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 1/28/2024 was about how to conduct terrible employee evaluations: your 5-step plan on what not to do. Dread the annual performance review process? Probably – many employees don’t like receiving reviews and many managers don’t like conducting them. Poor evals are not good to anyone, but if you like them, keep following these five steps below. However, if you want to improve your evaluation process, there are also a few practical tips on developing an effective performance management system. Let’s jump in …
Step One: Don’t Prepare. The best way to conduct a really bad evaluation is to just wing it. Bad bad bad. To be effective there should be goal setting, ongoing monitoring, and annual feedback including what is noted in the post. Some practical tips on how to get away from this step? First, develop an annual timeline with set periods for goal setting, mid-year check-ins, and year-end evaluations. Also do the other thing noted in the post.
Step Two: Skip the Goal Setting Process. Why should you set goals when you don’t know what the coming year will bring, right? Wrong. Setting goals gives everyone – managers and employees – the same aims. And don’t just cut and paste the prior year’s goals – use them as a starting point but know what the goals are and why they are there. Goals should be relevant to the business and help the employee grow – they should be SMART (an acronym which is defined in the post). Practically speaking, how does the goal-setting process work best? Develop unique goals at the start of the planning year and then follow through as noted in the post.
Step Three: Focus on Gut Feelings and General Impressions. Well, the gut is often right, so why not follow it? Because there is no objectivity or uniformity or other complete process that way. Managers often act as described in the post. Instead, they should have objective criteria to support their assessment. The best evaluations are often two-way conversations; highlighting both successes and areas for improvement (because there should be both!). A big thing for managers to avoid is noted and examples provided in the post. As for practical tips here, the focus should be on objective results, not subjective impressions. And more as listed in the post.
The other 2 steps (things not to do), which are just as important as the first three, what to do instead of those steps, and practical tips on how to accomplish those things are all in the post.
TAKEAWAY: Use the evaluation process to help your business by helping employees continue to grow and succeed – that is a win win.
The post on Monday 1/29/2024 asked Contractor or Employee: Labor Department changes the rules again. Know the (new) law! (you can scroll through the post). So here’s the bad news for employers that rely on the gig economy: it just got harder to run a business that relies on independent contractors. That’s because the U.S. Department of Labor recently released a final rule revising its interpretation of a provision in the Fair Labor Standards Act relative to how to determine whether a worker is an independent contractor. There are now six factors to consider, including the degree of permanence of the work, how much control an employer has over someone’s work and more as in the post. The new rule takes effect on March 11th. Soe of the industries expected to be hit hardest by the new rule are listed in the post. The rule cuts changes to employee classifications made by President Trump’s administration. On the one hand, the new rule is expected to cut back on those businesses trying to improperly classify employees as contractors. One thing employers should carefully consider is whether they have employees and independent contractors working side-by-side doing the same type of work. How that might play out for the employer is in the post.
This new rule has been at the center of a political battle. Before Trump took office, there was a multifactor analysis for determining whether a worker was an independent contractor. The Trump administration created an easier test (which is described in the post). But now the new rule restores the multifactor analysis. More of the factors to be looked at are in the post. Who might be specifically benefitted by the rule change? See the post. And for those businesses who followed the more stringent test instead of relaxing it under the Trump administration? They are ahead of the (new) game. And one more thing to consider? See the post.
TAKEAWAY: DOL has and will continue to look closely at employee classification. The new rule puts another arrow in their quiver, so do it right – and get assistance from an employment lawyer.
The post on Tuesday 1/30/2024 told us Cash Depot pays $55K to settle EEOC disability discrimination suit. The EEOC’s lawsuit alleged that Cash Depot refused to accommodate a field service tech after he suffered a stroke and then was hospitalized. The EEOC also alleged that Cash Depot placed the employee on a leave of absence and guaranteed to hold his job open until a specified date, but … see the post for what happened. The EEOC filed suit on Sept. 28, 2020 in federal court after conciliation failed. In August 2021, the trial court entered summary judgment against the EEOC and dismissed the suit. The EEOC appealed and the Court of Appeals reversed and remanded the suit. And now it has settled. In addition to the $55,000 in monetary relief, the three-year consent decree includes the non-monetary relief listed in the post.
TAKEAWAY: Employers must know – and live up to – their legal duty to reasonably accommodate employees with disabilities. Getting an employment lawyer involved is a good idea.
The post on Wednesday 1/31/2024 was about owner turning tables on HOA after it threatened to sue over classic backyard staple. In this case the owner is a judge. She sued her HOA after it complained about her shed. Let’s dive deeper.
In 2014, the Association warned Carrie Fuca that it would sue if she didn’t remove the structure or make it smaller. The HOA said that Fuca just built the shed, but she said she didn’t do anything wrong. Fuca said she uses the shed, which is more than six feet high, to store her lawn mower and hide her gas cans. Why can’t she use her garage for that? See the post. What this came down to was a dispute over the phrasing of the rules surrounding temporary structures. The then-president of the Association said that no other buildings are allowed on the site of a property. But Fuca referred to an HOA rule that is noted in the post. And that made a huge difference given the facts. Not surprisingly, Fuca said she looked at the rules before the shed was built (and claimed she had permission from a judge). Because of the dispute, she filed suit against the HOA (before it could sue her). It is unclear what happened with the suit. And note that aside from the HOA’s rules, the municipality also has building requirements (noted in the post) as is common throughout the country.
TAKEAWAY: Whether acting as an owner or Board member, know what the Governing Documents actually say, not what you think they say. Community association lawyers can be helpful too.
