In the post on Sunday 11/6/2022 we discussed work flexibility: unconventional arrangements are here to stay. Remote work was a novelty for many at the start of the pandemic. It meant isolation from coworkers and a possible lack of assistance with work problems. But then thepositive aspects of tele-commuting started to come out (such as those noted in the post). And there was interaction with coworkers, albeit with a black box or the equivalent around them on the screen. And when employers started to bring workers back to the office, some were unhappy. They wanted flexible work arrangements. Often that involves a hybrid schedule: a few days in the office and a few working remotely. Because this did work and still works, employees and applicants are being pickier than ever, with smart employers taking notice. Even job ads have changed – see the post. Some ads even give examples of how the company’s flexible work schedules have helped employees (such as the examples in the post). But what is most important is what each employer means by “flexible arrangement” – and there are wide variations, with some industries not being set up for certain remote work (see the post). Common types of flexible work options include remote work, hybrid work (with some details in the post), flexible scheduling (as different from remote or hybrid work; see the post), and several other things listed and explained in the post. So how does work flexibility help employers who want their businesses to operate successfully and profitably? A big change is smaller brick and mortar footprints and all that comes with that (see the post). Flexible work might also help find or keep employees, a big big thing these days.
TAKEAWAY: Merely paying an employee for work done is no longer sufficient to maintain a workforce, and certainly not a dedicated one. Flexibility is key.
The post on Monday 11/7/2022 showed us a staffing firm settles employment discrimination lawsuit. The company has agreed to pay $550,000 (not a typo!) to settle a suit filed by the EEOC. The suit alleged that Staffing Solutions either “refused to hire highly qualified Black applicants or placed them in the lowest paying, least desirable jobs.” And there’s mroe – see the post for how the company was complicit with its clients’ preferences. And more: it allegedly ‘routinely rejected” applciants over age 50 and asked applciants about injuries and medical conditiosn (and rejected them if they were deemed disabled). And there’s still more – see the post. The suit alleges violations of Title VII, the ADA, and the ADEA. While Staffing Solutions denied the allegatiosn in its answer, it has now agreed to settle with a 3-year consent decree. What else is must pay or do (in additon to the large monetary relief) is in the post.
TAKEAWAY: We will keep saying it: train your employees on what they can and cannot say and do to minimize your liability for illegal actions they might take on your behalf.
The post on Tuesday 11/8/2022 was about common religious accommodations in the workplace and how to implement them. Yes, employers have a duty to accommodate those with sincerely held religious beliefs, but it is often difficult because of the wide range of religions and religious practices in the world, leading to significant differences in how individuals practice their religion. The easiest accommodation might be in scheduling adjustments or breaks (as noted in the post). Time off also might be requested to observe holidays. Floating holidays can help an employer be more inclusive to employees with different religious affiliations if unlimited PTO is not permitted. Other options for religious accommodation of holidays are in the post. But adjusting schedules might be more than for a few holidays; it might be a regular thing. This affects businesses that are open on weekends more so than others; for example, people who go to church on Sunday may need the day off or may only be able to work later in the day after their preferred service has ended. But Judaism is different – see the post for what accommodation might be required. Religious beliefs might also require an employer to make accommodations to a dress code. The post has details on what is legally required and sample suits or others accommodation situations. But even if a religious accommodation to a dress code is given, the employer can still insist on certain things as noted in the post. The post also mentions legal limits on accommo-dating dress code exceptions for religious beliefs and discusses at length religious accommodations to vaccine policies and religious expression. There is also discussion in the post of a religious accommodation process that employers should put in place. Finally, employers should make sure that anti-harassment and anti-discrimination training include religion as that is a protected classification. And now that it is November, employers should start thinking about how to make holiday parties and end-of-year activities inclusive to those of all faiths. One simple (and probably no-brainer) idea is noted in the post as are things to consider about food and beverages at any such gatherings.
TAKEAWAY: Get it right: talk with your employment attorney about specific situations in your workplace.
The post on Wednesday 11/9/2022 noted ADA, FHA, ESA – Is a python an emotional support animal? Yep, we never thought we’d get that question either. Assume your association has a resident (whether owner or tenant) who reports having a python which is an emotional support animal. Can you say no? That’s easy: you cannot. So what do you do? You must know the law (as noted in the post) and the interactive process that must be followed. It should be documented at all points (as noted in the post).
TAKEAWAY: For any ESA issue, consult a knowledgeable community association lawyer so that there is consistency and uniformity in process and determinations.
In the post on Thursday 11/10/2022 we learned there’s an ‘Edward Scissorhands’ sneaking around trimming trees late at night. What might your condo/ homeowners’ association have to say about that? Apparently the person has been caught on surveillance cameras trimming trees, admiring his work, and then moving on. It is usually during the night. Some people don’t like it – for the reason noted in the post.
TAKEAWAY: So the question remains: what would a condo/HOA do if trees were trimmed in violation of any restrictions? And would it hold owners liable? These questions should be discussed with a community association lawyer.
The post on Friday 11/11/2022 taught that limits to scheduling flexibility did not show discriminatory motive. Let’s look at the background. In 2007 Brooks Life Science Inc. hired Parker, a Black woman with MS and sciatica, as a part-time receptionist and admin assistant. She was able to perform the essential functions of her job (noted in the post) without accommodation. She usually worked 25 hours/week. She received an award and gift from a supervisor. Then things changed in March 2018 when a new supervisor was hired. Parker was praised but coached on her failure to abide by the company’s PTO policy (which is detailed in the post). Two months later there was a meeting about the policy which the supervisor considered to be corrective (and so put it in writing). In July there was an issue over an October vacation (see the post for details). In early October Parker began having pain and contacted her supervisor for time off. There were more communi-cations relative to the PTO policy (described in the post) and eventually Parker was fired. She sued for race and disability discrimination and retaliation. The trial court entered summary judgment in favor of the company and Parker appealed. The appellate court affirmed; its reasons are in the post (and are a guide for employers).
TAKEAWAY: Employers should follow their policies and ensure that employees know they will be followed.
Finally, in the post yesterday 11/12/2022, we read about the ADA and mental health rights: 3 new lawsuits sound warning. It is imperative that employers know how the ADA applies to employees and applicants with mental disabilities, if for no reason other than the EEOC’ recent enforcement emphasis in that area. The 5 suits deal with revocation of a job offer, unlawful refusal to hire, and denial of reasonable accommo-dation. The first suit was filed on behalf of a veteran who sought a job at a senior living residence (The Princess Martha). During the interview the applicant noted she has PTSD. Princess Martha offered a job conditioned on a negative drug test (which is ok), but then the trouble started. See the post for the sequence of events after that culminating in the suit and a tip for employers in this satiation. The second suit was filed by the EEOC’s Philadelphia office on behalf of a former help desk technician with a schizoaffective disorder. The suit alleges that she worked for Sinclair Broadcast Group and that after Sinclair learned about her mental disability, it suspended and fired her. Bad – with tips for employers also in the post about this type of situation. The third suit is also detailed in the suit along with tips for employers.
TAKEAWAY: While illegal drugs are not protected under the ADA, there can still be protection related to prior drug use and there are specifics to know about drug tests and the timing. Work with an employment lawyer.