Pay to don & doff protective equipment; severance ruling affecting all employers; litigation pitfalls for condo & homeowner associations; accommodating long-COVID; and more in Our Social Media Posts This Week, Apr. 9-15, 2023.

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.

hershey’s workers want don & doff time pay. is that covered by the flas?

The post on Sunday 4/9/2023 told us Hershey’s workers want Don & Doff time pay. Is that covered by the FLSA? A suit was filed in federal court on Valentine’s Day (coinci-dentally a big sales day for Hershey) asking that a court determine the company must pay for time to don and doff sanitary clothing and other protective equipment required by the FDA. The suit alleges that failure to pay for that time is an FLSA violation. What do DOL regulations say about pay for clothes-changing or washing time? See the post. There is history in this sage by way of DOL Wage & Hour Division (WHD) opinion letters, the first of which was issued in 1997. What is said about whether ‘clothes” includes protective equipment is in the post. WHD issued two more opinions along a similar vein between then and 2001, then reversed course in 2002. Courts have come to various conclusions as to whether the definition of ‘clothes” includes protective equipment for don & doff pay purposes. The Supreme Court weighed in in 2005 – see the post – but then over-ruled that decision in 2014 (yes, see the post). While this heads toward an eventual settlement or decision, employers should look at DOL’s fact sheet on FLSA legislation (see the post).

TAKEAWAY: Make sure you pay your workers correctly – know what law applies and follow it.

nlrb severance ruling has broad implications for employers – all employers, whether or not unionized.

The post on Monday 4/10/2023 alerted that the NLRB severance ruling has broad implications for employers – ALL employers, whether or not unionized. You should become familiar with the Board’s McLaren Macomb decision. As state and federal efforts continue to try to restrict (or prohibit) non-disclosure agreements, especially as relate to sexual harassment, we now have this to deal with. What was the background of the NLRB holding? See the post. This decision not only applies to ALL employers, but to existing agreements and more as noted in the post. That means employers absolutely need to get employ-ment lawyers involved when drafting, offering and enforcing severance agreements. And what is some advice already being offered to employers to come within the parameters of this ruling for non-disparagement and confidentiality provisions? See the post. The good news is that there are limits to the McLaren Macomb ruling – it applies to some classifications of employees and not others. See the post for the distinction.

TAKEAWAY: Once again, know the law – and talk to an employment lawyer about the potential effects of this on your business and existing and future employment and severance agreements.

papa john’s fired worker with vision disability who needed service dog – and the eeoc filed suit.

The post on Tuesday 4/11/2023 showed us that Papa John’s fired worker with vision disability who needed service dog – and the EEOC filed suit. Before he applied, the worker told the store manager that he needed the service dog to commute to work and would need an accommoda-tion to keep the dog on-site but out of customer view and not in food prep areas. The manager saw no issue. The worker applied and was hired, then submitted the accommodation request. Different response this time – for which the reason given is noted in the post. And here we are, with suit filed. This was not the first time a question about the presence of a service dog in food service areas or a patient waiting room arose. How courts look at the facts when analyzing an accommodation request can depend on one key item noted in the post. That played out before a jury awarded a pharmacist $134,000 in September 2022 after not being allowed to bring her service dog to work to assist with hypoglycemic unawareness. Of course, the dog’s characteristics can also play into approval or denial of the accommodation request – see the post for more on that. And while the EEOC has offered guidance on when service animals can be excluded from accommodation (as noted in the post), that is a rare situation (and examples are in the post).

TAKEAWAY: It all comes back to knowing the law and how it applies to your employees in your workplace. Get advice from an employment lawyer to ensure compliance.

condo case study: the pitfalls of prolonged litigation for associations and owners

The post on Wednesday 4/12/2023 was a condo case study: the pitfalls of prolonged litigation for associations and owners. Yep, neither of them wins. A recent article by the South Florida Sun-Sentinel about this legal battle involving the Boca View Condo-minium begins: “After two separate orders from two separate judges, the … Association’s governing board still has not allowed a condo owner’s personal representative to inspect financial records as requested nearly four years ago.” This blog noted the fight at an earlier stage. Unit owner Eleanor Lepselter is now asking the court to find the association in contempt and impose fines of $500 a day until it complies (the underlying basis for which is in the post).

As noted in our earlier post, this case dates back to February 2019 when Lepselter submitted written requests to the association’s property manager to inspect financial records. She wanted her attorney to conduct the inspection (based on the statute cited in the request and noted in the post). The association’s response provided a time for Lepselter to inspect but refused to let her attorney accompany her. Lepselter filed for arbitration with the state; the outcome of that is noted in the post. The saga continued. Boca View filed suit against Lepselter, accusing her of acting on behalf of two other unit owners who had also sought access to the records and were represented by the same attorney.

