- Newsletter Type: Labor Letter
There is little doubt that the National Labor Relations Board (NLRB) is making its impact felt – even if your company never sees a union. By expanding its concept of “concerted protected activity,” the Board has staked out new territory for investigating union and non-union entities alike. And if the NLRB determines you have violated the law, they have ways of making your life miserable.
“A simple PC contains a kind of ‘undead’ spectral domain of deleted texts which nevertheless continue to lead a shadowy existence, ‘between the two deaths,’ officially deleted but still there, waiting to be recovered. This is the ultimate horror of the digital universe: in it everything remains forever inscribed; it is practically impossible to get rid of….”
A recent controversy over the hit Broadway show “Hamilton” can teach employers a valuable lesson about hiring and making other employment decisions. The producers of the show were accused of discriminatory hiring practices when a casting call sought “nonwhite” performers to appear for auditions. Although no legal action was initiated, the situation can offer guidance to employers regarding when (if ever) you can take protected categories such as race, national origin, age, religion, or gender into account when making personnel decisions.
The federal government has finalized a significant new regulation that seeks to interfere with businesses seeking legal counsel to help in opposing or dealing with unions. The U.S. Department of Labor’s new “persuader” rule would force attorneys and their clients to report in public records their confidential attorney-client and financial relationships, providing an unfair boost to unions in their organizing efforts.
An unfortunate number of employers have recently fallen victim to a phishing scam that tricks them into disclosing highly sensitive employee information to unknown third parties. Many businesses have already been compromised and don’t even know about it yet.
After yet another incident of workplace violence in the news, we have to consider that any employee served with a restraining order should be treated as a reason to take workplace security precautions. The shooter in the most recent workplace mass shooting, which took place in Kansas in late February 2016, started his shooting spree immediately after he was served with a restraining order while at the workplace. It is unknown whether the shooter had issues at work, or if the restraining order triggered his rampage and the workers were merely convenient targets.
A new wave of litigation may result in sexual orientation discrimination being prohibited at most workplaces across the country. The last month has seen a historic series of lawsuits filed by the Equal Employment Opportunity Commission (EEOC) addressing this issue head on, arguing that existing federal law covers this type of employment discrimination.
Employers have been asking an important question with more frequency in recent times: who owns the company’s social media account – the employer or the employee running the account? Business social media accounts often contain a lot of pertinent and valuable information, and unfettered access to that account could give a departing employee a fast head start towards competing with you.
Starting January 1, 2016, the Equal Employment Opportunity Commission (EEOC) implemented significant changes to its case-handling process. As a result, all employers who draft and submit position statements in response to Charges of Discrimination will want to consider altering your practices to adapt to these changes.
- Federal Anti-discrimination Law Likely To Be Strengthened In 20163.1.16
The Genetic Information Nondiscrimination Act (GINA) is one of the newer federal anti-discrimination laws in the country, and one that requires employers to tread carefully when it comes to employee medical information. If you are not familiar with the law, the time is now to get caught up, especially because the coming year is bound to see important changes impacting your employment practices.
Traffic accidents are the number one killer of employees in the United States. There is a vehicle crash every 2.5 seconds, a vehicle-related injury every 19 seconds, and a vehicle-related fatality every 11 minutes. According to the most recent data available, more than 32,000 people died and an additional 2.3 million people were injured in traffic accidents in 2014 alone.
Many employers maintain policies prohibiting employees from using cell phones and other recording devices at work. The reasons for such policies range from maintaining productivity, to protecting customer and employee privacy, to eliminating the way that recording devices limit the free and candid flow of workplace exchanges.
Will your company be playing the H-1B lottery this year? Federal immigration authorities will be accepting employer petitions in early April 2016, and although only 85,000 H-1B visas will be allotted, over 300,000 petitions are expected to be submitted. Read the web exclusive article “The H-1B Lottery: Hoping For The Best, Planning For The Worst” to help plan your strategy and develop backup options by clicking here or visiting laborlawyers.com/Knowledgecenter.
As the national debate roils about how to handle the problem of gun violence in modern American society, employers are asking whether it makes sense to allow employees to carry firearms at work. Although office killings have actually declined over the past 10 years, highly publicized instances of workplace violence have made some employers seriously consider whether a “bring your gun to work” policy could save lives. One Republican Presidential contender recently summarized the rationale for such policies when he said: “You stop bad guys by using our guns.”
The unannounced arrival of an investigator from a federal agency is an unwelcome business interruption which can be a drain on productive time and arouse collective anxiety in your business environment. Effective management of the investigation from the very beginning is critical to achieving the best possible outcome, no matter which agency comes calling.
- Political Apprentice At Work? You're Fired! A Guide To Surviving The Election Season At The Workplace2.1.16
This presidential election cycle creates unique concerns for companies dealing with employees who wish to discuss politics at work. Regardless of what side they fall on, some of your workers could be more passionate, maybe even incensed, about the perceived inefficiencies occurring in the federal government.
At the start of 2015, employers across the country were bracing for the National Labor Relations Board’s new “quickie election” rule. We warned that the new procedures would have a significant impact on union-organizing tactics and representation elections because they were designed to not only speed up union elections, but also provide other advantages to a union targeting a facility.
If your business is a place of public accommodation, you are probably already familiar with the rules from Title III of the Americans with Disabilities Act (ADA) that require you to make services and physical locations accessible to individuals with disabilities. Places of public accommodation include restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers, but not private clubs or religious organizations.
In July 2015, the U.S. Department of Labor (USDOL) published proposed regulations that could alter whether you may or should treat employees as being exempt from the minimum-wage and overtime requirements of the federal Fair Labor Standards Act (FLSA).
What better way to prepare for the new year than to review the biggest developments in the world of labor and employment law that took place over the past 12 months? Presenting Fisher Phillips’ annual end-of-the-year review, complete with a handy checklist to make sure you don’t miss out on any important steps you need to take before 2016 rolls around.
- "My Employee Said What On Facebook!?!" How To Discipline Workers For Social Media Posts That Cross The Line12.1.15
There is little more frustrating than your employees spouting off on social media and disparaging the workplace. Unfortunately, the National Labor Relations Board (NLRB) maintains that employees have wide latitude to criticize their employers on social media.
While employers with a fixed worksite can observe and interact directly with their employees to promote safety and reduce risk, employers with workers who operate motor vehicles as part of their job have fewer options.
Like it or not, drones are becoming an ever-present part of modern life. These small, unmanned, aerial vehicles, controlled by a ground-based computer, smartphone, or remote control, are buzzing around the sky with increasing frequency. In fact, experts predict that up to one million drones will be sold this upcoming holiday season alone.
As human trafficking and other forms of exploitation of labor continue to be a focus of public attention, requirements on some employers to prevent trafficking and related abuses have recently increased.
Many employers believe they have the absolute right to prohibit their workers from disclosing “confidential” information to coworkers and third parties. They are dead wrong. The National Labor Relations Board (NLRB) has consistently restricted employer rights in this area, and some recent decisions and guidelines from the current Board have accelerated the erosion of these employer rights.
This article outlines eight things that, unbeknownst to many employers, must be permitted under the National Labor Relations Act (NLRA).
Since Caitlyn Jenner made her very public debut in June and brought transgender issues into the limelight, a national conversation on the topic has been sparked. Employers have plenty of compelling reasons to join this conversation, including an increasing number of transgender discrimination charges filed with the Equal Employment Opportunity Commission (EEOC), and several other federal agencies taking action on the subject.
Unless you’ve been hibernating, hiding under a rock, or vacationing in a location without Wi-Fi reception, you may have noticed that the last several months have been kinder to labor unions than any in recent memory. Changes in labor laws have provided an opening for labor unions to reassert their relevance in the American workplace after decades of decline.
It is rare that the most employee-friendly of all federal appellate courts cites “common sense” in support of one of its decisions. The 9th Circuit Court of Appeals recently did just that, however, dismissing a disability discrimination claim filed by an employee who was fired for making death threats against company managers.
- Can I Get A Witness (Or At Least A Witness Statement)? NLRB Rules Witness Statements Are Now Fair Game8.3.15
For over 35 years, the National Labor Relations Board (NLRB) held that witness statements obtained by unionized employers during pre-arbitration investigations were exempt from disclosure to the union. However, on June 26, 2015, the NLRB reversed its own long-standing precedent and ruled that such witness statements must be provided to a union bargaining agent before an arbitration hearing. Employers no longer enjoy this blanket exemption and therefore should adjust their practices accordingly.
In a marked departure from the overwhelming success employers experienced before the Supreme Court in recent years, the less successful recently wrapped 2014-2015 term could be an indication that the judicial tides may be shifting against management. Of the six major decisions falling within the realm of labor and employment law, employers can only count two as outright wins; both came in smaller cases which will have relatively limited impacts.
As the weather heats up, summertime romances are probably on the minds of many of your employees. According to the Society of Human Resource Management, as many as 40% of workers have had an office relationship at some point in their careers. Even though employees might view office romances as harmless, they can often lead to a host of legal issues for an employer. In order to keep the boardroom from turning into the War of the Roses, companies should consider implementing an official “love contract” policy.
Getting the most out of employees has always challenged employers. This is particularly true in today’s highly regulated business environment with increased global competition and evolving employee attitudes. Performance management is not just about dealing with the poor performers. Instead, it’s a more holistic process that begins with getting the right people, setting clear employee expectations, coaching workers, and ultimately dismissing poor performers who don’t fit the organization.
Coffee giant Starbucks recently announced a major change to its dress and appearance policy, allowing baristas to visibly display tattoos for the first time in the company’s 44-year history. The company decided that employee retention and satisfaction outweighed the strictness and consistency of its prior “clean-cut” appearance policy.
According to a survey by the Society for Human Resource Management, about 3% of companies in the U.S. maintain some form of unlimited vacation policy. The reasons for adopting such a policy are easy to see: they offer worklife balance and flexibility, empower employees with the responsibility of balancing their time off, and relieve the company of administering a vacation or paid time off (PTO) policy. While the unlimited vacation policy trend is growing, there are various considerations to take into account before diving
Here’s some advice you probably didn’t think you needed, employers: you should avoid, at all costs, giving or threatening to give your employees the biblical Mark of the Beast. And if they think you are doing so, you should accommodate them if possible. An employer in West Virginia ignored this advice and recently found itself on the wrong side of a $150,000 jury verdict. As with all employment-law matters, the case gets even more interesting when you learn more details, so if you want to be sure you know how to avoid this particular stumbling block, read on.
No state or federal law “requires” job descriptions. But job descriptions can be helpful tools for both practical and legal reasons. Here are some of the most important.
Once upon a time, falling asleep at work was one of the best ways to get fired. Now, however, snoozing employees may not just have to be tolerated, they may need to be paid as well! How did we get to such an absurd point?
Wondering what your employee is smoking in the break room, likely in violation of your “no-smoking” policy? Chances are it is an electronic smoking device, such as an e-cigarette or vaporizer. What should you do about it? Anything?
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued proposed new rules clarifying its stance on the interplay between the Americans with Disabilities Act (ADA) and employer wellness programs. Officially called a “notice of proposed rulemaking” or NPRM, the new rules propose changes to the text of the EEOC’s ADA regulations and to the interpretive guidance explaining them.
Long before cell phones, drivers faced various distractions: eating, grooming, attending to children, changing the radio, rubbernecking someone else’s accident, becoming absorbed in a conversation, or arguing.
