Category Archives: Employment Counseling & Workplace Claims Prevention

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The NLRB is Actively Using the Strongest Weapon in its Arsenal – Quick Injunctions

Last year we warned that the NLRB pendulum was swinging pro-union, but even we could not have predicted just how swiftly the pendulum swing would happen. In the past year alone, General Counsel Jennifer Abruzzo of the National Labor Relations Board (NLRB) has continued to forcibly push the pro-union agenda by revealing the NLRB’s intent … Continue Reading

It’s All Over but the Crying: Damages for Emotional Injuries Not Available Under Certain Anti-Discrimination Statutes

Healthcare facilities and other entities receiving federal financial assistance can breathe a little easier after a U.S. Supreme Court decision issued last week barring the recovery of emotional damages for certain discrimination claims.… Continue Reading

Work From Home – SOS! Post-Pandemic Legal Hazards

The pandemic has revolutionized the workplaces and remote workforces will almost certainly survive the end of the pandemic. A Gallup poll last fall indicated that 61 percent of workers expect to work remotely at least part of the time in the future, and just 9 percent expect to work from home only minimally or not … Continue Reading

Employee Terminations: Breaking Up is Hard to Do

Firing an employee can be much like breaking up with a significant other– stressful, messy, and awkward. No one wants to be the “bad guy,” and oftentimes it feels kinder to sugarcoat the facts rather than telling an employee the real reason for termination. But those good intentions may land employers in hot water.… Continue Reading

When Can An Employer Require Fitness-For-Duty Exams?

Employers with fitness-for-duty exam requirements for employees returning from medical leaves should take note of a recent decision by a federal court in Massachusetts. In that case, the Court considered whether requiring every employee returning from an extended leave to undergo a fitness-for-duty exam violated the Americans with Disabilities Act (ADA).… Continue Reading

Unsuccessful Union Election? Employers Might Still Be Ordered to Engage in Collective Bargaining

Employers with a workforce seeking to unionize may soon be ordered to bargain even without a union election (or potentially, even if the employer won the election)—if the NLRB’s General Counsel succeeds in resurrecting a 50-year-old legal framework called the Joy Silk Mills doctrine.… Continue Reading

Thousands of COVID-Related EEOC Charges Filed; More to Come?

Employers should be prepared: while COVID may feel like it’s on the wane, COVID-related charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) are on the rise. According to data published by Bloomberg from the EEOC, from April 2020 through December 2021 the EEOC received more than 6,000 discrimination charges relating to COVID, providing … Continue Reading

A Cautionary Tale for Recruiters

Unprecedented levels of employee attrition and turnover are forcing employers to pull out all the stops in attracting—and retaining—top talent. Hiring bonuses, relocation pay, and wellness benefits are quickly becoming the norm in the affected industries. But a recent decision from the California Court of Appeal, White v. Smule, reminds employers to proceed with caution, … Continue Reading

Landmark ADA Case Leaves More Questions Than Answers on Website Obligations

Businesses hoping for clarification on their obligations to ensure their websites comply with Title III of the Americans with Disabilities Act (ADA) will still have to wait, following a recent federal appellate court decision. That decision by the Eleventh Circuit Court of Appeals (covering Florida, Georgia, and Alabama) vacates an earlier ruling by the same … Continue Reading

The Biden Administration Takes Aim at Increasing Worker Empowerment

When President Biden took office in 2021, he vowed to be the “most pro-union president” this country has ever seen. Although President Biden was unable to deliver some key worker legislation during his first year in office, President Biden is upping the ante to fulfill his promise of a pro-union presidency. President Biden’s newly created … Continue Reading

Sexual Harassment Complainants Guaranteed Their Day in Court – Employers Beware the Implications

Since the onset of the #MeToo movement, allegations of sexual harassment in the workplace are frequently spotlighted in the news and on social media. Still, many claims between employers and employees are resolved outside of the public eye, through mandatory arbitration. New legislation passed this month by the U.S. House and Senate, pending President Biden’s … Continue Reading

Love is in the Air – And in the Workplace!