Filings in both cases show that Lepselter and the other owners were involved in previous disputes with the association board and its longtime president Diana Kuka. In October 2022 the state court ruled that the association had incorrectly interpreted state law by assuming the right to select who could inspect the records — the unit owner or the representative – with the holding as described in the post. That decision included an order for the records to be made immediately available to the attorney. But Boca View wasn’t done; it filed a motion for rehearing and a new trial (the post contains the basis for both, which are laughable at best). Fittingly, three days before he was set to retire, the judge denied Boca View’s motion.

But wait, there’s more. The association responded then filed a motion claiming that it, not Lepselter, was entitled to attorney’s fees because it “secured a judgment more favorable than the arbitration award” that it was appealing. There was also more to its motion as noted in the post. At the same time, Boca View’s attorneys filed a motion to withdraw as counsel due to “irreconcilable differences” with the board of directors. Hang on … Boca View also filed an appeal and a motion to suspend enforcement of the prior rulings ordering production of the records. This motion was denied by the new judge for the reasons listed in the post.

Boca View was still not done. It filed an emergency motion for rehearing; its reasoning is in the post. The new judge also denied that motion, and then the association’s new attorneys filed a motion for a non-emergency hearing. So, the litigation is not over yet. And perhaps the biggest piece of all of this is that not only are association funds (which are derived from owners’ payment of assessments!) being spent to fund the litigation, but the association also could be required to reimburse Lepselter for her attorneys’ fees – so more money comes out of the pockets of the owners.  

What is one thing any association can do when faced with a board that continues to make decisions not favored by owners? See the post.

        TAKEAWAY: Associations should not have anything to hide, and almost every-thing should be available for inspection by owners. Yes, there are limits, sometimes as part of a statute or the Governing Documents, but how damning must it be for an association to go to such lengths (and monetary outlay) to keep it from the eyes of an owner? Get a community association lawyer involved early on.

neighbors react to dinosaur themed home “shan-gri-la”.

In the post on Thursday 4/13/2023 we saw neighbors react to dinosaur themed home ‘Shan-Gri-La’. Admit it, you wondered what your condo or homeowners’ association would do about this type of situation.  This has been going on for 17 years. YEARS. They are not dolls but life-size. A retired middle school teacher  (Dino-man) did this so that kids and adults could learn about dinosaurs. And what else is there beside the dinosaurs? See the post. One reason he can do this? There is no homeowner’s association for that property! Ok, now think again about what your condo or homeowners’ association would do about this type of situation – and smile, because it would indeed do something.

TAKEAWAY: Condominium and HOAs all have restrictions of some type with which all owners must comply – at least one purpose is to maintain a level of aesthetic appeal and keep (or increase) resale values. This is but one example of why restrictions can be a good thing.

long covid-19: don’t get bogged down in determining a disability.

The post on Friday 4/14/2023 was about Long Covid-19: Don’t get bogged down in determining a disability. As with most things, each case is individualized and fact specific. The needs of one worker with long COVID will not necessarily be the needs of another. You should  know that Long COVID can be a disability under the ADA; that means that employers may be required to offer accommodation to those workers. Medical/health insurance and related care has not necessarily kept up with the increase in cases of long COVID (as detailed in the post); this often results  in the need for more accommodation in the workplace. Because long COVID may be difficult to diagnose, and take a while for the eventual diagnosis, it is questionable whether employers should wait for that diagnosis or just try to accommodate. For those opting to wait, or not accommodate, keep this in mind: the EEOC received 6000 charges of discrimination related to COVID-19 from Apr. 2020 – Dec. 2021.  So, what types of things might an employer offer? See the post.

TAKEAWAY: As with any disability, work through the reasonable accommodation process, and before you decide to assert that there is either no eligibility for accommodation or no need to accommodate, consult with an employment lawyer.

manufacturer settles for $460K over ceo’s alleged discriminatory age-based comments.

Finally, in the post yesterday 4/15/2023, we saw a manufacturer settles for $460K over CEO’s alleged discriminatory age-based comments. Loose lips …  A Swiss-based manufacturer of circular connectors for medical devices agreed to pay $460,000 to a former employee as part of a settlement of an age discrimination suit filed by the EEOC in late February 2023. Fischer Connectors also agreed to non-monetary relief as listed in the post. 

The suit alleges that Fischer fired an HR director and replaced her with two younger workers in 2019 after she questioned the company’s plans to replace older workers with a younger workforce. What did she allege the CEO did and said? See the post. The EEOC filed suit under the ADEA because employment decisions should be made based on employee qualifications, not stereotypes based on age.

How the EEOC defines age discrimination, and what the ADEA covers, are in the post. Also in the post is a list of actions employers cannot take based on employee age.

TAKEAWAY: Make employment decisions – hiring, discipline, firing – based solely on performance and not any other characteristic. That should keep you out of legal hot water.

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