Richard D. Tuschman

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EEOC Has a Limited Duty to Conciliate, Supreme Court Rules

Before filing suit against an employer, the Equal Employment Opportunity Commission has a duty to notify the employer of the claim and give the employer an opportunity to discuss the matter. But the EEOC has no duty to engage in good faith negotiations with the employer, according to the U.S. Supreme Court’s decision in Mach Mining, LLC v. EEOC (April … Continue Reading

Supreme Court Rules on, But Fails to Clarify, Pregnancy Discrimination Law

The Pregnancy Discrimination Act extends Title VII’s prohibition against sex discrimination to include pregnancy. It also says that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” But what does this latter provision mean when … Continue Reading

Employee Handbooks Should Be Reviewed in Light of NLRB Report

Your employee handbook may be unlawful. That’s the takeaway from a 30-page report issued by the National Labor Relations Board’s Office of the General Counsel on March 18, 2015.

The report, entitled “Report of the General Counsel Concerning Employer Rules,” presents recent developments on employee handbook rules arising in the context of NLRB cases that address whether particular rules violate … Continue Reading

Employers’ Safety Records Will Soon Be a Click Away

Employers should be aware of a proposed OSHA recordkeeping rule that is expected to be issued as a final rule this year. The proposed rule requires employers to electronically report to OSHA data on serious workplace injuries and illnesses that the employers already collect on OSHA injury logs. OSHA will provide a secure web site for the data collection, and … Continue Reading

EEOC Will Now Process Sexual Orientation Discrimination Claims

On February 3rd, the Equal Employment Opportunity Commission released an internal memorandum stating that the EEOC will now process and investigate claims of discrimination based on sexual orientation, transgender status, and gender identity. The EEOC will treat such claims as charges of sex discrimination under Title VII.… Continue Reading

Truck Driver With “Current” Diagnosis of Alcoholism Is Not Qualified Under the ADA

An alcoholic is a person with a disability and is protected by the Americans with Disabilities Act if he is qualified to perform the essential functions of the job. But what if one of the essential functions of the job is not having a current diagnosis of alcoholism? That was the question posed recently by Jarvela v. Crete Carrier Corp.Continue Reading

Florida Whistleblower Act Objector Must Prove an Actual Violation of Law, Says Second DCA

The Florida private sector Whistleblower’s Act protects employees who object or refuse to participate in a violation of a law, rule or regulation by their employer. But an employee’s “reasonable belief” of a violation is insufficient – the employee must prove an actual violation to state a claim under the FWA, according to a recent decision by Florida’s Second District … Continue Reading

Employers Cannot Rely on Timekeeping Policies as a Defense to FLSA Claims

An employee’s violation of timekeeping policies is not a defense to a Fair Labor Standards Act claim, if the employer knows or has reason to know that an employee underreported his hours, according to a recent decision by the Eleventh Circuit Court of Appeals, Bailey v. TitleMax of Georgia, Case No. 14-11747 (11th Cir., January 15, 2015).… Continue Reading

Home Health Care Remains Affordable: New Companionship Exemption Rules Overturned

A federal court has invalidated the U.S. Department of Labor’s (“DOL”) amended rule that would have extended minimum wage and overtime protections to nearly two million home health care workers and affected the cost and availability of those services to the millions of patients under their care. The ruling represents a significant victory for the home health care industry, though … Continue Reading

Court Slaps Down EEOC Subpoena, Refusing to Allow Agency to Expand its Investigation

The Equal Employment Opportunity Commission has broad authority to investigate allegations of employment discrimination. But there are limits to that authority, as illustrated by a recent Eleventh Circuit Court of Appeals decision affirming the district court’s denial of the EEOC’s application to enforce an administrative subpoena that would have expanded its investigation of a single EEOC charge.… Continue Reading

Failure to Disclose Procedures Dooms Arbitration Agreement

As a general rule, courts will uphold agreements that require employees to arbitrate their employment disputes. But an employer seeking to compel arbitration must show that the employee signed a valid written arbitration agreement. And according to a recent decision by Florida’s Fourth District Court of Appeals, an arbitration agreement is not valid if the employer fails to disclose the … Continue Reading

