Violating federal privacy law by accessing personal email; novel alternative to mowing lawn in condo/HOA; overtime pay for high wage earners; FMLA redux; and more in Our Social Media Posts This Week, Apr. 2 – 8, 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.

what is pay equity? defining the problem before it can be addressed

The post on Sunday 4/2/2023 asked: What is pay equity? Defining the problem before it can be addressed. The post appeared about 2 weeks after Equal Pay Day. You  know that that is, right? The day when women have earned what men did last year (meaning that if an average man earned $50,000 in 2022, it took until Equal Pay Day in 2023 for an average woman to earn that same amount).  And the date is even later for women of color. How much later? See the post. U.S. Census Bureau figures show that women make about 83 cents for every dollar earned by men. This cuts across almost all occupations, even in Hollywood (see the post for that difference). Gender is not the only thing that is linked to pay inequity. Pew Research reports on another characteristic – see the post. While fair pay is a societal concern, employers too need to consider their pay practices as they can result in retention problems, legal issues, and more (as noted in the post). So what can an employer do?

First, and easiest, is to provide equal pay for equal work regardless of the demographic group. That means that the characteristics listed in the post should not figure into wage calculations. Geography can certainly (legally) influence wages. Other things too can legally affect compensation; some are listed in the post.

Employers must also keep in mind applicable state and federal laws. They include the Equal Pay Act of 1963 (which amends the FLSA) and is administered and enforced by the EEOC. What the Equal Pay Act prohibits, and how it is measured, is discussed in the post. Key is that when employers correct a pay differential, the pay of the lower-paid employees is to increase, but not a reduction in the earnings of the higher-paid employees.

Title VII also must be kept in mind; it prohibits employment discrimination based on race, color, religion, sex, and national origin. Other federal laws that bear on wages are listed and discussed in the post, including the Lilly Ledbetter Fair Pay Act (forgot that one, didn’t you?). This was signed in 2009 and overturned a Supreme Court decision relative to the time period for filing complaints of discrimination in compensation for employment. What the Act provides is noted in the post – and employers must be aware of this.

In addition to actually paying employees fairly, there are other things an employer can do, such as conducting a pay equity audit. What that is and how it can be helpful is discussed in the post. Also, employers should think about equal pay for similar work, not just across job titles. Why? See the post for an explanation. There are also several other suggestions in the post.

TAKEAWAY:  Don’t get caught in the line of fire – pay employees what they legally should be paid.

accessing worker’s personal emails may violate federal privacy laws

The post on Monday 4/3/2023 told us that accessing worker’s personal emails may violate federal privacy laws, appeals court warns. In Carson v. EmergencyMD LLC, the 4th U.S. Circuit Court of Appeals held on Feb. 9th that a South Carolina company may have violated the federal Stored Communications Act (SCA) when it accessed a former worker’s private email account after inadvertently discovering the messages following her termination. Yep. Let’s look at the factual and procedural background and see what can be used as a roadmap going forward.

With the company’s approval, the worker used her personal Gmail account for her job. After she was terminated, she went to work for an alleged competitor, and the company and new employer filed claims against each other in state court for unfair competition and misappropriation of trade secrets. During the litigation, the company found, reviewed and allegedly printed out emails from the worker’s Gmail account which had been left open on the web browser of a company computer. What did the emails contain? See the post. The company published the emails in the state court litigation and the worker sued for violating the SCA.

A federal district court granted summary judgment to the company, but the 4th Circuit reversed and sent the case back for trial. The appeals court discussed what the SCA prohibits and why it sent the case back for trial (see the post).

While all of the events of the case occurred pre-COVID-19, the case’s lesson is timely: The new normal is remote/hybrid work and employers need to be careful about employees using their personal messaging accounts for job-related business. How best to do that? See the post. But if employers don’t want to go that route, there are still steps they can take to mitigate the risk of disclosure, including requiring workers to log into a VPN instead of saving company information on their computer/device and other things as noted in the post. What should never be permitted? See the post.

And speaking of a BYOD policy, it should include provisions that company content on personal devices still belongs exclusively to the company, employees must use reasonable security measures on their devices, and more as noted in the post. There should also be policies related to use of company-owned devices and networks. Some of what should be in the content of that policy is also noted in the post.

And let’s finally circle back around to facts similar to what happened in this SC case. Even if an employer inadvertently discovers emails on a worker’s personal account, they might not want to review the emails. Rather, proceed as noted in the post. And if a company suspects that a worker is stealing its information, it should conduct a legal forensic investigation. What that might entail is noted in the post. And to enforce BYOD and computer-use policies, protect trade secrets and help themselves in case of litigation, employers should make clear to employees what is considered confidential or trade secret information and take the other steps noted in the post. And one of the biggest, if not the biggest, thing an employer should do when it comes to trade secrets? See the post.

TAKEAWAY: Know what you can and cannot do when it comes to workers’ emails – get competent advice from an employment lawyer.

“fine, I’ll hire a goat instead”: hoa forbids man to hire a company for yard work, cue malicious compliance, he “hires” goat for $20

The post on Tuesday 4/4/2023 said ”’Fine, I’ll hire a goat instead’: HOA forbids man to hire a company for yard work, cue malicious compliance, he ‘hires’ a goat for $20. Ingenious? Whether or not you live in or are a fan of community associations (including condominium and homeowner associations), you will smile at this. Here a man lived in an HOA where little flags were planted in front lawns to ensure owners knew when to cut the grass. This man hated to mow his grass. Why? See the post (and no, he’s not just a curmud-geon). There was only one company the HOA allowed owners to contract with to mow their lawns – and the fishy thing about that company is in the post. So, this man decided to comply, but without hiring a company; instead, he hired a goat that belonged to a friend of his. The goat was loaded in the back of the friend’s truck and brought over. What they did then is in the post. (This author recommends reading the additional comments in the post – some are quite humorous.)

