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 11/12/2023 was a workplace law update: 10 essential items (that should be) on your TO DO list. So what are some things you should do not before the page turns to a new year? First, scrap old I-9 forms and review updates to the employment verification process. The I-9 form was updated over the summer – and became effective for all use on/after November 1. There is also another option as noted in the post (along with some best practices). Next, take steps to comply with the NLRB’s joint employer rule – even if you are not a unionized workplace. Why? Because there are parts of the national labor Relations Act that apply to ALL workplaces – which includes your workplace. That this rule does is noted in the post along with some possible steps for you to take. Third, keep up with the cases being heard by the US Supreme Court; the outcomes may have some drastic changes for the interpretation of employment laws. Just some of the topics being considered by the Justices are noted in the post. The other TO DO items, brief descriptions, and tips/steps to take, are all in the post.
TAKEAWAY: It is so important for employers to keep up with the laws that apply to their workplace – including when they are effective, to whom they apply, and how they are to be implemented. A good employment lawyer can help.
The post on Monday 11/13/2023 noted a first: EEOC settled an AI discrimination lawsuit. This author is unsure if the milestone is one to be celebrated or not, but it is indeed a milestone. The suit involved AI discrimination in the workplace. The settlement in a case filed in federal court in NY calls for the tutoring company to pay $365,000 to resolve charges that its AI-powered hiring selection tool automatically rejected women applicants over 55 and men over 60.
Background: an applicant who was rejected from a position at iTutorGroup thought something was fishy after submitting their same resume again, but this time including a younger birthdate and getting interviewed. Then what did they do? See the post.
iTutor denied the allegations and any wrongdoing. Besides paying $365,000 to a group of more than 200 rejected applicants, iTutor agreed to the nonmonetary relief noted in the post.
So why is this settlement so significant? It is a first-of-its-kind settlement coming out of the EEOC’s broad initiative to ensure AI workplace tools comply with anti-discrimination laws. There might be many more coming on the heels of this case and settlement. Why? Just look at the AI statistics (in the post).
Given that expected increase in lawsuits (by the EEOC or others), there are things employers can and should do to ensure compliance. First, before fully implementing any AI tools in the HR arena, employers should rigorously test them, using diverse data sets. What this will do is noted in the post. Employers should also regularly review AI-powered HR tools: It’s a mouthful, but important based on the EEOC’s stance on noncompliant software (see the post). Another thing is to train your HR teams, giving them a crash course on the use of AI in human capital management. Why will this be helpful and what tools do you need to give them? See the post. Many more things on the employer TO DO list are listed and discussed in the post.
TAKEAWAY: the intersection of AI and employment or workplace law is complex; work with a knowledgeable employment lawyer to get you through that intersection safely.
The post on Tuesday 11/14/2023 told us a homeowner’s association demanded a resident paint their garage – he complied in a hilarious way. This comes courtesy of Reddit. Someone s posted that their friend lived in a big neighborhood with a pretty strict HOA. The friend’s house was the first one you saw when you entered the community. He was allowed to add on a garage. He did that – and sided it with cedar planks. He thought it looked great. But the HOA did not. What the HOA told him, and what he discovered after some research, are in the post. The friend decided to follow the rules as written. (What he did is in the post). And the HOA could do nothing else at that point.
TAKEAWAY: Make sure your condo and homeowners’ association documents say what you think they say – before this story becomes your community’s story. Work with a community association lawyer.
The post on Wednesday 11/15/2023 told us an East Coast restaurant chain has been ordered to pay $11.4M to more than 1300 employees over claims it paid below minimum wage. Holy frijoles is right! The US Dept. of Labor (DOL) claimed that there was a failure to pay minimum wage and, in some cases, overtime wages. Rather, the restaurant paid set wages regardless of the hours worked (even when employees worked up to 65 hours/week).
Who is the chain? Plaza Azteca. They have dozens of locations on the East Coast. The suit was resolved by consent judgment – what that means is explained in the past. DOL’s lawsuit was filed in September 2021. The allegations included that numerous Plaza Azteca restaurants paid predetermined amounts to back-of-the-house employees, like bussers, cooks, and dishwashers, regardless of how many hours they worked (which violated the law in the ways noted in the past). DOL alleged that the practice brought some employees’ hourly pay down to just $3. But there is more – sadly, so much more – see the post.
In Plaza Azteca’s initial answer to the complaint, in October 2022, it denied the allegations and said it didn’t have any policies that meant staff worked uncompensated time, including overtime. But then it agreed to a consent judgment in September 2023 before a jury trial was scheduled to begin.
The consent judgment does not address some of the allegations – see the post. The consent judgment requires the restaurant to pay $5.7 million in back wages and the same amount in liquidated damages to a total of 1,320 current and former employees for alleged actions between March 2016 and September 2021 at restaurants in Connecticut, Maryland, Massachusetts, New Jersey, North Carolina, Pennsylvania and Virginia. But there’s more that the consent judgment includes – and the more is also important. See the post.
TAKEAWAY: Know how to classify and pay your workers – and do it right. It will be much more costly in the back end if you don’t follow the law.