Persuading Employee to Work Rather than Taking Unpaid Leave May Result in FMLA Violation

The Family and Medical Leave Act (“FMLA”) requires employers to provide eligible employees with up to twelve weeks of unpaid leave to care for a newborn child (among other reasons), and to offer reinstatement to the employee following her leave.  The FMLA also makes it unlawful for an employer to interfere with an employee’s attempt to exercise her FMLA rights.… Continue Reading

Confederate Flag Can Contribute to Hostile Work Environment, Says Eleventh Circuit

Exposure to the Confederate flag in the workplace can support an employee’s claim of racial discrimination, according to a recent decision of the United States Court of Appeals for the Eleventh Circuit, Adams v. Austal U.S.A., LLC (11th Cir., June 17, 2014).

The plaintiffs, 24 African American current and former employees of shipbuilder Austal, U.S.A., alleged that they were subjected … Continue Reading

Who is a Whistleblower Under Dodd-Frank? Courts Disagree.

The Dodd-Frank Wall Street Reform and Consumer Protection Act protects employees who blow the whistle on possible securities law violations.  But the question of who qualifies as a whistleblower continues to divide courts, as illustrated by two recent cases.

In Englehart v. Career Education Corp., Case 8:14-cv-444-T-33EAJ (M.D. Fla., May 12, 2014), the plaintiff, an employee of publicly traded … Continue Reading

Court Grants Deference to Secretary of Labor’s Interpretation of OSHA Regulation

When the Secretary of the Department of Labor and the Occupational Safety and Health Review Commission offer competing but reasonable interpretations of a worker safety regulation, the Secretary’s interpretation is entitled to deference, according to a recent decision by the Eighth Circuit Court of Appeals, Perez v. Lorenz Cook Co., Case No. 13-1310 (8th Cir., May 9, 2014).

The … Continue Reading

New Rules Would Amend COBRA Notification Requirements to Include ACA Alternatives

The U.S. Department of Labor (“DOL”) has proposed new rules that would revise an employer’s notification requirements under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to align them with Affordable Care Act (“ACA”) provisions already in effect.

Under COBRA, group health plans must provide a general notice of COBRA rights to each covered employee and spouse at the … Continue Reading

Do Employers Have to Offer Telecommuting as a Reasonable Accommodation?

Regular attendance is an essential function of most jobs.  Thus, employers generally do not have to accommodate employees whose disability prevents them from regularly attending their job.

But a recent decision by the United States Court of Appeals for the Sixth Circuit sheds new light on what “attendance” may mean.  In Equal Employment Opportunity Commission v. Ford Motor Company (6th … 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

New York Court Rules that Florida’s Non-Compete Law is “Truly Obnoxious”

A New York appellate court has ruled that Florida law on non-compete agreements is “truly obnoxious” to New York public policy and cannot be applied against a New York employee of a Florida-based company.

The court’s decision in Brown & Brown, Inc. v. Johnson and Lawley Benefits Group, LLC, 2014 WL 486750 (N.Y.A.D. 4 Dept., February 7, 2014) is … Continue Reading

Yes, Employers Can Win Summary Judgment in State Court

Given the opportunity, most defense lawyers will remove an employment discrimination case filed in state court to federal court because federal judges are more inclined to grant summary judgment, i.e. a judgment in favor of one party before the case goes to trial.  But as a recent case from Florida’s Third District Court of Appeal illustrates, an employer can … Continue Reading

Florida’s Minimum Wage is Now $7.93

Florida’s minimum wage rate increased to $7.93 effective January 1, 2014.  As we reported in November, Florida’s minimum wage law requires the Florida Department of Economic Opportunity to recalculate Florida’s minimum wage annually based upon the increase in the federal Consumer Price Index for Urban Earners and Clerical Workers in the Southern Region. This minimum wage increase applies to all … Continue Reading

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