Employers interviewing women of child-bearing age may be tempted to ask about plans for having a baby, but doing so poses risks. While an employer might be concerned about staffing coverage, the Pregnancy Discrimination Act prohibits employers with 15 or more employees from discriminating against a woman based on her potential or capacity to become pregnant. Taking adverse action against … Continue Reading
Category Archives: Employment Counseling & Workplace Claims Prevention
Subscribe to Employment Counseling & Workplace Claims Prevention RSS FeedMinimizing Risks of BYOD Use For Work
Employees seem permanently attached to their smart phones today, but allowing employees to use their personal devices to make work calls, and send and receive work emails can carry substantial risks. Before allowing employees to use their personal cell phones or other devices for work purposes, make sure you have strong electronic communications and Bring Your Own Device policies in … Continue Reading
Discrimination Based on Hair and Hairstyles: Protected or Knot?
Cornrows or locs may not fit your corporate image, but be careful: state and local legislation prohibiting workplace grooming and appearance policies that adversely impact employees of color have begun popping up around the country. And the new laws have some teeth: employers who discriminate based on hair texture or style could face penalties of up to $250,000 under one … Continue Reading
Deadline Approaches for Submitting New Pay and Hours Data
The EEOC portal is now open and employers who had 100 or more employees in 2017 or 2018 have until September 30, 2019 to submit the earnings and hours data required by the new Component 2 part of the EEO-1 form. As we have previously reported here the EEO-1 form was revised to require employers with 100 or more employees … Continue Reading
Avalanche of New Laws Create Additional Requirements for Illinois Employers
Illinois employers must be cognizant of new Illinois laws including bans on salary history inquiries, restrictions on artificial intelligence interview programs, mandatory sexual harassment prevention training, limitations on non-disclosure and arbitration provisions, increasing minimum wage, implications of the new cannabis law and, within the City of Chicago, predictive scheduling.
Workplace Transparency Act (WTA)
Effective January 1, 2020
The WTA’s purpose … Continue Reading
Federal Judge Rejects New York Law Prohibiting Mandatory Pre-Dispute Arbitration of Sexual Harassment Claims
New York’s ban on pre-dispute agreements requiring employees to use arbitration to resolve sexual harassment claims is invalid, a federal judge in Manhattan has ruled. In a decision from the United States District Court for the Southern District of New York, U.S. District Judge Denise Cote held, in Latif v. Morgan Stanley & Co. LLC, that Section 7515 of … Continue Reading
DOL Issues Guidance on Payroll Rounding, Overtime Calculations, and Certain Paralegals
Employers looking for guidance on payroll rounding practices, classification of certain highly compensated paralegals and calculating overtime where employees receive non-discretionary bonuses will be glad to know the Department of Labor has issued three new Opinion Letters on those subjects. DOL Opinion Letters are issued by the Wage and Hour Division of the DOL and offer insight into the DOL’s … Continue Reading
Smoke Clears For Employers Under New Illinois Marijuana Law
As marijuana legalization laws spread, some states are more focused on employee protections, but Illinois recently adopted a new marijuana law that includes extensive workplace protections for employers. Last month, the Illinois legislature passed and Illinois Governor Jay Pritzker signed the Cannabis Regulation and Tax Act. The Cannabis Act goes into effect on January 1, 2020. Beginning on that date, … Continue Reading
PEOs, Staffing Companies: Watch Proposed New Joint Employer Rule
Professional Employer Organizations, franchisors, business advisors, and staffing agencies should take a close look at their contracts if the Department of Labor’s proposed new standard for what constitutes a joint employer becomes final. The proposed rule implements a new four-factor test to evaluate whether a joint employer relationship exists.
The DOL’s proposed rule reflects the new administration’s narrower perspective of … Continue Reading
New York State Approves Broadly Expanded Protections for Employees and Applicants
Note: This blog post has been updated to include all relevant effective dates now that Governor Cuomo has signed the bill into law.
New York State has enacted comprehensive reforms to broaden the scope of its discrimination and harassment laws, including one of the most robust anti-harassment bills in the #MeToo era, amendments to the State’s Equal Pay Act to … Continue Reading
Minimizing Exposure for Employee Termination Claims
Assessing whether to terminate an employee and how best to deliver the news are challenges every employer faces. Whether it’s a low-performing employee who shows no sign of improvement or an employee who egregiously violates a company policy, having policies and procedures in place and following them will help minimize exposure to claims.
In the absence of a collective bargaining … Continue Reading
Employers Beware: Wage Theft Soon to be a Felony in Colorado and Minnesota
Recent legislation in Colorado and Minnesota imposes harsh criminal penalties—including potential felony convictions—for the failure to pay wages. To limit their exposure under these strict new laws, employers with operations in either state should familiarize themselves with these upcoming changes.
Colorado Increases Criminal Penalties under the Wage Claim Act
On May 16, 2019, Colorado Governor Jared Polis signed HB 19-1267, … Continue Reading
Fishing in the Company Pond
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
Political Speech Inside (and Outside) of the Workplace
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 … Continue Reading
Arbitration Agreements: Tips for Enforceability
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 … Continue Reading
Avoiding Office Holiday Party Headaches
The annual holiday party is a great time of the year to celebrate employees and business successes, but it can be fraught with peril. Wise employers will plan holiday celebrations carefully.
- Consider the timing.
Some employees would rather limit their time with work colleagues to workplace hours. Others may stress over childcare, transportation or other commitments, but feel obligated to … Continue Reading
A Tip from the Department of Labor: The 80/20 Rule Has Been Rescinded
Employers are no longer barred from taking the tip credit for tipped employees who spend more than 20% of their time doing non-tipped activities, according to a new U.S. Department of Labor opinion letter doing away with the so-called “80/20 rule.” As restaurant and hospitality employers are aware, the tip credit provision in the Fair Labor Standards Act permits an … Continue Reading
Avoiding Age Discrimination Claims During Succession Planning
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
English-Only Workplace Rules: Risky in a Diversifying Workplace
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
DOJ Contradicts EEOC over Title VII’s Applicability to Transgender Employees
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
Reducing Risks Associated With Temporary Staffing Agencies
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
Filing Bankruptcy May Not Stop EEOC Suits
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
Court Says Employer Cannot Refuse to Hire Based on Medical Marijuana Use
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
Covert Employees: Recording Conversations at Work
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
