mansion city. What will HOA say?. Yep, his new neighbors think he’s “delusional.” Several people who live within walking distance talked about their thoughts on his plans to build “DROAM,” a self-sustaining city he wants to construct in his backyard. Earlier, the artist formerly known as Kanye West revealed the tentative blueprint for his city (which he originally wanted to make in the Middle East). His neighbors are not excited. Let’s dig a bit.
Ye’s entire home sits on an almost 7-acre lot and is about 20,000 square feet. It has 11 bedrooms and 18 bathrooms and many amenities, some of which are listed in the post. Many believe the property is not large enough for an entire city. And there’s another and even bigger problem for Ye: the community has a homeowner’s association that has to vote on major projects. Some things that concern neighbors with his proposed project are listed in the post
Ye has not yet moved into his new home. Where he is now is in the post. It’s not known if he’s serious about building DROAM there, but it is clear that he plans to make some alterations when he does move in. And that they will require HOA approval.
Watch Ye explain what DROAM is in the VID embedded with the post
TAKEAWAY: It doesn’t matter who you are or how rich, if you live in a community association then you must still abide by its restrictions and covenants.
Finally, in the post yesterday 11/9/2024, we saw the Supreme Court to decide whether ADA permits former employees to sue for post-employment benefits. The Supreme Court recently agreed to hear Stanley v. City of Sanford, Florida, a case about whether the ADA permits former employees to sue for alleged discrimination in providing post-employment fringe benefits. Employers really care about the answer for the reason detailed in the post. So let’s dive deeper.
The plaintiff, Karyn Stanley, worked as a firefighter for the City of Sanford for about fifteen years until she was diagnosed with Parkinson’s disease. She then worked for two more years, but the disease ultimately forced her to take disability retirement. Under the policy that was in effect when she first joined the Fire Department, employees retiring for qualifying disability reasons received free health insurance until they were 65 years old. Stanley did not know that the benefit changed (for the worse) during her employment. (What the new policy said is in the post.) Given that she was unaware of the policy change during her employment, Stanley filed no legal action while an active employee. It was only years later, after Stanley had already retired, that she learned of the change and the effect on her.
So post-retirement Stanley filed suit against the City of Sanford, alleging that the City violated the ADA and discriminated against her as a disabled retiree when it decided to trim the health insurance subsidy. The federal trial court granted the City’s motion to dismiss. On appeal, the Eleventh Circuit Court of Appeals affirmed. The basis on which the appellate court based its affirmance is described in the post (and forms the reason for appeal to the Supereme Court). But the Eleventh Circuit also noted that there is a circuit split on whether the ADA applies to former employees. On the one hand, the Sixth, Seventh, Ninth, and (now) Eleventh Circuits say the ADA does not cover former employees, while the Second and Third (which governs PA cases) Circuits say that it does. The primary reason for the circuit split is the basis for the Second and Third Circuits’ holdings (which is in the post).
In June 2024, the Supreme Court granted certiorari (meaning it agreed to accept the appeal form the Eleventh Circuit). The question presented by Stanley is pretty straightforward: whether, under the ADA, a former employee—who was qualified to perform her job and who earned post-employment benefits while employed—loses her right to sue over discrimination with respect to those benefits because she no longer holds her job. The Supreme Court decision will resolve the circuit split.
In deciding this case the Supreme Court may rely on its rationale from Robinson v. Shell Oil Co., 519 U.S. 337 (1997), a case where a former employee sued his previous employer for allegedly providing a negative employment reference because he filed an EEOC charge. The employer’s argument and the Court’s holding are both in the post.
Why do employers care about this case? Because if the Court rules for Stanley, then former employees will be provided with another avenue — the ADA — to challenge changes to post-employment benefits plans. The ramifications of that are discussed in the post. For example, a reversal here would likely result in remand to the trial (district) court where the case would proceed with costly discovery and then the judge or a jury would determines whether the benefit changes were discriminatory towards disabled employees.
But that’s not the only possible effect of a ruling here for Stanley. See the post for more.
The case is scheduled for oral argument in the Fall 2024 and then an expected decision in 2025.
TAKEAWAY: Employers do make changes to retiree benefits and those changes affect current employees. But what if those employees are in a protected group and don’t find out about the change until they claim the benefit after retiring? That’s what this case is about – and why employers (and their employment lawyers) need to pay attention.
York, Pennsylvania 17403