HR investigation best practices; expanded definition of discrimination in PA; condo/HOA owners fighting their boards; “honest suspicion” of FMLA abuse, and more in Our Social Media Posts This Week, Jan. 29 – Feb. 4, 2023.

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

4 best practices when conducting an hr investigation

The post on Sunday 1/29/2023 gave us 4 best practices when conducting an HR investig-ation. First, develop an investigation plan. Not one for each individual investigation, but one that you will use for ALL investigations. It starts with the various sources from which informa-tion will be gathered (some of which are noted in the post), who should be interviewed, the timeline, and more as listed in the post. Next, collect as much information and evidence as possible. The action. This is done via data collection and interviews. Data could be in so many places and need to be gathered in multiple ways and might require collaboration with others – all as in the post. A recommendation as to interviews when the employer’s lawyer is present is in the post along with how the interview should be conducted. The third step is to reach a conclusion and report findings. This is where the investigative phase turns into a decision-making phase. A report should be issued with contents similar to those listed in the post and reviewed by the appropriate persons (perhaps those noted in the post) and most especially company counsel (because anything can turn into a lawsuit). And the last step? See the post.

        TAKEAWAY: HR investigations can be key to preventing lawsuits or defense if one is field – do it right from the start.

pennsylvania expanded the definition of discrimination

The post on Monday 1/30/2023 alerted us that Pennsylvania expanded the definition of discrimination. Yes, you need to know the law. First, some background. On 12/8/2022 the Pennsylvania Independent Regulatory Review Commission approved a proposed regulation from the Pennsylvania Human Relations Commission that amends the definitions of sex, religious creed, and race as in the Pennsylvania Human Relations and Fair Educational Opportunities Acts. There is a detailed definition of what the protected class of sex now includes (as listed in the post) and a broad definition of race (yes, also listed in the post). Religious creed is also broadened and now includes belief along with other things as noted I the post.

TAKEAWAY: Employers with 4 or more employees must know the law and in what ways their employees are protected.

unpaid family and medical leave in the us in 2023

The post on Tuesday 1/31/2023 was about unpaid family and medical leave in the US in 2023. Let’s start with federal law, the Family & Medical Leave Act (FMLA). It provides for time off for eligible personas for specified reasons, but the time off is unpaid. The FMLA includes medical leave and family leave for the reasons noted in the post. Parts of the FMLA relate to a serious health condition; that is a legally defined term that is described in the post. The FMLA provides up to 12 weeks of unpaid leave in a year for eligible employees (or sometimes 26 weeks depending on the circumstances – see the post). That time can be taken all at once (continuous) or over time (intermittent). Some states have their own unpaid family and/or medical leave laws; they vary and might be more or less limited (as described in the post). State laws may overlap with the FMLA or be more narrow or, in some cases, be more expansive. The FMLA does have certain protections for employees, including the right to reinstatement (what that entitlement is and how it works is in the post) and two more things described in the post. Again, state laws may mirror the FMLA or vary from it. What makes an employee eligible for FMLA protection? See the criteria listed in the post. What may or may not be surprising to you is that only 56% of employees are covered by the FMLA; that leaves a lot of workers who may or may not have similar protection under their state laws. And even under the FMLA, employers have the right to make employees use available paid leave concurrently with unpaid FMLA leave – see the post.

TAKEAWAY: Know what law (state or federal) applies to which employees relative to family and medical leave – consult an employment lawyer to make sure.

without warning, parking violation rises to mediation demand

The post on Wednesday 2/1/2023 told us that without warning, parking violation rises to mediation demand – is that ok? The situation here was that an owner, who is also on the association’s board, received a letter from the HOA’s lawyer for having allegedly broken a parking-related rule. There was no prior communication and the letter jumped straight to a pre-suit mediation request. Applicable provisions of the Bylaws are cited in the post. Arguably the HOA did not follow those Bylaws provisions. So the question is, what is the owner to do? First, ensure relevant and true facts. Next, look at applicable state law and the governing documents. And also think about the reality of the situation (a sample analysis of which is in the post).

