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 2/26/2023 told us the National Labor Relations Board says Apple illegally interfered with employees’ protected activity. Five charges had been filed against Apple in Sept.-Dec. 2021 for alleged NLRA violations, four of which alleged violations of Section 8 (and the 5th as described in the post). Links to the dockets are in the post. The Section 8 charges had to do with work rules, handbook rules and confidentiality rules. Some of the charges have been made public via FOIA requests. They allege that Apple’s HR department stopped attempts by employees to voluntarily gather wage data and more as noted in the post. We know that at least 2 of the charges were filed by Ashley Gjovik who was an engineer at Apple from Feb. 2015 – Sept. 2021. Gjovik shared a Sept. 2021 memo from Apple CEO Time Cook that has bearing on the NLRB charges – see the post. The NLRB found that Apple did violate the Act for the reasons noted in the post. So what does this mean? If Apple and the charging parties don’t settle, the NLRB will issue a complaint and prosecute the charges in a hearing.
TAKEAWAY: Keep in mind that ALL workplaces (even non-union) enjoy certain rights under the NLRA – know the law and get advice from an employment lawyer when needed.
The post on Monday 2/27/2023 relayed that SCOTUS to take another look at religious accom-modation in the workplace. Unless you’ve had your head in the ground, you’ve probably heard about this case, both as it wound its way to the Supreme Court and more recently. The case could have broad implications, so pay attention. Cert was granted in Groff v. DeJoy, a case that involves an evangelical Christian postal worker who claims his religious freedom was violated when he was forced to resign as the only way to avoid delivering Amazon packages on weekends. The case may or may not overturn precedent on religious accommocations that was established by the Court in 1977 in Trans World Airlines v. Hardison. Let’s take a step back for a sec. Someone who claims religious accommodation must woe the things noted in the post. Once s/he does that, the burden shifts to the employer; what it must then show is also noted in the post. How undue hardship is analyzed is also detailed in the post.
Larry Hardison was employed in TWA’s airplane maintenance and overhaul base, a department that operated 24/7/365. Schedules were based on bidding by seniority, with the seniority part of a negotiated collective bargaining agreement. Hardison’s religious beliefs prevented him from working on Saturdays; how and why he was accommodated is in the post. But once he applied for and received a transfer, things changed with the accommodation. Eventually he was discharged and brought suit. The decisions by the trial and intermediate courts are noted in the post, with both seeking cert to the US Supreme Court. In a 7-2 decision, SCOTUS held that TWA had made a reasonable effort to accommodate Hardison (which is detailed in the post) and, most importantly, that there is no definition of “reasonable accommodation” or “undue hardship”, but that more than a de minimis cost to the employer was an undue hard-ship (at least in the religious accommodation context).
Then came Groff. He is a Sunday Sabbat observer. In 2012 he started working for the US Postal Service. In 2013 USPS contracted with Amazon (yes, it’s been 10 years already!). Groff told his Postmaster he would not work on Sundays dur to his religious beliefs. Groff was offered several alternatives (which are listed in the post). When none of those alternatives worked, the Postmaster or another employee would cover the shift, but things got tense. Discipline issued multiple times and Groff eventually resigned in January 2019 (with at least some of what he said in his resignation letter being listed in the post). Groff then filed suit. The trial court ruled in favor of the USPS. On appeal, the Third Circuit (which, by the way, issues decisions that govern cases from PA), decided that the USPS had not reasonably accommodated but that doing so would be an undue hardship (thus affirming the trial court). In August 2022 Groff filed a cert petition. He included 2 issues: whether SCOTUS should disapprove of the more-than-de-minimis-cost test for refusing religious accommodation as in TWA and the other issue noted in the post.
TAKEAWAY: The ruling in Groff may change the underpinnings of religious accommodation that we have all known for the past 46+ years. Stay tuned (and start to think about how you will operate if those changes come to be).
The post on Tuesday 2/28/2023 gave a checklist: do your job descriptions need an update for 2023? We gave a hint that the answer is probably YES. But let’s go deeper. First, just know that you need up-to-date job descriptions. They explain what is expected and the skills and experience needed to perform the duties. They probably need to now specify whether the work can be performed remotely given the sea change in WFH the last few years. And there are other reasons job descriptions should be reviewed and updated – see the post. When reviewing/updating them, keep in mind applicable laws including the FLSA, ADA, and others as noted in the post (and how they impact the job descriptions which is also discussed in the post). So, the checklist. There are many questions that you should ask to see if the existing job description is accurate. They include whether job titles reflect the actual work being done, whether the job descriptions provide an overview of key responsibilities the position entails, and the multiple others listed in the post.