In the post on Thursday 2/1/2024, we read about Turkish Coffee or Universal Khaki? Another condo dispute goes to court (and asked if fences make good or bad neighbors). This suit alleges the condo board has resurrected an old dispute to retaliate against the owner. Sharman Miller thought she had settled the issue about the interior color of her fence through mediation a decade earlier. Apparently not. The crux of the dispute is that the condo association wants the interior of the fence to be painted dark “Turkish Coffee” brown to match the outside of the fence. But Miller says that she’s kept the fence interior painted a light tan, known as “Universal Khaki” — more the color of a soy latte than the dark coffee color that the board wants – for 17 years. (The post shows the colors.) Miller says that instead of abiding by the result of a 2013 arbitration proceeding, this past April the condo association sent over a locksmith and a painter, along with a vice president from the association’s management company, to enter her property with the intent of painting the fence interior without her consent. So what did she do? She called the police. The others left and the fence interior remained khaki. Is the khaki color bad or an eyesore? See the post as to its environs, including the fact that at least three of Miller’s neighbors recently had a similar color scheme: coffee outside, khaki inside.
So now the fence color dispute has turned into litigation. Miller sued the condo association and its president, Andy Scontras, and asked the court to require the association to honor the mediation agreement she says she and the board entered into in 2013. And there is more relief requested in the suit – see the post. Miller says that the reason the board is doing what it is going about her fence is out of retaliation – for what is noted in the post and of course is part of her suit. The management company noted that there was long-running animosity between Miller, a prior board president, and Scontras, the current board president. The management agent also alleged that Miller’s fence color doesn’t match those of her neighbors and is therefore a rule violation (but refer back to a description of her neighbors’ fences …).
Is there something to the idea of a personal feud? Scontras declined comment. Miller said that the tensions between her and Scontras started in 2011 when she was the condo board president. She said that Scontras was not on the board then but faced many questions from the board about his plans to renovate his condo. Scontras’ lawyer wrote a letter at that time; some of the contents, which also bring up Miller’s fence colors, are in the post. And then two years later, after Miller had left the board, she was asked to repaint her fence. The resolution at that time is in the post.
And then we come back to the present, well over 10 years later and the same issue over Miller’s fence color has come back to life. In June 2021 Miller received a letter from the board about her fence color; what it said is quoted in the post. The also went beyond her fence color – see the post. There was another letter for the board in September 2021. That letter had a warning to Miller (and is also quoted in the post). The next month, the board passed a resolution broadening its power to impose fines. What (coincidental?) timing!
The saga continued. In July 2022, the board sent Miller another letter about the fence color and providing a deadline for compliance. Then in March 2023 the board escalated the threats – see the post for what it said at that time (including that it would not resolve the dispute outside of court). Its actual statement on the latter is quoted in the post. When Miller did not repaint the fence interior, the property manager showed up with a painter and locksmith on April 15 and Miller called the police. How Miller’s lawyer characterizes that day is in the post.
Miller says at the end of the day she can’t think of a valid reason besides retaliation for the board to be going after her. Why she says that is in her suit – and in the post.
TAKEAWAY: Community (condo, coo-op and homeowner) associations are charged with enforcing the rules, but must do so evenly; they also must provide certain (financial and other) information to owners upon request and pursuant to the Governing Documents and any applicable state law. A community association lawyer can be a great asset for these and other issues.
The post on Friday 2/2/2024 noted that biometric screening can result in ADA and Title VII claims. While this post was on Groundhog Day, it was not a repeat but rather deals with an evolving area of law. That is due to the increasing use of biometric technology in the workplace. By way of example, a company concerned that employees are clocking one another in and out could implement retinal scanning technology to authenticate the identity of the person making the time entry. From the legal perspective, litigation may ensue.
In 2013, the EEOC sued an employer that declined to provide a religious accommodation for an employee who claimed that the company’s hand-scanning technology could be used by the Antichrist to identify persons with the “Mark of the Beast.” More recently, employees have expressed concerns that employers could discover their medical conditions through use of biometric screenings. An examples of how that might play out is in the post. Both the ADA and GINA (if you don’t know what that is, see the post) statutorily restrict employers’ collection and use of employee medical information. And while those laws do not prohibit use of biometric screening technology, they could easily become implicated. What should employers do? See the post.
Employers should also beware of any state law that bears on biometric screening. If may be similar to the effect of the ADA and GINA or it may be different.
TAKEAWAY: Especially when it comes to new technology, employers must be careful to remain legally compliant – keep an employment lawyer on speed dial.
Finally, in the post yesterday 2/3/2024, we saw that an employer to pay $50K to settle EEOC religious discrimination lawsuit. Timing can be so important! The employer here is a hospital that is part of a large health system. It has agreed to pay $50,000 and provide other relief. Let’s look at the background.
The EEOC’s lawsuit alleges that Trinity Health violated Title VII by rescinding a job offer to an applicant who, for religious reasons, refused to receive a flu vaccine. Trinity Health’s policy at the time – which has since been rescinded – required employees to get an annual flu shot unless granted an exemption. What was the timing here? See the post. So the EEOC sued after it could not settle the matter prior to litigation.
Under the consent decree settling the suit, Trinity Health is enjoined from failing to hire applicants because of their sincerely held religious beliefs against taking the flu vaccine or denying religious exemptions from vaccination in the future, unless doing so would pose an undue hardship. And there’s more as detailed in the post. Further, as noted, the applicant will receive $11,348 in back pay along with $38,651 in non-economic damages.
TAKEAWAY: Employers must respect and accommodate sincerely held religious beliefs – and under the new standard in Groff v DeJoy that makes it harder to deny an accommodation. Again, dial up your employment lawyer.
York, Pennsylvania 17403