Below is a review of the posts on Facebook and LinkedIn from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 9/15/2024 noted Balfour Beatty Infrastructure Inc. to pay $80K to settle EEOC sexual harassment and retaliation suit. According to the EEOC’s lawsuit, for over a yea, a female truck driver working at Balfour Beatty was subjected to harassment by several male coworkers. One coworker asked the victim to “talk dirty” to him and did other things as noted in the post. After the victim complained, the coworker’s conduct escalated. The victim was also subjected to a hostile work environment because she is female. The male coworkers called her sexually derogatory names on a regular basis and took the other actions listed in the post. After the victim complained, she was denied an opportunity for advancement she was expecting and transferred to an undesirable work location.
This alleged conduct violates Title VII. The EEOC’s suit was filed in federal court after conciliation failed. Not only will Balfour Beatty pay $80,000 in damages to the affected employee, but the two-year decree includes non-monetary relief as detailed in the post.
TAKEAWAY: When an employee complains, don’t ignore it or retaliate against the employee; investigate and take prompt action as warranted.
The post on Monday 9/16/2024 talked about the right to switch off: how HR can make it work. This is not in the US, but dozens of countries have implemented it. Would it be feasible for your workplace? The idea is to put guardrails around contacting employees after hours. With workers increasingly checking emails in the evening, at weekends and even on holiday, it seems there’s a great unspoken pressure to always be engaged, visible and reachable. So how can HR make this type of policy work?
The first thought is that this would not be statutory, but rather a code of practice. What that would mean for individual employers is noted in the post.
Next is maintaining flexibility and comfort with the digital world. Since 2020, technology has played a massive role in so many ways in the workplace (such as the ones listed in the post). Technology has made everyone accessible 24/7/365. But that does not have to mean people work those hours too. Employers need to help employees manage technology – some ways they can do that are discussed in the post. That includes encouraging employees on vacation to stop all work email notifications. Or to use one of the alternatives suggested in the post.
A third thing that employers can do is build a culture that values and prioritizes work-life balance. Ideas for employers are again discussed in the post.
TAKEAWAY: There are many ways to retain employees; recognizing that they have a life outside of the workplace is a good start.
The post on Tuesday 9/17/2024 told us FedEx faces (another) lawsuit over alleged discrimination against disabled drivers. The EEOC alleged that FedEx discriminated against ramp transport drivers who carry cargo between airport ramps and terminals. FedEx allegedly forced the employees to either take unpaid leave or be terminated rather than providing reasonable accommodations.
The suit alleges that since November 2019, FedEx has enforced a policy for ramp transport drivers that is detailed in the post. After a certain period (as noted in the policy), if there were still restrictions the driver was placed on unpaid medical leave for up to a year unless they qualified for disability benefits. What the EEOC says FedEx did not do that it should have is in the post. As an example, the EEOC highlighted one driver who could not return to work without restrictions due to injuries. What happened to her is in the post. The EEOC says that FedEx’s actions violate the ADA.
TAKEAWAY: Know what obligations you have under the ADA (and FMLA) and comply – get legal assistance if needed.
The post on Wednesday 9/18/2024 was about prioritizing mortgages and HOA/condo liens. Across the country, numerous states have passed uniform community housing statutes that create liens for unpaid assessments in favor of homeowner’s and condo associations against units in the communities. The liens are typically automatically enforceable upon failure to pay an assessment (meaning the association does not have to take separate action). Once enforceable, the liens can obtain “super priority” status over other lien holders. That super priority lien has been the source of much litigation, across multiple jurisdictions, between associations and mortgage holders. Recently, the North Dakota Supreme Court provided an interesting clarification and analysis on these competing interests when an association attempted to circumvent the recording requirements necessary for perfection in the case noted in the post. There the Court was confronted with an appeal from a trial court’s order granting summary judgment to the North Dakota Housing Finance Agency (NDHFA) on the issue of priority of its mortgage over the association’s lien and NDHFA’s right to foreclose. Let’s look at the background.
A group of entities known as “Fendee” built a housing development that included an HOA. The governing documents for the HOA were recorded in 2013 and provided that monthly assessments were due on the tenth of each month. Carrine Gould purchased the home in question with a loan and mortgage from Guaranteed Rate Inc., on or about August 30, 2019. The mortgage was recorded on or about September 5, 2019. On September 6, 2019, Guaranteed assigned the mortgage to NDIC, which was acting on behalf of NDFHA. During the purchase financing process, Fendee charged Gould a monthly assessment on August 31, 2019, but that assessment did not become due until September 10, 2019.
In January 2021, Gould failed to make mortgage payments and subsequently defaulted on the note. In September 2021, Fendee recorded its lien against Gould for unpaid association assessments, fines, penalties, interest, and legal fees. NDFHA began to foreclosure on the property in January 2022 as a result of the 2021 default. Gould passed away in January 2023, causing Fendee to amend its lien for additional costs in February 2023. Both Fendee and NDFHA moved for summary judgment; the trial court determined NDFHA had the right to foreclose and that Fendee’s liens were subordinate to NDFHA’s mortgage. Fendee appealed – with the basis for the appeal set forth in the post.
In its analysis, the appellate court relied on the language in the governing documents, specifically a provision that the recording of the declaration constitutes record notice and immediate perfection of the HOA’s lien. What else that provision says is in the post. In reviewing all of that language, the court held that despite the terms of the declaration, Fendee’s claim of a “super lien” failed. The key to the court’s ruling is detailed in the post. The end result of the court’s holding was that the lien of NDFHA was superior to the HOA lien.
