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 12/17/2023 was about how artificial intelligence could make pregnancy discrimination in employment more common. You (should) know that in June 2023, the Pregnant Worker Fairness Act (PWFA) went into effect. What that law requires is noted in the post. Another law, included in the December 2022 consolidated appropriations bill, now requires employers to provide break times for parents who need to pump breast milk during work hours. And now there is artificial intelligence …
Statistics show that almost 83% of employers now use AI or other automated tools in their hiring process. And when AI is used for hiring, there is great potential for discrimination. Let’s examine this more closely. An AI algorithm will probably not be programmed to explicitly look for indications of pregnancy – that would be blatant discrimination. But pregnancy discrimination could still sneak in with the use of Ai. One example is in the post. Remember that the EEOC recently issued guidance warning employers of potential liability if an AI algorithm screens out an employee like that.
So how do employers use AI and yet not run afoul of anti-discrimination laws? Barring the AI from considering pregnancy won’t solve the problem? Why? See the post. And there might be no limit to what AI could do when looking for a proxy for pregnancy status. The post details how the process can (and actually did) play out. That is one downside of so much information on so many people being (pretty) widely available.
And pregnancy is not the only thing in AI’s potential target – other protected traits, such as health status, disability, or race, are vulnerable, too. Why? Yep, see the post. But discrimination on the basis of pregnancy is of special concern given the Supreme Court’s decision this past summer in Dobbs v. Jackson Women’s Health Organization, which took away the constitutional right to an abortion. The probably effect of Dobbs is in the post.
TAKEAWAY: As a result of the Supreme Court’s Dobbs decision, an increasing number of individuals may face forced birth, so employers must know how to treat those pregnant employees.
The post on Monday 12/18/2023 taught us how to define and address excessive absenteeism at work. Some absenteeism is normal – and might even be good (see the post). But some employees go too far. When employees start racking up excessive absences, especially unscheduled absences, it can be disruptive and costly to the business. And there are also other “side effects” as noted in the post.
First let’s define what might be considered excessive absenteeism. It is when employees have frequent unexcused absences which are typically defined as in the post. Some examples of might be excessive absenteeism are also in the post. And what would not be considered as excessive absenteeism at work? Employees using allowed PTO or taking legally protected leave (assuming the proper procedure is followed); this comes up all the time relative to FMLA and ADA leaves (see the post for detail on this).
What about when an employee gets sick? Everyone gets sick. Employees will call out sick occasionally, especially during peak periods like cold and flu season. That should not come within excessive absenteeism. But there are things an employer can do if the employee will be out for any length of time – see the post. And PTO (whether vacation, scheduled sick leave, or other)? Again, not usually excessive absences. Why not is explained in the post. And for the employers who provide unlimited PTO as part of a compensation and benefits package (are there any of you out there?!?), see the post for a possible effect and what you can (and cannot) do.
There are other forms of legally recognized employee leaves or instances (such as those mentioned in the post) where employers must excuse the absence or allow workers to leave for a period of time. These too would normally not be within excessive absenteeism.
What if we are too late, i.e., an employee has started exhibiting excessive absenteeism? There are some steps the employer can take to address the issue. The first is to be clear with expectations. How to do that is in the post. Next is to identify the root cause of the absenteeism. Why and how to do that is also discussed in the post. Other steps in the process are noted and detailed in the post. Keep in mind that employees often don’t understand the types of leave available to them; therefore, while an employee’s sudden chronic absenteeism may be due to a serious health condition or a family member’s health decline, the employee may not know that they can qualify for FMLA leave, short-term disability, or other leave.
TAKEAWAY: have in place and follow an absenteeism (or attendance) policy but be aware of the situations that might seemingly run afoul of the policy but in reality be legally protected. Get advice from an employment lawyer.
