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 5/19/2024 told us companies are expecting increase in employment-related litigation. This comes from a recent survey. Respondents expressed particular concern about litigation related to discrimination and harassment (81%), wage and hour/pay practices (71%) and retaliation (63%). The survey also found that employers are seeing increased requests from employees for leaves of absence or accommodations, especially relating to mental health and pregnancy/childbirth. Employers in some sectors revised or expanded policies in those areas – see the post.
The survey also found that the polarized political environment brings challenges for employers when it comes to managing their workplaces. The vast majority of those who responded (87%) said they are concerned about managing divisive political and social beliefs among employees leading up to the 2024 election. And while employers are expecting less legislation in the employment area due to the elections, there is one exception – see the post. Respondents also expect increased enforcement by regulatory agencies and an uptick in employment-related litigation in the areas, and by the agencies, noted in the post.
Artificial intelligence (AI) use brings a split among survey respondents in terms of adoption of AI tools for HR functions – see the percentages listed in the post. Among those who have used generative AI in HR and hiring, the most popular uses are creation of HR-related materials and the other use noted in the post. Bu even those who use AI tools still have reservations about their risks. One way to minimize that risk is to have policies governing safe use of AI in the areas noted in the post.
The post also highlights other findings from the survey, including the percentage who now have some form of hybrid work schedule and the shift toward more in-person that remote work days.
TAKEAWAY: Employers must be even more careful in the workplace – know the law and put a good employment lawyer on speed dial.
The post on Monday 5/20/2024 alerted us that the US Dept. of Labor’s Wage & Hour Division issued new Guidance on employers’ use of AI. The Guidance, Field Assistance Bulletin No 2024-1, came out at the end of April 2024 for field staff on the implications of the increased use of AI technologies and the continued need for human oversight to avoid legal issues. The Guidance deals with the FLSA and other statutes based on how AI can be used, including those things listed in the post.
The Guidance emphasizes several key areas that may be affected by the use of AI. They include hours worked (i.e., making sure that any AI accurately accounts for all hours worked and does not overemphasize the things noted in the post), proper calculation of wages (to ensure compliance with the FLSA and other applicable laws and not the things noted in the post), administering leaves (as described in the post), and the other areas listed and described in the post. The Guidance also covers retaliation, in that the use of AI may result in adverse action that is considered retaliatory under applicable law. More details are in the post. Another thing to remember is that DOL considers employers responsible when AI results in a legal violation (highlighting the need for human oversight)
TAKEAWAY: Know what those enforcing the law will be looking for – yep, keep that employment lawyer on speed dial for this too.
The post on Tuesday 5/21/2024 noted neighbor caught on camera injecting “poison” under door of family home after noise complaints – Association files suit to evict. Xuming Lee, a 36-year-old man, was arrested and charged after he was allegedly caught on surveillance footage injecting a chemical agent with a syringe under the door of the neighboring condo, according to a police report. And it happened more than once. The injected substance was tested – what it was, and the side effects, is in the post. The resident, Umar Abdullah, smelled the chemicals in his home and his 10-month-old baby began vomiting, so he installed security cameras. The Fire Dept. came to his home several times, but could not find what caused the smell. Exactly what the security footage showed is noted in the post. Abdullah, his wife, and their baby experienced shortness of breath and irritation to both their skin and eyes after they inhaled the chemicals over the course of a month, the police report states. The responding police officer also suffered skin irritation and received medical care. Li’s charges? See the post for the list.
After that, the condominium association filed a complaint against Li for eviction. On what basis? See the post. The suit also includes a request for monetary damages and legal fees.
TAKEAWAY: Condo and homeowner associations cannot get involved in everything that happens between owners/residents, but sometimes they must get involved. Consulting a community association lawyer is the first step.
The post on Wednesday 5/22/2024 told us the FMLA does not shield employee from dismissal due to misconduct prior to leave request, District Court rules. On April 29, 2024, the federal trial court granted summary judgment in favor of the City on Mary McBeath’s claims of FMLA interference, FMLA retaliation, and race discrimination under Title VII.
