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.
The post on Sunday 3/26/2023 said employer to pay $3.6M to settle claim involving alleged unpaid weekend shifts. Unforgettable Coatings, Inc. (UCI) is a commercial and residential painting contractor; it agreed to pay almost $3.7M to settle a U.S. Department of Labor lawsuit alleging it violated the Fair Labor Standards Act. Of that amount, $1.81M is for unpaid overtime compensation, an equal amount is for damages, and more than $18,000 is interest to 592 employees. But there is even more it will pay – see the post.
So what brought this about? UCI had a pay rate and bonus system that resulted in employees being paid their regular rate for all hours worked and no overtime pay. There were also issues surrounding weekend work and possible retaliation – those are described in the post. UCI denied the allegations – as for what it pointed to, see the post.
The DOL’s Wage and Hour Division enforces the FLSA. What that deals with is noted in the post. But many states also have minimum wage laws and employers must pay workers according to which (FLSA or state law) is higher. DOL has hired more people to help it enforce wage & hour provisions (especially regarding its current targeted industries as noted in the post). It conducts audits as part of its enforcement.
TAKEAWAY: Employers must ensure that they correctly classify and pay workers.
The post on Monday 3/27/2023 told us that workers can use FMLA to reduce their hours indefinitely (per a recent DOL opinion letter that is linked in the post). DOL’s Wage and Hour Division issued the letter in response to an employer’s question: Does the FMLA entitle an employee to limit their workday to eight hours a day for an indefinite period because of a chronic serious health condition, where that employee normally works in excess of eight hours a day?
The employer provided some relevant background information – that is in the post, including that multiple workers had presented medical certifications for FMLA leave that would kick in after they worked an eight-hour day (with an effect on the employer as noted in the post).
Against that background, DOL said the FMLA entitles covered workers to such leave. The calculation is discussed in the opinion letter and post. If an employee never exhausts their FMLA allotment, the reduced schedule can be effective indefinitely.
But the opinion letter did not end there. There was a reminder as to which laws might apply in this type of situation (as noted in the post) and that employers need to take all of them into consideration if applicable. The opinion letter also clarified the FMLA leave entitlement. An employer might think of it in terms of hours, but the law talks of workweeks; the difference that might make is discussed in the post.
TAKEAWAY: DOL has not issued opinion letters in the recent past, but when it does employers should take note. Knowing the various types of leave an employee might be entitled to – and how to handle it – is in the best interests of an employer (in conjunction with their employment lawyer).
The post on Tuesday 3/28/2023 asked: Did Don Lemon sexist comment eclipse another form of career bias? Not too long ago CNN anchor Don Lemon found himself in hot water when he described presidential candidate Nikki Haley as “not in her prime.” His co-hosts appeared upset, and critics blasted him for the sexist remark, but it seems that everyone overlooked the heart of the issue: Haley’s ageist comment that American citizens over the age of 75 should be required to take a mandatory mental competency test in order to run for office.
Do you remember what the Age Discrimination in Employment Act (ADEA) prohibits? (If so, see the post.) While it still exists, and some would say is rampant, age discrimination against older adults still flies under the radar in this country. Did age discrimination underlie Lemon’s comment?
An AARP survey is quite revealing. It found that 78% of workers aged 45 and over report either witnessed age discrimination or suffered from it in 2020. And what did Deloitte find when it asked 10,000 companies if age is a competitive advantage or disadvantage? See the post.
And what message does Lemon’s proposal send to the older workforce at large? What effect would that have on 92-year-old Warren Buffett or Ruth Bader Ginsberg (who actively served on the US Supreme Court until her death at the age of 87) or the others listed in the post? Older workers bring many things to the workplace, some of which are noted in the post.
TAKEAWAY: Employers must make sure not to discriminate on the basis of age relative to applicants or employees – not only is it illegal but their businesses might actually benefit from the person’s experience.