The post on Tuesday 12/19/2023 told us that Black employees file federal discrimination suit against utility. A group of current and former employees at a Chicago utility filed a federal lawsuit alleging that the company discriminated against them because they’re Black. The 11 plaintiffs filed the suit against Peoples Gas. They allege that Black workers were sexualized by non-Black workers, faced racial slurs and were forced to work in high-crime neighborhoods without security. Some of the examples provided by the plaintiffs are in the post. And the utility’s response? Not a surprise – and in the post.
TAKEAWAY: Employers must keep in mind not only direct discrimination, but also disparate impact discrimination. Talk to your employment lawyer.
The post on Wednesday 12/20/2023 noted fire sale fails, leaving condo owners and tenants empty-handed. Eight years ago, Max Plyshevsky moved into a light-filled two-bedroom corner apartment. It was the first place Max, a divorcee, owned by himself. It was his haven, with room for his daughter when she came to visit. He invested his savings into the fourth-floor condo and figured he had a nest egg. He was wrong. In April 2019, a vicious fire tore from a top floor apartment through the entire 54-unit building, leaving the highest three floors (including his unit) exposed to the sky and displacing all residents. What happened to Max after the fire? See the post. And with all that, he continues to pay the mortgage and property taxes on his burned-out condo. If the building would be sold, that would be great for Max (and about three dozen other owners) – the post explains why. The recent auction did not bring a single bidder. Not one. Given the past (see the post), that is not encouraging. Another owner in a based position is Eleanor Whitney, 42, a writer and marketing professional. She bought her condo, on the building’s fifth floor, in cash in 2009. She thought she’d found her forever home and had no plans to ever leave, but the fire changed that.
But it’s not just owners who were affected. The building still had 17 rental apartments dating to before its conversion to condominiums. Details on the rentals are in the post. The fire, and a resulting lawsuit from tenants, have put the renters and condo owners on opposite sides. The owners want to sell the building and get rid of obligations to pay property taxes and mortgage payments. But the tenants? See the post. Four months after the fire, the tenants sued their landlord, the condominium association, demanding repairs and that the owners pay to relocate the tenants. The condo association responded – see the post. And on top of that, the building was also terribly underinsured. The fate of the building — and its former residents — has been tied up in the court system ever since.
Now that the auction has failed, the condo owners and the association must decide what to do next. One option is in the post. The judge dismissed the tenants’ claims against the owners in March 2021; the reason for that ruling is in the post. The judge also ruled that the building was so destroyed that it was “de facto” demolished — why that is important is in the post. The tenants appealed that decision and the matter is still ongoing. The tenants may have a tough legal road – see the post for what they must prove.
TAKEAWAY: This building was not on the beach in Fl, but it has ghosts of the Surfside tragedy – poor maintenance, insufficient insurance … Owners should use due diligence not only when they purchase, but constantly thereafter.
In the post on Thursday 12/21/2023, we read about baring it all: an inside look at a nudist condominium association. (NOTE: the post includes a VID). This is in Florida where a community is garnering national attention for one of its more freeing recreational activities: nudism. A 2017 study by Saint Leo University through the American Association for Nude Recreation (AANR) said the nudism industry generates about $7.4 billion for Florida’s economy annually. CBS News affiliate WTSP toured one nudist community to learn more about why people are deciding to bear it all.
The president of the Paradise Lakes Condominium Association gave her reason. That gated community, separate from the resort, is like any other neighborhood. See the post. But neighbors strip themselves of judgment. See the post. But there are similarities to every other association – see the post. Surprisingly, that lifestyle is not just for older populations. The bulk of people in that community are between the ages of 30 and 60, with more young and curious visitors exploring it in recent years. And business appears to be booming — especially after the pandemic. An example by way of some themed units is in the post. That same 2017 study found that about 2.2 million people annually travel to Florida for nudist vacations. What is that life like? See the post.
TAKEAWAY: Whether clothed or not, residents must conform to the restrictions and obligations of the association; a community association lawyer can help with any disputes.
