Below is a review of the posts on Facebook and LinkedIn from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 1/5/2025 told us the CFPB sues Walmart, Branch Messenger over payment accounts for delivery drivers. No reason this had to happen! Branch Messenger is a work-scheduling platform. The Consumer Financial Protection Bureau suit alleges that they forced delivery drivers to use poorly managed and costly deposit accounts in order to get paid. The lawsuit alleges that, since 2021, Walmart and Branch opened Branch accounts for drivers and then deposited drivers’ pay into these accounts without the drivers’ consent. How many people are involved (it’s more than you’d think!) is noted in the post. The statement by CFPB Director Rohit Chopra is also in the post.
The company allegedly told drivers that they would be fired if they did not want to use the Branch accounts and misled drivers about when they could access their earnings. But what happened when the drivers did use the platform? Walmart disputed the agency’s allegations. Its statement is also in the post.
And that’s not all. The CFPB also accused Branch of failing to investigate alleged errors, failing to provide certain disclosures, and much more as listed in the post. Branch’s statement is also in the post.
This suit is the latest in a bunch of actions the CFPB has taken against companies for mishandling consumer and worker financial accounts. It previously sued Comerica Bank – the basis of that suit is noted in the post. And more recently it sues the operator of the Zelle payments network as well as JP Morgan Chase, Bank of America and Wells Fargo, alleging that those firms failed to properly investigate fraud complaints or give victims reimbursement. How much the suit claims customers have lost since the launch of Zelle in 2017 is in the post (and it is a mind-boggling amount).
TAKEAWAY: While there are governmental agencies charged with protecting consumers’ rights, the best protection is to be careful of what you do, to whom you provide personal information, and what apps and other soft/hardware you use.
The post on Monday 1/6/2025 noted that Blake Lively allegations highlight growing challenges in workplace misconduct and retaliation protections in Hollywood and beyond. Lively’s recent lawsuit against It Ends With Us director Justin Baldoni has brought workplace misconduct back into the national spotlight, mixing Hollywood drama with employment law issues. The issues in the case – and there are several – have resulted in celebrity headlines but also are faced by countless numbers of employees in the US every day who do not garner headlines. Lively’s lawsuit includes multiple workplace concerns:
1. Sexual Harassment and Hostile Work Environment: Lively’s allegations include inappropriate physical contact, unprofessional comments, and the failure to provide consistent on-set protections like an intimacy coordinator. Federal and state laws, including Title VII, prohibit sexual harassment;
2. Pump Act Violations: The suit also alleges instances where Lively’s privacy was invaded while breastfeeding or pumping milk. The PUMP Act is part of the FLSA. What it requires is noted in the post; and
3. More allegations as described in the post.
Why do those of you who do not live in Hollywood care about this? Because the underlying legal principles apply to everyone (with perhaps few exceptions). This case brings to light the challenges employees face when they complain about harassment or otherwise assert their rights, including cultural pressure (described in the post), legal recourse (again, described in the post), and more as listed and described in the post.
What are some things employees (and employers) should keep in mind in this type of situation? First, document everything. Keep records of incidents, communications, and HR reports. Next, know and understand applicable laws (such as those listed in the post). And the other things detailed in the post.
Lively’s suit may spark broader awareness and reform (including enhanced training on harassment prevention or more stringent monitoring of workplace dynamics). It may do in this area what the #MeToo movement did in other areas.
TAKEAWAY: The facts might involve Hollywood, but the law applies outside of Hollywood too; know your rights and obligations and talk to an employment lawyer.
The post on Tuesday 1/7/2025 asked: He sees you when you’re sleeping, he knows when you’re … pregnant? EEOC Guidance on using wearable technologies in compliance with anti-discrimination laws. Smart watches and other wearable technology are more than a great holiday gift for those with a New Year’s resolution to hit the gym; they are becoming ubiquitous in the workplace. These devices range from smartwatches to powered gloves and can enhance employee productivity and improve workplace safety. But their use also brings to the forefront legal considerations under federal EEO laws. The EEOC has come out with guidance that explains how federal EEO laws may apply to employers’ use of wearable technologies.
