Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
In the post on Sunday 7/17/2022 we were reminded that asking employees about salary expectations could lead to discrimination claims. Some states have laws prohibiting an employer from asking applicants about their current salaries or salary history. But that may or may not prohibit discussion of needs or expecta-tions for an advertised position. So how might that play out and be deemed discriminatory? See the post. One company recently put in place a policy with starting salaries to be in published ranges to avoid disparate impacts based on gender – see more on that in the post.
TAKEAWAY: There are so many land mines an employer can step on in the employment process; know where they are by keeping an employment lawyer at your side (and having a list of what questions to ask and not to ask).
The post on Monday 7/18/2022 was about what Roe’s overturning may mean for the LGBTQ+ community (and yes, there are potentially broad implications). SCOTUS may have ruled only on abortion, but the fear is there that more action is coming on rights based on the 14th Amendment. The Court’s decision in Bostock, which said that sex discrimination under Title VII includes discrimination on the basis of sexual orientation or transgender status, came in 2020. But in 2022, in the opinion in Dobbs, Justice Clarence Thomas said, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell.” Thomas dissented in the 5-4 Obergefell decision in 2015; what right that clarified is noted in the post. And what other important things flow from the Obergefell decision? See the post.
TAKEAWAY: What seemed like guaranteed rights to US citizens only a few months ago now are not so – one has fallen and others are in the crosshairs.
The post on Tuesday 7/19/2022 told us that Google allows employees to relocate to states where abortion is legal. Now that the Supreme Court has overturned Roe v. Wade and abortion is in the hands of the states, with many having trigger laws that are now effective or being litigated, employers must decide what if any travel they will cover for employees seeking abortion-related services. Almost immediately after the Dobbs decision came down, Google told its US workforce that they can relocate to another state without explana-tion. What its memo said is in the post. Other large companies have also said they will cover travel costs for employees who need an abortion; they are listed in the post (and not all would be expected to have a fully-remote workforce).
TAKEAWAY: Employers must know what if any state laws now apply to abortion-related services and whether or not current insurance was or can cover travel costs to states where such services remain legal. Consult an employment lawyer when making these decisions.
The post on Wednesday 7/20/2022 contained 19 condo horror stories (really tips) for anyone thinking to buy in a condominium or homeowners’ association or cooperative. Many of the tips that apply to every association and relate to reserves are #2 (“… The reserve fund is critical, If the … fees seem too good to be true they likely are. Sometimes an older building with a good reserve fund is better than new ….”), #4 (“You’re at the mercy of the … board in terms of what you are paying for fees, what services they provide, how good they are at their job. And yes, you’re responsible for repairs and such, but … you can be hit with surprise special assessments … that aren’t covered by reserves and which night not even affect/benefit your unit”), #6 (“Ask for the reserve fund study. If it’s low OR they don’t even have a proper third-party study, you can bet on a future cash call for major repairs, plus it’s a sign of mismanagement. People complain about fees, but that’s how you keep a fund healthy ….”), #11 (see the post), #15 (yes, see the post). Another deals with funding operations – see the quote above #12. The others are good to look at too.
TAKEAWAY: Life in a planned community is subject to the Declaration (covenants and restrictions), Bylaws and Rules/Regulations, so know what they are before you buy. Consult a community association lawyer with any questions.
In the post on Thursday 7/21/2022 we saw that a lack of pre-inspection leaves condo board exposed to major risks. This really applies to boards of condominium or homeowners’ associations or cooperatives when looking to obtain the appropriate new or renewal insurance coverage. The post actually starts with a true-life example. An insurance broker took over a condo association; when it came time for a renewal application, the broker noted that the association maintains a beach. The carrier then said it was not aware of that and could not renew coverage. And there was more of which the association has not made the carrier aware and was therefore not covered (leaving possible great risk for the association). There was also an exclusion in the GL policy that was not good given what the association did – see the post. The lesson to be learned is to inspect the property that is to be subject to the insurance policy and make sure everything is listed that is to be covered. One common and big oversight is noted in the post and is (hopefully) easy to rectify.
TAKEAWAY: Make sure your association has the coverage it needs – have both the insurance agent and a community association lawyer review the policy.
The post on Friday 7/22/2022 told us that at Microsoft’s back to office “normal” may not happen this year; prediction for many employers? Many employers are in the process of bringing employees back to the office. Microsoft thought it would be too. On April 4th Microsoft began requiring work to be in person at least 50% of the time unless the employee has permission from their manager. We are talking about a company that had about 57,000 employees in 2021. Microsoft is watching its numbers; its current predictions for reaching a post-pandemic “equilibrium” is in the post. And what is one big factor for Microsoft that literally every other employer (regardless of size) must consider too? Yes, also in the post. Employers must also be aware that their idea of how productive remote employees have been may differ from that of the employees – something that will lead to many conversations if and when a return to the office is required for those employees. Another factor that Microsoft may be thinking about, and other employees should take into consideration? See the post. And that is despite detailed research data on productivity that Microsoft gave its employees. (and for which a link is in the post). The big key: flexibility. A few things that matter and do not matter are noted in the post – and one or both will be familiar to most employers regardless of size.
TAKEAWAY: Remote work does work in many situations and there may be no going back – literally and figuratively. Employers must tread carefully with how and where employees fulfill their duties going forward.
Finally, in the post yesterday 7/23/2022, we learned the key things employers must know about HIPAA. Let’s start with the fact that acronym is not HIPPA, like the animal hippo. It is HIPAA which stands for Health Insurance Porta-bility and Accountability Act. There is a lot of confusion about to whom HIPAA applies and what it actually means. Across industries all employers are subject to some regulations on handling employee medical information, whether a doctor’s note for sick leave, health paperwork related to employee benefits, or verification of an employee’s Covid-19 vaccination status or others. What HIPAA is and its goals are in the post. HIPAA includes five rules: the Privacy Rule, the Transactions and Code Sets Rule, the Security Rule, the Unique Identifiers Rule, and the Enforcement Rule. The Privacy Rule is what comes to mind for most people when HIPAA is discussed. The HIPAA Privacy Rule establishes national standards to protect individuals’ medical records and other protected health information (PHI). The HIPAA Security Rule is also commonly referenced; what it does is also noted in the post. HIPAA does NOT apply to just anyone using an employee’s health information. Rather, it applies to healthcare service providers, health plans, and business associ-ates (by the Rules) as noted in the post. Surprisingly to some, HIPAA does not generally apply to employers or protect employment records, even if the employer collects and stores health-relation personal information. The post has a caution when the employer is a healthcare organization or insurance provider. So even though employers may not generally be subject to HIPAA, they still have some legal responsibilities relative to storing employee medical information, including under the ADA (as detailed in the post). How that applies now relative to COVID vaccination records and more, along with examples of employee medical information that should be stored separately from general employment records, are in the post. Who should have access to those records? Only employees with a legitimate business use such as those listed in the post. When and under what circumstances employers can request health information is dealt with in the post along with the process(es) to be followed. And for those employers who do have employee health information (which is pretty much every employer), how do they dispose of that and other employment records? Make sure to have a policy in place and follow it. Make sure that the policy conforms to COBRA, OSHA, FMLA and other laws’ retention requirements; check applicable state laws too.
TAKEAWAY: HIPAA covers a myriad of things that come up throughout the employment relationship; employers should know what portion is applicable when and what they need to do. Get advice from an employment lawyer when needed.
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