The slowly rising waves of Fair Credit Reporting Act (FCRA) class-action litigation are beginning to crash against employers. And if you thought that the FCRA only applied to credit bureaus and creditors, it’s time to think again.
As shifting privacy lines allow employers to reach further and further into employee conduct, it’s increasingly important that you know the legal limits. Many employees will question the legality of increased employer monitoring of offsite conduct, especially when employees are off-duty.
Many articles on handling OSHA inspections provide the same basic guidelines and little explanation of why employers should take certain steps. You already know to take photos whenever the Compliance Officer (CO) takes shots and to take notes. But do you know why to take those photos and what to look for? What do you need to note in order to challenge citations when they are issued six months later?
How Subs Can Cause Problems For General Contractors
The U.S. Labor Department (DOL) often sets its sights up the food chain, focusing enforcement efforts on general contractors (GCs) for the wage violations of their subcontractors. In recent years, federal district courts and the DOL have been putting pressure on GCs to insist on and monitor Fair Labor Standards Act (FLSA) compliance by others with whom they share a business relationship by terming them “joint employers.”
Employment litigation can be expensive and time-consuming. Success or failure in defending your company can turn on either the law or the facts. You can’t do too much to change the law that applies to any given case. But, experience shows that employers can do a lot to shape the facts and to improve their position in employment litigation.
Every employer eventually tackles the question of whether its labor force is composed of employees, independent contractors, or a combination of both. The appeal of the independent contractor classification is understandable because the benefits are significant, including the elimination of the need to pay payroll taxes, secure workers’ compensation insurance or make unemployment insurance withholdings. Independent contractors also do not receive overtime pay, or meal or rest breaks.
Cartoonists shot at work in Paris. Teachers killed while trying to protect their students in Newtown, Connecticut. A CEO shot in the head and stomach by a recently demoted employee in Illinois. News reports are filled with horrific tragedies occurring in workplaces around the world.
Getting the most out of employees has always challenged employers. It is particularly difficult in today’s highly regulated business environment with increased global competition and changing employee attitudes. Performance management is not just about dealing with the poor performers. Instead, it’s a more holistic process that begins with getting the right people, setting employee expectations, coaching employees, and ultimately dismissing the poor performers or employees that do not fit into the organization.
You can’t open the newspaper, turn on the television, or visit a website without seeing some alarming statistic about the flu. According to the Centers for Disease Control and Prevention (CDC), the flu is already “widespread” in 29 states with an additional 14 states reporting regional flu activity. In addition, because this year’s flu vaccine appears to be a poor match for the strains that are showing up, the CDC fears that this flu season may be more deadly than in recent years.
Employment litigation can be expensive and time consuming. Success or failure in defending your company can turn on either the law or the facts. You can’t do too much to change the law that applies to any given case. But experience shows that employers can do a lot to shape the facts and to improve their position in employment litigation.
As shifting privacy lines allow employers to reach further and further into employee conduct, it’s increasingly important that you know the legal limits. Many employees will question the legality of increased employer monitoring of offsite conduct, especially when employees are off-duty.
Many U.S.-based employers perform pre-employment, post-accident, or random drug testing. With some exceptions, they are generally permitted wide latitude in deciding when to conduct such tests.
Employers learned long ago that it’s wise to establish written policies which set forth the standards of conduct expected of their employees. These employers also know that the policies may not simply sit on a shelf (or on an intranet), but must be monitored and enforced in order to remain effective tools for encouraging or prohibiting certain behavior. But can you rely on your policies to discipline or terminate employees for engaging in legal conduct which occurred off-duty, especially if the conduct also occurred off-premises, and did not negatively impact the employee’s performance of his or her duties or your business?
With the Holiday Season in full swing, many employers ask us about the wisdom of holding company parties where alcohol will be served.
Managers have a special role for employers because they are your legal agents. What they say, do, and know can be attributed to you as their employer. Depending on the issue, you can even be strictly liable for the conduct of managers, meaning that your good intentions are not a defense.
The U.S. Labor Department (DOL) published final regulations implementing President Obama’s Executive Order, raising the minimum wage to $10.10 per hour for workers on government contracts.
In most U.S. states, employers are free to bind employees with restrictive covenants – which commonly take the form of post-employment restrictions on soliciting clients or employees – as a condition of employment.
If your organization regularly communicates with employees, then you understand the value of keeping employees informed about changes and plans for the organization. If you don’t have a program for regular employee communications, there are compelling reasons to start one.
- 10.1.14You finally decided to take the long overdue disciplinary action. Jack has got to be disciplined. But just before you do, Jack, possibly sensing what’s about to happen, makes a complaint of harassment. This is the first you’ve heard of this problem. Is the complaint legitimate? What do you do? Continue with the planned disciplinary action? Put your decision on hold while you investigate? Will it look like retaliation if you proceed with the discipline?
On the one hand, employers have the right to take disciplinary action. On the other hand, employees have the right to make good-faith complaints about what they believe is unlawful conduct without fear of reprisal. In situations such as the one described above, the issue will be which came first – the decision to take disciplinary action or the complaint of harassment.
Generally speaking, human resources professionals and business executives have become quite adept at dealing with employee claims for illegal harassment. For example, just about any HR manager can provide a definition of a “hostile work environment.” Likewise, HR managers are keenly aware of what to do when handling workplace romantic relationships or inappropriate conduct that have the potential to generate a lawsuit.
But can HR managers provide a legal definition for the term “assault?” This has become an important new concept for managers to learn in supervising employees and ensuring that the workplace is not a breeding ground for litigation. HR managers are accustomed to investigating employee complaints with an eye towards the common federal claims upon which they have been trained, but they are now going to have to pay attention to emerging state-law claims, as well.
- 10.1.14There are a lot of misconceptions regarding unemployment claims filed by recently-departed employees. This article will try to shed some light on them and help answer the common question: “Should we fight an unemployment claim?”
A recent state court decision from Oregon shows just how difficult it is for employers to prevail in such claims, and might lend you some guidance in answering this question for yourself. (The laws dealing with unemployment claims vary widely from state to state, but by and large all follow the same general patterns).
- 9.1.14By now, most employers recognize that they shouldn’t peek at the social-media profiles of applicants for all sorts of reasons. It’s sort of like driving past an applicant’s house hoping that you can catch a glimpse of their private life through their front window. While in most states that might be legal, it’s a pretty stupid idea.
Besides being generally creepy, you’d probably be very embarrassed if you got caught; and most importantly, you might learn things about your applicant that you’d rather not have known at the time you are making the hiring decision. After all, a rejected applicant won’t have a successful discrimination claim if you can prove you didn’t even know they were in a particular protected class, but if the applicant can show that you peeked at their Instagram profile and learned they were in that class, it’s a whole different story.
- 9.1.14While chastising Congress as “doing nothing,” the executive and administrative branches of the federal government were busy making new employment rules for federal contractors and subcontractors.
This summer, President Barack Obama signed four executive orders and one presidential directive, and the U.S. Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) published two sets of proposed rules and one set of interim rules affecting contractors. With several items remaining on the OFCCP’s regulatory agenda that are slated to be issued in 2014, one almost needs a scorecard to keep track. This article identifies those items and summarizes the activity through August 8, 2014.
Join nearly 2000 other professionals who already use the helpful and simple Fisher Phillips FMLA Leave Calculator App. This free, award-winning app is available for smartphones and tablets. There’s even a version you can use in your web browser. Please visit www.laborlawyers.com/FMLALeaveApp for links to download the Android and iOS versions, or to launch the web browser version on your computer.
The app helps calculate leaves of absence under the Family and Medical Leave Act. Anyone managing people can use the app to calculate leave requests (other than intermittent and reduced schedule) and determine how much FMLA leave an employee has available. The user-friendly interface works very simply. In seconds a manager is able to see how much FMLA leave an employee has available, when an employee should return to work after the current leave request, and how much FMLA leave is remaining, if any.
All employers adopt and enforce policies regulating conduct at the workplace. Many employers expect that employees will follow their employment polices at all times regardless of whether the employee is working or at work.
The Supreme Court recently wrapped up its 2013-2014 term, and management can count it as another successful year in front of the High Court. Of the nine decisions impacting labor and employment law, seven of them should have positive implications for American businesses for years to come. And even though most of the decisions will have only a limited impact in the near term, there is a chance that the Court lit the fuse on a series of ticking time bombs which will one day explode and reshape the labor and employment landscape as we now know it.
Last year, some parts of the country experienced the hottest summer on record. This year may well be record breaking as well, at least in some parts of the country. Keeping employees safe and cool during the next four months should be of paramount importance for all business owners and employers.
Remember 2010? Not that long ago, yet as of that year, employers could rest pretty comfortably at night knowing that their garden-variety workplace rules would instill peace and control at the plant, store, or office, not subject them to monetary penalties, governmental oversight, and a not-so-coveted spot on a federal agency’s website list of settlements.
In 2014, many employers, and certainly employment lawyers, are well aware of the forceful effort of the National Labor Relations Board to infiltrate even nonunionized workplaces, by peppering attacks on provisions found in almost any employee handbook: provisions governing at-will employment, employee confidentiality, and employees’ use of social media. Words commonly used by management lawyers about the Board’s new approach include “assault,” “aggressive,” and “war.”
Rocked by soaring costs, including skyrocketing increases in health insurance premiums, employers are desperate to manage, and hopefully limit, whatever costs they can. Many employers have begun to look to the lifestyle choices of their employees and how those choices might influence their cost of doing business. One lifestyle choice with hugely adverse effects, not just upon the cost of health insurance but also upon the business itself, is smoking and the use of other tobacco products.
The days of believing that a handbook can cause more harm than good are long gone. In today’s business environment, a handbook serves both as a sword to carve out your legal rights as well as a shield to protect them.
A handbook sets expectations, encourages employees to behave in certain ways, helps ensure that employees are treated consistently, publicizes employee benefits, and helps win unemployment claims and lawsuits. These are just a few of the reasons why every employer, regardless of the number of employees, should have one.
Let’s face it: bring-your-own-device (BYOD) situations are here to stay. With the ubiquity of employees having and using smartphones and tablets – devices that have more capacity and processing power than desktop computers from not so long ago – it was inevitable that employees would eventually start to use their own devices in a work capacity. This new reality presents benefits for employers, as their employees can now be productive away from the office and be responsive to work situations as they arise. Additionally, there are cost savings that can be achieved when an employer is no longer responsible for supplying devices to its employees.
Obesity rates continue to rise, and so are healthcare costs, workers’ compensation claims, productivity losses, and employee time away from work. So what can an employer who is feeling weighed down by these expenses do to cut costs related to employee obesity? Many are implementing wellness programs that focus on healthy behaviors and attaining a healthy weight.
First marketed internationally in 2002, battery-powered e-cigarettes are exploding stateside and may soon shake up many employers who need to decide whether or not to allow e-cigarettes in the workplace. Sales in the United States of the more than 200 types of e-cigarettes currently available are estimated at more than $200 million annually. In a study released last year, The Center for Disease Control and Prevention noted that one out of every five adult smokers in the United States has tried e-cigarettes, up from one in 10 in 2012.
June is traditionally a popular month for weddings. This June will some of your employees be celebrating the fact that they’ve found romance at the office? Love may be a wonderful thing, but in the workplace, it can put your company at risk.
Two romantically involved employees can create a variety of workplace challenges. For example, if one half of the couple holds a managerial position and the other is a subordinate, the obvious concerns are potential conflicts of interest, or favoritism and clouded judgment.
