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 2/2/2025 talked about regulating artificial intelligence (AI) in employment decision-making: what’s on the horizon for 2025? The minefield only expands … One can think back on employment law in 2024 as the “Year of Artificial Intelligence Legislation.” Why? All but five states introduced new AI legislation in 2024 (and 4 of the 5 didn’t have 2024 legislative sessions). Texas was one of the 4 outliers but is set to consider proposed legislation known as the Texas Responsible AI Governance Act (TRAIGA). Employers must be aware of existing and proposed legislation in their state as that may differ from what is out there on the federal level (which includes the EEOC and DOL guidance discussed in the post).
Some states model their statutes after other states’ laws, so let’s look at a few AI examples. One of the most robust and talked about examples of AI regulation enacted in 2024 was the Colorado Artificial Intelligence Act (CAIA), one of the first worldwide to define and comprehensively regulate “high-risk artificial intelligence systems”. Details about the CAIA re in the post, but know that it also includes a requirement similar to that required by the federal Fair Credit Reporting Act (FCRA) that employers must notify employees when a high-risk AI system is used to make decisions about them.
And then there is the recently proposed TRAIGA which also regulates developers and deployers of “high-risk AI systems.” What deployers must do under TAIGA is discussed in the post. And similar to CAIA, the definition of “high-risk AI systems” would include any artificial intelligence tool that is a “contributing factor” to an employment decision or opportunity. The TRAIGA also includes enforcement mechanisms as noted in the post.
So what best practices can – and should! – employers follow in response to the AI legislation enacted in 2024 and possibly coming in 2025? First, assess the regulatory landscape in the state(s) in which your business operates to determine what compliance obligations apply to your organization. Next, assess what AI tools (e.g. those listed in the post) your business is utilizing. Two more employer best practices are listed in the post.
TAKEAWAY: To stay ahead of the curve in 2025, employers must act quickly and strategically to ensure that their HR practices are in compliance with the evolving AI regulatory framework. Keep an employment lawyer on speed-dial.
The post on Monday 2/3/2025 told us an IT worker sues AstraZeneca for disability discrimination after denial of request to work from home because of eczema. This matter went before an employment tribunal; the judge ruled that Laszlo Kalman is a ‘disabled person’ due to the ‘adverse impact’ his skin condition (detailed in the post) has on his day to day activities. Testimony was that the ‘primary source’ of his issues related to AstraZeneca asking employees to work three days per week from the office, but Kalman believed that his condition required him to remain WFH. A final hearing will be had in the future. Let’s look at some background.
Kalman started working as an IT Apprentice in September 2019. He was hired under a four year contract which ended in September 2024. In 2022, AstraZeneca introduced a policy which said all employees should work for three days a week from the office. This superseded the COVID pandemic WFH policy. But Kalman said he could not return to the office due to his condition. How his eczema affected his life and ability to RTO, including how COVID affected him, is all in the post. (OK, this author thinks that some of the effects are within Kalman’s control, but this author is not a/the judge.)
Because of the ruling that Kalman’s eczema is a disability (on the bases elaborated on in the post), he can proceed with his discrimination claim. Part of Kalman’s claim was curtailed – the judge ruled that he could not proceed with the claim as relates to his allergies (again, for the basis noted in the post).
TAKEAWAY: While this occurred outside of the US, it might play out similarly within the US. Employers must know their obligations regarding accommodation.
The post on Tuesday 2/4/2025 noted HOA charged with discrimination for trying to kick out low income renters. Federal officials have accused a homeowners association of discrimination for trying to kick out residents who receive government assistance to pay rent. HUD charged the Providence Village Homeowners Association, a small community in Texas with discriminating against Black residents. Court documents detail the alleged discrimination and harassment that Black residents faced as the HOA sought to ban renters who paid with government subsidies (formerly known as Section 8 vouchers). The HOA’s social media pages garnered much (unfavorable) attention as noted in the post.
