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 5/12/2024 was a deep dive: how the Age Discrimination in Employment Act (ADEA) protects older employees. The ADEA was enacted in 1967; it prohibits age discrimination against individuals who are 40 years of age or older. An historical background of the Act is in the post. The ADEA was amended in both 1986 and 1990; a description of the amendments are detailed later in the post. The provisions of the ADEA are enforced by the EEOC.
Let’s look at some of the key provisions of the ADEA. As relevant for this post, the ADEA applies to employers with 20 or more employees, employment agencies, labor organizations, and the federal government. The ADEA prohibits discrimination against a person because of their age with respect to any term, condition, or privilege of employment. That is broad; what it includes is listed in the post. The ADEA also prohibits harassment of an employee because of age. There is a also a prohibition related to advertisements; see the post for more on that. Finally, the ADEA also prohibits retaliation against certain individuals – see the post for those details.
There are exceptions to the prohibitions in the ADEA. The first is for a BFOQ. What that means, and how the exception works, is in the post. The ADEA also permits discrimination on the basis of age if done pursuant to a seniority system or employee benefit plan if not just a mechanism to avoid the purposes of the Act.
The Older Workers’ Benefit Protection Act (OPBA) is part of the ADEA. It specifically addresses benefits for older employees, making sure persons are not denied benefits on account of age. It also sets forth the conditions under which waivers of ADEA rights are valid and enforceable.
The ADEA has also been shaped by statute and case law. In 2009 Congress enacted the Lilly Ledbetter Fair Pay Act which extended the time frame in which an employee can file a claim of pay discrimination under the ADEA and Title VII. Also in 2009, the U.S. Supreme Court ruled that plaintiffs must prove that age was the ‘but-for’ cause of the adverse employment action they challenge. We also know that in a suit, the burden of proof shifts through the case. At the outset the employee must establish a prima facie case of age discrimination. How the burden shifts after that is described in the post. There is also a BFOQ defense to age discrimination suits; that slows employers to enforce age limitations when necessary for safety or operational reasons.
As noted above, the EEOC is charged with enforcing the ADEA. It has numerous statutory powers including the authority to investigate alleged age discrimination incidents and more as listed in the post.
The Act has both supporters and detractors. Some of the arguments made by each “side” are described in the post.
TAKEAWAY: Tread lightly if you are treating employees over 40 differently than similarly situated employees less than 40 years old. Get an employment lawyer involved pronto.
The post on Monday 5/13/2024 was big news: FTC noncompete ban could reshape the US workplace. The Federal Trade Commission’s decision to ban almost all noncompete agreements is a high-stakes shift in US law that could restructure the balance of power between businesses and workers. Some say that is a good thing, others say it is not.
On the one hand, the ban means it will be easier for US workers to leave their existing jobs to work for a competing company or start their own business. On the other hand, companies say it will become harder for them to protect trade secrets and confidential information. NOTE: this author thinks the ban may also stifle innovation – why should a business try to innovate when employees can take with them elsewhere information that an employer has paid to develop?
It comes as no surprise that the ban is already being challenged in the courts. That may determine if the ban will become effective (currently set for the end of August or early September). To whom the ban applies – and to whom it does not apply – is noted in the post. And interestingly, it applies retroactively.
There are a few exceptions, one of which is for existing noncompete agreements with company CEOs, presidents, and senior business executives who have “policy making” authority and are paid more than $151,164 annually. But the exception is limited – see the post.
There is also an exception for the use of noncompetes to protect a company’s interests if the company is sold.
Within a few short days after the ban was announced, two lawsuits were filed in Texas federal district court, one of which was by the US Chamber of Commerce. The arguments being made in those suits are described in the post. There is also a question as to whether alternative trade secret protections like nonsolicitation and nondisclosure agreements are legal if the FTC deems them overbroad. What that is important in view of the noncompete ban is noted in the post.
The ban may end up before the Supreme Court.
TAKEAWAY: Unless and until there is a stay of the ban on noncompetes or a final court decision finding it illegal/unenforceable, employers must start thinking about how to proceed in a world without noncompete agreements. Employment lawyers already have their thinking caps on
The post on Tuesday 5/14/2024 told us DOL recovers $92K in back wages, damages from FL outdoor furniture manufacturer that denied overtime. Investigators found the manufacturer did not pay eight employees overtime rates as required for hours over 40 in a workweek, a violation of the Fair Labor Standards Act (FLSA). The specific provisions that apply here are noted in the post. DOL recovered $92,562 in back wages and liquidated damages for the affected workers. There were also civil penalties on the basis and in the amount noted in the post.
TAKEAWAY: Know how to properly pay your workers – it can be very costly otherwise.
The post on Wednesday 5/15/2024 noted woman outraged after being told to remove ‘improper’ pride flag: ‘It’s a right of freedom of expression’. Or is it?
Just a day before the kickoff of largest LGBTQ Pride celebration in Florida, a resident was told to remove the Gay Pride flag she’d hung on her porch after fellow condo owners complained, calling it “improper.” What did Robin Chipman have to say about that? See the post. Chipman’s beachside condo is right near the setting of the pride celebration. When Chipman’s friend and his partner decided to rent out the unit above hers to join in the festivities, she busted out the rainbow flag as a way of showing she was an LGBTQ ally. But then enter the HOA. It sent a letter to Chipman about her flag – what the HOA said is problematic is in the post. The letter also told her to remove the flag by a date certain or pay a fine (with the amount and limit noted in the post). Chipman says it’s her freedom of expression.
