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.
NOTE: even though (or despite the fact that) some agencies have attained quorum, there is still (and expected continued) instability and fluctuation in federal labor and employment law – so check with us (or another employment lawyer) before taking action based on something in our posts.
The post on Sunday 11/16/2025 noted DOL issues opinion letter clarifying “horizontal” joint employment. Yes, employers must know (whether and) how to pay workers.
The opinion letter (which is linked in the post) was issued on September 30, 2025, to described when “horizontal” joint employment requires separate legal entities to be treated as one employer for purposes of overtime under the Fair Labor Standards Act (FLSA). Let’s look at what “horizontal” joint employment is as well as the facts underlying the opinion letter.
The background involved employees who worked at a restaurant and a members-only club which were both located in the same hotel. DOL reviewed the employees’ work and the relationship between the entities and concluded that even if the restaurant and club are separate legal entities, the hours worked by the employees at each establishment would need to be aggregated for purposes of FLSA compliance.
DOL’s conclusion was based on its determination that the two separately incorporated entities were to be considered a single employer under the principles of “horizontal” joint employment. It then defined what that means as being “sufficiently associated” with respect to the employees. While DOL said there is no bright-line test, it gave examples of when horizontal joint employment may be found – see the post.
Om the facts before it, DOL found the hotel restaurant and club were joint employers. Among other considerations, the DOL found it relevant that: (a) the two facilities appeared to be operationally integrated with each other (e.g., sharing a kitchen); (b) managers periodically supervised employees at both facilities; and more as noted in the post. Based on the finding of joint employment, all hours worked by an employee of both the restaurant and club must be combined for FLSA compliance purposes.
Contrast the issue here – horizontal employment – with DOL’s perspective on vertical joint employment which focuses on the employee’s relationship with the alleged employer and another intermediary entity, such as a staffing agency or subcontractor. How and when vertical joint employment has been found has changed from administration to administration – see some differences as outlined in the post. But DOL’s approach to horizontal joint employment has been remarkably consistent.
TAKEAWAY: Corporate formalities (i.e., being separate legal entities) does not override FLSA obligations when operational reality indicates the entities coordinate to share an employee. If you are in this situation, discuss with your employment lawyer whether joint employment applies.
The post on Monday 11/17/2025 began talking about 6 things HR should know about intermittent FMLA leave. Employers often complain that the Family and Medical Leave Act is difficult to administer, and especially so when the leave is intermittent or occurs at irregular intervals. Regardless of how taken, it is imperative that employers keep a good-faith mindset that employees who request FMLA leave need it. It is easier to meet statutory obligations that way. Here we discuss the first 3 things employers should keep in mind around intermittent FMLA leave. Because this is so important, we discuss the other 3 things in our post on Sat. 11/22/2025.
1. Intermittent leave requests have grown, partly due to mental health issues. Lawsuits involving mental health-associated FMLA issues have also increased; similarly, the underlying mental health conditions are increasingly cited as a cause of worker absences. Some statistics on this are in the post (and may open your eyes).
And – pay attention here – some courts have found that a change in employee behavior and moments of mental health crises can be sufficient notice to an employer of the need for FMLA leave (without any verbal or written request on the part of the worker). What does this mean for employers? See the post.
2. Expectations should be set up front. There is no magic to prevent potential misuse of intermittent leave, but employers can (try to) get ahead of any hiccups by setting clear expectations around things like communication of the need for leave and more as noted in the post. Having good policies in place helps the employees, their physicians, and the courts. One of the most important things for employers to explain is call-in requirements; there are others too and they are listed in the post.
3. Vague or insufficient leave certifications can be trouble. Employers may use medical certifications to verify the need for intermittent leave. But what they can do after receiving it is often forgotten or misapplied. See the post for guidelines for that stage of the process.
And what about a situation where an employer suspects misuse of FMLA leave — for example, the common pattern of Friday and Monday absences – or needs clarity on duration or other facets of the leave? See the post for what an employer can do.
Remember that the other 3 things for employers to remember about intermittent FMLA leave are discussed in our post of Sat. Nov. 22, 2025.
TAKEAWAY: Because the law allows FMLA leave to be taken on an intermittent basis, employers must know both their rights and obligations surrounding that type of leave. Discuss with an employment lawyer.
The post on Tuesday 11/18/2025 noted parents of boy killed by dogs file lawsuit against HOA, management company. A nightmare for everyone.
The parents of Michael Millett III, who was mauled by two dogs and later died on Jan. 13, recently filed a lawsuit related to his death. The wrongful death lawsuit is against the homeowners association and the property management company where the incident happened. The suit claims the HOA was negligent for the reason explained in the post. The suit also says the management company knew about it (and more as also noted in the post).
