Filing Bankruptcy May Not Stop EEOC Suits

Posted in Employment Counseling & Workplace Claims Prevention

Hoping that declaring bankruptcy will stay a discrimination or retaliation lawsuit against you brought by the U.S. Equal Employment Opportunity Commission (the “EEOC”) on behalf of a current or former employee? Think again.

On October 11, 2018, a Texas federal court in EEOC v. Tim Shepherd, M.D. ruled that filing for bankruptcy did not automatically stay a lawsuit brought by the EEOC against the debtor. In so ruling, the Northern District of Texas joined with the Third, Fourth, and Eighth Circuits (these appeals courts cover Arkansas, Delaware, Iowa, Pennsylvania, Maryland, Minnesota, Missouri, Nebraska, New Jersey, North Carolina, North Dakota, South Carolina, South Dakota, Virginia, the Virgin Islands, and West Virginia) as well as with various other district courts, including courts in Illinois, Kentucky, Michigan, Mississippi, New York, Ohio, and Utah, which have held the same.   Continue Reading

Court Says Employer Cannot Refuse to Hire Based on Medical Marijuana Use

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

A Connecticut federal district court has found an employer liable for discrimination for failing to hire a medical marijuana user based on a drug test.

Prior to the September 5 decision in Noffsinger v. SSC Niantic Operating Co., d/b/a Bride Brook Nursing & Rehab. Ctr., No. 3:16-cv-01938, 2018 U.S. Dist. LEXIS 150453 (D. Conn. Sept. 5, 2018), https://www.leagle.com/decision/infdco20180906954, it was widely believed that if an employer is subject to the federal Drug-Free Workplace Act (“DFWA”), they do not have to accommodate the use of medical marijuana.

Perhaps not. In Noffsinger, the Plaintiff suffered from PTSD after having a car accident. To treat her PTSD, doctor prescribed her marijuana in the evenings, and plaintiff registered as a qualifying patient with the state.

Plaintiff was recruited to be the director of recreational therapy at Defendant’s nursing home. Her interview was successful, and she was offered the position subject to the completion of pre-employment screenings. During the pre-employment screenings, Plaintiff disclosed that she took prescription medical marijuana and underwent a drug test. After Plaintiff tested positive for marijuana, Defendant rescinded its job offer. Continue Reading

If You Thought Website Accessibility Was Only for Your Customers—Think Again

Posted in Disability, Employment Litigation

Just how inclusive is your workplace? Do you use online applications? If visually impaired applicants cannot access your online application, chances are that your workplace fails to include these individuals. That means you could be both missing out on qualified applicants and making your business a target for claims.

Over the years, in an effort to simplify the processing of employment applications, many employers have turned to online platforms to handle those applications. Among other things, this allows easier filtering of applicants and their qualifications for the position(s) in question, and streamlines an otherwise daunting administrative task. But, could your online application process be filtering out individuals before they have an opportunity to complete it? As with retailers who sell their wares online, employers who use online applications can be targets for litigation involving a visually impaired applicant—or potentially a group of applicants—who was unable to apply for a job simply because he or she could not read the content of an online application.  While public accommodation cases involving potential customers result in only the payment of the claimant’s attorneys’ fees, cases involving job applicants who have been denied the ability to seek employment because of a physical impairment can result in significant amounts being paid in damages.  Continue Reading

Covert Employees: Recording Conversations at Work

Posted in Employment Counseling & Workplace Claims Prevention, Employment Investigations & Audits, Employment Litigation, Privacy

Can an employee secretly record conversations with a co-worker, supervisor, human resources manager or executive and use that recording in a claim or lawsuit against his/her employer?  It depends.

First, where you live is important. While the federal Wiretap Act, as amended by the Electronic Communications Privacy Act of 1986, permits recording as long as one party consents, state laws covering audio surveillance vary widely. In some states only one party need consent to the recording, but in other states both / all parties to the recording must consent.  If you’re in a “one-party” consent state, you are generally permitted to record a conversation even without the other person’s knowledge or consent, whereas in a “two- or all-party consent” state, recordings need the consent of all parties involved.  Continue Reading

Restaurant Industry Takes On Tip Credit “80/20 Rule”

Posted in Employment Investigations & Audits, Employment Litigation, Wage & Hour

A restaurant advocacy group has sued the Department of Labor challenging its “80/20 Rule,” which limits the use of a tip credit wage where workers spend more than 20% of their time doing work not directly related to tip-generating activities.