Wearable technologies (“wearables”) are digital devices embedded with sensors that can track bodily movements, collect health-related information, monitor environmental concerns and track location. Common examples are listed in the post (yes, you will immediately think of your smart devices). Employers using wearables to collect health-related information about an employee or using wearables that require employees to provide health information in connection with using the wearables may pose compliance risks under the ADA (with the reason why discussed in the post). The EEOC opines that collecting health-related information about an employee using wearables may be a “medical examination” under the ADA; what that then leads to is also in the post. Collecting the data is not the only compliance risk associated with wearables. An employer using wearable-generated information to make employment decisions also could implicate EEO laws. How that might come into play is noted in the post (and may not be what you think).
When an employer uses information collected by wearables, it must comply with the nondiscrimination requirements of the myriad EEO laws. For example, an employer might violate EEO laws if it uses wearable-generated information about an employee’s heart rate and temperature to infer that the employee is pregnant and then, as a result, puts the employee on unpaid leave against her will. More examples are in the post.
Employers using wearable technologies also need to ensure compliance with applicable state laws that regulate how private companies collect, store or share an individual’s biometric data. An example of what might happen in case of a violation is in the post.
The EEOC Guidance also includes things for consideration by employers who want an effective and legally compliant wearables policy. Employers should assess what data the wearable(s) will collect, including accuracy and validity across different protected bases, and establish the job-related purpose for using wearables. Other considerations for employers are discussed in the post.
TAKEAWAY: Don’t stick your head in the sand when it comes to using data from wearables in or related to the workplace; know the legal ramifications and work with an employment lawyer to develop compliant policies and practices.
The post on Wednesday 1/8/2025 taught us that a condominium association’s refusal to pay for unit modification is not handicap discrimination. How would this turn out in PA? In Geezil v. White Cliffs Condo. Four Ass’n, a 2024 case, the Massachusetts Appeals Court held that an association of condominium unit owners was not responsible for the expense of accommodating an individual unit owner’s handicap modifications to a patio that was exclusively dedicated to that unit but considered common area under the master deed (declaration). This decision also said that the condominium association did not engage in an unlawful practice or retaliation within the meaning of the state anti-discrimination law. Let’s take a closer look at the facts.
In 2018, after negotiations with the condo association abut proposed renovations, Geezil, the unit owner, filed a charge with the state agency charged with enforcing the anti-discrimination law. In 2019, just two days following a “no probable cause” determination from the US Department of Housing and Urban Development (HUD) as to Geezil’s complaint about federal disability discrimination, Geezil filed a complaint in court alleging that the association’s refusal to cover the costs of reasonable modifications constituted unlawful discrimination in violation state law.
The court looked at the law (the relevant portion of which is in the post) and then addressed Geezil’s arguments: (1) the cost-shifting provision applied to the association (on the basis noted in the post) and (2) the condominium qualified as “contiguously located housing.”
On the first argument, the court looked to ownership and common understanding/interpretation. The other things it looked at are detailed in the post. For the second argument, the court decided that the condominium was not “contiguously located housing” for the reason noted in the post. Because the court did not buy either of Geezil’s arguments, it held that Geezil had no reasonable expectation of proving the claim of handicap discrimination.
TAKEAWAY: Facts are so important and can make or break a case (or defense) when applied to the law. Get a community association lawyer involved early in case of a dispute.
In the post on Thursday 1/9/2025, the question was: Should smaller units pay less of condominium (or HOA) insurance? The answer depends on the Declaration (CC&Rs) and possibly applicable state law.
Here’s the fact pattern. A condominium has 18 units, all under one roof but with three different floor plans with different unit sizes. One owner requested a change to assessments for insurance by pro-rating based on the square footage of each unit. Currently the smaller units pay the same for insurance coverage as the two larger floor plans. The recommended pro-rata allocation would change the fees for most if not all units (with some decreasing and others increasing). The management company rep and board were rude and said that if the association wanted to pro-rate insurance costs, it would have to amend the bylaws and that would be cost prohibitive.
So what’s the answer? Note that the answer will depend on applicable state law (which means it will vary from state to state). In the state at issue, it was functionally impossible. The first thing to note (and this is pretty universal) is that the cost of building insurance is a common expense borne by the owners just like general assessments are shared. But then it depends on how those general assessments are divided up and what it takes to amend the Bylaws (or Declaration if that’s where the common expense allocation is set forth). What can affect that is noted in the post.
