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 2/16/2025 told us Supreme Court hands big win to employers defending FLSA claims – reminder / follow-up to our post of Tues. 2/11/2025. In E.M.D. Sales, Inc. v. Carrera, SCOTUS held that employers must not meet a heightened standard of proof when defending claims under the Fair Labor Standards Act (“FLSA”).
In Carrera the Court was asked to address the standard of proof employers must meet to demonstrate that a plaintiff/employee is exempt from the FLSA. The plaintiff/employees in Carrera alleged that they were denied overtime wages under the FLSA. The defendant/employer, E.M.D., argued that the employees fell within the FLSA’s “outside sales” exemption and were therefore not entitled to overtime wages. The district (federal trial) court applied a heightened “clear and convincing” evidence standard to E.M.D.’s defense and ultimately found in the employees’ favor. The question on appeal was which standard applies – see the post for the 2 options.
The Supreme Court unanimously held that the (lower) preponderance of the evidence standard should apply. The Court noted that generally civil cases only require a higher burden of proof in three circumstances (which are listed in the post). The Court then found that none of those circumstances applied to FLSA actions. Justice Kavanaugh specifically discussed one of the three circumstances and why it did not apply – see the post.
The Court also found that the standard of proof in other, employment-related civil actions is relevant. What the Carrera plaintiffs argued, and how Justice Kavanaugh countered that argument, is in the post.
The Court ultimately concluded that the default preponderance standard governs when an employer seeks to prove that an employee is exempt under the FLSA, thus reversing and remanding the case.
TAKEAWAY: Employers need only show by a preponderance that an employee is exempt from overtime pay under the FLSA – know the law.
The post on Monday 2/17/2025 noted that the US Dept. of Labor issues opinion letter on applicability of FMLA substitution rule when employee on leave is receiving PFML benefits. The Opinion Letter issued in mid-January 2025 deals with applicability of the Family and Medical Leave Act (FMLA) substitution rule when an employee on FMLA leave is receiving state or local paid family and medical leave benefits (PFML).
You know what the FMLA provides (if not, see the post). But FMLA leave is unpaid. The FMLA substitution rule addresses how and when employers can mandate, or employees can choose, to use employer-provided accrued paid leave (such as vacation, PTO, or sick leave) during an otherwise unpaid FMLA leave (such that the pay runs concurrently with the unpaid leave). The FMLA regulations provide that if an employee is receiving pay through short-term disability (STD) or workers’ compensation (WC) benefits, the substitution rule does not apply because the leave is not unpaid STD or WC. What happens if the STD or WC benefits only afford partial pay is discussed in the post.
Even though the FMLA regulations only specifically mention STD and WC as sources of pay that preclude applicability of the substitution rule, 14 states and the District of Columbia have passed PFML programs that provide partial income replacement for employees on leave for covered family and/or medical absences. What those programs cover is noted in the post. The DOL’s Opinion Letter is meant to address the question of whether an employee’s receipt of PFML benefits under these programs should be treated the same as the receipt of STD or WC benefits during FMLA leave.
The Opinion Letter confirms that when an employee on FMLA leave is receiving PFML benefits, the FMLA substitution rule does not apply because the employee is not on unpaid FMLA leave. What happens next (re treatment of the PFML benefits) is in the post.
As more states enact PFML programs, the DOL Opinion Letter will help employers in those states navigate the complex issues that arise in determining how employer-provided accrued paid leave integrates with PFML benefits. Employees and employers do not always see eye-to-eye on topping up benefits. The Opinion Letter gives employers the ability to decide whether to allow employees on FMLA leave to use their accruals to top up PFML benefits. But employers must still know what applicable state law provides (for the reason noted in the post).
TAKEAWAY: As always, employers must know which law applies and how to implement it relative to employee benefits and pay. Get assistance from an employment lawyer if unsure.
The post on Tuesday 2/18/2025 noted that DOJ demands HOA repay $650k COVID-era loan. That’s huge! In April 2020, when COVID-19 was new and raging, the Lake Monticello Owners Association (LMOA) was awarded a $646,843 loan under the Paycheck Protection Program (PPP), one of the government programs designed to shore up the economy as the pandemic began shutting down businesses across the country. Now the government wants that money back.
