Avoiding email & IM legal nightmares; employee suit for adverse drug test result; $10K annual HOA fee; measures to keep smoke inside condo unit; and more in Our Social Media Posts This Week, Jul. 30 – Aug. 5, 2023.

Below is a review of the posts (on Facebook, LinkedIn, and Twitter [now X]) from the past week. You can check out the full posts by clicking on the links.

how to avoid legal nightmares in emails and instant messages

The post on Sunday 7/30/2023 told us how to avoid legal night-mares in emails and instant messages. Have you ever heard something like: “Paul, don’t worry. As long as you didn’t reference his age in that email or refer to him as a dinosaur or anything similar, we’ll be fine. … Wait, you didn’t commit that to an email, did you?” (Gulp!) Might as well have had it published in the New York Times … Now it’s too late and your company has to dig itself out of a legal hole. So how might that work if (when?) the employee brings suit against the company? See the post. So let’s look at a few key concepts to understand when attempting to avoid online communication nightmares such as this.

First, know that emails (and IMs and similar) WILL be used as evidence. What does one practitioner say about it? See the post. We all know that managers typically write hundreds of emails each day so that email has become an often-casual means of communicating quick thoughts and ideas. The same can be said for instant messages and other forms of electronic chatting. But it is that casualness that is dangerous. Why? See the post. So what is the best way to proceed? Yep, see the post.  

Next, do not delete emails (or any electronic) communication. There are several issues that arise when you do. First, the email or other electronic communication often can be recovered after it’s deleted. An example is in the post. And even worse is that in litigation, the deletion could be considered spoliation, the consequences for which are briefly discussed in the post.   

Several other keys to understanding and trying to manage risk related to electronic communications are also in the post – including examples of what not to do (but what TO DO instead). And finally, but perhaps this should be at the top of the list, under-stand how to use the attorney-client privilege effectively. Tips as to that are in the post.

TAKEAWAY: Electronic communications are probably a must in today’s work-place, but knowing how to properly use that medium – and respond to any legal missteps – is so important.

can an employee sue their employer after an unwelcome (adverse) drug test result?

The post on Monday 7/31/2023 asked: can an employee sue their employer after an unwelcome (adverse) drug test result? It may depend on state law. One state supreme court just said that a third party hired by an employer to collect and test an employee’s biological samples for drugs does not owe the employee a common-law duty to perform services with reasonable care. Wow, just think about that. Turnaround Welding Services employed Mendez as an at-will pipefitter for over 25 years. He was assigned to the Valero Ardmore Refinery and ordered to provide hair and urine samples for drug and alcohol screenings (based on Valero’s policy for on-site workers). The samples were collected by Safety Council and delivered to Psychemedics Corporation for lab testing. Psychemedics reported that the hair sample tested positive for cocaine and a cocaine metabolite. Mendez denied ever using cocaine. He gave a second sample to DISA Global Solutions, another third-party collection entity. DISA sent the sample to Psychemedics for testing. The second and third samples had negative results for cocaine. DISA approved Mendez to return to work after he completed a substance-abuse course, but Turnaround refused to reassign him to any jobsite, including the Valero facility. Mendez collected unemployment benefits and eventually found a job with another employer. Unsurprisingly, he filed suit against Turnaround in federal court but settled those claims. Mendez then sued Safety Council and Psychemedics – the basis of that suit is in the post. The trial court ruled in favor of Safety Council and Psychemedics (on the basis noted in the post). The court of appeals reversed. Its finding/decision is also set forth in the post. But then the state Supreme Court reversed, again ruling in favor of Safety Council and Psyche-medics the third parties collecting and testing samples. Mendez’ at-will status came into the decision – see the post. The state Supreme Court considered the factors in Greater Houston Transportation Co. v. Phillips (1990) – what it analyzed is in the post. Safety Council and Psychemedics had argued that the importance of drug testing and the burden that a new legal duty would place on them far outweighed the risk of harm to individual employees, along with the possible repercussions that imposing a new duty might lead to (as listed in the post). In the end the state Supreme Court concluded that, based on balancing the Phillips factors, it should not recognize a new common-law duty for third-party entities collecting or processing samples from employees.

TAKEAWAY: know applicable state law on what risk(s) an employer bears based on drug tests it requires – consult an employment lawyer.

$10,000 annual HOA fee for a home!

        The post on Tuesday 8/1/2023 talked of the $10,000 annual HOA fee for a home. The $7M estate located in Rochester, Michigan, and is like nothing you have ever seen before. Just gawk at the photos in the post. The house sits on just over four acres, is 13,186 sf, and boasts sweeping staircases opening to a two-story library, monster wine closet, huge dual closets, golf simulator, gym, sauna, huge bar, hot tub, swimming pool, multiple decks, and breathtaking atrium. And there’s more – see the post. The author of the post thought their $65-a-month HOA (homeowner association) fee was a lot. But the $10,000 annual HOA fee with this house is over $830/mo. Makes one wonder what the owner gets for that $10K/year.