The Immigration Customs and Enforcement division (ICE) of the Department of Homeland Security, continues to issue Form I-9 Notices of Inspection to businesses across the nation. In fiscal year 2012, ICE served over 3,000 Notices to businesses, resulting in over $12 million in fines. Additionally, ICE made 520 criminal arrests tied to worksite enforcement investigations. These criminal arrests involved 240 individuals who were owners, managers, supervisors, or human resources employees.
- 4.1.14Sometimes an employment lawyer is faced with a thorny question that involves multiple layers of analysis. Before advising a client, any good attorney will want to examine prior case decisions, statutory citations, regulatory guidance, and other resources to ensure a full understanding of the issue at play. Then, in developing the advice, that attorney will probably ponder the question, consider all possible outcomes, weigh the possibilities, and then provide the recommendation only after painful and precise deliberation.
But at other times, the advice is so simple and straightforward that almost anyone can answer it. Unfortunately, a business owner in Virginia never gave an employment lawyer the opportunity to tell him that his planned strategy of installing security cameras in his business’s bathrooms was not wise, and is now facing the consequences.
Even here in Maine, where we take pride in not letting winter slow us down, there are days when it just doesn’t make sense to get out of the house. This past winter was a tough one to say the least – for much of the country it was one of the worst on record. Recent rains in parts of the west raise the specter of flooding and mudslides, and in the south hurricane season begins in June.
Employers may want to put a policy in place to address those occasions when, due to the weather or other emergency, the workplace must be closed or particular employees can’t make it to work. In implementing such policies, you’ll also need to take into account differing legal rules regarding leave time, and payment to exempt and nonexempt employees under both the Fair Labor Standards Act (FLSA) and state law.
- 4.1.14Imagine if you will, that a company-sponsored website allows employees to post comments. During the course of a union strike, an employee who chooses to cross the picket line posts a comment threatening to kill union members who try to stop him. The company does not disavow the post. Would the National Labor Relations Board (NLRB) find that the company is liable?
We don’t know for sure, since that issue has not yet been addressed, but we know the result if the website is a union Facebook page.
Webster’s Dictionary defines “termination” as “the act of ending” or “the end.” In the employment context, “termination” often is intended to be the end of the employment relationship. Perhaps the employee caused problems with coworkers, was an underperformer, violated company policies, or all of the above. Although terminations generally are stressful and unpleasant experiences for all, employers hope that this change will eliminate problems.
Unfortunately, an employee termination can be the source of a new problem for the employer and the beginning of another relationship between the employer and the now former employee. The former employee may file a wrongful termination claim alleging that his former boss and employer did something wrong. The employer’s “wrongdoing” may be as simple as failure to take consistent disciplinary action or the timing of the termination itself.
While it’s often true that the employee “should have been terminated a long time ago” (or should have never been hired, as is often lamented), bad timing and inconsistency often overshadow bad performance and conduct and increase the chances that termination will not be the end.
On January 21, a federal appeals court addressed whether an employee terminated by group decision (six managers) can be considered “similarly situated” to employees who were disciplined less severely by a different decisional group, consisting of some but not all of the same managers. Reversing the summary judgment decision of a Wyoming trial court, the U.S. Court of Appeals for the 10th Circuit stated:
Although there is no clear legal rule as to how much overlap is needed among decision maker groups for employees to be similarly situated, requiring absolute congruence would too easily enable employers to evade liability for violation of federal employment laws. The district court erroneously… insist[ed] that the composition of the decisionmaker groups be precisely the same in every relevant disciplinary decision. We disagree because there is more than enough overlap to conclude the employees identified here were similarly situated to [employee].
The 10th Circuit cited the fact that five of the six decision makers who terminated the employee also participated in at least one decision in which a similarly situated employee was treated more favorably after violating the same or comparable safety rules. The 10th Circuit covers the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. Smothers v. Solvay Chemicals, Inc.
Long before cell phones, drivers faced various distractions: eating, grooming, attending to children, changing the radio station, rubbernecking someone else’s accident, becoming absorbed in a conversation, or arguing.
In recent years employers have become all too familiar with lawsuits alleging violations of the federal Fair Labor Standards Act (FLSA). According to the Administrative Office of the United States Courts, there were more than 7,000 FLSA federal lawsuits filed in 2012, and 2013 was similar. Many of these lawsuits include claims that the employee was “misclassified” as exempt from the FLSA’s overtime-pay requirements.
In the face of these statistics, employers should not just blindly hope that they have classified their employees correctly. Instead, you should proactively plan ahead for the possibility of such litigation and begin now to build the evidence you will need to prove an exemption in court.
Arbitration is generally supposed to be faster, cheaper, and more predictable than litigation. Homebuilder D.R. Horton, like many other employers, certainly believed this when, in 2006, it began requiring employees to sign arbitration agreements preventing them from suing in court, or from bringing class-action claims in arbitration. But when employee Michael Cuda and a class of similarly-situated employees sought to pursue collective arbitration of their claims against D.R. Horton for alleged unpaid overtime wages in 2008, none of those expectations held true.
- 2.3.14There’s no doubt about it – Facebook is the 21st Century water cooler. Workers who used to gather in the break room to talk about the latest sports news, the newest outrageous celebrity scandal, or the latest office gossip are now sharing this communication online. In some cases that’s none of your business as an employer. But what if the ranting is about you? Or your workplace?
Such statements are out there in cyberspace for everyone to see for as long as they remain posted. A recent Oregon case highlights a typical scenario employers are now having to grapple with on a daily basis, and provides a good lesson for employers.
The unpaid-interns ruckus continues to unfold, this time in a way that entangles President Obama
According to the U.S. Bureau of Labor Statistics, almost 60% of American workers are paid an hourly wage. Many of these workers are employed by companies who offer little in the way of paid time off such as sick time, vacation time, or family leave. While most workers in the United States are protected by various laws which guarantee unpaid time off in certain circumstances, relatively few are entitled to paid time off unless the employer simply chooses to make paid time off available.
While laws requiring paid time off are few and far between, the Federal Fair Labor Standards Act (FLSA) at least guarantees hourly-paid workers overtime pay when they work over 40 hours in a work week. The FLSA generally requires the overtime hours to be paid at time-and-a-half the employee’s “regular rate” of pay. Thus, extensive overtime work often significantly supplements an employee’s take-home pay. Of course, those long hours mean less time away from work. While all workers, hourly paid or salary paid, typically appreciate an opportunity for a larger paycheck, some workers actually might prefer time off above additional pay.
(Labor Letter Update, January 2014)
In the past, employees rarely objected to having their picture taken for the company’s identification badge. But in this age of technology allowing for facial recognition, photo “tagging,” finger or palm prints, and other biometrics – even including DNA – employees often resist requests for personal information to be used in connection with security or other business needs.
Our clients have long used our website as a resource to learn more about the laws and regulations that impact Human Resource professionals and others who manage people. Now, the editors at Business Management Daily have recognized the website as one of their top five "favorite legal resources for HR pros."
The editors noted that www.laborlawyers.com provides visitors with free legal alerts, state law guides, e-newsletters, blogs and webinars. Many of you already know that the website contains a wealth of information on all of our areas of practice; links to our four blogs (Workplace Safety & Health, Wage & Hour Laws, Non-compete & Trade Secrets, and Cross Border Employment Law); downloadable versions of our publications including newsletters, state law guides, and booklets on important laws affecting employment; white papers, and much more.
We're pleased to receive the recognition and want to share the news with our readers. You can access the Business Management Daily article here.
- 12.3.13It's pretty common each December to take stock and look back at the year that is ending, whether it’s recounting the happy times and counting one’s blessings, or reliving the disappointments and ruing over the regrets (and sometimes a bit of both). The world of employment law is no different. Now that 2013 is all but wrapped up, let’s take a look back at the preceding 12 months and see who had a good year and who had a bad year.
Healthcare Advocates – SICKENINGLY BAD YEAR
The crown jewel of the Obama Administration has been the passage of the Affordable Care Act, and 2012 saw the healthcare law upheld by the Supreme Court. So we entered 2013 knowing that this was the year to get to work with implementation and compliance, as January 1, 2014 was to be the effective date for much of the law’s requirements.
Much of that work was thrown off when the Treasury Department announced in July that enforcement of the employer “pay or play” mandate penalties – and also the coverage obligations to avoid such penalties – would be delayed until 2015. This setback was compounded in October when the federal government’s healthcare website rolled out in disastrous fashion, preventing an untold number of Americans from enrolling in new health-insurance exchanges. The prognosis for 2014 is bound to be better, if only because it’s hard to imagine a year going more poorly.
LGBT Workers – REALLY GOOD YEAR
One of the biggest news stories of the year was the Supreme Court’s rebuke of the Defense of Marriage Act in the June U.S. v. Windsor decision, which overturned the federal prohibition of same-sex marriages. This ruling largely knocked down the walls for same-sex marriage and has led to a flood of lawsuits and legislative action seeking to expand its scope across the country. As of the time of publication, 15 states and Washington D.C. allow gay marriage, and several more teeter on the edge through litigation or lawmaking. Meanwhile, several branches of the federal government have acted in the wake of Windsor, announcing the extension of FMLA rights, tax recognition, and the application of benefits for same-sex couples and their families.
Another victory for LGBT workers occurred in November, when the U.S. Senate passed the Employment Non-Discrimination Act (ENDA), which would make it illegal to discriminate against LGBT workers across the country (at least 21 states have mini-ENDAs in effect already), although the prospects in the House look uncertain. President Obama has already signaled his intent to sign the bill if it reaches his desk, and if the House blocks passage, it is possible that the President will issue some form of Executive Order advancing this cause in 2014.
EEOC – REALLY BAD YEAR
The Equal Employment Opportunity Commission flexed its muscle over the past several years, exerting its authority over all sorts of workplace issues, and now the federal agency is facing the consequences.
In late 2013, the State of Texas filed a lawsuit against the EEOC in an effort to preserve its absolute ban on hiring felons for certain state positions, claiming that the EEOC's guidelines on the subject unreasonably limit employers from excluding convicted felons from the workplace. And in August, a Maryland District Court judge made a mockery of the EEOC's criminal-background check guidance while ruling it unenforceable, lambasting it as "laughable, distorted, worthless, and dishonest." Not to mention the nine state attorneys general who collectively protested the EEOC's stance on the issue as "gross federal overreaching." No doubt the EEOC will continue in its efforts to push its agenda in 2014, but it certainly took some knocks over the past year.
Felons In The workplace – GOOD YEAR
That being said, some felons can take heart and look back at 2013 as a good year for their workplace prospects. A growing national trend has seen many jurisdictions pass "ban the box" pieces of legislation prohibiting companies from seeking information about job applicants' criminal histories. At least 10 states and 51 cities and counties across America are limiting the use of criminal background checks, and several prominent employers announced in 2013 that they would end the practice of seeking such information on certain job applications.
Arbitrators – VERY GOOD YEAR
One group of Americans with solid job security are those who arbitrate legal cases for a living. The U.S. Supreme Court once again sent a message to the country's employers that it is very much in favor of cost-effective and business-friendly arbitration proceedings in lieu of jury trials, issuing two more decisions upholding arbitration provisions.
