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  • 1.4.21

    It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.

  • 12.30.20

    The pandemic and government shutdowns/restrictions continue to have a devastating effect on hospitality employers after a catastrophic 2020. As the industry works to recover in 2021, it looks increasingly likely that hospitality employers will have to navigate further challenges in the new year as the Biden administration takes charge. Many of his positions could adversely affect hospitality employers in unique ways. Below are descriptions of some of the top five issues we can expect from a new administration. 

  • 12.30.20

    The coronavirus economy has brought many unforeseen challenges for the hospitality sector, one of which seems to be an increase in harassing conduct directed at service workers by patrons. According to a recent study by the nonprofit organization One Fair Wage, 41% of the 1,675 service workers surveyed reported they are sexually harasshed more often now than they were before the pandemic. Many also reported being harassed for enforcing coronavirus restrictions.

  • 12.29.20

    The year 2020 has presented very different workplace safety issues for employers. We have seen an exponential increase in employers receiving notice of complaints to state and federal Occupational Safety and Health (OSHA) agencies from employees regarding COVID-19 safety measures in the workplace – or allegations of a lack thereof. In fact, to date, employees throughout the nation have made more than 11,000 COVID-19-related complaints to federal OSHA and over 39,000 COVID-19-related complaints to state OSHA agencies.  

  • 12.29.20

    President-elect Joe Biden's campaign platform called for federal legislation to eliminate all employee noncompete agreements other than what it called “the very few that are absolutely necessary to protect a narrowly defined category of trade secrets.” Noncompete agreements and other post-employment restrictive covenants have always been governed solely by state law in the U.S., with no nationwide federal legislation or regulatory scheme.

  • 12.29.20

    Undoubtedly, working mothers have always worked a “double shift” – a full day at work followed by hours spent caring for their children, running to soccer practice, and getting food on the table. Before the pandemic, however, working mothers at least had a network of support including childcare and school to make this challenge possible. But once COVID-19 hit, childcare became scarce, virtual school continued indefinitely, and the months blurred together. The pressure mounted to such unrealistic levels that working mothers began to leave the workforce at a shocking rate. This article will take a closer look on the unique problems faced by working mothers during the pandemic, and will offer six tangible solutions that employers can put into place to support these valuable team members at their workplaces.

  • 12.23.20

    In California, all employees are presumed to be entitled to overtime, meal periods, and other wage-and-hour regulations unless an employer can prove that its employees “plainly and unmistakably” fall within the terms of an exemption. A recent appellate case addressed for the first time whether a compensation plan based solely on commissions, with a recoverable draw against future commissions, qualifies as a “salary” for purposes of the administrative exemption. The appellate court, reviewing the pay system in question, reversed a trial court decision on November 9 and concluded that it did not. What do California employers need to know about the Semprini v. Wedbush Securities, Inc. decision?

  • 11.30.20

    That this past year was the most challenging year in your professional life is an almost certainty. You were forced to learn entirely new statutory schemes, absorb new local health directives on a near-daily basis, create a new system for performing work and managing your workforce, and adapt your systems to ensure you provided a safe working environment at all times. But while you were busy doing several jobs at once, you may have neglected to keep up with all of the non-COVID-19 news that arose in 2020. And, unfortunately, there were plenty of labor and employment law developments that cropped up this past year.

  • 11.30.20

    Imagine learning that your organization has received an official notice from a state department of labor office noting that your application for unemployment benefits has been approved in connection with your recent layoff, and that you have been awarded and will soon begin receiving unemployment benefits. This could come as a surprise, especially if you don’t recall ever being laid off by your organization and believed your job was fairly secure. After the shock wears off, you remember that, yes, you are still employed as a senior executive – and you start wondering whether this must be some kind of cruel joke or error.

  • 11.30.20

    When the pandemic first began, most employees were ready to pitch in and do their part to help reduce the spread of COVID-19. They adapted to remote working while attending to their children. Others understood they were deemed “essential workers” and adjusted to the new normal when coming to work, which included temperature checks, symptom sign-offs, masks, and social distancing. But after months of being team players, we are all ready for the game to end. Many of your employees are feeling “COVID fatigue” just as we see COVID-19 exposure numbers increasing once again. 

  • 11.30.20

    With 2020 coming to a close, the first line of “Auld Lang Syne”— “Should auld acquaintance be forgot?”—is on our minds. In this pandemic age, now-familiar terms like “testing,” “mask,” and “work-from-home” have earned entirely new and deeper meanings. And newer terms like “social distancing” and “COVID circle” have become daily (hourly?) utterances. As a leader in your organization, you may be wondering: Should the auld annual party be forgot?  

  • 11.30.20

    It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.