Some background. On two separate occasions, a white supremacist organization protested outside the HOA and handed out flyers (the content of which is in the post). They also delivered flyers to people’s homes; again, the content of those flyers is also in the post. It is alleged that both the HOA board and the property management company, FirstService, knew of the various threats but did little to address them. The HOA and FirstService did not provide any responses/comments, but what the HOA previously said was the aim of the subject policy is in the post. An attorney who represents some of the former renters said the HOA forced desperate families to scramble for new housing, upending children’s lives.
The suit alleges that this all started in 2021 when two teenagers, one Black and one white, got into a fight. Some residents blamed housing voucher recipients for what they saw as an increase in crime. The HOA is about an hour north of Dallas; it has about 7,700 residents, a swimming pool, pavilions, a clubhouse and small lakes and trails. Its diversity in ownership has changed in recent years – see the post. Some residents were angry about housing vouchers and discussing ways to limit them even before the fight, a time when about 4% of households in the HOA paid rent with federal housing vouchers (the composition of which is in the post and the suit). Then, over the next several months, some residents drafted a proposed amendment to ban residents who pay rent with government subsidies and fine landlords $300 a week until those renters are gone. HUD alleges that the HOA president, Jennifer Dautrich, even got heavily involved – what she did is in the post. But that’s not all. Allegedly both the HOA board and Cody Watson, the property manager, inundated homeowners with daily automated email reminders to vote. (Responses from Dautrich and Watson? See the post.) Online voting closed in late May 2022 when there were enough votes in favor of the proposed amendment. The amendment resulted in about 600 residents facing displacement, with the racial and gender-led breakdowns being noted in the post. Some households acted fairly soon as detailed in the post. Tensions grew.
In June 2022, several residents who opposed the amendment gathered at the park to discuss the vote. A committee member in support of the amendment photographed the group, which included children, and posted the image to social media. The caption for that socmedia image is in the post. Racist posts continued to fill the HOA’s unofficial social media pages. Details about some of the more “egregious” socmedia posts are in the post. And while the socmedia pages were unofficial, many of the HOA’s board members belonged to the groups and regularly interacted.
There was almost immediate ire from affordable housing activists, residents and landlords after the amendment was approved. 53 complaints were filed with HUD! And HBO’s John Oliver dedicated a segment of his show, Last Week Tonight, to the issue. What he said about it is in the post.
One worry – for both residents of this HOA and fair housing advocates – is that other HOA might take the same or similar action. Given the statistics relative to residents of community associations (see the post), the worry is not just fanciful.
In response to this case, the Texas Legislature passed a law in 2023 prohibiting HOAs from discriminating against tenants based on their method of payment. The HOA said it would comply and backed off of the amendment. But HUD alleges in its suit that was not the truth. It alleges that the HOA board met to discuss alternative ways to get rid of voucher holders. The rule passed by the board in May 2024, and its effect, are noted in the post. This suit remains pending in federal court.
TAKEAWAY: While community associations (condo, co-op and homeowner) have much discretion as to restrictions on/for residents, one thing they cannot do according to existing law is discriminate based on race or gender. Get assistance from a community association lawyer if this issue arises in your community.
The post on Wednesday 2/5/2025 was about legal considerations for HR teams using AI in the workplace. AI is here to stay, and with it come legal challenges to ensure it is used properly and legally. What noted science fiction writer Isaac Asimov cautioned in 1988 remains equally true today: see the post. Let’s dive deeper into some legal considerations for AI use in the workplace, including screening and evaluating résumés and cover letters, identifying potential candidates through online platforms and social media, and analyzing applicants’ speech and facial expressions during interviews. And there are many more ways AI is used as listed in the post. Employers (and their HR teams) must know certain things about AI as relates to discrimination laws, other employment laws and AI-specific legislation.
