Work From Home – SOS! Post-Pandemic Legal Hazards

Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour, Workplace Safety & OSHA

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 at all. With that in mind, employers and HR professionals must consider how to properly navigate the legal hazards stemming from our new normal. The following provides some key considerations in successfully managing a remote workforce.

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Employee Terminations: Breaking Up is Hard to Do

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

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.

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When Can An Employer Require Fitness-For-Duty Exams?

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Genetic Information Nondiscrimination Act, Medical & Other Leaves

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).

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Unsuccessful Union Election? Employers Might Still Be Ordered to Engage in Collective Bargaining

Posted in Employment Counseling & Workplace Claims Prevention, Labor Relations

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.

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With U.S. Troops Heading to Europe, Employers Should Revisit Military Leave Policies

Posted in Employee Benefits, Employee Handbooks & Policies, Medical & Other Leaves

In the wake of the recent Ukraine invasion, more U.S. troops are being deployed to Europe to support NATO countries. Among these are members of the National Reserve and National Guard, who typically maintain civilian jobs throughout the year, but can be called for duty at any time. With that in mind, now is a good time for U.S. employers to revisit their policies regarding military leave to ensure they are fully compliant and tailored to best support employees who need to take leave from work due to deployment.

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Thousands of COVID-Related EEOC Charges Filed; More to Come?

Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation

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 a glimpse into the future of COVID-related employment litigation. The majority of those charges claimed violations of the Americans with Disabilities Act (ADA), while others cited to Title VII of the 1964 Civil Rights Act and other anti-bias laws.

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A Cautionary Tale for Recruiters

Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation

Unprecedented levels of employee attrition and turnover are forcing employers to pull out all the stops in attracting—and retaining—top talent. Hiring bonuses, relocation pay, and wellness benefits are quickly becoming the norm in the affected industries. But a recent decision from the California Court of Appeal, White v. Smule, reminds employers to proceed with caution, particularly when relocating new workers with such initiatives. Under the ruling, even at-will employers could now be held liable for influencing workers to relocate for work if they mislead them regarding the kind or character of their job. Although the opinion is based on a specific provision of the California Labor Code, its rationale will be familiar to employers and practitioners nationwide—and serves as an important reminder to take care with all recruiting outreach efforts.

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Landmark ADA Case Leaves More Questions Than Answers on Website Obligations

Posted in Disability, Employment Counseling & Workplace Claims Prevention, Employment Litigation

Businesses hoping for clarification on their obligations to ensure their websites comply with Title III of the Americans with Disabilities Act (ADA) will still have to wait, following a recent federal appellate court decision. That decision by the Eleventh Circuit Court of Appeals (covering Florida, Georgia, and Alabama) vacates an earlier ruling by the same court that held that a website is not a place of “public accommodation.” At the same time, the ruling leaves open the question of what steps businesses must take to ensure access by persons with disabilities.

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The Biden Administration Takes Aim at Increasing Worker Empowerment

Posted in Employment Counseling & Workplace Claims Prevention, Labor Relations

When President Biden took office in 2021, he vowed to be the “most pro-union president” this country has ever seen. Although President Biden was unable to deliver some key worker legislation during his first year in office, President Biden is upping the ante to fulfill his promise of a pro-union presidency. President Biden’s newly created White House Task Force on Worker Organizing and Empowerment (the “Task Force”) just released its much-anticipated report (“Report”) detailing countless recommendations for revising labor laws.

By way of background, in April 2021, President Biden issued Executive Order 14025 establishing the Task Force with its stated goal to identify executive branch policies, practices, and programs that could be used to promote the Biden Administration’s policy of support for worker power, worker organizing, and collective bargaining. Less than a year later, on February 7, 2022, the Task Force released its Report, providing more than 60 recommendations, divided into four categories:

  • Federal Employees: Making the Federal Government a Model Employer;
  • All Employees: Increasing Visibility, Support, Awareness, and Promotion of Collective Bargaining;
  • All Employees: Ensuring Effective Enforcement of Existing Laws; and
  • All Employees: Developing Research and Collecting Data to Advance Policy About Worker Organizing and Empowerment.

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Sexual Harassment Complainants Guaranteed Their Day in Court – Employers Beware the Implications

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Litigation

Since the onset of the #MeToo movement, allegations of sexual harassment in the workplace are frequently spotlighted in the news and on social media. Still, many claims between employers and employees are resolved outside of the public eye, through mandatory arbitration. New legislation passed this month by the U.S. House and Senate, pending President Biden’s signature, will likely impact the #MeToo movement in a way that many employers have not yet experienced. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, H.R. 4445, prohibits the forced arbitration of sexual assault and harassment claims and opens the door for such claims to be brought in court, regardless of whether the complainant is otherwise bound by a mandatory arbitration provision. While the bill is not limited to the employment context, and more broadly applies to all victims of sexual assault and/or harassment, the bill is certain to impact employers in a significant way. Continue Reading

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