The posts on Sunday 1/1/2023, here, here, and here, the first of the New Year, noted that as you look for a (new) job, know 13 illegal job interview questions you don’t have to answer (and employers shouldn’t ask). Why? Because the EEOC might jump on it – and not only might an applicant experience discrimination but an employer could be in hot legal water. So what are the 13 questions? First, and this should be obvious but many times is not, is age. This can cut both ways as noted in the post. For the most part, asking about age is illegal (except as noted in the post). Next is whether the applicant has ever been arrested (not convicted, just arrested). Why this is illegal is in the post (as well as how to respond if asked about convictions). Another illegal question is one about disabilities – at least until after a job offer. What can then be asked and discussed is noted in the post. Another area not to wade into is the applicant’s financial situation? Why that is illegal is in the post (along with what an employer must do prior to conducting a background check). Employers also cannot ask about an applicant’s military discharge status or records. What can be questioned relative to military service is noted in the post. The other categories/ questions are discussed in the post – as well as some options if one of these questions is posed during an interview.
TAKEAWAY: Employers need to know what they can delve into in interviews and what is off limits (and at what time). Consulting an employment lawyer is a good start.
The post on Monday 1/2/2023 was about mandatory remote working – can employers force employees to work from their homes? We already know that many companies across various sectors have made permanent the option for employees to work remotely. Others have pulled employees back to the workplace in person. And then there is the question of whether employers can require remote work. The first thing to look at is if any employees have any contractual provisions guaranteeing them the right to work in the office and if the employer can change that. Next, an employer must know if there is any union or organized labor provision as noted in the post. And what about changes to benefits or allowances if employees move to fully remote work? Again, the first question is whether there is a contractual right and if so, the ability to amend that provision. Follow-up questions in this area are noted in the post. And even if the pre-existing benefits or allowances can be removed, new ones (such as those mentioned in the post) might need to be added. Employers must also keep in mind their obligation to provide a safe (and healthy) workplace even if employees work remotely. Some things employers might want to do in this regard are noted in the post.
TAKEAWAY: Talk to an employment lawyer and walk through all possible ramifications to the employees and employer before making remote work mandatory.
The post on Tuesday 1/3/2023 told us five pitfalls for employers to avoid when exiting employees. This is always important but has been even more so as employees resign at a greater pace (either to leave the workforce or to go to another employer). So what should an employer avoid? First, don’t skip exit interviews. That is a good time to remind the departing employee of any continuing obligations (such as non-competes) and ensure all company property has been returned. Other information can also be gleaned as noted in the post that might be important to the employer going forward. Another thing employers should not do is fail to demand return of company information. In times long past it was perhaps easier as paper was the mode of storage. Now so much is digital and in various storage locations. How an employer should proceed is in the post. The other three things are just as important and are discussed in the post.
TAKEAWAY: Employers must continually protect their businesses, even if employment is being terminated voluntarily. Know what steps to take.
The post on Wednesday 1/4/2023 was a condo (and homeowner) advisory: associations have authority to require removal of holiday lights (before and after holidays). The big 2022 season might be over, but there are so many holidays during the year (Valentine’s Day is up next!) for which owners put up decorations that this is an important topic. The Governing Documents (Declaration/Covenants, Bylaws and Rules & Regulations) should address unit boundaries, i.e., what an owner owns (the unit) and what the association owns (common elements) and what decorations can be put up where and when. There is no question as to association authority (as noted in the post). But questions so arise if the Governing Documents have discretion or leeway built in relative to holiday decorations.
TAKEAWAY: Have a community association lawyer go through your Governing Documents to ensure they say what you want them to and are legally compliant.
In the post on Thursday 1/5/2023 there was more on holiday lights and condo/HOA restrictions. The house discussed in the post is similar to many where the owners put up an extravagant Christmas light show. But the Johnsons also use their house as a community drop-off for donations to a food bank. The HOA got involved early on; what it said to the Johnsons – and its full response when contacted by the media – is in the post.
TAKEAWAY: Let’s say it again: make sure your association’s governing documents are clear – have a community association lawyer review them.
The post on Friday 1/6/2023 told us that Apple agrees to let workers speak out about harassment and discrimination. We wonder if this start a wave … What Apple has really agreed to do is limit its use of nondisclosure agreements and clarify its policies on when employees can speak out about discrimination and harassment. How did this come about? See the post. In mid-December Apple released a report on its use of nondisclosure provisions. Apple also hired outside counsel to review its related policies – what they did and noted is in the post. Apple also is complying with any applicable state laws such as noted in the post.
TAKEAWAY: The #MeToo movement has spawned many changes in the employment area having to do with buying silence in cases of (alleged) discrimination or harassment; the tech industry is a big driver so this may be only the start of the next wave.
Finally, in the post yesterday 1/7/2023, we were reminded that accurate job descriptions remain critical for ADA compliance. Why? Because the ADA protects an eligible employee who can perform the essential duties of a job with or without accommodation. Therefore the essential duties must be known; often whether something is an essential duty is a point of contention and can lead to litigation. Some courts look at the portion of time taken up by a duty as to whether it is classified as essential; see the post for more on this. But the case discussed in the post has diverged. It is out of Florida and so not binding on PA employers, but it provides a good roadmap nonetheless. Timethia Brown worked for Advanced Concept Innovations, a packing and manufacturing company. Her job was clerical and while she mostly worked at her desk in an office, she was also required to work on the production floor up to 20% of her work time (yes, odd). Brown had a medical condition described in the post and for which she requested what seem like simple and logical accommodations. ACI approved part of her requested accommodation but not all of it because of the essential duty requirement. Then ACI acted as noted in the post. Brown then sued under state law and the jury ruled in her favor (that what ACI did not approve was not an essential duty). On appeal the federal court used ADA regulations and case law when making its decision. It keyed in on three things in affirming; those are noted in the post and serve as a rough map for employers and reaffirms the need for correct job descriptions.
TAKEAWAY: Help yourself for any potential future need for defense; make sure job descriptions are correct and meet legal requirements including under the ADA.