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

NLRB G.C. Issues Guidance on Handbook Rules

Posted in Employee Handbooks & Policies

Standard employer workplace policies may once again pass muster, following a Memorandum issued this summer by the NLRB Office of General Counsel.

Although Memorandum GC 18-04 is addressed to NLRB personnel, its guidance for how to analyze charges alleging that workplace policies violate the NLRA offers some clarity and reassurance to employers.

Employers may recall that beginning in 2004, the NLRB took issue with a variety of common provisions in employee handbooks, including rules regarding confidentiality, non-disparagement, social media, disruptive conduct toward supervisors and coworkers, and communications with the media and other third parties. The NLRB, in a series of decisions, found that facially neutral policies – even in non-unionized workplaces — would violate employees’ rights to engage in “protected concerted activity.” Such activity would include when two or more employees take action for their mutual aid or protection, including discussing terms and conditions of employment. Continue Reading

Must An Employer Grant a Request for Indefinite Leave?

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

What do you do when an employee wants leave for a medical condition, but has already exhausted or is not eligible for leave under the Family and Medical Leave Act? Tread carefully.

Maybe you’re not a covered employer under the FMLA. Maybe the employee is not eligible for FMLA leave, or has already exhausted all leave available under the FMLA. Or maybe you have a policy that says the maximum amount of leave any employee can take is 12 weeks, and the employee has already exceeded that limit.

Before terminating an employee in such a circumstance, employers with 15 or more employees must analyze the request further under the Americans with Disabilities Act. Although employers are allowed to have leave policies that establish a maximum amount of leave, they may have to make exceptions for employees who require more leave because of a disability.

The EEOC takes the position that “no-fault” maximum leave policies (under which employees are automatically terminated after they have been on leave for a certain amount of time) are unlawful. That is, an employer may not automatically terminate an employee after a certain amount of leave has been exhausted. The EEOC states that the employer must provide additional leave time under the ADA after FMLA leave is exhausted, unless: (1) granting the leave would result in undue hardship, or (2) there is another effective accommodation that would enable the employee to perform the essential functions of his or her position.  Moreover, according to the EEOC, in evaluating what constitutes an undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, can be returned to the new position. Continue Reading

DOL Eases Standards for Unpaid Internships

Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention

With summer internships in full swing, it’s high time to revisit the Department of Labor’s recently-revised guidance on unpaid internships.  Guidelines issued in January abandoned the Department’s prior test – which required employers to meet each of six factors — in favor of a seven-factor test granting employers more flexibility to implement unpaid internship programs.

Under the new “primary beneficiary test,” whether the internship is paid ultimately turns on whether the intern or the employee is the “primary beneficiary” of the internship. When the intern is the primary beneficiary, the internship need not be paid. In contrast, when an internship primarily benefits the employer, it must be paid.

While acknowledging that the test is “flexible,” guidance from the Wage and Hour Division sets out seven factors for the primary beneficiary test: Continue Reading

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