There was (erroneously) no post on Sunday 12/04/2022. Instead, there were TWO posts on Monday. So …
The first post on Monday 12/5/2022 noted that age discrimination in the workplace has increase post-pandemic (per an AARP survey). The survey looked at those ages 50-70, those with experience, expertise, maturity and perspective. Those who end up being treated unfairly, and illegally, because of age. For example, research shows that 15% of those age 50+ said they were not hired for a job they applied for within the past two years because of their age. How that could come up in the hiring process is noted in the post (as well as during employment). Employers and employees should ensure that hiring, firing, pay, assignments, promotions, and more (as listed in the post) are all done without regard to the age of the employee.
TAKEAWAY: Age is a “protected characteristic” and should not be used as a basis for any employment action (unless a lawyer explains why it should).
The second post on Monday 12/05/2022 noted ‘Tis the season – to update your company’s employee handbook. We stress that you should NOT push this off to a different time! You may think that a handbook is useless, but it can be a great help when defending wage and hour, harassment, discrimination and leave claims or suits. So let’s talk about just a few areas you should review and consider updating. First, paid leave. Some sates now have statutes requiring paid leave, so pay attention to where your employees are located (and how many are in that state). Also make sure to explain to employees when they are (or are not) eligible for FMLA leave and, if different, leave under applicable state law. And for more on paid leave policies, see the post. Next, expense reimbursement. You should know that federal law requires only that employees be reimbursed for expenses that bring their earnings below the federal minimum wage. But state and local laws might be different (as to amount and timing of payment). And with remote work still a ‘thing”, you probably need to revise your policy for those things discussed in the post. Third, think about the protected characteristics. Both state (or local) laws and court decisions have expanded protections by adding categories or interpreting existing categories more broadly. Because of that, it might be better to include in your handbook language such as that suggested in the post instead of trying to list all categories/ characteristics that are protected. A few other tips are in the past too.
TAKEAWAY: Your handbook should be a living, breathing document, responsive to changes in the law or your operations. Review it with an employment lawyer before disseminating to employees.
The post on Tuesday 12/06/2022 told us the Alaska commission that investigates discrimination has been sued for alleged discrimination. The former director of the commission, Marilyn Stewart, filed suit in late October, alleging that she was fired (after less than a month on the job!) as a result of discrimination. The suit says that because Stewart is black, a woman and a military veteran her employment was terminated in 2019. Commissioners are appointed by the governor and report directly to the governor. Stewart’s back-ground is noted in the post (and, one would think, made her an ideal director for the commission). Stewart says that she started to work July 1, 2019, and soon learned that she was being paid much less than her predecessor, a white woman. On Day 3 she asked about that pay differential. She then had a meeting with the commissioners; what happened in that meeting (as alleged in the suit) is described in the post. A week later, the commission voted to fire her after the chair made the statements about Stewart that are noted in the post. And was this an isolated thing? Perhaps not if you look at the post as to what the former Director (Stewart’s predecessor) posted on social media!
TAKEAWAY: Nobody is above the law, not even those who are charged with enforcing it. Treat all employees the same and in a legal manner.
The post on Wednesday 12/07/2022 was about how a court ruling in a double homicide could cost HOA or condo owners millions. A decision by a judge could open the door to holding condo-minium (or homeowners’) associations responsible for the safety and security of building occupants if the threat is reasonably foreseeable. That translates to potential big $$$ for owners if associations are found to be negligent. In the case (linked in the post), the estates of two anesthesiologists who were brutally murdered in their condo in 2017 are suing the association as well as the management and concierge companies. On Oct. 20th the Court upheld the convictions of Bampumim S. Teixeira, a former concierge in the building, who is serving a sentence of life without the possibility of parole. Lawyers for the association had requested dismissal of the suit (on the basis noted in the post). In her decision to allow the case to go forward, the judge said that an association “… bears a duty to exercise due care for the residents’ safety in those areas under the association’s control.” So now association lawyers are advising their clients to review security policies and procedures to flag any vulnerabilities and address them. And how is that playing out? See the post. This goes to the heart of risk management and more because all insurance policies have limits. So why do you care? Because damages awarded in a wrongful death claim could be several million dollars or more and if the insurance coverage is insufficient … see the post. So associations need to take actions now, including looking at all areas of the property relative to how are guests and visitors, parking and day-to-day operations handled? And more specifically, those things noted in the post. One example deals with loading docks, something you might not think could present a risk. But you’d be wrong; see the post. And changing things might also present problems, such as moving from metal keys to key fobs or a credential on smartphone. The post explains how that might be a problem but some possible ways around it.
