Below is a review of the posts (on Facebook, LinkedIn, and X [formerly Twitter]) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 3/10/2024 was about the EEOC plan to root out pregnancy discrimination in the workplace. Do you remember the Pregnant Worker Fairness Act (PWFA) and PUMP Act? And being told that the EEOC was going to have pregnancy discrimination on its radar? Recent activity from the EEOC suggests this should absolutely be on your radar. Recently the EEOC issued two press releases about lawsuits it brought involving pregnancy discrimination claims.
The first press release told us that a Georgia employer is paying $50,000 to settle a Title VII suit filed by the EEOC alleging that the pathology lab discriminated and retaliated against an employee who experienced pregnancy-related symptoms. More on the allegations is in the post. The settlement included a $50,000 payout and a two-year consent decree requiring the employer to take the non-monetary actions listed in the post.
The other press release noted the EEOC’s filing of suit against a New Orleans bakery for pregnancy discrimination in violation of Title VII and the ADA. More on what is alleged in the complaint is in the post.
While neither of the suits state a PWFA claim, both press releases reiterated the EEOC’s commitment to safeguarding equal employment for pregnant employees. And one EEOC representative went farther; see the post.
So what can employers do to avoid being the next EEOC suit defendant? First is to make sure you have in place policies prohibiting discrimination and retaliation, specifically including pregnancy, and enforce the policy. You should also include those policies in training materials and onboarding materials so that every employee is aware of the policy against discrimination and harassment, including pregnancy discrimination and harassment. Additional steps employers can (and should) take are in the post. Finally, employers must make sure everyone is on the same page, including the legal duty to accommodate pregnant and lactating employees. That can include the things noted in the post.
TAKEAWAY: Not only must employers know the law relative to accommodating pregnant employees, they must train managers as to fulfilling the accommodation obligation.
The post on Monday 3/11/2024 reminded us that the DOL independent contractor rule became effective that day (3/11/2024). The new rule sets out the standard for determining who is an employee and who is an independent contractor under the Fair Labor Standards Act (FLSA). The rule, which was originally proposed in October 2022, contains a six-factor test “based on the economic reality of the worker and potential employer relationship,” per DOL. The Rule further reaffirms that a worker is not an independent contractor if they are economically dependent on an employer for work.
The six factors considered are, first, the opportunity for profit or loss depending on managerial skill. Analysis of this factor includes whether the worker (1) determines or can meaningfully negotiate the charge or pay for the work provided, (2) accepts or declines jobs or chooses the order and/or time in which the jobs are performed, (3) engages in marketing, advertising or other efforts to expand their business or secure more work, and (4) makes decisions to hire others, purchase materials and equipment and/or rent space. The second factor is investments by the worker and the potential employer. The analysis here includes whether investments by a worker are capital or entrepreneurial in nature. Costs to a worker – for tools and equipment to perform a specific job and for labor and costs that the potential employer imposes unilaterally on the worker – indicate employee status. And what indicates contractor status? See the post.
The third factor to be considered is the degree of permanence of the work relationship. A relationship that is indefinite in duration, continuous or exclusive of work for other employers, weighs in favor of employee status. On the other hand, facts that tip the scales in favor of an independent contractor relationship include those listed in the post. The remaining 3 factors, including things to be considered under each, are in the post.
Not that other factors also may be relevant if they somehow indicate whether the worker is in business for themself as opposed to being economically dependent on the employer for work. A link to the final rule is in the post.
TAKEAWAY: Litigation is already pending about the rule, but unless and until it is put on hold nationally (or at least as to PA employers), you must know what if anything this changes as to your classification of employees (and act appropriately and with advice of your employment lawyer as to those changes).
