Below is a review of the posts (on Facebook, LinkedIn, and X [formerly Twitter]) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 12/24/2023 reminded us that Walmart frequently faces lawsuits. Why? In fact, Walmart faces an average of almost 20 lawsuits per day – close to 5,000 lawsuits annually! The suits contain a variety of allegations, including employment discrimination, wage and hour violations, and premises liability. A 2019 study by the University of Missouri looked at the percentages of those suits that settle and those that go to trial (see the post). In 2019, Walmart paid out over $2.7 billion in settlements and judgments for both cases that went to trial and cases that were settled out of court.
There are many reasons why so many of the suits filed against Walmart have been settled out of court. One reason is that trials can be expensive and time-consuming for both parties. And there is more about trying a case that affects both sides – see the post. Settling can also help to avoid (some) negative publicity.
In some of the cases, Walmart may choose to settle even if it believes it has a strong defense because it may want to avoid the costs and risks of litigation or maintain its public image. Settling can also be beneficial for plaintiffs – see the post for more on that.
The high cost of litigation has to be a major concern for Walmart (and other large corporations). To reduce legal expenses, many companies have implemented policies and procedures aimed at preventing lawsuits; what they include is noted in the post. A large portion of the suits filed against Walmart include claims of employment discrimination – race, gender, disability, and age. On what those claims are often based is listed in the post. Walmart has also been accused of violating wage and hour laws. Employees have claimed that they were not paid overtime for working extra hours and the other things noted in the post. Walmart also faces a steady stream of premises liability lawsuits, those arising from injuries sustained on its properties. These lawsuits often involve slip-and-fall accidents and the other things noted in the post (the last of which might surprise you). Why are so many suits filed against Walmart? Some probable factors are in the post.
All of the suits have taken a toll on Walmart’s reputation and finances. It has spent millions defending itself and has faced significant damage to its public image. As a result, in recent years, Walmart has taken steps to address its legal challenges. Some of the things Walmart has done are noted in the post. But the suits continue to be filed, suggesting that its efforts may not be fully effective [yet?].
TAKEAWAY: As this author notes to her litigation clients, a good settlement is one where the plaintiff agrees to accept less than what they think they are entitled to, and the defendant agrees to pay more than they think they are liable for. But settlements are costly, so the best course is to take no action that provides a basis for suit.
The posts on Monday 12/25/2023 here, here, and here, wished Merry Christmas to those who are celebrating today and a reminder about condo/HOA holiday decorations. Remember, if you live in a community association (condominium, homeowners’ cooperative), remove your holiday decorations in the time prescribed by the rules!
TAKEAWAY: Holiday celebrations should be joyous, but the association’s rules do not go away – follow the rules to avoid fines for violations.
The post on Tuesday 12/26/2023 told us man was sentenced to prison in condo association racial intimidation case caught on viral video. A New Jersey man who stalked and harassed his Black neighbors in a viral rant and challenged them to “come see me” was sentenced in early December to eight years in prison after tearfully pleading for a lighter term. Edward C. Mathews, 47, must serve at least four years before he will be eligible for parole. What his plea included is in the post. Mathews’ case made national headlines. He was accused of harassing neighbors in the condominium association. He allegedly called Black residents “monkeys” and did the other (horrible) things listed in the post. Prosecutors say Mathews had a pattern of terrorizing Black neighbors, as well as condo association board members, dating back to 2020. Residents complained to the police, but there was never enough evidence to charge Mathews with a crime. The confrontations escalated on July 2, 2021, when Mathews verbally attacked a resident and made a video challenging neighbors “to come see me” and gave out his address. The video went viral – what happened as a result is in the post.
Handcuffed and shackled in court, Mathews begged for leniency, sniffling and wiping tears. He said he accepted personal responsibility and offered a brief apology to the victims (as noted in the post). He also expressed remorse over the effect on his personal life (again see the post). In an interview shortly after the incident, Mathews apologized and said his conduct stemmed from a long-running housing dispute involving the homeowners’ association. Mathews also said he was drunk. The prosecutor read victim impact statements from four current or former residents of the condo association. Why didn’t they do that in person? See the post.
LeRon Brown, the former association president, who is Black, and his wife, Denise, who is white, moved out in 2021 after numerous altercations with Mathews. They had lived there since the development opened in 2001. Another Black board member also moved. Part of what Denise wrote is quoted in the post as is Mathews’ extensive criminal record (as recited by the prosecutor at trial) and what was found in Mathews’ condo when it was searched by authorities. The judge imposed a sentence based on the plea agreement. And there was more – see the post.
TAKEAWAY: State and federal laws prohibiting civil harassment and discrimination are normally enough to deter wrongful conduct in community associations – but thankfully few rise to a level similar to what occurred here.
The first post on Wednesday 12/27/2023 noted that Whole Foods’ ban on Black Lives Matter gear did not violate workers’ rights per an NLRB judge. This administrative charge has been pending for several years now, but a decision was issued December 20 by an NLRB administrative law judge. The judge said BLM gear was not protected by the National Labor Relations Act because it was unrelated to the jobs in question.
The Plaintiffs wore BLM-related face masks and other garments; their basis for that is noted in the post. The NLRB General Counsel argued that workers perceived Whole Foods’ enforcement of its dress code to be racist and thus discriminatory – such that the workers’ defiance was protected activity. But the judge said that acting in concert with one another does not give employees “carte blanche” to disobey an otherwise valid rule, nor makes such a rule unenforceable. The judge even gave an example (which is in the post). Additionally, the judge said, there was no objective evidence supporting the allegation that Whole Foods had racially discriminatory motives for its stance — nor objective evidence on the other things as noted in the post.
