Category Archives: Employment Counseling & Workplace Claims Prevention

Subscribe to Employment Counseling & Workplace Claims Prevention RSS Feed

New, Even Broader, Joint Employer Test Adopted

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 … Continue Reading

State and Local Governments: Battling for Control of Workplace Laws

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. … Continue Reading

Whistleblower Split Widens

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 … Continue Reading

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

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 … Continue Reading

Loose Lips Can Constitute Interference with FMLA Leave

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

States May Step Into Void Created by Demise of DOL’s Overtime Rule

Since the Department of Labor announced the new overtime rule last May, we have been closely following its rocky implementation in a series of posts. Presently, the rule – which would render an estimated 4 million workers eligible for overtime by effectively doubling the salary threshold for exempt employees to $47,476 – remains stayed by a federal court in … Continue Reading

What’s in a Pronoun? Liability for Employers

Political correctness in the workplace has become increasingly complex. Employers who have referred to transitioning employees with the wrong pronoun have found themselves in the crosshairs of the EEOC. But what about those employees who do not identify with either gender and prefer a gender neutral pronoun? Say, what?… Continue Reading

Stress Claims Stressing Employers Out

Let’s face it: work can be stressful. So what’s an employer to do when an employee requests a stress-free or less stressful work environment as an accommodation under the Americans with Disabilities Act? As always, it depends. While the ADA generally requires employers to engage in the interactive process to determine whether they can accommodate employees with disabilities, there occasionally … Continue Reading

Medical Marijuana and the Workplace

With the growing list of states legalizing marijuana, are workplace drug policies up in smoke? As the new year begins, Arkansas, Florida and North Dakota join the growing list of states that have legalized medical marijuana. Currently, 28 states* and Washington, D.C., have legalized marijuana use for certain medicinal purposes, and eight states** and the District of Columbia have legalized … Continue Reading

EEOC Updates Guidance on National Origin Discrimination

As we observed (here), the heated tone of the recent presidential election poses unprecedented challenges for employers attempting to manage employee interactions in the workplace, especially when issues related to immigration and national origin inevitably come up. Right on cue, on November 21, 2016, the EEOC, emphasizing the rising numbers of immigrant workers in many of the United … Continue Reading

The New Salary Regulations: The Saga Continues

While employers took solace from the Nov. 22 nationwide preliminary injunction which blocked implementation of a controversial rule increasing the salary threshold for employees to be exempt from overtime, the battle is not over. The Department of Labor filed its notice of appeal December 1, the same day the new salary regulations were to take effect.… Continue Reading

Managing Employee Interactions in the Wake of the Trump Election

You may have been able to keep politics away from the annual Thanksgiving gathering of relatives with diverging viewpoints, but the workplace requires daily interaction. What’s an employer to do with emotions still running high from a divisive election?  Employers should be vigilant and insist that all employees act with professionalism and respect. Employers should ensure that each employee, regardless … Continue Reading

Catch-22 for Franchisors: The Joint Employment Dilemma

As government agencies steadily expand the concept of  joint employment, franchisors increasingly find themselves in a difficult position. Since August 2015, when the NLRB ruled in Browning-Ferris that entities with the ability to exercise direct or indirect control over workers can be joint employers (prior blog post here), franchisors have experienced increased scrutiny from both federal agencies and the … Continue Reading

The Age of “Big Data”: How Your Electronic Applicant Searches May Be Complicating Your Talent Search

How do you hire only the “best” employees? How does any employer find the time to “vet” the hundreds or even thousands of job seekers applying for positions? A number of employers have turned to “big data” – the use of various algorithms to quickly analyze competing employees for coveted positions. These algorithms contain series of predictive data variables that … Continue Reading

Refereeing FMLA Leave: When Making The Call To An Employee On FMLA Leave Is Out Of Bounds

Can I call an employee to answer a work-related question while he is out on FMLA leave recovering from surgery? If he wants to join a conference call, can I let him, or am I exposing the company to a claim that we “interfered” with his FMLA leave? Employers must pause for a time out to analyze the potential consequences … Continue Reading

Employers Take Note, EEOC Issues Final Retaliation Guidance

Employers should review their policies concerning retaliation and Americans with Disabilities Act (ADA) interference in light of the new Enforcement Guidance on Retaliation published by the EEOC this week.  As retaliation is now the most frequently alleged basis of discrimination, employers should take note. … Continue Reading

Why You Should Make Your Website ADA Accessible Now

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 … Continue Reading

EEOC Announces Launch of Online Charge Status System

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 http://www.eeoc.gov/employees/charge_status.cfm. This system also allows charging parties to electronically … Continue Reading

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

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 … Continue Reading

EEOC Updates Guidance on Accommodating Pregnant Workers

The Equal Employment Opportunity Commission has issued revised pregnancy discrimination guidance setting forth a framework for assessing how far employers must go in accommodating pregnant employees, following the Supreme Court’s ruling earlier this year in Young v. United Parcel Serv., Inc.  In that case, the Court held that, although a policy of providing light duty only to certain workers was … Continue Reading

Can Employers Regulate Employees’ Off-Duty Conduct?

Employees’ off-duty conduct is their own business – until it affects your business.  But where should the line be drawn?  When should an employer attempt to regulate employees’ off-duty conduct?  Can an employer regulate off-duty conduct without running afoul of employment laws?

Employees’ outside relationships, political activism, use of social media, drug and alcohol use, and other off-duty behaviors can … Continue Reading

LexBlog