The Restaurant Law Center, a public policy affiliate of the National Restaurant Association and the Texas Restaurant Association, has filed suit (Restaurant Law Center v. U.S. Dept. of Labor, No. 18-cv-567 (W.D. Tex. July 6, 2018)) in Texas seeking to declare unlawful the 80/20 Rule, which is part of DOL’s Field Operations Handbook. The Handbook provides the DOL’s Wage and Hour Division investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance.

The lawsuit is the latest development in the long struggle between the restaurant industry and government over using tips to comply with the Fair Labor Standards Act’s mandate to pay minimum wage and overtime to workers who are not exempt under one of the recognized exemptions.  Continue Reading

Waitlisted: U.S. Employers Face Longer Delays for Hiring H-1B Workers

Posted in Immigration Planning & Compliance

Employers are alerted the extended suspension of Premium Processing will mean postponed start-dates for H-1B workers well beyond the expected October 1 annual start date. Moreover, because H-1B change of employer requests filed on or after September 11, 2018 will be subject to “normal” processing times, ranging anywhere from four to six months, employers better move fast to file these H-1B petitions using Premium Processing before September 11. For employers looking to benefit from Premium Processing after October 1, 2018, the government will require deeper pockets to cover the balances due for expedited adjudication.

Employers waiting to hire foreign professional workers are left in limbo over are the latest announcement by the U.S. Citizenship and Immigration Services. The ever-increasing H-1B adjudication process poses potentially disastrous risks for employers, foreign workers and H-1B hopefuls. On August 28, 2018, the Federal Immigration Agency announced it will be prolonging the previously advertised  temporary suspension of Premium Processing for certain H-1B cases for an additional six months. The pause on premium processing for H-1B worker visas subject to the fiscal year 2019 lottery was originally slated to last until September 10, 2018, but that suspension is now being extended through an estimated date of February 19, 2019. Continue Reading

Can Employers Refuse to Hire Smokers?

Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation

Are smokers in a protected class? Can a company refuse to hire them? After all, studies have repeatedly shown that smokers have higher absenteeism, are less productive and carry higher healthcare costs than non-smokers.

Not so fast. While smokers are not a protected class under federal anti-discrimination laws, statutes in more than half the states and the District of Columbia would potentially prohibit implementation of a policy against hiring smokers.

Bans on workplace smoking are nothing new. In 1986 two studies linked exposure to second-hand smoke to lung cancer and respiratory illnesses.  At that point, complete bans on workplace smoking were rare, but by 2010, dozens of laws prohibited smoking in indoor workplaces. By 2012, a number of hospitals, universities and other businesses had taken the next step and instituted no-nicotine hiring policies. Continue Reading

Job References in the #MeToo Era: Employers In Some States Now Have Privilege to Say #HimToo

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

Employers seeking to avoid liability often stick to dates of employment and position held when responding to reference requests. But there is a new trend in legislation offering protection to employers who disclose to prospective employers that the candidate was the subject of a sexual harassment investigation.

For example, effective January 1, 2019, California employers will be protected by an additional privilege when providing job references. AB 2770, signed into law last month by California Governor Jerry Brown, amends California law regarding the common interest privilege and specifically protects employers from defamation and tortious interference claims if they advise a prospective employer that the applicant was the subject of a sexual harassment investigation based on credible evidence. California law already protects employers’ communications regarding an applicant’s job performance and employee misconduct, but AB 2770 makes clear that sexual harassment investigations are included in the privilege. For the privilege to apply, such references must also be provided without malice. The new law also permits California employers to disclose whether or not they would rehire the applicant. Continue Reading

Employing Anyone in New York? New Anti-Harassment Laws Taking Effect

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

All employers with even a single employee working in New York City or New York State will be required to meet requirements designed to address sexual harassment under new city and state laws.  Employers with an employee working in New York City must post a formal notice regarding harassment in a conspicuous location on their premises and distribute a harassment fact sheet to newly hired employees beginning September 6, 2018, and implement new training programs next April under a new city ordinance.  Employers with an employee working in New York State must implement new harassment training effective October 9, 2018, under a new state law. Continue Reading

One Visit and Vague Plans to Return Not Sufficient to Allow ADA Access Claim

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

Businesses might see a ray of hope in a recent federal appellate court decision that rejected the ability of a wheelchair-bound patron and “tester” to pursue her claim against a property owner and shop in Cocoa Beach, Florida.

There is a veritable cottage industry of plaintiffs who bring claims against businesses, even those they have never visited. In an effort to stem the tide of such “drive by” claims, some states have enacted laws requiring businesses be given the opportunities to correct technical violations first, and a bill remains pending before Congress that is designed to achieve the same result.  And now, a recent decision from the 11th Circuit Court of Appeals (covering Florida, Georgia and Alabama), offers some additional support. Continue Reading

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