In a 10-day span in June, the Court upheld the tenets of the Federal Arbitration Act (American Express v. Italian Colors Restaurant) and then upheld the power of arbitrators as dictated by the specific arbitration agreements at issue (Oxford Health Plans LLC v. Sutter). These decisions will no doubt further enforce the popularity of arbitration agreements in the employment context, and with at least one more arbitration case on the Court’s docket for 2014, look for that trend to continue.
Class-Action Lawyers – BAD YEAR
While the Supreme Court made life a little easier for those who have chosen the profession of arbitrator, it has made life a little tougher for those kids who want to be class-action lawyers when they grow up. With another pair of decisions issued in March and April of 2013, the Court provided a welcome respite to employers from the seemingly never-ending onslaught of costly class-action claims.
In Genesis Health Care Corp v. Symczyk, the Supreme Court ruled that wage-hour collective actions brought under the Fair Labor Standards Act can be defeated if the lead plaintiff is “picked off” by being paid what he claims to be owed, a procedural maneuver which might work wonders to stem the tide. And in Comcast Corp. v. Behrend, the Court held that plaintiffs who want to bring class actions must prove early on in the litigation that the damages they seek can be measurable on a class-wide basis, raising the bar one notch higher in favor of employers. Don't feel too bad for the class action lawyers, however. We're sure they’ll find something else to do with their time in 2014.
Minimum-Wage Earners – GOOD YEAR
This past election day saw a minimum wage hike passed by New Jersey voters, as the state will become the 20th state in the country to require minimum wages higher than the national level of $7.25/hr with a new rate of $8.25/hr effective January 1, 2014. Also this year, California lawmakers passed a $10/hr wage minimum, Washington’s jumped to $9.32/hr, Oregon’s rose to $9.10/hr, and both New York and Connecticut saw their minimum wages rise to $9/hr.
But nothing compares to the Seattle suburb of SeaTac, whose voters passed a measure requiring hospitality and transportation workers to be paid a minimum of $15/hr, by far the highest in the country (the results of the vote are likely headed to a recount due to the razor-thin margin of passage). It appears that several states – Massachusetts, Idaho, and South Dakota, to name a few – will consider minimum wage-hikes in the coming year.
Facebookers, Instagrammers, And Tweeters – GOOD YEAR :)
If you needed to recap the year for social-media users, you could simply type a quick smiley face and be done with it well short of 140 characters. 2013 was a particularly good year for those who want to keep their social-media life separate from their work life. At least 10 states (Arkansas, Colorado, Illinois, Nevada, New Jersey, New Mexico, Oregon, Utah, Vermont and Washington) enacted legislation in the past year preventing employers from poking around and requesting social-media passwords at the application or employment stage, and legislation has been introduced or is pending in at least 36 states. This list will no doubt grow in 2014, leading many to "like" this status.
NLRB – BAD YEAR (AND COULD BE WORSE IN 2014)
It’s been a tough year for the National Labor Relations Board. In January, the Board took a blow when a federal appeals court ruled that President Obama’s recess appointments of three members to the Board were invalid, which calls into question the legitimacy of over 200 cases made without a clear quorum. The Supreme Court has taken up the matter and will issue an opinion in 2014 (NLRB v. Noel Canning), so the Board sits on pins and needles until then wondering whether it will see hundreds of decisions overturned.
Then in May, another federal appeals court decision invalidated the NLRB’s controversial notice-posting mandate which would have forced nearly six million employers to post notices informing employees of their rights under the NLRA. The court held this was an unconstitutional infringement on employer free speech rights and struck it down. Yet another court weighed in with a June decision that went even further, ruling that the Board didn’t even have the authority to enact the poster rule in the first place. No doubt the Board will continue to push its agenda in 2014, so stay tuned.
Workplace Bullies And Cursers – BAD #&!@%*! YEAR
This was a bad year for those workplaces that might be considered a little rough around the edges. In April 2013, the federal government announced a lawsuit against a construction company under OSHA’s safe workplace requirement, but rather than taking aim against faulty scaffolding or other dangerous hazards, the culprit was the dirty mouth of the business owner.
And in November 2013, the NFL’s Miami Dolphins were caught in the crosshairs of a bullying scandal that led to the suspension of one of its players for alleged verbal and cyber-bullying of a teammate. Several states are considering proposals which would outlaw workplace bullying (New York, Connecticut, Illinois, Washington, etc.) and these news stories will no doubt aid the efforts of the proponents.
Unpaid Interns – NOT TOO BAD OF A YEAR
2013 saw a tidal wave of lawsuits filed by unpaid interns against their employers, claiming that they were improperly denied pay for the work they were performing. Much of this activity was no doubt triggered by the June court decision which held that two unpaid production interns for the movie Black Swan should have been paid for their work manning phones and fetching coffee.
Since then, dozens of lawsuits have been filed by disgruntled interns who claim their workplaces did not follow the Department of Labor guidelines for unpaid internships. But it’s not all good news for those seeking valuable experience in their chosen professional field, as many companies have severely restricted or cut their internship programs altogether in the wake of this troubling trend.
IT Professionals – BAD YEAR
With the proliferation of personal smartphones, tablets and other computing devices, employers are grappling with the pros and cons of “BYOD” policies for their workforce – short for “Bring Your Own Device” policies. On the one hand, why not allow employees to use their own devices to get company business done and take advantage of the lower costs of software and hardware? For employees it is a boon, too, as they see greater efficiency, fewer devices to manage (and a corresponding drop in headaches), and the flexibility to work with their own personally preferred technology.
On the other hand, BYOD practices leave companies vulnerable to security risks, privacy concerns, cyber-harassment liability, evidence-recovery challenges, and wage & hour claims – so prudent employers will develop thorough written policies to address these and other issues. But pity the poor IT professional at your company who has to juggle all of the technology and provide support for different devices across multiple platforms…make sure to remember him or her when you make your next Starbucks run.
Whistleblowers – GOOD YEAR
In October, the SEC announced that it had awarded more than $14 million to a whistleblower whose information led to a government enforcement action that saw the recovery of significant investor funds, the largest award ever made by the government whistleblower program. No doubt many employees saw this news and started dreaming about possible newfound riches of their own.
Even if your company is not subject to the SEC’s reach, take this opportunity to tighten up your internal compliance procedures to ensure you don’t give your own workers a reason to blow the whistle. The Supreme Court has taken on a significant whistleblower case to be decided in 2014, Lawson v. FMR LLC, which may open the door for more whistleblower retaliation claims to be filed under the Sarbanes-Oxley Act in the coming years.
People With The Sniffles – PRETTY GOOD YEAR
The list keeps growing. In the past year, several more jurisdictions passed laws requiring employers to provide paid sick leave to their employees. Workplaces in New York City, Seattle, Portland (OR), Jersey City, San Francisco, the District of Columbia, and Connecticut are now on the hook for this mandatory benefit. While it was undoubtedly a good year for people with the common cold or flu, who will now be able to stay home in bed and still collect a paycheck, it will be a bad year for all of the human resources professionals who will have to administer this paid-leave entitlement. Look for this list of states and cities to grow even longer in 2014.
Foreign Talent In The Office – BAD YEAR
As the global economy continues its recovery, this country has seen an increased demand for foreign professional workers with degrees. But there is a limit to the number of H-1B visas that the government issues, and 2013 saw this cap of 65,000 hit in record time – within the first week of the filing period in April. This means that the system is almost to the point of being a lottery with employees selected at random for these coveted spots. Unless the allotment is increased in number or revised in some other way, employers will be hard pressed to make any definitive plans for their workforce due to the uncertainty of selection, and will need to develop solid backup plans in case the foreign talent they seek is barred from our shores.
Working Members Of The Family – GOOD YEAR
It was a good year for those who have to balance the home-workplace dynamic, as mandatory flextime laws were passed in the city of San Francisco and the state of Vermont. Although these are seen as somewhat vague and hard to enforce, they continue the trend of forcing workplaces to take into consideration the family life of workers. This appears to be the tip of the iceberg, and several other lawmaking bodies are already teeing up similar proposals for the new year.
Federal Contractors – MIXED YEAR
It was a bit of both good news and bad news for federal contractors subject to the OFCCP in 2013. This past year saw the agency issue a new directive on how it will determine compensation disparity, along with a new Compliance Manual which includes a checklist used by federal investigators during workplace audits. This provides some much-needed clarity for employers and is a welcome relief. But the agency also issued new regulations requiring the collection of data when it comes to veterans and disabled applicants and workers, offering yet another administrative compliance challenge.
Socially Awkward People – GOOD YEAR
Imagine one of your workers bombs during a critical customer presentation, but before you can fire him, he brings you a doctor's note with the diagnosis of "Social (Pragmatic) Communication Disorder" seeking an accommodation of never having to present in public again. Far fetched? Think again. Thanks to the release of the 5th edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (called the DSM-5) in May, those who might otherwise be considered painfully shy or socially awkward might be classified as disabled under the ADA.
The new DSM-5 also categorizes those with "Mild Neurocognitive Disorder" as being covered – this is simply a mild decline in attention or memory often seen in people over the age of 50. In other words, you might see doctors now classifying what we call "senior moments" as being events that you have to reasonably accommodate in the workplace. There was something else I was going to say about this topic, but I forgot.
For more information contact the author at RMeneghello@laborlawyers.com or 503.242.4262.
If you've been following the news, you probably realize that it has been a busy year for organized labor. The percentage of unionized workers in the private sector has fallen to historic lows, leaving unions with fewer dues-paying members, and motivating them to adopt new tactics to stem the decline. Exploiting a more favorable environment created by recent NLRB decisions promoting unionization, unions are turning their focus to grassroots organizations, social media, and previously uncharted geographical territory in an effort to revitalize their base.
This article describes some of those efforts, focusing on new strategies to organize American workers. Unions are struggling to find ways to reach younger Americans, who will be the future of the workforce. Companies that wish to remain union free may need to adjust their strategies as well. Reviewing your organization’s policies, and the way you communicate with your employees, will be crucial to achieving that goal.
Operating At Full Strength
For the first time in more than a decade, the National Labor Relations Board is operating with a full complement of five confirmed Members and a confirmed (rather than appointed) General Counsel. This General Counsel spent the majority of his pre-Board career as an attorney for the International Union of Operating Engineers, unlike the most recent GC who spent most of his career working at the Board.
What do these changes mean? The current Board and GC will be actively pursuing alleged violations of the National Labor Relations Act in an effort to spur unionization. We can expect a much more union-friendly environment than in years past. Unions will certainly look to the Board for favorable rulings and to the GC for Advice Memos that support their cause.
Taking It To The Streets
Reaching beyond traditional organizing campaigns, unions have begun to partner with non-labor groups that share common goals. This past summer, the AFL-CIO entered into a new national partnership with United Students Against Sweatshops. The goals of this partnership are to “strengthen workers’ rights and build power for students and workers.”
The Service Employees International Union (SEIU) has contributed more than $2 million to New York Communities for Change, which funds the Fast Food Forward movement. Fast Food Forward staged protests in several major cities this year, demanding $15 per hour for workers in the fast-food industry.
Why are unions teaming up with grassroots organizations? AFL-CIO President Richard Trumka’s statement earlier this year sheds some light on this issue: "We are not going to rebuild the labor movement solely through NLRB elections and voluntary recognition by employers, no matter how smart and strategic our campaigns."
Building partnerships with non-labor organizations, unions hope to teach young Americans to band together towards achieving a common goal. The challenge for organized labor will be to translate these efforts into concerted activity in the workplace.
