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 8/25/2024 asked: FMLA doesn’t allow an employee to nap on the job – does it? The Family and Medical Leave Act (FMLA) is a federal law that provides 12 weeks of unpaid leave to employees for their own or a family member’s serious health condition. That seems straight-forward, but the FMLA can present tricky situations for employers. While each FMLA case is different and must be decided on its own facts, employers can look to past FMLA cases for guidance. One recent FMLA case captured national attention because of the question before the federal court: is an employee’s on-the-job nap covered by the FMLA? Would you immediately answer no? Well, the answer may not be that clear.
In this case the employee/plaintiff was a nurse working in a hospital; she suffered from debilitating migraines. When the migraines hit, she would miss work or “disappear” from her shifts. The employer gave her a written warning for attendance and encouraged her to apply for FMLA leave. The employee did so and was approved for intermittent leave under the FMLA (the meaning of that is in the post). For intermittent leave, the employer instructed the employee to report a migraine to the nurse operations manager or a colleague before excusing herself from a shift. The employee understood and agreed to this reporting procedure.
For several months, this procedure worked. But eventually an issue arose (you knew it would, right?) when the employee developed a migraine while caring for a pregnant patient who was in active labor. The employee excused herself, left the patient alone, and went to a nearby darkened room to take her migraine medicine. Then she fell asleep. She did not inform anyone at the hospital before she left the patient unattended or before she fell asleep. The employer terminated the employee (the basis for which is in the post but will not be surprising).
The employee later brought a lawsuit for FMLA interference; what she argues is in the post. The Court recognized that there were circumstances where the employer may be required to permit the employee to take the nap, but this was not one (the Court’s rationale, and the deciding fact, are in the post). The Court granted summary judgment for the employer.
The facts in the case provide a good roadmap of things an employer should do for FMLA compliance, including the need to have a written FMLA policy (in language that is clear and understandable for employees) and to use standardized FMLA forms; having a clear reporting structure or designated FMLA person; and the other things detailed in the post.
There are also things an employer should not do, including having management or supervisors stay silent, downplay, or disregard an FMLA-qualifying situation, retaliate against someone for applying for or receiving FMLA leave, or the other items detailed in the post.
Finally, remember that the FMLA is federal law, but many states have developed a state counterpart. The effect of this? See the post.
TAKEAWAY: Determining when, how much, and under what circumstances an employee may be entitled to leave under the FMLA (or state counterpart) is highly technical and the law imposes deadlines on employers to comply with the requirements of the FMLA. Contact an employment lawyer for assistance.
The post on Monday 8/26/2024 told us that Walmart will pay $2.5M to settle class-action wage claims for pre-shift COVID-19 screening under a July 15th federal court-approved settlement that involved about 81,000 hourly workers.
The crux of the case was whether Walmart had to pay workers for their time spent undergoing mandatory, pre-shift COVID-19 screening. Details about the screenings are in the post. It is not that unusual for an employer to ask workers to perform tasks prior to or after a shift related to the health, safety or security of the workplace. But if they are not paid for that time, there might be violations of applicable wage law(s).
The employees here sought payment under state wage law. Under the settlement, each class member will receive approximately 50% of their potential claim based on the number of weeks they worked in the Walmart store from April 10, 2020, through February 28, 2022. Walmart did not respond to a request for comment prior to press time.
And then COVID-19 pre-shift screenings triggered a wave of lawsuits. In 2021, for instance, a former Victoria’s Secret employee filed a class-action suit under state law to get paid for the time spent undergoing pre-shift temperature checks. Where that case stands now is noted in the post.
When employees pursue compensation under the Fair Labor Standards Act (instead of state wage & our laws) for off-the-clock work, they must meet a somewhat different standard pursuant a 2014 ruling by the U.S. Supreme Court. In that case, the Court rejected claims by warehouse workers that the FLSA entitled them to be paid for the time they spent undergoing security bag checks during meal breaks and after clocking out. The justices’ basis for that decision is in the post.
Apple workers in CA had brought a class-action suit claiming entitlement to pay for off-the-clock security bag checks when they left for meal breaks and after their shift ended. The workers in the Apple case also included FLSA claims, but the court dismissed them based on the Supreme Court’s 2014 ruling. As for the remaining claim, the basis for the court finding in favor of the Apple employees is in the post.