LMOA Board Chair Larry Henson said at a recent meeting that they had received a letter from the Department of Justice in mid-December notifying them that, as a 501(c)(4) homeowner’s association, it was ineligible for PPP loan forgiveness. Was this expected? See the post. The purpose of PPP loans is also described in the post.
The SBA forgave the LMOA’s loan in late May 2021. But PPP and other COVID-era funding programs were hastily implemented and poorly managed, such that the federal government has spent the last several years trying to untangle the mess. And over the last two years, many HOAs nationwide have faced demands from DOJ to return PPP funds – or face legal charges under the False Claims Act (which can have the ramifications noted in the post).
Mike Feazel of Lake Monticello News talked about how the $646,843 DOJ wants repaid compares to LMOA’s budgeted revenue for 2025 (and the per-unit breakdown) – see the post. Where LMOA is with this now is also noted in the post.
TAKEAWAY: This is a tough situation where the HOA may have done nothing wrong but is now suffering a setback anyway.
The post on Wednesday 2/19/2025 alerted us that a Supreme Court decision on reverse discrimination may be imminent. Before the Court is the Title VII case of Ames v. Ohio Department of Youth Services on appeal from the U.S. Court of Appeals for the Sixth Circuit. What that court held, and how that typically plays out, is described in the post.
If the Supreme Court in Ames rules in favor of the employee, then a white, straight, Christian employee could file suit under Title VII for race, sexual orientation, and religious discrimination and survive a motion to dismiss or motion for summary judgment. This would be a significant change from the current standard (which is noted in the post). Several briefs filed with the Court argue that “lower courts are littered with judge-made rules that have no basis in Title VII” and that the “rule contradicts reality.”
Remember that Chevron deference to agency guidance and rulings, and continuing reliance on long-ago decided Supreme Court cases, is no more. Recent decisions by the Court interpreting statutes shows that there is a possibility that the Court will side with the employee in Ames, meaning that reverse discrimination plaintiffs need not show “background circumstances.” And what else might happen if the plaintiff prevails in Ames? See the post. So based on the possibility that Ames might be decided in favor of the employee plaintiff, employers should take a few steps, including ensuring that their policies are up-to-date and the other things listed in the post.
TAKEAWAY: Employers must not only know the law as it applies to them, but what they are required to show to defend against a claim brought against them. Assistance from an employment lawyer is a must.
In the post on Thursday 2/20/2025, we learned that TKO Construction Services to pay $300K to settle EEOC sex, race and age discrimination suit. TKO is a staffing company that provides temporary employees for commercial, residential, restoration, heavy industrial and energy construction companies. It has entered into a settlement with the EEOC for monetary and non-monetary relief.
The EEOC’s suit alleged that an employee who worked for TKO as a recruiter was told by TKO employees that the company did not hire women for construction jobs, Black workers in certain areas, or individuals who were over 40 years old, because some clients supposedly did not want them. The recruiter thereafter spoke with TKO’s president – what that person said is noted in the post. The recruiter then felt forced to resign because she was expected to engage in unlawful conduct as part of her job. The lawsuit also alleged that TKO failed to recruit, hire, assign or refer a class of aggrieved individuals for employment because of their sex (female), race (Black) and age (40 years or older). And there were more allegations too – see the post.
The EEOC charged that all of TKO’s conduct violates Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 (ADEA) (relevant details about each of those statutes are in the post). The EEOC filed suit in federal court in Minnesota when conciliation failed.
Now the parties have entered into a consent decree settling the suit. TKO will pay $300,000 to the employee and a class of aggrieved individuals who were discriminated against because they are women, Black or age 40 or older. But TKO also agreed to non-monetary relief which is detailed in the post and keeps it under EEOC supervision for a while. A regional attorney for the EEOC made a statement that is in the post. Likewise, a statement from the EEOC’s District Office is also in the post.
TAKEAWAY: Employers cannot discriminate on the basis of any protected characteristic; doing so can be oh so costly.
The post on Friday 2/21/2025 reminded us that condo takeovers are on the rise: signs a developer is coming for you(r place) next.
You may remember the sad collapse of Champlain Towers in Surfside, Florida in 2021 (killing 98 people). Now an ultraluxury condominium developed by a Dubai-based company will replace Champlain Towers South, with units at the new complex expected to start at $15 million each. More and more developers are going to Florida and taking over condo complexes in the wake of the Champlain Towers collapse – and it may well be a sign of what’s to come for the rest of the country.
