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 7/28/2024 noted Meta faces lawsuit after “unlawful” termination of Palestinian-American software engineer. This is not just a simple discharge case so keep reading.
Ferras Hamad, a former software engineer with Meta, accused it of bias in its handling of content related to the ongoing Israeli war on Gaza and discrimination in his dismissal. He claims Meta fired him for trying to fix bugs that suppressed Palestinian posts on its social media platforms, especially Instagram.
This did not come in a vacuum; there have been other accusations that Meta is suppressing content critical of Israeli actions in Palestinian territory. See the post for more details. Earlier, after multiple employee complaints on this issue, Meta had promised that its ‘over-enforcement’, particularly Arabic content, would be rectified. Outside entities report on that – see the post.
But Meta is not alone. Google and others in the tech industry have also come under scrutiny this year after accusations of unlawful termination based on employees’ political views. The Google situation, including their response to allegations of an unlawful termination, is detailed in the post.
Back to Meta. Hamad had been working on Meta’s machine learning since 2021; he sued for discrimination, wrongful termination, and other wrongdoing. He alleges a pattern of conduct as noted in the post. Hamad revealed that he found that a short video had been misclassified as pornographic – what it really showed is in the post.
Meta claims that Hamad’s dismissal was a result of him violating “data access policies” (which set limits on what employees can do with different types of data). But what Meta had told Hamad was the reason for his termination is in the post.
Did this all start earlier? Meta confirmed last October that they added measures on their platforms to limit “potentially unwelcome or unwanted comments” regarding the assault on Gaza. What those changes did to various user settings is described in the post (along with why Meta said it took the action and what might be the actual effect).
TAKEAWAY: Employers should not take adverse action against employees based on their political views – unless they somehow veer into an area that bears on the employment relationship. Consult an employment lawyer before wading in too deep on this.
The post on Monday 7/29/2024 was about the Muldrow divide: differing adverse action standards for different types of discrimination claims. You should know that the US Supreme Court’s decision in Muldrow v. City of St. Louis opened the door for employees to bring employment discrimination claims over transfers and other seemingly minor employment actions under Title VII. Muldrow rejected the heightened “significant disadvantage” test; the effect of that is in the post (and our prior posts on Sat. 6/1/2024, Thurs. 4/25/2024 and Mon. 3/25/2024). But Muldrow did even more – it created a split, with different adverse action standards now applicable to different federal workplace laws. That means an action might violate Title VII’s anti-discrimination provisions but be permissible under its anti-retaliation rules and the anti-discrimination provisions of other statutes (such as the ADA or ADEA). Let’s look at that more closely.
While Muldrow clarified the adverse action standard for Title VII discrimination claims, a different test applies to Title VII’s anti-retaliation provisions. In its 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court adopted a different standard for claims of discrimination under Title VII’s anti-retaliation provisions. That standard is described in the post. In Muldrow, the Court made clear that it was not overruling the Burlington Northern standard for retaliation cases. The Court also explained why it was appropriate to have different standards – see the post.
But what about cases under the ADA and ADEA? Muldrow currently applies only to Title VII claims of discrimination. That leaves in place the standards that must be met for other statutes. For example, an adverse action under the ADEA and ADA has generally been defined as one resulting in a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or in a decrease in salary or benefits. See examples in the post. The new Muldrow standard of “some harm” is clearly a different standard. The same employment action – such as a job transfer or reassignment to a different shift or working group — might be considered a violation of Title VII (as noted in the post), but not meet the higher standard required by the ADEA or ADA or Title VII’s anti-retaliation provisions.
Local government attorneys and human resources directors will need to be attuned to the different standards for showing that a harm has occurred that violates Title VII’s anti-discrimination provisions, on the one hand, and the ADEA’s and ADA’s (and Title VII’s anti-retaliation provisions), on the other.
TAKEAWAY: There are now different standards as relates to adverse action claims under Title VII’s anti-discrimination provisions and that of other laws (including the ADEA and ADA) and Title VII’s anti-retaliation provisions. Contact an employment lawyer.
The post on Tuesday 7/30/2024 noted companies to pay $470K over sexual abuse, harassment of female farmworkers in civil rights lawsuit. Greenridge Farms and Baker Produce have agreed to pay to resolve a civil rights lawsuit by an Attorney General over multiple allegations of sexual assault and sexual harassment of female farmworkers by one of the companies’ supervisors and retaliation when they spoke out. The settlement monies will go to the four women who reported the assaults, harassment and retaliation. One had even more issues – see the post.
