The post on Sunday 9/24/2023 told us DOL proposes increases in exempt employee salary and annual compensation requirements. This go-round was released 8/30/2023 to update and revise the salary requirements under the Fair Labor Standards Act (FLSA) for exemptions from minimum wage and overtime pay requirements. To whom does it apply? See the post. DOL’s proposal would raise the current minimum weekly salary threshold for exempt employees from $684/week to $1,059/week (i.e., from $35,568 to $55,068 annually). The increased annual compensation requirement for another part of the exemption is in the post. And finally – and in this author’s opinion it’s about time – DOL is proposing automatic updates to the subject thresholds every three years based on earnings data. This is not final yet but is in the notice-and-comment period. Even though things may change, employers should be aware of this proposed rule and if and how it would affect any employees. So, what should employers do now? See the post. And what should they do going forward? Yep, see the post.
TAKEAWAY: Employers must ensure that employees are paid correctly; to do that, they must know who is and is not exempt from overtime pay. Get legal assistance if needed.
The post on Monday 9/25/2023 was about retaliation and aggrieved employees’ claims – what should an employer do? Workplace retaliation claims frequently involve perception attempting to take precedence over reality. But does the person alleging retaliation really know what that means? Often they mean that someone—usually a supervisor or manager—has told them something they don’t want to hear. Since that is not the legal meaning of retaliation, employers must know the applicable legal standards so they can minimize (and hopefully eliminate) the possibility of such claims.
The first and perhaps most important principle is that employment discrimination laws only prohibit retaliation for engaging in protected activity. As an example, the applicable language in Title VII of the Civil Rights Act of 1964 is recited in the post. Someone must engage in one of the listed actions to trigger Title VII’s anti-retaliation protections.
What else should employers know? That a complaint about an employment practice is deemed protected opposition only if the person explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination. Why? See the post. The employee cannot just complain about a certain policy or coworkers’ behavior; the individual must communicate a belief that unlawful discrimination is occurring. And if the person making the complaint and the alleged bad actor are members of different races, sexes or national origins, what is the effect relative to discrimination? See the post. Everyone must remember that Title VII and other anti-discrimination statutes only prohibit discrimination, not unfair treatment; they are not “general civility codes.” Some types of workplace behaviors and actions that are not covered are noted in the post. Yep, “Life sometimes isn’t fair.”
But there’s more. Often the person who files a complaint thinks that he or she is immune from criticism because of that complaint. Incorrect. That person must still perform his or her job. The only thing the law prohibits is retaliation because of the complaint. What the employer can – and should – still do is noted in the post.
While most US employees work on an at-will basis, employers should still have legitimate, nonretaliatory reasons for the proposed discipline or discharge. One thing that is critical to that analysis is noted in the post. The laws are not meant to be abused by an underperforming employee who, just before termination, files a discrimination complaint in an attempt to stave off discipline or discharge.
TAKEAWAY: Employers should try to figure out what an employee means if retaliation is alleged – and then work toward resolving the underlying issue.
The post on Tuesday 9/26/2023 told us Eden Foods to pay over $182,500 to settle EEOC sexual harassment lawsuit. The suit was filed to obtain relief for former employees at the natural foods company’s headquarters. The lawsuit alleged that Eden’s male owner and president touched multiple female employees inappropriately on their backs, shoulders and legs, sometimes sitting with his leg pressed up against a female employee for hours at a time. And he allegedly also did other things as noted in the post; ugh. Multiple employees complained to HR who then confronted the owner. What was his response? See the post (and be appalled). The EEOC filed suit in federal court asserting sexual harassment claims on behalf of a marketing department manager and three additional female employees. The manager then filed an intervening complaint – its basis is noted in the post.
Now there is a 3½-half year consent decree resolving the lawsuit. It requires Eden Foods to pay $182,500 in compensatory damages; to whom that is to be distributed is in the post. Eden Foods will also pay substantial additional monetary compensation as noted in the post. And there’s more; non-monetary relief is also listed in the post. “The conduct of the Eden’s owner was egregious, continued unabated for years, and was verified by sworn affidavits and testimony of most of the marketing department, including multiple male employees,” said an EEOC trial attorney. “The EEOC will always stand up to company owners who believe they have free license to sexually harass employees.”
TAKEAWAY: Nobody is above the law, even owners; discrimination can be costly, so just don’t do it.
The post on Wednesday 9/27/2023 noted an HOA threatening fines over $100k electric pickup based on existing rules. The HOA for Weston Hills Country Club put a resident on notice and ordered him to put his new $100,000 pickup truck in a garage, out of sight, or be fined. Glenn Gordon thinks that the rules enforced by property management company Castle Group are outdated and ridiculous. Gordon ordered the truck a year before he actually got it. But his happiness dissipated a bit less than two weeks after taking delivery – he received a notice from the management agent telling him the truck couldn’t be parked in his driveway overnight. Why? See the post.
The post describes how Gordon’s truck is unique. That made it somewhat of an attraction site in the neighborhood. But the management agent was clear that the pickup must be out of sight. Gordon, who has lived in the community for 27 years, initially wanted to simply call property management to discuss the issue, but now he’s ready to fight back. He was told that he will be fined until the truck is removed – and how the fines can affect the house (as noted in the post).
Gordon admitted that he never thought ordering the truck would land him in such a tough situation. “I never thought there would be a rule like that,” he said. “There are trucks all over the place… We don’t have room in our garage to put it in there.” The HOA president left a voicemail for Gordon. What it said, and the president’s later comment, is in the post.
