An Employer’s Guide to Litigation Holds

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

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 or action. Below are some questions and answers that are worth considering the next time you find yourself in such a situation.

What is a Litigation Hold?

A litigation hold is an internal instruction issued by a company to its employees directing them to identify, locate and preserve paper and electronic documents and information that may be relevant to a particular dispute, claim or investigation. In addition to preventing the deletion, destruction or modification of documents and information by individuals, a litigation hold should also include the suspension of any routine document destruction pursuant to a company’s document retention policies or otherwise. 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

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

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 procedures employers must follow when running background checks, including providing notice to applicants in a stand-alone format and getting written permission before running the background check. Employers who don’t comply may find themselves facing expensive and time-consuming class action lawsuits for statutory damages of up to $1,000 per violation.  Continue Reading

Big Brother is Watching You: Feds Now Vetting Foreign Workers Via Social Media

Posted in Immigration Planning & Compliance

Employers may need to start “following” the information their foreign national workers share on Twitter or Facebook, as the Department of Homeland Security is turning social media into the federal government’s latest surveillance tool. In October, the Modified Privacy Act System of Records was quietly implemented placing Facebook likes, interests, friends, Instagram photographs, Twitter tweets, work information shared on LinkedIn and even Tinder activity into agency officials’ new dossiers on immigrants—information gathered directly from social-media profiles. The new surveillance program authorizes Homeland Security to collect and store “social-media handles, aliases, associated identifiable information and search results” in the permanent immigration files and official government records of all foreign nationals entering the United States, including permanent residents and naturalized citizens. Continue Reading

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

Posted in Disability, Employment Litigation

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 III of the Americans with Disabilities Act, particularly because of the availability of attorneys’ fees, and have suggested that reforms are necessary. Congress seems to have heard that discontent and is working on a solution through the proposed ADA Education and Reform Act of 2017, H.R. 620Continue Reading

Risks And Costs Of Using PTO Buckets In A Paid Leave Statute World

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Medical & Other Leaves

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 give employees at least the same amount of leave for the same purposes, under the same conditions, and with the same accrual and carry-over requirements as the applicable state or city law. The bad news is that there may be risks and additional costs facing employers who use PTO buckets to satisfy the local law’s requirements. Continue Reading

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

Posted in Employment Litigation, Wage & Hour

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 Budget. Continue Reading

The New Interview Taboo: Salary History Inquiries

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

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

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

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 speak up in opposition.  For example, in the name of “open and honest discussion,” a former Google engineer made national news by publishing an internal company-wide memorandum critiquing the Google’s diversity initiatives and speculating (based on widely-discredited science) whether biological differences between men and women might account for the gender gap at tech companies.  Google terminated him as a result, and he subsequently filed a charge with the NLRB.  Meanwhile, following President Trump’s controversial comments on the subject, many NFL players have followed the example of Colin Kaepernick by kneeling during the national anthem to protest racial injustice.  Kaepernick, who has remained unsigned by any NFL team during the 2017 season, filed an NLRB charge accusing NFL owners of collusion. Any seasoned employment lawyer or HR professional can imagine the ways in which situations like these could escalate even further in his or her own workplace. What if, following the events in Charlottesville, an employee decides to participate in (or make known his or her membership in) a hate group? Continue Reading

Gender Identity Discrimination – Prohibited or Not?

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

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 EEOC still takes the position that it does? That’s the real quandary.

Sessions’ October 4th memo to all United States Attorneys and heads of DOJ components effectively reversed the Obama administration’s position on this issue. Sessions firmly announced in his memo that “Title VII does not prohibit discrimination based on gender identity.”  He added that “[t]his is conclusion of law, not policy.”  As such, Sessions affirmed that the DOJ will now take the position that Title VII does not encompass discrimination based on gender identity “in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review).” However, Sessions emphasized that the DOJ “must and will continue to affirm the dignity of all people, including transgender individuals,” and cautions that his memo should not be “construed to condone mistreatment on the basis of gender identity.” Continue Reading

Employee Wellness Developments: Keeping Your Finger on the Pulse

Posted in Employee Benefits, Employee Handbooks & Policies

As we alluded in our “Preparing for the Unknown: Open Enrollment 2018” blog post, employers that are finalizing their employee benefit plan designs in advance of the 2018 plan year would be well-advised to monitor the developments concerning the future of health care reform, the employee wellness program regulations, and mental health benefit enforcement activity. Continue Reading