TAKEAWAY: So many things within a condominium or homeowners’ association depend on the Declaration or Bylaws, and applicable state law may or may not defer to those documents. It is best to involve a community association lawyer when dealing with legal interpretations or amending the Governing Documents.
The post on Friday 1/10/2025 told us that the Dept of Defense (DOD) must face charge that use of breathalyzer test was discrimination, court decides. Yep, the federal government must comply too! The lawsuit alleges that a supervisor forced a school psychologist at a military base in Okinawa, Japan, to take a breathalyzer test before returning to work because the worker suffers from alcoholism. The federal district court said that conditioning the employee’s return to work on taking a breathalyzer test was a change to a term or condition of employment (because if he refused to take the test, presumably he would not be permitted to return to work). The court therefore denied DOD’s motion to dismiss that claim.
This is federal employment so we look to the Rehabilitation Act. What that statute does or stands for is discussed in the post. DOL says that employees with alcohol addiction can qualify as individuals with a disability.
The breathalyzer test was not the end of the facts here. After his supervisor allegedly disclosed his history with alcoholism to his peers, the worker felt compelled to involuntarily elaborate to all three individuals additional private medical information (including things noted in the post). How/why DOL says this case was a violation of the Rehabilitation Act is also in the post.
TAKEAWAY: Know an employer’s obligations, and an employee’s rights, under the Rehabilitation Act (and ADA) and how each must proceed. An employment lawyer can help.
Finally, in the post yesterday 1/11/2025, we saw that a jury awards Catholic woman over $12M in lawsuit over COVID19 vaccine. As these cases continue to wind through the legal system, they provide good pointers for employers going forward …
This case was filed against Blue Cross Blue Shield of Michigan. A federal jury on Nov. 8 found in favor of a former IT employee, determining that BCBSM refused her religious accommodation request for exemption from a 2021 COVID-19 vaccine mandate and then fired her because of her religion. Domski, a Catholic, requested accommodation. The basis for her request is detailed in the post. BCBSM rejected the request, then allegedly placed Domski on unpaid leave and ultimately fired her. She sued for religious discrimination under Title VII and state law. The statement issued by BCBSM after the jury verdict is in the post.
The jury verdict and award hit on a recurring theme: employers risk costly litigation if they fail to carefully consider each religious accommodation request on an individual basis. They cannot make blanket assumptions about the legitimacy or sincerity of an employee’s religious beliefs. Other recent cases show just how costly it can be. For example, in January 2024, a Michigan health system agreed to pay $50K to settle a religious discrimination suit by the EEOC. The allegations there involved the health system’s policy requiring employees to receive annual flu shots. The basis of that suit (i.e., where the health system went wrong) is in the post.
And then there was the August 2024 ruling by the U.S. Circuit Court of Appeals for the 7th Circuit: an accommodation request can still be religious in nature even if it is based partly on secular reasons. There a surgical nurse and a pharmacy technician for a health system requested religious exemptions from the hospital’s COVID vaccine mandate. They explained the basis for their requests (see the post). The hospital rejected their requests and terminated their employment. They sued. In a split decision, the 7th Circuit said they did set forth a failure-to-accommodate claim under Title VII (thus reversing the district court’s dismissal of the suit). The 7th Circuit elaborated on the legal basis for its decision – see the post.
Ok, let’s go back to the BCBSM case with those other cases in mind. After BCBSM imposed its COVID vaccine mandate, its director of employee and labor relations allegedly told management he doubted the validity of any religious accommodation request. Later, during an HR meeting, that same person allegedly directed staff to conduct the religious accommodation interviews like “mini depositions,” with the goal of pressuring employees to get vaccinated. BCBSM then claimed the employee did not meet the criteria for an exemption due to a sincerely held religious belief, practice or observance and denied her request. But that’[s not all. What else BCBSM did (or did not do) is in the post and that’s where the lesson really comes in for employers.
How the mind-boggling jury award was divided up (i.e., the split among back pay, front pay, noneconomic damages, and punitive damages) is also in the post.
TAKEAWAY: Employers are free to make business decisions, but those decisions can be very costly when they run afoul of applicable law. Know how to navigate the requisite p0rocess after a request for religious accommodation (especially now after the Supreme Court’s Groff v. DeJoy decision); call your employment lawyer.
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