1. AI Discrimination.
Wherever AI is a factor in employment decisions, there is also exposure to employment discrimination. Why? See the post. Claims are already being filed on this basis and may prove problematic for employers. First, it may be difficult to separate out where and how the AI tools impacted the decision. That might lead to a quick and easy “win” for the worker-plaintiff under federal law – see the post. Next, AI systems are often trained on historical data and therefore can unintentionally reinforce discriminatory patterns (with results as noted in the post). And the very nature of AI makes it difficult to control against such patterns. There is a third thing employers (the defendants in these cases) must be aware of – see the post. And know that this type of case is almost always brought as a class actions (meaning it’s harder for an employer to settle and to do it for a smaller payout).
2. Other Employment Laws
AI can be used to test integrity. But that might trigger legal exposure under the Employee Polygraph Protection Act (EPPA), the purpose of which is in the post). States often have parallel statutes, and two recent class actions were brought under a state statute (more details are in the post).
AI can also be used to measure productivity or even activity (keystroke tracking and more as listed in the post) to determine if an employee is “active” or “idle.” This use of AI might tempt employers to use the records generated to limit pay which then leads to other legal problems – see the post.
3. AI-Specific Laws
More and more states and municipalities are adopting laws to control AI generally and/or in employment. Employers must check all locations where it operates to see what its compliance obligations might be. Illinois has a statute (detailed in the post), as do Colorado (see our 2/2/2025 post) and New York City (as detailed in the post). The proposed statute in California was not approved in 2023 but is expected to be reintroduced in 2025 (and is discussed in the post) and legislation is pending in Vermont and Washington (and is discussed in the post).
So what are some best practices for employers to control possible liability from the use of AI in the workplace? First, check each jurisdiction where you operate to determine what is permitted, what is forbidden and what is required. Next, obtain enforceable contractual protections from AI vendors and know if there is EPLI/similar insurance and what it covers. Also do a cost-benefit analysis of using AI (as noted in the post). There are other best practices involving both external and internal issues – they are listed and described in the post.
TAKEAWAY: Introduction of Ai to your workplace is not a once and done thing. Rather, it is only the start of a constantly-evolving process that must involve your HR team and your employment lawyer.
In the post on Thursday 2/6/2025, we saw Loper-Bright in action: 2024 Title IX regulations struck down – how overturning Chevron deference is beginning to play out. On Jan. 9, 2025, a federal court in the Eastern District of Kentucky held in State of Tennessee, et. al. v. Miguel Cardona, et. al. that the U.S. Department of Education’s 2024 Final Rule (“Final Rule”) implementing Title IX is “unlawful.” This decision applies nationwide and returns Title IX to its 2020 regulations. But this isn’t the first domino to fall; other courts had issued injunctions such that the 2024 regulations had no effect in 26 states and additional individual colleges and universities across the country that were parties to the lawsuits or had plaintiff association members at the institution.
Most of you are probably not concerned with higher ed and wonder if you care about this. This author emphasizes that YOU DO CARE. This is only one of many cases (and rulings) that have been revisited after and pursuant to the rationale in the Supreme Court’s 2024 Loper Bright decision. This most recent decision was that the Final Rule suffered from several legally fatal defects including its definition of sex (as expounded on in the post) and the scope of the Final Rule’s jurisdictional application. What this means is that those institutions that had been operating pursuant to the 2024 Final Rule now must revert to a practice that is compliant with the 2020 regulations. But not all parts of the Final Rule are to be ignored – see the post. And complicating things is the fact that the U.S. Supreme Court’s 2020 Bostock decision (a reminder of which holding is in the post) does not apply to Title IX, but other federal or state statutes might provide broader protection than Title IX. DOE might well appeal this decision; the likelihood is discussed in the post.
So back to why you as a non-higher-ed employer care about this. The Final Rule was issued by a federal agency. No longer can you rely on how an agency charged with enforcement and implementation of a certain area of the law interprets that law as being upheld by a court. Instead, the court will consider the agency’s position, but it will not necessarily carry the day thanks to Loper-Bright.