According to the Sheriff’s Office, two dogs attacked the 8-year-old boy just before 5 p.m. Witnesses called 911 and attempted CPR, but he died from his injuries. And in case you want to know what happened to the owners of the two dogs, see the post.
The Sheriff said Michael was riding his bike with a friend when he stopped to pet one of the dogs and that is when the attack happened. More details on the attack are in the post. Michael’s mother dove on top of him.
A tv station reached out to the management company about the lawsuit that seeks at least $50,000 in damages.
NOTE: there is also a VID embedded at the beginning of the post.
TAKEAWAY: Depending on the layout of the community and what is public versus private, condominium and homeowner associations may have obligations to various persons. Proper maintenance and upkeep of facilities is always a best practice. Talk to a community association lawyer to ensure your association is minimizing its legal risk.
The post on Wednesday 11/19/2025 explained Title VII religious bias protections do not extend to secular preferences, court holds. Federal Circuit split now.
The 9th Circuit Court of Appeals recently held that a former employee of an Oregon health system failed to show she was unlawfully denied religious exemption from a COVID-19 vaccine mandate because her objection to the employer’s proposed accommodation was “personal and secular” rather than a bona fide religious belief. Let’s dive deeper on that distinction.
By way of religious accommodation, Detwiler sought and was approved to wear personal protective equipment and submit to weekly antigen testing in lieu of vaccination. But she objected to the testing requirement on the basis described in the post. Instead of the antigen testing Detwiler sought accommodation in the form of saliva testing for COVID-19 or full-time remote work. The employer denied the request and eventually fired Detwiler. She alleged violations of Title VII and state law. The federal district (trial) court dismissed the case for failure to state a claim and majority of the 9th Circuit’s three-judge panel affirmed.
A (or the) key to the decision was Detwiler’s rationale for refusing the antigen test (see the post). The court said her stated basis was “far too attenuated from the broad [religious] principle to treat the two as part of a single belief.” The court also noted that Ninth Circuit precedent holds that Title VII’s protections do not extend to secular preferences (which was the death knell for Detwiler as explained in the post).
The court also cited EEOC guidance on COVID-19 vaccination requirements (NOTE: under Loper Bright, that guidance may no longer be given full weight). That the guidance says is in the post. The court elaborated on that with its quotes that are in the post.
The court’s majority also noticed that several other circuits, including the 6th, 7th and 8th Circuits, have adopted more lenient standards. The court referenced one decision from a divide panel of the 7th Circuit – see the post. The 9th Circuit declined to adopt a similar analysis, but with at least one dissent (yep, see the post).
COVID-19 vaccine requirements have fueled multiple religious discrimination claims and suits since the pandemic, and (not surprising based on its prioritization of religious freedom in the workplace) the EEOC has brought several such lawsuits on behalf of plaintiffs, including a recent suit against the Mayo Clinic (see our post of Wed. 8/13/2025) as well as a 2024 case against an Oklahoma manufacturer (linked in the post). As of the date of the post, both cases remained in litigation according to court records.
TAKEAWAY: Employers must accommodate workers’ sincerely held religious beliefs; there is a new, lower standard under Groff v. DeJoy, so employers need to have a process in place to properly participate in the interactive accommodation process (including any undue hardship that might exist). Get an employment lawyer involved.
In the post on Thursday 11/20/2025 we asked: What does ‘job hugging’ mean for the workplace? Know what you may need to do because the work world it is a-changin’.
In this world filled with stories about mass layoffs, political strife and poor economic indicators, workers are holding onto their jobs like they’re life preservers in a stormy, uncertain sea (because they really might be!) — which has created the phenomenon recently dubbed “job hugging.”
A July report from a consulting firm found that most employees plan to stay in their jobs for at least the next 6 months. The report also contains findings about workers’ confidence in the job market – see the post.
While fewer people leaving, less turnover, and less money spent on hiring and search might seem like a good thing, it can also be a sign that employees don’t want to be in their current roles but are only staying because they feel they don’t have other options. Your HR teams need to know how to handle this environment and attitude.
Know that job hugging can affect worker productivity. Why? Because if employees are hanging onto their jobs out of a sense of fear for job security rather than because they really like or are challenged by the job, it could mean that they’re just going through the motions and are not (feeling) engaged and motivated. That, in turn, affects their productivity (and quality of work). So what should HR do? See the post for the numerous things HR should consider.
