Category Archives: Employment Counseling & Workplace Claims Prevention

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Silenced No More: The Speak Out Act Set To Curb Nondisclosure Agreements For Victims Of Sexual Misconduct

Employers who have made use of pre-dispute nondisclosure and nondisparagement agreements will now have to change those practices and reevaluate their existing agreements thanks to the “Speak Out Act” (the “Act”) – a bipartisan piece of legislation born out of the #MeToo movement. The Act, which President Biden recently signed into law, is poised to … Continue Reading

Don’t Be Left Out In The Cold on Effective Performance Reviews: Five Tips You Need To Know

‘Tis the season for employee performance reviews! In the midst of the chaos that is the holiday season and end-of-year deadlines, employee performance reviews are often scheduled during this busy time of the year. An impending performance review may cause stress and angst for both the manager who has to issue the performance review and … Continue Reading

Saying The Quiet Part Out Loud: When Employee Talk About “Quiet Quitting” Could Become Protected Speech

By now, many employers have heard about “quiet quitting.” Though the term’s meaning varies depending on who’s using it, it generally refers to employees doing only as much work as the job requires without going the extra mile. Employers may view quiet quitting as lack of engagement or laziness, but employees may see it simply … Continue Reading

Policing Politics In The Workplace – Keeping The Peace On Election Day And Beyond

With early voting and vote by mail, methods of voting have become easier and more flexible and convenient than ever before—but policing politics in the workplace can be trickier than interpreting a hanging chad! Here’s what employers can do to ensure that a color war of red and blue does not ensue, after navigating through … Continue Reading

California is Spooky—California’s Recently Enacted Laws Provide Further Fright (aka Legal Obligations) to California Employers

Just in time for Halloween and employee handbook update season, the California Legislature has passed an onslaught of new employment legislation sure to give employers compliance nightmares. From expanding the concept of “family” for leaves of absence, to more time to take that supplemental paid COVID-19 leave, protection against discrimination for cannabis use and reproductive … Continue Reading

New Pay Transparency Laws Change Job Postings From Coast to Coast

A growing number of cities and states are pushing for greater pay transparency in the hiring process. To add to that growing list, California and New York have both passed pay transparency laws in recent months, leaving employers to modify how they seek out new talent. However, employers should keep in mind that not all … Continue Reading

The EEOC Poster Just Had A Makeover – Here Is What Employers Need To Know…And Do!

It will now be even easier for employees to access, understand, and enforce their rights to be free from unlawful workplace harassment and discrimination—with just the aim of their smartphone or other cherished device. The “EEO is the Law” poster, which has mandatorily adorned employee break room bulletin boards across the country, just had a … Continue Reading

NLRB Proposes New Joint Employer Rule

Do you know which workers are your employees? That answer may change if a new rule proposed by the National Labor Relations Board (NLRB) takes effect. Last month, the NLRB issued a Notice of Proposed Rulemaking on the joint-employer standard. If that announcement sounds familiar, that may be because the NLRB previously issued a Notice … Continue Reading

Born Under a Bad Sign: Avoiding Electronic Signature Blues

When Albert King sang “Born Under a Bad Sign,” he was not referring to a document containing an invalid electronic signature. Nevertheless, in a post-COVID world with large numbers of remote workers, employers can take affirmative steps to minimize the kind of “bad luck” the blues singer referred to by understanding issues that may arise … Continue Reading

Employers: Be Careful What You Include In A Handbook

Most employers include provisions in their Employee Handbook giving them the right to modify the policies at any time. They also make clear that the handbook is not a contract and does not create contractual obligations. There are good reasons for both, but also consequences. If you are looking to enforce an obligation, it’s best … Continue Reading

Watch that Frown: Mere Discouragement Enough to Violate the FMLA

There has never been a better time for employers to train managers on the basics of Family and Medical Leave Act (FMLA) rights and appropriate responses to FMLA requests. Believe it or not, FMLA rights can be violated even if no FMLA leave is denied. That’s the law as affirmed by the Seventh Circuit’s recent … Continue Reading

ALERT! Your COVID-19 Policies and Procedures Need a BOOSTER!

Employers who are conducting automatic COVID-19 testing of employees or gathering test results of employees’ families should beware: the Equal Employ­ment Opportunity Commission (“EEOC”) has issued new guidance limiting the former and has penalized a healthcare practice recently for doing the latter.… Continue Reading

Service and Support Animals: What Businesses Can and Cannot Do

We have all seen it. The unruly lap dog brought into a restaurant, yipping away, or the big dog running through a store dragging along its owner who, of course, claims it is a “service animal,” even though it clearly is not. Many individuals need and have legitimate service animals, while others need and have … Continue Reading

Employers: Prepare Now for Recession-Based Layoffs

With many economic experts predicting that the U.S. will enter a recession in the near future, employers are preparing for the possibility of significant layoffs. Before making cuts, companies – especially those with remote workers – should be aware of the potential pitfalls and legal ramifications of layoffs, and be prepared to adjust the timing … Continue Reading

Checking Applicant Backgrounds? Be Careful!

Background checks are a great idea—unless you fail to do them correctly. Mistakes can be costly. One online retailer paid $5 million to settle a class action filed by 454,000 job applicants alleging violations of the Fair Credit Reporting Act (FCRA), a key federal law governing the conduct of background checks. The number of such … Continue Reading

The Boss is Watching – But Many States Impose Requirements for Surveillance at Work

With the rise of remote work, employers are increasingly considering measures to monitor employee’s work, whether for security purposes, or to monitor productivity. But employers take note: some states are starting to weigh in by passing laws that limit employer monitoring, or require employers to notify employees that they are monitoring them. And recording employee … Continue Reading

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
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