The HOA has flag rules. Chipman talked about one of them – see the post. See also thinks she is being singled out (the basis for her thought is in the post). Will Chipman abide by the rule in the future? See the post.
TAKEAWAY: Other than banning the American flag, community associations (usually) have the authority to regulate flags within the association, including banning them or putting limits on where they can be hung. Contact a community association lawyer for assistance.
In the post on Thursday 5/16/2024, we saw neighbors protest creation of homeowners association, say HOA was unwelcome surprise. When Ken Baker purchased his home in 2022, he was glad to see there would be no homeowner’s association. He says he was never told about an HOA, not verbally or contractually. But a year later, in February 2023, Baker got a letter in the mail saying that a meeting would be held to turn over the HOA from the developer to the owners. He and several neighbors were caught off guard. But there WAS notice of the HOA in documents filed in 2006, 2012, 2018 and 2022 – see the post. So why didn’t Baker and others now about it?
During the early 2023 meeting, residents listened to an attorney explain that the developer had been managing the common elements since 2006. And what about assessments during that period of time? See the post. Those in attendance at the 2023 meeting say that the attorney told them that whether they go through with the HOA was up to them. The residents then voted – the unsurprising outcome is noted in the post.
Then in February 2024 owners received another letter. This one said that the developer had established an HOA for the community in December 2023, months after the community vote. The developer’s rationale for that action, especially in relation to the owners’ prior vote, is in the post.
After receiving the second letter, Baker took the matter to the City Council. He asked for the council to intervene. Stay tuned.
TAKEAWAY: If an existing or future community association is disclosed in documents of record, then buyers are on notice of that association when they purchase – this can become technical so consult a community association lawyer.
The post on Friday 5/17/2024 noted that the Workday AI case tests EEOC definition of employment agency. The EEOC’s decision to file a brief in support of a plaintiff who alleged Workday Inc.’s artificial intelligence-based hiring tools discriminated against him and other applicants has sparked widespread skepticism about the EEOC’s position that software vendors, and not just employers, can be liable in these bias cases.
AI-related discriminatory recruitment and hiring practices are high on the EEOC’s enforcement priority list. But its efforts to prove AI tool vendors are “employment agencies” under federal civil rights laws may face long odds in court. It doesn’t help that the EEOC seems to be in internal disagreement on the issue.
So what did the EEOC’s recent amicus brief say? And how did that differ from its technical guidance? See the post. Workday filed a brief in opposition to the EEOC’s position. Underlying the case is Plaintiff Derek Mobley, who is Black, over 40, suffers from mental illness, and said he had applied to 80-100 jobs but not been hired due to Workday’s biased screening tools.
Some background of the case is in the post. And while the EEOC didn’t take a position on the legal merits of Mobley’s claims it did urge the court to find that Mobley plausibly claimed Workday could be liable under Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. What else it said in its brief is in the post.
The EEOC’s position was apparently the result of a 3-2 vote. And interestingly, in slides from a March 28 EEOC webinar, it seems that EEOC regional office staff presented a different take on the vendor liability issue than what is in the brief. What did the EEOC say about that difference? See the post. And why did Workday say it should not be liable? Yep, see the post.
Frida Polli, CEO and co-founder of Pymetrics, a startup which uses AI to evaluate job skills through online assessments, said that in her experience as a former vendor these companies have “a tremendous amount of responsibility for the algorithms they build.” Polli also said that if Workday is held liable for violating federal antidiscrimination laws, her company may have to make changes to its algorithms. But she may not need to be worried based on how “employment agency” has been interpreted in this context (see the post) and how and why Judge ruled in dismissing Mobley’s original complaint (also see the post).
TAKEAWAY: The EEOC is now willing to take positions in this sector, thus backing up its statement as to AI-related priorities.
Finally, in the post yesterday 5/18/2024, we learned a federal court opinion offers guidance on how employers can identify reasonable accommodation requests under the ADA. You (should) know that when requesting reasonable accommodation under the Americans with Disabilities Act (ADA), employees are not required to use any special words (including those listed in the post) or to make the request in any specific manner (e.g., oral or written). What employees are required to do is noted in the post. But because of that, employers may not always recognize when an employee is making a request for reasonable accommodation, triggering obligations under the ADA’s interactive process.
The U.S. Court of Appeals for the Sixth Circuit recently issued a decision in Yanick v. Kroger Co. of Michigan that provides additional guidance on how employers can identify when an employee has communicated a need for a reasonable accommodation under the ADA. Let’s look at some background.
Within one day of being diagnosed with breast cancer, Mary Ellen Yanick told her assistant store manager, who then told the store manager. There were meetings about Yanick’s unsatisfactory job performance and Yanick started her medical leave on February 15, 2018, to undergo surgery. She returned to work with no restrictions almost four months later. A week later, the store manager met with Yanick to again discuss her unsatisfactory job performance. What Yanick said then is in the post. Yanick eventually stepped down from her position and ended up working in a position with lower pay and less authority. She then filed suit, alleging claims under the ADA for disability discrimination, failure to accommodate, and retaliation. The district court held that none of Yanick’s claims survived summary judgment, but the appellate court reversed on the claim for failure to accommodate. Its analysis is detailed in the post and provides a roadmap for employers.
TAKEAWAY: Employers must review all available facts and request additional information if needed in order to fulfill obligations as part of the reasonable accommodation interactive process. An employment lawyer can keep you on the straight and narrow.
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