Peters & Freedman, L.L.P.

Sometimes it is the smallest gestures that make the biggest difference.  With gas prices at an all-time high everyone is feeling the pinch.  The cost of just about everything has increased as a result and most people are having a hard time simply getting to work as a result of the additional gas costs. Rather than sit by idly, David Peters took it upon himself to do something about it.

David Peters took $5000 of his own money and divided it up amongst the staff here at Peters & Freedman, L.L.P., to address some of these additional costs that everyone is facing.  The Peters & Freedman, L.L.P., employees were so happy they contacted the local news agencies and a couple of stories aired recently.  One such story can be found at the local NBC website.

A hearty thanks to David Peters for showing his true colors and really making a difference in the lives of many San Diegans!

By: David M. Peters, Esq.

It is often said, that the sole duty of a Board of Directors is to protect, maintain and enhance the value of the project. The vast majority of the Homeowners Associations contract and delegate authority to a management company. The Board of Directors typically meet monthly, bimonthly or sometimes even quarterly. What are the authority and contractual duty of management to take action in between Board meetings? Obviously, most ordinary decisions as well as emergencies usually do not fall within the time frame of the Board of Directors meetings.

The first place to start is the management contract. Most management contracts provide language giving the manager limited authority to make decisions and expend a limited amount of Association funds in between Board meetings. What most Boards do not realize is that irrespective of what limitations are in the contract, the manager probably has a duty, depending on the circumstance, to expend Association funds, sometimes a very significant amount of funds. If, for example, a water line breaks which left unfixed may cause substantial damage, the manager has a duty to get it fixed - period.

The problem comes when a Board of Directors attempts to impose 20/20 hide sight. “If you would have done this or used this contractor it would have been performed at less expense.” “We were meaning to replace the gate, but you should have left the gate open until the next Board meeting.” This reasoning is flawed.

A principal is bound by the actions of its agents. I have recently witnessed several situations in which the Board of Directors attempted to take the position that the manager was liable for an expenditure that the manager authorized on behalf of the Association. While managers should, if possible, consult with the President or the Board on particularly expensive or pervasive issues, the reality is that a manager will necessarily make many significant emergency decisions in between Board meetings without consulting the Board. Attempting to claim that the manager is responsible for the expenditure is rarely, if ever appropriate, even if the decision turns out incorrect, unnecessary or is legally unsupportable or ill-advised.

Exactly to the contrary, the manager could potentially be in breach of their contract and their duties as a manager if they did not take action to “abate” the certain issues or conditions. It is also the manager’s job to make many little decisions in between Board meetings. (Please note that I am not referring to the kind of situation in which a management company clearly sent a meeting notice which contained the wrong date and consequentially pays for the second mailing).

If a Board is not willing to abide by these precepts and wishes, and the manager acts as a mere “secretary” then the Board and each individual member necessarily needs to make the commitment to: (1) educate itself as to how to manage a project; and (2) devote the time and effort, and be available to make the day to day decisions. In other words, learn to be a manager and manage the project. Be careful for what you ask, you may get it.

Many of our associations have staff members. Sexual harassment therefore may affect many of our clients. The article below emphasizes the proactive stance of Peters & Freedman, L.L.P., in preventing possible claims for associations. If your association has employees and would like assistance in drafting an appropriate sexual harassment prevention policy, please feel free to contact our firm.

By: B. Allison Borkenheim, Esq. (Re-printed with permission of Ms. Borkenheim, Esq.)

Taking proactive steps to deter and defend costly litigation.

Sexual harassment cases have moved beyond the stereotype of the female subordinate versus her male superior. Today, your company can be sued by an employee, male or female, who happens to overhear vivid watercooler conversations between two co-workers.

The courts have expanded the definition of sexual harassment, including behaviors that previously were not actionable under the sexual harassment laws. The cost of defending a case from the day a complaint is filed through trial can be significant, even if you defend the case successfully. If you don’t prevail, in addition to your defense costs, you’ll have to pay the victim’s legal costs. Preventing the claim from happening in the first place is the most cost-effective solution.

What is sexual harassment?

Generally sexual harassment refers to unwelcome advances, requests for sexual favors and other verbal or physical conduct that unreasonably affects an individual’s employment. Over time, the definition has expanded to include conduct or behavior that occurs ‘because of sex,’ but is not ’sexual’ in nature. Claims for sexual harassment can be brought for actions perpetrated by supervisors, co-workers and, under certain circumstances, third parties who interact with employees.

What is the employer’s responsibility in preventing sexual harassment?

Employers are expected to prevent sexual harassment in the workplace, and they can be held liable if the employer (or supervisors) knew, or should have known, about the harassment and failed to take appropriate corrective action.

What constitutes an effective sexual harassment policy?

Here are the best practices for administering an effective sexual harassment policy:

1. Have a written sexual harassment policy that includes a statement of non-tolerance for the behavior, a plan for the empployee to follow if he or she is harassed, and a process for investigating claims of harassment. This is required by law and is the first line of defense
2. Include a non-retaliation policy as part of your plan
3. Communicate the plan both verbally and in writing and have employees sign and retain a copy, acknowledging receipt of the policy and knowledge of the consequences
4. Re-communicate the policy and have employees sign a new copy each year

What actions should CEOs take to enforce the policy?

I often find that behind many cases is a victim whose feelings were hurt because no one stopped to listen or sympathize. Besides having a written sexual harassment policy, here are my other recommendations for CEOs:

1. Have good, solid human relationship practices and open communications
2. Appoint a policy enforcer, such as the HR manager who can walk the halls and personally observe and monitor employee behavior
3. Address inappropriate behavior before someone complains
4. Personally attend sexual harassment training and train all employees
5. Implement a no-dating policy for supervisory staff or require that dating employees inform management about their relationship
6. Don’t be afraid to take corrective action if it’s called for. Consider using third-party investigators in cases of alleged supervisor harassment to ensure objectivity
7. Don’t discriminate when investigating or assigning discipline; don’t protect a highly valued employee at the expense of enforcing your policies
8. Don’t retaliate against the person who complained about the harassment. It is illegal and provides the employee with another cause of action to pursue
9. Screen new hires carefully. Conduct reference checks and spend time with prospective employees asking behavioral interviewing questions so you know if they are not only a technical but also a cultural fit.

Where are sexual harassment claims filed and how does the jurisdiction affect the defense?

Claims can be filed in federal court under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment. There are effective defenses to federal claims. Several consider an employer’s policies to prevent sexual harassment. Liability may be determined by the reasonableness of the actions taken by the employee. For example, if the employer had a preventive policy and the employee unreasonably failed to take advantage of it, then the employee likely will not be able to recover damages.

Claims filed in California under the Fair Employment and Housing Act (FEHA) are more difficult to defend because an employee’s failure to follow an employer’s complaint procedure may not result in a complete defense to all liability. Also, California courts tend to be more generous with awards. On the positive side, in California an employee can only recover ‘reasonable damages,’ which excludes those damages the employee could have avoided with reasonable effort and without undue risk.