Unions have increasingly turned to social media to promote their interests. Discussing unionization in 140 characters or less, AFL-CIO President Trumka held a Twitter chat on May 6, which reached more than 2,250,000 Twitter accounts during the hour long Tweetchat. The same day, the AFL-CIO began the Facebook engagement, which attracted nearly 150,000 views of posts in the first four days. The SEIU has more than 40,000 followers on Twitter, up from only 5,400 followers in September 2010.
Why are unions employing social media to reach workers? The AFL-CIO has stated that "The survival and future of the labor movement is directly tied to our ability to engage the next generation of workers and develop the next generation of union leaders." With more than 50 million active Twitter users in the United States, unions have begun ramping up their efforts to reach a younger audience through social media. We expect to see these efforts continue to grow over the next year, as unions become more social media savvy.
Targeting The South
Recognizing that "the U.S. labor movement has never successfully developed a concerted and coordinated effort to organize workers in the 11 Southern states making up the Southern Region," the AFL-CIO has resolved to develop (and implement) a southern organizing strategy. The AFL-CIO Resolution 26 provides few details on how affiliated unions will reach this goal, but does adopt as a "top priority" a "long-term commitment to organize the South."
Don't unions typically avoid organizing in "right-to-work" states? After all, employees in right-to-work states cannot be forced to join a union in order to keep their jobs. But companies in right-to-work states should not rely entirely on their "right-to-work" laws when considering the possibility of unionization. Unions will continue to seek organizing opportunities anywhere they believe they can be successful. This includes the South, despite the protections of right-to-work laws.
Clearly, unions have begun shifting their focus and priorities. What does this mean for your organization? It means that as unions find more efficient ways to reach out to your employees, your company should carefully evaluate your labor-relations policies and communications. Have you updated your social-media policy based on evolving NLRB rules? Have you reviewed your confidentiality and off-duty access policies recently? Have your supervisors and managers been trained to respond to questions about your company’s position on unions?
As our workforce continues to move towards an online community, has your organization revisited its online presence? Does your company have active Facebook, Twitter, or other social-media accounts? How do you share your successes with the world, and with your workforce? Do you monitor online forums for negative information about your organization?
Next year, unions will be using new technologies in an attempt to gain the support of a younger workforce. Now is the time to consider whether you are adequately prepared to meet the new face of organized labor.
For more information contact the author at MKorn@laborlawyers.com or (803) 255-0000.
36% of employers report employee misconduct at holiday parties. The misconduct ranges from excessive drinking to sexual advances, off-color jokes, vulgar language, arguments, or even fistfights. This article summarizes risks to employers and lists precautions you can take to minimize your liability. These precautions are categorized as: 1) pre-party compliance efforts, and 2) specific actions for the night of the party.
The O-1A visa category is available to foreign nationals with extraordinary ability in the arts, sciences, education, business, or athletics who want to work in the United States. These individuals are part of a small percentage of people who have risen to the very top in their respective fields of expertise.
Many countries are uniting for one simple cause: stopping child and forced labor. The U.S. Labor Department (DOL) is committed to stopping child labor and has adopted this as a key platform. On June 13, the World Day Against Child Labor, Carol Pier, Acting Deputy Undersecretary of the Labor Department’s Bureau of International Labor Affairs (ILAB), addressed this issue on the DOL’s official blog.
Many articles on handling OSHA inspections provide the same basic guidelines and little explanation of why an employer should take certain steps. Readers already know to take photos whenever the Compliance Officer takes shots and to take notes, but do you know "why" to take those photos and "what" to look for? What do you need to note in order to challenge citations when they are issued six months later?
On August 9, 2013, the EEOC suffered its second defeat of the year in litigation involving employer use of criminal and credit background checks for employment screening. A federal district court in Maryland held that the EEOC’s expert analysis was statistically flawed, unreliable, and insufficient to demonstrate disparate impact. EEOC v. Freeman.
The question of “do I have to actually make my employees wear PPE” made it all the way to the full Occupational Safety and Health Review Commission (OSHRC) last year.
Looking back at the recently-completed 2012-2013 Supreme Court term, employers should have reason to feel good about how things turned out. In fact, of the six major decisions that impact employers and can be categorized in the “win” or “lose” column, employers won all six of them – two victories each in three different categories of cases.
As the U.S. Supreme Court ended its most recent term with a number of cases that will have broad societal implications, one employment law case decided by the Court seems to have taken somewhat of a back seat, despite the significant effect it will have on retaliation claims arising out of workplace discrimination complaints.
In February of 2009, a Wisconsin medical center fired several nurses after they electronically posted patient x-rays to their Facebook page, revealing the presence of a potentially embarrassing foreign object. As a result, the local sheriff’s office investigated the medical center and ultimately referred the case to the FBI to determine whether any federal laws, such as the Health Insurance Portability and Accountability Act (HIPAA), had been violated.
Although simple and oftentimes overused, sports metaphors can provide insight into complicated topics. When it comes to employment litigation, cases often boil down to “blocking and tackling.” In other words, the fundamental (but unglamorous) activities often make a far greater difference than sophisticated lawyering.
In recent years, many high-profile workplace-harassment lawsuits have grabbed headlines, complete with lewd and salacious allegations.
Unpaid summer internships are routine for some businesses, especially those in creative fields such advertising, design, music, publishing and film – all areas that have flourished locally in recent years.
- 7.1.13Is it possible to fire an employee because you think they are too sexy? In a recent case decided by the Iowa Supreme Court, the judges held that such an action is acceptable under the law. Before your mind starts wandering too far about the repercussions of this decision, let’s not get ahead of ourselves. This case has been widely ridiculed as a misapplication of commonly-accepted workplace law, a one-of-a-kind oddity. Still, it’s out there.
In May the American Psychiatric Association released a new edition of its Diagnostic and Statistical Manual of Mental Disorders, known as “DSM-5.”
Most employers are well aware of the various implications that the social media explosion has on the workplace. The various issues created by Facebook, LinkedIn, and other similar platforms lead to constant requests for input by management-side employment lawyers. Likewise, employers – especially those in industries with a heavy emphasis on relationships or research and development – are also focused on protection of their trade secrets and other confidential information.
Nora Roberts said “Love and magic have a great deal in common. They enrich the soul, delight the heart. And they both take practice.” Love and the workplace, however, well, that is a different ball game.
We’ve warned clients for some time now that businesses and other organizations should think carefully if they are considering the possibility of permitting unpaid internships.
Society of Human Resource Management studies show that 53% of job applicants lie on their resumes. Other research has placed the number at between 30% and 50%, with one 2011 study saying that 80% of resumes are – at a minimum – “misleading.” Whatever the accurate statistic, it’s clear that resume fabrication – from inflated salaries to embellished job titles to trumped-up education claims – are rampant. And the liars have help: Several websites offer tips for “smart ways” to manipulate or outright fake resume details.
It was surprising and disappointing to read about a punitive damages award against a North Carolina employer who allegedly tolerated employees referring to an African-American coworker as a “coon” and offering him a hangman’s noose. It’s 2013, not 1960.
There was a time when cursing at work seemed to be the norm in many businesses. Whether in a shop, an office, a hospital or other work environment, swearing and cursing can still occur.
The ongoing saga over composition of the National Labor Relations Board took several twists last month, and uncertainty continues to swirl around the agency’s authority to do business. As of today, the Board consists of Democrat Chairman Mark Pearce (whose term is set to expire in August), along with two recess appointees, Richard Griffin and Sharon Block, both also Democrats. The two other seats, which by tradition should be held by Republicans, have remained vacant for some time.
The media and political figures have paid increased attention to workplace bullying in recent months and years. A simple Google search can confirm this reality. Moreover, legislators in 21 states have introduced bills to address and combat workplace bullying, starting with California in 2003.
A lawsuit filed against a business in Minneapolis, Minnesota demonstrates that the problems associated with workplace violence do not necessarily end once the violence stops. Recently, the family of one of six individuals slain at the interior signage company filed a wrongful death lawsuit against the company, alleging that it was “grossly negligent” in handling the termination of an employee.
The Family Medical Leave Act (FMLA) allows employees to take 12 weeks of leave for their own or a family member’s serious health condition and up to 26 weeks for military caregiver leave. The leave can be taken in one block, over several stretches of time or intermittently. To take intermittent leave, the employee need only provide a certification that there is a medical need for such leave.
Hopefully you’re already aware of the continuing escalation of all forms of whistleblower and retaliation claims, including under the 20+ Anti-Retaliation laws enforced by special investigators from OSHA’s Whistleblower group. If not, check out the Whistleblower Protection Program website.
- 4.1.13When Sun Tzu wrote “The Art of War” in the sixth century B.C., he probably wasn’t thinking about how his advice would apply to employment law litigation in the 21st century, but he might as well have. One of his most famous quotes from that epic military treatise is “Those who wish to fight must first count the cost.” A recent example from Washington state shows the value of following this sage advice.
The National Labor Relations Board recently held that United Nurses and Allied Professionals (UNAP) did not violate the National Labor Relations Act (NLRA) by failing to provide an audit-verification letter to a non-member objector, Jeannette Geary, who opposed the UNAP charging her for lobbying expenses.
Lawyers are justly proud when they win a difficult discrimination or harassment case. But after a couple of hundred thousand dollars in legal fees, disruption at work, and harm to reputation, an employer may decide that a few more similar “victories” could shut them down.
The Mine Safety and Health Administration (MSHA) recently released a Final Rule that significantly changes the way the Agency charged with protecting America’s miners enforces one of its most powerful enforcement tools: pattern of violations (POV).
Over the past decade, we have seen the largest military deployment since World War II. Our troops are now withdrawn from Iraq, and thousands more are scheduled to return from Afghanistan over the course of 2013. By the end of 2014, nearly 1.5 million veterans will have returned from combat operations in those two countries alone. Many will apply for reemployment with physical or mental impairments that potentially trigger a host of statutory obligations, ranging from the Uniformed Services Employment and Reemployment Rights Act (USERRA) to the Americans with Disabilities Amendments Act (ADAAA).
Imagine you are the Hiring Manager for a distribution warehouse and have just begun interviewing applicants for a materials handler position. The first candidate enters the room, standing at a height of 5’4”, weighing more than 500 pounds.
Technology advances and innovations bring advantages and efficiencies. But, sooner or later, most changes bring potential disadvantages as well. In the end, we can’t resist technological change: the trick is to leverage the advantages against the disadvantages and be prepared to address the downside. Nowhere is this more true than the workplace, wherever it might be. More frequently, employers are using telecommuting as a means of increasing productivity and efficiency.
The National Labor Relations Board (NLRB) has attracted attention in recent years for its scrutiny of employer rules and policies regulating conduct of employees – including employees who are not represented by unions or attempting to organize a union.
The Mine Safety and Health Administration (MSHA) recently announced what many mine operators and independent contractors have experienced for the past several years – a heightened focus on, and tremendous increase in, the number of discrimination complaints filed by MSHA.
- 1.2.13Do you want to follow the example of successful businesses like Google and Amazon? One way to start is to allow employees to bring dogs to the workplace, just as they do. You wouldn’t be alone – it is estimated that 2.3 million dogs attend work each day with 1.4 million owners, and that’s not even counting one-person shops and those who work at home. While you will not be guaranteed to transform your company into an internationally-recognized brand overnight, you may take a step towards that direction. This article will cover the pros and cons of a pet friendly workplace, and will offer some guidance if your office wants to go to the dogs.