TAKEAWAY: Boards need to look more closely at common areas now – and discuss with a community association lawyer steps to take to decrease potential liability.
In the post on Thursday 12/08/2022, we looked at nightmare on Redick Street. This post is actually a VID, a really good one. It applies year-round and may be broader than you think.
TAKEAWAY: Know what decorations your condo or homeowners’ association allows and prohibits BEFORE you decorate.
The post on Friday 12/9/2022 reminded us about employee personnel files – what should and shouldn’t be included. Even in this digital age, there is still a lot of actual and electronic paper in employee files. And all of it must comply with government and industry regulations, so setting up employee personnel files is an important part of the recordkeeping process. These files serve a distinct purpose and while some papers commonly belong in the files, others do not. Think of the personnel file as akin to a history of the indiv-idual’s employment relationship with the company, from employment application through employment termination (for whatever reason. So what types of paper should be in the file? Those that would be relevant to a supervisor when making employment decisions and at other times as noted in the post. Some things frequently found in personnel files include job application, resume, recruiting and screening documents, job description, and many more as listed in the post. Some documents related to the employee should NOT be in the general personnel file and often contain sensitive or confidential information. And there are other reasons documents should not be in the general personnel file such as are noted in the post. Often those documents are placed in one or more other files and include personal medical information, medical leave of absence requests, accident reports, and more as in the list in the post. The Rehabilita-tion Act and HIPAA present requirements as to certain information as described in the post. So what types of things might be considered confidential and NOT placed in the general file? Date of birth, marital status, social security number, immigration status, various payroll-related documents, and more as are listed in the post.
And what about maintaining the personnel files? Are they actual paper or are they digital or a combination of the two? On-site or off-site? There are pros and cons to both that are discussed in the post. Also noted in the post are the length of time certain documents in a personnel file must be maintained for legal reasons. Make sure there is a checklist for those documents.
Finally, know who can view the contents of each file according to state law and any internal documents (such as employment agreements or handbooks). The states listed in the post allow employees to see some or all of the documents in their personnel file. And what should they find? Nothing that would be a surprise. Rather, the folder they are allowed to review should contain those things discussed in the post.
TAKEAWAY: Know what legally can or cannot be in what type of personnel file; talk to an employment lawyer to make sure your company’s files are properly organized and maintained.
Finally, in the post yesterday 12/10/2022, we see a company ordered to pay $73,000 after it fired remote employee who refused to keep his webcam on all day. The court ruled that making an employee keep their webcam on was an intrusion of privacy rights. The employee worked remotely for Chetu, a US software company. The company told him on August 23 that he’d need to keep his webcam on all day for a virtual training program, And what was the employee’s response? See the post. The employee said the company could already monitor his activities on his laptop and that he also was sharing his screen. Another employee chimed in about the requirement for employees to keep their webcams on; what was said is in the post. Three days later, the virtual employee was fired for “refusal to work” and “insubordination.” The fired employee took Chetu to court on the basis noted in the post. The court sided with the employee, saying the firing was “not legally valid.” Details on the ruling (which was based in part on the European Convention on Human Rights) are in the post. Chetu didn’t immediately respond to a request for comment.
Note that if the employee had been working in Florida or many other places in the US, he would probably be an “at will” employee. A reminder of what that means is in the post. But the court here said that Chetu has to pay the former employee about $48,500 in fair compensation, $2,600 in unpaid salary, $8,126 for wrongful termination, and the unpaid holiday allowance.
TAKEAWAY: While this would probably turn out differently in PA, you need to know how much control you do or do not have over remote employees; get advice from an employment lawyer.