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 4/30/2023 told us DOL says Bimbo Bakeries cannot countersue workers seeking overtime pay. You (employer) readers are saying “wait, what, I can countersue an employee?”. Hold on and read this (and the post). Bimbo owns many major brands including Sara Lee, Entenmann’s and Brownberry. In October 2022, its drivers filed suit, claiming that Bimbo misclassified them as independent contractors (instead of employees), an FLSA violation, and therefore owes them back overtime pay. Bimbo then countersued the drivers; the basis of that suit is in the post. DOL has asked that the court let it intervene (as it has on some other past cases because the government’s interest in defending and upholding laws gives DOL a direct, substantial and legally protectable interest) and move to dismiss the countersuit. Why does DOL think the countersuit should be dismissed? It has three bases which are set out in the post. Bimbo has not commented. DOL’s proposed motion cites to previous judicial interpretations in support of its position. Bimbo stands on its arguments for the countersuit (detailed in the post). And what is another reason employers should think twice about countersuing? See the end of the post.
TAKEAWAY: Employers are responsible for following wage and hour laws; whether they can benefit from their failure to do so is often the crux of a countersuit – and questionable at best and potentially causing more liability at worst. Consult an employment lawyer first.
The post on Monday 5/1/2023 showed us a Porsche dealership must pay whistleblower $15K. Yep, not chump change. OSHA announced the settlement. Want some background? In December 2020 the employee learned that a coworker had tested positive for COVID-19 and alerted management, asking that other employees be immediately notified of their exposure risk. (Remember that this was still early enough in the pandemic that less was known and tracing was still being done). When the employer did nothing, the employee emailed others. Less than an hour later, the employee was terminated. OSHA investigated the ensuing whistleblower complaint (why that happened is in the post) and found illegal retaliation. OSHA then filed suit in October 2021. That matter settled in late March 2023. NOTE: There was also a related case between the employee and employer wherein DOL and the NLRB negotiated an agreement in late July 2022 – details on that are in the post.
TAKEAWAY: Employers must know the law and what legal restrictions exist on their ability to discipline or fire employees – some, like this one, find out the hard and expensive way.
The post on Tuesday 5/2/2023 told us a condo association is on the hook for $1M-plus tied to unusable commercial space. This is interesting even if you are only familiar with residential condos, so read on. More than 16 years after buying a five-story commercial space at the bayfront Miami condo Blue, the owner is one step closer to gaining access to basic utilities that would make it operational — including central air conditioning. That sounds so outlandish, right? Keep reading. Blue Grouper Ventures was awarded more than $1 million in damages by a jury in its lawsuit against the Blue Condominium Association. Blue Grouper had alleged that the association refused to provide for its units utilities that include an HVAC connection, plumbing, water, garbage, recycling and more. Where might the association come up with the funds to pay the judgment? See the post. On top of that, Blue Grouper also expects to collect more than $500,000 in attorneys’ fees. The case was filed because Blue Grouper has not had those utilities since at least 2006, thus impacting its ability to sell or rent the units. But the suit was about more than the failure to provide utilities; the other allegations revolve around parking, storage, maintenance and more as detailed in the post. Behind the verdict the jury found that the association breached the condo’s declaration, causing about $1 million in damages, and that the association trespassed on Blue Grouper’s property (how is noted in the post). A final count in the suit filed by Blue Grouper is based on the association’s failure to provide full access to association files (including something mentioned in the post that is pretty important, especially given the Champlain Towers tragedy).
TAKEAWAY: Owners and Board members must know what constitutes the units and what remains as common elements; in addition, who can use the common elements and how is also important. A community association lawyer can help with these and other issues.
The post on Wednesday 5/3/2023 told us a manufacturing staffing company will pay $75K to settle EEOC claim it refused to hire German-born citizen. ResourceMFG agreed in late March to settle a suit filed by the EEOC alleging that it rejected an applicant because she was born outside the US. What exactly happened that resulted in the suit being filed? See the post. The monetary proceeds are not the entire settlement; there is also a non-monetary component, including reporting to the EEOC and more as noted in the post.
TAKEAWAY: Employers must be familiar not only with Title VII, but also IRCA (see the post if you don’t know what that acronym stands for).
In the post on Thursday 5/4/2023 we saw that Tyson Foods dodges COVID lawsuit from meat-packing employees. A group of 41 meatpacking plant employees, and the state of another who had died form COVID-19, sued Tyson. They alleged that Tyson put them in danger of contracting the virus when the pandemic started. Tyson denied the allegation, saying that it had authority to keep the plant open (the basis of that authority is noted in the post). In June 2021 the federal trial judge dismissed the case, finding the employees did not come forward with sufficient evidence to show that Tyson put them in harm’s way. The workers appealed. And were again unsuccessful. The bases on which the appeals court affirmed the dismissal are in the post – and give a roadmap for proof of causation in this type of case.
TAKEAWAY: Tyson won this round because the employees did not connect the dots. But Tyson is not out of the woods as another suit was just filed in March 2023 by current and former workers alleging that it did not take proper safety measures during the pandemic (more is in the post).
The post on Friday 5/5/2023 said ‘I picked the HOA bylaws apart’: resident plants bamboo to overrun neighbor’s bright LED security light. Let’s look at what happened here (ok, and smile just a bit). OP was enjoying suburban life – until a neighbor set up an LED security light that was extremely bright. When OP was not allowed to increase the height of his fence (the post tells why) and the HOA said it had no authority to act relative to the bright light (again, see the post for why this was so), OP then reviewed the HOA’s bylaws and municipal ordinance to see if another idea he had was viable. What he was thinking involved LOTS of bamboo seeds (to learn more about them, read the post). OP first tried just talking, offering a small token gift. The neighbor agreed to act as in the post. But nothing changed, so OP went back to the neighbor and was told, in so many words, to stuff it. OP planted bamboo! How it solved the problem, and the later effect on the neighbor, are both in the post.
TAKEAWAY: Owners (and tenants) are coming up with more ingenious ways to get around condo and HOA restrictions; Board and owner consultation with a community association lawyer is a must now.
Finally, in the post yesterday 5/6/2023, we saw a jury can hear Under Armour case of employee allegedly fired for complaining about a male manager’s striptease. You read that right. Pajak was the regional director of the East and Canada regions of Under Armour Retail. A male regional manager allegedly performed a shirtless striptease (and more including a Speedo as noted in the post). Another male district manager allegedly commented on female co-workers’ appearance. Pajak told her supervisor that female workers had complained about the other managers’ actions. Nine days after an evaluation citing no performance deficiencies, Pajak was notified by her supervisor to leave. What happened after that is in the post. Eventually suit was filed. A federal trial court issued an order March 20th denying Under Armour’s motion and allowing the case to go forward (meaning a jury gets to decide the things noted in the post).
TAKEAWAY: Take employee complaints seriously; investigate them and take no adverse action against the person(s) complaining – unless you have definitive proof that they intentionally lied or complained for a reason other than thinking there was a valid basis for the complaint. An employment lawyer can assist.
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