  • 11.25.20

    Historically, 401(k) plans could exclude individuals who worked less than 1,000 hours in the plan year. However, the SECURE Act, in its effort to expand access to employer retirement plans, introduced the concept of a “long term, part time employee.” Starting in 2021, plans will need to consider these employees for eligibility, vesting, and company contribution purposes.

  • 11.25.20

    The IRS has announced the 2021 dollar limits impacting retirement plans and IRAs. The agency also issued welfare plan limits, as well as ACA penalties. The chart below summarizes these 2021 figures along with the corresponding limits for both 2019 and 2020.

  • 11.25.20

    Religious schools expressed relief when the United States Supreme Court expanded the application of the ministerial exception in July 2020 in the combined cases of Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel. However, schools and other religious employers should be aware that some courts have held that the ministerial exception does not categorically bar hostile work environment claims brought by ministers. A recent case out of the 7th Circuit Court of Appeals is a reminder of the limits of the ministerial exception. 

  • 11.25.20

    2020 has been a tumultuous year, but it has taught us to better prepare for the future and how to better enable schools to maintain their operations in the face of these unprecedented challenges. As schools faced shutdown orders from state and local jurisdictions, they needed to quickly shift to an online learning environment. Most schools reopened this fall offering a combination of in-person and virtual instruction. 

  • 11.25.20

    There is no doubt that 2020 brought huge challenges for schools. As we near the end of the first semester and plan for the rest of the 2020-2021 school year and beyond, there are some lessons we can learn, some processes to adapt for the future, and some changes in the law that must be addressed within your school. This article will discuss seven of those processes for your 2021 planning.

  • 10.30.20

    When thinking about safety training for your workforce, you may be, understandably, focused on your workforce as a whole. Just as important, however, is considering the age, gender, nationality, and other aspects of all of your employees in planning for such training. America’s workforce is more diverse than ever, and this diversity can impact the way employees comprehend and implement their training. 

  • 10.30.20

    Now entering its ninth month in the United States with no sign of slowing down, the COVID-19 pandemic has forced many employers to make permanent changes to business operations in order to survive. Among the most noticeable of those changes has been the wholesale digitization of many workplaces. For the first time since many businesses were formed, the majority of your information is being stored in a purely electronic format, the majority of your employees are performing some or all of their job responsibilities remotely, and the majority of your sales are coming from internet or app-based transactions. 

  • 10.30.20

    While the use of independent contractors in the healthcare industry has been a longstanding practice, it is now front and center as the gig economy continues to expand across several industries and the preference for freelance work grows. This ongoing development in the healthcare industry is also due in large part to a nationwide shortage of qualified providers, including physician – and this trend is only expected to increase in the coming years.

  • 10.30.20

    It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.

  • 10.30.20

    As the virus wreaks havoc in the United States with an indefinite increase in hospitalizations and deaths, the number of Occupational Safety and Health Administration inspections has surged across the nation. Many of these OSHA inspections are preceded by a deluge of COVID-19 health and safety-related whistleblower claims.

  • 10.30.20

    The school year is several months underway, and re-opening plans vary widely for schools across the nation during the COVID-19 pandemic. Some schools have transitioned to a distance, or remote, learning model, which require students to attend classes online. Other schools have opened for in-person learning, while others have taken a hybrid approach — permitting in-person learning several days a week and directing student to attend remotely on other days. Others have also split classes into morning and afternoon sessions.

  • 10.30.20

    You just learned that one of your employees expressed their opinion about the election on social media. Their unfiltered post includes slurs, and it is inflammatory at best. Had they made these same comments while at work, immediate disciplinary action likely would have followed. But since the employee made the post after hours and on a site unrelated to your dealership, can you take the same disciplinary action?

  • 10.30.20

    Employers conducting internal pay equity audits now have a roadmap for ensuring that their pay equity audits remain confidential in the wake of pay equity litigation. Thanks to a recent federal court ruling from an Oregon federal court, you can now feel more comfortable knowing the steps you should take when conducting an internal pay equity audit.

  • 10.7.20

    A meat packing plant is under the knife after a former employee filed a class action lawsuit filed against it in a California federal court alleging the company encouraged its employees infected with COVID-19 to work, implemented policies and practices that facilitated the spread of COVID-19, and thereby knowingly exacerbated the spread among its employees and the local community. This class action is a troubling example of the new wave of COVID-19 lawsuits raising multiple statutory claims. And it has far-reaching implications for employers who were and are slow to act in response to COVID-19. What can hospitality employers do to avoid a similar slaughter?

  • 10.7.20

    Following a tragic series of recent events, individuals across the country have started voicing their opinions about social, cultural, and political issues with a passion not seen since the Civil Rights Movement of the 1960’s. From attending local protests to starting international online campaigns, thousands upon thousands of individuals have been doing everything in their power to make themselves heard. 

