Fired for pre-employment socmedia posts; responsibility for condo/HOA common elements; A.I. & Title VII; remote work & accommodations; and more in Our Social Media Posts This Week, Sept. 17-23, 2023.

Below is a review of the posts (on Facebook, LinkedIn, and Twitter/X) from the past week. You can check out the full posts by clicking on the links.

firing based on employee’s pre-employment socmedia posts leads to discrimination lawsuit

The post on Sunday 9/17/2023 showed us a firing based on employee’s pre-employment socmedia posts leads to discrimination lawsuit. This  is a case in federal court in Pennsylvania. Plaintiff Watson self-describes as an African-American, homosexual male. He began working at the Philadelphia Parking Authority (Authority) on February 24, 2020, as a “Data Officer.” On his first day of employment, Plaintiff was given the social media policy and employee handbook. Both before and during his employment with the Authority, Watson had various social media accounts. During the first week of Watson’s employment, the Authority received an anonymous complaint regarding Watson’s social media use prior to his employment and one post on February 26, 2020, The content of that post-employment post is in the post. Watson’s post did not include a photograph or identify the individual. Watson testified in his deposition that during a meeting about the February 26th post, his direct supervisor, Tolson, told him that “heterosexual men, employees, wouldn’t want to work with [Watson] without—without fearing for their safety and that people could consider [Watson] a sexual predator because of it.” Watson also testified about what another supervisor, Dickson, told him; that is in the post. Tolson and Dickson determined that Watson did not create the February 26th post during work time, it did not refer to an Authority employee, and it did not violate the company’s social media policy. The Authority then received another complaint about posts pre-dating Watson’s employment which resulted in  a closer look at posts he’d made since he became employed, especially those on February 24 and 25, 2020. The content of those posts is also in the post. Watson was fired on March 3, 2020, eight days after he started.

In the subsequent suit (you knew that was coming, right?), the court allowed Waston’s race and sexual orientation discrimination claim to go forward. It described the burden-shifting framework that applied (as noted in the post) and then analyzed the facts under that framework. First was the comments made at the meeting about his status as a “gay, Black man”; the Authority’s argument as to same is in the post. After referring to precedent from the appellate Court (the Third Circuit, which precedent is also described in the post), the court noted that Watson said the remarks were made by senior officials less than a week prior to termination and were key to the discussion regarding his social media posts. The court said that met Watson’s initial burden as noted in the post.

Then the court looked at the Authority’s argument since the burden had shifted. How the court looked at the facts relative to the law is analyzed in the post. In the end the court decided it was enough to shift the burden back to Watson.

Then we go back to Watson who said that neither Dickson nor Tolson mentioned his work-related posts during their meeting about his social media despite them predating the one discussed in the meeting. What Watson argued was (part of) the real reason for his termination is in the post. Watson also said that after that meeting with Tolson and Dickson he asked for, but was denied, training on social media use. The court then put together all of the evidence and acted as noted in the post (for the reason stated in the post).

TAKEAWAY: Timing and words can be so important – make sure both are within legal bounds.

when you need bodies in the office, is relocation reimbursement taxable? How to assess tax liability

The post on Monday 9/18/2023 asked for when you need bodies in the office, is relocation reimburse-ment taxable? How to assess tax liability. There often comes a time when you need employees to move for your business. When this happens, it’s common to offer relocation reimbursements. Why? Because it can be cheaper than hiring and training someone else at the new location. It is important for employers and employees to understand the law relative to relo expenses and what the employer can deduct and the employee can exclude from income as this may play a part in a relo agreement.

The items a typical relocation reimbursement covers are noted in the post. Rather than reimbursing each item, an employer may offer a lump sum payment or pay vendors directly. The first question is whether relo reimbursements are taxable to the employee. The short answer is YES. The taxes employers need to pay on account of a relo reimbursement, and how it plays into the employee’s income, are noted in the post.

