On the final day of the Supreme Court’s 2017-2018 term, the court issued its long-awaited decision in Janus v. AFSCME, Council 31, changing the labor law landscape as we know it.
In September 2018, Ohio will become the latest state to allow the use and sale of medical marijuana. When the law goes into effect, employers will need to be prepared for changes in workplace policies, including pre-employment and random drug testing.
In their bylined piece for Beverage Master Magazine titled “As Easy As A, B, C: Does California’s New Independent Contractor Test Impact Your Brewery?,” San Diego Partner Amy Lessa and Associate Megan Walker break down the new three-part “ABC test” for determining whether a worker is classified as an employee or independent contractor
The opioid crisis has led to significant challenges for Americans, and employers are not immune. Some have noted the crisis as being one of the greatest challenges currently facing the country.
Does Greyhound have to let Immigration and Custom Enforcement (ICE) officials on their buses? Fisher Phillips attorney David Jones addressed that question with a bylined article in Law360.
In his bylined piece for Corporate Compliance Insights, Irvine Partner John Skousen breaks down the new ABC test for California employers, which determines whether a worker should be classified as an employee or an independent contractor.
In the evolving landscape of workplace discrimination, the country’s awareness of sexual harassment continues to increase, and the courts continue to grapple with questions about the definition of sex discrimination.
Staffing agencies fill the demand for temporary workers. Rideshare companies use apps to match people needing a ride with people willing to give them a ride. Health care registries dispatch caregivers to clients’ homes. The burning question is: When does the matchmaker cross the line and become an employer of its “independent contractors”? Two recent documents issued by a federal agency and a state agency provide some insight into this question, at least from the administrative agency standpoint.
In her second article for Women Chefs and Restaurateurs, Wendy McGuire Coats continues her discussion on tackling implicit bias by exploring the role individual cultural programming plays in the formation of a person’s bias.
In an article for Rock Road Recycle, partners Pamela Williams and Travis Vance remind aggregate and heavy construction industry employers that 2017 OSHA 300A information was due July 1, 2018.
- Fisher Phillips Partners Advise Texas Construction Industry Professionals on OSHA Injury and Illness Data Reporting Requirements
Writing for Construction News, Pamela Williams and Travis Vance advised construction industry professionals that 2017 OSHA injury and illness (300A) reports were due July 1, 2018
- Fisher Phillips Portland Attorney Pens Article on Personal Liability for Daily Journal of Commerce Oregon7.19.18
Stephen Scott’s article, “Answer to question about personal liability lies down a rabbit hole,” looks at federal and state laws and recent court decisions addressing personal liability for individual employers.
Written by Wendy McGuire Coats, Todd Scherwin and Karl Lindegren, the article, “Encino: Deference challenged & ‘fair’ is back,” examines the U.S. Supreme Court’s rulings in Encino Motorcars v. Navarro and discusses what it means to put the word “fair” into FLSA exemption analysis.
In his bylined piece for Workforce Magazine, New Orleans Managing Partner Edward Harold outlines common mistakes that result in otherwise peaceful terminations going south in court, and provides step-by-step solutions to prevent the worst-case scenario from unfolding.
Katherine Sandberg of the Sacramento office authored the Building Savvy article “The State of Arbitration: Where We’re At, Where We’re Headed, and Where We Want To Go.” In this article, she weighs the pros and cons of arbitration for employers, and reviews the AB 3080 Bill.
In the article, "Employers Liable for Unpaid Wages in Colorado," published in Law Week Colorado, Denver Partner Susan Schaecher discusses the Colorado Court of Appeals case, Paradine v. Goei, which held that the Colorado Wage Claim Act does not categorically bar individual liability for unpaid wages.
Partner David Monks’ article, “The New ABCs of Worker Classification in California” was published in the Becker’s Hospital Review. This article explains the new three-part “ABC test,” a legal standard that determines whether a worker is classified as an employee or independent contractor.
In a blog post for Risk Management magazine, Melody Rayl recommends seven steps employers should take in their own workplaces to respond to the Supreme Court’s June 2018 travel ban decision
William Blackie and Sarah Moore authored the Crain’s Cleveland Business article “U.S. Supreme Court Strikes a Massive Blow Against the National Labor Movement.” This article discusses the U.S. Supreme Court decision in Janus v. AFSCME prohibiting public-sector employers from collecting “fair share” fees from non-union employees.
Writing for Construction News, Art Lambert points out that employers can be held liable for violence at or related to the workplace if it has failed to take steps to prevent or respond appropriately to workplace violence.
Andrew Hoag of the Los Angeles office authored The Recorder article “The 'Masterpiece Cakeshop' Ruling's Guidance to Employers.” In this article, Andrew provides an analysis on the U.S Supreme Court decision that ruled in favor of a baker who refused to make a cake for a same-sex couple.