  • 10.7.20

    As restaurants continue to reopen out of economic necessity despite a global pandemic, employers and employees alike remain concerned about the possibility of COVID-19 outbreaks in the workplace. No longer are bad Yelp reviews and failed health department inspections the worries that keep restaurant owners up at night. Now, a single cough by an infected employee can put a restaurant that has survived depressions, recessions, and world wars forever out of business.

  • 10.2.20

    As employers consider whether to mandate flu shots in the workplace this season – and begin to look ahead to the impending COVID-19 vaccine and contemplate the workplace implications – Fisher Phillips is pleased to unveil the FP Vaccine Resource Center for Employers.

  • 10.2.20

    It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.

  • 10.2.20

    Either incumbent Donald Trump or challenger Joe Biden will be inaugurated as president on January 20, 2021 – and the impact on workplace law will be significant. Each candidate has provided us with clues (some subtle, some very blunt) relating to the ways they would approach labor and employment law issues, and there is the potential for massive change. While campaign promises are not always kept and each candidate reserves the right to alter course once in office, we can offer some general ideas about what the next four years could look like under a second Trump term or a new day under President Biden.

  • 10.2.20

    The use of biometric-enabled devices has become ubiquitous in the modern workplace. Biometric time clocks offer employers an accurate and reliable way to track employees’ hours, while increasing accountability. Biometric locks are often ideal for employers protecting sensitive information or valuable property, as biometric authentication reduces the risk of information (i.e., passwords or combinations) or physical tokens (keys or RFID badges) being inadvertently passed on to unauthorized users. In the COVID-19 era, biometric kiosks even offer employers a streamlined method of ensuring employees do not have an elevated body temperature. The benefits of biometric systems are undeniable.

  • 10.2.20

    As a result of the COVID-19 pandemic, millions of Americans have deserted the physical workplace. Modern technology and remote access capabilities have made it possible to transform almost any job to a telework position. As the initial scramble to remote work becomes the norm, you should revamp telework and cybersecurity policies to combat increased cybercrime targeting employees working from home.

  • 10.2.20

    Retail employees have done as much as anyone in responding to the needs of the country created by the pandemic. Simply coming to work and doing their jobs has been an invaluable service to society. As the pandemic restrictions go into their eighth month, the nations’ mental health is on a decline and tempers remain hot. YouTube and other social media sites are now full of videos of customers assaulting retail workers. No one knows when a customer may have a breakdown in a store and scream or curse at employees or worse. Adding fuel to the fire is the breakout of race relations issues throughout the country creating a growing tension among people of different races. While incidents of actual violence are probably rare in comparison to the number of employee customer interactions, the cost of a single incident in terms of damages to the employee and damage to the reputation of the employer is extremely high. Given this environment, retailers should take a fresh look at their employee training on customer service and make sure that it covers handling unruly customers.

  • 10.2.20

    California law does not require employers to provide their employees with paid vacation. However, if an employer has a policy providing its employees with paid vacation, the administration of the benefits is strictly regulated by section 227.3 of the California Labor Code. The law provides that, if an employer provides vacation, “all vested vacation shall be paid to [employees] as wages at [their] final rate,” except as provided in a collective bargaining agreement. The California Labor Commissioner is empowered to conduct enforcement proceedings including issuing citations and conducting hearings on vacation claims to make sure that employers administer them according to the “principles of equity and fairness.”

  • 10.2.20

    The standards for “suitable seating” cases in California were set by the California Supreme Court’s landmark 2016 decision of Kilby v. CVS Pharmacy, Inc. Ever since this decision was handed down, employers and employee advocates have been battling in the courts and forcing judges to address the scope of an employee’s right to “suitable seating.” Although debates continue regarding what obligations employers have to provide such reasonable seating, it’s not always a slam dunk for employees who demand seats in questionable situations. A common fact pattern arises from cashier positions with variable traffic levels. The workers often file claims seeking a sit-down break when traffic slows down, even though they may have received all legally required rest breaks.

  • 9.28.20

    The COVID-19 pandemic has brought more workplace law challenges over the past six months or so than many employers will see in a lifetime. From changing directives on wearing masks, determining what to do when an employee is ill with COVID-19, and tracking the hours of employees working at home, employers have faced myriad issues never before addressed. Making matters worse, the start of fall, which typically brings the joys of football, foliage, and falling temperatures, will present likely the greatest COVID-19 pandemic challenge yet: the onset of flu season.