The next question is whether moving expenses are deductible by the employee. The law changed in 2017 and is effective until 2025. What it says as to taxability, and for whom, is in the post.

And what about moving expenses paid directly to vendors by the employer? Yep, still taxable and reportable. And the tax deductibility of relo reimbursements for the employer under the same 2017 law? See the post. Given how the law affects taxability for employees, what should employers do? Some suggestions are in the post, including what to note in the relo agreement and why certain of he suggestions might be a good idea.

TAKEAWAY: While the world has gotten smaller due to the availability of remote work, many employees still need to be in certain places and relocation is often appropriate. Knowing how to deal with relo reimbursements is helpful.

who owns and is responsible for common elements in your condo or homeowners’ community?

The post on Tuesday 9/19/2023 asked: Who owns and is responsible for the common elements in your condo or homeowners’ community? The answer depends on both applicable state law and the association’s Governing Documents. Typically, a condo association includes either one large building with all units or several smaller buildings with attached unit, whereas a homeowners’ association may consist of one or more of single-family detached units, semi-detached units, or attached units.

Common elements in a condominium may include the building structure(s) and exterior, hallways, and other things itemized in the post. Common elements in HOAs can include streets and sidewalks, clubhouses and other buildings, and the other items noted in the post. In either case, in Pennsylvania at least, owners usually do not get to vote on how the common elements are maintained, improved, and managed – that is the province of the Board.

Every owner in a condo or homeowners’ association should understand how their Association is organized and how it functions. What is part of the units and what is a common element? Who is responsible for common element maintenance and repair? Look at state law and the Governing Documents.

TAKEAWAY: It is imperative that both Boards and owners know who has what responsibility for common elements – having a good community association lawyer on speed dial is a good idea.

victory for common sense: appeals court reverses crazy Title vii ruling

The post on Wednesday 9/20/2023 talked about a victory for common sense: appeals court reverses crazy Title VII ruling.  Do you think a workplace policy that says male employees can get weekends off but females can’t do the same is a violation of Title VII? It should be, right? Well, not according to a federal appeals court that held the policy perfectly fine under Title VII. Why did the court say the policy was OK? See the post. So it said the female employees were out of luck.

Luckily that ruling was not the last word. The judges who issued that ruling felt constrained by prior case law but suggested the full court should review the issue. And it did. And issued a decision in early August 2023 reversing the panel’s ruling.

The full appellate court recognized Title VII’s broad language and ended its practice of limiting winnable Title VII cases to those involving “ultimate employment decisions.” Ah, logic returns!

So what is the holding now? See the post. The result was that a claim based on a policy that gives only men full weekends off is plausible under Title VII because it is an adverse employment action relative to women. The court clarified that while Title VII does not allow recovery “for de minimis workplace trifles,” the policy at issue was more than that. And how does that mesh with the purpose of Title VII? Yep, see the post.

        TAKEAWAY: Almost anything can be an adverse employment action for Title VII purposes – employers need to be careful when an action (deliberately or even unintentionally) adversely impacts a protected class.

the buck stops with you: artificial intelli-gence, employment, and title vii – no intent required

In the post on Thursday 9/21/2023 we saw the buck stops with you: artificial intelligence, employment, and Title VII – no intent required. Computers are amazing, right?! And now they have invaded the workplace. And with – or part of – computers comes artificial intelligence (“AI”), which, like any tool, can be good or not. One instance of the “not” is when AI causes employers to violate employment laws such as Title VII.

A quick reminder of what Title VII prohibits, and by whom it is enforced, is in the post. Other federal laws prohibit discrimination on other bases. But Title VII and other employment laws can be (and often are) violated even if the employer did not intend to make a job-related distinction based on a protected characteristic. That is based on the distinction between disparate treatment – the definition of which is in the post – and disparate impact – which definition is also in the post  – and is the result when an employer uses a discriminatory criterion that tends to favor one group at the expense of another (an example of which is also in the post). In short, disparate impact can result from the use by an employer of what appears to be a neutral practice or selection device that disproportionately impacts a protected group. Enter AI.