As relates to employee pay for pre-shift COVID screenings under the FLSA, the U.S. Department of Labor has weighed in with guidance (described in the post). NOTE: how much weight that guidance will carry now given the Supreme Court’s Loper Bright holding remains to be seen. The plaintiffs in the Walmart case alleged that their claims comported with DOL’s guidance.
TAKEAWAY: The effects of the pandemic on the workplace – and issues that arose in that new environment – continue to move through the courts; employers should remain wary of both past (in)actions and potential future procedures.
The post on Tuesday 8/27/2024 noted the EEOC sued VibraLife of Katy, LLC for disability discrimination. VibraLife is a rehabilitation and assisted living facility that allegedly violated federal law when it denied an employee an accommodation for her sleep disorder and then fired her.
According to the EEOC’s lawsuit, VibraLife hired an employee with a sleep disorder for a night-shift position. What the job posting required is in the post. Upon beginning her employment, the employee was notified that she would be required to work an additional 12-hour shift every other week. She promptly requested an accommodation limiting her work schedule to the express terms of the job posting. Soon after the accommodation request, the employee was demoted and subsequently terminated.
The EEOC alleged violation of the Americans with Disabilities Act (ADA) on the basis noted in the post. The EEOC filed suit in U.S. District Court after conciliation failed. What the EEOC seeks by way of damages is in the post.
TAKEAWAY: employers must know their accommodation obligations; having an employment lawyer on speed-dial can be very helpful.
The post on Wednesday 8/28/2024 alerted us that $4.7M awarded to condo owners after government seizure of dunes. The state Department of Environmental Protection (DEP) had offered the Midway Beach Condominium Association $500 to take their beachfront property. That was in 2017 when the state used eminent domain to seize the dunes as part of a dune improvement project – despite homeowners’ belief that their dunes protected them during Superstorm Sandy (more on this is in the post). The association said that their 25-foot high dunes were better than the 22-foot high dunes in the U.S. Army Corps of Engineers’ proposal and resisted the reconstruction project. The Association’s dunes were preexisting and constructed by homeowners many years prior, bolstered by things like discarded Christmas trees. A ruling came out that the state could seize those dunes as long as they didn’t shorten any existing ones. So the DEP offered to pay $500 and said that the project would benefit Midway Beach. The association did not agree. Suit was filed. The state determined the beachfront property it took was worth $6.6 million but that Midway wasn’t entitled to that amount due to the benefits of the project. Midway appraised the property at $4.69 million. And now, after a trial by jury, the DEP must pay Midway $4.7 million. The basis for the jury award is in the post.
TAKEAWAY: condo and HOA must know what they own or are entitled to – and then use a community association lawyer to handle any questions to litigation about that ownership.
In the post on Thursday 8/29/2024 we asked about HOA special assessment for roof of $12K due in a month: legal? The fact scenario is that an HOA sent out a letter on July 1 asking for payment on an assessment for more than $12,000, to be paid in full within 30 days. The assessment is for the roofs of the townhomes and not the villas in the association. Further, six of the seven board members who voted to redo the roofs (despite their alleged condition – see the post) are townhome owners. Fand when some owners replied to the letter inviting them to contact the board for assistance, there was no response.
The first thing to do in looking at this is to examine applicable law as to special assessments. If there is no overriding statute, then the governing documents must be examined as to the board’s right to adopt a special assessment and any restrictions that may exist. Examples of some provisions that might be in the governing documents are in the post. It is also important why the board adopted the special assessment. It might have had no choice if there was poor prior maintenance and a lack of advance planning for what is now an urgent project. There is another option in lieu of a special assessment – that is discussed in the post. But that option may not mandatory, so the effect is as detailed in the post. Owners handed a large special assessment payable in a short time do have another option – see the post. Or they might consider asking the board to approve a reasonable payment plan for the special assessment.
And there is a final potential option if a large majority of owners oppose the assessment – see the post. But beware what is requested because if the special assessment is to cover needed repairs and is then withdrawn, those repairs will not be done which is not a good thing.
TAKEAWAY: Nobody likes special assessments; boards don’t like imposing them and owners don’t like paying them. But sometimes they are a necessary evil in life in a community association. A community association lawyer should be consulted by the board prior to adoption of a special assessment.