  • 9.4.20

    The Department of Labor recently issued a new rule providing an additional safe harbor for electronic disclosure of pension plan notices effective July 27, 2020. Prior to the new rule, the DOL’s only safe harbor for electronic disclosure dated back to 2002. The old safe harbor imposes different requirements on plan administrators depending on whether computer access is an integral part of the recipient’s job duties. This often requires employers to maintain different procedures for electronically disclosing documents to different groups of participants (active employees vs retirees, office workers vs field workers, etc.).

  • 9.4.20

    COVID-19 has forced many employers to reduce their workforce through furloughs or layoffs. These reductions may cause employers to experience a partial plan termination of their qualified retirement plans, which requires 100% vesting of affected participants. While there has been uncertainty about whether a partial termination occurs if employers rehire furloughed or laid off employees by the end of 2020, the Internal Revenue Service recently updated its Q&As relating to the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to provide clarity on this issue.

  • 9.4.20

    As the school year begins again, high schools across the country have more to decide than simply whether to physically open their doors or resume online learning (or both). They are also faced with questions regarding how to handle issues that were never a concern before. For example, to play or not to play – sports, that is. Some may argue that risking student health in the name of sports is simply not worth it. But athletics are key to mental and physical health, and if implemented safely, may help students regain some sense of normalcy when much else is still in flux.

  • Schools Face Legal Risks Related to Protest Movement
    9.4.20

    It may be common to see protest activity on your campus – but thankfully it is not common to see a massive jury award rendered against an educational institute due to that activity. An ongoing dispute at an Ohio college that led to a multimillion-dollar verdict may serve as a cautionary tale for your school, and may end up setting the precedent for how future conflicts of this nature are resolved by courts.

  • 9.4.20

    What a year! 2020 has been full of challenges, both personal and professional. Personally, each of us have our own story. Professionally, workplaces have been rocked with unprecedented turmoil as we navigate COVID-19 and the lasting impact of the social justice protest movement. And now, we will close out 2020 with a contentious presidential election.

  • 9.4.20

    In the new age of remote work and social distancing, more and more employers are showing an interest in artificial intelligence (AI) when it comes to recruiting and hiring new talent. This includes using AI to automate the sourcing of potential candidates and screen candidates from an existing candidate pool, and utilizing video interviewing tools that can measure a candidate’s strengths based on factors such as facial expression, speech patterns, body language, and vocal tone. Such tools are crafted to filter out and hire candidates that meet certain job-related criteria.  

  • 9.4.20

    It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.

  • 7.31.20

    Supreme Court decisions are often the most challenging pieces of legal guidance to understand. They are rarely straightforward and usually contain so much analysis that it becomes hard to get to the bottom of what was actually decided. Moreover, reports from general media outlets often neglect to provide any practical advice about what employers can take from the rulings. That’s why the Fisher Phillips review of this year’s Supreme Court term will simplify the workplace law decisions and boil them down into easy-to-understand summaries.

  • 7.31.20

    In recent years, gamification has risen up the leaderboards as a corporate learning technique. Companies across the country are embracing gamification in their employee training, recruitment, and engagement. But as an employer, before you try to unlock an achievement by gamifying your workplaces, you should think critically about whether your designs, implementation, and data collection plans are in compliance with labor and employment laws.

  • 7.31.20

    Employers in the healthcare industry are no strangers to change. After all, you are constantly adapting to cutting-edge medical technologies to improve and expand patient care, reform health inequities, advance care coordination and continuity, facilitate data analysis for diagnosis and treatment, and harmonize advanced levels of care across the country. Nonetheless, in hasty response to the pandemic, the industry is experiencing a profusion of advanced technologies now more than ever. These primarily include the unparalleled resurgence of telehealth as well as complex advancements to the nuanced roles of artificial intelligence, analytics, and biometrics to improve integrity of electronic health records (EHR), including migration to a cloud-based platform. In today’s unpredictable and volatile COVID-19 environment, it is critical that you not only confront but embrace this advent of technology through continued employee education and training.

  • 7.31.20

    With all of the uncertainty facing the healthcare community in light of the current pandemic, the ability of hospitals and other healthcare facilities to be flexible when managing employees is of the utmost importance. To that end, the 11th Circuit Court of Appeals has recently opened the door for hospitals and other healthcare providers to revisit previously approved religious accommodations based on their rapidly and ever-changing needs.

  • 7.31.20

    As the COVID-19 pandemic continues, the healthcare industry is understandably fraught with unease and uncertainty. This, coupled with the ubiquity of social media, creates challenges for healthcare providers facing public criticism. What follows are guidelines for healthcare employers tasked with responding to negative social media posts made by patients, employees, and vendors/contractors.