TAKEAWAY: This matter may or may not be over, but employers must keep in mind that rules and policies must not run afoul of the protections under Section 7 of the NLRA, even in non-union workplaces. An employment lawyer can help you stay on the legal path.
The (bonus) second post on Wednesday 12/27/2023 was about the law: can a boss be personally liable in an employment lawsuit? You probably know that a New York jury awarded $1.2 million to Robert De Niro’s former personal assistant in November after finding one of his companies responsible for subjecting her to a sexually hostile and retaliatory work environment. But the jury found that De Niro was not personally liable for the alleged harassment and retaliation (despite what he allegedly did as noted in the post). Usually only the employer is sued. But as the De Niro lawsuit indicates, plaintiffs can and do sue the employer as well as the person accused of committing the alleged violation. Why does this make a difference? See the post.
So why might a plaintiff be allowed to sue a supervisor or a human resource person? It depends on the applicable statutory definition of “employer.” For example, the FMLA incorporates the definition of an employer from the FLSA; that definition is in the post. Based on that definition, a supervisor or HR director who fires an employee because of excessive absenteeism could be held personally liable if the termination violated the FMLA. The results in such suits have not been promising for managers and HR professionals in wage and hour and family medical leave litigation. A few examples are detailed in the post.
Other federal statutes — including the Equal Pay Act, Employment Retirement Income Security Act (ERISA) and the Health Insurance, Portability and Accountability Act (HIPAA) – permit suit against supervisors and other employees in their personal capacity. But other federal statutes (such as those listed in the post) do not permit individual supervisor liability. And then one must look to any applicable state law …
To avoid liability, there are things employers, supervisors and HR personnel can do. We know that juries do not like employers or supervisors tampering unfairly with an employee’s job. Therefore evidence of good faith and fair dealing with employees can be a powerful defense. What supervisors and HR directors should do to avail themselves of this is in the post. And what might counter that to a jury? See the post. Also, employers should always document employee files accurately. Document document document. And there are other steps that can be taken as detailed in the post.
TAKEAWAY: Employers (including their supervisors and HR personnel) can take steps to ensure there is no personal liability for discrimination – by preventing it in the first place. Consult with an employment lawyer.
In the post on Thursday 12/28/2023, we saw that Schuff Steel settles lawsuit over alleged treatment of Black, Latino workers. Schuff Steel Company, a steel fabricator, agreed to a $500,000 settlement in a federal Equal Employment Opportunity Commission (EEOC) lawsuit alleging race harassment, national origin harassment and retaliation. The suit was filed in 2022, alleging that Schuff violated Title VII by harassing Black and Latino employees. Some of the things that allegedly happened are noted in the post). The suit also alleged that when workers complained about the harassment, the plant manager retaliated by firing or moving them to the night shift. Schuff Steel issued a statement saying that it has always been committed to a workplace free from discrimination and retaliation and more as in the post (look at the last part).
TAKEAWAY: Illegal harassment or discrimination hurts not only the employee(s) at whom it is directed, but also the company that has to literally pay – and pay big – for that harm.
The post on Friday 12/29/2023 was a condo (and HOA) adviser: proper formalities must be followed if board levies additional assessment. A unit owner in a six-unit, self-managed condominium association noted that in the past year the expenses exceeded the budget, so the board of directors passed a motion to adopt a 13th assessment to make up the shortfall. More on the vote is in the post. The owner wanted to know if the board can take that action. The answer depends on applicable state law (or the association’s governing documents). The board must follow proper formalities to either levy a special assessment or adopt a revised annual budget.
TAKEAWAY: Nobody likes to levy – or pay – special assessments, but sometimes the circumstances require it. A community association lawyer can make sure the levy is done legally.
Finally, in the post yesterday 12/30/2023, we saw that Yes, employees CAN discuss their salary with coworkers. There seems to be a continual tug between management not wanting employees to talk about salaries and employees wanting to do so. It arises both during employment and when one is deciding whether to accept a new position.
“Stella’s” employer forbade discussing compensation in its handbook. At an office Christmas party, an intoxicated coworker boasted about what he was earning — which was much more than what Stella was being paid, and he was also a new lawyer doing the same things Stella was doing. Another employee overheard them talking about and told a senior partner, who put Stella on administrative leave. Uh-oh – this runs afoul of the NLRA (National Labor Relations Act), even in non-union workplaces. See the post for details. After being confronted, the partner called Stella back to work. (What the partner apparently did not do, but should have given the facts, is in the post.) Some states also have laws prohibiting employers from retaliating against employees who discuss compensation. One rationale behind these state pay transparency laws is detailed in the post. While those laws probably don’t require employers to affirmatively examine if they are paying employees performing similar work differently based on race or gender, a complaint by an employee and subsequent investigation might bring that to light. And result in the types of things noted in the post. Those things might be very costly to the business but are preventable. Statistics show that the wage gap continues to be an issue when looking at gender, ethnicity and race – and despite growing leverage by employees. Some of that leverage is discussed in the post.
TAKEAWAY: Owners should ensure that all workers are paid properly and legally – consulting an employment lawyer periodically is a good idea.
York, Pennsylvania 17403