TAKEAWAY: Having a checklist is a good way to act uniformly while ensuring that job descriptions are current – just do it.
The post on Wednesday 3/1/2023 acted as an adviser: criteria for serving on an association board (whether condo or HOA). Can just anyone serve on the Board? Well, it depends. If state law and the Declaration, Bylaws and Rules & Regulations do not provide to the contrary, then yes. But usually there are eligibility criteria in the Bylaws. And keep in mind that board members are fiduciaries – what that means is detailed in the post. And someone who breaches that duty may have liability in an individual capacity (that is not covered by any insurance). Basic things that anyone wanting to serve on a condo or HOA board should do are noted in the post – many more can be found as part of the resources of Community Associations Institute (www.caionline.org)
TAKEAWAY: Know what PA law – and your association’s governing documents – require in order that someone be eligible to serve on the board. Get advice from a community association lawyer.
In the post on Thursday 3/2/2023 we read a guide to restrictive real estate covenants (i.e., the Declaration for condominium and homeowners’ associations). If you are considering living in a community association (condominium cooperative, or home-owners), or already do, read this post. First, know that a restrictive covenant is something that governs the appearance or use of property. It might have to do with paint schemes, landscaping, shed locations, or so many more things. They are enforced by the associations themselves (not municipal entities). Some types of restrictions include limitations on the use of property (related to gardens and lawns, home-based businesses and more as listed in the post) and required maintenance (including what the association and owner are each responsible for and what changes an owner can or cannot make without association approval; examples are in the post). Restrictive covenants may also deal with issues relative to property boundaries, pets and rentals (examples of all of which are in the post). It is both good and bad to have restrictive covenants; the good things (including uniformity and enforceability and the other things in the post) are why most people choose a community association. The cons (again, see the list in the post) are what people are willing to give up to benefit from the good things.
TAKEAWAY: Community association ownership comes with both benefits and obligations, rights and restrictions. Know who has which by meeting with an experienced community association lawyer.
The post on Friday 3/3/2023 asked: Is teacher eligible for unemployment? He was fired for calling students ‘idiots’. This happened in PA (yep, you perked up, right?!). The school district had a code of conduct; it included a prohibition against inappropriate comments to colleagues ad teachers. In August 2019 it hired a teacher and made him aware of the code of conduct. A complaint was made to the principal three months later that the teacher called students “idiots”. After an investigation, the teacher was fired. He filed for UC benefits. He was initially found ineligible. He appealed. A hearing was scheduled but the teacher did not attend. How and shy the hearing officer (Referee) ruled is in the post. An appeal was filed from the referee’s decision. On appeal the court started by defining ineligiblilty based on an asserted rule violation and how that can be proven. The court then looked at the record (the hearing before the referee) including who testified and what they said and whether it was admissible (see the post for details). In the end, even though the teacher was not at the hearing, he was found eligible for UC benefits because the school district as employer did not carry its burden.
TAKEAWAY: UC law has many minefields at all stages, especially if dealing with PUA and FPUC – so both employers and employees should get assistance from a lawyer with knowledge of UC law.
Finally, in the post yesterday 3/4/2023, we looked at the law: firing managers for off-duty misconduct. Everyone things that what happens outside of the confines of the workplace is like Vegas (what happens in Vegas…), right? Well, not always. If that off-duty conduct impacts the employer, then there might be repercussions. The University of Texas recently had to explain that to its now-former men’s basketball head coach Chris Beard (who it fired). Beard had been arrested on domestic violence charges after his finance called 911. Beard was accused of strangling and biting her and causing altercations. She is now denying that the things about which she called 911 ever happened. And when Beard’s attorney disputed the evidence, the school’s attorney had the perfect reply in the employment context – see the post. This all has real-world application for the rest of us. First, employers should verify (to the extent possible) the accuracy of information before taking adverse action. And employers should keep in mind the 2 things discussed in the post. Next, employers should think about whether the action they want to take is legal (and defensible if a charge/suit is brought). Things that weigh into that are also discussed in the post.
TAKEAWAY: Employees and employers must know when the line between what happens outside of work can be crossed and affect the employment relationship – a good employment lawyer can help.
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