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.
The post on Sunday 1/15/2023 told us that no-fault points-based attendance policy may violate ADA. AutoZone stores may have violated the ADA with a no-fault points-based attendance policy even though the policy had exceptions for disability-related absences. What did the stores do? They issued occurrence points for tardiness and absences and more as noted in the post. The policy may have violated disabled employees’ right to the reasonable accommodation of time off from work according to a ruling from a federal court.
Let’s look at the background. The EEOC brought a federal lawsuit against Autozoners LLC, which operates AutoZone retail stores nationwide, on behalf of eight claimants who were employed at the stores between 2009 and 2011. The EEOC’s allegations are noted in the post.
AutoZone stores began using a formal point system to keep track of employees’ attendance and timeliness in 2009. Why the system was adopted is in the post. The company notified employees about the new system and that if they failed to call in or report to work for two consecutive days, it would be deemed job abandonment and they would be terminated.
The attendance policy came with a progressive-discipline system corresponding to the number of points and based on factors such as when the absence/tardy occurred—whether on a weekday or a weekend—and more as in the post. Progressive discipline consisted of a verbal warning, a first written warning, a second written warning, a serious violation and, ultimately, termination. An employee who accumulated 12 points could be terminated.
Employees could receive 4-5 attendance warnings before they faced a termination decision. The post notes how employees knew how many points they had accumu-lated. The attendance policy provided that no occurrence points would be given for any absences or tardiness related to specific things as identified in the post. AutoZone stores also had an ADA policy and a problem-solving procedure for disputing occurrence points and to contest discipline, including termination. The process AutoZone had to follow prior to terminating in employee is discussed in the post. Based on that, many employees had 12 or more points and had not been terminated.
Both the EEOC and AutoZone filed motions for summary judgment. The court granted part of AutoZone’s motion as noted in the post. However, the court denied most of AutoZone’s motion for summary judgment as it related to each employee, and particularly rejected the argument that the attendance policy corresponded with the essential job function of regular attendance. How the court further analyzed the issue, and concluded its ruling, are in the post (and can provide a bit of a roadmap to employers).
TAKEAWAY: Consult with an employment lawyer before putting in place (or keeping) a no-fault points-based attendance policy.
The post on Monday 1/16/2023 was about the effect of the Speak Out Act on workplace sexual harassment. NOTE that President Biden signed this into law on December 7th, so you need to know about it. But first some lead-up. The 2017 Tax Cuts and Jobs Act changed how companies can take tax deductions for monetary settlements for sexual harassment or abuse (see the post for the details). Then in March 2022 the Ending Forced Arbitration of Sexual Assault and harassment Act of 2021 became law. That allows employees to sue employers in court for alleges sexual harassment or abuse even if they signed an arbitration agreement (and more as noted in the post). Then came the new Speak Out Act. The SOA prohibits the enforcement of pre-dispute nondisclosure or non-disparagement clauses regarding allegations of sexual harassment or assault.
Let’s break that down into smaller pieces. First, it only applies to agreements signed by the employee and employer prior to a dispute arising over a claim of sexual harass-ment or abuse (meaning it does NOT apply to settlement agreements). And what does “dispute” mean in this context? See the post.
So how might this apply? Take an example where an employee signs a non-disclosure agreement on their first day of work. Then years later they are the victim of sexual harassment at work. The post explains whether the SOA act applies and the implica-tions or ramifications for the employee.
TAKEAWAY: Employees and employers must know the timing of when agree-ments were signed vis-à-vis a dispute over sexual harassment or abuse and whether the Speak Out Act applies. Consult an employment lawyer.
The post on Tuesday 1/17/2023 was about when love is “”On the Air” at work. Unless your head has been in the sand, you are aware of the plight of ABC News co-anchors T.J. Holmes and Amy Robach whose recently discovered romantic involvement led a temporary suspension. According to a NY Times article linked in the post, neither informed their boss about their relationship.
Now neither employee violated the law. But whether they violated a company policy is unknown (and ABC isn’t talking). Their boss, the president of ABC news, suspended them because they “had become a distraction.” Yep, it’s tough to report the news when you are the news.
Workplace romance is fairly common. Statistics from a 2022 SHRM survey are in the post. You might be surprised by the numbers. But they make sense when you consider how much time employees spend at work (and what the workplace environment does to people as noted in the post).
But are employers entitled to know if a romantic or sexual relationship develops between two employees? There might be a policy concerning workplace romances — either in an employee handbook or elsewhere. Why? See the post. We don’t (yet?) know if ABC News had a relevant policy, but either way it was still unhappy for the reason noted in the post. ABCNews then suspended but did not terminate Holmes and Robach. Why? Disciplining or terminating employees for nondisclosure might violate applicable laws in some states.