The post on Tuesday 3/12/2024 told us former accountant for property management company sentenced to federal prison for embezzling almost $1 Million from condo/HOA clients. In early March a California woman was sentenced to 57 months in federal prison for embezzling nearly $1 million from her employer, which managed the financial affairs for HOAs. Jenev Boyd, 60, of Corona, was sentenced as noted and also ordered her to pay $780,810 in restitution. This arose out of Boyd guilty plea in December 2023 to one count of wire fraud and one count of aggravated identity theft.
Boyd was a long-time employee of and the director of accounting for Encore Property Management, a California company that provided property management services to its HOA clients. From January 2012 – August 2020, Boyd reactivated retired or non-active client accounts in a software program Encore used to falsely reflect that they were still active clients. She then changed the selected vendor’s information to reflect her own name and address. Through manipulation of Encore’s internal accounting software, Boyd was able to mask payments to herself from client accounts as vendor payments. Because Boyd kept the monthly amounts in line with other vendor payments, she hid the embezzlement. But that’s not all; Boyd also did the other things noted in the post. In total, Boyd defrauded her employer and its clients out of $931,077.
The FBI investigated the matter.
TAKEAWAY: The vast majority of community association managers, agents and employees are honest (and good at what they do), but for the few who are not, your association should have in place appropriate and adequate insurance coverage (and/or bonds). Talk to an insurance agent listed at www.caionline.org.
The post on Wednesday 3/13/2024 advised us that the NLRB rules Home Depot worker was illegally fired for wearing BLM insignia. And yes, you non-union employers care about this, because this expands the types of messaging that employees are permitted to display in the workplace (and even greater expansion may be coming).
In Home Depot, USA, 373 NLRB No. 25, the NLRB held that a customer-facing employee who wrote “BLM,” an initialism for “Black Lives Matter,” on his orange Home Depot apron was engaged in protected concerted activity under the National Labor Relations Act (NLRA). As a result, Home Depot’s directive for him to comply with the dress code policy (which, in relevant part, provided that a work apron is “not an appropriate place to promote or display religious beliefs, causes or political messages unrelated to workplace matters”) and remove the marking violated labor law and the employee’s resulting decision to resign over the directive amounted to a “constructive discharge” entitling him to backpay and reinstatement. Note that the NLRB General Counsel did not allege, and the NLRB did not hold, that the policy language facially violated labor law. Reversing the administrative law judge, the Board majority viewed the BLM marking as a “logical outgrowth” of earlier workplace complaints around racial discrimination and harassment issues even though the record did not directly link the two. And the Board also rejected Home Depot’s arguments that are noted in the post.
For labor law protection to attach to employee activity unrelated to unionization or collective bargaining, the activity must be (1) “concerted,” which means it involves two or more employees, and (2) undertaken with a goal or purpose of “mutual aid or protection” of employees.
Individual employee activity can be “concerted” in select circumstances (which is why even non-union employers need to pay attention) including activity engaged in with the approval or authority of other employees, activity seeking to initiate, induce, or prepare for group action, and the other actions listed in the post. The Board relied on the logical outgrowth theory and held that the employee’s individual activity of wearing a BLM marking on a Home Depot apron was an extension of prior workplace complaints about racial discrimination and harassment that began shortly after the employee started working there six months prior. The Board also considered the employee’s explanation as to the connection between workplace complaints and the BLM marking.
In its defense Home Depot argued that even if labor law protection attached to the BLM marking, “special circumstances” allowed Home Depot to instruct the employee to remove what it considered a controversial message. The concerns raised by Home Depot as the “special circumstances are listed in the post (and will seem fairly common to most businesses). The Board majority rejected Home Depot’s argument; the Board’s explanation is in the post.
And here’s where you need to really pay attention. The NLRB General Counsel argued that the Board should adopt an even broader protection of workplace messaging under the novel “inherently concerted” doctrine (the definition of which is in the post). The Board to date has limited the inherently concerted doctrine to certain categories of critical workplace issues, namely wages and the other 2 noted in the post. The General Counsel advocated for expansion of protections for individual complaints or activity to other categories. The Board declined the General Counsel’s request for expansion to include racial discrimination in this case, but it did signal a willingness to do so in a future appropriate case. And might that be reality? Several pending cases raising similar racial discrimination issues for potential expansion of the inherently concerted doctrine are pending before the Board.