  • 7.31.20

    You have probably seen a lot of coronavirus news alerts lately, but as a car dealer, you already know that germs are not the only things that can cause headaches. Virus or no virus, the law is still going to change and mandate new responsibilities for you and your business. Here are five recent legal developments that could affect your dealership that you might have missed:

  • 7.31.20

    Last month, the U.S. Department of Labor (DOL) gave car dealers welcome news. In an opinion letter interpreting the federal Fair Labor Standards Act (FLSA), the DOL found that incentive payments paid directly by the manufacturer to dealership sales consultants – commonly referred to as “spiffs” – could be used to satisfy a dealership’s minimum wage obligations. 

  • 7.31.20

    It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.

  • 7.2.20

    An increasing number of employees identify their gender as nonbinary. “Nonbinary” includes people who do not identify their gender within the binary of male or female. Nonbinary identification and expression may include individuals who blend elements of being a man or a woman, be different than either male or female, not identify with any gender, or whose gender may change over time.

  • 7.2.20

    It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.

  • 7.2.20

    In Leaders Eat Last, Simon Sinek says “The ability of a group of people to do remarkable things hinges on how well those people pull together as a team.” And anyone who has managed employees can appreciate that varying management techniques is a necessity when working with individuals from diverse backgrounds who have varying personalities, strengths, and weaknesses.

  • 7.2.20

    As hotels, resorts, casinos and restaurants re-open, there are challenges around every corner. The industry has weathered many storms, from terrorist threats to major weather events. A worldwide pandemic is a new challenge. Re-opening plans must comply with local, state, and federal orders and guidelines, provide for a safe environment for employees and guests, and maintain enough flexibility to operate. Every location must reimagine processes and develop (and enforce) protocols, procedures and policies. Here’s a four-step process for safely bringing your employees back to work.

  • 7.2.20

    Hospitality employers face some of the strictest workplace safety requirements intended to address the COVID-19 pandemic under state, county, and or even city requirements. These include mandates for employee pre-shift symptom checks or even temperature checks. Even where not mandated, many guest service providers chose to adopt these procedures. Such requirements trigger a panoply of workplace legal issues.  

  • 7.2.20
  • 7.2.20

    The Department of Labor’s Wage and Hour Division deftly tackled decades of confusion regarding which establishments might have employees meeting the FLSA’s 7(i) overtime exemption for certain commission-paid employees. Even if your establishment traditionally has been considered retail (and still likely would be), your practices probably could use a checkup.

  • 7.2.20

    The U.S. Department of Labor’s final regulations addressing the FLSA’s fluctuating workweek (FWW) method reminded us that (1) legal principles control and (2) illustrative examples merely demonstrate application. The agency still managed to promulgate a rule that includes some arguably unnecessary requirements beyond the regular rate principles though, which means employers not wanting to fight an uphill battle should treat these requirements as more than just best practices.

  • 5.29.20

    While you have been primarily focused on COVID-19-related matters for the past few months, that doesn’t mean the world of labor and employment law has taken a timeout. While the pace of new developments has slowed somewhat, there are still workplace law updates you need to know about. Are you thirsting to read about some news that’s not related to face masks, reopening your business, or contact tracing? Here is a summary of the top stories you might have missed over the past month.

  • 5.29.20

    As the COVID-19 pandemic swept over the world, an unlikely phenomenon swept the United States. While new terms like “social distancing” and “essential employees” suddenly became part of the common lexicon, a surprising phrase also emerged: “Tiger King.”  

  • 5.29.20

    It’s Monday morning. Your employee receives a phone call from the Chief Revenue Officer (CRO) asking them to immediately wire funds to an off-shore bank account. That phone call is followed by an email and a text message from the CRO’s cell phone asking for the status of the request. The employee complies with this somewhat unusual but urgent instruction.

  • 5.29.20

    Summer is almost here, and it is time for employers to focus on heat-related hazards. As Alan Jackson once sang, “that sun is hot and that old clock is moving slow, and so am I.” Employers may be wise to heed Alan’s advice and instruct their employees to move a little slower, take a few more breaks, and hydrate more often given the potential additional risk posed by face coverings used in the workplace to combat COVID-19.

  • 5.29.20

    The recent documentary “The Last Dance,” chronicling Michael Jordan and the Chicago Bulls’ dynasty of the 1990’s, brought much-needed nostalgia to a sports-deprived world. It featured the remarkable accomplishments of arguably the greatest sports icon of our time, as well as the challenges he and his team faced and often overcame. It also, however, put on full display the impact that one person can have on an organization’s culture and morale. 

  • 5.29.20

    The Department of Labor (DOL), in coordination with the IRS and the Treasury Department, recently issued new rules extending key deadlines for health, retirement, and welfare plans subject to ERISA and the Internal Revenue Code. Per a HHS memorandum released May 14, non-federal governmental plans are encouraged, but not required, to adopt the notice extensions. The deadline extensions contained in Notice 2020-01 and Final Rule 85 FR 26351 are intended to provide relief to plan sponsors and participants impacted by COVID-19. However, the significant flexibility provided to participants under these extensions give rise to administrative complexities that employers will likely consider burdensome, time consuming, and costly.