If you thought workplace romances vanished with the COVID-19 pandemic, think again.  According to a recent survey by the Society for Human Resource Management (SHRM), one-third of 550 U.S. workers said they are or have been romantically involved with a colleague in 2022. That represents an increase over 2020, when 27% of workers acknowledged a … Continue Reading

A Look Back At 2021 For California’s Private Attorneys General Act, and What To Expect in 2022

Last year was a significant year for California’s Private Attorneys General Act (known as “PAGA”), the 18-year-old wage-and-hour enforcement act that, according to one study, has generated over 20,000 lawsuits against employers over the past five years costing employers, on average, over $1.1 million per case. On its face, PAGA purports to improve enforcement of … Continue Reading

U.S. Supreme Court Allows Vaccine Mandate for Healthcare but Blocks Vaccine-Or-Test Rule for Large Private Businesses

On January 13, 2021, the U.S. Supreme Court prevented President Biden’s vaccination or testing mandate for large employers (issued as an OSHA Emergency Temporary Standard (ETS)) from being enforced.  The Court allowed the vaccine mandate for certain healthcare workers issued by the Center for Medicare and Medicaid Services (CMS) to go into effect nationwide, initially … Continue Reading

Weed in the Workplace – Marijuana Roundup

Marijuana was once again one of the hottest legislative topics across the nation in 2021, and while some states’ new legislation provided greater protections to employers with drug-free and/or zero-tolerance policies, others took a more employee-friendly approach. Employers will have to continue to review, update, and carefully navigate workplace drug policies to ensure legal compliance … Continue Reading

Family Medical Leave Compliance — A New Years’ Resolution You Should Keep

Given the rapidly spreading omicron variant, employers with as few as five employees are well advised to refresh themselves on their obligations under the Family Medical Leave Act (“FMLA”) and its California counterpart, the California Family Rights Act (“CFRA”). Generally, FMLA and CFRA provide 12 weeks of job-protected leave during a 12-month period. Private employers are … Continue Reading

Pay Transparency Requirements on the Rise

Across the country, many states have enacted Equal Pay laws which require employers to comply with a variety of requirements, typically including limits on inquiries about prior salaries and the permissible rationale for pay differentials between similar employees. Now, many states are amending those laws to require companies to disclose the expected pay range of … Continue Reading

Illinois Imposes New Limits on Non-Competes Effective January 1

Illinois employers will be far more restricted in their ability to bind employees to non-competition and non-solicitation agreements as result of an amendment to the Illinois law governing such agreements. The law amends the Illinois Freedom to Work Act effective January 1, 2022, and imposes some initial hurdles and eligibility conditions on agreements executed after … Continue Reading

DOL’s Final Rule on Tipped Employees Takes Effect December 28th

Beginning December 28, 2021, employers must pay tipped employees the full minimum wage for periods when non tip-producing work is performed for a substantial amount of time, in light of a new Department of Labor (DOL) Final Rule taking effect that date. To comply with the rule, employers should revisit their current policies regarding how … Continue Reading

The Ramifications of College Athletes Being “Employees”

Consider this: the General Counsel of the National Labor Relations Board has opined that some student-athletes at the collegiate level are “employees” for purposes of the right to engage in protected concerted activity, and the U.S. Supreme Court has found that student athletes are entitled to certain compensation. So, if student athletes have new rights … Continue Reading

Biden Administration Unveils Long-Awaited COVID-19 Rules For Large Employers and Healthcare Workers

The wait is over for employers seeking clarity on the details of the Biden Administration’s vaccine and testing rules for private employers, first announced by President Biden in early September and now slated to take effect in part by an initial compliance date of December 6, 2021, with remaining requirements effective alongside federal contractor vaccine … Continue Reading

Increased OSHA Activity Should Serve as a Warning to Employers: Adopt Safety Policies AND Enforce Them

OSHA has put employers on notice that they cannot succumb to COVID-19 burnout, and must remain vigilant when it comes to worker safety protocol. The United States Occupational Safety and Health Administration has recently increased the issuance of citations against employers for failing to following COVID-19 health and safety guidelines. Employers should be aware of … Continue Reading

Objections to COVID-Testing and Asking Vax Status Up Front: Best Practices

Employers are being inundated with employee requests for exemptions, not just from mandatory vaccination policies, but also from policies requiring regular COVID-19 testing. How do employers square their duty to provide a safe workplace with the duty to try to accommodate employees who refuse even to be tested? And can they avoid some of the … Continue Reading

Handling Requests for Religious Exemptions from Mandatory Vaccination Policies

Employers implementing mandatory COVID-19 vaccine policies are facing an avalanche of requests for exemptions as religious accommodations, far more than for medical exemptions. Fortunately, while employers are generally obligated to explore accommodations for requests based on a sincerely held religious belief, they are not necessarily obligated to grant exemptions.… Continue Reading
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