First, what is AI? See the post for a good definition. Amazon’s Alexa, Apple’s Siri and even some chatbots used for customer service are based on AI. Businesses now use AI in many ways, but a few of which are listed in the post. What is perhaps most valuable to businesses is  AI that is “machine learning” (yep, the definition is in the post).The potential problem with using AI in such a way is that it may be (or may seem to be) biased in favor of, or prejudiced against, certain applicants and/or employees and thus unlawfully discriminatory.  Employers (presumably) do not want the AI to be biased in any way, but it can happen anyway. Amazon learned this during trials it conducted with a potential AI tool. What Amazon was trying to have the AI do is described in the post. But the AI learned something else – that Amazon luckily identified during its internal trials. But this is an example of how AI can be unpredictable and result in a disparate impact on a(n  prospective) employee on the basis of race, color, religion, sex, or national origin.

Because of the use and potential impact of AI, the EEOC has issued guidance for employers to help them assess (potential) adverse impact resulting from use of software, algorithms, and AI in employment decision-making. The focus of the Guidance, and about what it warns employers, is described in the post. The Guidance should not be dismissed out of hand; it does not deal with a hypothetical issue. iTutorGroup, three integrated companies providing English-language tutoring services to students in China, found out the hard way when the EEOC sued it this past May. The basis of the suit is noted in the post. The employer denies the allegations in the EEOC’s suit, but it recently entered into a voluntary settlement agreement (the terms of which are in the post) for an expensive denial.

TAKEAWAY: AI can be extremely useful to employers, but it must be used cautiously, after reviewing the EEOC’s Guidance and with advice from an employment lawyer.

hoa tried to evict unusual pet of 7 years, suggests esa

The post on Friday 9/22/2023 noted an HOA tried to evict unusual pet of over 7 years, suggests ESA. Fred has been part of the Cannon family since 2015, before officials ordered that he must be rehomed. The HOA had warned the Cannons that the sulcata tortoise, an endangered species, was banned. Jamie Cannon admitted receiving a letter from the HOA. But the HOA gave her 2 options that would allow the family to keep Fred – see the post. Jayden Cannon, a high school senior, was confused based on the length of time Fred had been with the family. What he said is in the post.

A petition to “save Fred” was created – it said that Fred hadn’t caused any harm to the neighborhood. How popular has the petition been? See the post.

Fred had been given to Jayden as a Christmas present. The HOA’s property manager noted how this turned out – see the post.  (And now you can watch the VID embedded in the post!).

TAKEAWAY: Owners and Board members need to know the rules about pets in the condominium or homeowners’ association as well as the law governing service and emotional support animals – consult with a knowledgeable community association lawyer.

remote work and employment law: ensuring inclusivity and accommodations

Finally, in the post yesterday 9/23/2023, we reviewed remote work and  employment law: ensuring inclusivity and accommo-dations. Remote work has changed the game. Is where employment law meets the need for inclusivity as part of that remote/ WFH explosion. Employers must ensure they stay on the right side of legal while making remote work accessible to every-one, especially those with disabilities, and that is done via accommodation.

At first glance it seems simple since remote workers are usually working from their homes, so what could be needed, right? Wrong. What if the remote tech isn’t accessible to everyone? Employers need to ensure that their digital tools are user-friendly for everyone. Examples are in the post. But what if it’s tech, but other accommodations that had been provided in the office (such as those noted in the post)? Employers must be proactive in accommodating even with remote workers.

So what are some ways employers can accommodate remote workers? First, they can invest in tech designed for everyone. Some ways to do that are listed in the post. Employers must also be flexible – especially when it comes to the items in the post. There are so  things employers can do – they are listed and discussed in the post.

TAKEAWAY: remote workers with disabilities may need accommodation – employers must be ready to fulfill their legal obligations in that regard. An employment lawyer can help.

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