US Supreme Court defines “physical taking”; recording HOA/condo meetings; $450,000 birthday party; religious freedom vs sexual identity; and more in Our Social Media Posts This Week, May 1-7, 2022.

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.

scotus expands definition of what constitutes a physical taking – pay attention

In the post on Sunday 5/1/2022 we learned SCOTUS expands definition of what constitutes a physical taking – which might be important to you some day. A physical taking means one that takes possession of property from its owner. The decision broadened the definition by including what lawyers might have previously classified as a regulatory taking (which is defined in the post). The case is Cedar Point Nursery v. Hassid and it involved a California regulation granting labor organizations a right to take access to an ag employer’s proeprty to solicit unionization support. More on the reg is in the post. Union organizers sought access to Cedar Point and another grower. The growers filed suit in federal court to enjoin the access on the basis that it was a physical taking and therefore unconsti-tutional. The trial court dismissed – its basis is in the post. The appellate court affirmed. Then came the Supreme Court. It held that the reg takes a right to invade the grower’s property, to “literally ‘take access’” and so is a per se physical taking. The Court’s further analysis on restraint of use is discussed in the post. The Court also delved into whether an illegal physical taking has limitations such as purpose, time, or others (as in the post). The Court’s decision was also clear in what it did NTO do, the first of which is to disturb a prior decision (PruneYard Shopping Center v. Robins) which recognized a right of leafletting in a private-owned shopping center open to the public and the other 3 of which are listed in the post. Why it is important that the Court classified this as a physical taking and not a regulatory taking is discussed near the end of the post – but makes a huge difference to the parties in a case, especially the property owner.

TAKEAWAY: Know what rights others may have to your property – and what limits may be on those rights. Know the law.

your rights as a restaurant worker in pennsylvania (and corresponding obligations of employers)

The post on Monday 5/2/2022 was about your rights as a restaurant worker in Pennsylvania (and corresponding obligations of employers). We all know that restaurant workers, indeed ALL workers, are entitled to work in an environment free of sexual harassment and discrimination. But what other rights (and corresponding obligations of the employer) exist? First, tips do not take the place of minimum wage; employers must still pay employees who get tips. While the PA minimum wage is currently $7.25/hour, someone who gets at least $30/month in tips can be paid only $2.83/hour. (How that will change is noted in the post).  Next, the employer (whether manager, supervisor or owner) cannot keep tips given to employees. Tip pooling is legal, but who can share in the pool is a legal issue – and discussed in the post. What other rights (and questions) arise in this area? Whether employees have the right to request a certain schedule, if they are entitled to overtime, what protections there might be for undocumented employees, what happens if employees get sick or injured at work, and how to complain about conditions at work (in Philadelphia and around the state). All of those are discussed in the post so read all the way to the bottom.

TAKEAWAY: Many laws apply across to the board to all occupations, but the restaurant industry has some specific to it. Employees and employers must know all laws that apply to the workplace – and consult legal counsel when a question arises.

are condo/hoa owners allowed to videotape board meetings?

The post on Tuesday 5/3/2022 asked: Are condo/HOA owners allowed to videotape board meetings? What if it is the Board doing the recording? And what about posting the video (and/or audio) after the meeting? There might be statutes that apply (see the post for an example) or the association’s governing documents might contain relevant provisions (sample examples of which are in the post). While this will in part be fact-specific to your association, the first threshold (at least in PA) is state law that applies to every recording, no matter the scenario (ok, criminal law enforcement might be different, but that is beyond the scope of this post).

TAKEAWAY: Know the law in PA to keep you and your association legal – consult a community association lawyer.

don’t be a bad tiktok: how hr can manage social media

The post on Wednesday 5/4/2022 warned: Don’t be a bad TikTok: How  HR can manage social media. You have seen the wave of disgruntled employees leading to more unionization waves and also more social media use. None of that puts your company in good light in the court of public opinion. So what can (or should) an employer do? First, focus on the relationship with employees. Your business needs them, but whether or not they need your business is perhaps up for grabs in the current environment. Leverage may have shifted. You can and should have a clear social media policy – things to consider for your policy are listed in the post (and may be different from other companies’ policies). You might even need more than one policy as discussed in the post. Once you have the policy or policies in place, train employees on it/them.  Some contents of the training are noted in the post. Enforcement of the policy must also be uniform. What social media postings can or cannot be subject to an employer’s adverse action is often a legal question, but the general framework is noted in the post. Other tips to manage social media and help your company retain employees in the process are in the post.