The End of the World As We Know It?
If you’re reading this after December 20, that means the Mayans got it wrong and the world isn’t going to end in 2012. That’s the good news. The bad news is that you still have to go to work tomorrow, and you’ve been putting off dealing with all of those labor and employment problems in the hopes that the end of the world would have happened by now. (Oops!) Or have you been hunkered down deep in an underground bunker for the better part of the last year ignoring your human resources duties, and now you feel out of the loop about what happened over the past 12 months? Either way – fear not! Fisher Phillips once again presents you with our annual review of the last year in the world of labor and employment law. This time we’re handing out awards based on one the most popular genre of movie – the end-of-the-world variety.
With the Holiday Season in full swing, many employers ask us about the wisdom of holding company parties where alcohol will be served. They generally want to know about the risk involved if an employee drinks too much at the party and misbehaves, or worse, injures or kills someone on the way home.
It comes as no surprise that an unhappy employee is more likely to file a complaint or lawsuit. We often tell managers and supervisors that employees file complaints when they "get their feelings hurt." Sometimes this is because the employee thinks no one is listening, or it may be that the employee does not feel respected. Whatever the underlying reason may be, it's as true now as it ever was that a little bit of employee relations goes a long way toward preventing employee complaints and legal actions.
On April 30, 2012, an EEOC Final Rule took effect regarding disparate-impact claims under the Age Discrimination in Employment Act (ADEA), and the defense of "reasonable factors other than age" (RFOA). Ostensibly proposed to address issues related to the Supreme Court's decisions in Smith v. City of Jackson and Meacham v. Knolls Atomic Power Laboratory, the Final Rule incorporates the EEOC's interpretation of the RFOA defense, despite the concerns of several commenters.
A recent shooting death in Long Beach, California, has placed the issue of workplace violence back on employers' radar-screens. On February 16, a federal immigration agent was shot and killed by a coworker while at the workplace. The shooting occurred after a counseling session escalated into a physical confrontation and then turned deadly. In addition to the fatality, another agent was shot and wounded.
For the past 75 years, the National Labor Relations Board (NLRB) has been responsible for conducting union representation elections and investigating unfair labor practice charges. Because the agency is comprised of members who are appointed by the standing President, it has been vulnerable to the occasional pendulum shifts that flow from the political process. That being said, the agency has traditionally steered clear of major controversies by confining itself to the application of long-standing principles that have typically stood the test of time.
Strategic changes at the Occupational Safety and Health Review Agency in the last several years have resulted in stricter enforcement, larger penalties, greater compliance requirements and new regulations. This year we expect to see many of the proposed rules and initiatives that OSHA has been pushing make significant progress within the regulatory process, and maybe even come to life.
In 2007, two persons in Colorado applied for employment with Burlington Northern Santa Fe R.R. Co. (BNSF). The company extended each applicant a conditional offer of employment, but rescinded each applicant's conditional offer following a medical screening. Each applicant then filed a separate charge of discrimination with the EEOC alleging that he was perceived as disabled in violation of the Americans With Disabilities Act.
On February 9, 2012, the U.S. Court of Appeals for the 5th Circuit addressed the issue of whether alleged harassment toward African-American employees could support the claim that there was a hostile work environment for two Hispanic employees. The court concluded it could not in the particular case before it, stating that "if the evidence of the workplace environment for the employees of plaintiff's race does not show frequent, severe and pervasive hostility, then evidence of hostility towards a different racial group is not much support for the plaintiff's claim."
Mediation is a helpful process for resolving many types of disputes. With its increased use over the past few decades, mediation has proven to be especially beneficial in resolving emotionally-charged disputes in employment and domestic matters. Let's take a closer look at what it is, and why it works.
You would be hard-pressed to find someone who has not heard of OSHA. OSHA's presence is felt by employers across broad segments of American industry, from construction to food service. What many people don't realize, however, is the pervasiveness of OSHA's (older) sister agency, the Mine Safety and Health Administration, or MSHA.
The 2011 calendar year was one of the more interesting years for the National Labor Relations Board (NLRB). The Board became a lightning rod for controversy and partisan politics due to its controversial decisions to utilize its rarely-used rulemaking authority to rewrite the rulebook on union elections and to require employers to post what many consider a pro-union National Labor Relations Act (NLRA) poster in its workplace.
Acme Corporation's longstanding policy is to give non-exempt employees two 10-minute rest breaks each workday. It treats these breaks as paid worktime. Management recently realized that, over the years, most of the employees have gradually come to be spending 15 to 20 minutes or even a little longer on each break. Acme sent out a memo reminding everyone that the breaks are limited to 10 minutes, but it had no effect. Could Acme start considering the over-10-minute extensions to be unpaid time?
Viewers of the popular television show "Pawn Stars" (The History Channel) know that recently the owner, Rick Harrison, and his father, "the old man," have been interviewing applicants for the night shift. Here is their exchange when the old man sat in on one of the interviews:
With every new year, millions of people resolve to make positive changes in their personal lives. Some even resolve to change how they "roll" at work. For owners, managers and supervisors, the fresh-start aura associated with the beginning of every new year is the perfect backdrop for making positive changes that may help them become better, more effective, and respected leaders.
It's no secret that today's economy is tough. The result? Business vets are joining this year's crop of students as fall interns. They will work away – often for free – in hopes of a future job, a resumé builder and even to sample "the real world." There is just one problem – in many cases, this is illegal.
Every year at this time it's traditional to look back and review the year's highlights. Our list is a bit of a twist, however. If there is anything that sets labor and employment law apart from other areas practiced by our legal brethren, it seems to be the high percentage of odd fact situations that crop up. Here are a few that we'll reminisce about for a long time.
Employers who pay out severance to their employees run certain risks that need to be considered beforehand. Some employers have learned the hard way that severance agreements aren't always the best course of action. Last year, the University of Oregon received bad press when it was discovered that former head coach Mike Bellotti received a substantial payout upon his departure.
With the Holiday Season in full swing, many employers ask us about the wisdom of holding company parties where alcohol will be served. They generally want to know about the risk involved if an employee drinks too much at the party and misbehaves, or worse, injures or kills someone on the way home.
Recent temperatures in the northeast were near record lows, meaning employees working in cold temperatures could face serious health risks. Cold weather is particularly dangerous to employees spending long hours outside, such as construction workers. Prolonged exposure to freezing or cold temperatures can result in serious health problems like trench foot, frostbite, hypothermia, and in extreme cases death. With winter bearing down upon us, it is a good time to familiarize yourself and your employees with the danger signs and important tips to protect them from the cold weather and potentially serious health threats.
An Employment Law Preview of the 2011-2012 Supreme Court Term:
After the turbulent roller-coaster ride to which the Supreme Court treated employers the last few sessions, businesses across the country are casting a wary eye on Washington D.C. as the Justices gear up for their latest session, which kicked off last month.
Deciding whether an individual is an employee or independent contractor is becoming an ever more important question. Employers should carefully scrutinize each and every independent contractor relationship which exists within the business before the Labor Department, the IRS, or a state agency does it for you.
With the unemployment rate in the United States continuing to flirt with record highs, employers are faced with a swell of job applicants and a larger pool of qualified candidates for open positions. The glut of applicants in comparison with the dearth of jobs has left many hardworking and qualified individuals unemployed for an extended period of time.
Affected employers will no doubt have a variety of wage-hour questions in the aftermath of any major disaster, such as Hurricane Irene.
When the workers' compensation system was first instituted, it was devised as a cost-saving mechanism. Job safety was deteriorating, leading to an increase in accidents and injuries. Employers increasingly found themselves in court defending civil suits for work-related injuries. The workers' compensation system was seen as a way out of the problem. Today, the system is a monster, with employers spending tens of billions of dollars each year to insure their work-injury risk.
A smart phone is now as much a piece of your office life as a desk, laptop or employee handbook. Anyone can use their BlackBerry or iPhone to stay current on news and events, update social media status and check their email from any location with a signal.
For some employees who can't figure out why they are not getting that promotion, the answer could be as simple as looking in the mirror. Grooming and personal appearance are playing an ever-increasing role in workplace raise and promotion decisions. A recent CareerBuilder.com survey listed the top reasons that would make an employer less likely to offer an employee a promotion.
The recent termination of Charlie Sheen from "Two and a Half Men," and the swirl of negative publicity around the incident, has shed light on the use of arbitration agreements. After he was fired, Sheen filed a $100 million lawsuit against Warner Bros. He wants the proceedings held in front of a jury rather than being privately adjudicated by an arbitrator as outlined in his Warner Bros. contract.
Earlier this year there was deep concern in the employer community because the National Labor Relations Board (NLRB) issued a complaint against an employer who disciplined an employee for highly derogatory comments she made about a supervisor on her Facebook page.
Issuing employee discipline is one of the hardest aspects of being a supervisor and, since it's so difficult, it's often not done well – when it is done at all.
Your handbook says, "No unauthorized overtime permitted." Your managers tell employees that they must get their job duties completed during regular work hours because there is a company-wide prohibition against working overtime. Your managers also tell employees to accurately record their hours worked. All good stuff, right? Could be.
Section 7 of the National Labor Relations Act (NLRA) grants employees the right to "engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection." (emphasis added). This broad statutory language leaves room for subjective interpretation, and, over the years, the courts and the National Labor Relations Board (NLRB) have refined the standard for what conduct is considered "concerted."
If you have ever attended an employment law seminar or a management training class, you have no doubt heard the speaker extol the virtues of consistency when dealing with employees. Consistency provides your employees with clear direction and minimizes uncertainty. Once your employees know what you expect, they are more likely to meet those expectations without the need for discipline.
Taking a stand for employers, Fisher Phillips filed an official Comment with the National Labor Relations Board (NLRB) about proposed rulemaking that could be burdensome for employers. The NLRB has proposed a rule requiring employers to notify employees of their rights under the National Labor Relations Act. Employers whose workplaces fall under the National Labor Relations Act (NLRA) would be required to post the employee rights notice.
Showdown Over Right To Work
Like its New England neighbors, New Hampshire has long been perceived as a friendly state for labor unions. Much like Wisconsin, many would view it as an unlikely candidate for legal reforms that attempt to shift the balance away from organized labor. Yet New Hampshire stands poised to become the first state in many years, and the only one within the Northeastern United States, to pass comprehensive right-to-work legislation that would do just that. Even more remarkably, a growing number of other states are now entertaining the same notion.
Almost everyone has clothes in their closet that no longer fit. Admit it; things change, whether it's the fashion or you. In fact, some of those clothes probably never really fit, despite your alterations and efforts. Maybe you thought you would "grow" into them. Or maybe you thought you looked good enough. No problem. Now picture your company's job descriptions. Do they still fit today? In the case of job descriptions, a bad fit is probably more serious than a fashion mistake.
As American businesses slowly emerge from the worst downturn since the Great Depression, employers should steer clear of roadblocks that can undermine their progress.
One such roadblock is employment litigation. Growing numbers of employers are avoiding this roadblock by implementing policies that substitute an arbitration hearing for a courtroom trial.
In Part 1 of this article (Labor Letter March, 2011) we looked at some of the important points to keep in mind when writing an employee handbook. In this conclusion, we'll cover ten of the most important policies that should be included.
If you have ever been part of a lawsuit, you are probably aware that somewhere in the range of 95% of employment-related lawsuits are settled, dismissed, or otherwise resolved before trial. While some cases are resolved through direct negotiation between the lawyers, or through motions filed with the court, a significant number are resolved through mediation.
