Disabled Access: A Chance to Fix Your Premises Before Being Sued?

Posted in Disability, Employment Litigation

New legislation seeks to level the playing field for businesses that have been targeted by “drive-by” claims alleging discrimination by customers with disabilities who may have never even gone to visit the place of public accommodation. Keep your fingers crossed.

Businesses frequently complain about “drive-by” lawsuits. Some courts have lamented the “cottage industry” that seems to have arisen under Title III of the Americans with Disabilities Act, particularly because of the availability of attorneys’ fees, and have suggested that reforms are necessary. Congress seems to have heard that discontent and is working on a solution through the proposed ADA Education and Reform Act of 2017, H.R. 620Continue Reading

Risks And Costs Of Using PTO Buckets In A Paid Leave Statute World

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

With a growing number of states and cities implementing paid sick leave statutes, employers with PTO policies may be wondering whether it still makes sense to bundle different types of time off – sick, personal, and vacation – into a single bucket. The good news is that employers generally do not have to change their policies so long as they give employees at least the same amount of leave for the same purposes, under the same conditions, and with the same accrual and carry-over requirements as the applicable state or city law. The bad news is that there may be risks and additional costs facing employers who use PTO buckets to satisfy the local law’s requirements. Continue Reading

Just A Tip: DOL One Step Closer To Rescinding Tip Pooling Regulation

Posted in Employment Litigation, Wage & Hour

Good news for restaurant employers: the regulation that says tips belong to the employee – regardless of whether the employer takes the tip credit or pays the full minimum wage — may soon be history. Last week, the Department of Labor took another step toward rescinding the 2011 regulation by submitting a proposed rule to the Office of Management and Budget. Continue Reading

The New Interview Taboo: Salary History Inquiries

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

Inquiries employers may make concerning job applicants have been under close scrutiny. Many states and cities already limit an employer’s ability to use or inquire about an applicant’s credit or criminal history. Now add salary history to the list of topics that may be off limits during an interview, depending on where your company operates.  Continue Reading

Protected Conduct or Hate Speech? Managing Diverse Viewpoints in the Workplace

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

Recent events have underscored the difficulties employers face in managing diverse workforces in which employees hold a wide-range of political perspectives.  The mere discussion of the news of the day can create divisive conflicts, especially since some employees might feel emboldened to express views once thought to be offensive or taboo, while others, in turn, believe they are compelled to speak up in opposition.  For example, in the name of “open and honest discussion,” a former Google engineer made national news by publishing an internal company-wide memorandum critiquing the Google’s diversity initiatives and speculating (based on widely-discredited science) whether biological differences between men and women might account for the gender gap at tech companies.  Google terminated him as a result, and he subsequently filed a charge with the NLRB.  Meanwhile, following President Trump’s controversial comments on the subject, many NFL players have followed the example of Colin Kaepernick by kneeling during the national anthem to protest racial injustice.  Kaepernick, who has remained unsigned by any NFL team during the 2017 season, filed an NLRB charge accusing NFL owners of collusion. Any seasoned employment lawyer or HR professional can imagine the ways in which situations like these could escalate even further in his or her own workplace. What if, following the events in Charlottesville, an employee decides to participate in (or make known his or her membership in) a hate group? Continue Reading

Gender Identity Discrimination – Prohibited or Not?

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

Still confused as to where the Trump administration stands on whether Title VII prohibits discrimination based on gender identity? Attorney General Jeff Sessions’ recent announcement should clarify that for you. So what’s an employer to do now that the Department of Justice has been instructed to take the position that Title VII does not bar gender identity discrimination but the EEOC still takes the position that it does? That’s the real quandary.

Sessions’ October 4th memo to all United States Attorneys and heads of DOJ components effectively reversed the Obama administration’s position on this issue. Sessions firmly announced in his memo that “Title VII does not prohibit discrimination based on gender identity.”  He added that “[t]his is conclusion of law, not policy.”  As such, Sessions affirmed that the DOJ will now take the position that Title VII does not encompass discrimination based on gender identity “in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review).” However, Sessions emphasized that the DOJ “must and will continue to affirm the dignity of all people, including transgender individuals,” and cautions that his memo should not be “construed to condone mistreatment on the basis of gender identity.” Continue Reading

Employee Wellness Developments: Keeping Your Finger on the Pulse

Posted in Employee Benefits, Employee Handbooks & Policies

As we alluded in our “Preparing for the Unknown: Open Enrollment 2018” blog post, employers that are finalizing their employee benefit plan designs in advance of the 2018 plan year would be well-advised to monitor the developments concerning the future of health care reform, the employee wellness program regulations, and mental health benefit enforcement activity. Continue Reading

Mandatory Flu Vaccination Policies: Time for a Check-Up

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

After a measles outbreak at Disneyland spread to 134 Californians and residents in six other states and two other countries, California adopted a law removing “personal belief” exemptions from vaccinating children in public or private schools or childcare centers. But employers faced with choosing between wanting a healthy work-site and respecting individual worker’s beliefs about vaccines lack such clear direction. Both federal and state laws impact employers’ ability to enforce mandatory vaccine policies, and the EEOC has wasted no time suing employers for religious discrimination over mandatory flu shots. Continue Reading

Immigration Enforcement and Deadlines: A Pause for Disasters

Posted in Immigration Planning & Compliance

U.S. Immigration and Customs Enforcement has put a hold on immigration enforcement operations in areas affected by Hurricanes Harvey and Irma. Routine non-criminal immigration enforcement operations will not be conducted at evacuation sites, or assistance centers such as shelters or food banks, according to a joint announcement issued by ICE and US Customs and Border Protection in connection with Hurricane Harvey.  Continue Reading

Florida Supreme Court: Referral Sources Can Be Protected By A Non-Compete

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

Big news for home health agencies and others whose business comes from referral sources: the Florida Supreme Court just held that referral sources are the kind of protectable business interest that will support a non-compete agreement. Home health agencies, like other health care businesses, routinely use non-compete agreements to prevent marketing employees from leaving and going to work for direct competitors. But there have been conflicting rulings in Florida appellate courts as to whether those agreements can be used to prevent home health employees soliciting the physician practices and other referral sources of their previous employers when they go to work for a competitor. Under Florida Statute, 542.335, non-compete agreements can only be enforced if necessary to protect legitimate business interests, such as trade secrets and customer lists. Florida appellate courts had reached different conclusions as to whether referral sources could be protected interests, as they were not specifically listed in the statute. The Florida Supreme Court, in a decision published this week, has ruled that home health referrals sources can be a legitimate business interest worthy of protection under the statute. Continue Reading