Category Archives: Employment Litigation

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COVID-19 Related Litigation Surges: What Employers Can Do To Minimize Exposure

The much-anticipated surge of COVID-19 pandemic-related litigation has begun. As the pandemic continues to lay siege to the United States economy, claimants’ lawyers and government agencies have begun setting their sights on employers.… Continue Reading

Background Checks and the Fair Credit Reporting Act: Keep It Simple!

Employers who conduct background checks, beware! It might be time to revisit your standard documents and screening processes to ensure they comply with the Fair Credit Reporting Act (FCRA). The number of lawsuits brought under the FCRA has more than doubled since 2009. FRCA litigation was the highest on record at the close of 2019, and continues to rise. Many … Continue Reading

Don’t Get Bitten—COBRA and Costly Consequences of Non-Compliant Notices

COBRA: an acronym that strikes fear (and understandable confusion) into the hearts of many employers. If you have 20 or more employees, you are subject to the often equivocal requirements of the Consolidated Omnibus Budget Reconciliation Act—and the consequences of non-compliance can be poisonous. Given the increase in COBRA-related lawsuits and the Department of Labor’s (DOL) recent revisions of its … Continue Reading

Avoiding Potential Workplace Claims Arising from Reopening of Businesses

As employers contemplate or commence reopening, they should be cognizant of potential workplace claims which are likely to escalate in the COVID-19 era. Such claims can arise out of a wide range of situations, including: deciding which employees should be brought back to the worksite first, which should be allowed to continue to telework and where there isn’t sufficient work, … Continue Reading

Three More Employer Holiday Wishes Granted By National Labor Relations Board

The holiday cheer keeps coming from the National Labor Relations Board (NLRB) with the release of three new decisions favoring employers: (1) workplace policies covering confidentiality during workplace investigations are lawful; (2) employers can restrict employees’ use of emails for nonbusiness purposes; and (3) employers can stop deducting and remitting union dues after the expiration of a collective bargaining agreement.… Continue Reading

Is it Time to Prioritize Making Websites and Mobile Apps Accessible?

Companies should take steps to ensure that their websites and mobile apps are accessible to persons who are blind or vision impaired, based on the Supreme Court’s recent refusal to review an appellate court decision that allowed a blind man to sue a national pizza chain under the Americans with Disabilities Act.… Continue Reading

Hot Tip: End May Be Near for 80/20 Rule!

Employers in the hospitality and restaurant industry are poised for celebration: the Department of Labor (DOL) has proposed eliminating a rule that requires tracking the time tipped employees devote to non-tip producing activities when counting employees’ tips toward the employer’s minimum wage obligations. The DOL has taken the position that employers cannot claim a tip credit if a tipped employee … Continue Reading

Does the ADA Protect Employees from Discrimination Based on Potential Future Disabilities?

The Americans with Disabilities Act (ADA) does not protect employees from discrimination based on potential future disabilities, according to a recent ruling by the 11th Circuit Court of Appeals, which covers Florida, Georgia, and Alabama. However, employers in other parts of the country should be more cautious. For example, federal courts in Illinois reached the opposite conclusion holding that … Continue Reading

Is this the End of Independent Contractors in California?

Employers classifying workers in California as independent contractors face grave new concerns based on Assembly Bill 5, signed into law by Governor Newsom on Wednesday, September 18. In its breadth and the risk to which it subjects employers, AB 5 easily eclipses last year’s state Supreme Court decision in Dynamex. AB 5 goes into effect in only slightly more … 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

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

U.S. Supreme Court Rules that Ambiguous Arbitration Agreements Do Not Authorize Class Arbitration

Ambiguous language in an arbitration agreement is not a sufficient basis for concluding a party has agreed to class arbitration, the U.S. Supreme Court ruled last week. In Lamps Plus, Inc. v. Verela, the Court held that, under the Federal Arbitration Act (“FAA”), courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a … 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 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

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

If You Thought Website Accessibility Was Only for Your Customers—Think Again

Just how inclusive is your workplace? Do you use online applications? If visually impaired applicants cannot access your online application, chances are that your workplace fails to include these individuals. That means you could be both missing out on qualified applicants and making your business a target for claims.

Over the years, in an effort to simplify the processing of … 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 lawsContinue Reading

Restaurant Industry Takes On Tip Credit “80/20 Rule”

A restaurant advocacy group has sued the Department of Labor challenging its “80/20 Rule,” which limits the use of a tip credit wage where workers spend more than 20% of their time doing work not directly related to tip-generating activities.

The Restaurant Law Center, a public policy affiliate of the National Restaurant Association and the Texas Restaurant Association, has filed … Continue Reading

Can Employers Refuse to Hire Smokers?

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

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