Keep in mind that this is a case from North Dakota case dealing with the specific facts in the case, but it highlights a continuing issue and the arguments being made by community associations nationwide to try and obtain senior priority status over mortgage holders. This decision also brings to bear the importance of timing of recordation relative to liens on properties in homeowner’s or condo associations. What might have happened had Fendee acted sooner is discussed in the post.
TAKEAWAY: Know the law that controls the status of your HOA or condo lien relative to mortgages against the units; involve a community association lawyer early in the process.
In the post on Thursday 9/19/2024 we saw a resident sues local condo complexes over scooter accident injuries. The accident was allegedly caused by hazardous conditions at a local condominium complex. Milan Pavlik filed suit on August 15, 2024, against Flagler Landing Condominium Association, Inc., Triton Property Management, LLC, and Fresh Start BSC, Inc. According to the complaint, Pavlik was entering the gate at Flagler Landing on May 31, 2024, when his scooter encountered excessive sand and debris on the roadway. This caused his scooter to slide out from under him, resulting in an accident. Pavlik claims that he was given no warning about this hazardous condition. The lawsuit alleges various claims against the condo association as listed in the post. Pavlik’s damages allegedly include bodily harm, pain and suffering, disability, disfigurement, mental anguish, loss of capacity for enjoyment of life, medical expenses, loss of earnings and aggravation of pre-existing conditions.
Pavlik is also suing Triton Property Management LLC for similar reasons (which are also detailed in the post). How and why Fresh Start BSC Inc. is a defendant in the case is described in the post.
TAKEAWAY: Keep in mind the potential liability your association may have for accidents within the community – fulfill all obligations and be prepared for a possible defense (with the facts, legal support, and a community association lawyer).
The post on Friday 9/20/2024 explained that old employment law principles can answer new AI concerns. Artificial intelligence is everywhere in the workplace, parking increased legal and regulatory discussions and changes. Judges are instituting bans and other regulations on the use of AI in court. States are enacting laws attempting to curb or control the use of AI in employment-related policies. And employers are trying to figure out how employment laws apply to this rapidly evolving and diversifying offering of AI tools. But with all of that, the core legal issues surrounding the use of AI are not new. Why? See the post. So let’s see how the “old” principles still apply in this era of AI.
You probably know that at the heart of many employment law issues is discrimination. “Old” employment laws, including Title VII, prohibit discrimination in hiring and employment based on defined protected characteristics. Those laws still apply, but perhaps in a more complex way with the use of AI. The AI systems are made by humans, so the AI tools used by employers can perpetuate or even exacerbate human biases if the AI tools are not carefully designed, monitored and validated. An example, and what it reinforces to/for employers, is described in the post. As early as 1978 the DOL and DOJ issued guidance on eliminating discrimination in selection devices and procedures. See the post for more details on that early guidance. The guidance is broad; when issued it focused on paper and pencil tests (the reason for that focus is in the post). AI doesn’t change this, but merely expands it to a new frontier, and the guidance remains in effect today.
And when it comes to potential disparate impact, things are really the same. Prior questions (such as those listed in the post) were asked of hiring managers. The answers don’t change just because AI was involved at some point – the hiring mangers just need to know how those new AI tools were integrated into the process and address any problems they (might) create.
But what about the use of AI and privacy and data protection? The use of AI has brought a significant increase in the volume and sensitivity of data collected. But that does not change the underlying legal risks and concerns addressed by prevailing employer conduct today. Just as data breaches can occur from the general storage and maintenance of personal information, so too can AI be breached. So what does this mean for employers? See the post.
This applies not only to data maintains on employees, but also the employer’s proprietary data also. Confidentiality agreements, employment policies, and more still apply (perhaps even more so) in this age of AI. So what should employers do? See the post.
The advent of AI may also have an effect on employee classification and job security. Duties and functions may change. See the post for more on this. And don’t think that the increasing use of AI means fewer humans – the post explains why the reality is to the contrary. And what about workplace health and safety when it comes to AI, including the increasing use of robots and automated machinery? See the post relative to what does or does not change from the “old” pre-AI environment.
TAKEAWAY: AI is a tool, and just like any other tools used in the employment context, humans must ensure that it is used fairly and without discrimination.
Finally, in the post yesterday 9/21/2024, we saw a former dock worker alleges age and sex discrimination against employers. Wow, the facts … Trina Mobley filed suit in federal court at the end of August 2024 against Quiet Logistics, Inc., and Insperity PEO Services, L.P. The suit includes claims under the ADEA and Title VII. She claims that during her employment from April 2021 to November 12, 2023, she was subjected to different terms and conditions than her younger and male colleagues which created a hostile work environment based on both age and sex. Let’s go in for a closer look.
Mobley’s suit details several incidents underlying her claims. She says that on October 7, 2023, she emailed Human Resources to express discomfort about working in an environment rife with sexual harassment. She described male coworkers walking around with their pants sagging low enough to expose their backsides and even their genitals. After that complaint, Mobley was ostracized by her peers for two weeks. On October 25, 2023, another incident occurred; details are in the post. Despite filing complaints with HR about these incidents and asserting age and sex discrimination, no action was taken against any perpetrator. But Mobley was terminated on November 12, 2023, and (she claims) her duties subsequently assigned to younger male employees. Mobley claims that the termination was in retaliation for her complaints.
The relief sought by Mobley is detailed in the post – and not surprising or out of the ordinary.
TAKEAWAY: Employers must take complaints seriously – by investigating and taking whatever action is warranted. Having an employment lawyer dialed in is also a good idea.
York, Pennsylvania 17403