Another pickup truck owner in the same area wound up suing his association in 2001. He won the case and the association had to pay $40,000 for his attorney’s fee. The judge in that case looked at changing perceptions of personal trucks. (NOTE: we don’t know if the language of the rule/restriction in that case is the same as here.)
TAKEAWAY: Which came first, the rule or the item/behavior that violates the rule? Owners must know the applicable restrictions BEFORE taking (or, if appropriate, not taking) a particular action. Community association lawyers stand ready to help sort out the legalities.
In the post on Thursday 9/28/2023 we saw an HOA fined $17,000 for trash can and watering hose violations. More on enforcement of restrictions in planned communities. Here we meet Pat Kramer who has lived in her house for over a decade but, after a new management company took over, started getting complaints. The first letter from the HOA noted that her trashcans were not allowed to be seen from the street. So what did she do? See the post. Eventually they got moved again due to her physical/medical condition – again see the post. Then Management had an issue with Kramer’s garden hose. Then she was not allowed to display her lawn art. Then the HOA wanted her to power wash her house and sweep her driveway. Did Kramer think those were all legitimate requests/demands? See the post. The HOA fined Kramer $25/day for each infraction and she could not get everything done fast enough so late fees started to accumulate in addition to the fines. What’s the total now? See the post. Kramer did consult an attorney relative to her situation. What was she told? See the post. As of the date of the post, Kramer’s bill had been sent to a collections agency.
TAKEAWAY: Once again, restrictions in the association’s Governing Documents matter. Know what they are BEFORE you buy in the community and be prepared to comply with them (or work to legally get them changed).
The post on Friday 9/29/2023 was a workplace law update: 10 essential items on your TO DO list (at least one of which will surely apply to your workplace). It’s hard for employers to keep up with changes to applicable labor and employment law, especially since it seems to change rapidly. Here are just a few essential items employers should be looking at now in their workplace. The first is to review pay practices and prepare for a potentially significant bump in the salary threshold for exempt employees under the FLSA’s new exemptions (see our post on Sun. 9/24/2023). The proposed change could impact 3.6 million workers.
The next thing is to determine if any handbook policies need to be modified in light of the NLRB ruling in Stericycle, Inc. (discussed in our post on Sun. 8/27/2023). The burden is now on employers if a policy is called into question.
Next, employers must ensure their business does not run afoul of anti-bias laws when using artificial intelligence for employment-related reasons. See our posts on Thurs. 9/21/2023 and Sat. 8/19/2023 for more on this.
And there is more, including the EEOC’s proposed regulations for the Pregnant Workers Fairness Act (PWFA) (discussed in our posts on Sun. 8/6/2023 and Mon. 9/4/2023) and mandatory Roth catch-up contributions under the SECURE Act 2.0. See the post for details on all of these.
TAKEAWAY: Employers must keep up with changes in the law that applies to their workplace; having an employment lawyer on speed dial is a good thing!
Finally, in the post yesterday 9/30/2023, we learned about workplace diversity: the difference between using Title VII and Section 1981 for lawsuits. Several suits have been filed on behalf of White workers after the US Supreme Court’s decision outlawing affirmative action in higher education; they are based on a Civil War-era statute guaranteeing equal rights to Black Americans. Those recent cases have been filed under Section 1981 of the 1866 Civil Rights Act instead of the more traditional route, Title VII of the 1964 Civil Rights Act. The basis of but one of the suits is noted in the post. The nonprofit entity that brought the Supreme Court affirmative action challenges has filed three of the Section 1981 cases. What they are about is noted in the post.
Why might Section 1981 now be invoked more often? See the post for what is dispenses with as compared to Title VII. But the question for many employment lawyers is if the Section 1981 plaintiffs will be able to prove standing and meet their burden of proof. The purpose of Section 1981 is cited in the post. And that purpose does not really comport with how the statute is being used in these recent cases.
But Section 1981 can provide relief for workplace bias. For example, the Supreme Court’s McDonald v. Santa Fe Trail Transportation decision in 1976; the holding in that case is in the post. Section 1981 is broader than Title VII and can be invoked against employers with less than 15 employees and target individual supervisors. There is also a difference in the monetary amount that can be recovered; see the post. An example of how that might work – a jury verdict in a recent case – is also in the post.
Another reason employees might choose to proceed under Section 1981 is timing. A Title VII charge can take up to 180 days to move through the EEOC before being permitted to proceed in court. Section 1981 is different. See the post.
But at least one thing is the same under both statutes: the burden of proof. Courts have generally analyzed claims under both Section 1981 and Title VII by using the three-part burden-shifting framework in the Supreme Court’s 1973 ruling in McDonnell Douglas Corp. v. Green. What that entails is laid out in the post. But then the Supreme Court’s 2020 Comcast v. National Association of African American-Owned Media decision established a “but-for” causation test to prove a Section 1981 claim. What that requires of plaintiffs is described in the post. The Comcast decision may make Section 1981 cases tougher to prove.
And what about the standing threshold? Standing usually requires a plaintiff to show they experienced harm in order to sue. One recent case filed under Section 1981 was dismissed. There the claim was that Pfizer Inc.’s diversity fellowship program discriminates against White and Asian-American applicants. The federal court found no standing for the reason noted in the post. (NOTE: that decision is on appeal to the Court of Appeals.)
So even if the growing number of Section 1981 cases do not gain traction, will there be any effect on the workplace? Probably. See the post for what that might be.
TAKEAWAY: While employers should commit to not violating the law, they still might be subject to suit, so knowing the proof and defenses required under each, along with the remedies various laws afford, is important – and another reason to contact an employment lawyer.