In the post on Sunday 11/28/2021 we saw that a former Sea World staffer, fired after 45 years, is suing for alleged age discrimination and decades of unpaid overtime. Shari Sehlhorst started working there in 1976 as an admission and ride attendant. By 1997 she had joined the Environmental, Health & Safety Dept. and was its leader at the time her employment ended. The suit says she was told the firing was due to a restructuring. She says that the real reason is as noted in the post. She supports that by noting who replaced her (again see the post). The complaint also includes a claim for unpaid overtime (and work during lunch breaks) going back decades. How much? See the post. Shari says that the company knew she worked the overtime and willfully did not pay her for those hours worked. Sea World’s comment? See the post.
TAKEAWAY: Before taking adverse action against an employee, especially one in a protected group, consult your employment lawyer to make sure all of your ducks are in a row.
The post on Monday 11/29/2021 told us that Employer Solutions Group will pay $95,000 to settle EEOC disability discrimination and retaliation suit. The link appears to have been missing or broken so here it is: http://ow.ly/77ys50H3z8e. ESG is a payroll services company. The EEOC alleged that it fired an employee because she notified ESG that she needed to use crutches following surgery related to a knee injury. A bit of background: she went out on approved medical leave. When she was ready to return, ESG acted as noted in the post. And then later suit was filed when conciliation failed. In August the court denied ESG’s motion for summary judgment, instead taking a different course (see the post). Then ESG agreed to settle. Not just for the monetary relief, but also for the other things listed in the post that are part of the consent decree.
TAKEAWAY: Know your obligations under the ADA before stepping on a legal – and costly – landmine.
The post on Tuesday 11/30/2021 taught us about the line between a demanding workplace and a demeaning one. And who is the current poster-boy for this? Former NY Governor Andrew Cuomo. A mere 20 days before he resided, he said that is “office is a demanding place to work and that it is not for everyone.” How did staffers describe the office? See the post. Employers must be careful that demanding standards do not become an excuse for demeaning treatment of subordinates. Having goals and standards is acceptable; harassing and discriminating against employees is not. Employers are cautioned to learn about, and ensure they do not invite or allow, the workplace to become a hostile work environment. This is a legal term; what courts look for in this type of claim is discussed in the post. One thing that often stands out in a hostile work environment is an imbalance of power, such that younger, lower-ranked workers are or susceptible to harassment. How that might play out is in the post. Likewise, workplaces with many young adults may be more suscep-tible to (hostile environment) harassment for the reasons noted in the post. And what about workplaces with “high value” employees? Yep, another risk factor – for the reasons in the post. And what if harassment is found to have occurred? The EEOC offers several recommendations including devoting sufficient resources to investigating complaints and the other things noted I the post.
TAKEAWAY: Know the culture in your workplace and stop what is illegal before it takes on a life of its own. Engage an employment lawyer early on.
The post on Wednesday 12/1/2021 was about mom’s best response after neighbor in co-op (similar to condo) complained about toddler’s sidewalk chalk. Every neighborhood has at least one resident to whom the pettiest of things warrant a complaint. But what if that neighbor can affect you? That can happen in a community association. Ashley lived in a co-op; her toddler was writing in chalk on the sidewalk in the building’s courtyard. Yep, one neighbor complained about it. So what did Ashley do? She wrote something to the neighbor in the courtyard using chalk. What she wrote is listed verbatim in the post – and is a perfect diffuser for the situation. Ashley also left a letter for the woman in the lobby to make sure she got the message. And what about the board who had to talk to Ashley after the complaints? Ashley responded to that too – see the post.
TAKEAWAY: (Planned) Community associations – whether co-op, condo or HOA – have certain obligations to owners under state and/or federal law. Know where the line is and when to diffuse by consulting a community association lawyer.
In the post on Thursday 12/2/2021, we learned about an HOA headache: an abandoned house on a private road. The house at issue sold for $435,000 in 2005, but has been a bane to neighbors for at least 6 years. Strangely, although the owner pays HOA dues and the real estate taxes, there are serious issues with the house (as noted I the post). Wildlife have been happily entertaining themselves with the house – also in the post. The HOA did not just sit back; both it and the city have acted as noted in the post. But the owner has not responded. At one point the HOA amended its Governing Documents so that it can make repairs and then bill the cost back to the owner – but that has problems as noted in the post. Why can’t the city do more now? See the post. And this is all in an affluent neighborhood.
TAKEAWAY: Your community’s association may try to enforce the Governing Documents, but may be stymied anyway; consult a community association lawyer.
The post on Friday 12/3/2021 told us that a jury awards White male plaintiff $10M in discrimination suit. That is not a typo. The jury verdict came down October 26 against Novant Health, Inc. The plaintiff alleged that he had always received strong evaluations from his supervisor, team and even an outside consulting group. But he was fired 5 days prior to what would have been his 5-year anniversary. What that would have triggered is noted in the post. What he was told at termination is also in the post, as well as more details about the person who replaced him. Novant Health field a response to the complaint that contains what it says is the reason for the termination, and that reason is completely at odds with what the plaintiff claimed. See the post. Will Novant appeal? Keep your eyes peeled.
TAKEAWAY: While minorities and women are more commonly the victims, discrimination can occur against any employee. Employers must document the basis for any adverse action in case support for it is needed later (including in case of suit).
Finally, in the post yesterday 12/4/2021, we learned about retailers’ (and other employers’) obligations to accommodate work schedules that conflict with an employee’s religion. The law is the same regardless of the type of employer (with few exceptions probably not relevant here). The law is discussed more now as employees request exemption from COVID-vaccination mandates for religious reasons. But what about work schedules and religious beliefs? Pre-pandemic, employers, especially those in the retail arena who had to ramp up hiring for the holiday season, juggled schedules to accommodate religious beliefs. But now there are fewer employees so employers must know their rights and obligations under Title VII. That federal law’s definition of “religion” for legal accommodation purposes is noted in the post. And once the employer knows it is dealing with religion, it must undertake the 2-step analysis listed in the post. Most often an employer will just skip right over the first step and assume it to be done (which is acceptable) , but sometimes documentation will be required (and is not as limited as you may think – see the post). Then you get to the second step which normally has 2 roads (both noted in the post). The only reason not to accommodate is if it would prove an undue hardship for you. That is discussed in the post (and compared to the burden to show undue hardship under the ADA with which many employers may be familiar). Some things for an employer to consider when looking at the availability of an accommodation for religious purposes are listed in the post, including what might be considered an unreasonable accommodation. But in the end each situation stands alone and the employer must go through the process from start to finish (as noted in the post).
TAKEAWAY: Consult an employment lawyer to make sure you are fulfilling your obligations in the Title VII accommodation process for religious beliefs – too many things can trip up an unsuspecting employer.