Wage & hour update, off-duty conduct as affecting employment, surplus funds & grandfathering in condo/homeowner associations, religious discrimination, and more in Our Social Media Posts This Week, April 11-17, 2021.

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.

Biden Administration wage and hour update at 50 days

In the post on Sunday 4/11/21 we read a Biden Administration wage and hour update at 50 days.  So as of mid-March, what had happened in the wage and hour arena? Just before that the Wage and Hour Division (of the US Dept. of labor) announced its proposals to rescind Trump-era rules on independent contractor classification and joint employment. As to the former, the rule was initially to become effective 3/8/2021 but was delayed until 5/7/2021 (how and why is in the post). It is expected that the federal rules will be brought in line with the test used by many states (noted in the post). As to the joint employer rule, it went into effect 3/16/2020 but has met judicial restrictions as noted in the post.  And there is more, including withdrawal of 2 opinion letters as detailed in the post.

TAKEAWAY: Employers must stay abreast of the law, including agency rules and guidance – consult an employment lawyer to help you stay on top of it all.

off-duty conduct affecting employment decisions

The post on Monday 4/12/21 said goodbye to 9 to 5 and noted employers’ consideration of employees’ and applicants’ conduct outside of work. As noted in the post, the various local, state and federal laws tell employers, among other things, what they may or may not properly consider for employment-related decisions. The question is whether that means subjective factors are ok or whether everything must be objective. Much is subjective, as it turns on the intent of the actor or decision-maker. So how do you prove subjective intent, especially with employment at-will (defined in the post under NC law but the same under PA law)? So, can the subjective, proper consideration include conduct outside of work? Well, it is not prohibited by any statute (in PA), so the things that might be considered include those noted in the post. But of course there are exceptions to this broad “rule”; some are under federal law (Title VII, the ADA, and other statutes noted in the post) and others under state law.  So what is a good, well-intentioned employer to do? See the post.

TAKEAWAY: Courts will not normally second-guess an employer’s business judgment, but that judgment must be uniform and legal.

medical practice found liable for religious discrimination

The post on Tuesday 4/13/21 showed us that a medical practice is to pay $375,000 after a judgment in EEOC Title VII lawsuit. The EEOC alleged that the defendants, 2 medical practices, conducted mandatory meetings every morning that included prayer and Bible readings – and how those principles applied to the employees’ personal lives! One employee who adhered to Buddhist principles asked to be excused from the religious portion of the meetings – yes, religious accommodation. What happened? See the post. There were also other allegations related to religious discrimination – they are noted in the post. Clearly conciliation did not happen as the EEOC filed suit. The federal trial court entered judgment on March 11, 2021. It required payment of the sum noted along with other relief as in the post. One interesting twist as to liability is noted in the post and serves as a reminder of the wide reach of the EEOC.

TAKEAWAY: Don’t impose your religious beliefs on employees and do attempt to reasonably accommodate their sincerely held religious beliefs.

ministerial exception: is employee’s work central to the religious mission?

From the post on Wednesday 4/14/21 we questioned if the ministerial exception does not cover Christian college professors but does cover Catholic school principals? Remember the Supreme Court’s recent decision in Our Lady of Guadalupe School v. Morrissey-Beru? It said that employees of religious organizations are covered by the ministerial exception based on job function, not title or level or religious education (and that no suit will lie against the organization if an employee’s work is central to the organization mission). Clear, right? Well … Apparently not when it comes to religious education and whether what the person does is central to the mission. One state court held that an association professor of social work at a Christian university was not barred from suit by the ministerial exception (based on the facts as explained in the post). Another went the other way, ruling that the exception did apply to a fired Catholic school principal (again, based on the factual analysis as in the post).

TAKEAWAY: Any organization with a religious-based mission should plan and consult employment counsel before any claims arise.

returning surplus funds, grandfathering, and more condo/hoa matters

In the post on Thursday 4/15/21 we learned about returning surplus funds, grandfathering, and more condo/HOA matters. So what does your Association do if it has surplus funds? And what is it required to do with surplus funds (which might be a different question entirely)? And does any such provision comply with applicable PA law (for condo or homeowner associations)? One way to return a surplus is described in the post (and a good idea). And what happens if a rule change means people who had formerly been in compliance now are not? They are allowed to be out of compliance until a certain date or similar, a process referred to as grandfathering. This often arises relative to rental or non-owner-occupied units. Other examples are in the post. There is also more in the post.

TAKEAWAY: Whether Board member or owner, know what the Governing Documents and applicable state law require and follow all uniformly. Involve an experienced community association lawyer if there are questions.

association basketball hoop rule sparks controversy

The post on Friday 4/16/21 told us that Association basketball hoop rules spark controversy. (We asked how your association handles this type of matter.)  This situation arose in Baltimore, almost local. The Association in question banned portable basketball hoops. (Why? See the post.) But lacrosse bounce boxes and soccer goals were not banned (according to an owner but disputed by the Association President – see the post). So now a legislator has introduced a bill to prohibit unreasonable limits on the location and use of portable basketball apparatus on an individual’s owned property. What the Association told members as to how they could proceed is noted in the post.

TAKEAWAY: Rules can and do change as residents of an association and their actions change; without law to the contrary, there is no guaranty that something permitted at the time of purchase will remain so.

wall street giant accused
of anti-muslim discrimination

Finally, in the post yesterday 4/17/21, we saw that Wall Street giant BlackRock faces anti-Muslim accusations. Essma Bengasbia was on of the first women to wear a hijab on the trading floor. At the tender age of 23, with a sterling resume (see the post), she was an analyst at BlackRock. She was excited. That soon turned to disappointment and then a hostile environment based on gender, race and religion. One of the first issues occurred when she did not wear a Christmas-themed sweater to a work party. The employer considered that she did not want to be part of the team and a senior investor commented as noted in the post. Another example is what a managing director said about her calls to her parents (again, see the post). Bengasbia was good – she kept a detailed spreadsheet of all of the incidents; what it included when she gave it to HR is in the post. HR did act (yes, see the post).

TAKEAWAY: Investigate all allegations of harassment and discrimination and take appropriate action on any that have factual support.

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