New York State Increases Minimum Wage and Enacts Paid Family Leave

Posted in Medical & Other Leaves, Wage & Hour

For employers with employees in New York State, the cost of doing business in the state is going to go up due to recent legislation.  New York State recently passed the following two important changes in the law which will impact all employees in the state: (a) an incremental increase in the minimum wage, and (b) paid family leave. Continue Reading

Representative Evidence May Or May Not Be Sufficient

Posted in Wage & Hour

A recent U.S. Supreme Court case holding that representative evidence can be used in class/collective actions to the same extent that it could be used in an individual action may not have the broad application hoped for by the plaintiff’s bar. In Tyson Foods, Inc. v. Bouaphakeo, the Court held it permissible for the class representatives in a wage and hour class/collective action to utilize an expert report to establish the average time spent by workers donning and doffing protective gear in a pork processing plant in Iowa. The workers were required to wear protective gear, but which gear depended on the tasks a worker performed on a given day. Tyson compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities. Continue Reading

Why You Should Make Your Website ADA Accessible Now

Posted in Employment Counseling & Workplace Claims Prevention

Even though the deadline for creating accessibility standards has been pushed back to 2018, private businesses are at risk now if they have not yet taken measures to ensure that their websites can be accessed by individuals with disabilities. In fact, just last month a blind man in California successfully argued that a Colorado-based luggage retailer failed to make its commercial website accessible to the visually impaired in violation of the Americans with Disabilities Act and a California disability law. In Davis v. BMI/BND Travelware, Case. No. CIV-DS-1504682, the court granted judgment to the plaintiff before trial, finding that he “presented sufficient evidence that he was denied full and equal enjoyment of the goods, services, privileges, and accommodations offered by Defendant because of his disability.” Continue Reading

EEOC Announces Launch of Online Charge Status System

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

Employers can now electronically monitor and respond to EEOC charges of discrimination via a secure online portal. This means employers can receive updates and transmit information to the EEOC much more quickly than in the past. The EEOC’s Online Charge Status System is now available and can be accessed at This system also allows charging parties to electronically monitor the status their charge. The EEOC piloted this system last year in a select number of EEOC offices. Now, the system provides electronic access to current information on charges filed on or after September 2, 2015 with EEOC offices nationwide. The online system is not available for charges filed before this date or for charges filed with the EEOC’s state and local Fair Employment Practices Agencies. Continue Reading

EEOC Tells Employers To Reconsider Their Position On Position Statements

Posted in Employment Discrimination Harassment & Retaliation

Employers should be specific in position statements they submit to the EEOC, and must recognize that those position statements and supporting documents will now routinely be sent to the charging party for further response, under new guidelines and procedures issued recently by the EEOC. Continue Reading

Illinois Restrictive Covenants: Special Rules Apply To Non-Compete and Non-Solicit Agreements

Posted in Non-Compete & Trade Secret Litigation

All employers doing business in Illinois must be aware of a special rule regarding the enforceability of covenants not to compete, which may apply, depending on where their business is located. In Fifield v. Premier Dealer Servs., 2013 IL App (1st) 120327, the Illinois First District, which covers Cook County (including Chicago), held that an employee must generally remain employed for at least two years in order for a restrictive covenant to be enforceable. That decision applies in Cook County, and has also since been followed in the Illinois Third District, which covers 20+ counties in North-Central Illinois.  Continue Reading

EEOC Files First Sex Orientation Discrimination Lawsuits

Posted in Employment Discrimination Harassment & Retaliation, Employment Litigation

For the first time since announcing last year that workplace discrimination against lesbian, gay, and bisexual workers violates Title VII of the Civil Rights Act of 1964, the EEOC has filed two sex discrimination cases against private employers based on sexual orientation. Continue Reading

Eleventh Circuit Announces New Standard for Employers to Win Cases on Summary Judgment

Posted in Employment Discrimination Harassment & Retaliation

Employers in Florida, Georgia, and Alabama should adjust their analysis of discrimination claims in light of a recent court decision that changes the legal standard for employers seeking early dismissal of discrimination cases. Previously, employee claims based on circumstantial evidence were evaluated under a burden-shifting framework. An employer could win summary judgment before trial by showing that a) it had a legitimate, non-discriminatory reason for taking action against an employee and b) the employee did not prove that reason was a pretext for the real reason, discrimination. However, in Quigg v. Thomas, et al., No. 14-14530 (Feb. 22, 2016), the Eleventh Circuit (which covers Florida, Georgia, and Alabama) said that was the wrong framework for analyzing a claim where the employee alleges the employer’s motives were mixed. If the employee claims that the employer had both lawful and discriminatory motives for the action, the employee then “need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) [a protected characteristic] was a motivating factor for the defendant’s adverse employment action.” (Emphasis added).

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Calling all Employers with Remote Employees: Is Your Company Counting Them In Accordance With the FMLA?

Posted in Employee Benefits, Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention

Does your company have employees who work remotely in a city, or a state, where your company does not maintain a physical location? Do you count those employees for purposes of determining whether the company has to offer leave under the Family and Medical Leave Act (FMLA)? Well, in what may come as a surprise, you must properly include all those employees in your calculation of FMLA eligibility. Continue Reading

Sleeping on the Job Not Enough to Bar Transgender Bias Suit

Posted in Employment Discrimination Harassment & Retaliation

A jury should decide whether a transgender employee caught sleeping on the job in a customer’s car was unlawfully terminated because of her transgender status, the Eleventh Circuit Court of Appeals has ruled. Although the employer had initially persuaded the trial court to rule in its favor, a three-judge  panel from the Eleventh Circuit (covering Florida, Georgia and Alabama) reversed that ruling and said the employee submitted enough evidence of unlawful motivation to get to a jury. Continue Reading