The post on Wednesday 3/29/2023 noted a condominium association was wrong to allow neighbor to break into unit. Most associations permit entry into a unit by a Board member or management agent under set (usually emergency) circumstances. But what about this fact scenario: the owner is out of town and a noise was coming from the roof. A neighbor assumed the noise was coming from the owner’s A/C unit. Owner tried to contact the board and maintenance company to check out the roof, to no avail. After a while with no response, the owner assumed the noise had resolved itself. When the owner returned home, he found the unit without power and doors open. The association had permitted the neighbor to enter the unit with a locksmith to cut the breaker to see if the noise was indeed from the owner’s A/C. There was no advance request or notification or contact after.
Was the association’s action ok? No! While the Governing Documents or applicable state law might give an association the right to enter a unit in certain circumstances (such as those listed in the post), the scenario above probably does not fit into what is allowed. Would hearing a noise, with nothing else, trigger the association’s right of entry? Would other relevant questions (as noted in the post) do so? Or should the association have made arrangements with the owner to enter the unit?
But let’s go down the path where the association did have the right to enter the unit in the owners absence. Was it ok for the association to allow the neighbor to break into and enter the unit? There might be civil and criminal concerns, both of which are discussed in the post.
What if the neighbor was a board member and this was a self-managed association? This still might not have been the best way to act – why not is explained in the post.
But it doesn’t end there. The owner needs to take certain steps (listed in the post) and the association needs to act differently in the future (for the reasons in the post).
TAKEAWAY: Owners and associations need to know their rights (and obligations) – and consultation with a community association lawyer is always a good idea.
In the post on Thursday 3/30/2023 we had Q&A: Should condo or HOA board members accept gifts (including holiday food baskets)? Some states have laws related to this issue. Sample statutory language is in the post. And there might be excep-tions (such as those noted in the post). Even if it’s a small token, it still might give the appearance of impropriety. Board members need to be careful not to act so as to breach their fiduciary duty.
TAKEAWAY: Know what state law and the association’s governing documents provide as to giving and accepting gifts; get competent legal advice.
The post on Friday 3/31/2023 alerted us that DOL provided new FMLA resources for workers impacted by cancer. When an employee is diagnosed with cancer, employers are often concerned with how to best support the individual throughout treatment. Employees and employers need to know their rights and responsibilities when it comes to medical leave, job duties and other employment issues. So DOL’s Wage and Hour Division recently released new resources – and more as noted in the post. The purpose of the new resources is to point out how involved parties can make use of their rights under the Family and Medical Leave Act (FMLA). The resources include a fact sheet on FMLA leave and when cancer meets FMLA criteria; an overview of workplace protections for individuals living with or impacted by cancer; talking points for employees related to taking time off for cancer-related leave; and more.
TAKEAWAY: Cancer is but one situation where employers need to know the FMLA; discuss situations with an employment lawyer to ensure you fulfill your legal obligations to employees.
Finally, in the post yesterday 4/1/2023, we learned what to include – and not include – in a termination letter. No, this was NOT an April Fool’s Day joke but something everyone should take seriously. Despite best intentions and attempts, there may come a time when employment must end involuntarily, whether as a result of an employee’s policy violations, misconduct, or subpar performance. Even if not required by law or (collective bargaining or other) contract, there should be something in writing notifying the employee that the work relationship is being terminated, and the wording of that writing can be oh so important. It might make an employee who would otherwise lean to litigation think twice … or not act. If there is an agreement, then the content of the termination letter should track the agreement as discussed in the post.
So what should be in the letter? First, whatever it contains should be professional, clear and accurate. It might (the post says “should” but this author differs and suggests that this piece is something to discuss with an employment lawyer) include the reason for separation and the other things noted in the policy. If the termination is part of a policy that has various steps, it should list the other steps already taken. There are financial items (listed in the post) that are always good to include. The letter should absolutely include a reminder of any confidentiality agreement or other restrictive covenants that continue to apply post-termination. Should the employee sign the letter? See the post.
And what should NOT be in the termination letter? Nothing pointing to discrimination or retaliation. Not too much detail. Perhaps not the reason for separation – see pre-ceding paragraph and the post. Nothing unprofessional and no references to anything illegal (see the post). An example of how including the latter type of language can make an employer liable is in the post.
TAKEAWAY: It might seem like a simple thing, but the termination letter will be evidence in any future lawsuits, so employers should prepare it in such a way as to be legally and factually correct and, hopefully, head off any such suit.
York, Pennsylvania 17403