TAKEAWAY: Prudent employers should keep up on their legal obligations in conjunction with their employment lawyer – and operate under any agency guidance/interpretations but be prepared to be agile and pivot if a court determines that a law is to be interpreted differently.
The post on Friday 2/7/2025 was HOA Q&A: Is it ok for treasurer not to fund reserves but to pay loan (and more)? Yep, the facts – and applicable law – matter. The first scenario involves an owner finding out that the treasurer has not funded reserves for many months, but instead has applied the funds toward an HOA loan. The Board retroactively voted to approve that action and for the Treasurer to continue to do that monthly through the end of the year. When questioned, the Treasurer said that she’d not taken reserve funds without approval because she had not placed the money into reserves in the first place. The question is whether this was and is legal. The answer is (of course), it depends.
It depends on the state where the HOA (or condominium or co-op) is located and, possibly, provisions of the association’s governing documents. The post discussed the answer under one state’s laws (which differentiate condominiums and cooperatives from homeowner associations and also look to the governing docs). But one thing that holds true regardless of the state is that if the treasurer made the decision without Board approval, the application of funds to the loan and not reserves would most likely not be proper (and might open that person to a claim of breach of duty or other things).
NOTE: there are also other Q&A in the post
TAKEAWAY: Officers cannot (and should not) act without Board or statutory authority. Checks and balances should be in place to ensure actions are taken in compliance with that authority. A community association lawyer can be of great assistance.
Finally, in the post yesterday 2/8/2025, we saw that Publix allegedly fired a pregnant employee to avoid giving her leave for childbirth – PWFA, FMLA & ADA reminder for employers. The lawsuit was filed Dec. 31st.The complaint alleges that Wyatt worked as an inventory control analyst. During her pregnancy in 2023, she experienced severe morning sickness and pregnancy-related hypertension. Early on, she was called back to the store from teleworking and eventually was required to report to work at 5 a.m., when her morning sickness was at its worst. After the Pregnant Workers Fairness Act took effect in June 2023, Publix granted her request to work from home, with breaks as needed. But shortly before her due date, Publix fired her (for the reason noted in the post, along with how that was accomplished). This was all different than how similarly situated workers who weren’t pregnant were treated. The suit was filed for violations of the PWFA, ADA Title VII, FMLA, and state law. Specific allegations of violation are noted in the post. Publix’s comment? See the post.
This suit is a good reminder to employers that preventing pregnancy discrimination often goes beyond just ensuring that pregnant employees are provided with reasonable accommodation – while keeping in mind that the PWFA and ADA put the accommodation requirement front and center.
What employers must do under the PWFA, absent under hardship, is detailed in the post. The accommodation obligation even applies to periodic limitations associated with pregnancy like migraines or morning sickness. Recent suits filed by the EEOC offer examples. In one case the EEOC sued an employer for allegedly denying a pregnant employee’s request to transfer to a role that didn’t require her to lie on her stomach. In another case, an employer allegedly refused to let an employee sit, take breaks or work part time as her doctor required for the final trimester of her high-risk pregnancy. In the third case, the employer agreed to pay $100,000 to settle the allegations (noted in the post).
But don’t forget about the ADA. Although pregnancy is not a disability, a pregnant employee may have a related condition that qualifies as a disability under the ADA and requires accommodation. And then there’s the FMLA – what it provides relevant to pregnancy is in the post.
Title VII comes in through the Pregnancy Discrimination Act (PDA) which prohibits employers from treating women affected by pregnancy less favorably than other employees who are similar in their ability or inability to work. There is more to Title VII as relates to pregnancy – see the post.
Circling back around to the suit in the post, Wyatt alleged that her immediate supervisor at Publix did not oppose her accommodations, but his boss was the problem. See the post for what that person said/did. Even after Wyatt was allowed to work remotely prior to her termination, the supervisor’s boss was a (ok, the) problem – again, see the post.
TAKEAWAY: Know what rights pregnant employees have and what obligations you have; get an employment lawyer involved if there are questions or the matter escalates.
York, Pennsylvania 17403