The post on Friday 8/30/2024 told us that Pro Pallet LLC to pay $50K in EEOC retaliation suit settlement. Pro Pallet is a Pennsylvania-based construction company. According to the EEOC’s lawsuit, a human resources manager received a complaint of sexual harassment against the general manager of the company. The EEOC alleged that when HR began to investigate, the president and owner rebuked her, reassigned important responsibilities of her job to other employees, and excluded her from company meetings. She then felt compelled to quit as a result of those retaliatory actions by Pro Pallet.
The EEOC alleged a violation of Title VII and filed suit in U.S. District Court for the Middle District of Pennsylvania (which sits in Harrisburg) after first attempting to reach a pre-litigation settlement through its conciliation process. In addition to Pro Pallet agreeing to pay $50,000 to the employee to settle, it agreed to other non-monetary relief (which, arguably, might be even more important). The post details the other parts of the settlement.
TAKEAWAY: Don’t retaliate against an employee because they are fulfilling obligations under Title VII – it can be costly in many ways.
Finally, in the post yesterday 8/31/2024, we talked about artificial discrimination: AI users and vendors may be liable for hiring bias in the tools. A federal court in California largely rejected WorkDay’s motion to dismiss a hiring discrimination suit alleging that Workday’s algorithm-based screening tools discriminated against applicants on the basis of race, age, and disability. Plaintiff Mobley is an African American male over the age of 40, with a bachelor’s degree in finance from Morehouse College, an all-male Historically Black College and University, and an honors graduate degree. Plaintiff also alleges he suffered from anxiety and depression.
According to the amended complaint, Mobley applied to more than 100 jobs with companies that use Workday’s screening tools on the Workday platform. The types of things the screening tools included are in the post. Why the Plaintiff finds the AI assistance problematic is also in the post.
The Plaintiff was allegedly denied employment through Workday’s platform for all his applications. Interesting things about the rejections- which Mobley says support his case finding fault with the algorithm are in the post (along with an example). Those rejections form the crus of Plaintiff’s allegation that Workday’s algorithmic decision-making tools discriminate against job applicants who are African-American, over the age of 40, and/or are disabled. The statutes under which suit was brought, and the claims, are listed in the post. The EEOC filed an amicus brief in support of the plaintiff in the case, further solidifying its position that federal employment laws can be used to address discrimination by algorithmic or AI tools. Again, NOTE that the Supreme Court’s Loper-Bright decision might alter the outcome here.
The key to the Court’s July 2024 decision is in the post. And the decision is important to any business that leverages vendor AI or automated tools to evaluate and make decisions concerning the rights of individuals, including hiring, promotion, and firing decisions, and to the third-party service providers and vendors who provide those tools. So what can employers do to protect themselves from liability when using AI? First, they should educate themselves on the technology being used (sems like an obvious thing, but many do not do this, they just jump right in). Also, employers should ask for bias testing or assessment results. The other things a careful employer should do are in the post.
Under many anti-discrimination laws, an employer, employment agency, or agent may be liable. Workday argued that it did not fit within any of those categories, but the Court ultimately found that Workday was an agent of employers and could be directly liable under the agency theory. How it analyzed that is in the post. Because of what it noted (which is in the post), the Court declined to “draw an artificial distinction between software decision-makers and human decision-makers,” [sic] as any distinction would “gut anti-discrimination laws in the modern era.” In the end, the Court denied Workday’s motion to dismiss Plaintiff’s federal discrimination claims.
But that’s not all. The Court also allowed Plaintiff’s disparate impact claim to proceed but rejected his intentional discrimination claim against Workday. How/why the Court made those rulings is in the post. The Court also denied Workday’s motion to dismiss the disparate impact claims under Title VII, the ADEA, and the ADA. There is more about that in the post. It is this part of the decision where the responsibility of employers and vendors to evaluate AI tools used in the employment processes for disparate impact comes in.
The Court also ruled on Workday’s liability for intentional discrimination where the Complaint alleged that “Workday was aware of the discriminatory effects of its applicant screening tools”. The basis of and the ruling on this issue are in the post.
The use of AI in the workplace (and more) is only going to increase. Employers must be careful before stepping on an AI-land mine as it can lead to litigation. Suggestions as to how employers can safely use AI are in the post.
TAKEAWAY: Know the law and your responsibility when it comes to AI – before using the AI. Delegating a function to an automated or AI system does not insulate an employer or vendor from liability for the decisions made by those tools.
York, Pennsylvania 17403