TAKEAWAY: Community associations have various restrictions, but often an owner will figure out a way around a restriction that the association did not think of – and that is allowable unless and until something changes.

supreme court says employee making $200K CAN earn overtime

The post on Wednesday 4/5/2023 was important: the Supreme Court says an employee making $200K CAN earn overtime. Let’s look at the facts and how the Court applied them to the FLSA. Here we had Michael Hewitt, a tool pusher for oil and gas company Helix Energy Solutions who made more than $200,000 a year but was paid on a daily basis. Hewitt did not meet the definition of an executive under the FLSA (see the post for the elements of the test as set forth in the Regulations). And the pay structure did not meet the FLSA’s salary-basis criteria (again, relevant definitions are in the post along with how that applied to the facts of the case). Therefore Hewitt was found NOT exempt from overtime pay. Noted in the post are a few things employers in this situation can do to prevent having to pay highly-compensated employees for overtime.

As an aside, an interesting tidbit about this case is that the company’s writ of certiorari did not ask the Court to decide the question it did, but something different. That caused at least one Justice to say that the Court should not have accepted the case.

        TAKEAWAY: Employers must know the law and both classify and pay employees correctly. Get legal advice if you are unsure.

interpreting the fmla, one case at a time. three decisions you need to know.

In the post on Thursday 4/6/2023 we looked at interpreting the FMLA, one case at a time. Three decisions you need to know – how they affect you and how to implement them. Let’s first travel back to 2002 and the case Ragsdale v. Wolverine World Wide Inc. (linked in the post). Tracy Ragsdale was diagnosed with Hodgkin’s disease and eligible for 7 months of unpaid sick time. She asked for and received a one-month leave of absence and six extensions. The 7th request for extension was not approved; instead, she was fired. SCOTUS decided in Ragsdale that an employer can retroactively designate time as FMLA leave on one condition – see the post. And how did that condition play into the facts? Again, see the post.

Now let’s travel ahead to 2014 and the 9th Circuit case Escriba v. Foster Poultry Farms Inc. (yes, also linked in the post). The appeals court (whose decisions are not binding on employers in PA) decided that an employee can affirmative decline to use FMLA leave, even if the reason for which leave was sought would have invoked FMLA protection. The case now conflicts with a 2019 opinion letter by DOL (linked and described in the post). PA employers are advised to follow the DOL opinion letter.

And finally we come almost back to the present. In November 2022 in Render v. FCA US LLC, the 6th U.S. Circuit Court of Appeals (which also does not govern employers in PA) ruled in November 2022 that an employee did not need to provide formal notice every time he needed days off for his recurrent mental health condition, which already had been approved for FMLA leave. So what should employers do in case this ruling is extended to other states? Follow the suggestion in the post.

TAKEAWAY: Even rulings by courts that do not govern actions by PA employers can be enlightening and provide a roadmap for PA employers. They should be discussed with your employment lawyer to ensure you stay in legal compliance.

volunteers are protected, right? understanding director and officer (D&O) liability insurance for condominium and homeowners’ associations

The post on Friday 4/7/2023 asked Volunteers are protected, right?: Understanding Director and Officer (D&O) liability insurance for condominium and homeowners’ associations. Community associations act through their boards which are comprised of volunteers who serve because they (usually) care about the community. But that doesn’t stop them from sometimes being included as defendants in a lawsuit. One of the best ways to protect a director is to have in place D&O insurance. What it does is explained in the post. Associations should look carefully at the variety of D&O policies and keep in mind the items listed in the post (that should be part of the policy’s coverage). When shopping for D&O coverage, associations might also be looking at either an endorsement to existing insurance or a standalone policy. How those might differ, and why one might be preferable, is also in the post. Finally, directors should also keep in mind the circumstances under which no D&O policy will protect them – discuss with a community association lawyer if you are unsure.

TAKEAWAY: It is imperative that those serving on condo and HOA boards know what insurance protection covers them in that capacity and under what conditions. Consult a community association lawyer to make sure.

starbucks faces corporate employee revolt

Finally, in the post yesterday 4/8/2023, we saw that Starbucks faces corporate employee revolt. Yes, many other businesses face the same reaction, but let’s look at what’s happening here as an extension of the unionization wave that hit the company in the last few years. At least 83 corporate workers have signed a petition urging Starbucks to pull back on its return-to-office policy and sign a fair election agreement with the union (Starbucks Workers United). There is a link to the letter they signed in the post. Why are they against the RTW policies that affect 3750 employees in regional and corporate offices? See the post. The RTW policy required many employees to find childcare and make other adjustments as noted in the post. Starbucks talked about how the headquarters’ policy changed after some comments: see the post. And perhaps wors of all is that the policies appear to inhibit teamwork and collaboration – see the post. Some corporate employees who have not suffered adversely by the RTW policy have spoken upon behalf of those who have – solidarity. And possible unionization for the corporate employees, similar to what the baristas and other retail employees are doing. See the post for more details on that push.

TAKEAWAY: Employers should consider possible ramifications and effects on workers before enacting policies – even if they are completely legal.

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