New York Partner Melissa Osipoff authored the New York Law Journal article “Private Facebook Posts Could Be Fair Game For Discovery.”
Brett Owens of the Tampa office wrote the article “Time’s Up, Florida: Creating Workplaces Free from Sexual Harassment and Retaliation” for HR Florida Review.
Rob Ratton of the Memphis office authored the article “Guest Column: Despite DOJ, Court Rules Transgender Discrimination Violates Federal Law” featured in the Memphis Business Journal.
Earlier this year, Vermont legislators introduced House Bill 556, an outright ban on noncompetes and any other restrictive covenant that restrains an individual’s livelihood. This legislative overhaul of Vermont restrictive covenant law is one of several state-level reform efforts proposed in the wake of the White House’s 2016 “call to action” for state restrictive covenant reform. Indeed, since the call to action, over a dozen state legislatures from across the country have proposed and enacted legislation reforming employers’ use of restrictive covenants. As more and more states answer the “call” and alter an already inconsistent legal landscape, employers who use restrictive covenants should review their agreements to ensure compliance with the states’ laws in which they operate.
Collin Cook and Bailey Bifoss authored the California Constructor Magazine article “Building Workplace Culture on a Solid Foundation in the #Metoo Era.”
- Acquiring Workers Through Agencies or Other Third Parties Does Little To Reduce the Risk of Potential Legal Claims of Harassment5.30.18
In the Houston Medical Journal article “Acquiring Workers Through Agencies or Other Third Parties Does Little To Reduce the Risk of Potential Legal Claims of Harassment,” Lariza Hebert discusses the implications of the joint employer relationship when harassment claims occur.
Mike Greco authored the article “8 Tips to Prevent Autonomous Vehicle Cyber Breach Liability” published in Automotive iQ.
It is no secret American workers are falling behind when it comes to saving for retirement. Currently, the retirement system does not provide opportunities for employees working for small business or as independent contractors to take advantage of employer-sponsored retirement plans. As an increasing number of workers continue to join the gig economy, it is imperative for lawmakers and regulators to create a new retirement system that allows for freelancers and individuals working for multiple businesses to easily save for retirement. Although the American workforce is changing, the traditional retirement system does not yet present an option for the evolving workforce. Gig workers are currently not entitled to enjoy a traditional employer-based retirement plan because such plans are subject to stringent rules and only permitted to cover employees and not independent contractors.
Samantha Monsees authored the Kansas City Star article “‘Ban the box’ Rewrites Some Employer Rules.” In this article, Samantha provides suggestions on how Kansas City employers should modify their hiring practices to comply with the new “ban the box” ruling.
- Emergence of the Healthcare Industry as the Country’s Largest Employer Presents New Challenges and Considerations for Employers4.30.18
Lariza Hebert authored the Houston Medical Journal article “Emergence of the Healthcare Industry as the Country’s Largest Employer Presents New Challenges and Considerations for Employers”.
Sam Lillard was recently published in the Columbus Bar Association’s Legal Connections on “A Changing Pay Equity Landscape.” This article reviews the federal and state laws that prohibit pay discrepancies based on sex.
Raul Zermeno authored the article “California Appellate Court Expands Law on Rest Period Pay for Commission-Based Employees,” which appeared in the Winter Edition of San Diego Dealer. In this article, Raul examines the outcomes of several cases that involved commission-based employees such as sales people. The ruling in the Vaquaro v. Stoneledge Furniture LLC, case from last year set the precedent that employees who are paid strictly by commissions must be compensated for legally required rest periods, but did not determine what method of pay would be best for this.
Sarah Moore of the Cleveland office authored the article “Landmark Ruling Finds That Transgender Discrimination Violates Federal Anti-bias Law” featured in Crain’s Cleveland Business.
Martin Thompson from the Memphis office authored an article that was published in HR Professionals Magazine.
Steve Loewengart authored the article “The Rise of Love Contracts: Workplace Relationships in a Post #MeToo Era” featured in Ohio Matters Magazine. In a post #MeToo era it has become necessary for employers to establish and promote clear policies on office romances.
Alden Parker authored the article “NLRB Curses Restaurants with Unworkable Joint-Employer Test—For Now” featured in QSR Magazine.
David Lichtenberg of the New Jersey office wrote the article “What’s to Come from the Governor’s Desk Re: Employment” featured in the New Jersey Law Journal. In this article, David informs us on Phil Murphy’s legislative agenda as New Jersey’s new governor. Governor Murphy’s first executive order focused on employment, prohibiting state agencies from asking job applicants about their salary histories. He has also pledged to raise the minimum wage, combat the opioid crisis, legalize recreational marijuana and make statewide paid sick leave a top priority.
