In the post on Sunday 8/21/2022 we learned the Top 14 workplace law stories from July 2022 (and noted that you will definitely want to know at least some of them). The first item was about the top 4 things employers can do to prepare for a possible recession (and 3 things to ease workers’ inflationary concerns). Employers can consider creative or alternative staffing option (whether using temp or part-time workers or alternative work schedules or others), determine if belt-tightening is necessary (including reducing office expenses, limiting or prohibiting business travel, and more), and 2 others, all detailed in the linked post. The next top item is the highly-transmissible BA.5 subvariant, a reminder that COVID is not going away. Even the White House issued a new fact sheet in July on its management strategy; that and more is in the linked post. We also learned about the EEOC’s new workplace COVID-19 testing rules and how they (may) affect your policies. For example, why an employer administers viral tests as a condition of entering a workplace has a new basis. That and more are in the linked post. And there’s still more that might affect your workplace – so go to the post.
TAKEAWAY: The world of work does not stand still, nor do the guidelines affecting that world. Know your rights and obligations and get legal assistance where needed.
The post on Monday 8/22/2022 was about remote and hybrid work policies, COVID-19 positivity, and NLRB/FTC teaming up on non-competes. What should employers consider when adopting new, or revising existing, remote and hybrid work policies? Security, expense reimbursement, and tax compliance, among other things. These are all discussed in the linked post. And what are the best practices an employer should follow now when an employee tests positive for COVID 19? Follow EEOC Guidance including guidelines on quarantine and isolation to start. And the other things noted in the linked post. Finally, be aware that despite the Supreme Court’s ruling in West Virginia v EPA (which is noted in the post), the NLRB and FTC (yes, possibly strange administrative bedmates) will work together on various labor issues including non-competes. That means you need to have your workplace in order.
TAKEAWAY: We said it above and say it again: know your rights and obligations and get assistance from an employment lawyer where needed.
The post on Tuesday 8/23/2022 told us an home-owners’ association President used his position to terrorize neighbors according to the Sheriff’s Office. Joseph Steckler, age 77, was arrested and charged with aggravated assault with a deadly weapon for pointing a gun at a neighbor in a long-running dispute. Steckler is listed in state corpora-tion records as the president of the homeowners’ association. Residents told sheriffs’ deputies that he abused his power for years, including an incident in October 2021 when he left signed on a neighbor’s proeprty calling the man a “s-c”, a racial slur against an Hispanic person, and then pulled a handgun. And there is more – including how the HOA got involved. The post has more details on various incidents. Apparently an earlier charge of cyberstalking was not pursued by prosecutors – the reason why, and who could place blame given the entire situation, is in the post.
TAKEAWAY: Many condo and homeowners’ associations have bullies, but if things get to this point law enforcement should definitely be called in.
The post on Wednesday 8/24/2022 was a reminder on the ADA, service animals, and the right to refuse a guest. Remember that the ADA applies to all public places – (probably) including your office/workplace. Here we saw a plaintiff in a suit claiming his rights under the ADA were violated when a Hampton Inn denied him a room because a disabled person with a service dog accompanied him. What is the threshold in this situation? See the post. The man and his brother and a dog showed up but had no reservation. The brother claimed he had muscular dystrophy and used Duke, a Great Dane, for mobility. Duke’s tag identified the owner but nothing about him being a service dog. While the man was in the check-in line, the clerk noticed Duke; what the clerk saw and then did is noted in the post – along with the man’s responsive actions. The post also contains a description of the brother (from the clerk’s view). After the interchange, the clerk denied the room request because the man was drunk and surly. The man left, found a room at a nearby hotel, and sued the franchisor (Hilton) and the franchisee under the ADA. It was quickly resolved as to Hilton – see the post. The man also lost as to the franchisee on two bases – see the post.
TAKEAWAY: Remember that the ADA applies more broadly than just for accommodating employees; know when and how you might be called on to act under the law.
In the post on Thursday 8/25/2022 we learned the Top 10 mistakes in handling I-9 forms. Recall that this is the form relative to an employee’s immigration status. The first mistake is not understanding the difference between correcting I-9 forms and correcting practices resulting in I-9 violations. And how is the latter dealt with? See the post. Other top mistakes include allowing untrained staff to administer I-9s, not conducting an internal I-9 audit, and 7 more items listed in the post. An internal audit can catch anything that needs to be corrected before it becomes a problem; occasionally a form will be undated or unsigned (or other blanks not filled in). And what should employees do to verify eligibility for employment? See the post. And when should the I-9 be completed? Section 1 must be completed before close of business on the first day of employment. Section 2 has a different deadline as noted in the post. There are also time periods for which the I-9 forms must be retained by the employer; in what form they must be maintained, for whom, and for how long are all discussed in the post.
TAKEAWAY: Know what records must be kept on which employees and for how long – stay on the right side of legal.
The post on Friday 8/26/2022 noted that neighbor’s second-hand smoke is a bother – what is a good condo/HOA board to do? In Pennsylvania this is not a statutory question, but something that comes down to each association and its potential restrictions. The Board might enact Rules/Regulations on smoking (as noted in the post) or there might be something in the Declaration (which carries weight as noted in the post). This often comes up relative to smoking on balconies and similar private outdoor use. That implicates ownership of the location (i.e., as part of the unit or a limited common element) and other legal rights. See the post for more details.
TAKEAWAY: Association boards are charged with enforcement of the governing documents, but they should rely on a knowledgeable community association lawyer for thorny legal issues.
Finally, in the post yesterday 8/27/2022, we learned that employers should provide FMLA leave even if employee is unlikely to return to work. Seems kind of counter-intuitive, right? Well, not really; it’s more of a balancing of risks. A former employee suffered a serious neurological incident. The spouse provided the employer with a doctor’s note that the employee could not return to work for at least a year, if ever. The employer terminated employment (with perhaps good intentions – see the post). Then a lawyer sent the employer a demand letter for violation of the ADA and FMLA. Resolution of the ADA issue seems simple because the employee could not perform essential duties for an extended period. But what about the FMLA? When an employer can end valid leave is noted in the post, and that had not occurred here. But even though there was a (technical?) violation, what could be the damages? Compensa-tion for uninsured medical expenses? Discussion of the availability of wage loss claims is in the post.
TAKEAWAY: In the face of a potential long-term absence of an eligible employee, that person should be placed on FMLA leave – and employment counsel consulted as to how to proceed after that.