Below is a review of the posts (on Facebook, LinkedIn, and X [formerly Twitter]) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 4/14/2024 asked: Must employees be paid for time spent undergoing exit security process? Such as when on employer premises in a personal vehicle while waiting to scan an identification badge, with guards then looking into the vehicle before the employee exits through a security gate? That was one of three questions from the federal U.S. Court of Appeals for the Ninth Circuit that the California Supreme Court recently answered concerning the meaning of compensable “hours worked” under California law.
George Huerta filed suit, on behalf of himself and other employees, against CSI Electrical Contractors (CSI), for whom they work at a solar power facility. At the end of each workday, they waited in a long line in their personal vehicles outside a security gate, where guards scanned each worker’s badge and sometimes looked into vehicles and truck beds, searching for stolen tools or endangered species located near the worksite. This process could delay the workers’ departure for 5-30 minutes or more. They claimed they should have been aid for that time. The court unanimously agreed.
The Court first looked at the definition of “hours worked” for which employees must be paid. The state Wage Commission set minimum requirements for wages, hours and working conditions. How they define “hours worked” is in the post. The Court had previously held that the two clauses in that definition establish independent bases for compensating time on the job and quoted to those previous rulings in Huerta when explaining its ruling that time spent completing an employer-mandated exit process is compensable work time.
The Court ruled that CSI employees were entitled to be paid for the time they spent on the employer’s premises in their personal vehicles, waiting and undergoing an exit process that includes a vehicle inspection delaying their departure. The court alluded to its 2020 decision relative to Apple employees that is discussed in the post and said that Huerta and his co-workers were entitled to be paid for waiting for and undergoing CSI’s mandatory exit process, even though they were in their personal vehicles. Why? Because they were under CSI’s control throughout the exit process (including those steps identified by the Court and noted in the post). And the exit process primarily served CSI’s interests, including preventing the theft of tools. The court acknowledged that CSI’s exit protocol took less time than what it dealt with in the Apple case (again, see the post on that), but noted that CSI’s exit process involved more than the employees simply scanning their badges to facilitate entering and exiting the worksite. What else the Court pointed to in Huerta is in the post.
TAKEAWAY: Know the donning and doffing, security and other statutes that apply to your workplace – contact an employment lawyer.
The post on Monday 4/15/2024 told us a multi-million dollar lawsuit filed against School District for discrimination and defamation. This is a federal lawsuit. According to a news release, the district (ARPS) is in the spotlight after institution of the suit alleging defamation and violations of civil rights law and ARPS’ policies against discrimination, harassment, and bullying.
The suit was filed by Lamikco Magee, an African special education teacher. She alleged that she was retaliated against for advocating for marginalized students experiencing discrimination in the ARPS school system. The basis for her retaliation claim? See the post.
The suit follows two charges that were investigated by the state Commission Against Discrimination in August and November 2023; those alleged violations under Title VII and state law.
This is not the first time the controversy has hit ARPS. In November 2023 there was the finding of a Title IX investigation which is discussed in the post. And many school board members had also resigned prior to the 2023-2024 school year.
TAKEAWAY: Discrimination can be costly for employers – the easiest way not to avoid liability is to treat all employees equally and legally. Employment law counsel can help.
The post on Tuesday 4/16/2024 showed that Uber faces probe over alleged gender discrimination. Uber Technologies Inc. (yes, that Uber, the ride-hailing company) is being investigated by the EEOC because of a complaint about gender inequity reports the Wall Street Journal. The investigation began in August 2023; what the EEOC has been doing in that time is described in the post. The investigators have been seeking information related to hiring practices, pay disparity and other matters as they relate to gender, the WSJ report said.
Last week, Uber Chief People Officer Liane Hornsey resigned after an investigation (the basis of which is noted in the post). An EEOC spokesman said complaints made to the commission are strictly confidential and it is prohibited from even confirming or denying the existence of such a charge. And what did Uber have to say? See the post.
TAKEAWAY: Employers must follow the law – that includes the prohibition against discrimination on the basis of sex.
The post on Wednesday 4/17/2024 noted woman accused of threatening to shoot construction crew for speeding through HOA. After admitting to losing her temper in late March, a 73-year-old woman was taken into custody by police.
According to court documents, Malinda Deleone had increasing frustrations over cars going too fast in her neighborhood over the last several years. Allegedly Deleone had ‘aggressively’ asked local law enforcement and the High Star Ranch Homeowner’s Association (where she lives) to take care of the problem, but then decided to take matters into her own hands (what she began to do is in the post). Her vigilante behavior came to a head when police said she confronted three men from an undisclosed construction crew doing stonework in the HOA. The first interaction involved Deleone showing them a police badge and telling the workers she was going to have ICE immigration services come arrest them based on their race. How did this happen? See the post. The next interaction was in late March when Deleone confronted the same crew “unprovoked,” appearing “irate” and allegedly started shouting that she was going to shoot them. What proof did the police have? See the post. Deleone later admitted to the confrontation.
TAKEAWAY: C’mon, admit it, your neighborhood has someone like this too. And what would your association do under these circumstances (besides contacting a community association lawyer)?