Greenridge and Baker are two large farming operations. The Attorney General alleged violations of state law and Title VII. The conduct allegedly spanned several years – see the post. It stopped when the supervisor was fired earlier this year. Why the companies are being held liable for his conduct is in the post. One of the women gave a statement as to why she came forward – that is in the post.
The Attorney General’s office learned of complaints about Greenridge Farming and Baker Produce in June 2023. Four women who worked at the companies ultimately came forward with allegations (including the nasty things mentioned in the post). Those who reported the behavior, threatened to report it, or denied the supervisor’s advances faced workplace retaliation (which included those things listed in the post).
One worker reported multiple rapes and assaults over multiple years, including taking her to isolated locations like fields or orchards to rape her. What the assaults included is noted in the post. After years of this, she filed a complaint with the employer. And what happened to the supervisor and to her after that? See the post. She also notified the local Sheriff’s Office of some potential criminal behavior – see the post. Even now charges have not yet been filed.
A second woman was introduced to the supervisor through a friend that worked for Greenridge because she was trying to get a job. After the introduction, the supervisor began sexually harassing her over the phone. She repeatedly denied the advances but endured the phone calls because she really wanted to be hired by Greenridge. It didn’t end with calls though. The supervisor escalated things when this second woman visited Greenridge to see a friend and subsequently at her home – the gory details are in the post. Then the supervisor had the woman come to the worksite to learn how to do the job. She did because she thought it would lead to a job. While she was onsite, she had to endure more illegal action by the supervisor – see the post. She was later hired by Baker Produce; the supervisor continued to call her including asking for various things as noted in the post (he was either gutsy or dumb, right?!). The woman finally filed a sexual harassment complaint with the EEOC. That was not the end of her story – see the post.
As to the third woman, she alleges that the supervisor repeatedly asked her on dates and sought his own sick form of quid pro quo action (see the post). She denied the advances and tried to work out a way around the quid pro quo; after his refusal (and continued demands for something else as detailed in the post),she threatened to file a complaint against him with company supervisors. He stopped some behaviors (see the post) but started giving her bad work performance reviews and frequently reassigned her to different work areas. What this woman told investigators about the supervisor and his “notoriety” is in the post.
The fourth woman described multiple unwanted advances from the supervisor during every interaction, including the things listed in the post (quid pro quo rears its head yet again). But there was more – see the post (and go “yuck”). He also tried some things in the workplace but did not succeed (yep, in the post). And then there was his bragging … as detailed in the post.
As part of the settlement, the companies will do more than pay the $470,000 – there is also the non-monetary relief they must provide as detailed in the post.
TAKEAWAY: Employers are responsible for the actions of their managers and supervisors – train them and train them well, then make sure do as you say.
The post on Wednesday 7/31/2024 explained that dog boarding business likely violates (condo/HOA) association rules – we asked what would or should be done. The fact pattern is that a unit owner in a condominium association might be running a dog boarding business from their residential unit. People drive in and drop off a dog and come back days later to pick up the dog(s). The unit owner has also been seen walking multiple dogs. The owner who has seen all of this mentioned it to a board member who agreed that this was possibly in violation of the declaration or bylaws but other board members didn’t’ seem to care. The question was what obligation a board member had to ensure compliance with the Governing Documents
The answer is pretty straight-forward. Assuming thedog boarding business is a violation (see the post), then the board’s fiduciary duties kick in. What does that mean? See the post. And what if the board knows about the situation and does not act and something happens? Again, see the post.
TAKEAWAY: The Declaration, Bylaws and Rules/Regulations in condominium and homeowner associations and cooperatives are meant to be enforced; the foremost mechanism for enforcement is through the Board. Geet a community association lawyer involved to assist with enforcement and compliance.
In the post on Thursday 8/1/2024 we saw a plaintiff alleges negligence by condominium association after Airbnb stay leads to injury. While this is in FL, it could happen anywhere. Last month Christopher Barling filed a complaint against Dockside Condominium Association Clearwater Beach, Inc., alleging negligence that led to his injury while staying at one of their properties through an Airbnb arrangement this past January. He claims that while walking outside the building, he encountered a set of unmarked descending steps which he mistook for a leveled floor; what then happened is noted in the post.
The suit has several allegations. First Barling accuses the association of failing to provide a safe environment for business invitees and not maintaining the premises in a safe condition. The specific facts he notes are in the post. He also alleges that Dockside either employed incompetent staff or failed to supervise them properly, resulting in unsafe conditions on the property. Again, more specifics are in the post (along with the injuries Barling says he has sustained). Barling seeks monetary damages plus attorney’s fees and costs.
TAKEAWAY: Common elements are areas of potential liability for community associations – keep up with required maintenance obligations and have appropriate insurance in place.