  • 5.29.20

    Given the uncertainty surrounding the spread of COVID-19, efforts to contain it, and ever-changing health and safety guidelines, schools need to act quickly to address not only the current situation but also the new challenges which are to come once schools are permitted to re-open their classrooms. When responding to these new challenges, schools need to be careful with both their unionized or non-union workforces to not run afoul of the National Labor Relations Act (NLRA) and other laws prohibiting retaliation for an employee’s “protected activity.” Below we provide some practical guidance for schools on how to avoid labor law violations when confronting employees who refuse to return to work during the COVID-19 pandemic.

  • 5.29.20

    The Washington Post recently published an article with the headline: “As workplaces reopen, coronavirus could unleash an ‘avalanche’ of lawsuits over family leave and discrimination.” Inside counsel who fail to heed this prediction may soon find themselves mired in expensive and time-consuming litigation.

  • 5.14.20

    Employers everywhere should be well-versed in the main federal civil rights laws, offering protection to your employees and applicants from workplace discrimination based on age, disability, sex, gender, religion, race, and national origin. However, these statutes are not all-inclusive. There are a few traits and attributes of the human race that are not expressly included, including the weight of an employee or applicant. However, things may be changing when it comes to the way that the law protects individuals based on their size. You should pay particular attention to this evolving state of the law, as it may soon (or may already) require you to change your policies and practices.

  • 5.14.20

    Various factors have created a workplace phenomenon that is both underreported and underestimated: an aging workforce and increasing incidence of age discrimination. As people in this country are living longer, the cost of living continues to rise, and the pension model nears extinction, many older Americans continue to work well into their 70’s. 

  • 5.14.20

    Have you ever received a report that one of your employees is feeling bullied at work? If so, you are not alone. According to a recent Monster survey, some 90% of workers believe they have been bullied at work. That is an alarming figure, and it highlights the fact that bullying is an issue your H.R. department must be equipped to address.

  • 5.14.20

    When the Families First Coronavirus Response Act took effect on April 1 to address the COVID-19 pandemic, your dealership may very well have had to change the way it does business. This new federal law includes many provisions which may apply to your dealership, such as paid sick leave for employees impacted by COVID-19 and those serving as caregivers for individuals with COVID-19. Two of the most significant provisions remain in effect as you begin the process of planning your reopening strategy.

  • 5.14.20

    Over the past several weeks – or months, depending on where you are located – dealerships have had to quickly respond to challenges stemming from the COVID-19 outbreak. From closing sales departments, to working with employees who have contracted the virus or believe they have contracted the virus, we know things have been hectic.

  • 5.14.20

    As members of the healthcare industry, some of you may be aware of a situation where an aging physician whose physical or cognitive impairments (that went unnoticed or simply ignored) led to an unfavorable, or possibly catastrophic, patient outcome, such as a misdiagnosis, unnecessary surgery, or the even the death of a patient. This is not a new concern. The question of when a physician should retire, especially surgeons, has been a subject of debate for decades. As more and more practitioners work past the traditional retirement age, healthcare providers are faced with conflicting interests: keeping valuable late career practitioners content while maintaining patient safety.

  • 5.14.20

    Social and traditional media has been buzzing with reports that healthcare providers – from nurses to physicians – are being discharged because they have publicly shared negative frontline experiences treating COVID-19 patients. After her sixth consecutive shift, one nurse spoke to the media about the inadequacy of the personal protective equipment (PPE) her employer issued her. An employed physician’s off-the-clock Facebook post blasting her employer’s unsafe working environment went viral. Both were purportedly discharged as a result of their speech.

  • 4.23.20

    The COVID-19 coronavirus pandemic that closed hundreds of thousands of business around the country is unprecedented. Fortunately, many retailers were able to maintain a fairly high level of continuity as essential businesses who had to remain open. But even within the essential business community, operating on reduced hours has become common and employees have been affected either by reduced hours or furloughs or layoffs.

  • 4.23.20

    The California appellate courts, and the California Supreme Court, continue to weigh in on significant and compelling wage and hour issues that affect employers each day.

  • 4.23.20

    Employers often use tests and other selection procedures to screen applicants for hire and employees for promotion. There are many different types, but the tests that seem to be asked about more and more are personality or integrity tests. Personality tests and integrity tests assess the degree to which a person has certain traits or dispositions (e.g., dependability, cooperativeness, risk aversion) or aim to predict the likelihood that a person will engage in certain conduct (e.g., theft, absenteeism).