In the post on Thursday 4/18/2024, we learned Rudy Giuliani can remain in condo, despite Judge’s concern with his spending habits. (This follows our post on 3/29/2024). He can stay in his Florida condo for now after a New York bankruptcy judge declined to rule on a motion filed by his creditors that would’ve forced him to sell the Palm Beach estate. At a hearing, the judge acknowledged the “significant” concern that Giuliani was sinking money into the condo that is owed to his numerous creditors but held off on requiring a sale of the roughly $3.5 million property.
Giuliani filed for bankruptcy protection in December 2023 after the precipitating factor noted in the post. He has agreed to list his Manhattan apartment for roughly $5 million, but argued he should be allowed to continue living in the Florida condo (for the reasons noted in the post). The bankruptcy has brought forth a diverse coalition of creditors including a supermarket employee who was thrown in jail for patting Giuliani on the back and more (some salacious, some in the news – see the post). An attorney representing many of the creditors said that Giuliani has spent at least $160,000 on maintenance fees and taxes for the Florida condo since the bankruptcy filing, much more than the $8,000 in monthly payments estimated in the bankruptcy filing. The problem with that? See the post. While the judge appeared unlikely to force a sale of the Florida condo, he hinted at more “draconian” measures if Giuliani does not comply with information requests about his spending habits — including what is noted in the post. The next hearing is scheduled for May 14th.
TAKEAWAY: Bankruptcy has its own law and procedure but can affect – and be affected by – state law including the requirement that those who have filed continue to pay condo and HOA assessments. Your community association lawyer should know bankruptcy law or refer you to someone who does.
The post on Friday 4/19/2024 explained why using AI in employment practices can bring unwanted risk. Artificial intelligence (AI) has become ubiquitous and its impact in the employment arena is notable. AI tools can bring efficiency, particularly in hiring, but there is risk when using AI. Used the right way, AI tools can greatly assist employers, but safely (and legally) incorporating AI requires intentional consideration.
AI is being used for recruitment and candidate screening. A partial list of what includes is in the post. Beyond saving time, AI can bring additional benefits including enhanced objectivity, reduced bias, and better decision-making – if used the right way. But there are risks. For one, the use of AI can implicate privacy concerns. Employers should have policies in place to obtain employee consent to storage of their personal information in an AI system and ensure appropriate security. In addition, there might be other legal implications such as those identified in the post.
But that’s not all. The use of AI can lead to concerns regarding lack of transparency and interpretability, including the example given in the post. That potential for bias and discrimination is one of the biggest risks associated with using AI in the hiring process. A recent EEOC case was resolved by a settlement of age discrimination claims for $365,000 – details are in the post.
The EEOC has addressed AI with guidance on how the ADA relates to AI in the workplace as well as adverse impact discrimination by the use of AI. And as detailed in the post, the EEOC has issued its position relative to liability of employers for discrimination under Title VII or the ADA as a result of using third-party AI vendors. Because of that position, employers’ contracts with AI vendors should include the provisions noted in the post.
The EEOC case noted above involved “disparate treatment” (intentional) discrimination. Recent EEOC guidance focuses more on “disparate impact” discrimination (the post defines what that is). EEOC guidance encourages employers to assess the disparate impact of any AI tool they use and if it thinks the AI will have an adverse impact, it should take steps to reduce the impact or use a different tool. If it fails to do that, what might legally occur is in the post.
Some states have proposed legislation regarding the use of AI (as noted in the post). With more employers embracing the hybrid work world, and having workers in more than one state, they must know the AI laws of each of those states.
AI software can also result in disparate impact discrimination by adversely viewing gaps in employment; this may disproportionately affect women who have stayed home to raise children. How AI “works” in this area is in the post. And EEOC guidance on the ADA and AI highlights even more AI-related pitfalls for employers. For one, does the software provide an opportunity for the applicant or employee to request a reasonable accommodation if needed? Others are listed in the post. All must be considered by an employer BEFORE using AI software.
TAKEAWAY: Know the law and consult an employment lawyer BEFORE using AI in your workplace
Finally, in the post yesterday 4/20/2024, we learned that EEOC issues Final Regulation on Pregnant Worker Fairness Act (PWFA). The rule provides clarity that will allow pregnant workers the ability to work and maintain a healthy pregnancy and help employers understand their duties under the law. To whom the PWFA applies, and what it requires of those employers, is noted in the post. The PWFA builds upon existing protections against pregnancy discrimination under Title VII and access to reasonable accommodation under the ADA. The EEOC began accepting charges of discrimination when the PWFA became effective (which our post of 6/26/2023 noted and which date is in the post).
The final rule was published in the Federal Register on Apr. 19 after having been approved by majority vote of the EEOC on Apr. 3, 2024. The final rule becomes effective 60 days after publication in the Federal Register. What the EEOC Chair had to say about the Final Rule, along with some highlights, are in the post and include examples of (1) reasonable accommodations (such as those noted in the post) and limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or still birth and others listed in the post, the bases for which are also noted in the post, (2) clarification as to whether and when an employer should seek supporting documentation for an employee’s request for reasonable accommodation, and (3) more as described in the post. There is also a link to the PWFA and final rule in the post.
TAKEAWAY: Employers must know which laws apply to their workplace and the obligations imposed on them by those laws. Again, an employment lawyer can help.
NOTE: remember that as of 4/17/2024 we ceased posting on X (formerly Twitter).
York, Pennsylvania 17403