McBeath is an African American woman who worked for the City in its parks department. As assistant manager, she was responsible to establishing and operating a food pantry. What that entailed is in the post. McBeath admitted that her husband went with her in a City-owned vehicle and took the donated items to her home. Her explanation as to why she took them to her home is in the post. As a City employee, McBeath was subject to policies including a code of ethics with certain prohibitions as noted in the post. During her employment McBeath was disciplined more than once for poor performance and attendance, but they did not rise to the level of termination. On January 24, 2022, the City received a complaint from a citizen accusing McBeath of stealing food pantry donations. There was a video! What happened after that is detailed in the post. HR determined that discharge was appropriate. Before that, on February 17, 2022, McBeath submitted a request for FMLA leave; the request was approved for the period February 22 – May 19, 2022. On March 4, 2022, during the FMLA leave, McBeath’s manager scheduled a virtual meeting that included HR. What happened during that meeting is in the post. It ended with McBeath being terminated. She filed suit asserting FMLA interference and retaliation and race discrimination under Title VII. The City filed for summary judgment.
The federal trial court looked at those 3 claims separately and granted each of them. The court’s analysis as to each claim is in the post. One key as noted by the court is that McBeath was not entitled to any greater benefits or protection than if she had remained continuously employed during the FMLA leave period (i.e., if she had been working and not on leave, would the same thing have happened). The date used by the court relative to the retaliation claim is also key (and is described in the post).
TAKEAWAY: FMLA leave does not stop an adverse action that would have been appropriate had the employee not been on such leave.
In the post on Thursday 5/23/2024, we saw an appeals court sides with Catholic school that fired gay teacher for plans to marry his partner. Lonnie Billard said that in October 2014, while he worked for the Catholic school, he announced his engagement to his partner on social media. He was fired two months later. Billard filed a discrimination complaint with the EEOC and then instituted suit in 2017. In the interim, in May 2015, he married his partner. The federal Court of Appeals said the school did not violate Lonnie Billard’s rights under Title VII. The majority held that Billard “played a vital role as a messenger” of the Catholic school’s faith values; that made the termination legal for the reason noted in the post. More detail on that and the EEOC’s explanation, is also in the post. Billard is now retired.
TAKEAWAY: Employers must not only know the law on non-discrimination, but also any exceptions to the law. Yep, employment lawyer on speed dial …
The post on Friday 5/24/2024 was HOA Q&A: Can notice about a Board meeting be given electronically? The question is: what are the requirements regarding electronic Board meeting notices? This depends on both applicable state law and the condo or homeowners’ association’s governing documents (mainly the Bylaws). Examples of what a statute might say, or sample provisions of Bylaws, are in the post.
TAKEAWAY: Know what PA law provides for notices of meetings of owners and the Board in your condo or homeowners’ association – contact a community association lawyer.
Finally, in the post yesterday 5/25/2024, we read that Red Hat’s DEI program is discriminatory, lawsuit says. This is not totally unexpected in today’s environment … Allan Kingsley Wood, a former senior director at enterprise software company Red Hat, said he was fired in violation of Title VII for being white and male after he spoke out against the company’s push to hire based on race and gender. He filed suit in federal court on May 8th.
Wood was fired along with 21 other people, all of whom with one exception were white and male, after company leadership announced a goal to reach 30% female and 30% minority workers by 2028, according to Wood’s complaint. The suit was filed after an EEOC charge did not lead to a resolution. Wood’s suit notes what he describes as an irony – see the post. The problem really came in because of the numerical goals. That is now an issue since the recent Supreme Court decision in the college admissions case –see the post for a more detailed explanation.
Red Hat didn’t immediately respond to a request for comment
TAKEAWAY: Employers must be even more careful now relative to their DEI goals and how they are to be achieved – getting an employment lawyer involved early on is a good idea.
York, Pennsylvania 17403