Religious Accommodation Requests: What Employers Should Know

Posted in Employment Discrimination Harassment & Retaliation

Employers must walk a tightrope when dealing with an employee or applicant seeking a religious accommodation as demonstrated by two recent court cases with opposite results.

In one case, a federal appellate court decided that a job applicant whose offer was rescinded after she asked for a religious accommodation did not have a retaliation claim because her request did not amount to “opposition” of an unlawful employment practice under Title VII of the Civil Rights Act. In the other, a jury awarded $21 million to a hotel dishwasher who was forced to work Sundays after being accommodated for her religion for years. Continue Reading

Fishing in the Company Pond

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

Valentine’s Day is here, and office romances are either casting in the air, already afloat, or over and, in any event, likely the subject of the latest office gossip. In honor of this holiday, this blog explains why employers should have a policy on romantic workplace relationships and what it should include. Continue Reading

State of the “Unions”: 2018-2019

Posted in Labor Relations

If there were a State of the “Unions” report, it would no doubt highlight unusual protests, increased organizing and widespread strikes in 2018, along with a forecast for a labor board likely to give more latitude to employers in 2019.

Groups of employees protesting against the actions of their employers are not unusual. However, two protests by groups of Washington, DC employees in 2018 were extraordinary. The NLRB Professionals Association, representing career staff NLRB employees, picketed speeches made by the NLRB Chairman and the NLRB General Counsel. According to their leaflets, they criticized the NLRB’s “systematic attacks on the employees . . . and the agency (NLRB) as a whole.” They further expressed concern regarding their upcoming collective bargaining negotiations, which they anticipated would include NLRB management’s demands to reduce compensation, benefits and job protections. The second unusual group of protesting employees was represented by the Office of Professional Employees International Union. They picketed their employer, the AFL-CIO, which found itself in the ironic position of being an employer opposing the concerns by its own employees over matters including job security and increased economic benefits. Continue Reading

The NLRB Rolls Back the Definition of “Protected, Concerted Activity”

Posted in Labor Relations

Workers who complain in a group setting will no longer be presumed to be engaged in “protected concerted activity” under the National Labor Relations Act based on a new decision issued last month. The decision means that fewer employees in the workplace – whether unionized or not – will be covered by the protections of the NLRA. Continue Reading

The Outlook for Non-Compete Agreements in 2019

Posted in Employment & Consulting Contracts, Non-Compete & Trade Secret Litigation

As employers gear up for 2019, they should be mindful significant reforms in the area of non-compete law that took place in 2018. Although non-competes are widely used and enforceable in the majority of states, there is a growing trend toward limiting the use of non-competes in favor of employee mobility. In recent years, several states have proposed, passed, and enacted laws restricting or prohibiting these types of agreements and many courts have been increasingly reluctant to enforce them against employees. In addition, attorneys general across the country have been investigating employers’ use of broad non-competes and pushing employers to limit their use. Continue Reading

Illinois Expands Employee Rights and Imposes New Obligations on Employers

Posted in Employee Benefits, Employee Handbooks & Policies, Medical & Other Leaves

New Illinois Expense Reimbursement Obligations

Joining employers in California and a growing number of other states, Illinois employers must now reimburse their employees for all expenditures or losses incurred within the scope of their employment which were authorized or required by their employer. A failure in compliance could result in severe penalties and the payment of employees’ attorneys’ fees.

Effective January 1, 2019, Illinois employers must reimburse employees for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” “Necessary expenditures” means all reasonable expenditures or losses required of the employee in the discharge of employment duties that inure to the primary benefit of the employer.

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New Year, New Wellness Program Rules

Posted in Disability, Employee Benefits, Employee Handbooks & Policies

Employers with established wellness programs that collect health information and/or require a medical exam can no longer rely on the EEOC regulations to justify that incentives provided under their wellness programs are voluntary. On December 20, the EEOC published a final rule (83 Fed. Reg. 65296) vacating the rules that allowed employers to offer those financial incentives to workers who participated in those wellness programs.

The EEOC entered the wellness program regulation arena in 2016 with rules under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The ADA and GINA Wellness Program Rules required employers sponsoring wellness programs that collect health information (such as through a health risk assessment) and/or require a medical exam (for example, a biometric screening) to satisfy certain requirements. One such requirement involved limiting incentives under the wellness program to 30% of the cost of health coverage so that the wellness program would qualify as a “voluntary” employee health program. Continue Reading

Political Speech Inside (and Outside) of the Workplace

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Litigation, Social Media

The new year has brought a new Congress, an ongoing government shutdown, and rumblings of the first formal campaign announcements for 2020. With more voters participating in last year’s election than ever before, employers should be prepared to handle issues arising from employees’ political speech and conduct.

The 2018 midterms were the first in history with a turnout surpassing 100 million voters, tallying a percentage turnout not seen in a midterm since at least 1970. Even though this past election is now (mercifully) behind us, there can be no rest for the weary; voters are more engaged – and more vocal – than ever. Employees are sharing their political opinions inside and outside of the workplace. This may be particularly problematic for employers who either hold different values or who do not wish for an employee’s speech or conduct to be attributed to the company as a whole. Continue Reading

Changes Coming Soon to H-1B Work Visa Program?

Posted in Immigration Planning & Compliance

Employers are facing a crackdown on the H-1B visa program with a long-awaited immigration reform in the pipeline. On November 30, 2018, Department of Homeland Security (DHS) announced a notice of proposed rulemaking that seeks to (1) increase the number of H-1B visa recipients who have master’s degrees or higher from U.S. academic institutions; (2) ensure “a more meritorious selection” of H-1B visa beneficiaries; and (3) create a modernized online registration process for employers from which the lottery selection process would be conducted.

Employers are alerted that the proposal could result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected H-1B visa recipients with a master’s degree or higher from U.S. academic institutions. After the public comment period ends on January 2, 2019, the federal agency plans to have the changes in place by April 1, 2019.

The H-1B visa program allows U.S. employers to temporarily employ highly skilled foreign workers for a maximum of six years. Typically, after the six-year period ends, the H-1B worker must change to another temporary status, seek lawful permanent residence in the United States, or depart the United States. Continue Reading

Arbitration Agreements: Tips for Enforceability

Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation

Arbitration agreements can be an effective tool to avoid costly litigation, and, in particular, to prevent class and collective actions. But, will your arbitration agreement withstand scrutiny? Here are some tips on what to do—and not do—when drafting arbitration agreements for new hires.

First, consider whether and for what kinds of employment disputes you might want arbitration. Arbitration has some advantages. It is typically quicker and more cost-effective than litigation. It allows a trained legal professional (often a retired judge) to dictate the results of the case, rather than risking an adverse outcome with a jury. Because arbitrations are private, the proceedings, claims, and ultimate outcomes are ordinarily confidential. Most interesting to employers is that arbitrators tend to award lower damages than juries.

Of course, arbitration has some disadvantages, too. Sometimes it is neither quicker nor less expensive than litigation, and arbitrators are sometimes inclined to “split the baby,” even if the law is clearly on your side. Unfortunately, there is essentially no meaningful appeal if the arbitrator gets is wrong. But arbitrations remain an important tool for avoiding class and collective actions that could otherwise put a company out of business, especially in the wage and hour arena.  Continue Reading