TAKEAWAY: Know the law, but also know what your employees want and how you can work with them to achieve those wants – without hurting the business or violating any laws. Get legal assistance where needed.

jury awards $450,000 to man fired over unwanted birthday party

The post on Thursday 5/5/2022  talked of Jury awards $612,000 to man fired over unwanted birthday party. Yep, makes one think … So let’s look at the facts. Kevin Burling suffers from anxiety disorders. His employer is Gravity Diagnostics (whose website says that it is  a lab “licensed in all 50 states providing innovative laboratory testing … advocate for physicians, patients, and our communities, supporting them with unsurpassed integrity, regulatory compliance ….”  Compliance? Well, apparently Gravity normally celebrates employees’ birthdays. However, due to his condition, Kevin asked that Gravity NOT do that for his 2019 birthday. He even told them why – see the post. Gravity threw him a surprise party anyway. The party triggered a panic attack and Kevin left the party – and more (see the post). The next day he was called to a meeting; what he was told is not what you would expect. See the post. How the employer’s comments affected Kevin, and what he needed to do in response, is also noted in the post (yes, stop crying oh dear reader). Then Kevin was sent home for a few days and eventually fired (for the reason given as noted in the post). He complained but Gravity is sticking by its decision (the COO’s comment is in the post). After a trial, a jury awarded Kevin $450,000 (US) consisting of $300,000 emotional distress damages and $150,000 lost wages. Supposedly Gravity is going to appeal.

TAKEAWAY: Even though you might have good intentions, listen to employees when they talk of how something might impact their physical or mental condition. Not taking it into consideration might make you a defendant in an expensive lawsuit.

panel to hear first appeal of $20,000 VHR (vacation home rental) fine. intersection of condo/hoA and municipal rules/regs.

The post on Friday 5/6/2022 told us a panel to hear first appeal of $20,000 VHR (vacation home rental) fine.  A Lake Tahoe municipality revised the fine it could levy for owners operating a vacation home without a permit after a federal lawsuit. So, some facts. Matthew Kvancz owns a property and is appealing a $20,000 fine and a separate $5,000 fine. His home was up for a Tier 3 permit; what that would have allowed him to do is described in the post. He has had a permit since 2018. Only at that point did the county learn that the community’s governing documents don’t allow rentals for owners who purchased after 2016. So, what did the county do when it came time for Kvancz to renew in 2021? See the post. And his argument? Also in the post.

TAKEAWAY:  This is at the intersection of condo/HOA and municipal rules/regs which is not uncommon. Owners of homes in a planned community must abide by state and local laws/ordinances as well as any restrictions in the community’s governing documents. It is best to consult a community association lawyer if questions arise.

university to pay $400,000 to professor punished for refusing to use student’s preferred prounouns

Finally, in the post yesterday 5/7/2022 we saw that a university is to pay $400,000 to professor punished for refusing to use student’s preferred pronouns. In January 2018 philosophy professor Nick Meriwether responded to a biological male student’s question during a class by saying “Yes, sir.” Sounds polite, right? Wait. After class the student told Meriwether that they are transgender and wanted to be referred to as a woman, including feminine pronouns and titles. That goes against Meriwether’s religious beliefs so he refused. The student filed a complaint with Shawnee State University. What it did, and Meriwether’s offer which was refused by the student (but which makes sense to this author and would be a good resolution), is all in the post. The University gave Meriwether a written warning (details of which are in the post) in June 2018 and he sued for violation of his First Amendment right to free exercise of religion. The federal trial court dismissed the case but on appeal that was reversed and the suit allowed to proceed. Now the case has settled.

TAKEAWAY: Religious freedom versus sexual identity. Society today – know the law(s). Get legal assistance before you run afoul of the law.

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