But the Board’s decision was not unanimous. Dissenting Member Marvin E. Kaplan concluded that the BLM marking was not “concerted” or for “mutual aid or protection” within the meaning of the NLRA (meaning that Home Depot could legally direct the employee to remove the marking from the required customer-facing uniform. The dissent’s reasoning is explained in the post. Further, the dissent noted that Black Lives Matter is a global organization that, since at least 2013, has not focused on workplace discrimination issues but instead community, political, or societal issues (and therefore assuming that BLM “related” to Home Depot–specific racial discrimination complaints that were the subject of legitimate protest was illogical and speculative.
TAKEAWAY: Even activity by a single non-union employee might be considered protected concerted activity under the NLRA; further, workplace activity that is linked to political or societal causes is now subject to labor law protection where it has any temporal or subjective connection to any workplace complaint or dispute, such that employers should expect more expansive readings and arguments by the NLRB when it comes to worker messaging.
In the post on Thursday 3/14/2024, we discussed keepin’ it real: considerations for employers using artificial intelligence. Artificial intelligence (“AI”) uses seemingly expand daily, including in the employment arena. And that use of AI tools has raised concerns about the triggering of anti-discrimination laws and jeopardizing a company’s proprietary and confidential information.
You should know that, in general, AI tools predict outcomes based on already-analyzed historical data sets; they apply an algorithm which dissects the data to create a model that predicts outputs. Use of AI by employers includes monitoring work performance and the other things listed in the post. While employers undoubtedly find all of those AI tools useful, there are also potential legal concerns, including discrimination claims and the disclosure of confidential company information. As to the former, on April 25, 2023, the EEOC issued a joint statement with the Consumer Financial Protection Bureau, Department of Justice, and Federal Trade Commission (the content of which is in the post). The EEOC has twice issued guidance discussing Title VII and the ADA and how each relates to AI in the workplace.
Important for employers is that the EEOC primarily focuses on the interplay between discrimination claims and AI tools, especially disparate impact claims under Title VII and the ADA. How the use of AI tools comes within this concern, and an example, are in the post. As support for its focus on the effects of AI in the workplace, the EEOC secured its first workplace AI settlement when, on August 9, 2023, a tutoring company agreed to pay $365,000. See our post on Monday, November 13, 2023, for more details on that settlement.
Some things employers can do to try minimize potential legal liability for discrimination when using AI are to monitor and periodically audit the assemblage and results generated by the AI tools to identify patterns and contexts that may indicate potentially unlawful disparate impact or other discriminatory treatment and more as noted in the post.
And what about the possibility of disclosure of the business’s confidential information when using AI? This comes about because AI tools, including those that are publicly available, rely upon data each individual user inputs. If the AI is used to draft or create work product, the employee may be disclosing confidential company information. That information is not only stored but used by the AI to respond to future user requests.
Currently there is no federal law that regulates the use of AI in the workplace, but two bills have been introduced recently (with little traction to date). But some states and localities have enacted legislation regulating employers’ AI use. Some examples are in the post.
In conclusion, as technology evolves and proliferates, the EEOC and other federal agencies, as well as state legislatures and cities and towns around the country are likely to continue to focus on AI and its uses in the workplace. It is therefore imperative that employers be mindful of new enactments and regularly assess their usage and the implications of AI-assisted decision-making.
TAKEAWAY: The use of AI in or related to employment is only going to increase; that means the possibility of discrimination or disclosure of confidential information will only increase. Employers must assess their AI use and implications, probably with an employment lawyer at their side.
The post on Friday 3/15/2024 predicts another year of modest growth for US condos and HOAs in 2024. While experts predict an improvement in mortgage markets and builder outlook for the US housing market in 2024, the number of new communities and existing home sales will be subject to a series of domestic and international issues. The general housing market is expected to have some volatility, but the community association housing market is predicted to remain the buyer’s choice for a new or existing home.
