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.
The post on Sunday 3/12/2023 told us the EEOC announces enforcement priorities for 2023-2027. There are 6 subject matter priorities: Eliminating Barriers in Recruitment and Hiring; Protecting Vulnerable Workers and Persons From Underserved Com-munities From Employment Discrimination; Addressing Emerging and Developing Issues; and the other 3 listed in the post. The first priority will include the use of AI in hiring decisions and other employment practices where there is an intentional exclusion of or adverse impact on protected groups. This priority also includes much more, as described in the post, and dovetails with a recent public hearing held by the EEOC. The new policy also includes details on the types of hiring practices and policies that the EEOC will look at closely. Examples are in the post.
The second priority deals with an expansion of those protected to include workers who may be unaware of their rights or “reluctant or unable to exercise their legally protected rights.” Who is included in those categories are listed in the post – it is broad and may vary by location/geographically.
What the third priority focuses on – which includes but it far from limited to COVID-19-related enforcement – and changes to the other three priorities are also discussed in the post.
TAKEAWAY: Know the law – and what the EEOC will be looking for so you can steer clear.
The post on Monday 3/13/2023 told us that teleworkers’ short breaks are compensable FLSA time (per DOL). All those workers doing stuff for your business other than from your offices/ place of business – yep, now they too have the same rules as on-site employes when it comes to breaks of less than 20 minutes. DOL says that these short breaks primarily benefit the employer – its reasoning is in the post – so they should be paid time. Contrast that with bona fide meal periods of 30 minutes or more when employees do not work and which are normally unpaid. However, if a shorter (20 minutes or less) break is more similar to a meal period, then it too may not be compensable – examples of this are in the post.
And while we are talking about treating remote workers the same as those on site (or at a client/customer’s business), remember that the FLSA also provides to nursing employees a break to pump. What the employer must provide is noted in the post.
Finally, the guidance deals with another important issue: how remote employees figure into the headcount for FMLA purposes. Employers must be aware of this, so read the post.
TAKEAWAY: It is imperative that employers properly classify and pay their workers – consult an employment lawyer if you are at all unsure.
The post on Tuesday 3/14/2023 was a pop quiz: paid family medical leave and the Family Medical Leave Act (FMLA). The FMLA generally provides eligible employees with up to 12 weeks of unpaid leave in a 12-month period for the birth of a child or placement of an adopted or foster child, the serious health or emergency condition of the employee or close family member, or for qualifying exigencies (see the post for a link) related to a foreign military deployment or to care for service members. FMLA is unpaid; some states have laws requiring paid family/medical leave time. FMLA protection applies only to certain employers (see the post) and eligible employees (again, see the post). And what does the FMLA provide as to health coverage during the leave? See the post.
TAKEAWAY: Both employees and employers need to know the provisions of applicable state law and the federal FMLA when it comes to this type of leave – an employment lawyer can be helpful.
The post on Wednesday 3/15/2023 told us neighbors are outraged after HOA forced disabled couple to remove wheelchair ramp. There was a VID embedded with this post (but it has captions in case your sound is muted). So what happens when an association has permitted an accommo-dation for some length of time and then changes its approval? Are the association’s governing documents implicated? How about applicable state or federal law? The answers to those questions is fact-specific – but more often than not the association has a duty to accommodate. Somehow. Not necessarily how the owner requests, but somehow.
TAKEAWAY: Condo and homeowners’ associations must remember their legal duty to accommodate – what it entails and what it does not. Consultation with a community association lawyer is recommended to keep the association out of legal hot water.
In the post on Thursday 3/16/2023 we read that a formula for association annual townhouse assessments seems ‘unfair’. What does applicable law provide? Assessments (or dues) in PA condo and homeowners’ associations are to be based on a pro rata portion of budgeted common expenses. Can they vary by size of the unit? Location? Other things? See the post – and applicable law.
TAKEAWAY: Community association lawyers know what can or cannot be included as part of a common assessment – so talk to yours today.
The post on Friday 3/17/2023 told us Monro Auto Service and Tire pays $200K to settle EEOC lawsuit alleging groping, demeaning language. Monro is a notional auto care chain with more than 1000 locations. It should know better, right? The EEOC filed suit, alleging that it did not know better. The complaint alleged that at several locations in at least 2 states multiple male employees were subjected to sexual harassment – what that included is in the post – and that at least one female was addressed in a way that was improper (see the post) and more (yep, in the post). Whether this was conduct that was reported to Monro after it acquired some Car-X franchises in late 2017 is unclear, but it says it investigated those complaints and took action. But now Monro has settled the suit.
TAKEAWAY: Employers who have acquired another company must ensure that all complaints are disclosed and dealt with appropriately – before blowing up into a lawsuit – and that the new employees are trained as to legal actions and behaviors.
Finally, in the post yesterday 3/18/2023, we read Chapter Two: Federal District Court again finds employer did not violate Title VII in prohibiting BLM attire. You (should) know that different employers have had different policies as to allowing employees to wear BLM attire to work during the height of the pandemic. And there has been at least one federal suit on the issue. There the employees alleged discrimination against Black employees (and others associating with and advocating for them) in violation of Title VII by selective enforce-ment of BLM messaging and retaliation against those who continued to wear BLM attire and protest the dress code policy. The trial court found that the employees did not assert that their race was the reason for the disparate treatment (since the dress code was applied to all employees wearing BLM attire). How it ruled on the associational discrimination and retaliation claims is in the post. The employees appealed and the dismissals were upheld but on different legal grounds. On the first claim, the appellate court found the employer had nonrace-based reasons for its prohibition of BLM attire; the analysis is in the post. The appellate court also affirmed dismissal of the retaliation claims on the basis noted in the post. BUT …
Remember that the trial court did allow one employee’s retaliation claim to go forward based on the facts alleged? Well then two other employees filed an amended complaint alleging the same claim. The trial court’s analysis of that claim is in the post – and its dismissal is now on appeal.
TAKEAWAY: It is imperative that employers evenly enforce policies to all employees. It is also important that those protesting or complaining about (alleged) discrimination are not disciplined or otherwise adversely affected for those actions.
York, Pennsylvania 17403