Video game toxic workplace, DOJ on mandatory vaccination, community associations’ legal needs, HUGE verdict against Walmart, performance evaluations, and more in Our Social Media Posts This Week, Aug. 15-21, 2021.

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.

another suit alleging toxic video game workplace and more

In the post on Sunday 8/15/21 we read about Cube Crawls and “Frat Bro” culture: Activision Blizzard lawsuit alleges yet another toxic workplace in the video game industry. Activision Blizzard is the publisher of many really popular videogames that you have certainly heard of (or play) including World of Warcraft, Overwatch and the Call of Duty franchise. How large is Activision Blizzard? It has 435 million monthly active users worldwide! But what about its office environment? Not so healthy according to the lawsuit filed by California’s Department of Fair Employment and Housing (“DFEH”). Allegations are that women (who are only about 20% of the 9500 employees) were discriminated against in almost every aspect of the work experience, including “compensation, assignment, promotion, termination, constructive discharge and retaliation.” After a 2-year investigation, DFEH concluded that Activision Blizzard allowed a “frat bro” culture wherein women were sexually harassed with impunity. There were many complains, including regular comments on their appearance and many more in the post. Sadly, there was even a fatality (allegedly) as a result of the harassment – see the post. But comments were not the end of it – there was much much more as noted in the post. The DFEH report, leading to the lawsuit allegations, also noted even more disparity relative to women of color – see the post. Even after women complained, nothing was done. But it gets worse; the complaints were not kept confidential. What that led to is in the post. Oh, we’re not done yet. The suit alleges that the culture even included “cube crawls” that are described in the post (and are completely inappropriate). And there’s more – who was named in the suit and what that person did (all in the post).  And what type of fallout has there been since the suit was filed? Lots – see the post. Apparently the victimized employees are only the latest in the video game industry – see the post for more background on that.

TAKEAWAY: It is never right – or legal – to treat an applicant or employee differently due to gender. Never.

DOJ Memorandum supports employer-mandated COVID vaccination

The post on Monday 8/16/21 told us about a DOJ Memorandum supporting employers mandating vaccines approved by the FDA for emergency use. Why is this important? Because some of the push-back against employers’ mandatory vaccination policies has been that the current vaccines are only authorized for emergency use but do not have full approval by the FDA. The DOJ’s late-July 2021 memorandum by DOJ says that employers are not prohibited from issuing mandatory vaccination policies just because the vaccines are EUA only at this point. A link to the memorandum is in the post. The EEOC has been addressing mandatory vaccines for years – since at least 2009. The post takes us through some of the timeline and updates from then to the present. The latest EEOC updated Guidance was issued 6/28/2021 and confirms that employers may mandate COVID vaccination as long as there are exemptions for religious and medical reasons. A link to that Guidance is also in the post. In answering the question posed to it, DOJ analyzed the applicable statutory provision and what is required for mandatory vaccines – see the post.  

TAKEAWAY: There appears to be nothing in federal law prohibiting employers from mandating COVID vaccination for employees (with reasonable accommodations) but check applicable state law too. Consult an employment lawyer to be sure you stay on the right side of legal.

community associations’ needs for legal counsel

The post on Tuesday 8/17/21 was about community associations’ need for an attorney. [This author noted that is a large portion of her practice and she stands ready to assist you, whether as a board member or owner]. Many of you live in a community association – in PA they are mostly condominium or homeowner associations, but there are also some coopera-tives (mostly in the eastern part of the state). Community associations (also referred to as planned communities) have owners and residents living under rules intended to preserve the community’s nature and character, protect property values and provide certain amenities and services. As of 2020, about 1/4 of the US population lived in a community association! And those associations are led by 2.4 million volunteer Board and committee members! Astounding numbers. What is even more astounding is the breadth of issues faced by those volunteers – as noted in the post. Because of that, associations need legal advice from attorneys with wide knowledge and experience, including federal and state (and sometimes local) laws, regulations and ordinances, application and interpretation of the association’s governing documents, and much more that might impact the association and its members, some of which are listed in the post along with how they might become relevant to an association and for what it might need a lawyer. So how can a good community associations lawyer help? By answering questions as varied as ‘can we hold the annual meeting via Zoom?” and “who pays to replace the mailboxes?” and more noted in the post to ensuring the Board correctly enforces the governing documents (such as in the examples in the post) and educating the community about various restrictions or applicable law (again, examples are in the post). Attorneys also help community associations with litigation and collections as noted in the post.

TAKEAWAY: Whether owner or board member, contact a community associations attorney (such as this firm) for assistance – they have specific experience you need.