It's been nearly two years since the Equal Employment Opportunity Commission (EEOC) issued a compliance manual update on religious discrimination.
The votes are in, the contests have been played – we are down to the Final Four Biggest Workplace Headaches for 2011! We received bracket entries from employers across the country telling us about their biggest frustrations, and after tallying all of the submissions, we can reveal the most annoying four situations that employers face every day. Here are the winners, along with some practical tips for dealing with them.
About this time of year, most of your employees will start wasting a good chunk of their day filling out brackets in anticipation of the NCAA college basketball tournament. Why try to beat them when you can join them? Fisher Phillips has created a bracket for employers, but instead of predicting basketball results, we want you to tell us your biggest headaches for employers.
Not complying with current law can be expensive in today's legal climate. Employers should review their employee handbooks and employment-related policies to make sure they are up to date. More importantly, employers should draft their handbooks so their employees actually read them and follow their policies.
Let's face it, if you have conducted any number of interviews, you know that all things being equal on paper, the face-to-face meeting with an applicant can be invaluable. For years, I advised job seekers on how to achieve the "fit-in factor" with an employer during an interview. Like it or not, this is often the ultimate hiring criteria. Will this applicant fit in with the corporate culture? Will this person enhance the cohesiveness of out "team" atmosphere? Will this individual grow with the company and contribute towards its goals and success? The fit-in factor! Or, from the applicant's perspective, the most important response to the question: "Why should I hire you?"
On October 27, the National Labor Relations Board's General Counsel (GC) made national headlines with the issuance of an unfair labor practice complaint against American Medical Response Of Connecticut (AMR) accusing the company of unlawfully discharging an employee for posting critical remarks about her supervisor on her personal Facebook page.
In our last issue we provided an overview of the Immigration Reform and Control Act (IRCA), including I-9 requirements generally, along with a few special situations. In this article, we'll hone in on the E-Verify program, and government investigations.
Complying with U.S. immigration laws (both at the federal and state level) should be at the top of every employer's 2011 "To Do" list. Not only are you required to comply with the federal employment verification requirements for your employees, but in many states you are required to take additional steps to ensure that your employees are authorized to work. If you are a federal contractor or subcontractor, you have additional verification requirements.
While many of you have a wealth of experience with litigation – probably more than you want – other readers have been fortunate enough to go years or even decades in business without being part of a lawsuit. Some have recently moved into a new position that puts you front-and-center for lawsuit-related discussions. Those who are new to lawsuits are frequently surprised by the reality of the law, our court system, and litigation in general.
With the Holiday Season in full swing, many employers ask us about the wisdom of holding company parties where alcohol will be served. They generally want to know about the risk involved if an employee drinks too much at the party and misbehaves, or worse injures or kills someone on the way home.
It comes as no surprise that employers in the last several years have been forced to focus on survival in an extremely difficult environment. There have been sharply decreased (or nonexistent) profit margins, falling sales, reorganizations, reductions in force, retrenchment and reversion to the mean.
A police officer has sued the City of Chicago (on behalf of himself and others) seeking pay for time spent dealing with work-related phone calls, voice-mails, e-mails, text messages, and work orders via BlackBerry® devices and similar "personal digital assistants."
The controversy over discrimination in employment based on appearance is heating up again. Newsweek recently ran a special report entitled "The Beauty Advantage" that included a survey of hiring managers, 57% of whom said qualified but unattractive candidates will have a harder time landing a job. More than half of the managers in the survey advised job applicants to invest time and money in "making sure they look attractive" instead of on polishing a resume. In addition, Stanford law professor Deborah Rhode has authored a new book entitled The Beauty Bias that decries appearance discrimination and urges legal reforms to prohibit it.
Courts and litigants have struggled over how to figure overtime due to employees who were misclassified as exempt and who were paid a fixed salary for their hours worked. The federal Fair Labor Standards Act (FLSA) requires that non-exempt employees be paid 1.5 times their regular hourly rates for hours worked over 40 in a workweek. But for a misclassified salaried employee, satisfying this requirement necessitates a couple of threshold determinations.
You had a great idea for a product or service, or found a profitable niche to market your talents, and you're off and running. You incorporated your company, got the appropriate licenses, started marketing, and hired some employees. Everything's under control, right? Maybe not. We have seen numerous small businesses get tripped up by employment laws. While larger companies have issues, too, there are a few problems that we see more frequently with smaller businesses.
Even with the Employee Free Choice Act (EFCA) now seemingly DOA, major reform of labor law is not far off. Wilma Liebman and the three new Obama appointees, including Craig Becker, are now in the driver's seat at the National Labor Relations Board. Big Labor justifiably expects the Liebman/Becker-led Board to deliver on Obama's campaign promises and to revamp federal labor law in its favor.
Employers have a duty to reasonably accommodate requests by disabled employees for a modification of their job duties or the workplace environment in order for them to perform the essential functions of their position. Failure to engage in such a process can be an expensive proposition for an employer – as the City of Detroit found out in McBride v. The City of Detroit.
The new administration's focus at OSHA, and other government agencies, focuses less on compliance and increasingly more on enforcement. That means more inspections, more audits, and more fines.
Nothing weighs down an employer more than an investigation by the Wage and Hour Division of the U.S. Department of Labor.
In our last article we took a hard look at the easy-to-say concept that companies "value their employees" or that employees "are our most important asset." Easy to say, yes. But the reality is a bit more difficult – and time consuming. In Part 2 we'll look at this idea in more detail.
Even The Magic Eight Ball Can't Begin To Predict…
Over the past several years, we have relied upon the tried-and-true method of asking our Magic Eight Ball to help predict how newly-nominated Supreme Court Justices would treat employers once seated on the bench. In retrospect, the Magic Eight Ball turned out to be a fairly accurate predictor in examining Justices Alito and Sotomayor and their handling of labor and employment law matters. Now that President Obama's nomination of Solicitor General Elena Kagan appears to be nearing a successful conclusion, it is time once again to examine the next Justice of the Supreme Court to determine how she will treat employers.
For many years, some employers have chosen to "round" non-exempt employees' worktime in computing wages. This is emerging as another recurring claim in the continuing flood of lawsuits filed under the federal Fair Labor Standards Act. If you believe that ending such a procedure would cause your wage costs to increase, this is a danger signal.
Most employers say they value their employees. After all, it would sound pretty harsh for an employer to say that its employees are, with a few exceptions, a bunch of idiots who can seldom do anything right. Besides, what would such a statement say about the company itself?
When classifying their employees for overtime purposes under federal and state wage-hour laws, employers often rely on the equivalent of the "Duck Test": the job's title sounds professional and its duties require expertise and a high degree of skill – it sounds and looks like a professional job, and so it must qualify for the professional exemption even if most of its occupants lack advanced degrees.
Earlier this year, a federal appeals court ruled in favor of Hyundai Motor Manufacturing Alabama, LLC (HMMA) in a case brought under the Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA).
Assuming that there is a valid and enforceable past practice which meets the criteria above, such ways of doing things need not last forever.
As businesses look for ways to save money without lowering productivity, the benefits of hiring an independent contractor can be appealing for several reasons. Businesses who hire the services of properly classified independent contractors avoid many of the monetary responsibilities that attach to hiring employees: worker's compensation insurance, employment tax, and wage withholding responsibilities, amongst others.
Now that summer is upon us, you may be getting added pressure to relax your dress standards. Do you give in, or hold the line? Managers and H.R. practitioners are increasingly going with the latter approach, and here's why.
As summer approaches, companies begin preparing for morale-building activities such as company-sponsored picnics, amusement park outings and other activities meant to build camaraderie and reduce stress. But employers should remember that any injuries sustained during such company-sponsored activities may need to be recorded on their Occupational Safety and Health Administration (OSHA) injury and illness logs.
In our representation of employers with unionized work forces, we have seen a number of issues come up which cause employers needless hardship and expense, and which in our view could have been avoided by some thoughtful advance planning.
In an effort to reduce the nation's unemployment rate and spur job creation, President Obama signed the Hiring Incentives to Restore Employment (HIRE) Act into law on March 18 of this year.
In many states, restraints on the practice of a profession, business or trade (such as non-competition agreements) are considered valid, as long as they contain reasonable geographic and time restrictions. But that has not been true in California since 1872. In that year California settled public policy in favor of open competition, and rejected non-competition agreements. In the years since then, the law has evolved substantially, and two recent appeals court cases further refined the situation there. The Retirement Group v. Galante, and Dowell v. Biosense Webster.
A recent settlement of a complaint alleging sexual harassment, disability, and retaliation brought against an automobile supplier illustrates the potential liability for employers who even arguably violate the law.
For the past few weeks, the news media has been fixated on the Congressional investigation and hearings into purported defects in Toyota vehicles. But why is it such a big story? In reality, Congress has held hundreds of investigative hearings during the past few years on matters involving nearly every industry.
Employers are increasingly being forced to grapple with issues involving employees who state that they have a Gender Identity Disorder, or are "transgendered." Such individuals may claim that they are protected against discrimination in employment and that their employer must accommodate their need to be treated as a member of the sex they identify with.
We believe that many of the time-honored procedures relating to union organizing are going to change, although we don't know yet exactly how they will change.
Some say that life is at its best when you are able to combine your work with something that you love. For those of us in the labor and employment world who love movies, what better way to celebrate movie awards season than by reviewing some of the best (and worst) films, all of which have labor and employment law themes? In light of the upcoming Academy Awards presentation this month, and with a tip of the hat to Oscar, here is our listing from the First Labor and Employment Awards.
We all face uncertain economic times. As everyone knows, the federal government has passed the American Recovery & Reinvestment Act (ARRA) creating huge sources of funds to pay for various projects to "stimulate" the economy. Many companies, are now considering entering into contractual relationships with the federal government as contractors or subcontractors. The money is good! Invariably it comes with many strings attached.
Burger King is not necessarily the only place you can get it "your way." We believe that it's possible to have a more productive and committed work force and no union at the same time.
It will be no surprise if employees approach this year's office Super Bowl or NCAA Tournament pools with a little more trepidation. Last month, Fidelity Investments made national headlines when it fired four employees for participating in a fantasy football league. For those unfamiliar with it, fantasy football is a game in which participants are organized in a competitive league, earning "fantasy points" by using the statistics of real professional football players. Surprisingly, Fidelity's rationale for the firing was not so much that the employees were using company time and resources to participate in the league, but rather the company's designation of fantasy football as a form of gambling.
The number of H-1B audits will continue to rise in 2010, so H-1B employers should be prepared for unannounced site visits from U.S. Citizenship and Immigration Services (USCIS) to confirm the information submitted in H-1B filings. The USCIS Office of Fraud Detection and National Security (FDNS) has recently commenced an audit of the H-1B program. Under H-1B regulations, FDNS does not need a subpoena to investigate H-1B employers. One of the USCIS Service Centers has already transferred approximately 20,000 cases to FDNS as part of the H-1B assessment program. As a result, it's clear that site visits will continue and all H-1B employers must be prepared for an unannounced site visit at anytime.
Over the past year, federal and state governmental agencies have signaled their intent to more seriously investigate the misclassification of employees as independent contractors. For various reasons, employers often find it desirable to classify certain workers as independent contractors, but state and federal agencies often look at classification decisions very closely. While there are instances where individuals are legitimately classified as independent contractors, such individuals are often in fact misclassified employees – and penalties can be severe.
