The new joint employer rule, huge monetary settlements, religious discrimination in planned communities, medical marijuana use in the workplace, and more in Our Social Media Posts This Week – Mar. 22 – 28, 2020.

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 3/22/20, we learned that the NLRB’s new joint employer rule is to go into effect April 27 (and noted this might affect you). Yes, this is like round 3 on this matter, but this time it may stick. The new rule covers workplaces affected by the NLRA and says that a business is a joint employer of workers directly employed by another employer only if the two employers share or co-determine the workers’ essential terms and conditions of employment. This is a change from the previous interpretation as explained in the post. Links to a PDF of the rule and a fact sheet are also in the post. Now, to be a joint employer, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees. If 2 entities are joint employers, how that plays out is in the post.   

TAKEAWAY: This Rule applies only to those covered by the NLRA – but they, and every other workplace, are also affected by the DOL’s joint employer final rule that became effective March 16th (and for which there is a link in the post).

The post on Monday 3/23/20 showed us that Price Waterhouse Coopers paid $11M over an age discrimination challenge. Wow! Steve, a 53-year-old accountant, filed suit almost 4 years ago in state court in CA. He alleged violations of the ADEA (and state law). AARP jumped in to support a class action. The crux of the suit was that PwC’s polices and practices effectively deterred applicant’s 40 and older from applying and denied job opportunities to those who did apply. The settlement includes monetary relief and other non-monetary items (including changing recruiting procedures and more as noted in the post). 

TAKEAWAY: Intentional or not, policies and procedures can have an adverse effect on older applicants and employees and are thus illegal – have employment counsel review your policies to ensure compliance.

The post on Tuesday 3/24/20 was about religious discrimination: Association demands Virgin Mary statue removal from owners’ property. We asked what your Association would do under these circumstances. The Association here fined the owners for putting a statute on their own porch. The owners think it is religious discrimination because those of other faiths are allowed more leeway as noted in the post. The matter has been going on for a long time – the parties had a mediation in 2015, but it came to naught. Other communities built by the same builder allow this type of statute, but here, where the Association’s Board controls, that doesn’t matter. The (partial) contents of one letter from the Association to the owners is noted in the post (and, to this author, makes one wonder). And it doesn’t stop at fines for displaying the figurine on their porch – there is more as noted in the post. If this doesn’t soon settle, suit is expected to be filed.

TAKEAWAY: If one religion can be practiced, then all religions must be granted the same leeway. As an owner or Board member, consult a knowledgeable community association lawyer to ensure rights re not trampled on and Governing Documents are adhered to.

The post on Wednesday 3/25/20 we learned how cannabis law “harmonized” with other state law, Court says in green lighting fired worker’s discrimination claim. (We noted that a case brought in PA might turn out similarly at this point.). So, what happened? The NJ Supreme Court ruled that a funeral director who was fired after revealing that he used medical marijuana outside of work has a basis to sue for disability discrimination under state law. Relevant background facts are as follows: Justin began working there in 2013. In 2015, he was diagnosed with cancer and prescribed medical marijuana. In 2016, a company vehicle was struck by another vehicle. Even though the hospital said the accident was not due to the medical marijuana and did not plan to perform a blood test, the employer demanded one. The sequence of events after that is in the post. A few months after, the triggering event happened (see the post) and he sued. The trial and appellate courts’ analysis is in the post and proves instructive for employers in PA navigating the minefield of legal marijuana use.

          TAKEAWAY: Know how (state) legal medical marijuana use can or cannot adversely affect employment before you take the action.

Only 13% of workplaces have disability-specific inclusion initiatives, according to the Society for Human Resource Management in D.C.

In the post on Thursday 3/26/20 we saw that disability discrimination complaints now top those about race discrimination. Part of the problem may be that many companies do not have policies to address or accommodate disability in the workplace. The types of training that might help are noted in the post. Further, a sad and surprising statistic about how HR professionals define disability is also in the post.

TAKEAWAY: Know how appliable law defines disability and what must be done to accommodate the disabled person (applicant or employee).

The post on Friday 3/27/20 taught us that obese employee are not disabled under the ADA (or so says one federal court). There is a difference between obesity alone and obesity arising from a physical disease or condition, which is why courts have come out with different holdings. Here, one of the federal appellate courts had before it a case of obesity alone and had to decide if that was covered by the ADA (and, more specifically, the expanded definition of disability under the ADAAA). How the EEOC comes out on this issue is in the post. Also, the post mentions rulings from 4 other federal circuits coming down the same way (and relying on the EEOC interpretation). To the contrary, at least 2 other federal circuits came out the other way (see the post). Now this Circuit weighed in. Here, the plaintiff was morbidly obese. He was first required to show what he was disabled. He argued that the obesity is a disability (and, alternatively, that he was regarded as disabled, but how that played out is in the post). Reviewing the court’s analysis (summed up in the post) shows that this may not have been the best test case – the one big fact here (revealed in the post) may alone have doomed this case.

TAKEAWAY: The federal appellate court governing PA cases has not yet ruled, so employers must be careful how they act concerning obese applicants and employees. Consult employment counsel.

Finally, in the post yesterday 3/28/20, we saw that the Sierra Creative sexual harassment and retaliation suit settled for a huge sum. The employer is a printing, mailing and fulfillment company. The settlement amount is $690,000. Now let’s go back to the facts. The EEOC alleged that the company subjected female employees to sexual harassment and retaliation including unwelcome touching and more noted in the post, that it did not adequately respond to complaints, and other allegations noted in the post. The employer did not admit liability but did agree to the monetary settlement along with a host of other non-monetary relief detailed in the post.

TAKEAWAY: Adverse action based on a protected characteristic will put you in hot water and it will be costly to get out. Just don’t do it from the start.

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