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
Category Archives: Employment Counseling & Workplace Claims Prevention
Subscribe to Employment Counseling & Workplace Claims Prevention RSS FeedSay Goodbye to Independent Contractors: The New “ABC” Test of Employee Status
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
#HimToo
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
The Nation’s Employers Just Got PAID
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
Supreme Court Expands Interpretation of Overtime Exemption
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
Department of Health and Human Services Proposes New Rule For Healthcare Workers In The Name of Religious Freedom
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
Transgender Rights Trump Religious Rights in Sixth Circuit Case
Title VII’s protections against sex discrimination extend to transgender workers, even in the face of a challenge based on the employer’s religious rights, a federal appellate court has held. A funeral home violated Title VII when it terminated its funeral home director after she disclosed that she planned to transition from male to female and thus wanted to dress in … Continue Reading
Joint Employer Standard: Whiplash!
In a surprising move, the National Labor Relations Board has overturned its recent decision that had overruled an expansive joint employer standard set forth by the previous Obama-era Board. So, at least for the time being, where an entity has reserved the right to control employees with another entity – even if that control was never exercised – the Board … Continue Reading
Another Circuit Says Title VII Prohibits Sexual Orientation Discrimination
A second federal appellate court has ruled that Title VII of the Civil Rights Act prohibits employers from discriminating against employees based on their sexual orientation. The ruling is in line with the EEOC’s interpretation of the law, but at odds with the interpretation by the current administration’s Department of Justice.
The case, Zarda v. Altitude Express, Inc., involved … Continue Reading
Is The EEOC’s Background Check Guidance In Jeopardy?
Employers that have been frustrated with the EEOC’s position on how they can use arrest and conviction records, take note: earlier this month, a federal court in Texas enjoined the EEOC and the Attorney General of the United States from enforcing the EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” (the … Continue Reading
Technical Violations of Statutes May No Longer Be Enough
“Have you been injured?” No longer just a query for auto accident victims, plaintiffs must increasingly be able to answer “yes” to that question before bringing suits for violations of statutory rights.
Once upon a time, a technical violation was enough. However, following the Supreme Court’s decision in Spokeo v. Robbins (2016), courts have been increasingly reluctant to permit … Continue Reading
An Employer’s Guide to Litigation Holds
Employers have a duty to preserve information that is potentially relevant to anticipated or existing litigation and failure to comply with that duty can have dire consequences. As such, issuing a litigation hold should be at the top of every employer’s to-do list once placed on notice of a lawsuit, an administrative charge, an agency investigation or any other claim … Continue Reading
In the Continuing Battle Over Standing, Fair Credit Reporting Act Class Action Plaintiffs Must Show Actual Injury For Failure to Provide Stand Alone Notice
Employers who run background checks on prospective employees take note – applicants who sue prospective employers for Fair Credit Reporting Act violations for failure to provide notice in a stand-alone format may not be able to maintain a lawsuit unless they can show that they suffered an actual injury. As employers should know, the Fair Credit Reporting Act has specific … Continue Reading
Risks And Costs Of Using PTO Buckets In A Paid Leave Statute World
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 … Continue Reading
The New Interview Taboo: Salary History Inquiries
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
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 … Continue Reading
Gender Identity Discrimination – Prohibited or Not?
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 … Continue Reading
Mandatory Flu Vaccination Policies: Time for a Check-Up
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. … Continue Reading
Disasters and the Workforce: Navigating Stormy Waters
Thousands of Florida coastal residents were ordered to evacuate last week in anticipation of Hurricane Irma, even as their employers remained open. A pizza restaurant manager made headlines when he threatened action against employees who chose to miss shifts to evacuate. Other employers instructed employees not to report and planned to close their offices part of this week. What are … Continue Reading
EEO-1 Pay Data Collection Form Nixed for Now
Employers that have been struggling with whether to undertake the arduous task of assembling the 2017 pay data required by the new EEO-1 form can breathe a sigh of relief: the Office of Management and Budget (OMB) has nixed it for now. … Continue Reading
Dogged by Dogs at Work: Barking Up the Wrong Tree?
Suppose you hire Kristin Chenoweth to be your new TV show host, and she shows up on the set with her dog Thunder, claiming she needs the dog for emotional support. Must you allow this distraction?
Or suppose her third cousin shows up at your restaurant with Thunder’s twin bearing a “service animal tag,” yapping away and disturbing servers and … Continue Reading
DOL Calling for Input: At What Salary Should A Worker Be Exempt From Overtime?
Now that the Department of Labor has gone back to the drawing board with the new regulation that set a $47,476 threshold salary for white collar employees to be exempt from overtime, it would like to hear from you.… Continue Reading
Predictive Scheduling and the Fight for a “Fair Workweek”: What Employers Need to Know
Retailers and fast food companies in particular should be aware of the growing push for “fair workweek” legislation at the city, state, and federal levels. In just the past few years, over a dozen states and cities have considered enacting such laws, which are designed to ensure that employees are given consistent, predictable schedules. (They have therefore also been termed … Continue Reading
DOL Drops New Salary Regulation
The Department of Labor is abandoning the new salary regulation that set a $47,476 threshold salary for employees to be exempt from overtime and intends to go back to the drawing board, based on a brief filed by the DOL on June 30, 2017.
The regulation, which more than doubled the current salary threshold, would have made an estimated 4 … Continue Reading