The American Recovery and Reinvestment Act, or ARRA, was a comprehensive piece of legislation designed to stimulate the economy during our "Great Recession." For employers, the most significant aspect of the new law involved the continuation of health care coverage through COBRA for those involuntarily terminated since September 1, 2008, with employees paying 35% of their premiums and employers on the hook for the remaining 65%. Although set to expire on December 31, 2009, Congress is considering extending the benefit and raising the employer contribution to 75%. Stay tuned for developments in the early part of 2010.
Mary Chapin Carpenter's song sums up a lot of wisdom about life and it also conveys some important truths in the employee relations area.
Instead of listing some of the highlights of 2009 (we'll be doing that in our January, 2010 issue), we thought we'd list here for your amusement some of the more far out facts in a few cases we handled this year. These aren't necessarily the cases that made new law or placed our clients the most at risk.
Depending on who you ask, PDAs are either the greatest workplace innovation since desktop computers, or the bane of an employee's existence. In today's wireless environment, BlackBerrys, iPhones, and other handheld devices increasingly provide employees with round-the-clock access to email from remote locations. While wireless gadgets allow us to maximize productivity in competitive economic times, they may also give rise to overtime, minimum wage and other wage payment claims. Managing tech-savvy employees has become the latest compliance challenge under the Fair Labor Standards Act (FLSA).
While our crystal ball is no better than anyone else's, change in our country's labor laws appears to be drawing ever closer. While EFCA as it was originally proposed with its elimination of secret-ballot elections is undergoing change, a lot of other tweaking has been going on lately in the Senate reflecting unions' desire to find some form of legislation which will pass and which will give them the stimulus they need to revitalize their efforts to halt the continuing loss of union jobs and members.
The Employee Free Choice Act continues to languish amid partisan squabbles in Washington, which means that its controversial elements such as card check and mandatory interest arbitration are unlikely to see the light of day this year. But as the discourse continues on Capitol Hill, attention is now shifting to the anticipated composition of the National Labor Relations Board (NLRB), which is responsible for administering national labor policy pursuant to the National Labor Relations Act.
We all know that union membership has been on the decline for decades. But with a new administration in the White House, and Democrat majorities in the House and Senate, employers should expect significant labor law reforms and dramatically different enforcement strategies that will make it easier for labor unions to organize employees.
Faced with an article on new employee orientation, the reader may have one or more of the following thoughts: "Has this writer read a newspaper in the last year? Isn't he aware that nobody in America is hiring?
With the economic downturn and political change in Washington, the past year has been difficult for American businesses. But in many ways, employers have benefited by the fact that legislators have been focused on bailouts, stimulus packages, and healthcare reform. These politically-charged subjects have kept the legislators' focus off of other big changes to the workplace that are waiting in the wings. Without these larger issues, legislators would have been acting on numerous proposed laws to change virtually every area of employment law.
From Facebook to LinkedIn to Twitter, it seems that internet-based communications are everywhere. Some argue that Web 2.0 technologies, such as blogging, micro-blogging, photo-sharing, video-sharing, life-casting and networking, help companies meet their customers' needs and that social media supports the democratization of knowledge, news and even professional sports. But there are risks associated with employee social media use; risks that you can manage with a clearly defined policy regarding media use.
Employees are working longer and harder to ensure that they keep the jobs they have. With unemployment hovering around 9.5% nationally and up to 13% in states such as Michigan, employees are doing what they can to stand out and avoid being cut in unfortunate, but sometimes necessary layoffs. After a reduction in force, the remaining employees' workload often increases to sustain production of employees that were let go. This increased workload, along with the pressure to keep their current job, leads some well-intentioned employees to arrive earlier, stay later, work through lunch, or take work home – regardless of whether they are being compensated. For employers, employees who work harder and longer can only be a good thing, right? Perhaps, but proceed with caution.
The Department of Homeland Security (DHS) took another step in its worksite enforcement efforts on August 19, 2009 when it announced its intention to rescind the embattled Social Security No-Match Rule, and to focus on increased compliance through its E-Verify, IMAGE and other employment verification programs. All of the enforcement activities that have taken place since the beginning of July should put employers on notice that the government is serious about enforcing the nation's immigration laws and getting tough on employers who hire unauthorized workers. Both DHS and Immigration and Customs Enforcement (ICE) have been busy ramping up their scrutiny of employers through increased audits and on-site inspections. It's more important than ever that you ensure that your company's I-9 forms are in compliance with the law and that you are not caught off guard if ICE pays a surprise visit.
With the disclosure of personal information now rampant on social networking sites like Facebook and Twitter, it sometimes seems like privacy is a relic of the past. Don't be fooled: privacy is a hot legal topic with serious implications for employers.
As more states enact laws allowing patients to ingest marijuana as a means of coping with various diseases and symptoms, the question quickly arises for human resources professionals about how this affects the employment relationship.
A review of the 2008-2009 Supreme Court decisions
Good news for employers this year! Well . . . at least as compared to last year's Supreme Court term. The majority of the employment cases decided by the Court this term can be considered a victory for employers, and even one of the decisions siding with employees is not all bad. So, after losing all but four of the eleven employment decisions decided last year, employers can finally breathe a welcome sigh of relief. Employers can claim victory in six cases, while only accepting defeat in one case and considering another case to be a mixed result.
Considering the widespread availability of computers and email to employees, it's hardly surprising that union organizers and pro-union employees now look to an employer's email system as a prime means of organizing. Here, in the context of an important new legal decision, we discuss options for lawful and effective management and control of your e-systems, including in particular your email systems. Many federal laws affect employer regulation of email and internet uses, such as the Federal Wiretap Act; the Electronic Communications Privacy Act; and the Stored Communications Act. In addition, state privacy laws and court decisions must be considered in preparing computer-use policies. In this article we'll focus strictly on issues arising under the National Labor Relations Act (NLRA).
Employers operating in New York are now subject to additional liability if they're found to have violated the New York State Human Rights Law (NYSHRL). Under a recent amendment, the provision in the NYSHRL that authorizes imposition of monetary penalties – previously applicable only for housing discrimination – has been expanded to cover employment-related cases.
It's likely that President Obama's recent nomination of Judge Sonia Sotomayor will be approved by the Democratic-controlled U.S. Senate, unless some unknown skeleton appears from her closet. Although Republicans may delay Sotomayor's confirmation hearings until the fall, there are simply not enough Republicans in the Senate to mount a serious challenge. Now the guessing game begins – how will Justice Sotomayor treat employers on the bench?
As if employers didn't have enough to worry about already, here comes something else to be concerned about: Others can tap into and listen to your cell phone calls.
In late April, less than 100 days after his term began, President Obama appointed a pair of union-side labor lawyers – both Democrats – to fill two of the three vacancies on the National Labor Relations Board (NLRB).
Most of the current focus among pro-management advocates is on the card-check provisions of the Employee Free Choice Act (EFCA). But don't lose sight of the fact that Congress is considering several other pro-labor legislative proposals that warrant scrutiny. One such proposal is the Patriot Corporations of America Act of 2009 (PCA) which, as drafted, provides employers with a Hobson's choice. One thing is clear: if enacted, the PCA will render EFCA moot with respect to the goal of increasing the success of union-organizing drives.
On March 25, 2009, four House Democrats introduced a bill that would create a new federal insurance fund to provide employees with up to 12 weeks of paid family and medical leave each year.
In today's tight economy, human resources professionals across every type of industry are feeling pressure to cut unnecessary costs and stretch already thin budgets. For those employers who have foreign-national employees on the payroll, this can mean investigating how to retain valuable foreign talent and expertise without having to incur any unnecessary expense. The most effective long-term way to minimize immigration-related expenditures is to ensure that the immigration status of all your foreign-national employees is kept current at all times.
When comprehensive immigration reform at the federal level stalled, many state governments decided to take matters into their own hands. Since 2006, many states have enacted laws which provide for employer sanctions related to hiring unauthorized workers – independent of any monetary or criminal sanctions available for federal immigration violations.
We were honored to learn that the Labor Letter is the 2009 Burton Award recipient for Best Law Firm Newsletter. In conjunction with the Association of Legal Administrators and the Library of Congress, the Burton Foundation selects the best law firm newsletter judged on factors which include writing style and technique, research, analysis, and content. Winners are selected by a panel of law school professors representing some of the nation's most prestigious law schools, as well as leading legal professionals and members of
You may say that it is in the company's files which are locked in _____'s office or the information is in a certain directory on the company's server. We hope you're right. But according to a recent survey, information you believe is confidential may also be in a number of other places as well, including your competitor's offices.
As the steady drumbeat of grim economic news continues, more and more employers are forced to face the unpleasant prospect of laying off valued employees to survive. When times are tough, the last thing a struggling business needs is a class-action lawsuit claiming that the former employees are entitled to 60 days' additional pay under federal or state law.
As those of you on our mailing list know, because of the difficult economic times many companies everywhere are suffering, our firm has decided not to schedule our traditional national seminars in 2009. Instead, in a series of smaller breakfast briefings and webinars throughout the country, we are "bringing it to you."
President Obama has selected Hilda L. Solis as his choice for Secretary of Labor. Solis has been a Democratic member of the U.S. House of Representatives for the past seven years, representing a district just east of Los Angeles, California. While Solis's confirmation was delayed because of questions concerning her husband's business, she is widely expected to be confirmed by the Senate. Labor leaders throughout the country are ecstatic; business leaders, not so much. In this article we'll take a look at some of the more important aspects of her career.
For several years, employers in various industries ranging from high tech to agriculture have known that they face a potential labor shortage. Not only do employers need to add hundreds of thousands of jobs in the coming years, they also will need to fill existing positions each year due to the retirement of baby boomers and normal attrition. The labor shortage will be particularly acute in the area of skilled labor.
- 3.1.09Hopefully, nothing in this article about the dangers of e-mails, memorandums, etc. will be news to you. You may even say to yourself "Who didn't know that?" Well, apparently some folks "forget" from time to time that information in e-mails, memorandums, and other documents is discoverable in litigation and may be the basis for large amounts of money changing hands. The information in them may or may not convey the author's actual beliefs or motivations – but it may be a jury who decides.
The difficult financial environment is causing many employers to consider cost-savings in the area of employee compensation.
As Democrats take control of the Presidency and expand their control of Congress, employers await dramatic changes to labor and employment law. In the House and Senate, Democratic lawmakers are expected to introduce a host of controversial measures, from the now well-publicized Employee Free Choice Act (EFCA) to the lesser known Employment Non-Discrimination Act (ENDA).
A new year, coupled with a new administration, means new legislation. Even though 2009 is barely a month old, the House of Representatives has already approved two bills which are significant to employers and their workforce. The Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act passed the House in January, and are aimed at reducing the discrepancy in employment compensation between women and men.
This year is shaping up to be one of dramatic changes in employment law. The stage is set for significant developments in immigration law once the new administration gets settled into office. What follows is some important information to keep in mind for the new year, and also a brief overview of what we expect to see on the immigration horizon.
With a tightening economy, those employers fortunate enough to be hiring can't afford to make bad hiring decisions. Among other problems, bad hires can result in high turnover, low production, workplace disruption, abuse of benefits and creation of legal risks.
Not complying with current law can be expensive in today's legal climate. One of your New Year's resolutions should be to review your employee handbook and employment-related policies to make sure they are up to date. When doing so, remember to draft your handbooks so that your employees actually read them and follow your policies.