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 2/9/2025 So how much do I have to pay my exempt EAP (executive, administrative, & professional) employees as of 1/1/2025? Another see-saw. You should know that EAP employees are exempt from overtime pay if they perform certain duties and earn at least a certain salary. Under federal law, an executive employee must primarily perform management and supervisory duties and have input into the hiring, advancement or termination of employees. What administrative and professional employees must do to be exempt is detailed in the post.
From 2019 – 2024, the salary threshold for all EAP employees was $684 per week ($35,568 annually). Then on April 26, 2024, the U.S. Department of Labor (DOL) published a rule that increased the salary threshold to $844 per week ($43,888 annually), effective July 1, 2024. The threshold effective Jan 1, 2025 and automatic increases are all listed in the post. But a recent decision from the US District Court for the Eastern District of Texas struck down the rule. The basis on which the court ruled is in the post.
So what does this mean for employers? They only have to pay employees at least $684 per week ($35,568 annually) to satisfy the EAP exemption.
TAKEAWAY: The rule would have made more employees entitled to overtime pay, but for now it is not effective. Stay abreast of your obligations.
The post on Monday 2/10/2025 talked about the intersection of partisan political speech in the workplace and employee rights. Look both ways before crossing. For a few months, there was a barrage of vitriolic campaign ads; now there is a barrage of things in the media about what is happening politically. Has America reached bottom? Hmmm.
In the 1820s John Quincy Adams (POTUS No. 6) described Thomas Jefferson (the author of our Declaration of Independence and POTUS No. 3) as a “slur upon the moral government of the world.” Classy, but nasty. Then in 1845 Andrew Jackson (POTUS No. 7) supposedly made a deathbed statement about two of his political adversaries; see the post for what he (supposedly) said. Nasty and scary. And then in the 1930s, Vice President John Nance Garner was described in what might be described as a less than favorable manner – see the post. With that past, and the deeply divided country that we appear to be now, it is likely that some of your employees – whether they be Red, Blue, or something in between – will engage in protected speech on a political or social issue during the next four years. You need to know how to respond.
First, employee speech on political and social issues is not just water cooler talk. It may include a broad range of on-duty and off-duty conduct, including workplace conversations, messages displayed on clothing, and more as noted in the post. And when looking at the now-current administration’s campaign rhetoric and actions/communications to date, its policies and legislative agenda may plead some of your employees to engage in speech supporting various things like those noted in the post. And yet other employees may be on the other side of the political spectrum, speaking about other issues (like those in the post). This speech, no matter its content, may negatively impact employee morale and productivity. And worse yet, it might also lead to claims of discrimination or harassment. So can you just tell them to cease that speech (as you might stop a dinner table conversation)? No, it is not that easy – and that might even lead to you being a defendant in a suit.
The two most notable protections for private sector employee speech on political and societal issues are the National Labor Relations Act and Title VII of the Civil Rights Act of 1964. What the NLRA protects is noted in the post. For example, Home Depot was found to have violated the NLRA by terminating an employee who refused to remove a Black Lives Matter message from his work apron. The National Labor Relations Board rationale for that decision is in the post.
Similarly, Title VII has employee speech protections as noted in the post. But Title VII also imposes a duty on employers to accommodate their employees’ religious beliefs. It is that conflict (religious beliefs on the one hand and anticipated activism about issues) that may lead to situations in which you need to balance the speech rights of employees on both sides of the debate.
But there also might be state laws that offer some level of protection for employee speech. One 2012 article (linked in the post) said that about half of Americans live where there is state protection against employer retaliation. Some of the state laws are broader than the NLRA or Title VII for the reason noted in the post. Examples are in the post.
But there are also legitimate reasons for employers to regulate employee speech about political or societal issues. The patchwork of federal and state laws is not a one-size-fits-all blanket. But based on various cases and statutes, it appears that employer regulation of speech is permissible if the speech creates a risk of injury to employees or damage to machinery, is disruptive and leads to employee dissension, or claims of harassment, or any of the other things listed in the post. But everything is based on the facts. For example, if you interfere with employee speech because you believe it unreasonably interferes with your company’s public image, then you need to be prepared to prove the image and interference. The fact that a customer might be offended by the speech typically won’t cut it. Similarly, if you interfere with employee speech because you believe it could be disruptive to the workplace, be prepared to support that as noted in the post.
TAKEAWAY: Carefully consider whether employee speech is protected (by federal or state law) and if you have facts to support any proposed regulation of that speech. Run it by your employment lawyer first.
The post on Tuesday 2/11/2025 told us SCOTUS ruled no heightened standard of proof required for FLSA exemption defense. This is good news for employers. In its January 15, 2025, decision in E.M.D. Sales, Inc. v. Cabrera, the Supreme Court held that the “preponderance of the evidence” standard — not the more difficult-to-satisfy “clear and convincing evidence” standard — applies when an employer seeks to show that an employee is exempt from the minimum wage or overtime pay provisions of the Fair Labor Standards Act (FLSA). Let’s explain.
In a dispute under the FLSA, the plaintiff (employee) has to prove all elements of the claim. But if the employer’s defense is that an exemption applies, the burden to prove that is on the employer. The Supreme Court in Cabrera was asked to rule on the level of proof required of the employer.
In 1938, when the FLSA was enacted, the default standard of proof in American civil litigation was a “preponderance of the evidence”. What that means is in the post. And for the most part, that remains the default standard in civil litigation today. But the Supreme Court has deviated from that standard in three main circumstances: where a statute expressly requires a heightened standard of proof and the two other situations noted in the post. None of those things applied in Cabrera, so the Court held that the default preponderance standard governs when an employer seeks to prove that an employee is exempt under the FLSA. How the Court dealt with the plaintiff-employees’ policy arguments is in the post.