  • 4.23.20

    Curly, straight, natural, relaxed, braids, dreads, Afro, or weave. Hair in the workplace is a controversial issue that has been flooding the media in the past year. In response, state and federal legislators have constructed the model CROWN Act (an acronym for Creating a Respectful and Open World for Natural Hair), which prohibits discrimination based on natural hair style and texture.  

  • 4.23.20

    A few months ago, the United States Center for Disease Control (CDC) had linked 2,807 hospitalizations and 68 deaths to e-cigarette vaping associated lung injuries (EVALI). Using e-cigarettes, or vaping, comes in many forms, including e-cigarettes, e-hookahs, e-pipes, and numerous other devices collectively called electronic nicotine delivery systems (ENDS) and electronic non-nicotine delivery systems (ENNDS). Using electricity to vaporize liquid, these tools deliver chemicals to people’s lungs.

  • 4.23.20

    While you have been primarily focused on COVID-19-related matters since mid-March, that doesn’t the world of labor and employment law has taken a timeout. While the pace of new developments has slowed somewhat, there are still workplace law updates you need to know about. Are you thirsting to read about some news that’s not related to social distancing or flattening the curve? Here is a summary of the top stories you might have missed over the past month or so.

  • 3.2.20

    It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.

  • 3.2.20

    Congress recently passed significant legislation affecting employer-sponsored employee benefit plans. The Setting Every Community Up for Retirement Enhancement (SECURE) Act of 2019 (H.R. 1994) was passed by the Senate on December 19, 2019, as part of the Further Consolidated Appropriations Act of 2020 (H.R. 1865). The changes to ERISA and the Internal Revenue Code are expansive, and include provisions that impact employer-sponsored retirement, health and welfare plan design and administration, as well as individual retirement accounts and individual taxation.

  • 3.2.20

    When the 9th Circuit Court of Appeals issued an opinion several weeks ago upholding a public school district’s policy allowing transgender students to use facilities that match their gender identity, it was just the latest salvo in an increasingly complex legal landscape surrounding Title IX’s applicability to transgender students. The February 12 ruling in Parents for Privacy v. Barr concluded that such a policy did not violate Title IX because it was applied equally to all students and did not discriminate based on sex. 

  • 3.2.20

    Thanks to a landmark move by their school board, students in Fairfax County public schools in Northern Virginia will now be allowed one day off per school year to engage in “civic engagement activities.” This move, which essentially permits an excused absence for protest activities, has been both praised and criticized. But should your school consider following suit?

  • 3.2.20

    As I was checking my wife and myself into a nearby beach town resort during a recent spontaneous trip, I wondered when the smiling gentleman behind the counter would present me with the hotel’s CCPA notice. I am referring, of course, to the privacy notice that the California Consumer Privacy Act (CCPA) requires many businesses to provide to California residents as of January 1, 2020.

  • 2.28.20

    There has been a veritable explosion of antitrust litigation in the workplace law field, putting employers and their executives at risk. Federal and state antitrust agencies and private plaintiffs have accelerated their attacks on employers who agree to coordinate wage levels (wage-fixing) or not solicit each other’s employees (no-poach). 

  • 2.28.20

    While organizations make significant investments in protecting their data from outside infiltration, they can often overlook the serious threats that exist within their own workforce. According to a 2020 study released by the Ponemon Institute, the biggest threat in terms of disclosure of sensitive information comes from so-called “insider threats,” in the form of employees who disclose protected information or provide a means of access to that information to third parties, either unwittingly or otherwise. That threat has only grown in recent years, increasing by 47% in the last two years alone.

  • 2.28.20

    The Department of Labor started off 2020 by focusing its enforcement efforts on child labor law compliance. In January, several large quick-service franchisee restaurants were slapped with hefty penalties for violating child labor laws. The Department of Labor’s Wage and Hour Division, as well as state labor agencies, are auditing and investigating businesses employing minors – and they are paying special attention to the restaurant industry.

  • 2.28.20

    The last few years have seen numerous controversies surrounding childhood vaccinations. Many parents are choosing to not vaccinate their children because they feel the process is unnecessary and dangerous, or goes against their religious or personal beliefs. Other parents contend that allowing children to go without immunizations puts many people at risk because it reduces “herd immunity.”  This poses tough questions for schools.

  • 2.28.20

    Accommodating a breastfeeding mother returning to work after leave can be a challenge – but the restaurant industry faces some particular challenges because of tight schedules and often an inherent lack of space. Finding flexible and unique ways to accommodate lactating employees is key to staying in compliance with federal and local laws and keeping good on your investment in talent.

