FLSA pleading standards; discharge during approved FMLA leave; condo fines owner for guest’s violation; and more in Our Social Media Posts This Week, Nov. 26 – Dec. 2, 2023.

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.

flsa plaintiffs only need to plead 40+ hour workweeks

The post on Sunday 11/26/2023 told us FLSA plaintiffs only need to plead 40+ hour workweeks. Roadmap …  The federal appellate court held that a complaint alleging that employees were misclassified as managers and regularly worked more than 40 hours per week was sufficient to keep the FLSA collective action for overtime alive. Let’s look more closely …  

Thirteen former employees of a New York retailer, with titles that included the term “manager” (such as “assistant floor manager,” “floor manager” and “sales manager”), alleged that they were misclassified as exempt managerial employees and not paid overtime as required by the FLSA. They also said that despite their titles, their actual duties were non-managerial, they were not fully relieved from duty during lunch breaks, and often worked additional hours not part of their regular schedules. Examples supporting their allegations are in the post. The employer moved to dismiss, arguing that the plaintiffs failed to allege the number of hours an employee worked with the requisite level of specificity. The trial court agreed, granting the motion.  

But the federal appellate court reversed. What it found as to the allegations in the complaint is noted in the post. The complaint alleged that the plaintiffs’ regularly scheduled work hours consisted of five shifts per week, with each shift lasting between 8.75 – 9 hours, such that they had between 43.75 – 45 hours of work per regular week. And what did the appellate court say about that? See the post. And what effect was there by the other allegations in the complaint relative to post-work duties and merchandise shipments? See the post. A link to the appellate court’s opinion is in the post.

TAKEAWAY: FLSA plaintiffs should not need to identify each week that they allegedly worked in excess of 40 hours. Employees and employers need to know the pleading standard.

can employee legally be fired during fmla leave?

The post on Monday 11/27/2023 asked: can employee legally be fired during FMLA leave? Let’s start the answer with a quick refresher on the FMLA. It is a federal law providing eligible employees with job-protected leave for certain family and medical reasons. To be eligible for FMLA leave, an employee must meet certain criteria as noted in the post. Further, FMLA leave is only available for specific qualifying reasons (which are noted in the post). FMLA leave can be taken all at once or intermittently. During the approved leave, the job (or an equivalent one as defined in the post) and health benefits are generally protected. However, there are steps for an employee to take related to an FMLA leave – see the post.

But job protection under the FMLA is not absolute. There are certain circumstances under which an employer may legally terminate an employee who is out on approved FMLA leave. The termination must be for reasons unrelated to the leave. Some situations where termination may legally occur are listed in the post. Employers must handle terminations carefully and in compliance with applicable laws. A few things employers can do to support a valid, legal termination are in the post.

Ok, so we know that the FMLA generally prohibits employers from interfering with an employee’s right to take FMLA leave or retaliating against an employee for exercising their FMLA rights. What type of actions comes within the anti-retaliation provision? See the post. And while employers legally cannot terminate an employee solely for taking FMLA leave, there may be circumstances where an employee can be terminated for reasons unrelated to FMLA (as noted in the post). The burden to show validity and legality of the termination is on the employer.

TAKEAWAY: Employers and employees must know who is entitled to FMLA leave, for what purpose, and whether discharge can occur during an approved FMLA leave. Consult an employment lawyer.

owners sue condo association over $763K in allegedly unpaid expenses.

The post on Tuesday 11/28/2023 noted that owners sue condo association over $763K in allegedly unpaid expenses. That is not a typo!  An Epic legal battle is brewing at a waterfront condo-hotel in downtown Miami. Let’s take a closer look (and see what we can learn by way of example).

The hotel owner of the Epic Miami Residences & Hotel is suing the condo association for the 54-story tower’s condo component. The lawsuit, filed on Oct. 20, alleges that the association hasn’t paid $763,313 in shared maintenance expenses dating back to 2020. 

Details on Epic Hotel’s ownership and development of the property are in the post. The 414-room hotel portion is managed by Kimpton. The suit alleges that the condo association is in violation of the master declaration that requires maintenance and repair expenses for the building’s common areas be shared equally. Attorneys for Epic Hotel and the Association President did not respond. And what are the allegedly owed funds for? See the post.

TAKEAWAY: Associations, whether condo or homeowners’, are liable for the expenses association with maintenance that is the association’s obligation. If the cost is passed through from a master association, then it still must be paid. Owners and Boards must know who is responsible for what obligation and expense. A good community association lawyer might be indispensable.  

federal court expands employee retaliation options: 3 steps employers can take to prepare

The post on Wednesday 11/29/2023 noted a federal appeals court expands employee retaliation options: 3 steps employers can take to prepare. While this decision is not binding in Pennsylvania, it can serve as guidance especially given the potential impact and breadth.

Daphne Berry worked as a charge nurse in the emergency department (ED) of a hospital from 2007 – 2018. Ms. Berry was viewed as a reliable employee, had consistently high performance evaluations, and one supervisor said Ms. Bery was a leader of “the strongest and smoothest crew” in the ED. But then in February 2018, Ms. Berry was involved in an incident that set her termination in motion and ultimately led to a lawsuit against the hospital. During her February 18, 2018, shift, video footage showed Ms. Berry and her team acting inappropriately while providing care to a psychiatric patient. What they did is in the post. After receiving a complaint (allegedly from the patient’s family member) about that behavior, the hospital investigated. The action it then took is noted in the post.