TAKEAWAY: The best thing is not to get embroiled in litigation, but when you are you must now what you need to defend the action you took (or did not take). Know the law (and, as we said before, keep an employment lawyer on speed-dial).
The post on Wednesday 2/12/2025 told us entire condo complex condemned – residents forced to sell homes – lessons to be learned. This all results from Florida’s new condo laws, but it could happen anywhere.
The residents of Springbrook Gardens, a 75-year-old condominium complex in Fort Lauderdale, are facing an unprecedented crisis. The building was recently condemned due to sever structural issues. It was a small community, 18 units, with a mix of retirees, working professionals, and families. It appears that the condo association had been aware of the building’s deteriorating condition for several years but, despite efforts to do so, the association was unable to secure the necessary funding to complete the repairs. Aging buildings anywhere (not just in FL) require maintenance; that cost can become prohibitively expensive, leaving owners and associations with difficult decisions.
So what happened to Springbrook Gardens? After some inspections, engineers determined the building’s foundation had significantly deteriorated and was a serious safety hazard to residents. The City then condemned the building in September 2024 as being unsafe for habitation. What happened next, and the time over which it occurred, is in the post.
The estimated repair cost was about $4 million. Many residents could not afford their share of that bill, and efforts to get a loan for repairs did not pan out, so owners had to make a wrenching decision (see the post). And what will happen to the building now? See the post.
Could the building have been “saved”? The 40-year inspection in 2019 noted only minor structural issues. But then deterioration progressed rapidly and by 2024 the damage was extensive. One potential solution is noted in the post. And regular and thorough inspections might have identified the issues earlier, potentially allowing for less costly repairs. For condo associations in similar circumstances, there are a few things they can do to have their story turn out differently than it did for Springbrook Garden. First, they can make sure there is a well-funded reserve for major repairs and unexpected expenses. Next, they can conduct thorough and regular inspections to identify potential issues early on (and get the estimated repair cost included in reserve funding). Other things that condo associations can do are detailed in the post.
Springbrook Gardens didn’t end up like Champlain Towers in Surfside (thank goodness), but it still serves as a warning to condo associations everywhere.
TAKEAWAY: condo associations like to keep assessments low, but that is a disservice to owners as necessary maintenance and repairs are pushed back or not done at all. Make sure your association has sufficient reserves.
In the post on Thursday 2/13/2025, we read that resident worried about privacy as HOA recording audio and video at pool. As with just about everything, associations must know applicable law.
The fact scenario is that anHOA records both visually and by audio at the clubhouse and pool. One resident’s conversation was recorded and they found out after scaling the pool fence when the gate was stuck. The person received a copy of the recording reminding them about the other gates; the recording also included audio. There is a sign at the pool that says “Entering this facility …. You give permission for recordings to include audio.” The resident is worried that what the HOA is doing might be illegal.
The answer to that question lies in applicable state laws. In FL, for example, no person can record an oral communication without consent. And “oral communication” has a very specific meaning as noted in the post. It is because of that statutory definition that, in FL at least, this scenario leads to the result of the HOA’s actions probably not being illegal.
TAKEAWAY: Know the law of your state and whether community associations can record audio or video without express consent of the person being recorded. Get advice from a community association lawyer.
The post on Friday 2/14/2025, Valentine’s Day, was about Love Actually (Might Cause Legal Troubles for Employers). On Valentine’s Day and other days employers must carefully consider some potential legal pitfalls of office romances.
A romantic relationship between coworkers that ends badly could provoke a harassment or retaliation lawsuit. A workplace relationship is (probably) not illegal, but there still might be legal risk for the employer (and possibly one or both persons involved). The relationship might lead to unwanted attention, misunderstandings, or even unprofessional behavior in the workplace, and that might result in the employer getting involved (as noted in the post). One thing they can do is discourage or prohibit workplace relationships entirely; many employers don’t go quite that far but have more limited prohibitions (see the post for the purposes behind those prohibitions). Employers might also require that employees notify HR about workplace relationships and confirm they are consensual. How some employers handle this (and it is kind of cute) is discussed in the post.
So what are some things employers can do to (hopefully) reduce the legal risk associated with office romances? First, they can remind employees about written policies against harassment that occurs in person or online. Next, they can require professional behavior at the workplace and provide some examples of what is and is not considered professional behavior. The consequences of exhibiting unprofessional behavior also should be clearly stated. There are a few other things employers can do; they are detailed in the post.
TAKEAWAY: Decide whether you will allow your employees to become romantically involved and clearly communicate any policies. Run them by an employment lawyer to ensure the policy and its enforcement are legal.
Finally, in the post yesterday 2/15/2025, we learned Waller’s Trucking Company to pay $124K in EEOC sexual harassment lawsuit settlement. Waller’s is a family-owned trucking company. According to the EEOC’s suit, the owner sexually harassed two female employees over several years. What he did is detailed in the post. But despite multiple complaints and reports of sexual harassment, Waller’s did not take action to stop the harassment. Eventually, two female employees were forced to resign. The EEOC accused Waller’s of violating Title VII in the suit filed in Sept. 2024 in federal court (after conciliation had failed).
Waller’s agreed to more than paying the $124,000, They agreed to a five-year consent decree that includes much non-monetary relief such as resolving issuing a letter of apology to the victims, revising and distributing its anti-harassment and anti-retaliation policies, and the other items listed in the post. The non-monetary relief will enable the EEOC to keep tabs on Waller’s and protect its employees. Statements from the EEOC’s district office are in the post (and offer a glimpse into what it found particularly egregious here).
TAKEAWAY: No employee should experience harassment or discrimination of any type; owners should set a good example (for moral and legal reasons, much less to remove any potential legal liability for contrary behavior).
York, Pennsylvania 17403