What if Holmes and Robach had a direct reporting relationship? Then a workplace romance could negatively affect both of their authority, credibility, and reputation. How that could play out as to both the superior and subordinate is described in the post.
There are also other reasons a romantic relationship between direct reports is not a good idea. It might increase the potential for sexual harassment (as described in the post). And what about the “love contract” (or however it is labeled by the employer). What that does is in the post. But this type of agreement then puts HR on notice of the relationship and the parties involved may not want that. And who knows if that type of agreement is an enforceable contract …
So, let’s go back to a policy on workplace romance. Probably the biggest potential liability/risk for the employer is if the relationship fails and one party alleges unwelcome, unwanted conduct created a hostile work environment. But there are other (business) concerns too as noted in the post. So then what is a good employer to do? Follow the advice in the post.
TAKEAWAY: Romance may blossom in your workplace, so have in place a policy to deal with it proactively – and make sure the policy is legally compliant and enforceable.
The post on Wednesday 1/18/2023 told us a Rivian R1T owner targeted by HOA for parking it in driveway. You may know that Rivian makes electric trucks; this is part of the wave of e-vehicles sweeping the nation. And that means sweeping into your condo or homeowners’ association. The owner here had waited a year to get the $100,000 EV truck. It was parked in front of the owner’s house. Then the HOA notified the owner that was not allowed. The types of parking restrictions that are common in community associations are listed in the post along with the ones at issue here. The owner tried to reason with the HOA but was told that it would levy fines and possibly lien the house as a result of the violations. And more as noted in the post. The owner said he was unaware of the rule before purchasing the truck and that it should be changed. What did the HOA’s President say about the issue? See the post.
The issue is whether a regular pickup truck is a ‘commercial vehicle” if it lacks any markings and is solely for personal use. This is not an issue of first impression. A Florida court faced a similar issue – the ruling there is noted in the post.
TAKEAWAY: Before owners do anything new or different to or involving their residence in a condo or homeowners’ association, they should check the governing documents – and consult a community association lawyer. Mistakes like this one can be VERY costly.
In the post on Thursday 1/19/2023 we learned about the proper insurance for condominium owners – know the difference and protect your investment. We are talking about HO-2, HO-3, HO-4 and HO-6 policies. HO-4 is renter’s insurance; it covers the owner’s personal property inside the home (and possibly more as noted in the post), but not the physical structure. If someone is renting a condo or home within a homeowners’ association, then an HO-4 policy might be the way to go. But that is NOT the policy for owners.
HO-2 and HO-3 policies are for homeowners. HO-2 policies usually cover 16 perils (which are listed in the post). HO-3 policies might be broader than HO-2 policies as also noted in the post.
But what about HO-6 policies? HO-6 is insurance for condo owners. What is typically covered is listed in the post – and should be compared to the unit boundaries noted in your association’s governing documents BEFORE purchase of the insurance policy.
TAKEAWAY: Make sure you have the right insurance for your situation – and that your coverage matches what you own pursuant to your condo association documents. Get advice from a community association lawyer to be sure.
The post on Friday 1/20/2023 told us Tesla told workers not to discuss pay or working conditions allege employees in recent NLRB complaint. You remember Section 7 of the National Labor Relations Act, right? And that it applies to ALL workplaces, unionized or not, right? And that it lets employees discuss the terms and conditions of their employment for the noted purposes, right? Well, apparently not all employers remember this, Tesla being one of them. The recent complaint alleges that between December 2021 and January 2022 Tesla told employees “not to complain to higher level managers about their pay or other conditions of employment” and more as noted in the post. And now a judge will decide if the complaint holds water. And this is on top of Tesla’s other legal troubles, including a complaint filed with the NLRB in December 2022 alleging that two employees were fired after criticizing Musk and a class action suit that was discussed in our post of January 12, 2023. And there might be more (as noted in this past).
TAKEAWAY: Employers cannot prohibit employees from discussing terms and conditions of work. Period.
Finally, in the post yesterday 1/21/2023, we read workplace law predictions for 2023. Predictions are tough as there is no crystal ball for the employment law arena. Nobody foresaw COVID-19 or the “Great Resignation” or quiet quitting. But there are some things for employers to keep an eye/ear out for in 2023, including the release of new overtime regula-tions (with an increase in the salary threshold for exemption as noted in the post), a new joint-employer rule, increased OSHA workplace inspections, state laws limiting restrictions on non-competes, changes in background screening of applicants, and more as listed and discussed in the post.
TAKEAWAY: Good (and proactive) employers must keep their heads up and eyes and ears open and be ready for changes – keep an employment lawyer on speed-dial.
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