New, Even Broader, Joint Employer Test Adopted

Posted in Employment Counseling & Workplace Claims Prevention, Labor Relations, Wage & Hour

Employers may think the concept of joint employer being pushed by the National Labor Relations Board (NLRB) is overly broad, but a recent decision by a federal appellate court in Richmond, Virginia adopts the most expansive definition yet. Last month the federal appellate court pronounced that two entities or individuals should be considered a joint employer of the same worker and therefore, both liable for wage violations under the federal Fair Labor Standards Act (FLSA), unless the two entities are “not completely disassociated” with respect to the terms and conditions of the worker’s employment.   Continue Reading

State and Local Governments: Battling for Control of Workplace Laws

Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

While local governments are increasingly seeking to regulate the workplace, many states are taking aggressive action to counter these efforts. Over the past several years, more than 20 states have enacted preemption laws which prevent such localities from increasing the minimum wage, expanding anti-discrimination protections, requiring employers to provide paid sick leave, and regulating employee meal breaks and rest periods. In many instances, it appears that these state laws are a direct response to recent efforts by their own local governments to pass worker-friendly ordinances which would provide benefits above and beyond that which is required by state or federal law. Continue Reading

Legislators Jump into Sexual Orientation Discrimination Ring

Posted in Employment Discrimination Harassment & Retaliation

Employers take note: On the heels of the Seventh Circuit landmark and controversial ruling last week that Title VII does, in fact, prohibit sexual orientation discrimination in the workplace, a group of prominent Democratic U.S. Senators and representatives from New Jersey, Oregon, Rhode Island, and Wisconsin have jumped into the fray, attempting to use the decision to convince the courts in other jurisdictions to adopt the same conclusion. Continue Reading

Whistleblower Split Widens

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Whistleblower & Retaliation Claims

Employers take heed: there is a further split in authority as to whether whistleblowers are protected under the Dodd-Frank Act if they only report securities-law violations internally, and not to the Securities and Exchange Commission. A recent decision from the Ninth Circuit Court of Appeals adds to the existing split among federal appellate courts as to who is entitled to whistleblower protections.  Continue Reading

Proposed Employee Wellness Legislation Might Undermine Protections of GINA

Posted in Employee Benefits, Employee Handbooks & Policies, Privacy

Employees who don’t want to disclose genetic information about themselves and their families to their employers may have to pay a stiff price for that privacy in the future. The Preserving Employee Wellness Programs Act (H.R. 1313), a GOP-sponsored bill currently under consideration in Congress, could dismantle the employee privacy protections of the Genetic Information Nondiscrimination Act (GINA). Continue Reading

It’s Audit Season: Have You Audited Your Website’s Accessibility?

Posted in Disability, Employment Counseling & Workplace Claims Prevention, Employment Litigation

Audit season is in full swing. Businesses now are working with auditors on their tax and other audits to ensure compliance with various financial regulations. But there is one audit that many businesses have yet to undertake and have continued to miss over the last few years: the accessibility of their website. Many businesses continued to be stunned when receiving a demand letter relating to their websites. Last year, we brought news regarding the developments relating to website accessibility under the ADA and its enforcement efforts. Since that time, a new presidential administration has emerged with a set of enforcement priorities that differ from the previous administration. Previously, the DOJ estimated that web accessibility standards for private businesses would be released during its 2018 Fiscal Year, but in this new administration, the DOJ’s tabled projects may be further delayed—including those relating to website accessibility.

Don’t mistake the DOJ’s delay to mean that you should further delay your own accessibility audit. As a start, business have made use of web tools such as the WAVE Web Accessibility Evaluation Tool to provide a cursory, preliminary audit to determine where accessibility issues may lie. This audit will give a glimpse into the conversation that businesses will need to have with web accessibility experts and their internal web developers to determine a remediation plan. In light of the expansion of coverage of websites under the ADA, the time is now for an audit of your website to work toward compliance. As you begin your work toward compliance, be mindful of the continuing developments in web accessibility standards. The World Wide Web Consortium, commonly known as the W3C, is working to further refine its standards on website accessibility to account for improvements made in technology. In late 2016, the W3C announced that it was working to update the standards under the Web Content Accessibility Guidelines (“WCAG”), Version 2.0. In the W3C’s pipeline is a Version 2.1 of the WCAG, and is designed to build upon the technological standards under Version 2.0, which originally was developed in 2008.

We will discuss these and other developments on website accessibility, including the legal frameworks that have created the landscape for the current enforcement, at our upcoming webinar “ADA Developments In Website Accessibility – Why Not Knowing Could Cost You” on March 28 beginning at 12:00 noon, EDT. Register today to join in the discussion!

Loose Lips Can Constitute Interference with FMLA Leave

Posted in Employment Counseling & Workplace Claims Prevention, Medical & Other Leaves

Disclosure of medical confidential information can result in a Family and Medical Leave Act (FMLA) interference claim, even when the employer does not actually interfere with the employee’s right to take FMLA leave. So held a federal court recently in Fort Myers, Florida in the case of Holtrey v. Collier County Board of Commissioners. Continue Reading

Will The NLRB’s Protection of Unacceptable Conduct Last?

Posted in Employee Handbooks & Policies, Labor Relations

It’s ironic, isn’t it? While the EEOC could find an employer liable for tolerating racist or sexist remarks by employees, the NLRB has repeatedly found employers liable for failing to do so under the guise of protecting “concerted activity” by employees. Will the agency’s rulings against employers be supported by the courts? And will the pattern of protecting such employee conduct continue under the new Administration? Continue Reading

Workplace Violence Policy and Prevention Program Is a Smart Start

Posted in Workplace Safety & OSHA

Recent news reports of active shooter situations provide a stark reminder: employers, regardless of size or industry,  should have an action plan for responding to a threatening or violent situation in the workplace. Yet, many employers do not even have a workplace violence policy, let alone prevention or response plans.  Continue Reading

Up Against the Wall: New Immigration Measures Impact Employers

Posted in Immigration Planning & Compliance

Employers will likely experience new challenges as the Trump Administration continues to expand its immigration enforcement efforts. Immigrants–including lawful permanent residents—can be subject to deportation for relatively low-level, minor offenses such as jaywalking and driving without a license. Employers can be subject to criminal penalties if a foreign national employee inadvertently falls out of legal status. Employees with family members who have entered the United States illegally can be subject to severe fines and criminal penalties for harboring their undocumented relatives. Already, news reports are revealing that some employees have stopped reporting to work for fear of being detained or deported. These are just a few of the consequences of two recent memoranda issued by the U.S. Department of Homeland Security (DHS) implementing President Trump’s January 25 Executive Orders. Continue Reading

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