In the post on Thursday 11/16/2023 we saw that lawsuits accuse companies of worker misclassification, wage law violations. Last month, employees filed class action lawsuits against Geico, Ross Stores Inc. and Lady Jane’s Haircuts for Men Holding Company LLC. Why? They claim the companies either failed to pay them correctly or misclassified them. The suits were filed in federal courts in multiple states (as noted in the post). In addition to these class action lawsuits, two recent class action settlements resolved other claims involving employee compensation.
Let’s look at GEICO first. A former Geico sales representative argued that Geico failed to pay employees for all worked hours. How did that happen? See the post. And remote sales reps needed to perform off-the-clock tasks prior to logging into the software, including the multiple things listed in the post. The suit alleges that Geico’s practices violated the Fair Labor Standards Act (FLSA).
And what about ROSS? A former employee filed that suit last month claiming that Ross failed to pay overtime wages as required by the FLSA. The suit alleges that the store regularly required workers to perform off-the-clock work during meal periods and that it would even go further – see the post. .
And then there is LADY JANE’S – Three stylists filed suit last month, arguing the men’s grooming salon misclassified them as independent contractors (instead of employees). The hair stylists argue that Lady Jane’s classification is contrary to the facts that make them employees under applicable state and federal laws. And why does it make a difference to them? See the post.
And on top of the 3 new suits that were filed, other pending suits got settled. See the post for a short explanation of the suit allegations and settlement terms.
TAKEAWAY: We just said it (in the prior takeaway) but let’s say it again: employers must know the law and properly pay workers from the start.
The post on Friday 11/17/2023 told us what condo association fees typically cover (and the difference between condo and HOA fees). Condo (and HOA) dues are recurring payments homeowners make to cover various expenses related to the maintenance and management of the properties and common areas within the community. Condo Association and HOA fees are crucial to living in a managed community – they ensure the smooth functioning and upkeep of the shared spaces and amenities. And how does that benefit residents? See the post. The exact amount of condo or HO association fees depends on several factors, including those noted in the post. The fees are typically determined through a budgeting process the Board goes through each year. Condo and HOA fees are usually separate from mortgage payments and must be made directly by the owner to the association. A few things condo and HOA fees cover are listed in the post.
While owners in both condo and homeowner association pay periodic fees, there is a slight difference in what they are for. Ina condominium, each member owns their unit and share of the common areas. On the other hand, in an HOA, owners still own their units but the association owns the common areas. The expenses covered by the condo and HOA fees, and the size of the fees, differ depending on the type of property and the choices made by the association or board or directors.
So let’s look at some of the things typically covered as part of condo fees. First up is maintenance and repairs including regular upkeep of building exteriors, such as roof repairs, painting, and landscaping. Condo fees also cover other maintenance items such as those listed in the post. A portion of the condo fees are earmarked toward insurance coverage for the building(s)’ structure and common areas. But there might be more as noted in the post.
In condo associations, and also some HOAs where townhomes have shared interior common spaces, maintenance includes the common area items noted in the post. And don’t forget the amenities and facilities, those things that are huge selling points. They may include those listed in the post. Fees cover the maintenance and operating costs of the amenities so that residents can access and use the facilities without additional expense.
As noted, there are several factors that play a role in determining what the fees will be. They include property type and size, geographic location, and more as noted and described in the post. And don’t forget about special assessments – what they are and their purpose are in the post.
So what are some things (potential future) condo and HOA owners should do relative to the dues or fees? First, put the fee into your budget, including potential future increases. Next, review the association’s financial reports to know tis financial health and what may be coming down the pike. Additional things to consider are noted in the post (and discussed).
There are also some common FAQ that come up in the condo/HOA context. People often wonder if an owner can opt out of paying dues/fees. The answer is a resounding NO. Such payment are mandatory for all members of condo and homeowner associations. And what happens if someone does not pay the dues/fees? See the post.
TAKEAWAY: There are bug benefits to living in a community with a condominium or homeowner’s association – but there are also costs for that life, including dues/fees that help fund all of those things people love and the association does for owners. Know your obligations before you buy.
Finally, in the post yesterday 11/18/2023, we learned that groups sue to stop National Labor Relations Board joint employer rule (which is pretty broad). The business groups argue that a company simply trying to enforce brand or safety standards could be deemed a joint employer for labor-law purposes if the NLRB finalizes its rule. The rule treats franchisors, general contractors and others that have a contractual relationship with other companies as joint employers for labor-law purposes if they exercise, or could exercise, control over the other companies’ employees. Those business groups’ legal argument is noted in the post. Their biggest concern is over the proposed rule’s expansion of joint employer status to include companies that have indirect or reserved control over just one aspect of the employer-employee relationship. How that differs from the current standard is noted in the post. The groups gave some examples such as a franchisor which, in the exercise of its brand standards, could be considered a joint employer with a franchisee when it comes to negotiating wages and work hours. Another example would be a general contractor; that analysis is in the post. The groups say that “the rule will disrupt long-established operational methods … and will clearly have a harmful effect on both small and large businesses in the construction industry.” They also argue that the rule is not even needed. Why? The NLRB has said it needs to promulgate a rule after it rescinded a Trump administration rule (with the purpose therefor noted in the post), but courts have provided companies and the NLRB with direction on what constitutes a joint employer. The rule is slated to go into effect in late December.
TAKEAWAY: Once more: know how to classify your workers (and then how to pay them). Keep a good employment lawyer on speed dial in this shifting landscape.
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