In the post on Sunday 6/12/2022 we discussed 5 questions to avoid when interviewing potential cannabis and other hires. These are questions that are overly personal or might otherwise subject your company to an employment discrimination suit. And yes, various employment laws apply to applicants in addition to employees, so take heed. What are the protected characteristics when it comes to job applicants? See the post. Given that, the first question to avoid is “Do you have a disability?” Never ever ask that. What related question can you ask instead if appropriate? See the post. Other disability-related questions that you should not ask are also in the post. Next, do not ask “Are you married?”. Why? See the post. The other questions not to ask, and why the last one is relevant in the cannabis market, are in the post.
TAKEAWAY: Know what you can and cannot ask job applicants; run questions by an employment lawyer before using them just to be sure.
The post on Monday 6/13/2022 was about the Equal Pay Act: An Old law with New Twists. Yep, never a dull day in the legal arena. The EPA prohibits pay discrimination based on sex. The scope is narrow: it looks only at employees in the same workplace performing jobs that are the same or substantially similar. There are limited defenses as noted in the post. Usually the issue is whether the person filing the suit and the comparator are performing sub-stantially similar jobs. But not always as shown by 2 recent cases (cites for which are in the post). In the first case a claim was filed alleging base pay less than half that for a male colleague performing the same job in the same place. The trial court dismissed the suit on the basis noted in the post. On appeal the Circuit Court reversed after discussing the definition of ‘wages” in the EPA. The appellate court also referenced the relevant CFR section (see the post) in its analysis. In the second case the EEOC filed suit alleging that a school superintendent was paid less than her male predecessor in violation of the EPA. The defendant school district argued that both superintendents negotiated their pay so there was no violation. The EEOC disagreed with that argument based on some court decisions. And what did the court decide and on what basis? See the post.
TAKEAWAY: For a law that is now 49 years old, there are still major questions, such as the definition of ‘wages” and the scope of “any factor other than sex” as (part of) a defense. If you pay similarly-situated employees the same you won’t have to worry about these questions.
The post on Tuesday 6/14/2022 asked: What’s covered by a condo association (or HOA) insurance policy? You need to know the answer so you know what is protected and what is not – or for what you might want or need to buy extra insurance. The association’s policy generally will cover building structure (for condo-miniums) and common areas (for all associations). The association’s policy will probably have several components, such as liability protection and property coverage. For an explanation of the difference, see the post. The only way to know what the association insurance (a) is supposed to cover) and (b) does cover) is to read the relevant documents. And what are they? See the post.
TAKEAWAY: Consult a community association lawyer to find out what insurance is in place as to the association, how it affects your unit, and what other coverage you should have in place at your cost.
The post on Wednesday 6/15/2022 was about Summer interns? Factors to check to see if they should be paid or not. Internships are great – you as the employer help develop new talent and the interns gain valuable experience. But there are legal questions to consider. First, is the position paid or unpaid? Courts have considered many factors including whether both parties understand there is no expectation of com-pensation, if the internship provides training similar to what might be given in a classroom, and 5 others noted in the post. If the answer to most of the factors is in the affirmative, then it can probably be an unpaid position. If not, then it is a paid summer job. And why do you really care? Because there are legal ramifications to misclassification (that are noted in the post and which should scare you just enough).
TAKEAWAY: As with employees, know how to properly classify the pay status of interns so you stay on the right side of legal. Get assistance from an employment lawyer if needed.
The post on Thursday 6/16/2022 told us that Presidente Supermarket is to pay $75,000 to settle EEOC pregnancy discrimination lawsuit. According to the suit, the company fired an employee because of her pregnancy. She worked in the cafeteria. When she learned she was pregnant, she happily shared the news with coworkers. When the company’s cafeteria manager learned, he took action – see the post. The woman filed a charge with the EEOC which filed suit when conciliation failed. Now the matter has settled. But in addition to the $75K, Presidente has agreed to non-monetary remedies that are equally as important and are noted in the post.
TAKEAWAY: Treat all employees the same unless there is a valid legal basis to act otherwise – and get professional advice on that. Really.
The post on Friday 6/17/2022 showed that an HOA fraud lawsuit ends in $1.1M settlement. Why? Let’s go back a bit. The condo-minium association filed suit against the property management company, a construction company that replaced roofs, and former board members. The suit requested “no less than $2,627,195” in compensatory damages plus punitive and statutory damages. That number comes from a $2M claim against Ashley NMJ for roof work as listed in the post that was allegedly in violation of the Governing Documents (How? See the post.) And the allegations against the management company are also based on a violation of the Governing Documents plus more as noted in the post. More? The suit also alleges that the two former board members planned the whole thing to get kickbacks. The management company denied all allegations. When the suit settled, the board sent owners the message that is printed in the post.
TAKEAWAY: Board members and management agents must know and follow the Governing Documents and any contract between them. A knowledgeable community association lawyer will be an invaluable partner.
Finally, in the post yesterday 6/18/2022 we learned that the EEOC and DOJ say using AI technology in employment-related decisions may violate the ADA. When might AI be used in the employment context? Hiring, monitoring employees, determining pay or promotions, and for terms and conditions of employment. Ai might include resume-screening software, hiring software, chatbot software, and more as listed in the post. All of them allow for a more efficient process, often before a human gets involved. But there could also be legal implications … so in mid-May the EEOC and DOJ both issued guidance on the use of algorithms and AI in employment-related decision-making and specifically any impact on disabled persons in violation of the ADA. The EEOC Guidance focuses on the use of algorithmic tools whereas the DOJ Guidance focuses on hiring technologies sued by state and local government employers in violation of the ADA. So what is the Guidance trying to prevent? The tools predict how a typical applicant or employee would perform in typical working conditions, but persons with disabilities are not typical and so there could be issues under the ADA. The post gives a few examples of how a disabled person might be adversely impacted and what the (potential) employer would need to do. There is also a problem when the use of AI prevents a person with a disability from moving forward in the selection process – called “screening out”. And how does that run afoul of the ADA? See the post. Several examples of screen-outs are also in the post. Additionally, the Guidance cautions against AI tools that touch on disability, including those noted in the post. Finally, both the EEOC and DOJ offer best practices for ADA compliance when using AI algorithms, including staff training on accessibility and reasonable accommodation, tools designed to be accessible to those with various disabilities, and the others listed in the post.
TAKEAWAY: The possible impact on the ADA is just the start of involvement by the EEOC and DOJ with AI and employment – more will be coming so stay on the straight and legal path.