$125 million jury verdict for eeoc – what it means for employers and employees alike

The post on Wednesday 8/18/21 told us what the EEOC’s $125 Million verdict against Walmart tells us. Yes, you read that number right. So, let’s talk about what led up to it. You (should) know that the EEOC enforces anti-discrimination laws. It is also empowered to bring suit on behalf of one or more people who have suffered violations of those laws if the employers don’t voluntarily settle the claims. While that doesn’t’ happen a lot (usually the applicant or employee must bring suit for the reason noted in the post), it did here. The EEOC brings suit when there is a legal issue it wants the court to decide and other considerations noted in the post. In this case, the EEOC alleged that Marlo Spaeth became employed by Walmart in 1999 as a part-time sales associate. She was born with Down Syndrome – how that affected her is in the post. At the start of her employment, she was limited as to when she could work. Walmart accommodated as noted in the post. Walmart’s scheduling guidelines changed in April 2013 (how that affected Spaeth is in the post) and its scheduling process in November 2014. It also implemented a new automated scheduling system. How that all affected Spaeth is in the post. Walmart continued to work with her needs but fired her in July 2015 for excessive absenteeism. What else did it do then? See the post. She filed a charge with the EEOC in January 2016; the EEOC eventually filed suit on her behalf in January 2017. What the EEOC asked for as a remedy is in the post. The jury awarded $150,000 in compensatory damages (emotional pain and mental anguish) and $125 million in punitive damages! Note: the punitive award was reduced to that legally allowable – see the post for the reason and how it affects many other cases too. let’s all wait and see if Walmart appeals, pays, or settles.

TAKEAWAY: Large companies are sometimes the beneficiaries of large jury verdicts when the facts as applied to applicable law demand it – if you are unsure if there is a legal violation, consult an employment lawyer early on.

employee handbooks and policy manuals – what you should know

In the post on Thursday 8/19/21, we read about employee handbook examples and sample policies (with the ones in the post being a good start). Many employers, large and small, have in place a handbook or policy manual that lets employees know what conduct is acceptable, ramifications for not meeting the standards, and many more aspects of employment with the company. Important parts of the handbook/policy manual include the company’s mission statement and core values (for the reasons in the post) and any at-will statement (which can affect termination of employment as noted in the post). Handbooks/policy manuals also often include sections on work hours, attendance, social media, and more as discussed in some detail in the post. Some provisions of handbooks/policy manuals are dictated by federal or state laws (see the post) while others are specific to the employer’s needs and industry. Enforcement of the handbook/policy provisions is also key and affects both employees and the employer; this is woven throughout the post.

TAKEAWAY: Know what rights and obligations the employer and employees have in a specific situation – contact this firm (or another employment lawyer) to help you write or review your handbook or policy manual.

performance evaluations – a double-edged sword. how and why …

The post on Friday 8/20/21 was about performance evaluations: a double-edged sword. Really. Evaluations help an employer keep an employee on target and let employees know in what areas they are performing acceptably and where improvement is needed, right? Yes, if they are completed and used properly. And that is what often becomes an issue upon termination of employment for poor performance. Was the poor performance documented (or did the supervisor just mention it verbally in an offhand manner)? Was the employee properly advised of the poor performance and potential implications? A common situation is noted in the post. And can make it more difficult for an employer to show that discharge (or other adverse action) was not for a legitimate, nondiscriminatory reason (as opposed to pretext for unlawful discrimination). What might the file show that could harm an employer’s defense? See the post. Employers might want to consider not using evaluations if they are not going to be completed and used properly (as noted in the post) or making other changes (suggested in the post) if evaluations support promotion and wage increase decisions.

TAKEAWAY: In real estate it’s location location location. In the employment arena, it’s document document document; help your attorney by ensuring proper documentation of anything supporting your future legal claims or defenses.

burger king hit with disability discrimination suit – that was entirely preventable …

Finally, in the post yesterday 8/21/21, we saw that a former employee at Burger King filed a discrimination lawsuit (with potentially bad facts for the employer). Ryan Pacheco has a colostomy bag – and says his employ knew about it. Ryan alleges in his suit that on his first day on the job in July, he was called to the manager’s office and fired. Why? Ostensibly for not tucking in  his shirt. How that was a problem for him, what he did, and why are all in the post. Ryan also noted what managers told him about his situation (and why that may not hold true under the ADA – again see the post).

TAKEAWAY: Remember that reasonable accommodation based on the disability and essential functions of the job at issue must be provided to employees unless it is an undue hardship for the employer – go through the interactive process before taking adverse action that might have adverse legal consequences.

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