The post on Friday 8/2/2024 was about remote work productivity: the verdict is in and it’s surprising. The question is whether working from home hinders productivity.
According to data gathered in August 2023, 12.2% of US employees work remotely full-time, while 4.7 million employees work from home at least some of the time (hybrid work). And what is the future outlook? See the post. Employees give remote work a thumbs-up, but managers and C-suite executives are much less enthusiastic – and really want a return to the office. Some of the reasons they cite as supporting their view are in the post. So let’s look at what the research and employees have to say.
The research has been conflicting. In particular, a study from Stanford (which has a link in the post) finds that fully remote work leads to a 10% loss in productivity. It claims the loss stems from challenges with communication between remote teams and managers and 3 other things listed in the post. But the same study also found that hybrid schedules (both in-office and remote work), had no impact on productivity, neither negative nor positive.
Another study from the IZA Institute of Labor Economics analyzed data from 10,000+ professionals working at a large Asian IT Services company before and after the COVID-19 pandemic. That research discovered a whopping 20% drop in productivity attributed to the transition to remote work. Three reasons for that loss are listed in the post. Note, however, that this study took place during the initial transition to remote work during the pandemic at this company, so things might have been a bit skewed.
And then there are other studies that claim remote work actually boosts productivity. One famous example tracked over 60,000 Microsoft workers during the first half of 2020 and discovered a 10% boost in weekly working hours. Another study claims that remote workers are more productive because they have no daily commute. And how did the average time saved translate to time worked? See the post.
Microsoft also provided some insightful research on the subject in 2022 including that 85% of leaders claim hybrid work has made it challenging to have confidence in the productivity of their employees and 2 other key findings listed in the post.
Let’s go back to what CEOs want; it’s not employees working from home. A study by KPMG found that 64% of CEOs believe everyone will return to traditional office settings by 2026. And was there an effect on bonuses, raises, promotions and favorable assignments that could be traced to in-person versus remote work? See the post. Some bases for that are also in the post.
Despite what the execs want, employees aren’t exactly eager to throw away their newly found freedom. Many enjoy working from home at least occasionally and hybrid work schedules provide the best work-life balance. Research shows that 83% of employees worldwide prefer the hybrid work model above all others. Hybrid work is a good compromise for the WFH vs. RTO battle. It solves at least some of the issues identified by managers and execs – see the post. And on an employee’s remote days, they enjoy more freedom and flexibility, granting them better mental health.
The question then becomes how to get the employees back to the office on the full-time schedule managers and execs seem to want. Many employees who got a taste of remote/hybrid work during the pandemic are set to continue working from home, at least on certain days. If they get a RTO mandate, they are likely to quit. What do they do then? See the post. So RTO might not be the best idea for employers at this point in time. The workspace forever changed as a result of the pandemic and employers need to jump on board with hybrid work schedules to attract top talent.
But what about the conflicting productivity studies? Perhaps companies should measure profitability instead. Why that is so (according to one researcher) is in the post. And there are benefits to the organization from having a (hybrid or) remote workforce. One is that it saves money –there is less provision and maintenance of office equipment. As long as remote employees have desktop PCs and fast internet connections (and their work doesn’t require additional equipment like VoIP hardware), there can be big savings. There are also other benefits that translate to dollars in an employer’s pocket – see the post.
TAKEAWAY: The verdict (as of now) seems to be that hybrid work is the best of both worlds: employees retain some freedom and employers still get productivity and profits.
Finally, in the post yesterday 8/3/2024, we saw a federal judge refuses to dismiss Virginia (not Vatican) attorney’s FMLA firing suit. A federal judge has rejected a motion to dismiss a lawsuit brought by an attorney alleging he was wrongfully terminated by the Virginia city of Martinsville. The attorney, Daniel Mook, claims the city fired him illegally and accused him of doctoring a medical form required for his Family and Medical Leave Act (FMLA) request to care for his ailing mother.
The federal judge denied the motions to dismiss filed by the city. Mook accused the city’s attorney (Hall) of violating his FMLA rights by improperly contacting his mother’s doctor to verify a medical form’s authenticity. The city argued that the form, signed by a nurse and filled out in Mook’s handwriting, was suspicious, leading them to contact the doctor who denied authorizing the signature. As a result, Mook was terminated in November 2021. The city and Hall argued that their actions were justified, but the judge ruled that their methods did not comply with FMLA regulations. What the FMLA regulations require or allow, and what they did (or did not do) is in the post.
TAKEAWAY: Employers must know the law and what they can or cannot (or must or must not) do in a given situation. An employment lawyer
York, Pennsylvania 17403