The number of new condominium communities and homeowners’ associations is expected to increase by 3,000-4,000 in 2024 according to projections by the Foundation for Community Association Research (FCAR). Community associations currently are home to 75.5 million Americans (with the correlating percentage of the housing stock noted in the post) according to FCAR’s U.S. National and State Statistical Review for Community Association Data. And what is the FCAR’s estimate for growth in the number of US community associations in 2024? See the post.
Since the 1970s, community associations have been a popular housing choice —especially for condominium buyers seeking proximity to city centers, public transportation, and schools. Planned communities also help municipalities as noted in the post. A link to more community association statistics is in the post.
TAKEAWAY: As more and more people live in a community association, it is more and more important to know who has what rights and responsibilities within those associations – community association lawyers can help.
Finally, in the post yesterday 3/16/2024, we saw CBS accused of ‘blatant’ bias against white male “SEAL Team” writer amid diversity rules. Employer diversity rules and policies are supposed to help increase diversity, legally, right? Perhaps it’s that “legal” part that trips up some employers.
In that vein, a federal suit accuses CBS (and parent Paramount Global) of “blatant” discrimination against a white, heterosexual male freelance writer as it imposed stringent diversity rules for writers on its “SEAL Team” series. Brian Beneker, a script coordinator and freelance scriptwriter for the show, alleges that he was unlawfully denied a staff writer position due to his race, sex and sexual orientation.
Beneker became the script coordinator in 2017 on the pilot episode of “SEAL Team,” a drama about the pressure on a group of Navy SEALs. Shortly after that he was offered the opportunity to write an episode script as a freelancer for the show’s second season. Beneker further alleges that to continue as a scriptwriter, he was told that he had to quit his job as a coordinator. Details on the alleged qualifications of the female who replaced him in that role are in the post. She was allegedly chosen for that position as a result of a widely reported mandate from CBS Chief executive George Cheeks to “set a goal that all writers’ rooms on the network’s primetime series be staffed 40% [with] BIPOC [black, indigenous and people of color] in the 2021-2022 season.” The diversity requirements increased for the 2022-2023 season (see the post)
Beneker then went back to his old coordinator job for Season 2 and alleges that he was called by the CBS creative executive’s office to confirm that a specific writer for the show “was or appeared to be Asian.” At that time, Beneker had asked showrunner John Glenn to hire him as a writer but was told there were too many writers already. Contrast that with what Glenn allegedly did – see the post. Glenn was replaced by Spencer Hudnut in 2019 and Beneker says he asked Hudnut why CBS hired that person. Hudnut’s alleged response is in the post.
Then Beneker wrote the finale of Season 3, “No Choice in Duty,” as a freelancer, and was told by Hudnut that he was “next in line for a staff writer position,” according to the suit. But when Season 4 began, Beneker was told by Hudnut that they couldn’t offer him a job. The person who was assigned a freelance script at that time is described in the post; that person was later offered a staff writer job in Season 5.
The following season, Beneker co-wrote another script, but again was passed over for a full-time writing job in favor of two relatively novice female writers (described more in the post). The suit alleges that Hudnut told Beneker that the new hires “checked diversity boxes” that he (Beneker) did not.
How the suit describes the position of heterosexual, white men relative to getting hired as staff writers is in the post and form the basis of the discrimination allegations. Beneker is suing for more than $500,000 in lost wages and benefits and other damages, as well as a permanent injunction barring the media giant from violating nondiscrimination laws. He is also looking for a full-time job as a producer and an order from the court that the company’s hiring policies violate Title VII.
CBS and Paramount’s response to requests for comment? See the post.
TAKEAWAY: Diversity is great – as long as it is legal. A company cannot discriminate against one class when trying to increase diversity among another class. Legal hot water runs deep.
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