Ms. Berry, who is Black, thought a white co-worker made the call, claiming to be the patient’s family member. Her basis for that is in the post. Ms. Berry complained to her supervisors, reported her suspicions to the hospital’s compliance hotline, and filed a grievance alleging that she was treated unfairly because of her race. The hospital did a thorough investigation (given the overall circumstances as noted in the post). The investigation did not substantiate who made the call, but what it did turn up relative to Ms. Berry in the post. investigators interviewed 24 individuals in the department, 16 of whom raised concerns about Ms. Berry. The hospital then terminated Ms. Berry’s employment and she filed suit alleging race discrimination and retaliation.

Ms. Berry ultimately lost. A federal trial judge dismissed her claims because the hospital conducted a sound investigation and could present legitimate reasons for her termination. That decision was affirmed on appeal. It is the appellate decision that is important as it may provide employees with another basis to claim retaliation.

The usual burden-shifting framework in a retaliation case (including in PA) is described in the post. But in this case the appellate court decided that in addition to that framework, an employee can also prove retaliation using circumstantial evidence “in any form” that might create an inference of retaliatory intent. So what does that mean for employers? The employee can now argue either that the employer’s stated reason for the termination (or other adverse action) is false or that the employer’s actions are enough to infer, on their own, that its motive was retaliatory. The possible effect on employers is noted in the post. Given that, what can employers do to prepare a defense before it is needed? First, increase training for all employees with managerial and/or supervisory authority. Why? See the post. Next, update policies, handbooks, and reporting procedures. Make sure they contain the things noted in the post and that clarifications are included (as also in the post). Another step employers can take, which should already be ingrained, is in the post along with details.

        TAKEAWAY: Employers should be vigilant and ensure facts support any adverse decision they make; run things by an employment lawyer before taking action if there is any possible question.

waste pro sued by eeoc over allegations of racial discrimination

In the post on Thursday 11/30/2023, we saw that Waste Pro sued by EEOC over allegations of racial discrimination. Can’t wait to see how this turns out… The EEOC’s suit alleged repeat patterns of racism and retaliation against employees at the company’s Jacksonville office. The lawsuit details allegations of racism, discrimination and retaliation suffered by a former Black Haitian American employee. Some of the allegations are noted in the post (and should not still be happening in this day and age). After the employee complained to upper management, something else ( see the post) happened just before a meeting scheduled to discuss race discrimination with maintenance employees. The suit alleges that management failed to take corrective action.

The employee’s attorney noted that if the allegations are proven to be true, Waste Pro could be on the hook for hundreds of thousands of dollars in damages. And non-standard and/or non-monetary damages as noted in the post.  Waste Pro disputes the allegations; it said that at the time the employee complained, Waste Pro “acted appropriately in investigating the issue and taking remedial action.”

TAKEAWAY: Need we say it? Treat all employees the same; do not harass or discriminate against them on the basis of race or any other legally protected characteristic. Get legal assistance.

is that even legal? condo fined owner for speeding guest

The post on Friday 12/1/2023 asked: Is that even legal? Condo fined owner for speeding guest. Would this turn out the same under PA law? Let’s look at the background. A physical therapist visited the patient’s condo for therapy. The association took a picture of the therapist’s car and license plate and said that she exceeded the speed limit inside the community. Then the association billed the condo owner (patient) for the fine. So is that legal? 

Statutes commonly provide that owners and their tenants, guests and invitees must abide by the association’s covenants and rules. The association normally has the right to levy a fine for violations. But the question here is whether the fine would be the responsibility of the owner or the therapist.

The first place to look for an answer is the association’s governing documents. Look for things as noted in the post. Make sure any procedure has been followed.

TAKEAWAY: What happens if the fine is the responsibility of the therapist and she doesn’t pay? PA law would deem the fine as a lien against the unit, essentially making the fine the owner’s responsibility anyway. Get guidance from a community association lawyer.

ex-TaskUs employee alleged it fired her for complaining about a colleage who engaged in “Sexual Acts”

Finally, in the post yesterday 12/2/2023, we saw that an ex-TaskUs employee alleged it fired her for complaining about a colleague who engaged in ‘Sexual Acts’. Could we have just stopped at “fired her for complaining”?

A woman filed suit against her former employer, TaskUs, alleging that she was discriminated against because of race and gender after she reported a coworker  for … see the post. Brittany Lee is seeking monetary compensation for her termination and “mental anguish” caused by what she says was discrimination and retaliation. The complaint states that Lee began employment in June 2022 as a team member, the only Black employee in the city (that she knew of). Lee notified her supervisors and the HR department that a man who sat adjacent to her was … see the post. She alleges that she was terminated instead of the white coworker that she reported. On what basis did she make the allegation? See the post. When asked for a response, TaskUs unsurprisingly denied the allegations.

Lee alleges that she was qualified to do her job. She also mentions administrative exhaustion – see the post. The complaint includes allegations of discrimination and retaliation on the basis of race and sex. What Lee seeks by way of damages is detailed in the post.

TAKEAWAY: Unless you can prove an employee’s complaint is not made in good faith, do not take adverse action against them. Period. Talk to an employment lawyer to make sure you are on solid ground for the discharge.

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