  • 2.28.20

    You may have heard of “Bring Your Child to Work Day,” but have you ever heard of “Bring Your Baby to Work Every Day”? Many of you likely just scoffed at the idea. Simply put, a baby cannot be an employee so therefore they have no place at work, right? General workplace norms have held fast to that belief, causing working parents to make difficult decisions with limited choices about returning to their jobs and caregiving once their child is born. Consequently, employers and businesses often experience vital changes to their workforce in the form of staffing, productivity, costs, efficiency, and reliability.

  • 2.28.20

    In 2016, Millennials surpassed Generation X as the largest generation in the American workforce. Given their reputation as the driving force behind workplace change – from the birth of the #MeToo movement to the expansion of technology – it isn’t surprising to learn that there is gathering momentum for another significant change spurred by this generation of workers: the implementation of a four-day workweek.

  • 2.28.20

    In the not-so-distant past, federal laws dominated the employment landscape. They created more restrictions on employers and more protections for employees than the state laws in the majority of states.

  • 2.3.20

    It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.

  • 1.31.20

    When a California Court of Appeal revived a workplace lawsuit alleging state law disability discrimination and retaliation claims that had originally been dismissed by a trial court, it did more than decide that the mistaken application of a legitimate company policy could leave the employer on the hook for resulting claims. The court’s decision illustrated the critical importance of training supervisors and human resources (HR) representatives who deal with disability accommodation or termination decisions and how costly it can be when HR fails to address such mistakes promptly. Healthcare HR leaders everywhere should take note of this stark example, and learn a simple four-point plan to minimize risks, because the issues in this case can arise anywhere.

  • 1.31.20

    The new year has brought many things, including an increased threshold for many employees classified as exempt. The federal Fair Labor Standards Act (FLSA) provides for limited exemptions from its timekeeping, minimum wage, and overtime requirements, including the popular salaried, white-collar employee exemptions. For employees that already met (or received increases to meet) the new salary-exempt requirements of $684/week, it might otherwise be the status quo for 2020. 

  • 1.31.20

    According to the Occupational Safety and Health Administration (OSHA), health care employees experience nearly as many serious injuries due to workplace violence as do employees in all other industries combined. As a result, dating back to at least 2015, the agency has continued to strongly encourage health care employers to maintain robust programs to safeguard against workplace violence. In 2016, in fact, OSHA explored the possibility of implementing an occupational and safety standard specifically designed to protect employees in the health care and social services industries from workplace violence. 

  • An Interactive Approach To Employee Counseling
    1.31.20

    To many employees, being written up is perceived as another way of being told that someone is the boss of them – “do this or I will fire you.” They have no voice in this “my way or the highway” dynamic. And reminding an employee that you are the boss is unlikely to fix performance problems – it may even make matters worse.

  • 1.31.20

    Departing employees can end up owing a dealership money for a variety of reasons. Overpayments by the dealership, outstanding loans or pay advances, unresolved invoices on dealership services provided to the employee, advances on vacations or other paid leaves, cash shortages, damaged property or equipment, failure to return property or clothing, and training expenses are just a few of the many reasons why you might find your dealership owed money by a worker.

  • 1.31.20

    Employee safety has always been important, but the recent public shaming of allegedly hazardous workplaces reveals that the public’s disdain for companies that provide unsafe environments for their employees is increasing. No longer can you ignore the public cries to eliminate or minimize occupational hazards, as you risk becoming the latest public face of what has essentially become the “Empowerment Era” – a time when people from all walks of life not only feel emboldened to expose “bad players” but now have the digital means by which to amplify and give power to their voices.

  • 1.31.20

    The assault on arbitration is old news. Recently, however, courts and commentators alike have seemed to stake out a new area for contest in the ongoing back and forth debate about this valuable litigation alternative: confidentiality clauses. For decades, confidentiality clauses have been a staple of most arbitration agreements, as well as most contracts. So as proponents of excluding confidentiality clauses argue that these clauses tend to “silence employees” or “hide wrongdoings” begin to emerge at both the national and state level, we should take care to critically examine these arguments and remember that confidentiality clauses have been the status quo for good reason.

  • 1.31.20

    Valentine’s Day is fast approaching, which means love in the air – and employers should beware. Statistically speaking, the workplace can be the epicenter of romance. According to a 2019 survey from Vault.com, 58% of employees have engaged in a romantic relationship with a colleague. With the rise of the #MeToo movement, such statistics may make you uneasy – and for good reason.

Media Inquiries


Jenna Gatski Einstein
Director of Media Relations
Washington, DC
Tel: (703) 682-7097
jgatskieinstein@fisherphillips.com

Meghan Warin
Director of Media Relations
Atlanta
Tel: (404) 240-4282
mwarin@fisherphillips.com

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