As “baby boomers” come of retirement age, employers may find themselves between a rock and a hard place: they can either ask employees about their retirement plans and risk being accused of age discrimination, or they can avoid those conversations and risk being woefully underprepared for the retirements of key employees.
When done right, succession planning affords employers an opportunity … Continue Reading
A manufacturer has “subjected its employees to an ugly mix of sexism, racism, and xenophobia and violated federal law prohibiting harassment and retaliation” the Equal Employment Opportunity Commission alleged in a lawsuit recently filed in New York. What led to such an inflammatory charge from the EEOC? Among other things, the employer’s implementation of an English-only rule in the workplace.… Continue Reading
The Department of Justice is now squarely at odds with the Equal Employment Opportunities Commission over whether Title VII’s prohibition on sex discrimination also applies to discrimination against transgender employees. Specifically, in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the EEOC had filed suit against a funeral home for terminating a transgender funeral director (who was born … Continue Reading
Staffing agencies may provide the solution to a company’s short-term staffing needs. However, clients should not assume they can avoid liability for workplace issues by using a staffing agency; indeed, in some cases, a client is exposed to liability as a result of using a staffing agency. Engaging a staffing agency provides no protection against employment liability and, in some … Continue Reading
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 … Continue Reading
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 … Continue Reading
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… Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
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. … Continue Reading
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 … Continue Reading
Performance reviews are intended to provide feedback and identify opportunities for growth. They can also help an employee understand how well the employee is meeting the employer’s expectations. But make no mistake – the significance of performance reviews does not always cease at the time of termination. If the employment relationship goes south, performance reviews can develop a second life … Continue Reading
Buried in the 2,232 page omnibus budget bill recently signed by President Trump was an important change regarding the use of tip pools. Employers who do not take a tip credit are not required to police their employees to determine if their tip pool includes “back of the house” employees, which would have previously been unlawful. However, an employer may … Continue Reading
Employers often want to be sure that departing employees won’t disclose confidential business information or make disparaging remarks about the company, and therefore include such obligations in severance agreements. But there are risks, unless the provisions are carefully tailored to account for recent legal developments.
For example, in Baylor Univ. Med. Ctr., an Administrative Law Judge found that Baylor … Continue Reading
The #MeToo movement not only has highlighted harassment in the workplace; it also has prompted courts and lawmakers to take a closer look at pay equity.
The EEOC warned employers about “[e]nsuring equal pay protections for all workers” when it identified this area as one of its priorities in its Strategic Enforcement Plan for Fiscal Years 2017-2021, and it is … Continue Reading
Employers may require employees to enter into arbitration agreements that waive such employees’ ability to participate in a class or collective action lawsuit, the U.S. Supreme Court ruled this week. In a long-awaited decision that represents a significant victory for employers, the Court in Epic Systems Corp. v. Lewis held that such agreements do not violate the National Labor Relations … Continue Reading
Employers will once again have another source of guidance on wage and hour issues from the U. S. Department of Labor, which last month reinstated the practice of issuing opinion letters. The DOL stopped issuing opinion letters during the Obama administration, and instead switched to a practice of offering Administrator’s Interpretations (AI), which have broader applicability. Employers, who can rely … Continue Reading
The circumstances under which California businesses may classify workers as independent contractors rather than employees under California wage laws have been greatly narrowed by a decision the California Supreme Court issued April 30, 2018. The landmark decision in the case known as Dynamex presumes that all workers are employees, sets out a new three-part “ABC” test businesses must satisfy in … Continue Reading
The headlines may feature the names of powerful businessmen and stars who’ve been accused of sexual harassment, but employers should remember the perpetrator may not always be a man. Powerful women can be harassers, too. And there is the key: harassment is more about power than gender.
Abigail Saguy, a Professor of Sociology and Gender Studies at UCLA who has … Continue Reading
Employers who would like to work with the Department of Labor to correct potential wage and hour violations before they get sued may get their wish: the DOL has launched a Payroll Audit Independent Determination (PAID) program. The agency has invited all employers covered by the Fair Labor Standards Act to consider participating in this six-month pilot program. However, … Continue Reading
Employers may have a bit more flexibility in determining which employees are exempt from overtime following a U.S. Supreme Court ruling issued this week that specifically rejected the decades-old principle that exemptions under the Fair Labor Standards Act (FLSA) should be “narrowly construed.” In a 5-4 decision, the Supreme Court ruled in Encino Motor Cars, LLC v. Navarro that an … Continue Reading
Healthcare employers take note: the Department of Health and Human Services (“HHS”) has issued a proposed rule that, if passed, will allow healthcare workers who object to performing certain medical procedures like abortions and gender reassignment surgeries to refuse to perform such procedures on the grounds of religious freedom. If passed, the proposed rule would apply to over 700,000 healthcare … Continue Reading