TAKEAWAY: Owners in all community associations must pay dues/assessments to fund the services and amenities provided by the association – which vary tremen-dously.

eli lilly & co. to pay $2.4M to settle eeoc suit alleging bias against older applicants

The post on Wednesday 8/2/2023 told us Eli Lilly & Co. to pay $2.4M to settle EEOC suit alleging bias against older applicants. This is being done via consent decree. So what happened? According to the complaint, in 2017, Lilly’s senior vice president of HR and diversity allegedly announced that its work-force consisted primarily of older workers and the new goal was to have 40% of new hires be “early career” candidates to add more millennials. And what did Lilly do after that? See the post. So the EEOC sued Lilly for violating the Age Discrimination in Employment Act (ADEA) which prohibits discrimination against applicants age 40 and older. Lilly denied the allegations. Under the consent decree, the $2.4 million will be put in an interest-bearing fund for candidates who were 40 or older when they were denied jobs as primary care sales representatives in Lilly’s diabetes unit between 2017 and 2021. And there is also non-monetary relief during the 30-month decree – see the post. It is laudable that businesses want to employ a wide range of people, but favoring younger candidates over older candidates because of their age generally violates the ADEA and may subject the businesses to suit.

There are plenty of examples to look at. For one, in suit filed in early June, the EEOC alleged that the VP of electrical contractor Hatzel & Buehler’s New Jersey branch asked a recruiting company to seek out younger project managers and estimator candidates for jobs at the branch. What the VP allegedly told the recruiter (that got the company in legal hot water) is in the post. Another suit was resolved by settlement in May; the Communication Workers of America union and two union members alleged that Target posted job ads on a social media platform directed toward younger workers within certain age ranges. They filed charges with the EEOC, claiming Target’s actions violated the ADEA and similar state laws. What will Target do as part of the settlement? See the post.

And don’t forget that the ADEA also prohibits age discrimination in promotions and job assignments, so managers may want to be careful not to let age bias influence these decisions. But one example is that in February a 53-year-old executive sales represen-tative sued Lilly for allegedly rejecting her for a district sales manager job in favor of a less-qualified and much less experienced 27-year-old. The status of the suit is noted in the post.

TAKEAWAY: Remember that both applicants and employees are protected under most employment laws – consult with an employment lawyer before taking adverse action against someone in either group.

four things you may not know about … the family and medical leave act but should

In the post on Thursday 8/3/2023 we learned four things you may not know about … the Family and Medical Leave Act (FMLA) but should. Recall that with limited exception the FMLA applies to employers with 50 or more employees during 20 or more calendar weeks in the current or preceding year. It provides eligible employees with up to 12 weeks (or, in limited instances involving care of a military servicemember, 26 weeks) of unpaid, job-protected leave for the reasons listed in the post. Covered employers have very specific obligations relative to determining employee eligibility and more (as noted in the post). The FMLA has regulations issued by the U.S. Department of Labor (“DOL” ) which enforces the FMLA. With that background, what are 4 things to be aware of?  

First, employers must know how to determine FMLA eligibility for remote employees. That takes a review of the applicable regulations. The general eligibility criteria are listed in the post; it is the third criterion that frequently trips up employers when considering whether a remote employee is eligible for FMLA leave. The applicable regulation is set forth in the post – pay attention to the bold language. It means that where the employee actually performs the work may not matter.

The next thing to look at is delaying or broadening FMLA leave designation. An example and some questions that might arise are in the post. In a 2019 opinion letter, DOL stated that an employer may not delay the designation of FMLA-qualifying leave, even where such delay is at the employee’s own request. On what DOL based that opinion is in the post. That same opinion letter also states that employers may not designate more than 12 (or 26) weeks of leave as FMLA-protected. 

Employers also must keep in mind that the FMLA only covers care of specific family members (usually those listed in the post). Further, it is important for employers to know how to factor in holidays during FMLA leave. The post contains specifics on that (as did our post of Tues. 7/25/2023). Finally, it is imperative that employers properly calculate intermittent and reduced-schedule FMLA leave. Again, detail on that is in the post.

TAKEAWAY: Know the obligations and rights (yes, rights) that employers have under the FMLA – and consult an employment lawyer to be sure.

condo association considers measures to keep smoke contained within unit

The post on Friday 8/4/2023 told us a condo association considers measures to keep smoke contained within units. We all know how smoke travels when people smoke outdoors – on their porch, patio or deck. But what about when they smoke in their unit and it travels within the duct-work? At least one association has come up with some possible ways to block that smoke – see the post. And what about the ultimate alternative: non-smoking? The post also plays out that option and how grandfathering might work.

TAKEAWAY: Know what applicable law – and the Governing Documents – allow or prohibit before making new rules/regulations. Talk to a community association lawyer.

elevation labs sued by eeoc for retaliation

Finally, in the post yesterday 8/5/2023, we learned that Elevation Labs was sued by EEOC for retaliation. The facts are so egregious … Elevation Labs, LLC was formerly known as Northwest Cosmetics Labs. The EEOC has alleged that it violated federal law by retaliating against an employee for raising allegations of race discrim­ination. According to the EEOC’s lawsuit, when Rachel Robertson Johnson started working as a cosmetic chemist in 2014, she was one of the company’s few Black employees. The response she received when she reported racially insensitive remarks and unfair treatment from certain coworkers to HR in 2016 is noted in the post. After she raised additional claims about discriminatory treatment to HR in February 2019, the company again responded – see the post. In July 2019, after learning that she discussed the organization’s lack of diversity and inclusiveness at a company-sponsored diversity presentation with a guest speaker who happened to be the CEO’s brother, the CEO warned they would “part ways” if Robert-son Johnson made any further discrimination allegations. Other managers also reiterated the reasons she was not being promoted – their comments are in the post. The EEOC found that the various actions (reiterated in the post) forced Robertson Johnson to quit her job in September 2019, a violation of Title VII. The EEOC filed suit when conciliation failed. What the EEOC seeks by way of remedy is in the post.

TAKEAWAY: Do not take adverse action against employees who make charges of discrimination or harassment – investigate and take appropriate action.

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