In Lanette Suarez’s article, “Overly Technical Violations and the Rise of FCRA Class Actions” featured in the Daily Business Review, she discusses the increase of class action suits based on technical violations of the Fair Credit Reporting Act. Lanette provides instruction on how employers can avoid lawsuits and ensure compliance with FCRA.
- International Trade Secret Dispute in Ultrasound Industry Results in Worldwide Injunction and $5.6 mm in Damages3.12.18
Verasonics, Inc. recently prevailed in an international trade secret dispute involving a South Korean company, Alpinion Medical Systems Co., Ltd. Verasonics is a privately held company based out of the state of Washington that provides cutting edge ultrasound devices and technology to medical researchers. Verasonics is a leader in the research ultrasound market. It has advanced ultrasound devices with unique features and technology that make them especially suitable for research purpose
A widely unknown consequence of employment-related lawsuits is the potential for individual liability on behalf of managers. While managers are not liable under every employment law, and many laws actually protect managers from individual liability, there are a vast number of common and statutory laws which can impart individual liability. Claims asserting individual liability can put managers in a terrible position of having to personally defend themselves in a lawsuit, which could mean paying defense costs and attorneys' fees (and exposing their personal assets, like their home, car and bank accounts).
Candice Pinares-Baez and Lisa McGlynn recently authored the article “Ensuring Your Healthcare Website is Accessible to Everyone” featured in Florida Health Industry Communications. In this article, Candice and Lisa explain that according to Title III of the ADA, healthcare companies need to do more than ensure patients can physically access their facilities.
Danielle Moore, Bailey Bifoss, and Christopher Conti authored the article “’Labor Peace’ Agreements Unlikely to Give Employers Peace” featured in MG Magazine. This article explains the “labor peace agreement” cannabis employers have been using in their business.
- Is OSHA’s New Silica Rule Dust in the Wind? Likely not. Court Rejects Several Challenges to the New Standard3.1.18
Travis Vance authored the Rock Road Recycle article “Is OSHA’s New Silica Rule Dust in the Wind? Likely not. Court Rejects the Several Challenges to New Standard.” After OSHA published the new, strict Occupational Exposure to Respirable Crystalline Silica Rule limiting worker exposure to crystalline silica, it faced challenges.
The article “Moving From #Metoo to #Allofus: Stopping Sexual Harassment by Redefining Workplace Culture” written by Wendy McGuire Coats and Sharlene Koonce was published in the Contra Costa Lawyer. In this article, Wendy and Sharlene define what sexual harassment is under California law and who is protected. They stress the importance of creating effective policies and protocols as well as training leaders in the workplace to build more civilized workplaces.
Wendy McGuire Coats’ article “Kick the A**holes Out of the Kitchen” is featured in the Women Chefs & Restaurateurs Legal Bites. Wendy aims to promote change in the restaurant industry by introducing two resources, Brené Brown’s “Daring Greatly Leadership Manifesto,” and Robert I. Sutton’s “The No A**hole Rule: Building a Civilized Workplace and Surviving One That Isn’t.” These two pieces of work are meant to help build a new culture in the workplace and purge them of unwanted behaviors and misconduct.
Rich Meneghello authored the article “OP-ED: Just (Don’t) Do It: A Warning Against ‘Cat’s Paw’ Retaliation” that ran in the Daily Journal of Commerce. In this article, Rich provides background information on the recent retaliation claim against Nike that was revived using the legal concept, the “cat’s paw” theory. In this claim, a worker filed for wrongful termination due to his whistleblowing that safety standards were not being met.
Michael Avila from the Philadelphia office authored the response to Law.com’s “Question of the Week.” The question for this week was “My company is moving employees from the U.S. to Europe. How will that change the amount of leave and pay they receive when they have or adopt a child?” Michael informed them that among other things, the employee will receive the benefits that other employees in the local jurisdiction are entitled to.
David Monks authored the article “So, You Think You Have a Strong Severance Agreement?” featured in HR Daily Advisor. This article discusses the important factors that all Human Resource managers should consider before asking an employee to sign a severance agreement. For a severance agreement to be effective, he recommends giving the employee a sufficient amount of time to evaluate the release agreement and clearly state that the employee can file claims with government agencies. Lastly employers should prepare a severance package, fulfilling the needs of the adequate consideration requirement in the agreement.
Louisville Business First published the article “GUEST COMMENT: Encouraging a Culture of Civility and Empathy at Work” by Thomas Birchfield, the managing partner of the Louisville office. In this article Tom explains how “A civil and empathetic workforce would undeniably enhance the bottom line and go a long way towards making our workplaces better for everyone.”