Champlain Towers South was constructed in 1981, and after it crumbled investigators found that several design and construction features were not up to code 40 years later. What they found is noted in the post. A new law was passed that requires condo buildings over 30 years old to pass a structural integrity inspection. The new law also contains a reserve element for homeowner and condo associations – see the post. While the intent behind the law may have been good, one (hopefully unintended) effect is that condominium living is more expensive. And many owners are now literally priced out of their homes.
So what are some signs that your property is in trouble or being eyed by developers? First, you might start getting a lot of unsolicited calls and postcards from real estate agents asking if you are looking to sell your condo. Is it a one-off or more community/wide? See the post. Other signs your condo might be attractive to developers include having a surface parking lot. What that is so is in the post. Developers appear especially interested in oceanfront properties on the sand (despite the wake of recent hurricanes). And in FL at least, there is something else developers also look for – see the post.
What happens when a condo is (in process of) taken over by a developer? First, they usually present owners with an above-market offer to encourage the owner to sell their unit. One example is something happening in Miami – see the post for the progression and the position in which remaining owners find themselves. That situation is still ongoing.
In most cases, whether in FL or herein PA, the developer will need at least 80% of unit owners to agree to sell in order that the developer can take over the association. But it might require unanimous sales depending on the association’s governing documents. The effect a 100% vote might have is noted in the post.
So what should an owner do if someone (you might not even know they are the developer or have plans to buy the unit and resell it to a developer!) wants to buy their unit? It might be a good thing (see the post), but there might also be some strategy involved (yep, again see the post).
TAKEAWAY: When developers come calling, and intend to take over a condominium, your first call should be to a community association lawyer.
Finally, in the post yesterday 2/22/2025, we asked: is hybrid work the best of both worlds? Weighing the pros and cons … In 2019, about 73% of survey respondents said working remotely positively affected their well-being. In 2024, the Bureau of Labor Statistics also correlated remote work with productivity. And now more and more business tools are hosted in the cloud, so remote work looks like a competent method of doing business, right? Is there a downside to remote work? Maybe.
There are pros to working from home, including less time and money involved in commuting and more as noted in the post. But there is also a huge con: people. Those real, breathing, stomping, joking, laughing, distracting people. You know that we humans are social animals and our identify in large part comes from our connections with others and how we differ from others. We don’t yet know the long-term consequences of remote work.
Some people miss the relationships they had with coworkers and have suffered mental health issues after losing those relationships (because try as you might, a remote relationship just is not the same as one that is in-person). Several studies and academic articles are starting to come out with findings about the consequences of remote work for the individuals and the companies – see the post.
Given all of that, could hybrid work be a happy medium between remote and in-office work models? Let’s take a closer look.
The phrase “work-life balance” is often used to differentiate the amount of time spent working vs. doing something else. Some examples of how it might play out are in the post. But hybrid work adds a whole new dimension to the work-life balance concept (see the post). Many employers across the employment spectrum are requiring workers to spend 1-2 days a week in the office. Is this a good compromise? Managers get to have eyes on their teams and employees still get to work from home (some). There are other benefits to employees of a hybrid model, including improved employee morale and the other things detailed in the post. Employers too benefit from a hybrid model, including that it may be better for business: with Boomers dying off and fewer people in the workforce replacing them, now is the change to downsize from the bricks and mortar space an employer has and save on overhead. Hybrid work also mimed bring in a wider talent pool and offer other benefits detailed in the post. The results of a survey conducted by Global Workplace Analytics relative to the monetary effect of remote work is in the post.
But hybrid schedules do still have some unique challenges. Most workers today are used life in the office: making morning rounds, having a team stand up, working a while, and then going home. But when there’s no office to host this, there must be adjustments made. The effects will probably include all of the items listed in the post. New solutions have arisen for some of those areas. And because people will not be together, managers must shift from not just assigning work and checking in to facilitating opportunities for team members to talk to each other. And what about on-the-job training, company culture and other areas that are affected by hybrid work? See the post for the effects and possible solutions.
TAKEAWAY: Employers should have in place, and evenly implement, policies for remote work, whether full-time or hybrid. Work with an employment lawyer to ensure that the policy is legally compliant.
York, Pennsylvania 17403