        TAKEAWAY: Know the processes and procedures set forth in state law and your association’s governing documents – contact a community association lawyer for compliance Q&A.

condo owners want more power to fight their homeowners’ boards

In the post on Thursday 2/2/2023 we read that condo owners want more power to fight their homeowners’ boards. First, are you in that camp? Either way, keep reading. Some states now have community association (or common interest community) ombudsmen that work to resolve disputes between owners and association boards. One such process (that is low-cost and public) is described in the post. Other states are considering legislation to adopt ombudsman programs for such disputes. Some of the most common issues that arise are when a dispute is resolved and not reported to other owners or when an owner requests documents/records and is denied. However, ombudsmen have achieved mixed results, such that some people are instead pushing for board training (including those aspects noted in the post). And CAI (Community Associations Institute) has criticized the ombudsman program in the states where it exists (listed in the post).

TAKEAWAY: Association governing documents, and possibly state law, determine the procedure to resolve disputes between owners and the association – know what applies and get advice from a community association lawyer to know your rights.

burger king franchisee to pay $60K to settle pregnant ex-worker’s harassment, retaliation claims

The post on Friday 2/3/2023 told us a Burger King franchisee is to pay $60K to settle pregnant ex-worker’s harassment, retaliation claims. Yep, this was completely avoidable. According to the complaint filed by the EEOC, a former employee alleged that she was sexually harassed by a male manager and subjected to discrimination on the basis of sex and pregnancy. Oh but the employer dug even deeper – see the post. As part of the settlement, the employer entered a 2-year consent decree that includes the things noted in the post.

The fast food industry seems particularly rife with discrimination and harassment. News of this settlement came out less than a month after a McDonald’s franchisee paid almost $2M (yes that’s a lot of zeroes!) to settle claims that it repeatedly allowed teenage workers to be sexually harassed and intimidated. Employees in the McDonald’s suit made similar allegations to that of the employee in this Burger King suit (as noted in the post).

TAKEAWAY: Train managers how to properly address complaints of discrimin-ation and harassment – which does not involve sticking their heads in the sand or retaliating.

company had “honest suspicion” couple’s overlapping fmla leave indicated abuse, court says

Finally, in the post yesterday 2/4/2023, a company had “honest suspicion” couple’s overlapping FMLA leave indicated abuse, a court finds. the 7th U.S. Circuit Court of Appeals held Jan. 12 that an automotive manufacturer properly suspended an employee based on its “honest suspicion” he abused leave under the FMLA. How often was there overlapping leave in that year? See the post.

The couple work at the company’s trans-mission plant. In 2017, they took intermit-tent FMLA leave for periodic flare-ups of their conditions: He had back pain, anxiety and depression; her condition is noted in the post. The company’s outside FMLA administrator noticed the couple’s FMLA leave frequently overlapped, but then it found something else on closer review: more than half of the husband’s absences were on the same day or for the same part-day time periods as his wife’s, but … see the post. Neither spouse could explain the frequent overlap. Both were temporarily suspended and the husband sued for an alleged FMLA violation.

A federal trial court granted summary judgment to the company, and that was upheld on appeal. How and why the trial court found judgment for the employer was appro-priate is in the post. After noting to what the FMLA entitles eligible employees (yes, it is in the post), the appeals court noted how that worked with the facts here. It deter-mined that an employer doesn’t have to “conclusively prove” the employee abused FMLA leave by using it for a non-intended purpose; rather an ‘honest suspicion’ will do.” The court then applied the facts to that determination (as in the post) and affirmed the trial court.

This is not the only case dealing with an employer’s honest suspicion. Other employers have established honest suspicion by relying on surveillance to show a worker didn’t use FMLA leave for its intended purpose. That facts of that case are described in the post along with how the trial court dealt with that evidence and what happened on appeal (to the federal circuit court whose decision are binding in Pennsylvania).

Spring boarding off that case, the appellate court in this case clarified that there was no requirement for employers to conduct surveillance before disciplining an employee. That surveillance evidence is used in some cases to show an employer honestly suspected FMLA abuse doesn’t mean it’s necessary in all cases, the panel said. An example is in the post.

TAKEAWAY: know what employees can do with approved FMLA leave – and monitor it for anything that seems suspicious. But get legal advice before taking action.

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