Category Archives: Employment Litigation

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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

Website Accessibility Cases Proceed Despite Absence of Regulations

Recent trends indicate that ’tis always the season for web accessibility litigation, so with the new year, you should take a new look at your website. Businesses around the country, and especially in Florida, are discovering that their websites are within the crosshairs of visually impaired plaintiffs who, on contacting a business for assistance, may be told to visit a … 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

Disabled Access: A Chance to Fix Your Premises Before Being Sued?

New legislation seeks to level the playing field for businesses that have been targeted by “drive-by” claims alleging discrimination by customers with disabilities who may have never even gone to visit the place of public accommodation. Keep your fingers crossed.

Businesses frequently complain about “drive-by” lawsuits. Some courts have lamented the “cottage industry” that seems to have arisen under Title … Continue Reading

Just A Tip: DOL One Step Closer To Rescinding Tip Pooling Regulation

Good news for restaurant employers: the regulation that says tips belong to the employee – regardless of whether the employer takes the tip credit or pays the full minimum wage — may soon be history. Last week, the Department of Labor took another step toward rescinding the 2011 regulation by submitting a proposed rule to the Office of Management and … 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

Florida Supreme Court: Referral Sources Can Be Protected By A Non-Compete

Big news for home health agencies and others whose business comes from referral sources: the Florida Supreme Court just held that referral sources are the kind of protectable business interest that will support a non-compete agreement. Home health agencies, like other health care businesses, routinely use non-compete agreements to prevent marketing employees from leaving and going to work for direct … Continue Reading

DOJ About-Face: Supporting Class Action Waivers, Parting Ways with the NLRB

The Department of Justice (DOJ) has just switched sides in a trio of high profile arbitration cases now pending before the Supreme Court, joining with the employers to argue that the National Labor Relations Board’s (NLRB’s) ban on the use of class action waivers in arbitration agreements oversteps its authority and is misguided.… Continue Reading

DOL: “Joint Employer” and “Independent Contractor” Guidance Out and Wage and Hour Opinion Letters In

On the heels of withdrawing published interpretations of the concepts of “joint employer” and “independent contractor,” the Secretary of Labor announced yesterday that it will reinstate the issuance of opinion letters. Opinion letters are official, written opinions by the Wage and Hour Division that explain how a law applies to specific sets of facts. In 2010, the Obama administration discontinued … Continue Reading

It’s Audit Season: Have You Audited Your Website’s Accessibility?

Audit season is in full swing. Businesses now are working with auditors on their tax and other audits to ensure compliance with various financial regulations. But there is one audit that many businesses have yet to undertake and have continued to miss over the last few years: the accessibility of their website. Many businesses continued to be stunned when receiving … Continue Reading

What’s in a Pronoun? Liability for Employers

Political correctness in the workplace has become increasingly complex. Employers who have referred to transitioning employees with the wrong pronoun have found themselves in the crosshairs of the EEOC. But what about those employees who do not identify with either gender and prefer a gender neutral pronoun? Say, what?… Continue Reading

Employer Exposure Increases: Emotional Distress Damages in FLSA Cases

The number of federal courts allowing plaintiffs to recover emotional distress damages in Fair Labor Standards Act (FLSA) retaliation cases is expanding, with the Fifth Circuit Court of Appeals last month joining two other circuits that have permitted such damages. The case Pineda v. JTCH Apartments, L.L.C. (5th Circuit December 19, 2016), involved maintenance employee Santiago Pineda, who lived … Continue Reading

Medical Marijuana and the Workplace

With the growing list of states legalizing marijuana, are workplace drug policies up in smoke? As the new year begins, Arkansas, Florida and North Dakota join the growing list of states that have legalized medical marijuana. Currently, 28 states* and Washington, D.C., have legalized marijuana use for certain medicinal purposes, and eight states** and the District of Columbia have legalized … Continue Reading

Catch-22 for Franchisors: The Joint Employment Dilemma

As government agencies steadily expand the concept of  joint employment, franchisors increasingly find themselves in a difficult position. Since August 2015, when the NLRB ruled in Browning-Ferris that entities with the ability to exercise direct or indirect control over workers can be joint employers (prior blog post here), franchisors have experienced increased scrutiny from both federal agencies and the … Continue Reading

Hope for Employers: Court Says Home Health Aides Can’t Bring Collective Action

Courts have been quick to allow one employee claiming to be due overtime to sue on behalf of others in the same job category by certifying a collective action, allowing that employee to represent the class and requiring the employer to provide contact information for others in the same job category.  However, in a case with potentially far reaching implications … Continue Reading

Even Planned Surgery May Be “Unforeseeable” Under the FMLA

Employees seeking leave under the Family and Medical Leave Act are supposed to give 30 days’ notice if the need for leave is “foreseeable,” but what does “foreseeable” mean? Based on a recent 11th Circuit Court of Appeals decision, even elective surgery which could be planned far in advance, if “relatively urgent,” would not be foreseeable and thus not require … Continue Reading