The post on Friday 12/22/2023 told us about a Pennsylvania taxpayer-supported fund that pays out millions of dollars in settlements. NOTE: this author is not advocating any particular position, just noting the facts given the various pushes for statutory restrictions on non-disclosure agreements.
The taxpayer-supported pool of money that covered most of the $295,000 sexual harassment settlement involving a former top administration official has paid out almost $19 million for 138 claims of various types generated in recent years, state records show. One multi-million dollar settlement went to the estate of Kevin Siehl, who spent 25 years in state prison and was released by court order after a judge found the murder case against him was mishandled. Another settlement … is detailed in the post. A lack of public knowledge about sexual harassment allegations that led to a settlement this year led to calls for more transparency on these payouts given that they are taxpayer-funded.
That recent case? Mike Vereb, the former Secretary of Legislative Affairs, resigned without a publicly stated reason on Sept. 27. What and when did the public learn? See the post. Vereb has not commented publicly on the allegations. And the taxpayer-funded $295,000 settlement in that case included an agreement that prevented the parties from talking about it. Just like many (most!) non-disclosure and other settlement agreements in the employment arena. So some lawmakers pushed for more details on settlements.
The state Department of General Services supplied data on the self-insurance fund that paid most of the Vereb-related settlement. Related to that fund, 138 claims that were wrapped up and got final payments between Jan. 1 and Nov. 13. The total paid out on those claims? See the post. Twenty of the claims were for $140,000 or more. All but $45,000 of the $295,000 Vereb settlement came from the fund, called the Employee Liability Self-Insurance Program, or ELSIP. The post has a table listing the 20 highest 2023-2024 premiums charged to state agencies for being part of ELSIP; the dollars makes sense when considering the settlements related to those agencies (which are discussed later in the post). But of course those premiums, and the settlements they fund, are paid with taxpayer funds. The settlements are not limited to sexual harassment; the breadth of settlements is noted in the post. Some lawmakers are pushing for more transparency including how much was paid out, over what period of time, and what categories of incidents led to the payments. Others agree, but also want to address the things that resulted in the settlements so they won’t continue.
Is the issue the amount of funds flowing through ELSIP or the lack of disclosure? It depends who you ask. One example of how a non-disclosure could work is in the post.
For 2023-24, ELSIP premiums are being charged to 84 different state agencies or entities. The 3 largest contributors are listed in the post along with their premiums for this fiscal year. There are certain rules and restrictions such as those noted in the post. Two examples of how discretion is applied are in the post (in detail).
TAKEAWAY: The continual tug between non-disclosure agreements and transparency in the workplace. Consult an employment lawyer with questions.
Finally, in the post yesterday 12/23/2023, we saw woman sues former employer, alleging racial and gender discrimination. Agh, the alleged facts … A woman is suing the nursing home where she worked for over a decade, alleging that it discriminated against her on the basis of sex and race. L’Tanya Chism filed the lawsuit against Sunset Healthcare in late November. Chism is seeking $225,000 in damages and has requested a jury trial. Her complaint alleges that during the more than 11 years that she worked at Sunset Health Care Center, she received less pay yet higher demands than any other worker in her position. Her employment background is in the post. In the lawsuit, Chism claims she “constantly had additional duties that she was asked to perform that were outside of her assigned job duties,” which include those things detailed in the post. She said no comparable employees were required to perform similar additional obligations. And what happened on days when Chism could not complete the duties outside the scope of her employment? See the post. Oh, and there is a wage claim too – see the post. Chism provided the company with her 30-day notice of resignation on Aug. 25, 2022, and the next day she received a text message from Sunset Healthcare Administrator Jennifer Lowe that is quoted in the post. Chism, an African-American woman, alleges that she suffered discrimination both on the basis of her race and sex. Responses by the employer? See the post.
TAKEAWAY: Treat comparable employees equally – or make sure any different treatment is legally supported. Get an opinion as to that form an employment lawyer.
York, Pennsylvania 17403