On the flip side, people staying with the same employer doesn’t always mean they are job hugging. How can HR tell the difference? See the post.
Job hugging can affect search. Workers sticking to their jobs can also make it difficult to hire key talent. Those in a position may no longer be the best for the position, but they are the ones there. So what should HR do? See the post.
Creating “micromobility” opportunities within the organization. Internal movement (whether lateral or otherwise) can be a good option, but it’s not the only option. If companies have a job-hugging problem — or want to prevent one — they can work to create “micromobility” within their organization. This is often preliminary to an internal move and can benefit both the worker and the company. See the post for a good explanation of how this might play out.
Micromobility can also have other benefits to all – see the post.
TAKEAWAY: Statistics may show that hiring for jobs is strong, but your workplace (or business sector) may not show the same. Know what is best for your company and how to legally achieve that. Work with HR and an employment lawyer.
The post on Friday 11/21/2025 talked about condo and HOA Board member fiduciary duty: be prepared, act responsibly. Serving on the board of a condominium or homeowner’s association (for these purposes jointly an HOA) can be a meaningful way to support your community. But it also comes with serious responsibilities including fiduciary duty. Understanding (and living up to) this duty helps protect your community, fosters trust, and aids in avoiding potential legal or financial trouble. So let’s look at what is fiduciary duty.
At its most basic, a fiduciary duty is an ethical obligation to act in good faith on behalf of others who rely on you. In the HOA context, that applies to board members who are expected by the homeowners who elected them to make decisions in the community’s best interest and not for personal gain.
In order to fulfill one’s fiduciary duty to an HOA, the person must:
- Put the association and its homeowners first;
- Make informed, reasonable decisions; and
- Follow the HOA’s governing documents and applicable laws.
This is where application of the “business judgment rule” comes into play. A description of that is in the post – and should be of utmost import to Board members.
So what key fiduciary duties apply to HOA board members? First is the Duty of Care which means that board members must use due diligence when making decisions. Examples are in the post. Failure to meet this duty can expose the board and individual directors to personal risk.
Next is the Duty of Loyalty. That requires board members to put the interests of the association and its members ahead of their personal interests. Some ways to ensure this duty is met are described in the post.
Third is the Duty to Act Within the Scope of Authority. That means that Board members must act within the powers and authority granted to them by the association’s governing documents and applicable laws. The post describes some examples of what this means.
What are some ways that HOA board members can fulfill their fiduciary duties? They can always refer to the association’s governing documents before making decisions, ensure that decisions are well informed (as described in the post), be transparent (again, see the post for a description),and do the other things listed and described in the post.
And what happens when fiduciary duty is violated? There can be serious consequences for the association and the individual board members. There can be a loss of trust by owners (a ramification of which is in the post), legal and financial risk to the HOA (as described in the post), and what is often most crucial to the board member, personal liability. The HOA normally maintains insurance coverage, but there are limits to coverage when it comes to fiduciary duty – see the post.
TAKEAWAY: Board members have the honor and pleasure of serving their community, but also the duty to ensure that service meets their fiduciary duties. A community association lawyer can keep the HOA and board members on the right side of legal.
Finally, in the post yesterday 11/22/2025, we finished talking about the 6 things HR should know about intermittent FMLA leave. Recall that because this is so important, we broke it into two posts; the first 3 things are discussed in our post on Monday 11/17/2025 and here we discuss the remaining three items.
4. It’s not always the employee’s fault if a certification is late. Current DOL guidance states that employers must allow 15 calendar days for employees to obtain a treating provider’s certification. But that doesn’t mean an employer should immediately deny a leave request if the employee is late in returning the certification. Rather, think about taking the steps noted in the post to ensure you meet your statutory obligations in the face of courts increasingly giving employees the benefit of the doubt if a certification is late.
5. The FMLA’s regulations expect a level of courtesy from employees. There is no question but that employees must comply with all call-in procedures during an approved FMLA leave unless unusual circumstances prevent them from doing so. When they must act in that situation is in the post. It is for that reason that it is recommended for employers to set a tight deadline for employees to provide notice of their need for intermittent leave. Call-in expectations should outline the things detailed in the post. The policy can also deal with when employees can schedule medical treatments but it should take into consideration the DOL guidance (again see the post). Engagement between the worker and employer to find what works for both is a good idea.
6. A manager’s errant comments or actions may lead to a court date. This is the caution. Managerial training is imperative relative to an employer’s management of intermittent FMLA leave. Case law shows the many minefields that await employers – see the post.
TAKEAWAY: Work with an employment lawyer to avoid the many minefields awaiting employers dealing with intermittent FMLA leave.